The Organisation Undoing Tax Abuse (Outa) believes the implementation of a single national system for the administration for road traffic offences in South Africa is “dead in the water”.

This follows judge Annali Basson on Thursday issuing an order in the high court in Pretoria declaring both the Aarto Act and the Aarto Amendment Act unconstitutional and invalid.

The order was issued in a judgment to an application lodged by Outa to declare both acts unconstitutional and invalid. These two acts envisaged creating a single national system for the administration of road traffic offences in South Africa.

Outa CEO Wayne Duvenage said on Thursday the organisation does not believe the Aarto legislation can be rewritten to cure the defects and make it constitutional. “I think it’s dead in the water. I don’t know how they are going to rewrite or rehash the whole process to introduce a national administrative system that usurps the powers of local government.”

Duvenage said the only way it could be done is through a voluntary process where municipalities agree that there is a national department that would help them manage traffic fines. However, he said this could not be done in a legislative manner and it would then not be a law that applies across the country.

Duvenage referred to the City of Cape Town and Democratic Alliance run cities, which all questioned the implementation of Aarto and indicated that they were not going to participate in it, and questioned how there could be a process that operates in some provinces and not in others.

‘It’s a problem’

“I don’t think they can fix it. It’s a problem, and they will have to have laws rewritten and constitutional law rewritten to accommodate stuff like this,” he said.

Automobile Association spokesman Layton Beard said they welcomed the judgment, which validates the position the AA has always had regarding Aarto and the problems associated with it.

The AA previously raised concerns about the implementation of Aarto, stating that while it supports the introduction of a points demerit system as envisaged in Aarto, the current regulations are more geared towards revenue collection and do not promote road safety.

It is unclear if the department of transport will appeal the judgment. Transport minister Fikile Mbalula has noted and is studying the judgment “and will be guided by legal advice on whether to appeal the judgement or not”, the department said.

Duvenage said the transport department will have to appeal the judgment via the constitutional court.

Outa will file the judgment with the constitutional court in line with the legal procedure that has to be followed and within the 15-day time period, he said.

“Then let’s see if they (the department of transport) are successful. But if you read the judgment it’s so clear-cut,” he said.

It was contended on behalf of the minister of transport in response to Outa’s application that should the court grant the relief sought by Outa, the court should suspend the declaration of invalidity for 24 months to allow parliament to rectify the invalidity.

However, judge Basson said the test for severability in constitutional matters is well established and she is not persuaded that the offending provisions of the Aarto Act and the Aarto Amendment Act can be severed.

The Aarto Act and Amendment Act must be declared inconsistent with the constitution in their entirety

“Once the provisions relating to provincial roads or provincial traffic laws infringements or any provisions relating to municipal road, traffic or parking by-law infringements are removed, what would remain would not be able to give effect to the main objective of the statute, which is to create a single, national system for administrative enforcement of road traffic laws,” she noted.

“There would also be no purpose in setting up the administrative machinery of the agency (the Road Traffic Infringement Agency, or RTIA) and the appeals board if the vast majority of road traffic infringements do not fall within their jurisdiction.

“It therefore follows in my view that the Aarto Act and Amendment Act must be declared inconsistent with the constitution in their entirety,” she said.

Duvenage said that unless the judgment is successfully appealed, the implementation of Aarto, including the driving licence demerit point system, will have to be halted and the elements of Aarto that have already been implemented will have to be dismantled.

The end

He believes the RTIA, which was established specifically to manage Aarto, should also be dismantled. “I think this is the end of the RTIA, which was going to be a bit of empire building. The RTMC (Road Traffic Management Corporation) must fix eNatis (the Electronic National Administration Traffic Information System),” he said.

Mbalula announced on 1 July 2021 a phased approach to the Aarto national roll-out plan. Phase 1, which started that day and ran until 30 September 2021 comprised:

Establishing seven service outlets;
Enabling the eNatis system to collect Aarto payments at collecting agents;
Allowing elective options to be processed in infringement agencies and service outlets; and
Communication and education awareness campaigns.

Phase 2 ran from 1 October to 31 December 2021 and comprised the:

Coming online of 67 local and metropolitan municipal areas proclaimed for Aarto roll-out;
Establishment of more than 18 service outlets;
Adjudication process coming online in all provinces; and
Appeals Tribunal coming into full operation.

However, Duvenage confirmed that advertisements have not yet been published for the members of the Appeals Tribunal.

Phase 3 started on 1 January this year (until 30 June) and was supposed to involve the inclusion of the 144 remaining local municipal areas proclaimed for Aarto roll-out.

The fourth and final phase of the roll-out plan was scheduled to commence on 1 July this year and include the coming online of the points demerit system, a rehabilitation programme and the establishment of 20 Aarto self-service kiosks.