The Constitutional Court on Wednesday greenlighted the implementation of the controversial Administrative Adjudication of Road Traffic Offences (Aarto) Act into law on Wednesday.

The apex court was initially expected to uphold a Pretoria High Court decision made in January 2022, which ruled that Aarto was unconstitutional and invalid, and should be scrapped in its entirety.   

The application to confirm the January 2022 ruling was brought by a civil group, the Organisation Undoing Tax Abuse (Outa), which argued that the legislation was flawed in several ways, was concerned about making money and infringed on the rights of drivers and owners of vehicles.

The organisation further advanced that the act intruded on the functions of local and provincial governments as outlined by the Constitution, preventing local and provincial governments from regulating their own affairs, an argument with which the ConCourt disagreed.

The minister of transport, the minister of cooperative governance and traditional affairs, the Road Traffic Infringement Authority (RTIA) and the Appeals Tribunal were the respondents in the matter.

In a unanimous judgment penned by Chief Justice Raymond Zondo, the court ruled in favour of the transport minister that Aarto was, in fact, lawful and should remain in place, overturning the Pretoria High Court judgment.

“This court has therefore refused to confirm the order of invalidity made by the high court, has upheld the minister’s appeal and set aside the order of the high court and replaced it with an order dismissing Outa’s application,” Chief Justice Zondo said.

Read more in Daily Maverick: The carnage on South Africa’s roads is also a human rights issue 

More than 12,500 people lost their lives on South African roads in 2021. The country’s fatality rate of 26 deaths per 100,000 is among the highest in the world and contrasts sharply with a rate of around five deaths per 100,000 for countries in the European Union. 

Business Day has reported that Aarto is seen by the government as a way to penalise repeat driving offenders with a points demerit system. Drivers who collected more than 15 points would have their driver’s licence suspended or eventually cancelled. In addition, Aarto will legalise the serving of fines by email. 

Constitutional, but still impractical

Reacting to the judgment, Outa’s executive director, advocate Stefanie Fick, said the organisation was of the view that the legislation was impractical and would not effectively address the epidemic of road traffic fatalities and injuries.

“We are disappointed with the ConCourt’s decision, but abide by the apex court’s ruling. Outa believes that measures to improve road safety and reduce fatalities are urgently needed. However, we don’t believe that the Aarto Acts will achieve this; it’s just not practically possible. South Africa needs effective processes enabled by fair adjudication that comply with the Constitution,” Fick said. 

The organisation believes that the legislation is likely to result in troublesome and complex issues for most motorists and motor vehicle owners and will not enhance road safety. 

Currently, traffic violations are dealt with as criminal offences, but with Aarto coming into effect, most of the violations will be decriminalised and dealt with through an administrative, rather than criminal, process. 

Transport Minister Sindisiwe Chikunga welcomed the ConCourt judgment, which she said affirmed the government’s view that Aarto had been a necessary law to help arrest the carnage on SA roads.

The legislation, Chikunga said, would help reinforce interventions such as classifying traffic policing as a 24-hour, seven-days-a-week job, alongside the regulation of driving schools and the introduction of an NQF Level 6 training for traffic law enforcement officers.  

Move speedily 

“The implementation of this law across the country has been pending for 25 years, with pilots in place in the cities of Johannesburg and Tshwane. With this judgment having cleared the path for the implementation of Aarto, we will move with speed to roll out its implementation across the country without delay.

“In the coming days, we will ensure that the Road Traffic Infringement Agency mobilises the necessary capacity and proceeds with its roll-out plans across all municipalities in the country,” Chikunga said. 

She said the department was ready to implement the legislation and to finalise recommendations to President Cyril Ramaphosa for the appointment of the Appeals Tribunal and the proclamation of the implementation of the Aarto Act and the Aarto Amendment Act.

“We will equally move with speed with the implementation of the points demerit system, an important cornerstone of the Aarto Act intended to drive motorist behaviour on our roads.”  

Lack of administrative discipline

However, Outa argues that the challenges faced by Aarto are largely due to poor enforcement, a lack of administrative discipline when it comes to traffic infringement management and problems in the management of vehicle and driver licensing.

“Merely legislating policy doesn’t make it rational or workable. Governments often suffer from the false belief that if the laws and regulations are in place, the people will simply comply. Irrational and/or impractical laws and a lack of transparency result in pushback from society, making systems ungovernable. 

“The sad reality is that the government begins to suffer from a crisis of legitimacy when it cannot exercise its power over people by effectively enforcing its legislation and policies,” Fick said. DM