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”.