South Africa’s new Administrative Adjudication of Road Traffic Offences (Aarto) Act was signed into law in August 2019, introducing the country to a new driving demerit system, among other traffic changes.
On Friday, 11 October, the Department of Transport published draft regulations relating to the Act, giving effect to the provisions within it – but also with some “nightmare” changes to the laws.
The Act is expected to be in full effect from June 2020.
Speaking to BusinessTech Justice Project South Africa Chair, Howard Dembovsky said that without the regulations published last week, the Aarto Act itself is ‘basically a lame duck’.
“The draft regulations provide a more complete picture which should have been available during the public consultation phases,” Dembovsky said.
However, the legal expert said that the new regulations go far beyond merely amending the existing regulations: “they repeal all the existing regulations and create an entirely new set of regulations,” he said.
“The ‘consultations’ held by the national and provincial legislatures when the Aarto Amendment Bill was being discussed centred only on the Act. But the draft regulations comprise over a hundred pages with scores of new provisions.”
In an early analysis, civil society group Outa said that the new regulations had created an ‘administrative nightmare’.
“Our initial assessment of the amended regulations is that Aarto is an administrative nightmare for both motorists accused of infringements and officials who must implement the regulations,” it said.
“The main body of the regulations (excluding the lengthy schedules) is longer: the original version was 23 pages while the update is 37 pages. The bureaucracy is substantial, cumbersome and has expanded.”
Below, Outa outlined some of the key issues it identified:
Outa said that the regulations appear to be a big money-making push, ‘bullying those served with infringement notices or summonses to just pay up immediately and shut up’.
“This includes a nasty new infringement penalty levy of R100 charged on every infringement committed. This is in addition to the fine – and there’s no discount on it’,” it said.
“Those who can’t afford the fines but make arrangements to pay them off (over a maximum of 10 months) are penalised by losing the discount for the fine.”
Outa said that the list of infringements and offences (schedule 3) is the only part of the original 2008 regulations which have been retained.
“This schedule lists 2,055 infringements and offences: 1,929 infringements and 126 offences. The infringements carry up to five demerits per charge and the offences carry six demerits each,” it said.
“As the regulations have defaulted to the 2008 version, with the 2008 fines, we’re not sure what has happened to any subsequent increases in speeding fines.”
It added that the demerits system for those running fleets has changed.
“The previous version added up all the demerits linked to each vehicle in a fleet. Now the fleet operators receive the infringement notice and may send the issuing authority the details of the nominated drivers – but these must be the full details and if the operators can’t provide those, the fine and demerits automatically return to the operators.”
Convoluted and costly
Outa said that the process from receiving an infringement notice to challenging it successfully is so convoluted that it expects most who receive those notices to give up.
“Those who rack up demerits and lose their licences face having to pay for their own rehabilitation training; if they fail, they must wait a year before trying again.”
It added that contesting fines is risky and will cost motorists money.
“Those who pay within 28 days get a 50% discount,” it said. “Paying late or contesting fines attracts extra fees: R100 for a “courtesy letter” reminder and R100 for an enforcement order confirming the fine and demerits.
“Motorists pay R60 to R240 to check how many demerit points they have and R60 per report for copies of infringement reports.”
There is a form for everything
The 2008 regulations set out 37 special Aarto forms plus four National Road Traffic Act (NRTA) forms for use in the enforcement process. These have now expanded to 51 and five NRTA forms.
In addition, the form for an infringement notice (form Aarto 3a) lists 33 pieces of information to be provided on the motorist plus some optional extras.
Outa said that SAPS officials will have to be trained on the new Aarto regulations and how to fill in these forms. The police service will be responsible for the cost of this training.
“The issuing authorities (provinces and municipalities) must issue the SAPS with Aarto notice books (the issuing authorities pay for this) so police can issue fines.
“All revenue collected from the fines collected by the SAPS is split 50:50 between the RTIA and the relevant issuing authority. SAPS gets nothing.”
Outa said that the infringements in Schedule 3 include charge codes 3820 and 3820 which state that the motorist: “Failed to comply with the directions conveyed by a road traffic sign by using a toll road without paying the toll charge.”
“For vehicles which do not require a roadworthy certificate (think of bicycles and donkey carts) the discounted fine is R125 with no demerits, for vehicles which do require an RWC the discounted fine is R250 plus one demerit,” Outa said.
“We’ve raised this issue before as a concern that it will be used against e-toll defaulters but it’s still in the schedule.”
Open to comment
The Road Traffic Infringement Agency (RTIA) has called on members of the public to comment on the draft regulations.
“We welcome the continued debate generated by the promulgation of the Aarto Act and the release of the draft Regulations.
“We hope all role players would be able to submit their inputs before the expiry of the 30-day period,” RTIA Registrar Japh Chuwe said.
You can find out more about the submission process here.
You can find the full document outlined below: