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.
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