Howard Dembovsky writes...
On 5 May 2016, Gauteng MEC for Transport, Ismail Vadi tweeted "Road traffic infringement agency claims that #taxi industry owes R4billion in unpaid traffic fines".
On face value, this sounds "shocking" and creates the impression that, contrary to popular belief, minibus taxi drivers are actually taken to task by traffic authorities.
I pause to interject that the AARTO Act is only in operation in the Cities of Johannesburg and Tshwane and therefore the RTIA would not be aware of traffic fines issued outside of those jurisdictions, for example in Ekurhuleni, Mogale City, Midvaal, etc., and therefore this monetary value could be much higher in the context of Gauteng alone, and the rest of the country in general.
R4 billion is a lot of money in anyone's books but it must not be forgotten that the AARTO Act has been in operation for 7½ years now and it's only when one breaks things down properly that a true picture emerges. It's not as simple as taking the R4 billion and dividing it by 7½ either because the AARTO Act holds that where the driver of a vehicle which has an operator card, like is the case with a minibus taxi, is issued with an infringement notice, in most instances both, the driver and the operator would also end up simultaneously incurring a fine.
On average, around 6 million infringement notices are issued between the JMPD, the TMPD, Gauteng Traffic Police and the National Traffic Police each and every year. The JMPD accounts for around 5 million of that total and primarily focuses on speed camera speeding "enforcement", which is of course not law enforcement at all, but a revenue generation exercise.
That being what it may, an average 6 million a year would equate to around 45,000,000 infringement notices over the 7½ year period.
The typical fine issued to minibus taxi (and other) drivers and operators of vehicles with operator cards would have a penalty monetary value of R1,250 each. In essence, and using the R4 billion reported figure, this means that over the 7½ years, approximately R533 million worth of fines were issued to the minibus taxi industry each year.
Breaking this down further and remembering that both the driver and the operator get a fine, this would mean that 426,667 fines would have been issued, arising out of 213,333 separate incidents annually.
It is a stated fact that there are more than 200,000 minibus taxis in operation on South Africa's roads. It is also a well-known fact that a high proportion of those minibus taxis operate in Guateng, and more specifically in Johannesburg and Tshwane. As at 30 April 2016, 117,164 minibuses where registered in Gauteng (301,718 nationwide). The vast majority of these, but not all of them would be minibus taxis. Let's be generous and say that only 100,000 of those registered in Gauteng are used as taxis. This would mean that the 213,333 fines issued, if distributed evenly over the quantum of 100,000 taxis would equate to roughly 2 traffic fines for each minibus taxi, per annum.
This in turn means that of all of the infringement notices issued in the 7½ years, a whopping 0.95% of them were issued to people involved in the minibus taxi industry in general and more importantly, 0.47% of them to minibus taxi drivers.
Anyone who has observed and/or experienced the way in which minibus taxi drivers drive on our roads would attest that if law enforcement was being practiced properly, most minibus taxi drivers would incur several infringement notices daily, not a mere 2 each year. I therefore rest my case when I say that it is misleading at best to assert that traffic authorities are enforcing the law against minibus taxi drivers and operators. Why would they when it is also a well known and reported fact that a number of minibus taxis are owned by policemen and women, as well as traffic officers?
But now let's move to the alleged R4 billion the RTIA claims that the minibus taxi industry owes issuing authorities and it.
The AARTO Act grants the Registrar of the RTIA extraordinary powers to force the payment of traffic fines and one of the most powerful provisions of the Act is the fact that if an infringement notice and the consequent courtesy letter are not complied with, then an enforcement order must be issued by the Registrar of the RTIA.
In actual practice however, the Registrar has not followed the prescripts of the Act, but has, apparently using the nonsensical and I dare say unlawful argument that the implementation of the AARTO Act in Joburg and Tshwane is a so-called "pilot implementation", selectively applied the provisions of the Act.
Not only has not one single infringement notice, courtesy letter or enforcement order which must be served by registered mail (if not served in person) actually been served by registered mail, but when it comes to the issue of courtesy letters and enforcement orders, this has been done on a selective basis and using a logic which is not in any way apparent to me.
A single enforcement order has the effect of blocking eNaTIS from issuing a renewed licence disc, driving licence and/or Professional Driving Permit (PrDP) - all of which are required in the minibus taxi industry for them to operate lawfully - and it has been my observation that where enforcement orders have actually been issued, this has caused a high proportion of ordinary people against whose particulars they have been issued to pay that fine, often along with others they have incurred but not been lawfully notified of.
According to the RTIA's annual reports, in the 2013/14 financial year, 200,469 courtesy letters and 46,267 enforcement orders were issued by the RTIA. In the 2014/15 financial year, 817,969 courtesy letters and 593,713 enforcement orders were issued.
Considering that in the two financial years under review, a combined quantum of 12,806,077 infringement notices were issued, and that the previously reported "payment rate at all stages" was 14.5%, this means that 85.5%, or 10,949,196 infringement notices were not paid.
One can't simply ignore the fact that the AARTO Act caters for the cancellation of infringement notices where successful driver nominations and representations are made, combined with the fact that some people elect to be tried in court and may still be awaiting a summons, but from the annual reports of the RTIA, it can be determined that a relatively low percentage of infringement notices are dealt with by means of representation or election to be tried in court.
In fact, in 2013/14, 153,920 representations were made and in 2014/15, 132,962 where made and this represents a mere 2.27% and 2.21% respectively of the infringement notices issued. Elections to be tried in court in those years were 55,815 (0.82%) in 2013/14 and 200,195 (3.32%) in 2014/15. Driver nominations in the same period were 153,920 (2.21%) in 2013/14 and 132,962 (2.21%) in 2014/15.
So let's be generous and say that all representations would have been successful (which they were not) and say that 7.80% of all infringement notices are in fact dealt with in a manner other than paying them or ignoring them entirely.
That means that of the 12,806,077 infringement notices issued in the two years under review, 22.30% of them would have been dealt with in one way or another. This in turn means that 77,70% of them were not, leaving us with 9,950,322 infringement notices which should have, by law, ultimately become enforcement orders.
A combined 1,018,438 courtesy letters and 639,980 enforcement orders were issued in the two-year period under review. This in turn demonstrates that courtesy letters were only issued against a mere 10.24% of all infringement notices which were not dealt with, and of the courtesy letters issued, a mere 62.83% of them became enforcement orders.
Nowhere in the AARTO Act or its Regulations is the RTIA or its Registrar granted the latitude to selectively apply the provisions contained therein. To the contrary, the words "must" and "shall" are peremptory words, meaning that where they appear, there is no discretionary power afforded to anyone or anything to do otherwise.
From the foregoing, all of which comes from the RTIA's own annual reports which have been audited by the Auditor General before the Minister of Transport tabled them before Parliament, thereby purporting them to be a true and factual account of the RTIA's operations, it is my assertion that if anyone owes anyone anything to anyone, it is the RTIA which owes the issuing authorities, MEC Ismail Vadi, Minister Dipuo Peters, the minibus taxi industry and most importantly, the law abiding public an explanation as to why it has unlawfully and selectively applied the prescripts of the AARTO Act.
I don't know exactly what it is that the likes of the Chief Operating Officer of the Road Traffic Infringement Agency, Thabo Tsholetsane and Guateng Transport MEC, Ismail Vadi are trying to achieve in making such shocking revelations but it should be abundantly clear to any logical thinking person that they are again trying to shift the focus and blame off the authorities and onto motorists, and in this case, the minibus taxi industry they don't in reality enforce the law against.
It is further my contention that had all of the law enforcement agencies simply stuck to the prescribed provisions of the AARTO Act instead of choosing to experiment with ways in which to circumvent them, not only would they have seen a dramatically higher payment rate for traffic fines, but we all would have experienced an improvement in the driving habits of motorists in Johannesburg and Tshwane, simply because delinquent motorists would have been held accountable for their actions.