Aarto critics act with urgency to force a stay of execution

The Justice Project South Africa (JPSA) is pulling out all the stops to prevent the national roll-out of the Administrative Adjudication of Road Traffic Offences (Aarto) Bill in its current form. JPSA chairman Howard Dembovsky told FTW last week that he would be writing to President Cyril Ramaphosa urging him not to sign the bill into law after parliament’s Portfolio Committee on Transport last week accepted the final amendments to the
Bill which will now go to the National Assembly and will then be ready to be signed into law by the president. “If this legislation is rolled out nationally it will be a disaster of epic proportions,” said Dembovsky. “The amendments don’t address the unconstitutional issues of the existing Aarto Act – and in fact worsen them,” he said. One of the biggest concerns around the bill, shared by legal bodies and industry, is the complete removal of the courts from the Aarto process,
making it compulsory to make written representations to the Road Traffic Infringement Authority (RTIA), which is funded almost entirely by revenue collected by traffic fines. “The entire Aarto Act is predicated on the presumption of guilt rather than innocence,” said Dembovsky. “Everything within that framework is aimed at finalising matters without giving the person the opportunity to challenge the accusers.” Dembovsky told FTW he had instituted litigation in
the High Court regarding the constitutionality of 34 provisions of the existing Aarto Act, only a few of which had been addressed in any way by the amendment bill. “What’s wrong with the legislation, and the bill makes it worse, is that it takes away your right to be tried in a court of law and replaces it with a tribunal – which is a part-time tribunal. What’s more you have to pay a fee if you want to appeal the decision of the representations officer.” “It’s a very sad day for the country because the amended
Aarto bill wants to trample on the common law constitutional rights of every citizen in the country,” said Road Freight Association CEO Gavin Kelly. “How can it be right for the state to prosecute you when it makes it impossible to defend yourself other than in the High Court,” he added. Dembovsky was awaiting the outcome of his constitutional challenge at the time of writing – and he described the prospects for success as “very good”. “If it’s rolled out nationally, it will cost a lot of money. And if it’s then found to have unconstitutional clauses they will have to revert to the Criminal Procedures Act and it will have cost the country billions of rand.” He said they were asking the president to exercise some restraint until these matters had been decided. “If the president decides to sign it into law we will have no choice but to urgently interdict its national rollout because the last thing the country needs is more wasteful expenditure.” And while the demerit system may have an effect on the behaviour of some people, “it’s not a requirement that you take away every constitutional value that is enshrined in the constitution to implement it. You could do it by enacting regulations under the Road Traffic Act that would cause a points demerit system to come into play”. Dembovsky believes that Aarto’s primary focus is not so much the points demerit system but rather finalising road traffic matters with minimum effort on the part of
the authorities while putting the maximum onus on you as a motorist to give reasons why they should not convict you. In every other country in the world in which a points demerit system operates, they use the courts. “This is the only country that seeks to take road traffic fines and turn them into invoices,” said Dembovsky. “Trying to stop bad traffic behaviour is a good thing,” said Kelly, “but using a system that will deprive people of their constitutional rights is not. “We have been talking about this for the past couple of years and a number of associations, including ourselves, have lined up legal opinion. We are not opposed to road safety but this is unacceptable.” Kelly’s plan of action mirrors that of JPSA. The first step, he said, would be to appeal to the president himself to ascertain whether he understands the implications on common law, which is the path that JPSA has taken. “If that fails we’ll have to head for the courts which will be a costly exercise.”