ConCourt reserves judgment in application against Aarto’s constitutionality

The Constitutional Court in Braamfontein. Photo: Nicholas Rama

The Constitutional Court in Braamfontein. Photo: Nicholas Rama

Published Nov 16, 2022


Cape Town - The Constitutional Court has reserved judgment in the Organisation Undoing Tax Abuse (Outa) constitutional challenge to the Administrative Adjudication of Road Traffic Offences Act (Aarto) and the Aarto Amendment Act.

The challenge brought the constitutionality of South Africa’s strict new driving laws into focus following January’s court ruling declaring parts of the legislation unconstitutional. It was on hold pending confirmation from the Constitutional Court.

Speaking after the court reserved judgment, Outa executive director Stefanie Fick said: “We are still confident the judges will consider our argument favourably. Aarto needs to be scrapped and to go back to the legislators.”

Aarto is the legislation that provides for the penalising of drivers and operators of motor vehicles who are guilty of traffic or road infringements through a system of demerit points that may lead to the suspension and ultimately the cancellation of a driving licence. It establishes a single national system for enforcement.

In January the high court declared the legislation unconstitutional on two grounds. The first was that the legislation usurped the exclusive executive jurisdiction of local government to enforce laws relating to municipal roads, traffic and parking.

The second basis on which the high court found the legislation unconstitutional was that it usurps the exclusive legislative authority of the provincial legislatures.

Provincial and municipal road and traffic laws fall within the exclusive legislative competence of the provinces under the Constitution.

The high court held that Parliament could not legislate in relation to municipal road and traffic laws, save in the exceptional circumstances contemplated in the Constitution.

In its accepted application as a friend of the court in the matter, the City argued that Aarto must be overturned, because enforcement and adjudication should reside at the municipal, not national, level.

The City also said that Aarto adversely affected local government’s financial and fiscal powers, a matter that was not raised in the high court case, by both restricting its revenue from traffic fines and imposing additional operational expenditure on it.

Outa argued that the high court was correct on the basis of the two grounds, however the minister of transport, the Road Traffic Management Authority and the Road Traffic Management Corporation opposed Outa’s application.

Opposing the application, Transport Minister Fikile Mbalula said the Aarto law should remain on the books, and wanted the ConCourt to overturn the high court ruling of invalidity.

The minister said that if the Concourt confirmed invalidity, then he wanted it to be suspended for 24 months to allow Parliament time to rectify the law. He argued that Aarto could be limited to national traffic regulations.

Also backing the Aarto law were the Road Traffic Infringement Agency and the Road Traffic Management Corporation.