If you are one of the many South Africans who are not completely sure what the AARTO Amendment Act is and what it means in your life, do not despair, you are far from alone.
Below is an informative, simplified guide for you:
What does “AARTO” stand for?
“AARTO” is an acronym for the “Administrative Adjudication of Road Traffic Offences” Act. It is not an entity. It is legislation. Government intends implementing it nationally from 1 July 2021.
What is the AARTO Act used for?
The AARTO Act replaces the Criminal Procedure Act in prosecuting road traffic offences which are categorised as infringements (misdemeanours). It is administered by the “Road Traffic Infringement Authority” (RTIA), which is a State-Owned Entity funded almost solely by traffic fines. It does not deal with serious road traffic offences like “drunken driving”, reckless or negligent driving, etc. Those offences are still prosecuted criminally.
How does the AARTO Act differ from the Criminal Procedure Act?
It differs in many ways, but one of the most important ways it does so is by removing the authority of the Magistrates’ Courts to preside over criminal trials for so-called “minor” road traffic offences created by road traffic and transportation laws. Instead, it employs an administrative system to escalate traffic fines from issuing to finality (collection or cancellation). Currently, the Criminal Procedure Act applies everywhere in South Africa except Johannesburg and Tshwane.
I heard that the AARTO Act is a points-demerit system, is this true?
Yes, the AARTO Act includes a points-demerit system which has not been applied in Johannesburg and Tshwane during the more than 12 years’ “pilot” implementation. However, the legislation’s main purpose is and remains to migrate traffic fines out of the courts and into an administrative scheme.
What do you mean by “administrative scheme”?
To put things simply, an administrative scheme is one where you, the motorist must act or react, using prescribed forms if/when you stand accused of committing an infringement. If you fail to act, this will not stall the system, it will ensure that it progresses to finality.
Be warned: Ignoring a traffic fine will prejudice you. Points will be applied, and licensing transactions will be blocked if you fail to act if/when you receive a traffic fine.
But surely, I have the constitutional right to be presumed innocent?
Regrettably, a full Court of the Pretoria High Court has ruled that persons who stand accused of committing road traffic infringements do not have the constitutional right to be presumed innocent until proven guilty. According to the Court, a person who is prosecuted using the AARTO Act is not an “accused person” but is rather a participant, albeit an unwilling one, in an administrative scheme. This means that it is up to you to prove that you did not commit an infringement, not up to the State to prove that you did.
What stages does the AARTO Act have?
The AARTO Act has three stages:
- The infringement notice;
- The courtesy letter; and
- The enforcement order.
There is no “warrant of arrest” included in the AARTO Act. Do not let the SA Post Office or a traffic cop tell you otherwise!
If they are not served in person, ALL documents issued in terms of the AARTO Amendment Act are deemed to have been served on the tenth day after they are “sent”. They may be served in person, by any electronic means (e.g., by email/SMS/Social Media/etc.) or posted.
The infringement notice
An infringement notice is issued when you are stopped by a traffic cop, caught on camera, or issued with a parking fine.
- When a traffic cop issues a fine to you after stopping you following an alleged infringement or in a roadblock, you are served with it immediately.
- When a parking fine is issued, the associated infringement notice must be issued and served on you within 60 days of the alleged infringement.
- When an infringement is caught on camera, the associated infringement notice must be issued and served on you within 60 days of the alleged infringement.
- Within 32 days of the actual or presumed service of an infringement notice, you may:
- Pay the fine at 50% discount and have the demerit points applied to your licence;
- Apply to pay in instalments;
- Make a written representation to the RTIA why you should not be held accountable for the infringement; or
- Nominate the driver if you were not driving the vehicle at the time of the alleged infringement.
- NB: There is a school of thought which holds that something called the “Infringement Penalty Levy” (IPL) of R100 will be added when an infringement notice is issued.
- The draft AARTO regulations do not make it clear when this so-called “levy” will become payable, or whether it will ever be refundable.
- Our assumption is that it will become payable when other administrative processes are applied.
- No discount applies to the IPL – it must be paid in full.
The courtesy letter
If you do not react to an infringement notice within 32 days of its actual or presumed service, a courtesy letter will be issued. A courtesy letter:
- Removes the 50% discount;
- Adds R100 to the total payable by way of a fee for the courtesy letter;
- Removes the ability for you to nominate the driver if you were not driving the vehicle at the time of the alleged infringement;
- Allows you to, within 32 days of the actual or presumed service of the courtesy letter:
- Pay the full penalty, together with the R100 fee for the courtesy letter, together with the R100 for the IPL; or
- Make a written representation to the RTIA why you should not be held accountable for the infringement.
- NB: No discount applies on the IPL or the courtesy letter fee.
The enforcement order
If you do not react to a courtesy letter within 32 days of its actual or presumed service, an enforcement order will be issued.
- An additional R100 is added to the cumulative penalty, IPL, and fee for the courtesy letter when an enforcement order is issued.
- When an enforcement order is issued, the demerit points are applied to your driving licence (natural persons) or vehicle licence disc (juristic persons). It also blocks all licensing transactions – e.g., driving licence issuing or card renewal, professional driving permit issuing or renewal and vehicle licence disc issue or renewal.
- You may:
- Pay the full amount applicable on the enforcement order; or
- Apply to the RTIA to have it revoked.
- NB: No discount applies on the IPL or the enforcement order fee.
Making a written representation
You may make a written representation regarding why you should not be held accountable for the alleged infringement at any time before an enforcement order is issued.
- You must use an AARTO 08 form to do this and submit it to the RTIA.
- The address/es to which the completed form must be sent are printed on the form.
- Your representation must include everything you wish to rely on if the matter is rejected and escalated to the Tribunal.
- You may not ask for the discount to be reinstated.
- You may not simply write a letter or send an email. Doing so will result in it being ignored.
- If your representation is successful on the grounds that any AARTO document was not lawfully served on you, it will not have the effect of cancelling the infringement. Instead, the authority responsible for not complying with the AARTO Act may re-issue the relevant document and serve it on you lawfully, provided this is done within 6 months of the alleged infringement.
- If your representation is successful, the entire infringement, together with any fees that have accrued on it will be cancelled, however, it is not clear whether the IPL will also be written off.
What if my representation is rejected?
If your representation is rejected, you must either pay or apply to the part-time AARTO Tribunal (comprising nine persons) for review or appeal of the representations officer’s decision.
- To apply to the Tribunal, an AARTO 10 form (yet to be finalised) must be used.
- You may not use the current AARTO 10 election to be tried in court form.
- You must apply within 30 days of the rejection of your representation.
- You may not skip the process of making a written representation.
- A review or appeal does not equate to a [criminal] trial.
- If the Tribunal upholds your review or appeal, presumably it may decide what to do about the infringement and any penalty, fees and levy raised on it. This is because the Tribunal may make its own rules and because it has not yet been established, no rules are currently available.
- If the Tribunal dismisses your review or appeal, the RTIA must issue an enforcement order.
What about my constitutional right to review or appeal the decision of the Tribunal to a Court of Law?
The AARTO Amendment Act provides that you may apply to the Magistrates’ Court for review or appeal of the Tribunal’s decision, only if you do so within seven days of its decision.
- A review or appeal does not equate to a criminal trial where the State must prove your guilt.
- While the Magistrates’ Court considers the review or appeal of the Tribunal’s decision, the enforcement order remains in place.
- If the Magistrates’ Court upholds your review or appeal, it will decide on the remedy.
- If the Magistrates’ Court dismisses your review or appeal, the AARTO Amendment Act effectively forbids any other review or appeal to a higher court.
How does the points demerit system work?
The points demerit system is administered by the RTIA and serves as a permanent record of a driver, operator or juristic entity’s driving record.
- Every type of licence or other document starts with zero demerit points.
- Different infringements carry different numbers of demerit points:
- Depending on the categorisation of the infringement, each one carries up to 5 demerit points.
- Some infringements have no demerit points associated with them.
- Most criminal offences carry 6 demerit points.
- As infringements are incurred, the requisite number of demerit points are assigned to them.
- Demerit points are applied when the fine is paid, an enforcement order is issued, or the person who was charged with a criminal offence is convicted by a court of law.
- NB: Paying the fine does not prevent the imposition of demerit points. It causes them to be applied.
- Demerit points are applied to learners’ licences, driving licenses, vehicle licence discs, operator cards or road transport permits.
- A learner driver may accumulate up to 6 demerit points without losing his or her driving privileges.
- A fully licensed driver may accumulate up to 15 demerit points without losing his or her driving privileges.
- A juristic entity that fails to nominate the driver of a vehicle it owns accumulates demerit points against the relevant vehicle’s licence disc.
- Juristic entities’ vehicle licence discs may accumulate up to 15 demerit points before the vehicle’s licence disc is suspended.
- An operator accumulates demerit points on its operator card.
- An operator card may accumulate up to 15 demerit points before it is suspended.
- A road transport operating permit accumulates demerit points on its operating permit.
- An operating permit may accumulate up to 15 demerit points before it is suspended.
- Demerit points are reduced at a rate of one point every three months until they again reach zero.
- When the threshold specified above is exceeded, the relevant document is suspended for three months in respect of each demerit point that has been accumulated, which is over the threshold.
- During the suspension period, the affected person may not drive, or the affected vehicle may not be driven.
- Doing so is a criminal offence.
- Allowing another person, whose driving licence has been suspended, to drive your vehicle is subject to a fine of R3,500.
- During the suspension period, a person, operator or juristic person may not apply for a driving licence, professional driving permit, motor vehicle licence disc, operator card or any other permit, card or licence disc issued in terms of road traffic legislation or transport legislation.
- Except for a vehicle licence disc and an operating permit, the relevant document may be suspended twice in the lifetime of its holder.
- Except for a vehicle licence disc and an operating permit, if the demerit points threshold is again exceeded after two suspensions have already occurred, the relevant document is cancelled.
The Rehabilitation Programme
The RTIA administers a so-called Rehabilitation Programme:
- It is only available to persons, operators, or juristic entities whose relevant document has already been cancelled. It is not available to anyone at any time before their document has been cancelled.
- Successful completion of the programme reduces the person’s, operator’s or road transport permit holder’s total demerit points by four points.
- No details regarding what the rehabilitation programme involves or how much it will cost have yet been specified.
For full details regarding AARTO and its Amendment Act, visit www.aarto.co.za.
Written by: Howard Dembovsky; Chairperson, Justice Project South Africa