Court misconstrued Aarto Act when declaring it unconstitutional, says RTMC

The Constitutional Court has confirmed that the Road Traffic Management Corporation (RTMC) has been admitted as respondents in the legal tussle over the constitutionality of the contentious Administrative Adjudication of Road Traffic Offences (Aarto) Act and the Aarto Amendment Act.

The entity claims the Organisation Undoing Tax Abuse (Outa) seriously erred in failing to cite the RTMC in the Pretoria high court application that declared the Act unconstitutional, as it intruded on the executive and legislative powers of local and provincial governments.

This, according to RTMC, deprived the court information that would have assisted the court in making a judgement based on submissions from all relevant parties.

In January, the high court also found that the Act took road traffic infringements out of the realm of the Criminal Procedure Act and turned the policing of traffic infringements into a purely administrative process.

ALSO READ: High court: Aarto-Act-unconstitutional

Separation of powers

By setting up a national system to enforce traffic and parking laws, the court agreed with Outa that Aarto usurped the exclusive executive authority of local government over local roads, and the authority of provincial government over provincial roads.

Aarto seeks to remove road traffic infringements out of the ambit of the Criminal Procedure Act and into an administrative process, introducing the infamous demerit system which could potentially lead to drivers’ licences being suspended.

The contentious Act, which was set to be fully implemented by July 2022, is already in force in Tshwane and City of Johannesburg but the demerit system has not been activated.

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Next week, the Constitutional Court is set to hear arguments in Outa’s application for the confirmation of the Pretoria high court’s order of unconstitutionality and invalidity of Aarto.

The RTMC has submitted in its application that the high court in Pretoria impermissibly granted an order of constitutional invalidity in circumstances where the RTMC and other role players, whose powers were directly implicated in the application were not cited, thus depriving them of an opportunity to be heard.

Aarto Act misread

Morne Gerber, RTMC’s general manager for legal and compliance, has argued that the high court was deprived of key information on the history, context, purpose, and goals of Aarto.

He said this also deprived the court of key information on the scope of the respective functions of the national, provincial and municipal government regarding Aarto’s goal in light of each spheres’ role in road traffic regulation framework and enforcement of traffic laws.

ALSO READ: Govt can still introduce demerit point system despite Aarto verdict, say AA and Outa

“This led directly to the high court misconstruing the Aarto Act and finding that it dealt with ‘matters relating to parking and municipal roads at national level’, which matters are reserved for exclusive provincial and municipal competence in terms of Schedule 5 of the Constitution,” Gerber said in his founding affidavit.

But Outa has charged that the RTMC had failed to explain why it did not intervene in the high court case, which was launched in the high court in July 2020 and heard in October last year.

Inconceivable

The organisation’s Advocate Stefanie Fick said between the institution of the matter and the hearing, the litigation received extensive media coverage.

She said the RTMC was a state-owned enterprise whose shareholders are the Minister of Transport Fikile Mbalula, as well as provincial MECs for Transport, who serve on a shareholders committee that meets four times a year and is involved in the governance of RTMC. 

“In light of the close relationship between [Mbalula], the shareholders committee and the RTMC, and the widespread media coverage of Outa’s constitutional challenge to Aarto and the Amendment Act, it is inconceivable that the RTMC was not aware of the litigation when it was first instituted or that it did not become aware of it before 18 October 2021, the date of the hearing in the high court,” Fick said in her affidavit.

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The organisation’s executive director Wayne Duvenage said they had no problem with RTMC admitted as a respondent in the matter, saying the Western Cape government have also been admitted in the matter.

The City of Cape Town also want the Aarto Act and Aarto Amendment Act to be declared unconstitutional and invalid, as it adversely affected local government’s financial and fiscal powers, not raised the high court case.

Mbalula, as the minister of transport, the Road Traffic Infringement Agency (RTIA) and the RTMC have appealed the matter and want the order of constitutionality and invalidity overturned.

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