In a landmark ruling delivered on 13 January 2022 in the case of Organisation Undoing Tax Abuse v Minister of Transport And Others 32097/2020, the North Gauteng division of the High Court declared the Administrative Adjudication of Road Traffic Offences Act of 1998 (AARTO) and its amendment Act constitutionally invalid.
This is the culmination of efforts by the Organisation Undoing Tax Abuse (OUTA) which has raised concerns over the constitutionality of the legislation for a while. Other stakeholders such as the AA welcomed the decision, echoing that the legislation edged towards revenue collection rather than improving road safety.
AARTO is an acronym that stands for Administrative Adjudication of Road Traffic Offences (Act), which was established in an effort to improve road safety. In its preamble, the Act provides that it was created with the intention:
To promote road traffic quality by providing for a scheme to discourage road traffic contraventions, to facilitate the adjudication of road traffic infringements, to support the prosecution of offences in terms of the national and provincial laws relating to road traffic, and implement a points demerit system; to provide for the establishment of an agency to administer the scheme; to provide for the establishment of a board to represent the agency; and to provide for matters connected therewith.
AARTO established the Road Traffic Infringement Agency (RTIA) whose functions include the enforcement of penalties of road traffic infringements, the administration of procedures to discourage the contravention of traffic laws as well as to provide specialised prosecution support. The amendment act, is the piece of legislation where the points demerit system is based upon.
In October 2021, OUTA had approached the North Gauteng division of the High Court to file a motion to declare the AARTO Acts constitutionally invalid, arguing that 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.”
This is clearly in contravention of Section 44 (1) (a) (ii) read with Schedule 5 of the Constitution.
44. (1) The national legislative authority as vested in Parliament—
(a) confers on the National Assembly the power— (i) to amend the Constitution; (ii) to pass legislation with regard to any matter, including a matter within a functional area listed in Schedule 4, but excluding, subject to subsection (2), a matter within a functional area listed in Schedule 5; and
The administration and regulation of provincial roads and traffic are within the legislative jurisdiction of provincial and local authorities, as per Part A and B of Schedule 5 of the Constitution of the Republic of South Africa, Act 108 of 1996.
Section 44 (1) (a) (ii) read with Part A and B of Schedule 5 of the Constitution, clearly provide for the legislative authority for the regulation of provincial roads, traffic and parking being vested in the provincial and local authorities. Therefore, for national parliament to enact legislation in these spheres, creates a usurpation of that authority from the provincial authorities, thereby violating the constitution.
The AARTO Amendment Act more so, creates a ‘single national system for traffic regulation,’ in the form of the demerit system, thereby being unconstitutional for the same reasons. The issues of traffic and parking, as provided in section 156 (1) (a) read with Part B of Schedule 5, are within the sphere of local authorities, therefore it results in some inconsistency where the national legislature steps into this role.
There has been no indication as yet from the state if they will appeal the decision, although our view is that the defects are so glaring that it would be a waste of time and resources to do so. As things stand, the resources rolled out as a result of AARTO will now be stopped while the state goes back to the drawing board.
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