Month: April 2018

AARTO to face constitutional challenge

Numerous provisions of the Administrative Adjudication of Road Traffic Offences (AARTO) Act, as well as certain provisions of the National Road Traffic Act are unconstitutional and should be struck down. These are the fundamental assertions made in court papers filed in the North Gauteng High Court by Howard Dembovsky, chair of Justice Project South Africa last week.

Dembovsky has said that both sets of legislation simply presume guilt on the part of an accused person, circumvent key principles in criminal law and facilitate what he describes as being “grossly unjust measures to extract revenues, facilitated through the coercive practice of withholding licence discs and other documents from persons, regardless of whether they have been found guilty of an offence or not”.

“I am seeking to enforce of my individual constitutional rights,” said Dembovsky. “The fact that my rights and the rights of my fellow South Africans are shared through the Constitution, means that should I win this challenge, every single motorist in the country will also have their rights enforced”.

His affidavit, which can be viewed and downloaded at www.aarto.co.za lays bare how the AARTO Act was implemented almost solely to extract revenue from road users, with road safety hardly featuring in it at all. The AARTO pilot project, which was meant to last no more than 18 months, is currently in its tenth year of operation, and an Amendment Bill currently being processed by the National Council of Provinces seeks to further diminish the constitutional rights of motorists, even going so far as to altogether remove the right to a fair trial for traffic offences. Dembovsky hastens to add that he is not however challenging the AARTO Amendment Bill at this juncture, since it has not yet been signed into law. “That bridge will be crossed when, and indeed if we come to it,” he said.

When asked what he thought should replace the AARTO Act if he wins this court battle, he replied that government and the law enforcement community should simply obey the law and enforce laws within the prescripts of the law. “20 years ago, the Road Traffic Act was not much different to what the National Road Traffic Act is today, and it was successfully enforced using the Criminal Procedure Act,” he commented. “At that time, a South African’s risk of dying in a traffic crash was one-third what it is today. But as time has progressed and policing has become lazier and more revenue-centric, so too has a general breakdown in law and order, coupled with sharp rise in the fatalities on our roads followed,” he continued.

He said that there are ways that the application of the Criminal Procedure Act in relation to road traffic infringements could be improved, but that the fundamental issues of equality before the law, the right to a fair trial and the presumption of innocence were enshrined in the Constitution and justice system are still catered for in that legislation and therefore, the Criminal Procedure Act is and remains ideally suited to prosecuting road traffic offences and infringements. He described the AARTO Act as creating a parallel system that tries to operate completely outside of the framework of the rule of law, in the interests of expediency and not justice.

“It is time government sat down, breathed deeply, and asked the most important question: ‘How do we reduce road deaths?’” Dembovsky said. “Chasing revenue by enacting unconstitutional laws and abusing the provisions of others is not the answer. If government genuinely wants to implement a points-demerit system, then one can easily be incorporated into the National Road Traffic Act without the need to run roughshod over the constitutional rights of people,” he concluded.

He believes that he has an exceptionally strong case and “looks forward to arguing it before the court”.

The AARTO Amendment Bill, e-tolls and losing your driving licence

The recent media hype surrounding e-tolls and the AARTO Amendment Bill is somewhat misleading and needs to be clarified.

While it is true to say that under the current AARTO Regulations, drivers of operator-class motor vehicles could have their driving licences suspended for failing to pay e-tolls, if the points-demerit system was in force now, this is not true with respect to drivers of around 91% of the registered self-propelled vehicles in South Africa.

Please note: “RWC” means operator-class vehicles.

Even though it has not been promulgated yet, a 7 December 2015 draft amendment to the AARTO Regulations indicated the intention of the Department of Transport to dispose of the single demerit-point applicable to charge code 3821 in Schedule 3 of the AARTO Regulations.

Please note: “RWC” means operator-class vehicles.

It is little more than a play on words to say that “not paying your e-tolls is not a traffic infringement” and “instead counts as disobeying a road sign”.

The descriptive wording of charge codes 3820 and 3821 is “Failed to comply with the directions conveyed by a road traffic sign by using a toll road without paying the toll charge”. Therefore the underlying infringement is driving on a toll road without paying the toll charge. Whether that toll charge is payable at an ordinary toll plaza or arises from passing under an e-toll gantry is irrelevant since the SANRAL Act, which is road traffic legislation, contemplates both means of toll collection and creates a road traffic offence for not complying.

SANRAL has failed to issue even a single infringement notice and prosecute even a single person for failing to pay e-tolls since the inception of e-tolling in 2013. The singular conviction, by plea agreement, of Dr Stoyan Stoychev in 2015, for number plate fraud and evading e-tolls in the process, does not alter this fact.

Perhaps part of the reason for this phenomenon is that serving infringement notices in person or by registered mail is a costly affair. The AARTO Amendment Bill seeks to introduce “electronic service” which will save issuing authorities and the RTIA astronomical amounts of money. The Bill also seeks to remove the right of an alleged infringer to elect to be tried in court and in so doing, to be afforded their constitutional right to a fair trial. As a result, issuing authorities, including but not limited to SANRAL, would never have to prove their allegations, if the Bill is signed into law.

JPSA maintains that, despite the AARTO Amendment Bill reportedly having been scrutinised and certified by the State Law Advisors, it will fail to pass constitutional and other legal muster if it is signed into law. The e-tolls issue is a separate, but interlinked issue and is yet to be resolved.