Showdown over driving demerit system in South Africa
The controversial Aarto law is headed to the Constitutional Court in three legal actions and confusion over whether the government is defending its law, says civil society group Outa.
The Aarto system was expected to become fully operational in July 2022, which would include the official introduction of the new traffic demerit system. The Aarto has been rolled out nationally in phases since June 2021, with phase 3 of the rollout scheduled to begin in January 2022.
However, in January 2022, the High Court declared the Administrative Adjudication of Road Traffic Offences (Aarto) Act and the Aarto Amendment Act unconstitutional and invalid.
The court found that the Aarto unconstitutionally intruded on the executive and legislative powers of provincial and local governments. Outa approached the court in October 2021 to declare both the main act and the amendment act unconstitutional.
In her ruling, Judge Annali Basson found in favour of Outa and agreed with the group’s position that the legislation unlawfully intrudes upon the exclusive executive and legislative competence of the local and provincial governments envisaged in the Constitution, preventing local and provincial governments from regulating their own affairs.
Growing legal battle
The high court judgment of unconstitutionality must now be confirmed by the Constitutional Court, the standard procedure when a law is declared unconstitutional. However, there are now three actions filed in the country’s highest court in connection with this, says Outa.
- Outa’s own application for confirmation;
- The minister of transport and the Road Traffic Infringement Agency (RTIA) have separately filed their notices of appeal;
- The Road Traffic Management Corporation (RTMC), a state-owned entity that reports to the minister of transport, applied to the Constitutional Court for permission to intervene and be joined as the fifth respondent in the case.
A full breakdown of the growing legal tangle and associated documents can be found on Outa’s website here.
Government plans to move ahead
The RTIA, which is responsible for the enforcement of the Aarto system, said that the provisions of the principal Aarto Act are still enforceable until the Pretoria High Court ruling is confirmed by the Constitutional Court.
“In addition, the minister of Transport Mr Fikile Mbalula, has pronounced on the intention to appeal the Pretoria High Court Judgment. The RTIA Board of Directors has also taken a resolution for the Agency to join the Minister to appeal the Judgment,” it said.
“Therefore, Aarto implementation continues until the judgment on the constitutionality of the Aarto Act has been subjected to all due legal review processes.”
The RTIA said that the primary aim of the new system is as a national road safety intervention, designed to change the behaviour of the road users towards curbing the high number of fatalities that occur on South Africa’s roads.
It is estimated that close to 14,000 road users perish annually due to traffic law violations committed by infringers, it said.
Outa raised its concerns and objections about the Aarto Act and the published Aarto Amendment Act for a number of years and shared its concerns with relevant authorities before the Amendment Act was published.
The organisation said it believes that these pieces of traffic legislation are unconstitutional and will also not assist with the curbing of road traffic fatalities in South Africa. It has also warned that the battle around the controversial laws are far from over.
“Outa urges the government to listen to the input given by organisations such as Outa when reviewing these acts. We can assure the public that we will carefully monitor the process to ensure that any revised Aarto acts are constitutional and truly aimed at increased road safety and saving lives.”
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