The High Court this week declared South Africa’s controversial Administrative Adjudication of Road Traffic Offences (Aarto) Act and the Aarto Amendment Act as unconstitutional and invalid.
In her ruling, judge Annali Basson found 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.
The judge declared the laws to be inconsistent with the Constitution in their entirety, effectively sending the transport department back to the drawing board.
The ruling was welcomed by various sectors of the country, including the civil action groups that brought the case, opposition parties that campaigned against the laws, as well as local governments which were set to lose billions of rands to the Road Traffic Infringement Agency (RTIA) through the laws.
Policymakers in Johannesburg and Tshwane – where the Aarto system has been in place for over a decade – told the City Press that they are now looking at ways to claim back the billions of rands handed over the RTIA during this time.
They said that for every R500 fined on roads in the cities, R250 would end up with the RTIA.
However, uncertainty still persists around the ruling and what it means for Aarto. Transport minister Fikile Mbalula has so far merely ‘noted’ the ruling, though the Organisation Undoing Tax Abuse (Outa) – which brought the case to the courts – is anticipating an appeal process from the department.
Legal experts, meanwhile, say the ruling still has a long process ahead of it and will need to be confirmed by the Constitutional Court.
Professor Bernard Bekink of the department of public law at the University of Pretoria told the City Press that authorities should act responsibly and stop the rollout of Aarto while this process plays out. However, he warned that even if the ruling is confirmed by the Constitutional Court, it is unlikely to be applied retroactively.
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.
To pay or not to pay
The Aarto Act was established as a single national system of road traffic regulation and has been in operation in Johannesburg and Tshwane only as a pilot project since July 2007 – intended to be rolled out in other provinces.
Outa and the Automobile Association noted that because the court did not rule retrospectively, and all traffic fines issued through Aarto are based on an offence, motorists found guilty are obliged to pay fines, the Sunday Times reported.
This is the case until the matter is finally decided and the way forward clarified by the Constitutional Court, it said.
Stefanie Fick, an executive director at Outa said that unless a court rules that all historic fines should be scrapped, they still stand “because this doesn’t take away from the fact that an offence was still committed”.
Cornelia van Niekerk, owner and director of Fines4U, said that motorists are entitled to have their fines withdrawn because they have not been correctly issued, The Sunday Times reported.
Van Niekerk said any motorist who had been issued a fine after the company’s court case could have it cancelled as the RTIA did not issue the fines correctly in terms of Aarto legislation.
“We advise people not to just ignore their fines and hope that they will go away because there is no reason to believe that everything is going to be scrapped. We recommend that you do the right thing and resolve it properly.”