AMENDED AARTO & ITS IMPLICATIONS

The amended Administrative Adjudication of Road Traffic Offences Act (46 of 1998) is to commence on 1 July 2021, however it is not without controversies or implications.

1 July 2021 marks the commencement of the new AARTO Act, officially known as The Administrative Adjudication of Road Traffic Offences Act (46 of 1998).

The amended AARTO process consists of three steps: the Infringement Notice, the Courtesy Notice and Enforcement Order, each with their own sub processes, determined by the manner in which the individual infringer reacts. In terms of the amended AARTO process, the duty rests on the individual infringer to act, failing which will see various consequences, differing in severity, being imposed on them.[1]

One of the biggest changes that will be seen by the amended AARTO Act is the decriminalization of most traffic offences, except for very serious offences. Traffic offences are currently prosecuted in terms of the Criminal Procedure Act , except in Tshwane and Johannesburg, where the amended AARTO Act already applies. In terms of the current AARTO process, traffic offences are considered criminal offences, prosecuted by the National Prosecuting Authority (NPA) in the Magistrates Court (primarily), rendering the individual infringer an accused person, presumed innocent until proven guilty in Court, subject to the ordinary criminal process.

However, under the amended AARTO Act, infringers will no longer be subjected to a criminal process but an administrative process. The individual infringer is no longer presumed innocent, as he/she is not deemed to be an accused person but rather a participant in an administrative process, albeit an unwillingly one.[2]

Apart from the decriminalization of traffic offences, a further anticipated effect of the amended AARTO process is the application of the demerit points systems. Each individual driver, operator or juristic person is deemed to start with zero points, with the prescribed number of demerit points, as set out in schedule 3 of the AARTO Regulations, being recorded against the infringer when: the penalty is paid, irrespective of whether the 50% discount afforded by the Infringement Notice is applicable or not, when an Enforcement Order is issued or, where a person should have committed a very serious traffic offence and is charged with and convicted of a criminal offence in Court.

The amended AARTO Act does not come without controversy or critique, with some big organisations opposing its implementation, including but not limited too AA, Organisation Undoing Tax Abuse (OUTA)and SA Road Freight Association (RFA) [3], all of whom raise concerns regarding AARTO’s susceptibility to fraud, corruption and money laundering. Valid concerns given the recent suspension of Japh Chuwe, CEO of the Road Traffic Infringement Agency (RTIA) following findings by the Auditor General regarding RTIA 2019/2020 audit and whistle blower reports alleging serious maladministration, which has seen the launch of forensic investigations that could ultimately delay the implementation of the amended Act. [4]

Apprehensions raised include the fact that infringement notices may be served by electronic means and not only by registered post, meaning that notices would be deemed validly served where sent via social media platforms such as Facebook, Twitter or WhatsApp.[5] Additionally, the Act removes an individuals right to be tried in court until after the Courtesy Notice has been issued, in which case the right to have the matter argued in court will only be viable once written representations have been made to the RTIA and have been dismissed, requiring R200 penalty to be made and the appeals tribunal to be approached within 30 days, followed by further fees, as determined by Minister of Transport. Only once review at the tribunal proves unsuccessful will an individual be permitted to approach the court. This questions the constitutionality of the amended AARTO process given its encroachment on the right to a fair trial and right to approach the court in respect of any dispute that can be resolved by application of the law as provided by Section 35(3) and Section 34 (respectively) of the Constitution. Furthermore, even where an individual should be successful in challenging a notice issued for failing to comply with the formalities prescribed, an issuing authority may still proceed to re-issue and serve the challenged notice within 6 months of the alleged violation, opening the possibility of double jeopardy.

Whether 1 July 2021 will see the implementation of the amended AARTO Act will have to be seen, with concerns as to its constitutionality and predisposition to fraud, corruption and money laundering serving a valid barriers which reinforce critique that it serves only as a money making scheme, concerned more with profits and revenue than the safety of South African roads.[6] Despite the challenges and concerns that AARTO and the RTIA and Road Traffic Infringement Board will have to address and overcome, it is advisable for all individual motorists to become acquainted with the amended process and its effects and consequences. For a summary on the Act and its process see Traffic offences in terms of AARTO on www.locs.co.za

[1] AARTO Explained – An Administrative system of processing traffic fines – Amended AARTO Scheme – AARTO website accessible at https://www.aarto.co.za/aarto-amendment-bill/amended-aarto-scheme/

[2] Ibid [3] “Opinion|Maybe it’s time to ditch Aarto” Denis Droppa 11 February 2021 Time Live accessible at https://www.timeslive.co.za/motoring/features/2021-02-11-opinion-maybe-its-time-to-ditch-aarto/

K[4] Alleged corruption at Road Traffic Infringement Agency could put the brakes on new driving laws Riyaz Patel The South African 14 February 2021 accessible at https://www.thesouthafrican.com/motoring/alleged-corruption-at-road-traffic-infringement-agency-could-put-the-brakes-on-new-driving-laws/ [5] “ Red flags raised about AARTO: Demerit system, traffic fines and more” Wheels24 Staff Writer News24 20 February 2018 accessible at https://www.news24.com/wheels/news/guides_and_lists/red-flags-raised-about-the-aarto-bill-demerit-system-traffic-fines-and-more-20180220 [6] Alleged corruption at Road Traffic Infringement Agency could put the brakes on new driving laws Riyaz Patel The South African 14 February 2021 accessible at https://www.thesouthafrican.com/motoring/alleged-corruption-at-road-traffic-infringement-agency-could-put-the-brakes-on-new-driving-laws/K