The constitutional court has found that the Administrative Adjudication of Road Traffic Offences Act (Aarto) is constitutional after all.

The apex court today overturned an order of the high court in Pretoria, which had found Aarto to be unconstitutional and invalid and that it should be scrapped in its entirety.

In January 2022, the high court ruled in favour of the Organisation Undoing Tax Abuse (Outa), which had challenged the constitutional validity of Aarto. The act set up a single national system of road traffic regulation to hold motorists to account for traffic violations.

At the time, Outa CEO Wayne Duvenage said the organisation did not believe the Aarto legislation could 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 was through a voluntary process where municipalities agreed that the 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 applied across the country.

Then-transport minister Fikile Mbalula vowed to appeal the court ruling that dismissed the Aarto Act as unconstitutional. “Aarto is the final piece of the puzzle in implementing a new road traffic management system by the democratic state. The importance of Aarto in driving behaviour change of motorists and providing disincentives for unbecoming conduct cannot be over-emphasised,” he said.

Red tape, corruption

After Wednesday’s constitutional court judgment, Outa believes government will struggle to implement the act due to red tape and the potential for corruption, and is it’s concerned that Aarto has already failed to improve road safety.

The concourt disagreed with Outa’s position that the legislation unlawfully intrudes upon the exclusive executive and legislative competence of the local and provincial governments envisaged in the constitution, preventing local and provincial governments from regulating their own affairs. The court did not make a costs order, which means that the parties will pay their own legal costs.

“We are disappointed with the concourt’s decision but abide by the apex court’s ruling. Outa believes that measures to improve road safety and reduce fatalities are urgently needed. However, we don’t believe that the Aarto Act will achieve this; it’s just not practically possible.

“South Africa needs effective processes enabled by fair adjudication that comply with the constitution,” said Outa executive director Stefanie Fick in a statement.

“Outa is of the opinion that the Aarto legislation results in troublesome and complex issues for most motorists and motor vehicle owners, and is concerned that this legislation will not achieve the principal purpose of enhancing road safety.

“The Aarto Amendment Act, with higher penalties, tedious and expensive procedures to be followed by the public, and the total lack of prescription on visible policing, will have little or no effect on improving road safety in South Africa,” she said.

“Merely legislating policy doesn’t make it rational or workable. Governments often suffer from the false belief that if the laws and regulations are in place, the people will simply comply. Irrational and or impractical laws and a lack of transparency results in pushback from society, making systems ungovernable.

“The sad reality is that government begins to suffer from a crisis of legitimacy when it cannot exercise its power over people by effectively enforcing its legislation and policies,” said Fick. – © 2023 NewsCentral Media