For at least two years now, Justice Project South Africa has been dealing with a high volume of queries from members of the public who have been affected by administrative blocks on NaTIS which prevent licensing transactions.
While the South African Post Office is spreading mass panic by telling people that they can’t renew their licence disc “because a warrant of arrest has been issued”, neither this nor the tactics employed by licensing authorities where they tell people they must pay all of their traffic fines in order to get their disc is typically true.
It’s extremely unfortunate that the public is apparently ignorant with respect to why this is happening, given the fact that part of the mandate of traffic authorities and government agencies is to educate the public. In particular, the Road Traffic Infringement Agency (RTIA) is quick to boast about how it is responsible for educating the public on AARTO, however little evidence of this actually happening exists.
The Administrative Adjudication of Road Traffic Offences (AARTO) Act, No 46 of 1998 has been in force in the jurisdiction of the Tshwane Metropolitan Police Department (TMPD) since 1 July 2008. It has been in force in the jurisdiction of the Johannesburg Metropolitan Police Department (JMPD) since 1 November 2008. The National Road Traffic Act, No 93 of 1996 has been in force since 1996 and the Criminal Procedure Act, 51 of 1977 has been in force in one form or another since 1955.
The reason we mention all of these Acts is because they are the two Acts which are used to prosecute road traffic offences/infringements and any one of them could have an effect on licensing transactions but curiously, our authorities seem to think that there is no need to include any education or questions in the learner’s licence exams in their strategies to encourage compliance.
Why would they, given the fact that keeping people ignorant is an ideal way to facilitate unethical law enforcement which focuses on generating revenue for municipalities and provincial authorities, and now also for the RTIA – as if traffic fines can be used as a form of stealth tax to boost their coffers?
This said, Justice Project South Africa has operated a website at www.aarto.co.za at its own expense since July 2009 and remarkably, since then, relatively few people have taken the time to come to grips with how AARTO affects them, despite that service being entirely free of charge.
If you have been affected by the withholding of a licensing transaction, this advisory will help you understand why this has happened and how to deal with it. We therefore urge you to take the time to read through everything so you may determine what is affecting you and resolve the issue quickly.
Circumstances under which licensing transactions may be withheld
Provisions under the National Road Traffic Regulations:
The National Road Traffic Regulations, 2000 makes provision for withholding the issue of licence discs under certain circumstances.
Regulation 25(7) of the National Road Traffic Regulations, 2000 holds that the licensing authority may refuse to issue a licence disc in respect of a motor vehicle –
a) which may not be operated on a public road;
b) the owner of which owes any [licensing] penalties or fees in terms of the provisions of this Act;
c) which is an “off road” vehicle – like a quad bike;
d) the owner of which is also the owner of another motor vehicle the licence of which has expired more than 23 days ago;
e) in respect of which a South African Police Service clearance has to be submitted;
f) if a warrant of arrest in respect of an offence in terms of this Act has been issued [under the Criminal Procedure Act] in respect of the owner of such motor vehicle;
g) the operator card of which has been suspended [only applicable to vehicles which require operator cards]; and/or
h) the owner of which has not been identified by means of acceptable identification;
i) the owner of which has failed to comply with the requirements of regulation 32A (1) and (3), which holds that a person or body must provide verification of their address particulars (verified their address particulars).
In addition to the above, Regulation 59 of the National Road Traffic Regulations, 2000 further holds that:
1) If application is made for the licensing of a motor vehicle or motor trade number in a month following the month in which liability for the licensing of such motor vehicle or motor trade number arose, arrear licence fees, calculated at one twelfth per month of the annual licence fees from the first day of the month in which liability for such licensing arose until the last day of the month preceding the month in which application is made, shall be payable.
2) If a person who owes any [licensing] penalties or fees in terms of the provisions of this Act to any registering authority or driving licence testing centre, applies for any transaction, the registering authority or driving licence testing centre to whom such application is made, may refuse to effect the transaction applied for or, in the case of an application for the licensing of a motor vehicle at a registering authority, refuse to issue a licence disc to the applicant, until such penalties and fees have been paid, and may apply any amount tendered in settlement of such penalties and fees due.
3) If a person who has committed an offence in terms of this Act failed to appear in a Court of Law and as a result of such failure a warrant of arrest of such person has been issued, applies for any transaction, the registering authority or driving licence testing centre to whom such application is made, may refuse to effect the transaction applied for or, in the case of an application for the licensing of a motor vehicle at a registering authority, the registering authority may refuse to issue a licence disc to the applicant.
It is important to note that Regulation 59(3) enables the licensing authority to refuse any transaction. The provisions of Regulation 59(2) have been used by certain licensing authorities to refuse to issue driving licenses and/or professional driving permits, as well as to refuse any other licensing transactions, including but not limited to change of ownership.
Lastly, if a traffic authority has issued a Notification to Discontinue Use of a vehicle, a licence disc for it may not be obtained until such time as that vehicle has undergone a roadworthy test and the roadworthy certificate has been presented to the licensing authority. The absence of a valid roadworthy certificate, where a used vehicle has been sold to you will also cause a licence disc to be withheld.
Provisions under the Administrative Adjudication of Road Traffic Offences (AARTO) Act, No 46 of 1998
The AARTO Act then goes further to block both, vehicle and individual licensing transactions if an enforcement order is issued by the RTIA.
Section 20(5) of the AARTO Act holds that no Professional Driving Permit (PrDP), driving licence or licence disc may be issued to a person against whom an enforcement order exists and until such time as it has been complied with or revoked.
Licence discs MAY NOT be withheld on the strength of outstanding e-tolls
Although there has been talk about withholding licence discs on the strength of outstanding e-tolls, no amendments to the SANRAL Act or the National Road Traffic Regulations currently exist which would make such an action lawful. If/when SANRAL and/or the Department of Transport publish such a proposed amendment for comment, JPSA will strenuously oppose any such attempt.
Outstanding traffic fines
As you will note from the above, with the exception of a warrant of arrest and an enforcement order, licence disc renewals may not, and aren’t refused on the basis of outstanding traffic fines. Any traffic authority which tells you that you must pay all of your outstanding traffic fines in order to get your licence disc is both, lying and engaging in the crime of extortion.
Unfortunately, traffic authorities seem to be under the impression that a traffic fine is a de facto conclusion that the person against whom it has been issued is guilty of the offence in question. Unfortunately for them, South Africa has a supreme piece of legislation called “the Constitution of the Republic of South Africa. 1996” which holds that every accused person has the right to be presumed innocent until proven guilty in court.
You are not and never can be obliged to simply admit guilt and pay a fine. You have various other options open to you, amongst which is the right to confront your accuser and challenge any evidence they adduce – in court. This right is not disposed of by the AARTO Act, despite the fact that it comes dangerously close to presuming guilt.
What is an enforcement order?
An enforcement order is quite simply a document which is issued by the RTIA under the AARTO Act which results when an infringement notice and thereafter, courtesy letter has been issued and no action has been taken by the alleged infringer within the prescribed period.
This document has the effect of blocking the issue of a licence disc, a driving licence and/or a Professional Driving Permit (PrDP). Curiously, despite the law not catering for it, it also has the effect of blocking other licensing and registration transactions. All of these transactions are inbuilt in the NaTIS system.
NaTIS is a central registry interfaced with via a computer program
The NaTIS vehicle registry is quite simply a database of registered vehicles which has a user interface incorporated into it and therefore, a counter clerk cannot simply decide to refuse a licence disc to you. Nor may a traffic authority.
The problem arises when one or more of the many conditions listed under the section wherein we deal with when a licence disc may lawfully be withheld exists.
Getting upset with a counter clerk is neither necessary, nor will it result in them being able to change the situation, so just don’t do it.
What licensing authorities do in real life
When such a situation arises where a licence disc is withheld, it is not typical for traffic authorities to be honest and tell people what the exact cause is of their licence disc being withheld.
Typically, what they will do is to print out a NaTIS R114 statement, or in the case of the less scrupulous licensing authorities, screen captures of all of the outstanding traffic fines a person has and tell them to pay the total which appears thereon.
Such actions are misleading and unlawful and are tantamount to engaging in extortion because a traffic fine is an accusation of wrongdoing. It is not an automatic assumption that the accused is guilty since this would violate the Constitution of the Republic of South Africa. Sadly however, many traffic authorities and their superiors seem to be blissfully unaware of the fact that South Africa even has a Constitution – so they violate it with impunity.
The NaTIS R114 Statement of Account
The NaTIS R114 Statement of Account is a system generated document which lists each and every transaction on your vehicle. Although to the uninitiated, it may be quite difficult to navigate, it is by far the best way to get to the bottom of any licensing issue.
The South African Post Office cannot provide you with this document. You will have to get it from the licensing authority.
What you need to do is to look for any licensing transactions and ensure that there are no outstanding penalties thereon. If there are, you must pay them since all vehicles registered under your name are registered against your ID number and must be up to date. You cannot licence one vehicle registered in your name independently of any other. All of them must be up to date.
The other thing you need to look for is the existence of an enforcement order. Unfortunately, the way in which enforcement orders are listed can be confusing since only the R60 enforcement order fee is listed next to them. You will however notice that the enforcement order has a 16 digit number listed in the second column of the R114 statement and entitled “in respect of”.
If you look carefully, you will note that this number is identical for three transactions in the “fee description” column, namely “outstanding infringement”, “courtesy letter fee” and “enforcement order fee”. All three amounts must be added together and that total is what must be paid if it is your intention to pay the enforcement order.
Using the government’s AARTO website to check
By far, the easiest way to determine whether there are any enforcement orders and other AARTO matters against your particulars is to use the “query my fines” facility on the government’s aarto.gov.za website. In the case of an individual, you will be asked to furnish your ID and driving licence number in order to use this facility. Companies have to instead provide their business register certificate number and their proxy’s ID number.
If you change the query option to “enforcement order”, you will only be presented with any enforcement orders which have been issued. If none exist, it is not an enforcement order that is affecting the relicensing of your vehicle. If one or more exists, you will need to deal with them in order clear the NaTIS block and get your licence disc.
Please note that it is foolish to only deal with enforcement orders and we advise you to deal with all of the infringement notices and courtesy letters which may exist as well. Courtesy letters are the precursor to enforcement orders and therefore, if you don’t deal with them, it is likely that they will become enforcement orders in due course.
Please note: The contact details provided on the aarto.gov.za website are false. The RTMC does not have an “AARTO Unit” and you should never be accepting advice from your accuser by contacting the issuing authority. The correct contact details for the RTIA appear on their website.
Dealing with enforcement orders
There are two options open to any person against whom an enforcement order exists. One is to simply pay it and the other is to make application for the revocation of that enforcement order.
Paying AARTO fines – including enforcement orders
- If you wish to pay any AARTO infringement, you may do so at any one of the following:
- The issuing authority (traffic department) which issued the infringement notice;
- The South African Post Office;
- Any branch of ABSA, FNB or Standard Bank; or
- Through the “pay traffic fines” facility in the internet banking services offered by ABSA, FNB or Standard Bank.
Please note that this facility is not available through any other bank in South Africa and you must not do an EFT in its place as this will almost certainly end up with your payment not being allocated against your payment.
Our advice is that you use the commercial banks listed above to pay, since their systems are linked into the NaTIS system and mark the infringement as paid immediately on payment. Unlike issuing authorities, they have no motivation to further try to intimidate you into paying other infringements at the same time. The South African Post Office is simply not competent at this stage in dealing with these issues.
Once paid, the block on NaTIS will be cleared immediately and you will be able to get your license disc – provided that it was only the existence of an enforcement order which caused the refusal of your licence disc in the first place.
Applying for the revocation of an enforcement order
If you feel that the enforcement order which was issued against you should was not issued fairly, you have the option to apply for its revocation. You do this using an AARTO 14 “application for revocation of enforcement order” form which you can download at aarto.gov.za.
An adjudication officer will then consider your application and either revoke the enforcement order or let it stand. You must be aware of the fact that if your application for revocation of an enforcement order is unsuccessful, you will be charged an additional R60 fee for that unsuccessful application.
You are supposed to be notified of the outcome of this decision but in practical terms, this notification, if sent at all could take ages to arrive in the post. It is therefore a much better idea to keep an eye on the aarto.gov.za website.
Although it’s not prescribed in the AARTO Act, the RTIA has implemented a policy which requires persons who wish to apply for the revocation of an enforcement order simultaneously submit an AARTO 08 representation form on the infringement itself when applying for the revocation of an enforcement order.
In a way, this is not a bad thing since it can actually result in the entire infringement, as well as the courtesy letter and enforcement order fees being cancelled.
However, if your reasons for making representation are weak and/or if the representations officer doesn’t accept them and instead rejects your representation, you need to be aware that there is a provision in the AARTO Act which allows a R200 “unsuccessful representation fee” to be tagged onto each and every unsuccessful representation made after a courtesy letter has been issued.
This fee further adds insult to injury and increases the amount you will be expected to pay a cumulative extra R380 over and above the original fine amount if you wish to then admit guilt and pay the fine.
It is impossible to say how long this process could take since in some cases, we have seen it take a few hours for an enforcement order to be revoked, while in others, no result has been forthcoming weeks after an application was submitted by a person. The best advice we can offer is to follow up as quickly as possible after submitting your application since there’s a lot of truth to the saying that “the squeakiest wheel gets the grease”.
If you just leave things to their own devices, although they may get attended to eventually, the chances are that they will take a lot longer to get there. You can call the RTIA on 087 285 0500 (during office hours only) and we strongly recommend that you do so once you have submitted any AARTO prescribed form. You can also visit their offices in Midrand. Their address details appear on their website.
It would however be remiss of us not to inform you that the RTIA relies heavily upon the income generated by enforcement orders serving to act as a gun to the motorist’s head in order to force them to pay. It would also be remiss of us to fail to inform you that the AARTO Act requires that any application for the revocation of an enforcement order is made to the satisfaction of the Registrar, and that the Registrar is the very person who issues enforcement orders in the first place and is then granted the clearly absurd power to decide whether or not he (or she) wishes to revoke an enforcement order.
When are AARTO infringement notices & other documents deemed to be served?
Section 30(1) of the AARTO Act states that “Any document required to be served on an infringer in terms of this Act, must be served on the infringer personally or sent by registered mail to his or her last known address.”
It is extremely unfortunate that Section 30(2) of the AARTO Act then goes on to say that “A document which is sent by registered mail in terms of subsection (1), is regarded to have been served on the infringer on the tenth day after the date which is stamped upon the receipt issued by the post office which accepted the document for registration, unless evidence to the contrary is adduced, which may be in the form of an affidavit.”
An AARTO 01 infringement notice is a physical citation issued to an alleged infringer at the time of the alleged infringement. It is deemed to be served immediately when it is handed to you. Refusing to sign for it is, quite frankly, a stupid, unnecessarily confrontational action and does not affect its service since the traffic officer concerned will simply check the box saying you refused to sign for it.
An AARTO 03 infringement notice, AARTO 12 courtesy letter and AARTO 13 enforcement order must be served via registered mail and is served when you sign for it at the Post Office, or 10 days after posting – whichever is the sooner. In practical terms however, notices to collect these documents rarely arrive within 10 days of posting. It has been our experience that they more often than not take in excess of 40 days to arrive – if ever.
But I never received the infringement notice and/or the courtesy letter
There have been numerous complaints from members of the public saying that they haven’t received any infringement notices or courtesy letters prior to an enforcement order being issued against them.
There are essentially two reasons why these claims arise, one of them associated with the public themselves and the other associated with the SA Post Office. These are dealt with under the following sub-headings.
Keeping your address details up to date
The NaTIS system is full of polluted information on vehicle owners – particularly insofar as their address details go. Although some of the blame for incorrect address details existing on NaTIS can be ascribed to motorists not notifying their registering authority of a change of address, much of it can be ascribed to lazy and/or incompetent licensing authorities.
When people complete the “notification of change of address” on licensing renewals and hand these in when renewing their licence discs, this is typically ignored. When people buy new motor vehicles and diligently put their new address details on the forms, this too is typically ignored.
The only sure-fire way to ensure that your address details are up to date on NaTIS is to complete and submit the form “NCP” as a separate transaction at your licensing authority. There are many advantages to this, not least of which is that you will receive licensing renewal reminders and notifications to collect AARTO documents. You may then exercise your options and avoid the ugly part of AARTO.
Inefficiencies at the SA Post Office
It has become increasingly prevalent for the notifications allegedly sent for people to collect AARTO documents to be returned with the status “item rejected – incorrect address” where there is in fact nothing wrong with the person’s address details on NaTIS.
Without having unhindered access to each specific example, JPSA cannot determine whether this results from a glitch within the system used between issuing authorities, the RTIA and the SA Post Office, but we suspect that it is the result of a corrupt file being passed to the SA Post Office.
Furthermore, the fact that a notification to collect an infringement notice typically takes an inordinately long time to reach the intended recipient tends to cause these documents to be returned to the sender long before the recipient even receives a notification to collect it.
Whatever causes it, these items end up not being delivered to the intended recipient and that is a bad thing. The proposed legislative changes to the AARTO Act and Regulations to enable the electronic service of AARTO documents may sound like a good idea, however this line of thinking presupposes that every motorist has access to the internet where in fact, this is not true. Therefore, should the RTIA and the Department of Transport get it right to amend the AARTO Act and Regulations in this manner, the only people who will benefit from or be prejudiced by it will be those who do in fact have access to the internet.
In early 2016, JPSA instituted litigation in the High Court to address the issue of “registered mail” and the use of the so-called “secure/hybrid mail” service the SA Post Office supplies to the issuing authorities and the RTIA. We hold that this so-called “secure/hybrid mail” does not constitute “registered mail” as the legislator intended it to be used for the service of legal documents and the fact that it has been used constitutes a violation of the prescripts of the AARTO Act. This matter should be finalised during the course of 2017.
What to do if you never received an AARTO document
If you have genuinely not received any AARTO document, you have the right to make representation to this effect on an AARTO 08 representation form, which doubles up as an affidavit since it must be signed by a commissioner of oaths.
We do however caution members of the public against deliberately not collecting AARTO documents when they do receive a notification to collect one. By doing so you are prejudicing yourself and denying yourself from exercising any of your legal options afforded to you by the AARTO Act.
Special notes on AARTO
As you may or may not know, the AARTO Act currently only applies in the jurisdictions of the Johannesburg and Tshwane Metropolitan Police Departments. It must be noted that just because you live in a jurisdiction where the AARTO Act is not in force does not mean that an enforcement order cannot be issued against you. If an infringement takes place in the JMPD or TMPD’s jurisdictions, the provisions of the AARTO Act will apply but traffic authorities outside of those two jurisdictions may not make use of the provisions of the AARTO Act.
It never ceases to amaze us how a decision on an Act as important as traffic law enforcement could have been taken to implement it on a so-called “pilot basis” in just two jurisdictions in South Africa in the first place. For this pilot to have then prevailed eight years is further nonsensical and it has led to widespread confusion, and we daresay outright violations of the Constitution of the Republic of South Africa.
According to the 2014/15 Annual Report of the Road Traffic Infringement Agency (RTIA) there has been a 1,183.23% increase in enforcement orders issued by them, from 46,267 in 2013/14 to 593,713 in 2014/15. This, despite the fact that the quantum of infringement notices issued during 2014/15 decreased by an overall 11.13% from 6,780,515 in 2013/14 to 6,025,562 in 2014/15.
These statistics are somewhat frightening in light of the fact that provision for the issue of enforcement orders has existed in the AARTO Act since it was first drafted and yet, the RTIA has only recently started applying it. Additionally, the RTIA has chosen to start applying this provision while being acutely aware of the inefficiencies and impact of strikes and go-slows, whether formal or not at the SA Post Office.
Is it serious if I have paid to renew my licence but don’t have the disc to display?
You cannot be fined for operating an unlicensed vehicle if you have paid your licensing fees but have not received a licence disc. You can however be fined for not displaying a current licence disc in the bottom left of your windscreen. The fact that the licensing authority is actually the cause of you not being able to display a licence disc and is therefore forcing you to commit a road traffic offence is an interesting legal argument, although remedies do exist for you to correct that situation.
It is therefore our stance that should you decide to pay your licensing fees and carry the form MVLX NaTIS receipt with you to prove that your vehicle is licensed, you cannot be found guilty by a court of failing to display a licence disc which has been actively refused to you. Arguing with a traffic officer at the roadside is not however the way to go about things and therefore, if you decide to follow this course of action, you are advised to simply accept the traffic fine from the traffic officer and then elect to be tried in court in the case of an AARTO infringement notice, or appear in court in the case of a written notice issued in terms of Section 56 of the Criminal Procedure Act and put it to the prosecutor/magistrate that you did not possess the criminal intent to not display a licence disc since you had no licence disc to display.