The Administrative Adjudication of Road Traffic Offences Act (AARTO) and the AARTO Amendment Act have been declared unconstitutional in a recent judgment handed down in the Pretoria High Court.
AARTO aimed: to introduce a point demerit system for driving offenses in order to lessen the prosecution of road traffic offenses, to create a new authority in charge of fine issuing and collection, to provide an avenue of adjudication separate from the court system for traffic offenses, and ultimately to improve road safety. AARTO was to take effect in phases, to be implemented nationally from 1 July 2021 to 1 July 2022 after having been trialed for nearly a decade in Tshwane and Johannesburg. Although the Act was promulgated years ago, AARTO has not had an exceptional lifespan before being declared unconstitutional. AARTO has been the subject of public conversation for the point demerit system it would introduce to drivers licenses, however this was not the cause of the Court’s decision to declare it unconstitutional in the recent case before the Pretoria High Court.
The Applicant in this matter was the Organisation Undoing Tax Abuse (OUTA) and the Respondents were the Minister of Transport, Minister of Co-Operative Governance and Traditional Affairs, the Road Traffic Infringement Authority and the Appeals Tribunal (“the government”). In early January of 2022, the Pretoria High Court ruled that AARTO and the AARTO Amendment Act were unconstitutional as they unlawfully intrude upon the exclusive executive and legislative competence of the local and provincial governments. That is, the Act intrudes on the rights of local and provincial government to create their own systems of managing traffic offenses.
The Acts focused heavily on the appointment of a new organ of state, the Road Traffic Infringement Authority – which would handle the enforcement of all road traffic laws on a national level. The AARTO and AARTO Amendment Act were held to usurp the exclusive legislative authority of the provincial legislator by creating a single national system that regulates road traffic. This was unconstitutional as it took away the authority of the provincial government to regulate road traffic and offenses. This function of governing traffic regulations falls within the exclusive authority of the provinces according to the Constitution, and the attempt to dispossess the provinces of their ability to self-regulate was held to be in contravention of this right. Similarly, the authority given to provinces to enforce traffic and parking laws at a lower municipal level is an exclusive authority provided for by the Constitution.
This became a core issue for the Pretoria High Court as it found that the constitutionally offensive provisions of the two Acts were not severable with the rest of the Acts, and as a result, the entirety of both Acts were declared unconstitutional.
It is unclear how the AARTO and the AARTO Amendment Act will be salvaged and on what timeline, however the government does have a right of appeal to the Supreme Court of Appeal, and the Acts may yet be upheld.