Outa has filed papers against the new proposed Aarto Act. Picture: David Ritchie/African News Agency (ANA)
Outa has filed papers against the new proposed Aarto Act. Picture: David Ritchie/African News Agency (ANA)

High court to hear application to have Aarto Act declared unconstitutional

By Zelda Venter Time of article published Sep 29, 2020

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Pretoria - The Gauteng High Court, Pretoria, is set to hear an application calling for the Administrative Adjudication of Road Traffic Offences (Aarto) Act and Aarto Amendment Act to be declared unconstitutional.

The Organisation Undoing Tax Abuse (Outa) has filed papers, but no date has yet been set for the hearing. The respondents - Transport Minister (Fikile Mbalula), Co-operative Governance Minister (Dr Nkosazana Dlamini Zuma), the Road Traffic Infringement Authority and its appeals tribunal - must still file opposing papers.

The Aarto Act was passed in 1998 and creates a single national system of road traffic regulation and enforcement through the judiciary. The Aarto Amendment Act, passed last year but not yet in operation, moves the enforcement of traffic laws to an administrative system.

When the amendment comes into force, the Aarto system will be rolled out nationwide, and the driver demerits points system will commence.

The Aarto Amendment Act was signed into law by President Cyril Ramaphosa and published in the Government Gazette in August last year, but a date for it to come into effect must still be gazetted.

Mbalula earlier said the amendment would come into effect in June, but this was delayed due to the Covid-19 pandemic.

Outa said there were constitutional inconsistencies in the legislation, and it would thus seek an order declaring both invalid.

The Aarto Act creates a single national system of road traffic regulation - with demerit points incurred for traffic offences.

Stefanie Fick, director of the accountability division of Outa, said in an affidavit that by creating such a system, the act intrudes on the exclusive legislative competence of the provinces to legislate in relation to traffic at local level.

The legislation thus unlawfully intrudes upon the exclusive executive and legislative competence of local and provincial governments envisaged in the Constitution, Outa argued.

Outa believes that measures to improve road safety and reduce fatalities are urgently needed, but it says the Aarto Amendment Act will not achieve this. “Aarto was rolled out in Gauteng 10 years ago and failed spectacularly. Statistics do not support the claim that it will lead to a reduction in road fatalities,” Fick said.

Calling on the court to declare both the main act and the amendment unconstitutional, Fick said these constitutional inconsistencies of the Aarto Act and the Amendment Act were at the very core of both legislations and not capable of severance without negating their fundamental purpose.

Should the court find that the law is not inconsistent with the Constitution, then Outa opposes Section 17 of the Amendment Act. This removes the requirement that service of notices and related documents must be done personally or by registered mail, instead allowing the use of email, SMS or voice message.

“Given the serious consequences that may follow an infringement, such service is manifestly inadequate,” Fick said.

Pretoria News

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