November 10, 2023

Our roads and the law

AARTO. What does the national roll-out mean for you?

The Constitutional Court has now confirmed the legality and validity of the AARTO Act.

The national rollout of the Administrative Adjudication of Road Traffic Offences Act 46 of 1998 (“AARTO Act”) was uncertain since the North Gauteng High Court in Pretoria ruled, in January 2022, that the AARTO Act was unconstitutional. In a recent turn of events, the Constitutional Court overturned the declaration of unconstitutionality by the High Court and confirmed the legality and validity of the AARTO Act.

Consequently, the Road Traffic Infringement Agency (“RTIA”) is now empowered to proceed implementation of the AARTO Act across the nation. Currently, the AARTO Act only applies in the cities of Johannesburg and Tshwane. The demerit points system does not apply yet, but will be implemented together with the nationwide roll-out of the AARTO Act.

In a statement from the Minister of Transport, Ms.Sindisiwe Chikunga, on 20 July 2023, she stated that a phased roll-out will be used. The aim is to have 69 municipalities where the AARTO Act will apply by the end of 2023, with the full national rollout of the AARTO Act to take place by July 2024.

Whether you are travelling to a district where the AARTO Act is applicable during the holidays or wondering what the implications of the AARTO Act are, this article aims to answer some of the questions you may have.

What is the main objective of the AARTO Act?

The high rate of accidents and fatalities on the roads prompted the introduction of the AARTO Act, which is meant to enforce compliance with the rules of the road and protect law abiding road users from those who repeatedly disregard the rules of the road. The State has also emphasised the advantage of removing the adjudication of road traffic offences from the courts, thereby relieving the court system to a certain extent and placing the burden on one central agency.

Will road and traffic violations still be considered as criminal offences under the AARTO Act?

Currently, with the exception of Tshwane and Johannesburg, all road and traffic violations are dealt with as criminal offences and the general criminal procedures will apply. Road and traffic violations would be prosecuted by the National Prosecuting Authority in the Magistrates' Courts. For example, a person will be charged with a traffic offence and be issued a document (most often in the form of a fine) giving the person the option to either admit guilt and pay a fine, or to appear in court on a specified date where s/he will be presumed innocent until s/he has been found guilty by a court.

The AARTO Act classifies road and traffic violations under two categories that are characterised as “infringements” and “offences”. The AARTO Act has made strides in decriminalising less serious road and traffic violations. This means that such less serious “infringements” will be subjected to an administrative process rather than a criminal process. However, the AARTO Act does not take away criminal consequences completely. Serious violations continue to be regulated by the criminal procedures and will be considered as “offences”. An example of a serious offence that will still be dealt with in terms of the criminal procedures is driving under the influence of alcohol and excessive speeding (such as driving at more than 90 km/h in a 60 km/h zone). 

Infringements are handled through administrative processes, which will start with an infringement notice being issued under the AARTO Act. This infringement notice will be handed to a motorist in person (such as when s/he is pulled over on the road) or the notice will be sent to the registered owner of the vehicle through post (such as an infringement caught on camera). 

An infringement notice will set out the details of the infringement and will usually contain the option to pay a fine. There are certain ways to deal with the fine, which must be done within a period of 32 days:

>     Pay the fine at a discounted rate as prescribed from time to time (currently 50%).

>     Apply to pay the fine in instalments.

>     Make written representations to the RTIA indicating why you should not be held liable for the alleged infringement.

Failure to respond to the fine in one of the ways outlined above (or otherwise set out in the infringement notice) will result in the RTIA addressing a courtesy letter to the motorist or registered owner of the vehicle. The consequences of a courtesy letter are that the 50% discount will be removed and an additional fee can be added to the total amount due. A further period of 32 days will be allowed to respond or attend to the courtesy letter

Failure to act within 32 days of the courtesy letter will cause the RTIA to issue an enforcement order. Once this process is initiated, the infringer will be barred from making any licencing transactions on the eNaTIS system and the infringer will not be able to renew his/her licence, permit or licence disc until the enforcement order has been attended to or cancelled. An additional fee will also be payable once an enforcement order is issued. The infringer may apply for the enforcement order to be withdrawn within 32 days of the date reflected on the order.

If the enforcement order is not attended to accordingly, the RTIA can issue a warrant that will lead to the attachment and selling of personal belongings (to pay the fine), removal of licence disc from your vehicle and so on.

Where does the demerit points system fit in?

In essence, the demerit points system has a person start at zero and a person will be allocated demerit points (ranging from one to six) linked to road and traffic violations.  Road users may incur up to 12 points (proposed amendments might increase it to 15 points) without yielding any consequences. Once the threshold is exceeded, the infringer's licences or permits will be suspended for three months for every demerit point in excess of the threshold.

It will be a criminal offence for a person to drive while his/her driver's licence, operator card or licence disc is suspended, which will be punishable by a fine or direct imprisonment. The infringer may also not apply for the renewal of any licences or permits during the suspension period. If a driver's licence or permit is suspended more than once, it will be cancelled. This means that a person must start from scratch to obtain a new driver's licence (getting a learner's licence and taking the driver's licence test again). 

Demerit points are reduced by one point every three months. It is important to note that it is not possible for anyone to incur a negative number of demerit points, and there is no reward for observing and abiding by the rules of the road.

The demerit points will only accrue in certain instances, such as:

>     when a fine is paid;

>     the fine is elected to be paid in instalments; and

>     an enforcement order has been issued or the infringer has been found guilty by a court.

The demerit points system is not yet in effect and the anticipated date of it becoming a reality is July 2024. The demerit points system will apply in conjunction with payment of a fine and/or criminal proceedings for road and traffic violations.

With the national roll-out of the AARTO Act, it will have an impact on every driver and vehicle owner. It is important to keep an ear on the ground in the next following months and keep updated on the national roll-out.

Did you know… No licencing department may refuse to issue or renew a driver's licence, permit or vehicle licence disc if the alleged infringer has not been issued with a courtesy letter from the RTIA.