This week’s court judgment declaring the Administrative Adjudication of Road Traffic Offences (Aarto) Act unconstitutional has put fines issued under the act in limbo until February 3, when the Constitutional Court will either uphold or overturn the ruling.
The government’s planned demerit system for traffic offences, which would leave repeat offenders eventually stripped of their driver's licences, was done away with when the Pretoria high court found that the Aarto Act and all amendments must be scrapped.
In her ruling, judge Annali Basson said the dispute was not over the legislation itself but “whether parliament [national government] had the legislative competence to legislate on matters relating to provincial roads or traffic or in relation to parking and municipal roads at local level”.
She ruled that the act unlawfully intrudes on the exclusive executive and legislative competence of local and provincial governments.
The Aarto Act was established as a single national system of road traffic regulation to hold motorists to account for traffic violations. It has been operating in Joburg and Tshwane as a pilot project since July 2007 and was intended to be rolled out to the rest of the country, culminating in a points demerit system.
Enforcement is by the Road Traffic Infringement Agency (RTIA), which was established purely to enforce Aarto infringements or the less serious road offences such as speeding in suburbs, skipping stop signs, jumping red lights and parking violations.
“We are very pleased with the court’s decision,” said Stefanie Fick, executive director of the Organisation Undoing Tax Abuse (Outa) accountability and governance division. “Outa believes that Aarto in its current format does nothing to improve road safety, nor does it reduce the scourge of road fatalities in South Africa.
“We are satisfied the judgment will be sending government back to the drawing board. This time around, we trust the relevant departments will engage meaningfully with civil society to obtain our input when developing such important policies for the country.”
Most of the money brought in by Aarto traffic fines is kept by the RTIA, with only a small percentage paid back to municipal authorities.
Fick said the scrapping of Aarto would render the RTIA defunct, and would mean that all the Gauteng municipalities “would have to act like they do in Cape Town and other places where Aarto is not functioning and do traffic policing themselves and at the same time keep 100% of the fine money”.
Outa and the AA welcomed the judgment as a win for motorists, but agree that because the court did not rule retrospectively and all traffic fines issued through Aarto are based on an offence, motorists who are guilty are obliged to pay them. This will be the case until the matter is finally decided and the way forward clarified by the Constitutional Court.
We advise people not to just ignore their fines and hope that they will go away because there is no reason to believe that everything is going to be scrapped
— Cornelia van Niekerk, owner and director of Fines4U
AA spokesperson Layton Beard said he would advise motorists who have been issued fines to pay them or, if they disagree with them, to challenge them through normal methods.
Fick agreed, saying that unless a court rules that all historic fines should be scrapped, they still stand “because this doesn’t take away from the fact that an offence was still committed”.
In her view, it remains possible for local authorities to pick up all the historic and outstanding fines and reissue them on behalf of the municipality.
She said the high court judgment had given Outa 15 days, or until February 3, to have the order confirmed by the Constitutional Court. The transport department has been given the same time in which to lodge any objection.
Transport minister Fikile Mbalula said he is studying the judgment and will be guided by legal advice on whether to appeal.
Cornelia van Niekerk, owner and director of Fines4U, which in 2017 won a court battle against Aarto, believes that everyone is entitled to have their fines withdrawn because they have not been properly issued. Fines4U manages traffic fines for big fleets and individuals and has more than 500 large companies among its clients.
Van Niekerk said any motorist who had been issued a fine after the company’s court case could have it cancelled on the grounds that the RTIA does not issue the fines correctly in terms of Aarto legislation.
In the 2017 case, also in the Pretoria high court, judge Bill Prinsloo ruled that the RTIA had “failed to comply with the mandatory provisions of the Aarto Act dealing with the service of notices.
"This applies to infringement notices, courtesy letters, reasons for rejecting representations and so on.”
Van Niekerk said: “We advise people not to just ignore their fines and hope that they will go away because there is no reason to believe that everything is going to be scrapped. We recommend that you do the right thing and resolve it properly.”
Outa and the AA believe more visible policing and traffic department involvement in enforcing road laws will be more effective in reducing accidents and road deaths than the electronic speed and robot cameras, proposed demerits and parking fine systems used by the RTIA.
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