High Court of South Africa, Gauteng Division, Pretoria, ruled that the AARTO Act 46 of 1998 and the AARTO Amendment Act, 4 of 2019 are unconstitutional and invalid.
After reviewing the Judgement in full, the Judge can only order the Acts unconstitutional and invalid based on the papers submitted for the court case and the arguments done accordingly in court.
The basis of OUTA’s case was “whether Parliament (national government) had the legislative competence to legislate on matters relating to provincial roads or traffic or in relation to parking and
municipal roads at local level and whether the two aforementioned Acts are in violation of the exclusive provincial legislative competence conferred upon provincial and local government in terms of
section 44(1)(a)(ii) of the Constitution”
In short, OUTA’s case was that one municipal area does not have jurisdiction over another, and thus an infringement committed in Cape Town cannot be issued by the National Government (in simple terms).
The full summary of the Judgement is herewith:
“ This is a constitutional challenge to the Administrative Adjudication of Road Traffic Offences Act  (the AARTO Act) and the Administrative Adjudication of Road Traffic Offences
Amendment Act  (the Amendment Act). The question before this court is whether Parliament (national government) had the legislative competence to legislate on matters relating to provincial roads
or traffic or in relation to parking and municipal roads at local level and whether the two aforementioned Acts are in violation of the exclusive provincial legislative competence conferred upon
provincial and local government in terms of section 44(1)(a)(ii) of the Constitution.
 The primary relief sought in the notice of motion is that the AARTO Act and the Amendment Act be declared unconstitutional and invalid. In the alternative to this relief, the
applicant seeks an order declaring section 17 of the Amendment Act unconstitutional and invalid.
 This dispute is not about the desirability of this legislation which provides for a system that, inter alia, provides for the penalising of drivers and operators of vehicles who are
guilty of an infringement or offences through the imposition of demerit points which may lead to the suspension and cancellation of driving license.
 This dispute is confined to the narrow issue of the legislative competence of national government to enact these two Acts. In essence it is submitted that the two Acts are unconstitutional
in that they trespass on the narrow constitutional areas over which the national government has no legislative or executive power.”
To date, we have not seen the confirmation from the Constitutional Court who will confirm the High Court Ruling. The Department of Transport cannot Appeal the ruling either, until such time as the Constitutional Court confirms the ruling:
The Road Traffic Infringement Agency (RTIA) says the provisions of the Administrative Adjudication of the Road Traffic Offences (Aarto) Act are still enforceable
Govt to appeal high court ruling that AARTO Act is unconstitutional
AARTO ruling prevented 'unlawful intrusion' on executive and legislative competence
With the High Court having ruled on AARTO, what happens to my outstanding traffic fines?
Background of the AARTO Act
AARTO is an acronym for the "Administrative Adjudication of Road Traffic Offences".
This Act was enacted in 1998 and started with a "pilot phase" in Pretoria ten years later, in June 2008 under the administration of the Tshwane Metropolitan Police Department (TMPD).
In November 2008, the Johannesburg Metropolitan Police Department (JMPD) came on board as the second municipal district to adopt AARTO as its functional operation for dealing with traffic offences but only managed to get the process right with effect from March 2009. They then promptly went on to violate the AARTO Act by continuing to issue notices under the Criminal Procedure Act and all fines issued by them between 1 November 2008 and 11 February 2009 were summarily cancelled and refunds of fine monies ordered to be repaid. As of now, this has not been completed.
The "pilot phase" ended on 1 April 2010 and some major changes in application of the Act came into play on the part of the JMPD. Fines issued to Juristic persons (proxies for companies) suddenly got tripled by one of the JMPD only whilst the TMPD and RTMC continued not doing so. A fine that was R250 under the "pilot phase" suddenly and without warning became R750 in the case of vehicles registered to a company when issued by the JMPD.
This is 100% legitimate in terms of the AARTO regulations when the points-demerit system comes into play and is one of the many nonsensical provisions that have been enacted. For now though, the points demerit system is not in play, so why then it is that the JMPD triples fines issued to juristic persons whilst the TMPD does not remains a point of conjecture.
AARTO applies differently to private individuals and companies and also to learner drivers and fully licensed drivers. This section will demystify AARTO for you as far as is possible.
AARTO does not replace the National Road Traffic Act - it merely removes its administration under the Criminal Procedures Act and replaces it with AARTO for less serious offences. Serious offences still fall under the Criminal Procedure Act, which means that you will still get a criminal record if you are convicted for one of these offences.
AARTO Quick Facts
AARTO does not replace the National Road Traffic Act of 1996, it merely replaces its practical enforcement and administration. It also adds a points-demerit system to drivers' licenses.
Traffic fines under AARTO no longer involve summonses or warrants of arrest. Waiting for a summons to arrive as has been the practice of many motorists in the past will land you in hot water that severely affects the amount that you will have to pay.
You have 32 days from receipt of an AARTO infringement notice to take the 50% discount. At 33 days, 100% of the fine, as well as any other fees AARTO charges you becomes payable.
Paying a fine at any stage constitutes admission of guilt and the associated points will be added to your license. Nothing whatsoever compels you to simply admit guilt if you are not guilty of the infringement and you must follow the procedures if you feel that you are not guilty.
You absolutely cannot be arrested or detained at roadblocks for outstanding AARTO fines. Traffic authorities may not force you to pay at roadblocks since none of them are appointed as the Sheriff of the court. You must however be aware of the fact that not dealing with your infringement notices will cost you in the end.
Execution of Warrants of Execution can only be exercised by the Sheriff and not by police or traffic officers. If you are ever detained in any way at a roadblock on the strength of an outstanding AARTO infringement notice, this will constitute unlawful arrest.
Procedures for exercising your right to representation, nomination of the driver etc. have been legislated and you must follow these procedures to the letter. Do not even attempt to take short-cuts or not follow the instructions for submission of these documents. A letter will no longer suffice.
Any AARTO fine not issued to you in person must be issued within 40 days of the alleged offence. These must then be sent by registered post or delivered in person.
Not collecting registered post is not at all advisable since the Act presumes and deems that delivery has taken place after 10 days from date of posting.
Every driver starts off with 0 points on their license and points are accumulated to a maximum of 12 points.
Every point over 12 constitutes a suspension of your driving licence for 3 months. So if you accumulate 15 points for example, your driving licence will be suspended for 9 months.
Points that have been accumulated reduce at a rate of 1 point for every 3 months that you receive no further infringement notices. If you have accumulated 6 points, it will take you 1½ years to get back to zero.
There is no other way to reduce the points on your driving licence. AARTO makes no provision for driver education or errant behaviour correction in any other way than you educating yourself and staying infringement-free.
Driving whilst banned (your driving licence is suspended) is a criminal offence for which you will be arrested. If you are caught and arrested for this you face a hefty fine and possible imprisonment and will also receive an extra 6 demerit points - which represents a further 1½ years suspension of your license on top of it.
Only a court may sentence you to a fine in excess of R1500 (one thousand five hundred rand) and points over 5 points. Any traffic officer who tells you otherwise is most probably looking to solicit a bribe.
Corruption and paying bribes is not the answer and you must remember that if you pay a bribe to get out of a traffic fine and avoid demerit points you are as much a criminal as the person you are bribing.
You can get professional help from JPSA, including educational seminars and inspection of your fines. Please see our services page for more details.
The intentions of AARTO
CrashRoad traffic fatalities in South Africa are amongst the highest in the world. That is a sad, sad fact.
The AARTO Act seeks to tackle this problem by imposing hefty fines coupled with demerit-points on driving licences which will lead to the suspension of driving licences where drivers infringe on the law repeatedly.
At face value, this is a very sound principal and there are very few reasonable people who would oppose a system that has the effect on reducing road fatalities.
Points-demerit systems are in force in many countries in the world and have largely achieved far greater driver compliance with the law.
The South African AARTO system is loosely based on a combination of some of the other systems that are in force around the world. Penalising errant drivers in such a way that they could actually lose their driving licences works very well in first world countries like Canada, Australia, the USA and Europe.
Issuing of AARTO 01, 02 an 03 infringement notices (fines)
There are only a few ways in which an infringement notice may be issued to you.
By a traffic officer at the site of the alleged infringement. (AARTO 01 or 02)
By a traffic authority who has captured an alleged infringement electronically - i.e. by camera. (AARTO 03) within 40 days of the alleged infringement and serving it on you via registered mail. There is NO PROVISION for personal service of AARTO 03 infringement notices.
By a traffic authority issuing you with an infringement notice sometime after you have been issued with an AARTO 31 (unattended vehicle) notification. (AARTO 03) within 40 days of the alleged infringement and serving it on you via registered mail. To reiterate, there is NO PROVISION for personal service of AARTO 03 infringement notices.
In the case of a traffic officer issuing you with an infringement notice, the AARTO lifecycle comes into play immediately when the infringement notice is issued.
In the case of an infringement notice that is issued after the fact, the traffic authority may issue the infringement notice up to 40 days after the alleged infringement occurred. If they take longer than 40 days to issue the infringement notice, then it is invalid and unlawful. The lifecycle of the AARTO process then comes into effect from the day on which it is delivered to the accused by registered mail, or 10 days after posting via registered mail.
Delivery of infringement notices
When a traffic officer issues and infringement notice to a person, the accused's particulars are recorded on the infringement notice and they are obliged to sign for the infringement notice.
However, when an AARTO 03 is issued after the fact - as in electronic enforcement (camera fines), these must be sent to the accused by means of registered post.
NoteIt is important to note that an infringement notice sent via registered post is deemed to have been delivered to you 10 days after posting. This is precisely why registered mail is required for service of AARTO 03 infringement notices.
There is absolutely no point or benefit to not collecting infringement notices sent to you and not doing so merely self-deprives you of any of your rights which are available under AARTO.
Discounts for early settlement of fines
If a fine is paid within 32 days of the receipt of the infringement notice, then a 50% discount may be taken by the person who pays the fine.
Paying your fine early does not mean that the associated points will not be added to your driving licence, it just means that you will have to pay less than if you settle later or are unsuccessful in challenging your fine.
Removal of the criminality of lesser traffic offences
All traffic offences have, prior to the introduction of AARTO been administered by the Criminal Procedures Act. Under the "old" system, traffic authorities were compelled to prosecute offenders in accordance with this Act and those who did not pay their fines could be summonsed to court for fines as low as R50.
The AARTO Act completely removes the criminal factor from the more minor traffic infringements and replaces them with civil proceedings.
The consequences of not paying your fines
No longer will Metro Police or other traffic authorities be entitled to set up roadblocks and force people to pay fines under threat of arrest. Doing so is in fact a severe infringement of your rights under AARTO and constitutes intimidation and, if you are detained in any way, unlawful arrest for which you may institute civil litigation against the traffic authority, the Minister of Police, the Municipality and the officer concerned.
Even though much of what has happened in the past at roadblocks has been legally questionable, the behaviour, intimidation and extortion of the past is now outlawed under AARTO. The threatens leveled on motorists by Director Gerneke of the JMPD with respect to "inconveniencing them" is nothing short of intimidation and extortion and shows his complete willingness to break the law in order to attain his objectives of revenue generation for the Johannesburg Metropolitan Municipality.
This does not mean that the authorities cannot come after you though. The migration to civil, administrative procedures simply means that you cannot be arrested.
Failing to pay your fine within the allotted 32 day discount period will result in the consequential processes. Paying it will result in the associated points being added to your driving licence.
If you are in any way harassed at a roadblock with respect to outstanding AARTO infringement notices, contact JPSA immediately so that we may assist in gaining the appropriate legal remedy for you.
The points-demerit system
A big part of AARTO, and the most significant change to traffic law in South Africa is the points-demerit system.
Demerit-points on driving licences is not a new concept and is in force in many countries in the world, so this will not be a first.
Every driver starts out with 0 points on their driving licence and a predetermined amount of points are added to their driving licence in accordance with the allocated points in the AARTO charge book for each infringement they commit.
A maximum of 12 points may be accumulated on your driving licence and on the 13th point, your license will be suspended for 3 months.
If your driving licence is suspended three times, it will be cancelled and destroyed. Only after the relevant ban period has elapsed will you be allowed to re-sit your learner's and driving licence - from scratch.
How do demerit-points get reduced/deducted off your license?
Because you start with 0 points and accumulate them with each infringement, points are deducted from your demerits over time.
Earning a clean slate on your driving licence is based solely on time in South Africa because the AARTO Act only makes provision for the reduction of points at a rate of 1 point for every 3 months that you do not receive another point-demerit.
If you do receive another point/s within that 3 month timeframe, the clock gets reset to zero and the countdown restarts.
There is no other provision or legal way for you to reduce your points in South Africa.
Who runs AARTO and how is it administered?
The primary custodians of AARTO are the Road Traffic Management Corporation (RTMC) and they have been tasked with rolling it out and educating traffic authorities with respect to its operation.
They have also been tasked with educating the public about it but have almost completely neglected this function with the possible exception of a few radio adverts and appearances on talk shows. In December 2010, the RTMC released a flawed outline of AARTO which they called "AARTO made easy"
The functions of AARTO on an everyday basis are run by the individual traffic authorities in South Africa, of which there are over 200 around the country.
AARTO representatives etc. are appointed and employed by those traffic authorities.
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