Unpacking the AARTO Amendment Bill, 2015

Unpacking the AARTO Amendment Bill, 2015
A layman’s guide to the amendments brought to you by Justice Project South Africa 

Introduction

Acknowledging the fact that most laymen are not used to making submissions on proposed legislative amendments but may wish to exercise their democratic right to do so, Justice Project South Africa (JPSA) has put this guide together in order to assist those who may wish to do so.

Beyond stating that Justice Project South Africa is fully in agreement with and supportive of the concept of the long-overdue introduction of a points-demerit system on driving licenses, we will not attempt to unduly influence your views on the proposed amendments to the AARTO Act. To do so would not be in the interests of or respectful of due public participation.

What we will do however is point out which proposed amendments will have a direct impact on you and which won’t, as well as pointing out some obvious issues we have identified as being problematic. From there on in, it is entirely up to you what you wish to submit to the Parliamentary Portfolio Committee.

Why you should consider making a submission

The process of publishing proposed legislation and legislative amendments is not intended to be a troublesome, administratively burdensome formality for government, but to act to solicit inputs from stakeholders and persons who will be affected by that legislation.

The entities which publish legislation and/or legislative amendments for public comment are obliged to consider submissions they receive, but they are not obliged to incorporate all of them into the final product. Typically, they will act upon valid inputs and will discard what is regarded as being invalid.

It is therefore your democratic right to express your views and provide your inputs on that legislation and just like voting, if you do not participate, griping after it has been enacted will have a limited effect.

Legislation affects us all to a greater or lesser extent since we are all expected to comply with its provisions. In the case of the Administrative Adjudication of Road Traffic Offences (AARTO) Act, people who hold driving licenses, as well as people who own motor vehicles are affected by its provisions. 

Formatting your submission

In order for your submission to be easily understood by the Parliamentary Portfolio Committee, you need to make sure that your comments reference a particular clause, as well as the Section of the Act with which it deals.

We would therefore suggest that you format the clause and Section using emphasis such as bold italics or something similar as per the following example:

Clause 9(a) – Section 30(1) – “service of documents”

Your detailed submission including any reference to subsections.

 

Your submission should be addressed to “The Chairperson, Parliamentary Portfolio Committee on Transport, Parliament of South Africa, Cape Town” and we urge you to be and remain respectful.

Submitting your submission

Once you have completed your submission, you can email it to Ms Valerie Carelse on vcarelse@parliament.gov.za or fax it to 021 403 3272.

The AARTO Act as it stands at the moment

The Administrative Adjudication of Road Traffic Offences (AARTO) Act, 1998 (Act 46 of 1998) was first promulgated to be in force in the jurisdictions of the City of Tshwane from 1 July 2008 and the City of Johannesburg from 1 November 2008.

Everywhere else in South Africa, the Criminal Procedure Act, 1977 (Act 51 of 1977) is in force in prosecuting road traffic infringements and offences.

It is vitally important to understand that the AARTO Act, just like the Criminal Procedure Act, is an instrument used to prosecute road traffic infringements and offences and little more. Apart from the points-demerit system that it introduces (which has not been promulgated yet), it does not constitute “new traffic law” as such.

Both, the Criminal Procedure Act and the AARTO Act are currently used to prosecute offences defined by the National Road Traffic Act, 1996 (Act 93 of 1996), the National Road Traffic Regulations, 2000, the National Land Transport Act, 2009 (Act 5 of 2009) and various provincial and municipal road traffic bylaws. The Criminal Procedure Act is also used to prosecute all other criminal offences.

The points-demerit system incorporated as part of the provisions contained in the AARTO Act is not in force anywhere in South Africa at the moment and will only come into effect when the AARTO Act is rolled out nationally.

The national rollout of the AARTO Act and the implementation of the points-demerit system has been repeatedly announced and delayed over the eighteen years since the Act was assented to by Parliament and the eight years since it has been in an experimental stage in the Cities of Johannesburg and Tshwane.

The Department of Transport has stated that it views the passing of the amendments contained in the AARTO Amendment Bill into law as representing the final hurdle to the national rollout of the AARTO Act, whereafter the points-demerit system will finally become a reality.

The AARTO Amendment Bill, 2015

Before making any comments whatsoever on the contents of the AARTO Amendment Bill, 2015, it is essential that you download the actual document and read it. You can do so at http://www.gov.za/documents/administrative-adjudication-road-traffic-offences-amendment-bill-b38-2015-30-nov-2015-0000

Don’t be intimidated. The AARTO Amendment Bill, 2015 comprises only four pages of actual proposed amendments to the AARTO Act. The rest of the twelve page document is made up of the memorandum of objects of the Act, along with a “clause by clause analysis” of the amendments which will go before Parliament.

Pages 2 through 5 deal with the proposed amendments to the AARTO Act and are numbered with the clause numbers 1 through 13. In addition, many clauses have one or more a sub-clauses. As is always the case in legislative amendments, the document contains amendments, insertions and deletions of wording and provisions. Where a particular Section of the Act is deleted in its entirety, it is stated that the provision is repealed.

Where deletions of certain wording are contemplated, the deleted wording is contained in [bold square brackets] while insertions are underlined. Anything which is not annotated as described is what currently exists.

In our roadmap below, we have, as far as it is possible, replicated what is contained in the AARTO Amendment Bill by simplifying it for you. We do this by showing you what the current provision/s reads and then showing you how it will be changed if the amendment is passed into law. We do so by showing you the current wording in black italics and showing the new wording in green italics.

Where we feel you need to be made aware of something, we insert a bullet point and list our comments there. This is not to be interpreted as us attempting to influence your views and we do so merely to point out salient points we feel you should consider.

As is usual with any proposed amendments, it is difficult, if not impossible to make valid inputs unless you are in possession of the currently applicable legislation. As a public service, JPSA has made the currently applicable AARTO Act available at its website https://www.jp-sa.org/download/AARTO_ACT_as_Amended_(Current).pdf should you wish to download it.

AARTO Amendment Bill Roadmap

Page 2

Page 2 of the AARTO Amendment Bill, 2015 contemplates the preamble to the purpose of the Bill and then lists clause 1 of the proposed amendments to Section (1) of the Act – which deals with the definitions contained in the AARTO Act.

Clause 1(a) seeks to amend the wording of sub-definition (f) under “acceptable identification” which deals currently reads:

a photocopy of the applicable certificate or document referred to in paragraphs (a) to (e)

to read

a clear, legible and certified copy of the applicable certificate or document referred to in paragraphs (a) to (e).

Clause 1(b) deletes the word “agency” and its definition.

Clause 1(c) inserts a further definition of “Authority” after the term “authorised officer” as follows:

“Authority” means the Road Traffic Infringement Authority, established in terms of section 3.

  • It is suggested that you should not be too concerned what the RTIA is called, etc. since this will not affect you personally.

Clause 1(d) seeks to insert a new definition entitled “electronic service” below the definition “disqualification period” and reads as follows:

“electronic service” means—

(a)     communication by means of data messages, including data attached to, incorporated in or logically associated with, other data that may be electronically retrieved;

(b)     e-mail messages between the Authority and an addressee in an electronic communication format; or

(c)     text messaging by the Authority to the recipient’s cellular telephone;

  • It is suggested that you consider this proposed definition very carefully since its practical application will most certainly have an effect on you. Almost every process defined in the AARTO Act is entirely reliant on the service of documents, however the presumption in Section 30(2) of the Act (contemplated later herein) holds that a document is deemed to be served on the tenth day after it was sent.
  • While modernisation and progresses in technology have introduced more convenient electronic methods of communication, they have also introduced a host of possibilities for criminal syndicates to scam people.
  • An AARTO 03 infringement notice comprises no less than 6,400 characters. GSM cellular SMS messages are limited to 180 characters. Smartphones allow for unlimited characters, but not everyone has a smartphone.

Clause 1(e) seeks to amend the definition of “infringement” from:

“infringement” means a major or a minor infringement

to read:

“infringement” means any act or omission in contravention of this Act or road traffic legislation.

Clauses 1(f) trough 1(h) seek to delete the definitions of “major infringement”, “minor infringement” and “national contraventions register” which currently read as follows:

“major infringement” means an offence categorised as a major infringement under section 29 (a);

“minor infringement” means an offence categorised as a minor infringement under section 29 (a);

“national contraventions register” means the National Traffic Information System on which the offence details of every individual are recorded in terms of this Act.

Clause 1(i) seeks to insert a definition after the definition of “Minister” to read as follows:

“National Road Traffic Offences Register” means the National Road Traffic Offences Register administered by the Authority in which the details of infringements and offences of every infringer are recorded; 

Clause 1(j) seeks to amend the definition of a “representations officer” which currently reads:

“representations officer” means a person contracted by the agency in terms of section 5 or appointed by the Registrar in terms of section 10 to consider representations submitted by any person who, after having committed a minor infringement, elects to make a representation.

to read:

“representations officer” means a person appointed in terms of section 10 to adjudicate on representations contemplated in section 18.

Page 3

Page 3 of the AARTO Amendment Bill, 2015 contemplates further definitions amendments and then goes on to list clauses 2, 3, 4 and 5.

Clause 2 deals with Section 4 of the AARTO Act which is titled “Objects and functions of agency”.

Clause 2(a) seeks to delete paragraph (e) under subsection (2) which currently reads:

(e)  issuing a warrant in terms of section 21 against an infringer who has failed to comply with an enforcement order;

Clause 2(b) and (c) seeks to amend the wording of subsection (3) which will be affected by the deletion of paragraph (c) which currently reads:

executing a warrant in terms of section 21 against an infringer who has failed to comply with an enforcement order.

Clause 3 deals with Section 13 of the AARTO Act which is entitled “Financing of agency” and inserts an additional revenue source for the Authority by inserting paragraph (dA) which is proposed to read:

 (dA) penalties issued and collected by or on behalf of an issuing authority; and

Clause 4 deals with Section 15 of the AARTO Act which relates to the “banking account” of the RTIA and seeks to amend its wording from:

The agency may, with the approval of the Director-General, open and maintain one or more accounts with a bank registered finally as a bank in terms of the Banks Act, 1990 (Act No. 94 of 1990), in which must be deposited the money received by the agency and from which payments by it or on its behalf may be made.

to read:

The Authority may, with the approval of the Board, open and maintain one or more accounts with a bank registered as a bank in terms of the Banks Act, 1990 (Act No. 94 of 1990), in which must be deposited money received by the Authority and money received from issuing authorities, driving licence testing centres and registering authorities, and from which payments by [the Authority or on its behalf may be made.

Clause 5(a) through (c) deals with Section 19B of the AARTO Act which relates to “payments” and removes subsections (a) and (b) of subsection (1) which currently read:

If an infringer makes an insufficient payment to the agency in terms of this Act in respect of a fine or the cheque used for payment is dishonoured, a notice as prescribed must be served on the infringer, informing him or her –

(a)       that the full amount owed, including the prescribed fee for the notice, must be paid within 32 days of service of the notice; and

(b)       that failure to comply with the notice contemplated in paragraph (a) will lead to a warrant being issued against him or her in terms of section 21.

and replaces them with:

If an infringer makes an insufficient payment to the agency in terms of this Act in respect of a fine or the cheque used for payment is dishonoured, a notice as prescribed must be served on the infringer, informing him or her that the full amount owed, including the prescribed fee for the notice, must be paid within 32 days of service of the notice.

Page 4

Page 4 of the AARTO Amendment Bill, 2015 contains clauses 6 through 9.

Clause 6 deals with Section 20(3) of the AARTO Act which is applicable to the “enforcement order” and the amendment of the wording of subsection (3) to delete the further subsections (a) and (b) which currently reads:

An enforcement order must—

(a)    state that the infringer on whom it is served may, not later than 32 days after the date of service of the order, pay the penalty, representations fee and the fees of the courtesy letter, if any, and the prescribed fee of the enforcement order to the agency at the specified place and in the specified manner, and that the prescribed demerit points will be recorded in the national contraventions register; and

(b)    state that a failure to comply with the requirements of the enforcement order within the period contemplated in paragraph (a) will result in a warrant being issued to recover the applicable penalty and fees. 

into the singular new wording

An enforcement order must state that the infringer on whom it is served may, not later than 32 days after the date of service of the order, pay the penalty, representations fee and the fees of the courtesy letter, if any, and the prescribed fee of the enforcement order to the agency at the specified place and in the specified manner, and that the prescribed demerit points will be recorded in the National Road Traffic Offences Register.

  • Essentially, all this amendment does is to remove the threat of a warrant of execution being issued against you.

Clause 7 deals with Section 21 of the AARTO Act which contemplates a “warrant”. This warrant should not be confused with a criminal warrant of arrest since it referred to a civil warrant of execution.

This amendment repeals Section 21 of the AARTO Act and therefore removes the possibility of a civil warrant of execution for the seizure of your goods should you not pay an AARTO infringement notice.

Clause 8 deals with Section 22 of the AARTO Act, which is entitled “Trial”. It is important to note that this section does not contemplate a criminal trial for offences defined as a criminal “offence” in Schedule 3 of the AARTO Regulations. In fact, the issuing of criminal summonses for offences is not contemplated anywhere in the AARTO Act.

Section 22(1) of the AARTO Act currently reads:

If—

(a)    an infringer elects to be tried in court—

(i)      under section 17 (1) ( f ) (iv), the issuing authority must cancel the infringement notice;  or

(ii)     under section 18(1)(c) or 19(2)(b)(iii), the agency must inform the issuing authority who must cancel the infringement notice; or

(b)    the execution of a warrant in terms of section 21(1) produces no movable property to seize and sell or the infringer otherwise fails to comply with the enforcement order after the execution of the warrant, the agency must cancel the infringement notice, and the issuing authority must prepare a summons in terms of the Criminal Procedure Act, 1977 (Act No. 51 of 1977). 

and the issuing authority must issue a summons in terms of the Criminal Procedure Act, 1977 (Act No. 51 of 1977)

and replaces it with:

If an infringer elects to be tried in court—

(i) under section 17 (1) ( f ) (iv), the issuing authority must cancel the infringement notice;  or

(ii)      under section 18(1)(c) or 19(2)(b)(iii), the Authority must inform the issuing authority who must cancel the infringement notice,

and the issuing authority must issue a summons in terms of the Criminal Procedure Act, 1977 (Act No. 51 of 1977).

Clause 9 deals with Section 30 of the AARTO Act which is entitled “Service of documents”.

Clause 9(a) proposes to amend the current wording of subsection (1) from:

Any document required to be served on an infringer in terms of this Act, must be served on the infringer personally or sent by registered mail to his or her last known address

to read as follows:

Any document required to be served on an infringer in terms of this Act, must be served on the infringer as prescribed including by postage or electronic service.

  • It is suggested that this amendment will have a direct impact upon you and therefore, you should consider what is being proposed very carefully and consider making your own submission on it.

Clause 9(b) proposes to amend the current wording of subsection (2) from:

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.

to read as follows:

A document which is sent in terms of subsection (1), is deemed to have been served on the infringer on the tenth day after posting the said document or of the electronic service, and such electronic service reflected in the National Road Traffic Offences Register, unless evidence to the contrary is adduced, which may be in the form of an affidavit.

  • It is suggested that that this amendment will also have a direct impact upon you and therefore, you should consider what is being proposed very carefully and consider making your own submission on it.

Page 5

Page 5 of the AARTO Amendment Bill, 2015 contains clauses 10 through 13.

Clause 10 deals with the amendment of Section 32 of the AARTO Act which is entitled “Apportionment of penalties”. It proposes to amend subsections (1) and (2) and inserts two further subsections (2) and (3).

Subsection (1) currently reads:

Any penalty received by the agency in terms of this Act must be paid over monthly, after deduction of an amount equal to the discount contemplated in section 17 (1) (d), to the issuing authority under whose authority the infringement notice was issued, and if it was not issued under the authority of such authority, to the issuing authority within whose area of jurisdiction the infringement was committed.

and is proposed to be amended to read:

Any penalty received by the Authority in terms of this Act must, as prescribed, be paid over to the issuing authority that issued the infringement notice, after deduction of an amount equal to the discount contemplated in section 17(1)(d).

  • It is suggested that who gets what portion of the penalty (fine) paid by an infringer is not of much interest to the ordinary person.

Subsection (2) currently reads:

Any fine received in respect of any conviction under the national laws, provincial laws or municipal laws relating to road traffic, must be paid over monthly to the issuing authority under whose authority the infringement notice was issued, and if it was not issued under the authority of such authority, to the issuing authority within whose area of jurisdiction the infringement was committed.

and is proposed to be amended to read:

Any prescribed fees or monies contemplated in section 13(1)(dA) collected by or on behalf of the issuing authority in terms of this Act must, as prescribed, be paid to the Authority.

  • It is again suggested that who gets what portion of the penalty (fine) paid by an infringer is not of much interest to the ordinary person.

It is then proposed that subsection (3) be inserted as follows:

The penalty referred to in subsection (1) may be withheld by the Authority where there is evidence of non-compliance with this Act, until such time that the Act is complied with to the satisfaction of the Authority.

  • This proposed insertion has obviously arisen out of the noncompliance of the Johannesburg Metropolitan Police Department (JMPD) with the current Section 30(1) of the AARTO Act by posting documents by ordinary domestic mail as opposed to serving by registered mail which occurred from 1 April 2010 to 21 December 2012 (30 months).
  • This violation of the prescripts of the Act was only halted due to the complaint that JPSA brought to the Public Protector in June 2011, which in turn resulted in mounting political pressure from “opposition parties” in Parliament. In December 2014, the Public Protector found the City of Johannesburg and the JMPD to have engaged in “maladministration”.
  • What you need to consider about this provision is the fact that the “Authority” (RTIA) is NOT the sole point of payment available to alleged infringers. Issuing authorities may and often do receive direct payment.
  • You also need to consider whether you regard the RTIA withholding payment to the issuing authority until such time as it complies with the Act (and then paying them over to them) is sufficient sanction to deter unlawful practices by issuing authorities.

Finally, it is proposed that subsection (4) is inserted as follows:

Despite any other law, any monies received in respect of any conviction under the applicable road traffic legislation must be disbursed as prescribed.

Clause 11 deals with the amendment of Section 35 of the AARTO Act which is entitled “Transitional provisions” and proposed to amend subsection (1) from:

Any notice issued in terms of section 56 or 341 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), before the date of commencement of section 17, may be continued and finalised under that Act, but no such notice may be issued after that date in respect of an offence or infringement.

to:

Any notice issued in terms of section 56 or 341 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), before the date of commencement of section 17, may be continued and finalised under that Act, but no such notice may be issued after that date in respect of an infringement.

Clause 12 deals with the proposed substitution of certain words and expressions and changes the name of the Road Traffic Infringement Agency to the “Road Traffic Infringement Authority, as well as changing the name of the National Contraventions Register to “National Road Traffic Offences Register.

  • These two technical issues do not affect you directly.

Clause 13 merely renames the Bill to read “Administrative Adjudication of Road Traffic Offences Amendment Act, 2015”.

  • Again, this issue does not affect you directly.

Notes

Except for what is recorded in the roadmap above, there are no other proposed amendments to the AARTO Act itself.

This said, if you feel that anything which should have been addressed in the amendment of the AARTO Act has not been addressed, there is nothing stopping you from making submissions to that effect.

Please do not email JPSA asking us to clarify and/or further define anything regarding the AARTO Amendment Bill. Our submission will be comprehensive and will contemplate not only the proposed AARTO Amendment Bill, but the AARTO Act itself, as well as all other legislation which is applicable to road traffic offences. We will also address the practical implementation issues we have identified over the eight years the AARTO Act has been in force in the Cities of Tshwane and Johannesburg.

In the interests of complete transparency, our submission will be published online at our website as soon as it has been completed and submitted to the Parliamentary Portfolio Committee on Transport. We envisage this taking place by no later than 30 August 2016.

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