Media Releases

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

Festive season road deaths a catastrophe – JPSA

JOHANNESBURG – The announcement made today by Transport Minister, Dr Blade Nzimande that 1,612 people died during the 2018/19 festive season yet again represents a catastrophic event in the history of South Africa. This is according to the Justice Project South Africa (JPSA).

JPSA chair, Howard Dembovsky, said he could not understand how the figure announced today had declined by around 200 over the road deaths announced by SABC radio on 28 December 2018.

“It is also hard to see how this festive season’s fatalities of 1,612 allegedly represents a “reduction of 7%” when the reported figure up to 9 January 2018 was 1,573,” Dembovsky said. “This represents a 2.5% increase in road fatalities over the same period last year and a fatality rate of 42 people per day.”

JPSA has said the RTMC continued to use unequal monitoring periods. In 2017/18, the monitoring period was 1 December to 15 January (46 days). In 2018/19 it was 1 December to 8 January (39 days). This means that the number of people killed per day on the roads over the Christmas period has risen from 36 last year to 42 this year. “We should not be satisfied about a 17% increase in the daily fatality rate,” Dembovsky commented.

JPSA said Nzimande’s announcement contained incorrect information about the role of bail, and again promoted the fiction that it is legally possible for serious road traffic offences to be re-classified to Schedule 5 of the Criminal Procedure Act.

JPSA referred to its previous statements on how the RTMC and Department of Transport has misinterpreted the Schedules of the Criminal Procedure Act, and specifically how no provision exists in that Act to detain anyone accused of any crime, no matter how serious, for “a minimum of 7 days” without being brought before a Court for a formal bail hearing.

“It is glaringly obvious that the RTMC, together with the Department and Minister of Transport continue to do the same things and expect different results,” Dembovsky said. “Most notably, it is clear that the RTMC lacks understanding or control of the road safety situation,” he concluded.

Driving licence card production backlog remains a big problem

File photo: African News Agency (ANA)

JOHANNESBURG – KwaZulu-Natal’s Department of Transport has said it will fine motorists for driving with expired driving licence cards, even where the Driving Licence Card Authority (DLCA) has been unable to provide the driving licence card after a proper application was made by the motorist.

Justice Project South Africa has criticised this move. “The DLCA is currently backlogged with applications due to a strike,” said JPSA chair, Howard Dembovsky. “A spokesperson for the Department of Transport has stated that a directive has been issued to law enforcement authorities not to prosecute motorists whose driving licence cards have expired without the new card being received as a result of the backlog.”

However, the KZN Department of Transport’s stance is that such motorists must, at a cost of R100 each, obtain temporary driving permits, or face prosecution.

JPSA said it would be surprised if the  KwaZulu-Natal Department of Transport could convince a court to convict a motorist who has made reasonable efforts to comply with the provisions of the National Road Traffic Act (NRTA), but has been denied a renewed driving licence card due to the inability of the National Department of Transport to produce it within the three month extension period provided for in the NRTA.

“This announcement is also cynical, coming in the midst of the festive season travel period when testing centres are unlikely to be able to meet such a sudden demand for temporary licences, and with many motorists already on holiday away from their homes and without access to the supporting documentation needed for an application,” Dembovsky added.

He reminded motorists that a driving licence is valid indefinitely, until such time as it is suspended or cancelled. It is only the driving licence card which should be renewed every five and a professional driving permit (also on a driving licence card) which must be renewed every two years.

Although a court may take the view that it is the motorist’s duty not to drive in contravention of the law, it is the State’s duty to ensure compliance is possible. JPSA strongly recommends that anyone who is fined after making application for the renewal of their driving licence card or professional driving permit defends the matter on the basis that compliance is not reasonably possible at such short notice during the festive season, and that the direct cause of the non-compliance is the State’s failure to manage the DLCA effectively.

BEWARE! Bogus “advice” on warrants of arrest

JOHANNESBURG – Over the weekend, a document purporting to be offering the services of the Law Society of South Africa and urging motorists to know their rights has again been doing the rounds on social media.

Justice Project South Africa has been in contact with the Law Society of South Africa and has also unsuccessfully tried to contact the former Law Society of the Northern Provinces, which has been replaced by the Legal Practice Council, to alert them to this anomaly. The Law Society of South Africa has confirmed the bogus nature of this document and says that it has been intermittently doing the rounds for around nine years now.

The “advice” given in this document is not only completely incorrect but is extremely reckless and malicious.

Warrants of arrest in respect of road traffic infringements have not existed in the Cities of Tshwane and Johannesburg since 2008, due to the implementation of the AARTO Act which does not include a warrant of arrest.

Elsewhere in the country, where road traffic offences are still prosecuted using the Criminal Procedure Act (including Ekurhuleni and Mogale City which abut Johannesburg and Tshwane) warrants of arrest are issued by Magistrates in respect of motorists who fail to appear in court when summoned to do so.

This arises out of written notices to appear in court in terms of Section 56 of the Criminal Procedure Act and summonses issued and served in terms of Section 54 of the Criminal Procedure Act being ignored by some motorists.

Warrants of arrest may be executed by any peace officer, not just a traffic officer or policeman and resisting arrest will almost certainly land that person in even hotter water than they would have been had they simply cooperated. In addition, a peace officer is empowered to arrest any person who commits an offence in his or her presence.

No-one may be arrested for failing to carry their driving licence with them, however they can be issued with a fine for failing to do so.

JPSA has repeatedly refuted several similar bogus documents and will continue to do so. We advise motorists NOT TO follow ANY of the “advice” in this bogus document doing the rounds on social media.

It is particularly important for motorists to know their rights and responsibilities around this time of the year because the festive season is almost upon us and with it will come intensified roadblocks all over the country. For further details on your rights as a motorist, please visit https://www.arrivealive.co.za/Rights-and-Obligations-when-stopped-by-a-Traffic-Officer.

RTMC’s 7 days in jail before bail “proposal” absurd at best – JPSA

JOHANNESBURG – Since Sunday 4 November 2018, the media has been abuzz over the RTMC’s plans to introduce a “7-days’ in jail policy” before a person who stands accused of driving under the influence of alcohol, reckless or negligent driving, or speeding may apply for bail.

In the Sunday Times report which triggered the buzz, Advocate Makhosini Msibi is quoted as saying: “Above all, it must not be automatic, you must spend seven days [in jail] before you can bring the application for bail.”

So vociferous are Msibi’s absurd assertions that on page 5 of the RTMC’s “Revised Strategic Plan 2015 – 2020” (signed off by Dr Blade Nzimande), Msibi states that “One of the initiatives [of the RTMC] is to re-classify all road traffic offences to Schedule 5 of the Criminal Procedure Act (CPA)”. Simply put, this means that even a person who is arrested for parking their vehicle incorrectly should, in Msibi’s mind, be detained for seven days prior to being permitted to launch a bail application.

There is no provision whatsoever, in any South African law which authorises the South African Police Service to detain a person for seven days prior to bringing that person before a court. In fact, the Criminal Procedure Act expressly prescribes that every arrested person must be brought before a court within 48 hours of their arrest and the Constitution of the Republic of South Africa expressly forbids the apartheid era style of detention without trial that the RTMC clearly wishes to reintroduce into South African society.

This “proposal” is absurd at best and represents little more than a crude attempt by the RTMC to abuse the well-established and legally sound bail process in our criminal justice system. It should be treated with the contempt it deserves.

Listen into SAfm at 09:30 on Wednesday 7 November where Howard Dembovsky will be going head to head with the RTMC on this topic.

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.

Have your say: AARTO Amendment Bill hearings – NCOP Western Cape

JOHANNESBURG – It has come to the attention of Justice Project South Africa that the Western Cape Provincial Parliament is to hold public hearings on the AARTO Amendment Bill in Cape Town, starting next Thursday, 15 February 2018. These hearings form part of the process before the National Council of Provinces votes on the Bill, and motorists are strongly encouraged to take the time to participate in this process.

At this stage, JPSA is not aware of any scheduled public hearings in the other eight provinces, but we will keep an eye on things and will notify the public if or when we are made aware of other events.

The AARTO Amendment Bill seeks to amend many of the current provisions of the AARTO Act, in preparation for the national implementation of the AARTO Act, whereafter the long awaited points-demerit system is expected to be introduced.

“This may sound like good news to law-abiding motorists who have grown tired of the lawlessness on our roads, but there are numerous provisions of the currently applicable AARTO Act which, along with the proposed amendments contained in the AARTO Amendment Bill will literally make your hair stand on end,” says JPSA’s chairperson, Howard Dembovsky.

“For example, the AARTO Act does not interest itself with whether you are guilty or innocent of the infringement with respect to which a traffic officer issues an infringement notice to you”.

Whereas motorists are currently permitted to elect to exercise their constitutional right to a fair trial if they believe that they are not guilty, the AARTO Amendment Bill removes this “option” and replaces it with a Tribunal which may only be approached if one makes an unsuccessful written representation. Upon such an approach, which must be made within 30 days of the adverse outcome of a representation, the fee prescribed by the Minister of Transport must be paid to the Tribunal, for it to review the decision of a representations officer.

This is by no means the sole provision in the AARTO Amendment Bill that rings the wrong kind of constitutional bells and the Bill and the existing AARTO Act are full of provisions that JPSA believes will fail to pass constitutional muster.

The public hearings in Cape Town are scheduled to be held as follows:

DATE

TIME VENUE AREA

Thursday
15 February 2018

17:00 Bellville Civic Centre
Voortrekker Road

Bellville

Monday
19 February 2018

17:00 New Hall
Solomon Tshuku Avenue
Site C

Khayelitsha

Tuesday
27 February 2018

17:00 Mossel Bay Town Hall
Marsh Street

Mossel Bay

Wednesday
28 February 2018

17:00 Moffat Hall
Dahlia Street
Mount Pleasant

Hermanus

Thursday
1 March 2018
17:00 Kathy Johnson Multipurpose Centre
Bloekom Avenue

Clanwilliam

 

Written submissions will also be accepted and must reach Ms Shareen Niekerk (sniekerk@wcpp.gov.za), Committee Coordinator, fourth floor, Provincial Legislature Building, 7 Wale Street, Cape Town, by no later than 12:00 on Friday 30 March 2018.

You may download the AARTO Amendment Bill, 2015 as well as the currently applicable AARTO Act from http://www.wcpp.gov.za/ncop-legislation.

Below is the invitation sent out by the Western Cape Provincial Parliament’s Standing Committee on Transport and Public Works:

 

Scareware roadblock “warnings”

JOHANNESBURG – So-called “warnings” regarding roadblocks to be instituted by unnamed traffic law enforcement authorities have again been doing the rounds on social media, the most recent of which reads:

“Road block dates Dec 16 , 23. 30. All Friday’s. And through to Sat mornings. No mercy. One beer is over the limit. Jail till hearing Monday’s. Car will be impounded. If arrested. Min R 2000.00 to retrieve car if car is in road worthy condition. No outstanding fines and license up to date. Pass the word”.

This so-called “warning” is remarkably similar to another viral falsehood which did the rounds on social media around this time last year, claiming to have been authored by a political party councillor, wherein similar outlandish claims were made.

The threats which have originated from entities like the Road Traffic Management Corporation regarding extended periods of detention before trail and so-called “rescheduling” of this offence to Schedule 5 of the Criminal Procedure Act merely serve to exacerbate this disinformation and have clearly had a limited effect in deterring “drunken driving”.

Quite aside from the truly appalling grammar employed in authoring this particular scareware, many of the claims in it are without substance and are apparently designed to scare would-be “drunken drivers” into not taking a chance on the days in question by spreading garbage. Whilst it most certainly does not constitute “defeating the ends of justice” as has been claimed by some social media commentators, it can only have a limited effect since people have become desensitised to threats which generally amount to nothing.

Everyone should know by now that driving under the influence of intoxicating substances (alcohol or drugs) is extremely dangerous and accounts for a high percentage of road traffic injuries and deaths. No-one should be more concerned about being caught and prosecuted than they should be over causing a collision in which they, someone they care about or any other person could be injured or killed, but the fact still remains that driving under the influence of alcohol or drugs is one of the most serious road traffic offences anyone can commit.

Particularly during the festive season, road traffic law enforcement authorities step up their efforts regarding driving under the influence of alcohol and in so doing seek to arrest and prosecute those who simply refuse to heed warnings and/or feel that the facts of human biology and toxicology do not apply to them.

Contrary to popular belief, alcohol enforcement roadblocks and other operations do not only take place over weekends and public holidays. In the Western Cape “Random Breath Testing” has been in operation since July 2017 and in Johannesburg, daily alcohol enforcement operations take place in roadside stops all over the City. Both happen on a 24/7/365 basis. Encouragingly, other traffic law enforcement authorities are adopting a similar approach.

The days, times and locations of such operations cannot be “leaked” since they are planned and executed on the fly and have the effect of not causing huge traffic jams which tend to cause motorists to take a different route when the locations of massive roadblocks make their way onto live social media platforms like Twitter or even onto GPS navigation applications and devices which employ “live traffic” information.

The take-home message for all motorists should be that driving under the influence of an intoxicating substance is not only against the law, but is extremely dangerous and it is not worth taking a chance and trying to beat the odds. If those who can’t resist the temptation to spread “warnings” on social media really want to have a positive effect, then perhaps they should consider spreading this message:

“Driving under the influence of alcohol or drugs is extremely dangerous and could easily lead to injury or death. Alcohol enforcement operations can and do take place anytime, anywhere and if you are caught, you will face prosecution which will earn you 10-year criminal record if you are convicted. Be sensible. Don’t do it!”

Example social media messages:

Landmark Judgment: Private Estates may NOT enforce road traffic laws

Private estates may not enforce road traffic law. This was the finding of the KwaZulu-Natal High Court in a long-running case in which Niemesh Singh, a resident of Mount Edgecombe Country Club Estate, claimed that speed trapping in the estate was unlawful.

The judges in the case said that the estate had not taken the steps required by the National Road Traffic Act to erect road signs, and also said that enforcement may only be carried out by a peace officer.

“This brings to an end the long-held view of private residential estates that they may set speed limits and erect road signs without abiding by the restrictions of the National Road Traffic Act,” said JPSA Chair, Howard Dembovsky. “It also ensures that enforcement can only be carried out by a traffic officer who is authorised by law to do so.”

Dembovsky said that the roads within the vast majority of gated communities fall directly within the definition of a “public road” as is defined in the National Road Traffic Act and only duly authorised persons and/or bodies may erect road traffic signs.

Where a private estate wishes to erect its own road traffic signs,  authorisation may only be granted by the Minister of Transport, the MEC, or a person who is delegated such powers by the Minister or the MEC.

Dembovsky said the judgment confirmed everything JPSA had been saying for years with respect to the illegality of people such as security guards setting up speed measuring equipment, stopping alleged infringers and issuing them with fines which the estates in question then go further to stipulate must be dealt with on a “pay now, query later” basis, failing which some estates will even go so far as to unlawfully deny residents access to the estate in question.

Also included in the judgment was the striking down of the “domestic rules” of the estate which could only be likened to the curfews and pass laws imposed during the apartheid era. Amongst these “rules” were provisions such as only allowing domestic workers to walk on the streets in the estate between 06h00 and 18h00, compelling them to make use of designated bus stops, etc.

“JPSA wishes to congratulate Mr Singh  for their sheer persistence and courage in standing up to the private estates which have  set themselves up as enclaves operating outside the law and Constitution,” Dembovsky concluded.