For many years, due process of traffic violation enforcement has not been followed by those in authority, forcing the public to pay for fines while their rights to challenge them has been effectively denied. That was until a brave active citizen, Cornelia van Niekerk, came along and challenged the abuse of authority by questioning the unacceptable conduct of the Road Traffic Infringement Agency (RTIA) processes and the law enforcement representatives’ conduct. Their conduct in running roughshod over the cumbersome Administrative Adjudication of Road Traffic Offences (AARTO) Act had come to an end.
To set the scene, there has been a tendency for our traffic authorities, over time, to circumvent their required legal obligations insofar as traffic fine notification processeses go. This in turn led to traffic fines being converted to enforcement orders, which essentially became a mechanism of extortion, by blocking the vehicle owner’s ability to relicence their vehicles – until the “outstanding” fines were paid. In doing so, the rights of motorists to enquire about the legitimacy of the fine or to benefit from early settlement discounts had been removed. The motorist was left with two choices; drive an unlicenced vehicle (with added risks), or pay the outstanding traffic fines.
The ultimate question to ask is what went wrong and why did the authorities not follow their own rules? In unpacking this situation and without going into the detail, one arrives at the realisation that traffic violation management today has everything to do with making money and less so to do with promoting road safety.
Today, traffic fines generate sizeable revenue streams for the metros, municipalities and the RTIA. The focus of road safety that once was paramount to the cause of enforcement has become blurred. Traffic violations – mainly speeding and skipping red traffic signals – are now largely meted through cameras and postal services. Visible policing has gone missing in action, allowing driver behaviour and the roadworthiness of vehicles to sink to the lowest levels ever seen in the country.
The result: a cumbersome administrative process that has failed to get started for over a decade, while South Africa languishes in the worst quartile of road deaths per vehicle capita, and getting worse every year.
Enter Cornelia van Niekerk, an entrepreneur and active citizen who runs a successful traffic fines management business called Fines-4-U. The unruly conduct of the authorities in dishing out traffic fines had become a nightmare for many a corporate entity to manage. Many a business like Fines-4-U saw the gap and set up shop to navigate the enforcement processes, which would ultimately see the authorities being forced to apply the law. Instead of doing the job properly, the metros and the RTIA decided to ignore their own laws, making life tougher for those who tried to make sense of the processes.
Enough was enough for Cornelia and her client, Audi Johannesburg. They decided to don their civil courage boots and set out on a long and costly road to challenge the illegal conduct of the Minister of Transport, the RTIA and a host of other traffic infringement authorities.
They started by taking the Johannesburg Metro Police Department to court, for failing to dispatch the traffic fines per the required regulations, which included registered mail being used for final infringement notices. The authorities felt this was not necessary, nor did they feel the need to give reasons when representations for fine cancellations were rejected.
The war was on and bullying tactics were deployed by the RTIA, who saw fit to withdrew all prior cancelled representations against Cornelia’s client for the period 2008 to 2013. They also questioned van Niekerk’s status as a registered proxy for the business. At this stage, one would have forgiven Cornelia and her client if they chose to back off, settle the fines and kowtow to the might of the governing authorities. But that was not to be.
Three years of court battles later, with every trick in the book thrown at them, the applicants stood their ground and with impeccable evidence, tenacity and the rule of law under their arm, they persevered.
On Friday February 24, 2017, Judge Willem Prinsloo issued the judgment which confirmed that the traffic authorities were wrong to conduct themselves as they had done. Furthermore, they should stop blaming the inefficiencies of the Post Office and instead, the traffic infringement authorities should do their work properly or suffer the consequences of not being able to enforce the payment of fines.
What does this mean? Essentially, it means among a number of other outcomes that almost every traffic violation issued by metros (which have not met the deadlines or followed due process) has been issued unlawfully. These fines should now be retracted and if they don’t do so, I believe Cornelia will head back to court to force them to do so.
This has been a significant win for the public and for the rule of law.
This judgment has also been a blow to the metros. It means that no enforcement orders may be introduced to block the public from having their vehicle licences renewed unless the traffic management authorities can prove they have followed due process, including final notices by registered mail.
The public owe immense gratitude to Cornelia, her client, her legal team and advisers. In saying that, so does the Minister of Transport and the RTIA. If the authorities were wise, they would thank Ms Van Niekerk for kicking some sense into their irrational and impractical system, along with their illegal processes. They might even turn the focus of their next traffic management conference on its head and introduce an outrageous theme called: “road safety before revenue”. What they should also do is invite Cornelia to be a guest speaker at their next conference.
Somehow I doubt it. Instead, they will more likely see Cornelia’s work as an impediment to their revenue generating intentions, and do all they can to change the regulations to circumvent the problem. It won’t be easy though, and in the meantime road carnage and fatalities will continue to climb, but this time with less revenue in the bank. DM
Wayne is an entrepreneur, businessman and activist harboured in one soul. He is the Chairman of OUTA and has served as a Board member of the Tourism Business Council of SA. His recent activities include Chief Executive at Avis and President of SA Vehicle Renting and Leasing Association. Family, travel, a dram of Scotland's finest and some erratic golf makes him smile.
Don't believe Han Solo's evasion of Empire TIE Fighters. There are many miles of vacuum space between each asteroid in a field.