AARTO Amendment Act

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.

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