A Note on the AARTO Act

On 15 November 2022, the Constitutional Court heard arguments over the Administrative Adjudication of Road Traffic Offences (AARTO) Act and the AARTO Amendment Act. In January 2022, the Gauteng High Court in Pretoria ruled in favour of the Organisation Undoing Tax Abuse (OUTA), stating that the AARTO Act and subsequent amendment bill were unconstitutional.

The AARTO Act has been operative for over 12 years in the municipalities of Tshwane and Johannesburg and applies extra-jurisdictionally to the ambit of the Criminal Procedure Act which is currently used to prosecute road-traffic offences nationally. The AARTO Act seeks to employ a demerit point system to penalise drivers guilty of infringements or offences. This could result in the suspension and cancellation of drivers’ licenses. The presiding judge, Judge Basson, held that the issue lies in the competence of national government to enforce all road and traffic laws on a national level thus usurping the executive authority of local and provincial governments.

The Minister of Transport, Fikile Mbalula, opposed OUTA’s application, claiming that the AARTO Act was permissible as it merely transferred the default system of traffic law regulation from the criminal law realm to a mandatory and unified system of administrative regulation on a national level. This takes the form of a demerit point system empowered through the Road Traffic Infringement Authority and Appeals Tribunals, and the incurring of administrative fines. Judge Basson held this was contrary to the constitutional principle of separation of powers, as each branch of government must exercise its powers in a way that does not impinge the other. The Constitution exclusively empowers provinces and municipalities to regulate traffic matters. As amicus curiae, the City of Cape Town echoed this contention, asserting that the AARTO Act impinges local government’s financial and fiscal powers by limiting the revenue it derives from traffic fines and poses further burdensome expenses on it.

AfriForum, the Johannesburg Chamber of Commerce and trade-union, Solidarity met to discuss the impact of the Act. Willie Spies of AfriForum contended that the demerit system will not work on a national level when it is already failing in two of the best functioning municipalities of South Africa: Johannesburg and Tshwane. Furthermore, the system seeks to penalise motorists for doing the right thing, in that a person who pays a fine will still receive demerits. Spies maintained that the implementation of the Acts needs to be stopped by challenging these Acts through the courts, in order to compel government to redraft the bill.

Although the demerit system has an upside in that it drastically curtails offences like skipping orange or red lights, disobeying yield and other signs and curbing drunken driving and fatigue, as per OUTA’s contentions, the relevant departments would need to engage meaningfully with civil society to obtain input when developing such important policies for the country.