The Organisation Undoing Tax Abuse (OUTA) challenged the constitutional validity of AARTO and the AARTO Amendment Act and asked the court in October 2021 to declare both the main act and the amendment act unconstitutional.
Judge Annali Basson found in favour of OUTA and agreed with OUTA’s position 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.
In her judgement, honourable Judge Basson concluded the following: “It therefore follows in my view that the AARTO Act and the Amendment Act must be declared to be inconsistent with the Constitution in its entirety. It is therefore declared that the AARTO Act and the Amendment Acts are unconstitutional and invalid.”
“We are very pleased with the court’s decision. OUTA believes AARTO in its current format does nothing to improve road safety, nor does it reduce the scourge of road fatalities in South Africa. We are satisfied the judgment will be sending government back to the drawing board.
“This time around, we trust the relevant departments will engage meaningfully with civil society to obtain our input when developing such important policies for the country. South Africa needs effective processes enabled by fair adjudication that complies with the Constitution,” says Adv Stefanie Fick, Executive Director of the Accountability and Governance Divisions at OUTA.
While the various government bodies with an interest in AARTO and notably Minister of Transport, Fikile Mbalula would endlessly bang on about how the legislation was designed to improve road safety in the country, the cumbersome manner in which it was worded and set up simply opened the door to a new method of garnering vast amounts of money from the public.
Possibly the worst single element of the legislation was the fact it flew in the face of the accepted norm where a person was presumed innocent until proven guilty by transferring the burden of proof to the alleged offender, who was legislated guilty until they could prove their innocence.
Besides being a massive abuse of human rights, it simply was a sure-fire method of collecting revenue, as very few individuals have the time or money to take on the State, which is quite happy to use public funds to defend its position.
Leaving aside the major traffic offences – and there is no excuse for any motorist to commit those – it is the myriad of minor ones such as failing to indicate when changing lanes and the like (and we are all guilty of the occasional non-life-threatening lapse) that are a major issue.
The sheer volume of administration in the issuing of the offence documents and the alleged offenders’ response that would mire the system down with a massive paperwork logjam.
Consider, too, the vast number of corporates operating fleet and company cars. The company nominee responsible for those vehicles would be buried in paperwork in the process of having the fine re-allocated to the actual driver of the vehicle at the time.
The respondents in the case were the Minister of Transport, the Minister Of Co-Operative Governance and Traditional Affairs, the Road Traffic Infringement Authority (RTIA) and the Appeals Tribunal.
The court ordered the Minister of Transport and the RTIA to pay OUTA’s costs, including the costs of two counsel.
OUTA has raised its concerns and objections about the AARTO Act and the published AARTO Amendment Act for several years and shared their concerns with relevant authorities before the Amendment Act was published. The organisation said they believe that these pieces of traffic legislation are unconstitutional and will also not assist with the curbing of road traffic fatalities in South African.
Advocate Fick added the court’s judgement signals another important win for civil society and yet again points out government is out of touch with reality.
“It is unfortunate government once again chose to ignore valid concerns and well researched input and pushed ahead with the amendment. Not only did they waste a lot of time, but also valid resources, as the AARTO roll out will have to be stopped while the act is once again amended and taken through the legislative process. Only then can it be implemented.”
OUTA has repeatedly pointed out the problems with the AARTO Acts, which are also administratively complicated and relies on chaotic municipal systems.
Advocate Fick said the battle to protect motorists from the ill-conceived act is not yet over.
“OUTA urges government to listen to the input given by organisations such as OUTA when reviewing these acts. We can assure the public we will carefully monitor the process to ensure that any revised AARTO acts are constitutional and truly aimed at increased road safety and saving lives.”
The Automobile Association (AA) has welcomed the judgment and says tit vindicates its position stated over many years that the AARTO Act was drafted without sufficient care.
"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. 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," notes the AA.
The Association, which has previously described AARTO as unworkable and geared towards revenue collection instead of promoting road safety, says it has been a vast waste of taxpayers' money which had done nothing to remedy South Africa's shocking road death rate.
"There is no evidence that the AARTO pilot project has saved a single life," says the AA.
The AA also says that no purpose could be served by going back to the drawing board.
"AARTO was assented to in 1998, and its design started much earlier. The court itself 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.
The Association re-iterated its previous stance, which is traffic fines should be dealt with in terms of the Criminal Procedure Act (CPA), with some legislative amendments to protect motorists in cases where delivery of fines and service of summonses was not conducted in accordance with the law.
A points-demerit system, which is one of the keystones of AARTO, could, according to the AA, be implemented as part of the judicial process.
"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, just as we have assisted in developing many other aspects of traffic law," notes the Association.
Addressing one of the major consequences of the judgment, the AA says that the Road Traffic Infringement Authority (RTIA), which administers AARTO, would automatically cease to exist noting that, "the RTIA is a creation of the AARTO Act itself. Without the Act, the RTIA is a nullity”.
"This would be a welcome step. For years the RTIA has acted outside all reasonable bounds. The Fines 4 U court case showed how the RTIA could abuse the conflicts of interest inherent in AARTO, and the RTIA's recently-dismissed previous Chief Executive, Japh Chuwe, along with other senior managers, was implicated in serious maladministration," the AA adds.
"AARTO and the RTIA have added no value to road safety and merely provided secure and lucrative employment for a select few. As such, we welcome the court's decision as a landmark in good governance in South Africa," the AA concludes.
