Victory for motorists as court declares Aarto demerit system unconstitutional

The Pretoria high court has declared the controversial Administrative Adjudication of Road Traffic Offences (Aarto) Amendment Act, the basis for a mooted demerit system for traffic offences, as unconstitutional and invalid.

Thursday’s declaration was the culmination of an application by civil society group Organisation Undoing Tax Abuse (Outa), which challenged the constitutional validity of Aarto and the Aarto Amendment Act, and asked the court to declare both unconstitutional last October.

In a statement, Outa said Judge Annali Basson found in its favour 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”.

Outa has long been opposed to the traffic legislation, arguing that in addition to being unconstitutional, it would also not curb road fatalities in South African. 

Advocate Stephanie Fick, the Outa executive director for accountability and governance, called the ruling a victory for motorists.

“The objective of this Act was a spectacular failure in Tshwane and Johannesburg, and the main issue where the court agreed with us is that the national government can’t tell provinces or the local government how to regulate for example, traffic and parking,” Fick explained.

Outa said Aarto being declared unconstitutional did not mean traffic crimes would no longer be prosecuted, pointing out that there were other pieces of legislation currently in place to deal with this, such as the National Roads Traffic Act and the Criminal Procedure Act.

Outa said the traffic department had fallen behind with the rollout of AARTO as announced by minister Fikile Mbalula last July pointing to its lack of preparedness. Under the rollout, an appeals tribunal was expected to have been in place by December.

“The tribunal is quite a vital part of Aarto and we see how difficult it is for motorists because the department is unable to administer their own administration,” Fick said.

“How many people are stuck in queues because they can’t renew their licences? We can’t renew our licence because one machine is broken and was sent to Germany for repairs.”

One of the main controversies around Aarto was that the refusal by Gauteng motorists to pay for e-tolls was deemed to be a traffic infringement which could result in the suspension and subsequent cancellation of a driver’s licence.

Outa still supports a demerit system but says it should be implemented under constitutional legislation. Fick urged the department of transport to go back to the drawing board and come up with legislation that was constitutional and valid.

Head of communications at the transport department, Collen Msibi, said it would study the judgement and consult its counsel before taking any action.

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Marcia Zali
Marcia Zali is an award winning journalist

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