South Africa’s big traffic fine legal mess – New Traffic punishment law may be unconstitutional


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A messy battle over South Africa’s new traffic fine law is headed for the Constitutional Court. Three separate applications involving different government entities are now before the court, causing major confusion.

On 13 January 2022, the Pretoria High Court ruled in favour of the Organisation Undoing Tax Abuse (Outa), declaring the Administrative Adjudication of Road Traffic Offences (AARTO) Act and the AARTO Amendment Act unconstitutional and invalid.

AARTO and its envisioned amendments aim to change how traffic offences and infringement are issued in South Africa.

This includes a demerit system that would punish motorists with points on their licence for each traffic infringement.

Amass enough points, and your licence could be suspended. Get your licence suspended enough, and it could be cancelled.

However, primarily AARTO hoped to switch most traffic violation handling into administrative processes instead of legal ones.

But a judge has ruled that the law unconstitutionally intruded on provincial and local governments’ executive and legislative powers.

Outa explained that standard procedure when a law is declared unconstitutional requires the High Court judgment of unconstitutionality to be confirmed by the Constitutional Court.

On 3 February, Outa applied for the confirmation.

The four respondents in the matter then had 15 days to file a notice of intention to oppose Outa’s application.

That included the ministers of transport and cooperative governance and traditional affairs, the Road Traffic Infringement Agency (RTIA), and the RTIA Appeals Tribunal.

But only transport minister Fikile Mbalula filed a notice to oppose the confirmation on 24 February.

The minister was also required to file an answering affidavit explaining the reasons for the appeal within the next 15 days. However, by 12 April, this had still not been done.

“It is thus unclear whether the Minister is, in fact, opposing Outa’s application,” the organisation stated.

In addition, no other parties have filed an intention to oppose the confirmation of invalidity.

Separately, the transport minister and RTIA filed their notices of appeal to the High Court’s order at the Constitutional Court on 7 February 2022.

On the same day, Outa filed a notice of intention to oppose the appeal.

“The matter shall be disposed of in accordance with directions given by the Chief Justice. These directions are still awaited,” Outa said.

Outa said it was confident in its case and had asked that the matter be heard as quickly as possible so that there was a decision before Aarto rolled out nationally on 1 June 2022.

RTMC comes out of nowhere

On 8 March, the Road Traffic Management Corporation (RTMC), a state-owned entity that reports to the Minister of Transport, applied to the Concourt for permission to intervene and be joined as the fifth respondent in the case.

The RTMC wants to join the appeal against the High Court judgment. Failing that, it intends to oppose Outa’s application for confirmation of constitutional invalidity.

On 15 March, Outa filed a notice of intention to oppose the RTMC’s intervention in the case. It followed up with its answering affidavit supporting this opposition on 7 April.

In this affidavit, Outa’s Advocate Stefanie Fick highlighted RTMC’s failure to participate in the High Court matter since it was launched in July 2020 and heard in October 2021.

“Between the institution of the matter and the hearing, the litigation received extensive publicity in national and regional newspapers, on radio and in news broadcasts on television. The media also reported on the court hearing in October 2021,” Fick said.

“The RTMC is a state-owned enterprise whose shareholders are the Minister of Transport (the first respondent in the matter) and the provincial MECs for Transport, who serve on a shareholders committee that meets four times a year and is involved in the governance of RTMC.

“In light of the close relationship between the minister, the shareholders’ committee and the RTMC, and the widespread media coverage of Outa’s constitutional challenge to Aarto and the Amendment Act, it is inconceivable that the RTMC was not aware of the litigation when it was first instituted or that it did not become aware of it before 18 October 2021, the date of the hearing in the high court,” Fick stated in the affidavit.

Fick said the RTMC should not be allowed to intervene and argue the previous matter that the high court had decided on, again.


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