A war is now raging over the new road traffic law signed by President Cyril Ramaphosa last week.
Amendments to the Administrative Adjudication of Road Traffic Offences Act, better known as Aarto, are being fiercely debated among critics and supporters.
The latter say it will help fix the carnage on the country’s roads; the former maintain it won’t help at all and allege it is just a money collecting scheme.
The new Act also brings the political hot potato of e-tolls and how the country’s roads should be funded, back to the fore.
Critics warn that Gauteng motorists who pass a gantry without being accredited will be made to pay R500 and have a demerit point added to their licence. Repeat offenders risk losing their licences should they accumulate more than 12 points.
A task team, headed by the transport minister, Fikile Mbalula, has until the end of the month to present its recommendations on the viability of the tolling system in Gauteng.
Aarto detractors see new administration burdens with more revenue for government and increased frustration for road users. There are also claims — disputed by supporters of the Act — that the new law is unconstitutional in that it finds you guilty without due process.
The previous system required offenders to be notified of the offence via conventional mail using the Post Office, causing issues including motorists either ignoring the infringement notices or being unaware of their existence, especially before the 32-day period which allows offenders to be eligible for a 50% discount on the fine.
In terms of the new Act, drivers can expect to receive notice of the fine via SMS or WhatsApp to their cellphone, email or postal mail delivery.
Some aspects of the Act have been piloted in Tshwane and the Johannesburg metros where it has experienced problems, including the slow delivery of infringement notices to offenders via mail.
The government says that at the heart of the new Aarto is the desire to change on-road behaviour in order to reduce the high death toll on the country’s roads.
Mbalula earlier this month said the bill is in line with the department’s objectives to “expedite service delivery and deal decisively with lawlessness on the roads, in a bid to drastically reduce road fatalities”.
The Road Traffic Management Corporation (RTMC) puts the annual cost of road accidents at R142-billion or 3.4% of GDP and it is widely accepted that the carnage needs to be countered.
The Road Traffic Infringement Agency (RTIA), which administers Aarto, denies the legislation is more about revenue collection.
“The concept of paying a financial penalty pursuant to the transgression of road traffic laws has always been applicable in South Africa and all over the world,” says RTIA spokesperson Monde Mkalipi.
The Justice Project SA (JPSA) lobby group is challenging the constitutionality of the legislation on the grounds that it presumes that the traffic offender is guilty before they can prove themselves otherwise.
“Although it does not say so directly, at its core, the Aarto Act is premised on the principle that if a motorist is issued a fine for any road traffic infringement, that motorist is guilty unless he or she proves him or herself to be not guilty. This principle goes directly against the grain of
the Constitution of the Republic of South Africa,” says JPSA’s chairperson, Howard Dembovsky in a founding affidavit, filed at the north Gauteng high court, which challenges the Act.
“That is simply not true,” says Arrive Alive’s road and transport legislation consultant, Alta Swanepoel, adding: “It’s seldom that infringement notices are issued to individuals who have not committed any traffic violations.”
The new Aarto Act makes provision for an appeals tribunal where an accused may make representation “so motorists have the option to dispute the fines issued to them”.
The issuing of traffic fines is big business in South Africa and now that the Aarto Act has been signed into law, the revenue generated is set to increase.
In 2017 traffic offences accounted for 11% — or R4,7-billion — of all revenue collected by municipalities across the country. For the 2018/19 financial year, the City of Jo’burg’s income from fines increased by 76.3% to R435-million.
The Act foresees increased revenues for municipalities and provincial authorities which will be required to be the issuing authority of the traffic offences. Since the need for mail delivery has been amended in the Act, municipalities will most likely eliminate the costs associated with this service.
The Organisation Undoing Tax Abuse (Outa) has, however, raised red flags regarding which entity will most likely see an increase in revenue as a result of the new regulations. The organisation says that municipalities are likely to see their revenues slashed significantly because RTIA will receive up to 50% of the fine paid by offenders as well as administration fees.
“If they [municipalities] collect the fines themselves then 100% of the proceeds would go back into their accounts. Under this law, municipalities will lose out on that,” says Rudie Heyneke, Outa’s portfolio manager on transport.
Swanepoel disputes this saying that if the Aarto was aimed at merely generating income and not changing driver behaviour, then the new amendments in the legislation would not have made provision for motorists driving a company vehicle to be liable for any traffic violations. Under previous legislation, companies and not individuals were required to pay for any offences committed while behind the wheel.
The implementation date for Aarto is yet to be gazetted. Motorists can then expect to fork out between R250 and R1 250 for various infringements, including not wearing a seatbelt or driving an unregistered vehicle.
“Aarto creates consequences and the criminal system is currently overwhelmed. If you do not have consequences then people will not comply with the legislation. We still have law abiding people out there who do not want a demerit to their name,” Swanepoel says.
Thando Maeko is an Adamela Trust business reporter at the Mail & Guardian