Last week’s ruling regarding the proposed amended Administrative Adjudication of Road Traffic Offences (AARTO) regulations including the introduction of a points-based licence demerit system for traffic offences being ruled unconstitutional and invalid is a great relief to South African drivers.
This is according to Kirstie Haslam, partner at personal injury firm DSC Attorneys, who says that whilst indisputably drastic intervention is required in order to address South Africa’s dismal road safety record, there have been widespread objections to and concerns surrounding various aspects of the AARTO legislation, including the scope for corruption.
“If the intention is – as it should be – to address our unacceptably high road death tolls as opposed to revenue collection through fines, AARTO is not the correct vehicle to achieve this,” she adds. “The real problem currently in this regard is the fact that there is inadequate enforcement of our current traffic and driving laws; proper enforcement would significantly impact on motorists’ driving habits, which in turn would go a long way to reducing the incidence of collisions on our roads,” she explains.
As to what this means for drivers following this ruling, Haslam says that the declaration of constitutional invalidity means that the intended implementation of AARTO later this year (albeit on a phased basis) cannot go ahead and the current position (in terms of existing laws) will prevail. “It is highly likely, in fact arguably inevitable that this matter will be taken on appeal to the Court of final instance, being the Constitutional Court.”
She says some important points were raised by the judge in the judgement that made the ACT declared unconstitutional and invalid.
“The judgment hones in on constitutionally technical – yet important – shortcomings of the AARTO legislation; this relates to the boundaries between the legislative competence of the various spheres of government,” she explains. “By way of illustration, section 41(1)(g) of the Constitution stipulates that each sphere of government must exercise its powers in a manner that does not encroach on the geographical, functional or institutional integrity of government in another sphere.”
She continues: “In certain instances, the provincial sphere of government has exclusive legislative competence, with the result that the national government has no legislative power in respect of those matters, save for in “exceptional circumstances of compelling national interest” as provided for in the Constitution.
“In this instance, the Court held that provinces are afforded exclusive legislative competence in respect of “provincial roads and traffic” and affording municipalities exclusive legislative competence in respect of “municipal roads” and “traffic and parking”.
She adds that the Court concluded that the AARTO legislation unlawfully intrudes upon the exclusive executive and legislative competence of the local and provincial governments respectively, rendering the AARTO Act and Amendment Act unconstitutional.
Haslam explains that this means that traffic violations in South Africa will continue to be handled as criminal offences and fines will be issued and progressed in accordance with the Criminal Procedure Act, and offences prosecuted in court by the National Prosecuting Authority.
“The proposed AARTO Amendment Act would have decriminalised most traffic violations meaning that most traffic violations would have been dealt with via an administrative, rather than criminal process,” she concludes.