Month: Oct 2019

Draft AARTO Regulations published for public comment

Minister of Transport – Fikile Mbalula

JOHANNESBURG – Draft regulations in respect of the Administrative Adjudication of Road Traffic Offences (AARTO) Amendment Act are inconsistent with the Constitution and are likely to result in further legal challenges. This is according to Justice Project South Africa Chair, Howard Dembovsky.

The regulations were published in the Government Gazette number 42765 of 11 October 2019, and can be downloaded at:  http://www.gpwonline.co.za/Gazettes/Gazettes/42765_11-10_Transport.pdf

“The draft regulations provide a more complete picture which should have been available during the public consultation phases,” Dembovsky said. “But they go far beyond merely amending the existing regulations – they repeal all the existing regulations and create an entirely new set of regulations,” he said.

“The ‘consultations’ held by the national and provincial legislatures when the AARTO Amendment Bill was being discussed centred only on the Act,” he continued. “But the draft regulations comprise over a hundred pages with scores of new provisions,” he commented.

Although an Act is passed by Parliament, regulations may be made by the Minister without the scrutiny of the legislature. Dembovsky said that this practice was flawed and allowed regulation without Parliamentary oversight.

The foundations of the AARTO Act itself are already set to face a constitutional challenge brought by Dembovsky in April 2018. That matter is to be heard in the Pretoria High Court in early 2020 and is largely unaffected by the AARTO Amendment Act, which is likely to face its own legal challenges.

“At a first reading, the regulations appear to have been rushed to completion and leave many details to the discretion of functionaries and institutions instead of providing clarity on exactly how the processes outlined in the AARTO Amendment Act are to function,” Dembovsky explained. “In particular, the regulations virtually ensure that road users seeking to challenge infringement notices will be confronted with onerous bureaucratic hurdles.”

Dembovsky urged members of the public, and especially legal professionals, to scrutinise the draft regulations, and to submit their comments, objections and suggested amendments before the 10 November deadline.

“In JPSA’s view, a comment period of 30 days is far too short to allow thorough public scrutiny of a complete re-write of regulations pertaining to the recent extensive re-write of the AARTO Act,” he said. “Notwithstanding our encouragement to the public to submit their comments, we believe that the comment period should be extended substantially and call on the Department of Transport to do so,” he concluded.

Footnote:

To make sense of the draft regulations, it is necessary to have the AARTO Amendment Act at hand. The Amendment Act can be downloaded at: http://www.gpwonline.co.za/Gazettes/Gazettes/42648_19-8_Act4of2019AdminiAdjudicRoadTrafficOffencesAmendAct.pdf

Why let the truth get in the way of a ‘good story’?

Road Traffic Infringement Agency company secretary Mcedisi Bilikwana (left) and registrar Japh Chuwe (right). Photo: Keitumetse Maako

“The recently amended Administrative Adjudication of Road Traffic Offences (AARTO) Act is merely meant to promote road safety and nothing else, contrary to reports which allege it would bully motorists into paying their e-toll bills”.

So said the Road traffic Infringement Agency’s (RTIA’s) Registrar, Japhtha (Japh) Chuwe at a media briefing held by the National Press Club in Pretoria, on 19 September 2019.

He reportedly went on to say that the “new” law was not intended for the alleged purpose and that “this misleading information is disingenuous.”

To lend weight to his musings, Chuwe referred to the publication for comment of draft amended regulations to the AARTO Regulations, published in Government Gazette 39482 of 7 December 2015. As he correctly pointed out, therein it was proposed that the single demerit-point applicable to drivers of vehicles for which a Professional Driving Permit (PrDP) is required be removed, but the R500 penalty remain.

That amendment has still not been enacted, almost four years after it was published for public comment.

Propaganda

It is a widely acknowledged fact that all good propaganda has a foundation in truth. Get a charming, eloquent individual to convey that propaganda, and you can almost certainly convince many people that the world is flat.

There’s no denying that Chuwe is a charming and  eloquent individual. He comes across as extremely knowledgeable and genuine, and is an exceptionally talented spin doctor.

However, what Mr Chuwe fails to mention is that the identical Government Gazette also proposed a new AARTO infringement notice form.

The form that proves that the AARTO Act IS about enforcing e-tolls compliance

Called the AARTO 03e “infringement notice [in respect of] multiple camera or electronically captured infringements”, this form seeks to incorporate twenty-five such infringements on a single infringement notice, as opposed to one infringement per notice number. There are many flaws with this ill-conceived idea. Not least of these is that if one wishes to make a representation or nominate a driver for a single infringement, there is no way to do so.

AARTO 03e infringement notice [in respect of] multiple camera or electronically captured infringements.

The relative newcomers to the block in respect of the AARTO Act, OUTA, who have not only publicly stated their intention to challenge the AARTO Amendment Act, but also had quite a lot to say about the timing of that Gazette at that time, have failed to counter Chuwe’s patently untruthful allegations.

That being what it may, one must ask just who is being “disingenuous”. Is it those who have said that AARTO and e-tolls go hand in hand, or is it Mr Chuwe?

The future of e-tolls

On 6 July 2019, President Ramaphosa announced that he had mandated the Minister of Transport Fikile Mbalula working with Finance Minister Tito Mboweni and Gauteng Premier David Makhura to submit to Cabinet a solution to the impasse around e-tolling on Gauteng freeways, to bring an end to the e-tolls catastrophe. “The President has called on the Ministers and Premier to table proposals to Cabinet by the end of August 2019,” the statement read.

On Wednesday 28 August, Mbalula met with OUTA and the AA, only for the SA Government news service to announce on Saturday 31 August that the so-called “deadline” had been extended “to allow for thorough consultation with organs of civil society, labour and business”.

Five weeks later, on 4 October, he met with NEDLAC and COSATU.

Considering the initial e-tolls solution deadline set by the President, it’s hard not to wonder Minister Mbalula waited until the eleventh hour to commence consultation with some organs of civil society, and then a further six weeks after it to meet with others, business and labour. What’s more, it’s hard not to wonder what may have possibly changed in the stance of organs of civil society, labour and business since Gauteng Premier, David Makhura convened his so-called “e-tolls review panel” more than five years ago, in 2014.

Announcement expected

According to MoneyWeb, President Ramaphosa is expected to make an announcement in respect of the commencement of the AARTO Amendment Act on Saturday 5 October 2019.

Let’s wait and see what is announced.