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

The government will be able to introduce a driving licence demerit points system despite the Administrative Adjudication of Road Traffic Offences (Aarto) Act and the Aarto Amendment Act being declared unconstitutional and invalid in a judgment handed down in the Pretoria High Court last week.

Both the Automobile Association (AA) and the Organisation Undoing Tax Abuse (Outa) are of this view.

However, Outa believes a points demerit system will only work if the underlying administrative systems that make it work, such as the National Traffic Information System (Natis) and post office, are operating efficiently and effectively.

The AA on Friday reiterated its stance that traffic fines should be dealt with in terms of the Criminal Procedure Act, with some legislative amendments to protect motorists in cases where the delivery of fines and service of summonses is not conducted in accordance with the law.

“A points demerit system, which is one of the keystones of Aarto, could be implemented as part of the judicial process,” it said.

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“This is how points demerit has been implemented in other parts of the world for half a century or longer.

“The AA itself called for such a system as long ago as 1963 and we would be willing to work with government to help create it.”

The local government factor

Outa CEO Wayne Duvenage said immediately after Thursday’s high court judgment that Outa believes the implementation of a single national system for the administration of road traffic offences in South Africa as envisaged by the Aarto acts is “dead in the water” because the system usurps the powers of local government.

Duvenage said on Friday Outa believes a point demerit system could only be implemented if a law was passed or if Aarto allowed municipalities to manage their traffic fines – but their traffic fine systems are required “to talk to a national points demerit system” to allow for bad driving to be picked up across the country, and not just in one area.

However, Duvenage said the participation of municipalities in providing traffic fine information to a national points demerit system requires the buy-in and cooperation of municipalities to ensure national government is not usurping their power.

Duvenage believes national government could force municipalities to provide their traffic fine information to a national system because it would not be interfering with the operations of local government.

But Duvenage said the biggest problem to be faced in implementing a national points demerit system is to fix the underlying administrative systems that will make it work.

Another problem is the dysfunctionality of many municipalities and their ability to accurately and consistently provide their traffic fine information to a national system.

SA ‘not a connected country’

“Aarto was going to fail because the Natis is inaccurate … [and] because you can’t just rely on electronic communication,” said Duvenage.

“You have to rely on a postal system because a lot of people are not connected to the internet. It’s the same thing with e-tolls.

“You can have all the bright ideas but they can’t work because your administration, your postal services, are broken in this country. They bring down the system before it starts.”

Duvenage added that Natis is a mess and for a demerit system to work Natis has to be live and must immediately transfer ownership of a vehicle to prevent a previous owner from continuing to receive fines months after selling their vehicle.

He said serving infringement notifications on vehicle owners properly is vital to give owners an opportunity to refute a fine in cases where, for instance, someone has cloned their vehicle number plate.

“You can’t have people being affected by inefficient systems, not because they were inefficient but because the state did not cater for everybody in this space. That is the problem.

“Bear in mind that we are not a connected country. We are not Australia.

“We have a lot of poor people who drive cars, who need licences but do not have an internet account or email addresses,” said Duvenage.

“Cater for them. The only way you can cater for them is through the postal service and [you] need an efficient post office.”

Court ruling

Judge Annali Basson on Thursday issued an order in the Pretoria High Court declaring both the Aarto Act and Aarto Amendment Act unconstitutional and invalid.

Judge Basson said the Constitutional Court has, in a number of judgments, made it clear that the executive power conferred exclusively on municipalities and provincial government may not be encroached upon by national legislation.

It was contended on behalf of the minister of transport 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.

But Judge Basson stressed that what would remain – once the provisions relating to provincial roads or provincial traffic law infringements or any provisions relating to municipal road, traffic or parking by-law infringements are removed – 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.

The Department of Transport said Transport Minister Fikile Mbalula will be guided by legal advice on whether to appeal the judgment or not.

The AA said on Friday the judgment vindicates its stated position over many years that the Aarto Act was drafted without sufficient care, was unworkable, was geared towards revenue collection instead of promoting road safety, and had done nothing to remedy South Africa’s shocking road death rate.

‘Fundamental issue’ not considered

“As early as a few months after the 2008 launch of the Aarto pilot project in the Johannesburg and Tshwane metros, the shortcomings of the act became clear in practice,” it said.

“Attempts to rectify these shortcomings only created further issues and now a court has found that the Department of Transport, in drafting Aarto, did not consider the fundamental issue of whether the system passed constitutional muster.

The AA added that Aarto was assented to in 1998 and its design started much earlier but the high court has found that the deficiencies are not curable.

“After almost a quarter of a century of failure, the government would be wise to concede defeat,” it said.

Outa CEO Wayne Duvenage spoke to Fifi Peters following the high court victory on Thursday:

By Roy Cokayne

This article first appeared on Moneyweb and was republished with permission. Read the original article here.