State fights to prove Aarto’s constitutionality after ruling

Government trying to prove the constitutionality of the amended Administrative Adjudication of Road Traffic Offences Act (Aarto).Image:African News Agency (ANA)

Government trying to prove the constitutionality of the amended Administrative Adjudication of Road Traffic Offences Act (Aarto).Image:African News Agency (ANA)

Published Apr 26, 2022


The government is pulling out all stops to prove the constitutionality of the amended Administrative Adjudication of Road Traffic Offences Act (Aarto).

It has unleashed the Road Traffic Management Corporation (RTMC) to lend a hand in the court battle over the piece of legislation intended to implement the points demerits system for traffic offenders.

This battle is headed to the Constitutional Court, where the Organisation Undoing Tax Abuse (Outa) will seek a confirmation of the North Gauteng High Court ruling that declared Aarto unconstitutional.

Transport Minister Fikile Mbalula has filed a notice to oppose the confirmation application by the Johannesburg-based non-profit organisation.

Mbalula’s position is that Judge Annali Basson erred by finding that Aarto encroached on the powers of the provincial and municipal authorities.

In the judgment delivered earlier this year, Judge Basson declared Aarto unconstitutional on the score that it allowed for usurping of local and provincial government traffic regulation powers by the national government.

“The Aarto and the Amendment Acts unlawfully intrude upon the exclusive executive and legislative competence of the local and provincial governments, respectively and as such the two acts are unconstitutional,” said Judge Basson.

In papers filed in the Constitutional Court, Mbalula retorts: “The Aarto Act, as amended, does not usurp the role of law enforcement institutions that ordinarily enforce traffic laws.

“The high court erred in considering that the Aarto Act, as amended, does not primarily fall under the ambit of road traffic regulation as stipulated in… the Constitution.”

Outa wanted Judge Basson’s ruling confirmed on the grounds that it found correctly that Aarto was unconstitutional.

The RTMC has filed papers in the apex court asking for permission to intervene in the matter.

Morné Gerber, the RTMC’s general manager for legal compliance, submitted that the agency has legal standing and substantial interest to join the case.

He accused Outa of failing to cite the RTMC as a respondent in the high court. This non-citing had “fatal results” for arguments aiming to prove Aarto’s constitutionality, Gerber said.

Gerber said the RTMC sought to have Judge Basson’s judgment set aside on the grounds that it was riddled with “mischaracterisations” of Aarto.

“There are a number of misconceptions of the Aarto Act in these findings, which the RTMC respectfully submits were precipitated by the high court’s failure to conduct an analysis of the substance, purpose and goals of the Aarto Act, as required to do in terms of this (Constitutional) court’s jurisprudence,” he submitted.

Aarto is an important piece of legislation that will result in wealthy motorists being punished similar to their poor counterparts for traffic offences, Gerber said.

“Under the points demerit system introduced by the Aarto Act, road safety is enhanced by ridding the Republic’s roads of serial traffic offenders,” he submitted.

“As each offence accumulates demerit points, repeat offenders carry the risk of having their driving licences suspended and/or cancelled.

“It is no longer possible for offenders to pay themselves out of their obligations to obey traffic laws and to heed the safety of other road users.”

Outa opposes the RTMC’s joinder application. Stefanie Fick, its executive director, said in court papers the RTMC’s application was flawed in that it brings in new evidence at an appeal level.

“Moreover, as a consequence of the new evidence, the intervening party is pleading a new defence to the constitutional challenge to Aarto and the Amendment Act on appeal,” said Fick.

“I am advised that this is highly irregular and will only be permitted in exceptional circumstances,” Fick said.

Outa rejected the RTMC’s blame for its absence in the high court proceedings.

It said its court challenge garnered extensive media coverage for the RTMC to know about it and apply for a joinder from the onset.



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