The Road Freight Association (RFA) has added its voice to the very loud cries resonating countrywide the proposed Administrative Adjudication of Road Traffic Offences (AARTO) regulations are unworkable in their present form – even though they have been signed into law.

According to the Association’s Chief Executive Officer, Gavin Kelly: “When the latest set of proposed regulations were published for public comment in October 2019, the RFA once again highlighted the pitfalls, weaknesses, severe risk to sustained business and nonsensical proposals that were being made, all in the name of ‘road safety’.

“The proposed regulations had vehicles being held ‘accountable’ for the behaviour of drivers (in some cases) or operator/owners in other cases. How do you change the behaviour of a vehicle?”

In its efforts to ensure that AARTO achieve its main objective ie. road safety, the RFA has been working closely with a number of organisations including the Department of Transport (DoT), the Road Traffic Infringement Agency (RTIA), the Road Traffic Management Corporation (RTMC), the National Economic Development and Labour Council (NEDLAC), Business Unity South Africa (BUSA), Organisation Undoing Tax Abuse (OUTA) and Justice Project South Africa (JPSA).

The AARTO Act was promulgated in 1998 with the sole aim of addressing bad (unsafe) behaviour on our roads,  by implementing a demerit point system for drivers, vehicles and operators resulting in licences, permits and operator cards being suspended or cancelled.

“Fast forward to 2020 and, notwithstanding much interaction between the various government authorities tasked with implementing AARTO (DoT, the RTIA and the RTMC) and we are no closer to a reasonable and effective implementation of any kind,” says Kelly.

The Organisation Undoing Tax Abuse (OUTA) has gone as far as filing a high court application calling for the AARTO Act and the AARTO Amendment Act to be declared unconstitutional.

The application was issued in the Pretoria High Court.

The respondents are the Minister of Transport, the Minister of Cooperative Governance and Traditional Affairs, the Road Traffic Infringement Authority (RTIA), and the RTIA’s Appeals Tribunal. The Minister of Transport and the RTIA have filed notices to oppose the application and they have until the end of September to file their opposing papers.

The Administrative Adjudication of Road Traffic Offences Act (AARTO Act) was passed in 1998 and creates a single national system of road traffic regulation and enforcement through the judiciary. The AARTO Amendment Act, passed in 2019 but not yet in operation, moves the enforcement of traffic laws to an administrative system. When the amendment comes into force, the AARTO system will be rolled out nationwide and the driver demerits points system will commence.

The AARTO Amendment Act was signed into law by the President and published in the Government Gazette in August 2019, but a date for it to come into effect must still be gazetted. In January, Minister of Transport Fikile Mbalula said the amendment would come into effect in June, but this was later delayed due to the effects of Covid-19.

While OUTA believes that measures to improve road safety and reduce fatalities are urgently needed, we believe that the AARTO Amendment Act will not achieve this. AARTO was rolled out in Gauteng 10 years ago and failed spectacularly. Statistics do not support the claim that it will lead to a reduction in fatalities on roads.

The application is supported by an affidavit by Advocate Stefanie Fick, OUTA’s Director of the Accountability Division.

The application calls for the court to declare both the main act and the amendment unconstitutional. This is because this legislation unlawfully intrudes upon the exclusive executive and legislative competence of the local and provincial governments envisaged in the Constitution.

“These constitutional inconsistencies of the AARTO Act and the Amendment Act lie at the very core of both Acts and are not capable of severance without negating the fundamental purpose of the two Acts,” says Fick in her affidavit.

If the court finds that the law is not inconsistent with the Constitution, then OUTA further opposes Section 17 of the Amendment Act. This removes the requirement that service of notices and related documents must be done personally or by registered mail, instead allowing the uses of email, SMS or voice message.

“Given the serious consequences that may follow an infringement, such service is manifestly inadequate,” says Fick.

Kelly says the RFA continues to advocate for a properly focused, resourced and pro-active road traffic policing strategy by all authorities concerned – not the currently proposed cumbersome and questionable point demerit system and all the costs linked to operating it. Proof of achieving better behaviour on the roads was loudly proclaimed by the Minister of Transport regarding the recent successes achieved in the December 2019 festive season traffic safety strategy.

“The RFA does not see how issuing points to vehicles will change the behaviour of people, but it will definitely go a long way to destroying both the resale value of vehicles, as well as the capex value within various businesses,” he continues.

“The authorities need to focus on changing driver behaviour, rather than on a system aimed at collecting revenue to support an administrative system. The RFA supports interventions which serve to improve the safety of the country’s roads and reduce incidents, injuries and fatalities. One of the key priorities of the RFA is the safety of all drivers on our roads and we have no objection in principle to a demerit system applied to South African drivers.”

Many countries have successful driver systems with demerit points; However, these are all easy to use, fair, effective and not based on generating revenue at every point in the process.

“The system must assist in improving driving standards, and thereby contribute to reducing accidents, injuries and fatalities,” adds Kelly.

“The RFA believes that AARTO could be very effective if the proposed regulations were amended to reduce unnecessary bureaucracy and costs. Demerit access systems have been  successfully implemented in other countries. These systems have a fair fine re-direction process and no vehicle demerit points.”