The article addresses three objectives, namely whether the Administrative Adjudication of Traffic Offences Act (AARTO) encroaches on the constitutional powers and functions of municipalities, whether it deprives alleged traffic offenders of their right of access to the courts, and whether it deprives them of the right to a fair trial.
AARTO was approved by the National Assembly in 1998 and then implemented as a pilot project in the metropolitan jurisdictions of Tshwane and Johannesburg for 10 years. In August 2019 an amendment to AARTO, which contains extensive and far-reaching changes to the original act, was published in the Government Gazette. The date on which it will become effective will be proclaimed by the President.
Several objections have been raised against AARTO, including that it will impose additional administrative duties on employers, that it will be unmanageable to enforce, and that it contains irrational and legally unsound provisions. It will have the effect that traffic offenders will not be able to state their case in court and that they will have to follow a cumbersome administrative extra-curial process to prove their innocence. It is also alleged that there is an improper motive for its implementation.
The objects of the act are to encourage compliance with road traffic legislation and to promote road traffic safety; to encourage the payment of penalties; to expedite the adjudication of infringements; to alleviate the burden on the courts; to implement a penalty points or demerit system; and to reward law-abiding behaviour.
One of the constitutional objectives of municipalities is to promote a safe and healthy environment. In order to enable municipalities to achieve their objectives, the Constitution confers certain powers and functions. Municipalities have exclusive executive powers over the matters set out in Parts B of Schedules 4 and 5 of the Constitution. This was confirmed in City of Johannesburg Metropolitan Municipality v Gauteng Development Tribunal 2010 2 SA 554 (SCA).
Part B of Schedule 5 of the Constitution lists two functional areas that are directly related to traffic, namely traffic and parking. Part B of Schedule 4 lists municipal public transport as a function. Municipalities therefore have a direct, original constitutional mandate to administer and police traffic legislation. To date, with the exception of the two metros where AARTO is being implemented, traffic law enforcement is performed in terms of the Criminal Procedure Act (CPA). The system has some shortcomings, but the enabling legislation is not necessarily the problem.
As far as the adjudication of road traffic offences in terms of the CPA is concerned, sections 56 and 341 of the CPA are of importance. In terms of section 56 a peace officer can issue a written notice to an offender in terms of which the offender has a choice to pay a fine and admit guilt or to appear in court. The former results in a criminal record as the offender is deemed to have been found guilty and sentenced by a court. Written notices in terms of section 341 of the CPA are issued in the absence of a driver. It affords the offender 30 days to pay the fine, in which case no prosecution will be instituted.
In terms of AARTO a notice is issued by an authorised person to an alleged offender. This notice provides for a discount if the fine is paid within 32 days and sets out various payment options and instructions on what to do if the addressee was not the driver of the vehicle. The processes which would follow depend on whether the fine is paid or not. AARTO makes extensive provision for the consequences of payment or non-payment. The amendment to AARTO creates an Appeal Tribunal to replace the choice which a transgressor had to be tried by a court. The AARTO procedures to dispute alleged transgressions are intricate and carry with them expensive fees. In Fines4U (Pty) Ltd v Deputy Registrar, Road Traffic Infringement Agency 2017 (2) SACR 35 (GH) the court opined that AARTO constitutes a very cumbrous procedure to adjudicate traffic offences. In addition to creating a fine system AARTO introduces a penalty point or demerit system. Research conducted in European Union countries concluded that a penalty points system initially resulted in a decrease of road fatalities and traffic offences, but that this decrease was of a temporary nature. This system also lead to an increase in persons driving without licences and to “points trading”.
Various non-profit and non-governmental organisations have criticised AARTO’s adjudication procedures. Examples include Justice Project South Africa (JPSA), which submits that the removal of the choice to be heard in court is unconstitutional as it is grounded in an assumption of guilt. The Organisation Undoing Tax Abuse (OUTA) alleges that the AARTO process is unconstitutional as it deprives motorists of the opportunity to defend themselves in a court of law. Once motorists are caught up in the civil administrative process of AARTO, they will not enjoy the constitutional right to legal representation. According to the Automobile Association (AA) AARTO is not a solution to road fatalities. The AA propagates the effective collection of fines, more efficient law enforcement and improved driver training to achieve improved road safety.
A review of case law indicates that municipalities have exclusive jurisdiction to perform those functions and competencies afforded to them by the Constitution and legislation and that provincial and national government cannot assume these powers and competencies by means of legislation. Municipalities are independent and may on their own initiative regulate local matters, such as the enforcement of traffic laws. It is concluded that the transfer of traffic law enforcement to a non-municipal institution, namely the Road Traffic Infringement Agency (RTIA) created in terms of AARTO, constitutes an unlawful encroachment on the constitutional powers of municipalities.
It is furthermore argued that the provisions of the amendment act to AARTO, which takes away the option of a traffic offender to elect to appear in court, infringes on the right of citizens to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum. The administrative procedure in terms of AARTO is premised on a presumption of guilt, and not responding to an alleged contravention is seen as a tacit admission of guilt. The system can also lead to surrogate convictions as the registered owner of the vehicle may be convicted, instead of the actual offender. The judicial independence of RTIA is furthermore dubious as it is a state-controlled institution with the power to prosecute, convict and punish traffic offenders. RTIA is therefore not an independent and impartial tribunal and its processes are capable of easy manipulation. This fact is clearly illustrated by the case of Fines4U.
AARTO procedures can also infringe on the right to a fair trial, as the amendment act dispensed with the requirement that AARTO infringement notices had to be served personally or had to be sent via registered mail. Section 17 of the amendment act determines that e-mail, SMS messages or any other electronic method may be used to inform the alleged offender of the contravention. A rebuttable presumption is created that the addressee of the electronic communication was served with the notice after 10 days of dispatching the notice. This will have the effect that an alleged offender may be convicted and allocated penalty points without even being aware of the infringement.
The right to a fair trial may further be encroached on as all AARTO documentation, including infringement notices, is available only in English. In terms of section 35(3)(k) of the Constitution every accused person has the right to be tried in a language that the person understands or, if that is not practicable, to have the proceedings interpreted in that language. Only 9,6% of South Africans have English as their mother tongue. The fact that an alleged infringer cannot choose to appear in court negates the provisions of section 35(3)(k) and as such infringes upon the right to fair trial.
In terms of the Constitution an accused has the right to a public trial before an ordinary court (section 35(3)(c)), the right to be present when being tried (35(3)(e)), and the right to adduce and challenge evidence (35(3)(i)). In terms of section 20 of AARTO an enforcement order may be issued against an alleged offender which will lead to penalty points being allocated and blocking the alleged offender on the eNatis-system. This has the effect that the alleged offender is deemed to have been convicted and violates the principle of being presumed innocent until proven guilty beyond a reasonable doubt, and it deprives an alleged offender to choose to be tried in a court of law.
AARTO will impact severely on the dire financial state of especially smaller municipalities that depend substantially on revenue from traffic fines. AARTO determines that RTIA will collect all fines. If a fine is paid within 32 days, the infringer will receive a 50% discount, RTIA will retain 50% and transfer the remaining 50% to municipalities, which will lead to a substantial loss of revenue. The pilot project in Johannesburg and Tshwane has been described as a “total failure” as the revenue of Johannesburg dropped from R35 million to a mere R3 million over the past three years. It is clear from the failure of the pilot project that RTIA lacks the necessary expertise and capacity to implement AARTO effectively. The AA correctly points out that if only one third of alleged offenders lodge appeals to the AARTO Appeals Tribunal in the first year of operation, it will have a case load of 140 000 cases. It is inevitable that this will create a bureaucratic bottleneck leading to the collapse of the entire system.
It is concluded that various provisions of AARTO, and especially those contained in the amendment act, are unconstitutional. The limitations imposed on the right to a fair trial and access to the courts cannot be justified as reasonable and justifiable in an open and democratic society as envisaged in terms of section 36(1) of the Constitution.
Keywords: access to justice; constitutional powers and functions; rights; traffic offences