Up until July 2023, motorists were left confused as the Constitutional Court had declared the Administrative Adjudication of Road Traffic Offences Act (AARTO) to be unconstitutional.
UPDATE: In a significant development in July 2023, the AARTO Act underwent a major update. Despite facing strong opposition from the public, the Constitutional Court has recently declared AARTO to be constitutional, thereby granting the government the authority to implement a stringent driving demerit system.
Late July 2023: Deadline set for South Africa’s strict new driving rules
Early July 2023: Pushback against Australian-like driving rules in South Africa
In late July, Minister of Transport, Sindisiwe Chikunga, issued a statement on the AARTO Act:
We are pleased that the progress we had made on the eve of the constitutional challenge enables us to target 1 July 2024 for the nationwide rollout of AARTO. We have already established 43 service outlets across various Provinces.
We have completed requisite processes to implement the AARTO adjudication process as well as the electronic service of infringements. The latter will come into effect as soon as the President proclaims the AARTO Amendment Act.
We are also ready to finalise our recommendations to the President for the appointment of the Tribunal and the proclamation of the AARTO Act nationwide implementation, as well as the promulgation of the AARTO Amendment Act.
We have also completed the process of drafting regulations and have consulted with the Minister of Justice and all MECs.
As we proceed with the national rollout of AARTO, we will proclaim implementation in 69 municipalities by the end of this calendar year, while AARTO will kick-in in the remaining municipalities by 1 July 2024.
Read the full statement here: https://www.gov.za/speeches/minister-sindisiwe-chikunga-briefs-media-administrative-adjudication-road-traffic-offences
Earlier in the year, we spoke to Alta Swanepoel, who worked on the draft regulations, and specifically Schedule 3 of the AARTO regulations with the demerit points and penalties. to get the facts and clear up some misconceptions.
The court cases, rulings, and rumours surrounding South Africa’s AARTO Act had left the majority of motorists wondering exactly what was going on and how this was going to affect them.
The ruling that declared AARTO unconstitutional did not render the Act null and void. It is still business as usual and any fines issued must be paid as normal.
We advise paying your fines, because if you are waiting for AARTO fines to be scrapped you are just going to end up missing opportunities for discounts or getting blocked on the National Administration Traffic Information System (NaTIS), and you won’t be able to renew your driver’s or vehicle licences.
Before we get into the dirty details, below are a few AARTO basics:
- 1998 - AARTO Act passed by parliament - two years after the new constitution came into effect.
- Since then, the act has been amended in 1999, 2000, 2002 and 2019.
- Every amendment required: scrutiny from state law advisors, Department of Transport law advisors, parliamentary law advisors and president’s law advisors
- So even with the amendments, all of the above departments passed the Act as constitutional. So AARTO isn’t just something that was ‘slapped together’ - it was approved by all the necessary departments and their law advisors.
- To date, AARTO has only been rolled out in the cities of Johannesburg and Tshwane.
Across the rest of the country, the Criminal Procedure Act is still used to prosecute driving offences.
Why we need an Act like AARTO or similar
South Africa has a very robust and democratic constitution, mainly because it’s a relatively new constitution and its creators were able to look at examples of other democratic countries and learn from their mistakes or successes.
A key point or concept in any democratic constitution is that no single person or entity should be able to gain unlimited power. While this is great for democracy, it does make it a bit more tricky when it comes to putting processes in place to make sure everything runs smoothly because it requires many people to agree.
Where it gets messy
In our constitution under Schedules 4 & 5, provinces and provincial authorities are actually granted some of the same powers as the national government. Specifically relating to:
- Road Traffic
- Road Transport Legislation
But South Africa has nine provinces and 272 municipalities. This means we could end up with 9 completely different sets of traffic laws and 272 different admin processes for prosecuting offenders. This would be a nightmare.
For this reason, the National Road Traffic Act was passed in 1996, which “provides for road traffic matters which shall apply uniformly throughout the Republic and for matters connected therewith.” In other words, there was an agreement between the provinces and the national government.
They agreed to keep all the ‘basics’ (rules of the road, requirements for driver's licences etc) uniform across the country, but that smaller admin tasks, such as licensing fees, can be separately determined by each province. This is why these fees sometimes vary across provinces.
Considering the above, it is clear that there is a need for an Act such as AARTO that pulls everything together and ensures that the whole country operates according to the same road laws and legislation.
So why is AARTO so contentious? What’s the problem?
Truthfully? There is nothing wrong with AARTO in principle. In fact, most South Africans will agree that we need a better system to enforce road laws and ensure that infringers don’t just get a slap on the wrist and then do the same thing tomorrow.
The lack of repercussions massively contributes to the annual carnage on our roads. We urgently need reckless and unlawful drivers to be held accountable in such a way that they can’t just brush it off. This is the only way to improve road safety on a national level.
The catch with AARTO - and where legal experts saw a loophole - is that technically AARTO is not road traffic legislation - it is Administrative Adjudication Legislation.
Due to this technicality, OUTA (Organisation Undoing Tax Abuse), were able to bring the matter to the High Court in Pretoria. The legal battle between OUTA and AARTO has been ongoing since 2020 and you can read all the details of this in an article on OUTA: ‘AARTO: One unconstitutional law, three legal actions in the Concourt’.
According to OUTA, their main reason for bringing this matter before the court is that:
“While OUTA believes that measures to improve road safety and reduce fatalities are urgently needed, we believe that the AARTO Amendment Act will not achieve this. AARTO was rolled out in Gauteng 10 years ago and failed spectacularly. Statistics do not support the claim that it will lead to a reduction in fatalities on roads.
The application calls for the court to declare both the main act and the amendment unconstitutional. This is because this legislation unlawfully intrudes upon the exclusive executive and legislative competence of the local and provincial governments envisaged in the Constitution.”
With the above details in mind, it is worth noting that everyone agrees that South Africa urgently needs better road laws and processes. Getting people to agree on the specifics, however, is the reason AARTO ended up in the High Court.
The Unconstitutional Ruling explained
Now that we’ve brushed up on our Constitution and the history of AARTO it’s easier to understand the recent ruling. And it’s important that the public understands how the court made its decision:
- The ruling does not say that AARTO is not legal. In fact, the court case had nothing to do with the contents of the Act.
- The court case only dealt with the question of who should be making these laws and, in this case, it ruled AARTO to be unconstitutional as it would take individual power away from provinces and municipalities.
Circle back to the abovementioned National Road Traffic Act where all provinces and the national government agreed to ‘play nicely together’ when it comes to national road laws.
AARTO has therefore become a legal and, possibly, political tennis ball that’s all about who has the final say rather than what is best for South African motorists.
Are you still with us!? We know - it’s a lot. But let’s recap:
- South Africa really does need proper road laws and strict enforcement to stand any chance of creating a safer environment for road users.
- Having 9 provinces each with their own laws is not feasible.
- AARTO offers a comprehensive solution, but not everyone agrees on the details.
- Because South Africa is a democracy, it can be argued that AARTO infringes on the right of provinces to pass their own legislation and enforce their own laws. This is why AARTO could be (and was) declared unconstitutional.
- Circle back to point one and the challenge to get everyone to agree to the details they want included/changed/removed before they’ll agree to such an Act.
AARTO can’t just be ‘scrapped’. We must first have something to replace it.
Although the decision taken by the High Court judge is noteworthy and may indicate future changes, it does not immediately change anything about AARTO.
Under the constitution, when a ruling such as this takes place, everything carries on as normal until the Constitutional Court either accepts/rejects the ruling made by the High Court.
Should the Constitutional Court accept the ruling, they can’t just hit the gavel and go home. They have to come up with a plan for:
- how the replacement legislation and processes will work
- how it will transition and roll out across the country
If the ruling is rejected, then the AARTO Act will be implemented in its totality, as was originally intended to happen in 2021.
Why Gauteng motorists have received fewer fines
Over the past year, Gauteng motorists have noticed a drastic decrease in the number of fines arriving in their post boxes. There has been much speculation and many faults attributed to AARTO and even NaTIS, but the truth is much simpler: Johannesburg and Tshwane have appointed new suppliers for speed cameras.
The tender process and appointment of new suppliers means that many speed cameras around Gauteng simply haven’t been operational. The new suppliers are in the process of installing new cameras and getting the system up and running again. That’s why fines have been few and far between.
Fines are still issued via post
Unfortunately, the law still states that all fines and notices must be sent via registered post. This is extremely outdated in 2022 and many motorists simply check on the NaTIS system occasionally to check if they have any outstanding fines. Fleet managers do the same.
There might, however, be hope for a better system. According to the Electronic Communications Act we really should be able to send and receive traffic fines electronically. Many other legal documents are done electronically from contracts to bank applications, so there is no reason why traffic fines should be any different. For now, however, we first need to get an agreement on the actual legislation. From there more efficient processes should follow.
What fleet managers should know
Under AARTO, companies or fleet managers can nominate someone to be their Registered Fleet Interface User (RFIU) who will get daily updates on any company/fleet vehicle infringement notices.
The company RFIU will be able to direct all infringement notices directly to the driver responsible. This eliminates the frustrating process of having a fleet proxy who automatically receives all fines and then has 30 days to redirect these. And everything can be done via an electronic interface.
If a fine is redirected to a driver who was NOT responsible - and they have proof - then the fine defaults to the original driver/company.
This means that fleet managers must know exactly who is driving their vehicles at all times because, under AARTO, you will not be able to keep redirecting fines indefinitely.
For fleet operators, the cost will also be steeper if they don’t keep track of drivers.
Currently, for example, if a fleet vehicle receives a R3000 fine, but you can’t prove who was driving the vehicle, you are fined R750 (two demerit points) for not knowing (instead of the full R3000 fine). That’s not a bad discount and some fleet managers would rather opt for the company to pay the R750 than have their best driver pay R3000.
But that defeats the purpose of fines, which is to hold offenders accountable. With the latest amendment to AARTO (not yet in effect), the full fine of R3 000 and 5 demerit points against the actual vehicle will revert to the vehicle owner. This places more responsibility on vehicle owners to know who is driving their vehicles at all times, which shouldn't be a concern for professionally run fleets.
This also helps with the nomination of proxy drivers, because now it makes more financial and points sense to correctly allocate fines rather than have executives refusing to be listed as drivers of company cars and the proxy having to take the brunt of the fines.
How demerit points will affect fleets
Many South Africans seem to be in a mild panic over the possibility of having demerit points attached to fines. And yes, it will be an adjustment, but it’s not as harsh as some may imagine.
In terms of fleet operations, every vehicle starts at zero points and can accumulate up to 15 points. If you go over 15 points that vehicle becomes illegal to operate.
If, for example, you have a vehicle with 5 points against it and you want to sell it, the points don’t go away with the vehicle. The vehicle is sold as zero points to the new owner, but the 5 points are then allocated to your VRN (Vehicle Register Number). So the next vehicle - of the same type - that you put onto your fleet will start off with 5 points against it.
Points go to same-type vehicles - passenger vehicle, commercial vehicle, trucks etc.
You can get a detailed graph of the demerit system from AARTO.
How to ‘drive off’ demerit points: Fleet/Individual
Let’s say one of your fleet vehicles has 5 demerit points. If that vehicle is on the road for 3 months without incurring any fines, one point will be deducted. So you can get the vehicle back to zero if you drive it for 15 months without incurring any new infringements.
Realistically, most responsible drivers should not be racking up demerit points at such a rate that their licence/fleet vehicle is suspended. It’s going to require careful tracking for fleet managers, but it shouldn’t be an impossible task to manage.
CPA Fines explained
Although AARTO is making waves, it is still only in place in Johannesburg and Tshwane. Across the rest of the country, fines are still processed under the Criminal Procedure Act (CPA).
If you receive a Section 341 notice (fine), the CPA says that after 3 years those fines are struck off the register, because a Section 341 notice is not a criminal offence on its own.
If, however, your 341 notice is followed by a Section 54 Summons, it automatically turns into a criminal offence under the CPA.
In 2017 the National Prosecuting Authority (NPA) put out a directive - it’s not legislation, but more a guideline that most traffic departments follow:
- Within 18 months after an offence is committed, prosecutors should not be putting those cases on the court roll anymore as they are clogging the system.
- As it’s only a directive and not a law, there are many instances where prosecutors do not adhere to this. Traffic departments prefer not to scrap fines off the roll as they want to collect the money owed to them.
- BUT, because a 341 notice has no legal ‘value’ - you can’t be stopped in a roadblock and be forced to pay it. If you only have a 341 notice you can’t be arrested, forced to pay, or blocked on NaTIS.
- Only when a 341 notice is followed up with a section 54 summons does it become a legal document, even if it was for a parking fine. Then you can be arrested at a roadblock and taken to court.
OUTA wins the challenge to AARTO in the high court and takes it to the Concourt for a final declaration of invalidity
On 28 July 2022, the Constitutional Court provided OUTA with the Directive on how to proceed with case CCT 19/22 (see here).
This Directive sets down to be heard on 15 November 2022, effectively combines all three matters, admits the RTMC as the fifth respondent, condones the late filing of the Minister's answering affidavit, directs OUTA to send written arguments to the Concourt on or before 9 September 2022, and directs the five respondents (the two ministers, the RTIA, the RTIA Appeals Tribunal and the RTMC) to send written arguments – including merits of their appeals – to the Concourt on or before 22 September 2022.
Read the OUTA article in its entirety here.
And that’s it! We hope this made some sense and that you found it helpful.
If you are a fleet manager or individual driver that wants to know what’s happening with our traffic fines system, download our AARTO Information booklet. Need further assistance with managing your fines? Contact our fleet experts today to find out how we can help you.