While the government has welcomed the judgment of the Constitutional Court on Wednesday which declared the Administrative Adjudication of Road Traffic Offences Amendment Act (Aarto) constitutional and valid, the Organisation Undoing Tax Abuse (Outa) says it will be impossible for the government to implement it.
The Constitutional Court overturned an order of the Gauteng High Court in Pretoria, which had declared it unconstitutional and invalid.
Aarto is the legislation that penalises drivers and operators of motor vehicles who are guilty of traffic or road infringements through a system of demerit points, which may lead to the suspension and cancellation of driving licences.
In a unanimous judgment delivered by Chief Justice Raymond Zondo, the justices of the apex court agreed that Aarto was constitutional and valid.
Outa launched an application with the Constitutional Court requesting that it make a confirmatory order of the High Court judgment, which had declared the act unconstitutional and unlawful.
Transport Minister Sindisiwe Chikunga and the Road Traffic Infringement Agency (RTIA) separately filed their notices of appeal at the Constitutional Court.
The minister was opposing Outa’s confirmatory order application.
In its papers, Outa argued that all road traffic infringements are dealt with by the RTIA and the Appeals Tribunal – two national organs of state.
The organisation said that means that the legislation transfers the enforcement of all road and traffic laws to the national level and thus usurps the exclusive executive competence of municipalities to enforce road traffic laws within their jurisdiction.
However, the justices rejected Outa’s contention that Aarto removed certain powers from municipalities to other state organs.
Zondo said the power to make laws that control traffic or movement on the roads necessarily includes the power to enforce those laws, encourage compliance and discourage non-compliance.
“Accordingly, it is properly the concern of both the national and provincial spheres of government that the system of dealing with the infringement of laws relating to road traffic should be effective, which is part of what Parliament seeks to do through the Aarto Act. These matters need to be dealt with nationally and inter-provincially,” he said.
Outa had also argued that Parliament had no competence to pass the act, but Zondo said Parliament had the power to pass the act and make it a law.
In its papers, RTIA said the High Court had erred in finding that the question for determination is whether the national government was competent to legislate on matters relating to provincial and municipal roads. It also said the court erred in finding that the power to enforce traffic laws on municipal roads had historically been conferred on municipalities.
The transport minister argued that all traffic contraventions were previously administered in terms of the Criminal Procedure Act and Aarto was created to improve efficiency. The minister also said Aarto established a procedure for the adjudication of infringements without taking over the enforcement powers of provinces and municipalities.
In response to the judgment, Outa’s executive director, advocate Stefanie Fick, expressed her disappointment with the court’s order but said they would abide by it.
“Outa believes measures to improve road safety and reduce fatalities are urgently needed. However, we don’t believe that the Aarto Act will achieve this; it’s just not practically possible. South Africa needs effective processes enabled by fair adjudication that comply with the Constitution,” Fick said.
She also said the organisation believed that the Aarto legislation resulted in troublesome and complex issues for most motorists and motor vehicle owners, and was concerned that this legislation would not achieve its main purpose of enhancing road safety.
“The Aarto Amendment Act with higher penalties, tedious and expensive procedures to be followed by the public, and the total lack of prescription on visible policing will have little or no effect on improving road safety in South Africa,” Fick said.
Outa said it believed the Aarto practical challenges were primarily due to poor enforcement, a lack of administrative discipline in traffic infringement management and various problems in managing vehicle and driving licensing.
“Merely legislating policy doesn’t make it rational or workable. Governments often suffer from the false belief that if the laws and regulations are in place, the people will comply. Irrational and/or impractical laws and a lack of transparency result in pushback from society, making systems ungovernable. The sad reality is that government begins to suffer from a crisis of legitimacy when it cannot exercise its power over people by effectively enforcing its legislation and policies,” Fick said.
Meanwhile, Chikunga welcomed the judgment and said it affirmed the government’s long-held view that Aarto was a necessary law to advance its efforts in reducing road carnage.
— Road Traffic Management Corporation (@TrafficRTMC) July 12, 2023
Chikunga said the implementation of Aarto across the country had been pending for 25 years, with pilots in the cities of Johannesburg and Tshwane.
“With this judgment having cleared the path for the implementation of Aarto, we will move quickly to roll out its implementation nationwide without delay.
“In the coming days, we will ensure that the Road Traffic Infringement Agency mobilises the necessary capacity and proceeds with its rollout plans across all municipalities in the country. We are also ready to finalise our recommendations to the president for the appointment of the tribunal and the proclamation of the Aarto implementation and the Aarto Amendment Act,” she said.
The minister said the department would also move quickly with implementing the points demerit system, an essential cornerstone of the Aarto Act intended to drive motorist behaviour on our roads.
“We are pleased that this judgment not only removes the uncertainty created by this legal challenge but enables us to focus on ensuring that our roads are safe for all road users with penalties that will make a telling difference,” she said.