JPSA's submission on government gazette 39482 AARTO Regulations draft amendments

Department of Transport
Private Bag X193
PRETORIA
0001

ATTENTION: Mr Sello Mokubyane and Adv N Thoka                     

PER EMAIL TO: MokubyaS@dot.gov.za and Thokan@dot.gov.za

Your Ref: GOVERNMENT GAZETTE No. 39482, NOTICE No. 1204, 7 DECEMBER 2015
Our Ref: GG
39482 Comments

Tuesday, 29 December 2015

Dear Sirs,

PUBLICATION OF THE ADMINISTRATIVE ADJUDICATION OF ROAD TRAFFIC OFFENCES ACT, 1998, ADMINISTRATIVE ADJUDICATION OF ROAD TRAFFIC OFFENCES AMENDMENT REGULATIONS, 2008 FOR COMMENTS

1.    We refer to the proposed amendments to the Administrative Adjudication of Road Traffic Offences Amendment Regulations, 2008 tabled in Notice No. 1204 of 2015 in Government Gazette No. 39482 of Monday 7 December, 2015.

1.1.  Justice Project South Africa hereby submits the following comments and inputs on the proposed amendments contained in the aforementioned notice for your consideration.

2.    At the outset we wish to thank the Department of Transport and SANRAL for finally acknowledging that prosecutions for e-toll violations are indeed subject to the provisions of the AARTO Act and Regulations and NOT the Criminal Procedure Act as was pointed out in our lawyers’ letter dated 26 November 2013. This is evident by the contents of the proposed amendments tabled in this gazette, the purpose of which is quite obviously intended to incorporate the prosecution of e-toll infringements.

3.     This said the proposed amendments to the AARTO Regulations contained in this gazette are hugely problematic in a number of areas, which we shall address hereunder under separate headings.

4.    Amendment of regulation 3 of the Regulations.

4.1.  The proposed amendment reads as follows:
“An infringement notice contemplated in section 17(1) of the Act shall be issued and served or caused to be served to the infringer by registered mail, on a form similar to forms AARTO 03 and AARTO 03e as shown in Schedule 1, within [40 days] 90 days of the commission of the infringement.”

4.2.  The proposed amendment of Regulation 3 is problematic in a number of ways, not least of which is the fact that Regulation 3(1)(a) has been left unaltered and the AARTO 01 and AARTO 02 forms used for personal service of an infringement notice do not cater for the multiple counts of alleged infringements the new, and legally invalid AARTO 03e form caters for.

4.3.  The proposed amendment of Regulation 3(1)(b) is furthermore problematic insofar as the proposed extension of the period in which an AARTO 03 (or AARTO 03e) infringement notice must be issued and served is to be more than doubled – from 40 to 90 days. This is quite simply, ludicrous.

4.3.1.    The registered mail service offered by the South African Post Office is more than capable of serving an infringement notice upon an alleged infringer in a lot less than 10 days if the issuing authorities and the RTIA were to bother to use it. Sadly they don’t and thereby violate both, Section 30(1) of the AARTO Act and Regulation 3(1)(b) of the AARTO Regulations.

4.3.2.    We remind you that Section 30(2) of the AARTO Act states as follows: “A document which is sent by registered mail in terms of subsection (1), is regarded to have been served on the infringer on the tenth day after the date which is stamped upon the receipt issued by the post office which accepted the document for registration, unless evidence to the contrary is adduced, which may be in the form of an affidavit”. We are aware of the minor amendment to this provision in the AARTO Amendment Bill, 2015 which changes the word “regarded” to the word “deemed”, however this has little influence on the matter.

4.3.3.    In light of this provision in the originating Act, it is not unreasonable to assume that it is now being proposed that issuing authorities should be allowed 80 days to issue an AARTO 03 or AARTO 03e infringement notice. In this regard we refer you to paragraph 6.1(b) of the December 2012 TCSP prosecuting guidelines for speed measuring and traffic light violation monitoring equipment which holds that “a notice in terms of section 341 of the Criminal Procedure Act, 55 of 1977, shall be posted to the licensed owner of the motor vehicle within 30 days of the date of the offence, or where AARTO is in place, in accordance to AARTO legislation”.

4.3.3.1.        Of course we are aware of the latter part of that provision which says “or where AARTO is in place, in accordance to AARTO legislation”, however point out that having two separate periods within which an infringement notice must be issued would not pass constitutional muster albeit that the method of postage differs in practical application.  

4.3.3.2.        Besides anything else, the intention of the 40 days was to allow issuing authorities to continue to be sloppy in issuing infringement notices timeously by giving them 30 days to do so, and then further allowing the South African Post Office 10 days to serve them on infringers by registered mail. This would be in line with the requirements of the TCSP with respect to camera fines.

4.3.4.    Allowing a period of 90 days to elapse before an alleged infringer is so much as made aware of the fact that he or she has allegedly infringed is quite simply unconscionable and malicious in the extreme and/or shows that the legislators have absolutely no idea of what the practical implications of enacting laws are.

4.3.4.1.        As things stand, alleged infringers only become aware of alleged camera-based infringements significantly after the fact and are therefore grossly prejudiced by the inefficiencies of both, the issuing authorities and the South African Post Office.

4.3.4.2.        This is particularly relevant in roads like Main Road (M71) in Kyalami where the JMPD has changed the speed limit from 80km/h to 60km/h then back up to 80km/h on several occasions and seemingly in the pursuit of greater fines revenues. This is not the only place where this happens, but it is a good example.

4.3.4.3.        A person who fails to notice this speed limit reduction and drives along that road to and from work daily would, over a period of 80 days, incur at least 58 infringement notices (29 in each direction) for driving at 80km/h along that stretch of road.

4.3.4.4.        The penalty amount for each infringement would be R500 at the undiscounted penalty, with 1 demerit point applicable to each infringement under charge code 4543 in Schedule 3 of the AARTO Regulations.

4.3.4.5.        In other words, what you are proposing is that a person should be allowed to build up R29,000 (R14,500 after discount) in fines and 58 demerit points, representing a 138 month (11½ years) ban on driving before even becoming aware that they have allegedly infringed and being granted the opportunity to adjust their behaviour. Surely you cannot be serious!

4.3.5.    The same goes for e-toll infringements, which we might add appears to be the primary reason for the drafting of these proposed amendments.

4.3.5.1.        Should an alleged infringer’s vehicle have passed under 100 gantries in the 80 day period you propose to allow for an AARTO 03e infringement notice to be issued, they will incur an undiscounted penalty amount of R25,000 (R12,500 discounted) before they are made aware of the fact that a single alleged infringement exists. Again, surely you cannot be serious!

4.3.6.    We respectfully remind the Department of Transport that “justice delayed is justice denied” and the concept of waiting 90 days (THREE MONTHS) to inform a person of their alleged infringement is the personification of this principle.

5.    Amendment of Schedule 1 of the Regulations

5.1.  We take note of the proposed AARTO 03e form entitled “INFRINGEMENT NOTICE MULTIPLE CAMERA OR ELECTRONICALLY CAPTURED INFRINGEMENTS” as contemplated in this government gazette.

5.2.  The title of this form implies that issuing authorities will be allowed to use it for “multiple speed and red light camera” violations, as well as for e-tolling infringements.

5.3.  For reasons stated supra it is our belief that this form is both unconscionable and malicious. We are however also of the opinion that it is unlawful, since it contravenes and/or paralyses other provisions contained in the AARTO Act.

5.4.  The form only makes provision for a single photograph and then states that “More photos of vehicle at above locations can be viewed at www.aarto.gov.za”.

5.4.1.    This presupposes that every single motorist has access to and knows how to use the internet, which presupposition is neither correct nor lawful.

5.4.2.    Nowhere in the National Road Traffic Act, the National Road Traffic Regulations or the AARTO Act is there any prescript that any person who holds a driving licence or owns a motor vehicle must have access to the internet or even so much as own any device, including but not limited to a cell phone capable of accessing the internet.

5.4.3.    It is submitted that any charge sheet, including an AARTO infringement notice which seeks to prosecute road traffic infringements must contain all of the relevant information to allow an alleged infringer to properly understand and answer the charge thereon. For this reason, a single image of a motor vehicle with a single image of the number plate of the vehicle alleged to have been uses in the commission of an infringement is not sufficient on an infringement notice, unless that infringement notice pertains only to one alleged infringement.

5.4.4.    Additionally, it is evident that the legislator has never visited the aarto.gov.za website whereon the images displayed thereon measure 300 pixels by 176 pixels, with the underlying image measuring 150 pixels by 112 pixels, thus rendering them completely useless to anyone wishing to look at them in any detail. An example of each of these images in their actual sizes appears below:

5.4.5.    The burden of proof when accusing a person of wrongdoing always resides with the accuser and not with the accused and it is quite simply unreasonable, unlawful and unconstitutional for anyone to hold otherwise.

5.5.  It is submitted that this proposed AARTO 03e form violates the prescripts of the AARTO Act in many ways, thus rendering it unlawful.

5.5.1.    Section 17(1)(b) of the AARTO Act states that “If a person is alleged to have committed an infringement, an authorised officer or a person duly authorised by an issuing authority, must instead of a notice contemplated in section 56 or 341 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), and subject to section 23, serve or cause to be served on that person an infringement notice (singular), which must state the prescribed particulars of the infringement (singular)”. (my emphasis)

5.5.1.1.        This provision caters for one infringement notice per alleged infringement, not for a combination of alleged infringements, or counts thereof to be included on a single infringement notice.

5.5.1.2.        It is conceded that the current AARTO 01 and AARTO 02 documents do cater for three separate infringements on each form, however they also contain three separate infringement notice numbers.

5.5.2.    Section 17(1)I of the AARTO Act states that  “If a person is alleged to have committed an infringement, an authorised officer or a person duly authorised by an issuing authority, must instead of a notice contemplated in section 56 or 341 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), and subject to section 23, serve or cause to be served on that person an infringement notice (singular), which must specify the amount of the prescribed penalty (singular) payable in respect of that infringement, the issuing the authority to which the penalty is payable (singular) and the place where the penalty (singular) may be paid”. (my emphasis)

5.5.2.1.        This provision does not cater for multiple penalties payable, nor does it cater for a grand total to be presented as would be the case on an invoice. This is supposed to be an infringement notice, not an invoice.

5.5.2.2.        It is conceded that the current AARTO 01 and AARTO 02 documents also cater for a grand total, however, this does not detract from the fact that the total in question is for three separate infringement notice numbers.

5.5.3.    Section 17(1)(f)(i) states that “If a person is alleged to have committed an infringement (singular), an authorised officer or a person duly authorised by an issuing authority, must instead of a notice contemplated in section 56 or 341 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), and subject to section 23, serve or cause to be served on that person an infringement notice, which must inform the infringer that, not later than 32 days after the date of service of the infringement notice, the infringer may pay the penalty (singular), as reduced by the discount contemplated in paragraph (d), or make representations to the agency, in the case of a minor infringement”. (my emphasis)

5.5.3.1.        This proposed AARTO 03e infringement notice, whilst seemingly complying with this prescript does not in fact comply therewith, insofar as it caters for 100 alleged infringements.

5.5.3.2.        Should an alleged infringer wish to make representation on any one or more of the counts of the alleged infringement, he or she will have to do so on an AARTO 08 representation form, thereby challenging all of the counts which appear on that infringement notice.

5.5.3.3.        An AARTO 08 representation form makes provision for only a single infringement notice number and a single date of infringement. This is relevant insofar as the infringement notice number goes.

5.5.3.3.1.            Should that infringer’s representation be successful, the entire infringement notice including all counts thereon must be cancelled since Section 18(6) of the AARTO Act which states that “If the representations are allowed the agency must forthwith cancel the infringement notice (singular), and inform the infringer in the prescribed manner of the decision”. (my emphasis)

5.5.3.4.        As stated supra, an AARTO 08 representation form does not cater for multiple counts of the same alleged infringement on different days. It therefore stands to reason that should an alleged infringer have a valid and provable representation to make on a single count thereon, for example, “my vehicle was in another City on that day”, then the representation cannot be lawfully made unsuccessful.

5.5.4.    Section 17(1)(f)(iv) states that “If a person is alleged to have committed an infringement (singular), an authorised officer or a person duly authorised by an issuing authority, must instead of a notice contemplated in section 56 or 341 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), and subject to section 23, serve or cause to be served on that person an infringement notice, which must inform the infringer that, not later than 32 days after the date of service of the infringement notice, the infringer may elect in the prescribed manner to be tried in court on a charge of having committed the alleged offence (singular)(my emphasis)

5.5.4.1.        Should an alleged infringer wish to elect to be tried in court on one count thereon but wish to admit guilt on another, he or she may not do so.

5.5.4.2.        An AARTO 10 election to be tried in court document caters for a single infringement notice number and a single date of infringement. It therefore stands to reason that an alleged infringer must elect to be tried in court on all counts, or not elect to be tried in court, thereby depriving him or her the right to face his or her accuser in court as is enshrined in Section 35 of the Bill of Rights of the Constitution.

5.5.5.    Section 17(1)(f)(v) states that “If a person is alleged to have committed an infringement (singular), an authorised officer or a person duly authorised by an issuing authority, must instead of a notice contemplated in section 56 or 341 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), and subject to section 23, serve or cause to be served on that person an infringement notice, which must inform the infringer that, not later than 32 days after the date of service of the infringement notice, the infringer may provide information, in the prescribed manner, to the satisfaction of the issuing authority that he or she was not the driver of the motor vehicle at the time of the alleged infringement, coupled with the name, acceptable identification and residential and postal address of the alleged driver or person in control of the vehicle” (my emphasis)

5.5.5.1.        This particular prescript is of great relevance to fleet owners and in particular, car hire companies where it is unlikely, if not impossible that a single driver would have been the same driver in each and every count cited on this proposed AARTO 03e document.

5.5.5.2.        The AARTO 07 “nomination of driver or person in control” document makes provision for a single infringement notice number and a single date of alleged infringement.

5.5.5.3.        Fleet owners and car hire companies would thereby be denied the ability to nominate the driver of that vehicle on a particular day if more than one person drives that vehicle. The same goes for any person who allows more than one other person to drive their motor vehicle.

5.6.  It is our submission that the sole purpose of this proposed, but clearly unlawful form can only be seen to be  a feeble attempt to save the issuing authorities, and in particular, SANRAL money on postage by attempting to circumvent the provisions of the AARTO Act and Regulations, thereby maximising profiteering from road traffic “enforcement” with absolutely no regard being paid to road safety, or indeed, saving lives.

6.    Amendment of Schedule 3 of the Regulations.

6.1.  The proposed amendment of charge codes 3820 and 3821, despite going against the grain of every other infringement listed in Schedule 3 of the AARTO Regulations insofar as the demerit points under column 7 thereof and applicable to all other infringements with a penalty of R500 being one demerit point goes, are noted and we have no objection to this amendment.

7.     Amendment of Schedule 4 of the Regulations.

7.1.  The amendments herein are noted and we have no objections thereon.

8.    Conclusion

8.1.  It is clear that, save for the schedule of issuing authorities contained therein, the proposed amendments tabled in this government gazette are intended solely to facilitate the prosecution of e-toll “offenders” and ensure that the proliferation of speed cameras which contribute nothing to road safety but everything to the coffers of issuing authorities and the RTIA alike continues to spiral out of control.

8.2.  Furthermore, it is clear that these proposed amendments have been drafted without due, or more accurately, any regard to the contents of the AARTO Act so much as being considered.

8.3.  We therefore urge you to take very seriously the contents of our submission and rather stick to the tried, tested and lawful method of issuing and serving AARTO 03 infringement notices, albeit that not one issuing authority nor the RTIA has served a single AARTO document by registered mail in compliance with the prescripts and from the inception of the AARTO Act, instead of attempting to take unlawful shortcuts and maximise profits for greedy issuing authorities.

8.4.  Should the Department of Transport decide to proceed to promulgate these draft Regulations, we shall be left with no alternative but to seek relief in the appropriate forum.

Yours sincerely; towards safer roads and Justice for all who use them, 

Howard Dembovsky

Chairperson - Justice Project South Africa (NPC)


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