AARTO has ‘officially’ come into being but will be a “phased in” programme according to Transport Minister Fikile Mbalula.
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“Transport Minister Fikile Mbalula recently announced a phased-in approach to the roll-out of AARTO but these phases can really only be implemented once the regulations are finalised and enacted. This process may delay the final implementation of the system scheduled for July 2022,” said the Automobile Association of South Africa on 01 July.
Minister Mbalula says there are four phases to the AARTO roll-out. According to Minister Mbalula,
Phase 1 will run from 01 July until 30 September 2021 during which seven AARTO service outlets will be established nationally, the eNATIS will be enabled to collect AARTO payments, and will include a communications campaign to educate motorists on AARTO;
Phase 2 will run from 1 October to 31 December 2021 during which 67 local metropolitan authorities will ‘come online’ for AARTO processing, the adjudication process and Appeals Tribunal will start functioning, 18 more AARTO service outlets will be established;
Phase 3 will commence on 1 January 2022 and run until 30 June 2022 during which 144 municipal areas will be added to the AARTO system, and;
Phase 4 will begin 1 July 2022 and will see the introduction of the Points Demerit System as well as the rehabilitation programme for repeat offenders which serves as the backbone of AARTO.
“Naturally the planned implementation of AARTO will not happen today as previously communicated. The Minister noted several reasons for this including the suspension of senior managers at the Road Traffic Infringement Authority (RTIA)for maladministration – including that of its Registrar and CEO, Japh Chuwe – and the impact of COVID-19. Today’s communication, though, should have been made weeks ago as many people believed it was coming into force today. Despite this, we at least have a better roadmap going forward, but much of that relies on the finalisation of the regulations which must happen before any meaningful roll-out can occur,” noted the Association.
Offences such as not indicating, crossing a solid barrier line, speeding and similar ‘misdemeanour’ charges have been removed from the Criminal Procedure Act and handed to the RTIA for processing. Serious offences such as drunken driving, reckless or negligent driving will still be prosecuted criminally.
Besides changing the system to an administrative process, the single most important aspect of AARTO is the introduction of driver demerit points for offences committed.
According to Howard Dembovsky from the Justice Project South Africa: “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.
“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.”
In terms of AARTO, you are GUILTY until you can prove yourself innocent!
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.
In a previous statement on the roll-out of AARTO the Automobile Association noted the last public pronouncement on AARTO was on May 19, 2021, when the Director-General of the Department of Transport, Alec Moemi, briefed the National Council of Province’s Select Committee on Transport, Public Service and Administration, Public Works and Infrastructure about the Department of Transport’s Annual Performance Plan.
During that briefing, Moemi said Phase 1 of AARTO would commence on July 1. According to him, this phase entails “setting up the registry and all requirements, ultimately working towards the introduction of a demerit system. There are five phases for the rollout process.”
“The introduction of AARTO is a major development for road users in South Africa and the RTIA and the Department of Transport must do more to inform the public on what is happening. It’s only fair that details on a system that will have such significant impacts on motoring in the country are communicated clearly so everyone knows precisely where they stand in relation to the new rules,” says the AA.
Other than it is happening, nobody really knows what is happening!
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!” says Dembovsky.
“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 (eg, by email/SMS/Social Media/etc.) or posted.”
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.
There is also something called the ‘Infringement Penalty Levy’ (IPL) of R100 that will be added when an infringement notice is issued although 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 it will become payable when other administrative processes are applied and that no discount applies to the IPL – it must be paid in full,” says Dembovsky.
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.
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.
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 representation 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 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.