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Sadly, AARTO enforcement orders are fuelling crime

Justice Project South Africa (JPSA) is gravely concerned that fraudsters continue to exploit the existence of enforcement orders issued in terms of the AARTO Act. These criminals operate under the noses of the officials at registering authorities and driving licence testing centres in Johannesburg and Tshwane. They can be very convincing, more especially when they approach unwitting motorists who just want to renew their vehicle licence disc or driving licence card with the minimum of fuss and delay.

While this phenomenon is not new, the sharp increase in the volume of enforcement orders issued by the RTIA recently has greatly aggravated the situation. Even a single enforcement order electronically blocks licensing transactions.

Unwitting motorists are usually approached by scammers while they are queuing or when they are turned away at service counters. Often, they are approached before they even enter the licensing facility’s grounds and offered “assistance”.

Soon after providing their driving licence card to these criminals, they are presented with a printout of their AARTO infringements and told to settle all of them immediately, in cash. False claims of warrants of arrest are also used to increase the urgency, as are discounts used to sweeten the deal, if they pay now.

There is no warrant of arrest under AARTO. Furthermore, the 50% discount which is provided for if the fine is paid within 32 days of the actual or presumed service of an infringement notice cannot be reinstated once it has been forfeited.

Once a person has been scammed, he or she is offered little or no assistance by the licensing authorities. They are usually referred to the SA Police Service and, in many cases, find themselves being turned away by SAPS officials who tend to say: “no crime has occurred because you willingly gave your money to these people”. This is simply not true. All victims of fraud “willingly” give their money to scammers.

“The authorities have been aware of these problems for many years,” said JPSA’s chair, Howard Dembovsky. “Although I have served on various ‘security committees’ convened by the City of Johannesburg to tackle this issue, none of them have met this year, and it seems they have been abandoned,” he continued.

Dembovsky further expressed his concerns that: “with the intended national implementation of the AARTO Amendment Act will come so-called ‘electronic service’ and this will provide new opportunities for online scammers who run very little risk of being arrested, as may be the case with those who physically lurk at licensing centres.”

The only way for motorists to mitigate the risk of falling prey to these scams is to deal with one’s traffic fines properly. Motorists can check their AARTO fines status at http://www.aarto.gov.za/index.php/query-my-fine, after which they should exercise one of their so-called “elective options”.

Although there are other platforms, JPSA advises that if one wishes to pay an AARTO fine or enforcement order, doing so at the Checkers Money Market counter or online at payCity seems to work well and immediately changes the status to “paid”. We further advise that motorists avoid paying cash to anyone and especially not to accept “assistance” from individuals that they do not know.

Motorists who wish to educate themselves regarding the processes associated with the AARTO Amendment Act may do so by visiting https://www.jp-sa.org/aarto-amendment-act-simplified/.

The AARTO Amendment Act for mere mortals

Compiled by Howard Dembovsky.

Much confusion surrounds the AARTO Act which has been in force in Johannesburg and Tshwane since 2008, and its Amendment Act which is mooted to commence nationally on 1 July 2021.

Recently, the Road Traffic Infringement Agency (RTIA) recycled an old advisory explaining the AARTO Act’s processes, and distributed it to the media. While it is a fairly accurate summary in terms of the current provisions of the AARTO Act, it does not explain the process which will apply if/when the AARTO Amendment Act is implemented nationally.

Although the draft regulations to the AARTO Act are not final yet, one must consider them to be the framework that will be used in the future.

The “new system” differs considerably from the current system and it is puzzling why the RTIA would choose to sow confusion among motorists who are not familiar with it. This is more especially so considering that the RTIA is the entity tasked with administering the AARTO Act and educating the public.

To assist motorists to understand what the AARTO Amendment Act will mean to them, we summarise hereunder, the processes it involves and advise motorists to familiarise themselves with it.

How traffic fines are handled now

Currently, the way traffic fines are issued and progressed by the authorities in almost every jurisdiction of the country is through using the Criminal Procedure Act. As its name implies, it is a criminal process and regards all violations of traffic law to be criminal offences. These offences are prosecuted by the NPA, mainly in the lower (Magistrates’) courts.

The AARTO Act is different. It “decriminalises” all but the most serious traffic offences and subjects them to administrative processes. It does this by categorising road traffic violations as “infringements” or “offences”. Infringements are dealt with administratively. Criminal offences are prosecuted in criminal courts.

The amended AARTO process

The amended AARTO process comprises three steps, which in turn involve several sub-processes, depending on how you, as a motorist react. Throughout its processes the duty is on the motorist to act and failure to do so will result in consequences of varying severity.

These steps are:

  1. An infringement notice;
  2. A courtesy letter; and
  3. An enforcement order.

It should be noted that an “infringement penalty levy” (“IPL”) of R100 is payable on every infringement notice the RTIA “follows up by proper administrative processes. The IPL must be paid in full and is not subject to any discount.

It is not clear whether this means that the IPL will only be payable after the infringement notice stage, when the RTIA issues a courtesy letter or whether it will be payable when the RTIA becomes involved in other processes, like considering representations. It is also not clear whether it will be scrapped if a representation, appeal, or review is successful.

Motorists can and are advised to check if they have any AARTO infringements at http://www.aarto.gov.za/index.php/query-my-fine, remembering that the current process differs considerably from the amended process.

The infringement notice

An infringement notice is either issued and served on the driver at the roadside, at the time of the alleged violation or on the registered owner of a vehicle, after the fact. It constitutes the commencement of legal proceedings against the person cited in it.

Infringement notices are issued by “issuing authorities” like SANRAL, SAPS, Metro Police, and local and provincial traffic departments, to mention but a few. It is not their function to collect the monies associated with infringement notices and they have no mandate to force anyone to pay fines at a roadblock.

  • If an infringement notice is issued and served at the time of the alleged violation, the person cited in it will obviously be aware of it because it will be handed to him or her by a traffic officer. The countdown to other processes starts immediately.
  • If an infringement notice is issued after the fact, it must be delivered to the registered owner by post or electronically.
  • If it is served by post, it must be addressed to the address nominated on eNaTIS by the registered owner and delivered by the SA Post Office.
  • If it is served electronically, any electronic means may be used. This is because the definition of “electronic service” is extremely broad. It does not only include email.
  • In both cases, the infringement notice must be issued and served within 60 days of the alleged infringement. The countdown to other processes starts after 60 days from the alleged infringement.
  • Also, in both cases, the infringement notice is deemed to have been served (received by its addressee) on the tenth day of position unless the contrary is proven.

An infringement notice sets out the details of the alleged infringement and provides the alleged infringer with various options which may be exercised within 32 days of the actual or presumed service of the infringement notice:

  • Pay the penalty (fine) at the 50% discounted rate;
  • Apply to pay in instalments, over a maximum term of six months and in so doing, to forfeit the discount;
  • Make a written representation to the RTIA setting out why one should not be held liable for the alleged infringement; or
  • In the case of infringement notices issued to registered owners of vehicles, to nominate the driver if he or she was not the driver. Doing this should see the infringement notice being cancelled and a new infringement notice being issued to the actual driver.

The courtesy letter

The function of the RTIA is to act as a debt collector for traffic fines and the fees it raises, together with considering things like written representations from motorists and administering the points demerit system.

If an alleged infringer fails to act within 32 days of the actual or presumed service of the infringement notice, the RTIA must issue a “courtesy letter”. This document removes the 50% discount and adds a R100 fee for the courtesy letter to the total payable. It also represents the first involvement of the RTIA in the process.

Once again, the alleged infringer is provided various options which may be exercised within 32 days of the actual or presumed service of the courtesy letter. These are:

  • To pay the full penalty, together with the R100 for the courtesy letter and R100 for the IPL; or
  • To make a written representation to the RTIA setting out why one should not be held liable for the alleged infringement.
  • Notably absent from these options is the ability to nominate the driver or to apply to pay in instalments.

The enforcement order

If an alleged infringer fails to act within 32 days of the actual or presumed service of the courtesy letter, the RTIA must issue an “enforcement order”. This document has the following effects:

  • It applies the demerit points to the alleged infringer’s driving licence, operator card or vehicle licence disc. More on the points demerit system later.
  • It also electronically blocks licensing transactions on eNaTIS, meaning that no driving licence, professional driving permit or vehicle licence disc may be issued.

The enforcement order attracts a further R100 fee which is added to the total payable. It may only be “complied with” by paying 100% of the penalty, together with R100 for the IPL, R100 for the courtesy letter and R100 for the enforcement order (R300 over and above the original fine amount).

The alleged infringer may apply to the RTIA for the enforcement order to be revoked, but only if he or she does so within 32 days of the actual or presumed service of the enforcement order.

Summary of the AARTO process

Making written representations

Written representations may be made to the RTIA, detailing why the alleged infringer should not be held liable for the alleged infringement. This may only be done using an AARTO 08 form. Doing anything else will result in the representation being ignored.

The form must detail all the reasons/defences one wishes to raise, and the form must be accurately completed. Failing to provide all the required information will result in the representation being summarily rejected.

  • If it is successful, the alleged infringement will be cancelled.
  • If it is unsuccessful, the alleged infringer has 32 days from the actual or presumed service to pay, or an enforcement order will be issued.
  • No mention is made in the draft regulations of the IPL being cancelled if a representation is successful.

The AARTO Tribunal

The AARTO Amendment Act introduces a part time Tribunal to deal with the affairs of approximately 13 million drivers plus almost 13 million vehicles (as of August 2020). Its function is to consider applications for appeal or review of the decision of a representations officer who rejects a written representation.

Any person who wishes to apply to the Tribunal for appeal or review must do so using the form AARTO 10 and must do so within 30 days of the decision of the representations officer.

Except in “exceptional circumstances”, the alleged infringer must stick to the contents of their original written representation when applying to the Tribunal. He or she may not introduce new evidence at that stage.

Although an alleged infringer who is not satisfied with the decision of the Tribunal may pursue the matter further, according to the draft regulations its decision is final. If an appeal or review before the Tribunal is unsuccessful, the RTIA must issue an enforcement order.

The Magistrates’ Court

If the alleged infringer is not satisfied with the decision of the Tribunal, he or she may approach the Magistrates’ Court with jurisdiction to appeal or review the decision of the Tribunal. According to the draft regulations, this must be done within 7 days of the Tribunal’s decision.

There is no mention in the draft regulations of the effects of the enforcement order being suspended if an alleged infringer approaches the Magistrates’ Court for appeal or review. This differs considerably with all other appeal processes in South Africa’s courts, where orders are suspended, pending the outcome of the appeal.

The draft regulations also regard an appeal to the Magistrates’ Court as being the end of the road for an aggrieved motorist. This too differs considerably from other legal matters which are subject to appeal to the High Court, the Supreme Court of Appeals and the Constitutional Court.

Nominating the driver

A vehicle owner may nominate the driver within 32 days of the actual or presumed service of an infringement notice. He or she may not do so after that time.

  • A form AARTO 07 must be used to nominate the driver.
  • A clear copy of the said driver’s driving licence card must be submitted together with the nomination form.

It is essential that the owner of a motor vehicle acquires and retains a clear copy of any third party’s driving licence card for purposes of nominating such driver if he or she allegedly violates the law.

Peculiarly, no provision is made to nominate the driver if the violation is categorised as a criminal offence. In such cases, the registered owner must wait for a criminal summons to be issued and served.

The points demerit system

The long-awaited part of the AARTO Act is the introduction of a points demerit system. All points demerit systems in the world have similar features, although the South African version differs inasmuch as it is subjected to administrative processes which do not involve the courts.

  • Every driver, operator or juristic entity starts with zero points;
  • Differing demerit points for each violation are prescribed in Schedule 3 to the AARTO regulations;

As infringements are incurred by drivers or vehicles, the demerit points are associated with that violation. They are applied when:

  • The penalty (fine) is paid, whether at the discounted stage or not; orWhen an enforcement order is issued or a person who is charged with a crime (“offence”) is convicted in court.

The threshold of demerit points which may be incurred without consequence is 15 points.

  • If the threshold is exceeded, the relevant driving licence card, operator card or vehicle licence disc is suspended for three months for each demerit point by which the threshold is exceeded. e.g. If 19 demerit points are incurred, the said document will be suspended for a year.
  • Driving or operating a vehicle during the prohibition period is a criminal offence, subject to a fine or imprisonment and a further six demerit points on conviction.

Once a driving licence card, operator card or vehicle licence disc has been suspended twice, again exceeding the threshold will result in it being cancelled.

  • This means that, in the case of driving licenses, the person will have to start from scratch, with a learner’s licence if he or she wishes to drive again after the lapse of the prohibition period.
  • In the case of operator cards and vehicle licence discs, the draft regulations do not make it clear how or if the relevant document can be reinstated.

Demerit points are applied differently, depending on whether the person is a natural person or a juristic entity, or is an operator:

  • Demerit points are applied to the driving licenses of natural persons.
  • Demerit points are applied to the operator cards of vehicles which are classified as operator class vehicles. In many instances, demerit points are incurred by both the driver and the operator. In others, they are incurred on the operator cards of juristic entities who fail to nominate the driver.
  • Demerit points are applied to the licence discs of vehicles owned by juristic entities which are not operators, if the proxy for the juristic entity fails to nominate the driver within 32 days of the actual or presumed service of an infringement notice.

Demerit points are forgiven and diminished by one point every three months. This is regardless of whether the alleged infringer does or does not incur further infringements. No-one can accumulate a negative number of demerit points. Being a “good driver” is not rewarded. Law-abiding motorists’ “reward”, if one thinks that a demerit points system involves punishment and rewards, is not to incur demerit points.

A few examples of fines and demerit points

Schedule 3 to the draft AARTO regulations contains over 2,600 separate charges for which a motorist or operator may be held to account. Below are just a few examples:

ViolationPenaltyDemerit points (natural persons)Demerit points (juristic entities)
Driving at 71-72 km/h in a 60 km/h zoneR400-1
Driving at 89-90 km/h in a 60 km/h zoneR3,40055
Driving at more than 90 km/h in a 60 km/h zoneCRIMINAL OFFENCE66
Failed to stop behind the line at a stop streetR1,50022
Failed to proceed when a traffic light was green R1,00011
Skipped a red traffic light – motorcycle/light motor vehicle/bakkie, etc.R1,50022
Skipped a red traffic light – operator class vehiclesR2,00033
Refused or failed to comply with a lawful order given by an authorised officerCRIMINAL OFFENCE66
Failed to carry a warning triangle (excl. motor car registered before 1 July 2006)R1,000--
Failed to display a current licence discR2,000--
Failed to licence a vehicleCRIMINAL OFFENCE66
Driver did not carry driving licence card with him/her or produced an expired driving licence cardR20003-
Driver is unlicensed to drive the class of vehicle he/she is drivingCRIMINAL OFFENCE6-
Employed or permitted another person to drive such vehicle while the said driver did not have a valid driving licence.R3,500--
Failed to pay ordinary or e-toll fee – motorcycle/light motor vehicle/bakkie, etc. – per toll plaza/gantryR500--
Failed to pay ordinary or e-toll fee – operator class vehicles – per toll plaza/gantryR1,000--
Reckless or negligent driving/driving under the influence of alcoholCRIMINAL OFFENCE6N/A
Inconsiderate drivingR1,000-1

Checking other persons’ demerit points status

Only companies who employ persons to drive their vehicles may query the demerit points statuses of their employees. They must get the written permission of the said driver to do so and must also pay a fee to the RTIA for such queries.

People and companies who let any other person (not in the employ of their company) drive their vehicles may not query such drivers’ points demerit status, except by making a PAIA application.

Allowing a person who is not licensed to drive one’s vehicle is subject to a fine of R3,500.

Driver rehabilitation programme

An undefined driver rehabilitation program is catered for in the AARTO Amendment Act. It is exclusively available to drivers whose driving licenses have been cancelled and must be paid for by that driver if he or she chooses to undergo the programme.

Successful completion of the driver rehabilitation program will diminish the demerit points on the successful candidate’s driving licence by four points. In other words, it will knock a year off the prohibition period within which that person may apply for a learner’s licence.

NOTE: All the above provisions are draft regulations which are open for public submissions until 1 December 2020. You are encouraged to go to https://dearsouthafrica.co.za/aartoregs/ and make your own submission. You can use the QR code below to go there using your mobile phone.

For more information on the AARTO Act, please visit https://www.aarto.co.za/.

JPSA and its head fully endorse the AA’s AARTO regulations submission

Spot the speed camera: The creative lengths that will be gone to in generating revenue.

Justice Project South Africa (JPSA) and its head, Howard Dembovsky in his personal capacity as a motorist, publicly endorse the submission regarding the latest draft AARTO regulations made by the Automobile Association of South Africa (the AA) on 22 October 2020.

“The latest draft regulations confirm everything that JPSA and I have been saying for over a decade, regarding the blatant commercialisation of traffic fines, and the AA has now hit the nail on the head,” said Dembovsky.  

“From the enormous increases in the fines and the administrative fees payable, to numerous new obstacles which are to be put in the way of a motorist who wishes to prove his or her innocence; these draft regulations make it clear that money and not justice or road safety is the primary focus of the AARTO Act,” he lamented.

Except where alleged infringers elect to be tried in court under its current provisions, the AARTO Act already regards traffic fines as little more than invoices.

“Should the AARTO Amendment Act be implemented nationally on 1 July 2021, where a popup Tribunal further hinders access to the lower courts, the injustices it will create are too frightening to imagine. Once regulations have been enacted, reversing them is a very tedious and costly process,” Dembovsky continued.

“In fact, the AARTO Amendment Act and its regulations now openly contradict basic principles of justice and fairness, with drivers earning minimum wage set to be hit hardest,” he concluded.

  • The AA’s submission to the RTIA may be found here.
  • The AA’s executive summary may be found here.
  • To further participate in the commenting process, please visit the DearSA legislative commenting platform or scan the QR code below. You have until 1 December 2020 to do so.

JPSA supports the AA’s licensing extension request

Justice Project South Africa (JPSA) supports the call of the Automobile Association of South Africa (AA) for Transport Minister, Fikile Mbalula to extend the validity period of all licenses beyond the 30 August deadline. It also urges the Minister to consider doing the same in respect of professional driving permits, and to give special consideration to the difficulties experienced by learner drivers, as a direct effect of the lockdown.

“Learner drivers whose learner’s licenses expired or are still to expire after 31 May are particularly adversely affected,” said JPSA chairperson, Howard Dembovsky. “During the ‘hard lockdown’ learner drivers could not undergo any formal instruction through driving schools, which were prohibited from operating under ‘levels 5 and 4’.”

He also asserted that the resultant demand for new tests for learner drivers who were affected by the lockdown will impact on volumes of applicants to repeat such learners’ tests. “This, in turn has a counterintuitive effect on social distancing, particularly in DLTCs where bookings must be done in person,” Dembovsky said.

Regarding professional driving permits, Dembovsky said that the process to renew a PrDP is more cumbersome than any licence and where one has or is to expire after 31 May 2020, such demand for renewals will have a similar counterintuitive effect, not only in DLTCs, but in doctors’ waiting rooms.

“We hope that the Minister will give the AA’s and our requests his urgent consideration,” he concluded.

The AA’s request to the Minister appears below:

Letter to Minister Mbalula Re License Extension (29 June 2020)

Compulsory wearing of face masks in public places

Since 1 May 2020, it has been law that a cloth face mask, homemade item or other item which covers the nose and mouth of its wearer must be worn in public, when entering buildings or premises, or while travelling in public transport. It has also been law that all employees of businesses who may come into contact with members of the public must be provided with such a mask or covering by their employer.

While it is law that such coverings must be worn, some people appear to be ignoring this requirement. Because no offences for failing to do so have been defined in the regulations, strictly speaking, no-one may lawfully be arrested or prosecuted for such failure. A law enforcement official may however instruct a non-compliant person to either put on such a covering in his or her presence or go home. Failure to do so would constitute the offence of failing to comply with the instructions of a law enforcement official, which is an offence.

The absence of prescribed offences (lacuna) in the law should not be seen as an excuse to not wear coverings. The idea behind everyone wearing some form of protective gear is to mitigate the risks of spreading of COVID-19. It is both foolish and inconsiderate not to wear an appropriate face mask or covering. Simply put, the intended purpose is: “I protect you from me – you protect me from you,” and has been used to great effect in some other countries.

People should however be careful when buying face masks. Because homemade and makeshift face coverings are not subject to any standards, specifications or regulations, anyone can make and sell them.

We have recently learned that some entrepreneurs have taken to selling fabric masks at such places taxi ranks and allowing potential buyers to try them on before purchasing. This practice is extremely dangerous and defeats the entire purpose of wearing a face mask. Common sense dictates that if a person who tries a facemask on unknowingly has COVID-19 and hands it back to the seller to sell it to someone else, the virus can easily be spread.

To download Government Gazette 43258 of 30 April 2020, please click here. The applicable regulations are regulations 5 and 14 and their sub-regulations.

National Road Traffic Amendment Bill, 2020 to be introduced to Parliament “during 2020”

On Friday 3 April 2020, the Minister of Transport published his intention to introduce the National Road Traffic Amendment Bill, 2020 to Parliament during its 2020 sittings, in the separate Government Gazette number 43201.

This comes after Cabinet announced the proposed introduction of the National Road Traffic Amendment Bill, 2019 to Parliament in a media statement dated 12 March 2020, shortly before the national sate of disaster came into effect.

Since the commencement of the lockdown, a flood of directions have been published in the Government Gazette, with numerous new and overriding directions being issued on a daily basis, while government decrees new provisions to address the COVID-19 pandemic, in the complete absence of normal democratic processes which are largely suspended during a national sate of disaster.

Although its publication is a democratically mandated requirement, its timing appears to be an attempt to fly the said referral to Parliament under the radar while constantly evolving COVID-19 legislation causes considerable distraction from normal legislative processes.

The National Road Traffic Amendment Bill, 2015 was originally published for public comment in Government Gazette 37249 of 28 January 2015, with a closing date for inputs of 28 February 2015. Although numerous draft amendments to the National Road Traffic Regulations which rely on the passing of the Bill into law have been published for comment since then, no amendments to the Bill have been published since 2015.

Despite numerous efforts to obtain a copy of the 2019 and/or 2020 version of the Bill, Justice Project South Africa (JPSA) has been unable to do so. On Friday 4 April, JPSA again wrote to senior officials at the Department of Transport to request a copy of the latest Bill.

Owing to the absence of an updated Bill, JPSA is unable to comment on what is contained in the 2020 version at this stage, beyond citing the long list of provisions stated in the objects of the Bill recorded in the latest Government Gazette, announcing its introduction to Parliament.

These provisions include numerous provisions applicable to number plates, microdots, the regulation of driving schools and the removal of the permissible breath and blood alcohol limit for the crime of driving under the influence of alcohol. The latter has been on the cards since the publication of the National Road Traffic Amendment Bill 2012 (see Government Gazette 35528 of 18 July 2012).

Prior to the lockdown, Transport Minister, Fikile Mbalula has repeatedly stated that the zero-alcohol “limit” is contained in the AARTO Amendment Act, signed by the President on 19 August 2019 and which Mbalula claims will come into effect nationally on 1 June. To date, the commencement of the AARTO Amendment Act has not been proclaimed by the President and Mbalula is not empowered to proclaim its commencement.

Whether it comes into force on 1 June or not, alcohol levels while driving are not provided for in the AARTO Amendment Act.

If the zero-alcohol level is to take effect from 1 June, this means the National Road Traffic Amendment Bill, 2020 will have to be fast-tracked through Parliament when Parliament resumes its normal operations.

To achieve the 1 June implementation date, the usual democratic processes of passing the 2020 Bill through the National Assembly, the Parliamentary Portfolio Committee for Transport, the National Council of Provinces, further public participation, back to the National Assembly and then onto the President to assent to it, sign it into law and proclaim its commencement in less than two months will undoubtedly have to be sacrificed. Whether this will pass constitutional muster is debatable.

This is more especially so considering that no-one except possibly a few elite politicians and bureaucrats appear to know what is contained in the 2020 Bill.

The objects quoted in last Friday’s Government Gazette are far from everything contemplated in the 2015 Bill. Among the other previously proposed provisions are the introduction of a “graduated driving licence system”, known as a “provisional driving license” which will see newly qualified drivers being subjected to stringent limitations for a period after passing their practical driving licence test.

Also contained in proposed regulations that followed the 2015 Bill, is the proposal to retest all current holders of driving licences every five years when they are compelled to renew their driving licence cards. The feasibility of this proposal has virtually been destroyed by the shambles created by the Gauteng pilot implementation of the online driving licence test and driving licence card renewal booking system implemented in 2019, even if the yet to be determined retesting criteria are clarified.

Only those who have followed the developments of the numerous draft legislative provisions since the Bill was first published for public comment in July 2012 will be able to make head or tail of what the enactment of the 2020 version of the Bill may mean. However, in the absence of the wording of the 2020 version, together with any amendments to the draft regulations, even those who have followed their progress are effectively in the dark.

JPSA will do its best to keep the media and the public updated on what lies ahead but can only do so if the Department of Transport is transparent.

Announcement of the introduction of the National Road Traffic Amendment Bill, 2020 to Parliament in Government Gazette number 43201 of 3 April 2020

43201_03-04_Transport

 

National Road Traffic Amendment Bill, 2015 in Government Gazette 37249 of 28 January 2015

38429_gen77_NRTA_Amendment_Bill

 

National Road Traffic Amendment Bill, 2012 in Government Gazette 35528 of 18 July 2012

documentsGG_20120718_35528_Bill_for_comments

Results of social media polls on AARTO

Thank you to those who participated in our polls on social media regarding your knowledge on AARTO and whether you want it to be implemented nationally in June 2020. Below are screen captures of the results of our Facebook and Twitter polls, together with one run by Pigspotter, who has a large follower base.

While some may say that those who participated represent a fraction of a percent of the driver population (which is 100% correct), there is a good reason for this.

You see, just like was the case with a survey conducted by the RTIA in 2017, the questions we asked were intentionally loaded. The only difference is that it is easier not to participate on social media than when you are ambushed a licensing department, while standing in a queue.

Why do we say the questions were loaded? Well, because the normal human reaction to a question that asks if you know EVERYTHING there is to know is to not want to look ignorant – or to put it bluntly – stupid.

The loaded nature of the second part of the question plays to people’s sense of reasonableness. After all, what reasonable and law-abiding motorist would not want a points-demerit system to finally come into play in South Africa, when it has been promised for so long? The first “victims” of it would be minibus taxi drivers, right?

It was not our intention to dupe anyone, just to conduct a social experiment. With that said, it seems a tad unlikely that Mr Monde Mkalipi of the RTIA was being truthful when he said “most South Africans want the AARTO Act” when the sample results below appear to indicate the exact opposite.

To be fair, no-one can make a decision either way unless they do know EVERYTHING there is to know about the AARTO Act (or anything else for that matter).

It has been our observation over more than a decade that motorists know very little about the prosecution instruments relating to road traffic offences, and even less about the AARTO Act. This is simply NOT their fault.

That said, it is our stance that the RTIA, being the government enterprise tasked with educating motorists on the AARTO Act should have made some progress in the eleven and a half years the AARTO Act has been in force in Tshwane and Johannesburg. It is apparent that it has made little, if any at all.

IF the AARTO Act does come into force nationally in June 2020, motorists are in for a nasty surprise and many who regard them as being “law-abiding citizens” (because they pay their traffic fines) will find their driving licenses being suspended quite quickly. If/when that happens, there will be an outcry, but it will be too late to do anything about it.

Please go and have a look at https://aarto.co.za so that you understand the full implications of the AARTO Act. After that, if the small percentage of you who say you know everything there is to know and want it to come into force in June still feel that way, then fine, that is your prerogative.

Facebook poll – run over 48 hours.

Twitter poll – run over 24 hours

Pigspotter’s Twitter poll – run over 24 hours

The RTIA’s 2017 survey

Below is the survey the Road Traffic Infringement Agency conducted in 2017. As you will see if you click on this link, this is the only “research paper” available on the RTIA’s website.

RTIA_Survey_2017

The time has long since passed to formalise the “blue light protocol”

It can be terrifying to see blue flashing lights in your rear-view mirror, particularly with the prevalence of bogus cops on South Africa’s roads. So why is there no formal way to deal with this scary situation?

JOHANNESBURG – On 6 December 2019 Justice Project South Africa announced the withdrawal of its endorsement of the “Combatting of Blue Light Gangs Protocol” (often shortened to the “Blue Light Protocol”) it had developed together with the Road Traffic Management Corporation in late 2013.

This arose from an increasing number of violent attacks on and threats levelled against motorists by genuine law enforcement officials who appeared to either be unaware of the protocol or had deliberately chosen to disregard it.

The protocol was intended to protect motorists from attacks by criminals posing as law enforcement officials, together with the brutality sometimes perpetrated by overzealous law enforcement officials.

Shortly thereafter, a revised protocol was developed and sent to the Police Ministry by anti-crime activist Yusuf Abramjee, for consideration for it to be ratified and incorporated into SAPS standing orders. We have heard nothing further from SAPS since then.

Today, the office of the Provincial Commissioner of the SAPS, Gauteng put out a media release in which the Provincial Commissioner advised motorists who felt uncertain about the authenticity of law enforcement officials trying to stop them, to follow the protocol, which he shortened into a paragraph which reads:

“This type of crime is real. Members of the public are thus urged to exercise caution and in the event that they suspect that they are being stopped by bogus cops, put on their hazards and drive to a nearby police station or even a filling station. Motorists should also have the SAPS 10111 number on speed dial and make the call when it is safe to do so.”

Peculiarly, in December 2019, Brigadier Vish Naidoo – national spokesperson for SAPS denied the existence of the former protocol which has been on the Arrive Alive website since November 2013. He authoritatively said: “if police tell you to stop, you must stop” and “people must stop undermining the authority of the State”.

Abramjee, who has come out in open support of the protocol says: “We need this blue light protocol as a matter of urgency. Motorists are scared of stopping and one can understand why. We’ve had a number of incidents recently again where bogus cops have attacked motorists.”

“I have today made contact with SAPS to request an urgent meeting with SAPS legal services officials and the Provincial Commissioner but feel this matter urgently needs to be escalated to the National Commissioner,” said Howard Dembovsky, chairperson of JPSA.

“It is very dangerous for the top brass of SAPS to advise motorists to take precautionary measures to avoid falling foul of bogus cops, while simultaneously failing to formalise the protocol so that every law enforcement official is aware of it and follows it, without resorting to violence and abuse,” he concluded.

SAPS media release appears below:

Office of the Provincial Commissioner of the SAPS, Gauteng
13 February 2020
MOTORISTS URGED TO REPORT POLICE OFFICERS USING UNDUE FORCE ON THEM FOR FAILING TO STOP AT NIGHT
Parktown – Management of the SAPS in Gauteng has noted with concern, a social media post accusing police of brutality in relation to motorists being stopped, particularly at night.
The post further suggests that police refused to open a case for a complainant after one such incident, citing reasons that management will now look into and take action should any wrongdoing be found.
Police management views these allegations in a serious light, and wish to assure the public that action will be taken against any member found on the wrong side of the law. Gauteng Provincial Commissioner, Lieutenant General Elias Mawela is calling upon the person who drafted this specific social media post to contact police to lay a formal complaint or open a case. The person may visit their nearest police station, call the Crime Stop number 08600 10111 or give a tip off on the MySAPS app that can be downloaded onto any smartphone. Information will be treated with confidentiality.
In the meantime, police on 08 February 2020, arrested two alleged blue-light hijackers in Mabopane. This came as a result of intense investigations after police picked up a trend in a number hijackings where motorists were hijacked by either a VW Polo and/or a silver Corsa sedan, both fitted with blue lights.
“This type of crime is real. Members of the public are thus urged to exercise caution and in the event that they suspect that they are being stopped by bogus cops, put on their hazards and drive to a nearby police station or even a filling station. Motorists should also have the SAPS 10111 number on speed dial and make the call when it is safe to do so,” advised the Provincial Commissioner.
Police management will ensure that awareness is raised internally to ensure that members ultimately approach this type of situation rationally.
For media enquiries:
Captain Kay Makhubele
SAPS Gauteng
082 xxx 0402

JPSA withdraws endorsement of “Blue Light Protocol”

JOHANNESBURG – Justice Project South Africa has announced that it has withdrawn its endorsement of the “Blue Light Protocol” which it developed with the Road Traffic Management Corporation in 2013. This comes in the wake of CCTV footage showing a woman being violently manhandled by Tshwane Metro Police Department (TMPD) officers at a petrol station on the night of 5 December, after she allegedly failed to stop for them in a poorly lit area.

 

JPSA Chair, Howard Dembovsky said the protocol was developed to combat the prevalence of criminals using easily acquired blue lights and other police equipment to pose as law enforcement authorities.

He said that so-called “blue light gangs” had been committing violent crimes ranging from robbery, hijacking and kidnapping to rape and murder for many years, but that police had failed to effectively tackle the problem. “Despite this fact, numerous police and traffic officers are wholly insensitive to this issue and incorrectly believe that they are empowered by the law to abuse members of the public who try to protect themselves from violent crime,” he commented.

“In some instances, people have been beaten up. In others, they have been shot at and even been killed by overzealous law enforcement officials. This cannot go on and if, as it appears to be, the Blue Light Protocol is contributing to this abuse, JPSA can no longer endorse it,” he declared. He explained that the National Road Traffic Act requires a motorist to immediately stop for a traffic officer in uniform. Police are also included in the definition of a traffic officer in terms of the Act.

He added that although failure to stop is a criminal offence, if a motorist felt unsafe, he or she should immediately call 10111 to verify the authenticity of the police stopping them and prepare to flee if anything goes awry.

“Should it turn out that the individuals stopping a motorist are criminals posing as police, the motorist should, where possible, institute civil and criminal proceedings against the culprits and the police, the latter of whom are constitutionally obliged to protect them from criminality,” Dembovsky commented.

“In this case, it is our view that the officers concerned should be prosecuted for assault, since it is clear that the woman was merely trying to guard against falling victim to violent crime and was not fleeing from police,” he concluded.

UPDATE: A revised and improved protocol will be released and announced shortly.

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