Administrative Adjudication of Road Traffic Offences Amendment Bill [38/2015]: CANCOM submission, RTIA responses to submissions

Meeting report

Administrative Adjudication of Road Traffic Offences (AARTO) Amendment Bill: Public submissions
CANCOM submission
Ms Lauren Olinsky, Managing Director, CANCOM, introduced CANCOM as a private entity that dealt with the AAARTO Act and traffic fines on a day to day basis, as it was representing and administrating fines on behalf of its clients. CANCOM represented the majority of the car rental and fleet industries in South Africa, covering about 200 000 vehicles and managing over 50 000 traffic fines and infringements a month.

She said that CANCOM was in full agreement of the main purpose of AARTO which was to promote road safety and decrease road death tolls. AARTO was a phenomenal system if implemented and rolled out in a manner that CANCOM believed it could be and she thought it was the right way to go in curbing road death tolls.

CANCOM had studied both pieces of legislation, to get a better understanding and a better assessment of where the liability for of traffic funds should fall. With the current magisterial districts issuing traffic fines either via the service providers or with their own systems, CANCOM was faced with different sets of rules and different legal interpretation for each municipal district. It would like to see the rules as to how the Act and regulations would be implemented in one accessible place.

At the moment there was a tendency for each district to interpret the law as it suited them. There was much difficulty in getting to the correct Public Prosecutors and having CANCOM cases heard, or allocating funds to the correct person. One major issue was that cloned number plates incorrectly caused infringement notices to be issued to CANCOM clients. In reality, when this happened, only a very small percentage could be redirected to the correct person. Nominations were not happening. A proxy could not be held reliable for over 100 to 2000 offences occurring on one day.

Administrative failures on the ground were causing major problems for CANCOM under the current AARTO Act, which relied heavily on manual processes. Much paperwork needed to be submitted, and CANCOM did this to the Johannesburg and Tshwane Metros who were receiving massive volumes from CANCOM since CANCOM systems were able to identify drivers. She did not believe that these authorities had the administrative capacity to manage the volume. The requirements of submission of an AARTO 07 were ever changing. The AARTO Act made provision for the issuing authorities to make the rules as to what they believed would satisfy them for and nomination to be successfully redirected to a correct offender.

CANCOM could give a list of drivers who were habitual offenders. The impact of not redirecting the infringements to the correct offender was that habitual offenders were never held liable, leading to increased lawlessness, ongoing accidents and road deaths caused by speeding, low or non-collection of infringement monies.

CANCOM had identified issues in the administration of the AARTO Act. An SMS system was unreliable because people changed their cell phone numbers on a regular basis, and if infringement notices were sent by SMS, there would not be efficient, was no proof and delivery and would not be regarded as sufficient, especially from a company perspective.

CANCOM suggested that the timelines were too vague and clarity was needed. Furthermore, she repeated that there were contradictions between even two municipalities during the pilot phase, and that differing interpretations would lead to an administrative disaster.

There were irregular requirements to achieve notification on an AARTO 07. Currently,  neither the Johannesburg nor Tshwane Metro were receiving and accepting CANCOM AARTO 07 nominations and were rejecting every one, because CANCOM did not submit a copy of the rental agreement from the company to the Johannesburg Metro. The AARTO 07 was the latest information from the Information and Communications Technologies (ITC) database in the country. In addition, there would be problems around private information if agreements were submitted, as they contained a lot of private information such as credit card details, addresses and numbers, and in the past this information had been shared across metros.

Since the AARTO 07 were not accepted, CANCOM was forced to issue AARTO 10s, requiring court submissions, and she then set out the process that had to be followed to cancel notices. To date CANCOM had submitted 745 972 AARTO 10s and had not received one AARTO cancellation or one summons to appear in Court, which meant that liabilities were still registered against the names of their clients. Sometimes clients had to pay outstanding enforcement orders, recording this as payment under duress. CANCOM said that clients should not be expected to pay for fines when they were not liable for them and could prove that they had not been the drivers

CANCOM believed that electronic systems and receipt of infringement notices via an electronic system would be the most efficient way to handle the AARTO processes, particularly for company fleets and large volumes. Individual infringements could be managed separately. E-mail would be acceptable, provided that there was a delivery notification system.

Another problem was that there was no provision in AARTO which dealt with international driver offenders.

CANCOM faced an ongoing issue where agreements were reached in writing only to be changed.

Ms Olinsky then proposed some solutions from CANCOM. In relation to issuing of infringement notices, it was suggested that a registered mail system be used, and as a backup possibly email or SMS with electronic notification. A monthly electronic file was needed that would prove all notices and would act as a backup.

CANCOM believed that payment of AARTO fines should be made easier for the individual. For companies, there needed to be an increase in the time scales set for payments, to enable the companies to determine who the offender was and make its submission. Electronic nominations were needed, via web services. There should be a standing operating procedure that each issuing authority must follow .

Ms Olinsky referred to the volumes of AARTO infringement notices issued, and proposed that email should by companies with fleets should be regarded as an acceptable form of delivery as having to hand-deliver to issuing authorities was a logistical nightmare.

CANCOM believed that there needed to be fewer requirements for a successful nomination on an AARTO 07.

Ms Olinsky said that the demerit point system was a good system, but needed to be managed correctly. There should be a separate system for individuals and for company proxies. If proxy company cards were cancelled, then in effect businesses would come to a complete halt.

Discussion
Mr L Ramatlakane (ANC) asked about issues of nomination, asking why it would be a problem if the nomination of the driver were to occur in the principal agreement. He thought the problems were not so much with the Act itself, but whether CANCOM's clients were complying, as the presentation suggested that they were unwilling to fulfil their obligations under that Act.

Mr Ramatlakane also asked why it was a problem to submit information that the client had given in the principal agreement. He asked for a further explanation on enforcement orders and the claim that clients were paying under duress, commenting that all South Africans had to comply with the AARTO Act. Outstanding road traffic fines had to be paid before anyone was allowed to register their vehicles and he asked why this was a particular problem for CANCOM's clients.

He asked what CANCOM's view was on international offenders, and whether it thought that spot fines might be the answer, requiring offenders to pay before leaving from the airport. He heard the issue around AARTO 3 and 10 notices, but suggested that a client might make the choice whether to go to court knowing that, given the current court capacity, the case was not likely to be heard for the next ten years, so they could drag out the issue and not pay. He added that CANCOM had not mentioned whether the representation system could reduce the numbers of people making this election.

Mr T Mulaudzi (EFF) asked for examples of different interpretations of AARTO by the issuing officers. He asked why CANCOM was unwilling to make the lease agreements available, and whether this indicated mistrust between CANCOM and the issuing officer or authority. He asked how much extra time CANCOM was suggesting.

Mr M De Freitas (DA) said that there seemed to be animosity between the Department and business and this was of concern. He got the sense that there was mistrust and an obstructionist attitude, and wanted the reasons for that to be further explored as it would not lead to healthy relationships in enforcement. There was no point in having a good piece of legislation that could not work properly if the mindsets and attitudes were obstructing it.

Mr M Sibande (ANC) asked where exactly CANCOM thought that the initial problems lay – whether with the mechanism or the lack of capacity in institutions who were responsible for collection of infringement sanctions. He asked whether the problem lay with the Act, or with compliance with the Act by CANCOM. He was worried about the claims that number plates were being cloned, which involved criminal offences, and asked if CANCOM was able to produce any statistics. He noted the claims of shortage of capacity in Tshwane and Johannesburg but wondered why CANCOM let the infringements pile up before taking them to the issuing authorities, which suggested that they might be contributing to the dysfunctional systems.

Ms Olinsky said that clients would not state, in the original rental agreements, that they would pay for any offences, and CANCOM's clients were not permitted to pay on behalf of anyone else, in terms of the provisions of AARTO and the Criminal Procedure Act, for they could not admit or deny guilt of the individuals who had been driving and therefore could not pay their traffic fines. There were also logistical problems with the requirement to submit rental agreements. One of CANCOM's clients rented about 200 000 vehicles a month. For those, it would receive about  5 000 to 8 000 fines per month. The rental agreements were not computerised, but were manually filed, so it was difficult to track each one of those agreements and attach it to the correct AARTO 07. Furthermore,  these documents contained private information. Authorities had not been able to answer why exactly this form was needed. CANCOM had found boxes of AARTO 07s simply sitting in offices and not being dealt with.

Mr Kevin Olinsky, Shareholder at CANCOM, said that the Committee seemed to have misunderstood the main thrust of the presentation. The problem was not so much that AARTO 07s were filled out incorrectly, or that CANCOM was not providing information, but that the issuing authorities were constantly changing the goalposts and requiring different information every day. Then when they did receive the forms, the authorities would simply leave them laying around in boxes in the offices and not redirect them, with the result that the actual offenders were not being held liable. CANCOM was complying with the Act, but the authorities were not following through with the nominations.

He noted that there were difficulties between CANCOM and the Department of Transport. CANCOM did not issue the traffic fines, although it would deal with them on behalf of the service providers. It would comply with the timeframes set out in the AARTO Act. However, because the issuing authorities did not redirect the traffic fines to the right person, identified by the CANCOM client, they were not paid, and then enforcement orders would be issued which then prevented the CANCOM clients from registering their vehicles. This was purely an administrative failure. After failed engagements, the last ploy that could be adopted was for an AARTO 10 to be submitted, to prove to the Court that CANCOM itself was not the driver and could not be held liable for the offence.

Ms Olinsky said that the clients did pay under duress in these circumstances, so that fleet rental businesses could licence their vehicles, because if this did not happen then international tourism could come to a complete standstill.

Mr Olinsky said CANCOM did believe that international offenders could be managed. CANCOM suggested that if a traffic fine was issued timeously it should be possible, through a centralised database, to catch the foreign national at the point of exit and require payment of the fine. If this was not possible, then an SMS could be sent, or the fine could be listed at the Embassy in his or her country and have to pay if they wished to re-enter the country.

Ms Olinsky said that CANCOM would prefer for no AARTO 10s to go to court, as this was an administrative nightmare if summons was issued, but the proxy holder was required to appear in six different courts on the same day. CANCOM did not want to do this; it would prefer that the fines be directed to the real offender, although the use of AARTO 10s might be used as a last resort to try to sort out the outstanding fines.

CANCOM had invested a lot of time and money at looking at front-end systems, and company systems had improved. Drivers could be identified.

She repeated that there were differing interpretations but CANCOM had met with Johannesburg Metro and had reached agreement that CANCOM AARTO 07's would be accepted in a particular manner.   This had been fine up to a point, then the Metro suddenly started to reject them, which cost extra rime and money. CANCOM was not sure why it was not redirecting the offences.

She repeated that there was a trust issue, because CANCOM was not ever told why the issuing authorities were asking to see the rental agreements, because the CANCOM information was solid and valid.

She noted that the difficulty with the timelines related to when they started to run. There were 40 days allowed after the offence to deal with the matter but if the notification arrived only on day 39 CANCOM would not be able to deal with the nomination, and CANCOM could only nominate for fleet vehicles.

Ms Olinsky said that at the moment it was very difficult to pinpoint where the actual problems lay. The AARTO registered mail services did not work, as when the SA Post Office was on strike, no infringement notices had been received by the clients. Fines were “sitting somewhere” but CANCOM did not know where. CANCOM had designed its systems to comply with the AARTO requirements, and it delivered once or twice a week to the relevant authorities, but faced difficulty because of the manual capturing systems of their clients, and the extensive paper work.

Ms Olinsky wanted to repeat that CANCOM saw AARTO Act as essentially good, but it did need to be fine-tuned. The regulations had to be worded to take account of fleet vehicles as the AARTO was presently geared very much to the individual driver, without taking into consideration the massive fleets. More willingness to engage had to be established between the Road Traffic Infringement Agency (RTIA) the Road Traffic Management Corporation (RTMC) and the metros, with better communication. Fleet companies should not be treated any differently.

Ms Olinsky said there was an issue with road blocks, where traffic officers would pull a vehicle off the road, but when the number plate was run through the E-Natis system it would come up as belonging to a rental or fleet company, which might then show up with infringement notices against the company. Officers then threatened to arrest the proxy, impound the vehicle or arrest the driver, which was not legally competent, and so the traffic officers had to be educated on what the AARTO Act allowed. CANCOM did not have any statistics on number plate cloning but there had been incidences of this found. The problem with cloning was that offenders who were not held accountable were not changing their bad driving habits.

Mr Ramatlakane asked about administrative difficulties and compliance, and the links between AARTO 3 and 10. He asked if CANCOM thought that the problems were not with their clients and again, was not sure why there were perceived to be such difficulties in releasing information, and why CANCOM did not simply comply. He argued that CANCOM's clients would know who the drivers were. He asked why deductions for the fines could not be made from credit cards. He sought clarity on why CANCOM ended up with 700 000 elections to approach the court; was that because those fines were not redirected. He furthermore asked for clarity on the example of road blocks.

Mr Olinsky said CANCOM did comply with AARTO 07s and went as far as going to the issuing authorities and putting out information on affidavit. The rental agreement, however, contained sensitive and private information which belonged to car rental companies and could not be handed out.

Mr Ramatlakane asked what the confidentiality was.

Mr Olinsky responded that on many rental agreements there were credit card details. An affidavit was a lot stronger in court that a rental agreement, so the point was that CANCOM was questioning why the rental agreement was being asked for.

Mr Ramatlakane said that any information sought was in compliance with the Road Traffic Act. The information needed related to identity and drivers licences. Credit card details were not going to be used by the Authority so he really did not see what the problem was. By refusing to send the information CANCOM was refusing to comply with a reasonable request towards mediating or managing this and he did not agree that the contracts were confidential.

Mr Olinsky said that the rental agreement contained private and personal information about the renter. There was a case in Cape Town where CANCOM had presented Avis rental agreements to a certain Authority, which then ended up in the hands of a Budget employee as they had been mailed out.

Ms Olinsky said on the AARTO 07, both the drivers licence and ID numbers were provided. Credit card fraud was at its highest level at the moment. Nobody knew what happened to the data, once captured. It was a fact that if these were handed out, anyone could get access to that information.
She added that the Banking Act stated that after the rental vehicle had been returned, the renter would have only three days grace to deduct any further fees from that card. By then the offence notices had not been received. She suggested that there should be a standard operating procedure for AARTO to streamline.

In relation to administrative fines, the car rental companies charged a fee to manage administration of the fine but never undertook to pay a fine for the renter. Issuing authorities would not be able to manage AARTO infringements manually during national roll outs. CANCOM promoted an electronic system.

Mr Olinsky said that CANCOM had been told, in no uncertain terms in the meeting, that roadblocks were held for one reason only, to collect money. They had nothing to do with road safety. Traffic officers used threats to extort money from drivers. Details could be provided.

Mr G Radebe (ANC) asked CANCOM to withdraw the statement that roadblocks were only there to get money from people, because that was not correct, and he cautioned that CANCOM should not “take chances” at this meeting.

Mr Olinsky withdrew but said that CANCOM had come to present the facts.

The Chairperson interrupted and said that normally one would withdraw a statement without attempting to attach conditions.

Mr Olinsky withdrew the statement. He said he felt that there was a big misunderstanding. CANCOM had come to present the facts on what was happening administratively on the ground every day – both good and bad. CANCOM complied fully and he had not told any lies about what happened. He asked what CANCOM was expected to do for its clients, when they had not committed any offence, but the notices saying that they had were not redirected.

The Chairperson said CANCOM should “relax”. The PC would look into what it had said.

Road Traffic Infringement Agency responses to submissions
Mr Japh Chuwe, Executive Registrar, Road Traffic Infringement Agency, said that the Agency (or RTIA) had been working to prepare responses, and would respond to other presentations made on 6 and 7 September at the meeting scheduled for the following week.

He outlined the content of his response. RTIA knew that the intention of AARTO was to ensure the promotion of road traffic quality by providing for a system that would encourage compliance with all types of laws at all levels. RTIA had been implementing AARTO at municipal level in Johannesburg and Tshwane. Taking lessons learned from that pilot study, the Bill as presented now was drawn. Amendments were proposed in order to achieve efficiencies and to ensure that interventions were taken to improve the implementation.

One key issue was the financial sustainability of the key role players responsible for AARTO. This meant RTIA, as the custodian of AARTO, and the implementation authorities, who were the authorities issuing the notices. The intention was to make the system as efficient as possible and ensure that the fiduciary responsibilities were properly exercised.

Some of the key objects of the Amendment Bill were:
- to provide for the financing of the Authority by empowering the Authority, through the board, to open a bank account
- to do away with issuing warrants, by the repeal of section 21
- to simplify the manner of service of documents by introduction of electronic methods of service
- to provide for apportionment of penalties
- to provide for other transitional provision that would be required for efficient operations
- to set out the consequential amendments.

RTIA had drawn up a summary of government responses to all the written submissions and inputs that had been received. A formal written reply would be submitted shortly on the letterhead of the Department of Transport, but this presentation would set out the summary to the responses. submissions that would be made under the cover letter head of the Department.

Wayne Paul submission claimed the Bill was flawed, that AARTO infringement sent by ordinary mail was illegal and that Johannesburg Metro Police were using AARTO as a mere revenue collection tool. In response, RTIA said that the Bill was not flawed. It agreed with AARTO that service had to be either by registered mail or in person. AARTO noted the allegations and would take the opportunity  to engage further on the applicable issuing authorities in order to ensure full compliance with the law.

Rowan Singh submission asked how service by SMS /E-mail would be proven, what happened to those without cell phone numbers or emails. He claimed that electronic formats would create more opportunities for criminals to target unsuspecting individuals. RTIA responded that electronic service of documents would be proven by digital stamp and records, that the reading of the message would trigger a feed-back message to the sender. There were already systems which could indicate which specific pages had been read within a sent document, which were not, and where reading was aborted. This was therefore not a difficult task. The burden of proof around sending of the notice would remain with the issuing authority. RTIA had noted, during the submissions, that many people believed that only SMS messages would be used. RTIA confirmed that SMS was not really a method of service but one of the applicable platforms that could be used in order to prompt somebody about the document sent by email. He had already stressed that those who did not have electronic means of receiving the message would be sent their notices by other means. He wanted to emphasise that RTIA was not dealing with only one type of service of documents. It was changing the traditional methods of service. It was up to the infringer to select a mechanism of service. Traditional methods of service were always going to remain, registered mail would still apply and these other methods were  being introduced additional to the traditional methods. Protective mechanisms would apply through the digital platforms, such as the digital stamp.

Art Rajkumar submission objected to electronic service, claiming that no one should have access to personal phone details, including government. Members had seen for themselves the anger and spirit that was displayed by some of the submission. Mr Rajkumar claimed that government were treating infringements as a mere revenue generator, whilst government wasted billions on corrupt, inflated tenders and unaccounted for expenditure. He submitted that “AARTO was simply a way to extort money from honest, hard-working people by common thieves”. Mr Chuwe said that RTIA had noted the objection. He wanted to confirm that the objectives of the Act were not extortion of money, but the establishment, sustaining and increasing of road safety. The Act did this by increasing compliance with all road traffic laws. RTIA would be able to undertake its constitutional imperative that anybody who sets out to enjoy the use and benefits of road infrastructure can do so in the assurance that their lives will be protected.

Mr Gert Lombard submission  stated that the AARTO system was not operated correctly, since operators were fitting registration plates that did not belong to the vehicles. Traffic authorities did not verify the legality of the registration vehicle or the legality of the number plate. Mr Chuwe responded  that this submission did not raise any substantive issues concerning the Bill as it merely commented on issues of data integrity and verification, which were related to operations. RTIA would advise interested stakeholders of the concerns and would provide a report to the Road Traffic Management Corporation (RTMC), which, under its founding legislation, was responsible for co-ordinating all law enforcement operations.

Mr Karl Keppke submission challenged the assumption that electronic mail was delivered to the recipient, and said that the legislation was written so that the recipient would have to prove that s/he had never received the message. He said that AARTO posed a challenge for people who did not have financial means to defend themselves. Unscrupulous individuals could scam unsuspecting individuals and there would be difficulties in maintaining updated databases, as people changed cell phone numbers on a daily basis. RTIA responded that the burden of proof was always on the issuing authority and the Agency, and the electronic service did not disadvantage the infringer. There were several other back to back interfaces that could be used, whatever people did. Procedures would be put in place to manage the updating of information provided by infringers, similar to regulation 32A of the National Road Traffic Act (NRTA).

Input 6 had not been received by RTIA and his response would have to stand over.

Ms Anna Parsons submission asked why licence renewals were no longer sent, which meant that people were being fined for late renewals, and she claimed that this was motivated by revenue generation concerns. She questioned the legality of SMS service. RTIA responded that in fact renewal of licence notices were sent out but RTIA recognised the challenges, including the SA Post Office strikes. The motivation behind the Bill was not revenue general, but increasing compliance to road traffic safety legislation. Electronic submission was legally competent.

RTIA also noted presentations from other entities on 6 September around this issue and said that there was a good body of evidence, in Supreme Court cases, to confirm that legal developments were sound.

Mr Gareth Edwards submission claimed that the electronic service was not a guaranteed, safe or reliable method of service, and that that implementation was unconstitutional as it happened in Gauteng only. RTIA responded that in fact electronic service was more reliable, particularly in light of recent technological advances. There was nothing unconstitutional about the implementation in some jurisdictions only – the President would be able to gazette different dates for the different areas where it would apply and this was stated in the Bill.

Mr Leon Combrink submission expressed concern about the amendment of section 30, claiming that it removed the burden of proof from the issuer to the infringer. RTIA said that the burden of proof always rested with the issuing authority and the RTIA, to prove the delivery and the time, date and applicable related to every document sent.

Mr Henk van Herwaarden submission claimed that the electronic service was pointless if no one used it and that text messaging was a ridiculous and poor method of service. Payment platforms must keep information for longer in order to enable payments. More payments would be made if payment mechanisms were made easier. RTIA responded that electronic services were more efficient and that the numbers of payment platforms would be increased. RTIA had more than 200 payment platforms already, and had reported in the Annual Report for 31 March 2016 that it was adding an additional 2 066 various payment platforms, which included the banks, post offices and a number of retailers. This made payment much easier.

Mr Pieter Breedenkamp submission  claimed that electronic communications did not prove delivery, since there was no signature for confirmation, and that electronic service would open the way for poor administration. RTIA responded that this was actually the most advanced form and would increase efficient administration.

Mr Anton Valks submission opposed electronic service, claiming that it exposed people to scamming. He also was opposed to the deeming provisions around service of documents. He said the Bill unfairly strengthened the hand of the enforcers against the infringers. He said that all money received from infringement must be used for road safety. He motivated for a shift from speed prosecutions to more serious offences, such as driving under the influence and accident violations. He also claimed that AARTO was unconstitutional because it presumed infringers to be guilty until proven innocent. RTIA responded that this was a complex submission. On the one hand, Mr Valks had expressed opposition to certain elements, but he had made some positive proposals for innovative options.

Mr Chuwe added that electronic services did not expose anyone to scamming. It instead empowered infringers to act timeously in response to the notices. He noted that the deeming provisions were not new, but simply added presumptions on electronic service of notices. RTIA already had those provisions for postal service in the past. The Bill did not unfairly disadvantage any infringers. All input in the Bill was intended to support funding for road safety interventions. The electronically generated traffic infringement notices would encourage officers to concentrate more on detection of moving violations. There was nothing unconstitutional about the provision around innocence.

Ms Avi Jagarnath submission raised concerns about data integrity and verification by electronic service. She proposed that issuing authorities should be punished more severely for non-compliance. RTIA noted the concerns.

Mr Raynard Swanepoel submission claimed the AARTO process took advantage of students who parked in no parking zones, due to lack of sufficient space. He was a student from Tshwane University of Technology. RTIA responded that the law was the law, and it had to be obeyed irrespective of the situation that one was facing. There was no justification for breaking the law because of your personal circumstances.

Mr Dries Wolmarans submission claimed that electronic service was inappropriate, due to the dependence on service providers who were paid to ensure delivery. The onus of electronic service delivery should rest with authorities. RTIA also noted comments by Ms Alta Swanepoel on the reliance on the issuing authority. However, the SA Post Office and contracted agents had to ensure that the uptake of the notices captured on the system had to be answered within the 32 days provided by AARTO. He claimed that electronic service would still be effective, no matter who was responsible for it, and the authorities retained the burden of proof around service.

Mr Cosmos Ndlovu submission suggested that there should be more emphasis on traffic officer visibility for law enforcement, driver intervention programmes and establishment of a compulsory toll- free hotline to report non-compliance. Law enforcement should schedule operations at hazard times such as peak hours. RTIA appreciated his positive proposals, which would be considered. The move to electronic speed detection would allow for more interactive visible policing. However, nothing in the submission spoke to amendments suggested in the Amendment Bill.

Mr Orlando Edwards submission claimed that electronic service was not a guaranteed safe and reliable method of service. He claimed that implementation was unconstitutional because it was implemented in Gauteng only. RTIA confirmed that electronic services where more reliable and there was unconstitutional about its application in certain jurisdictions.

Ms Dintwe Mohutsioa submission stated that the Bill was written in complex legal technical jargon that only lawyers could understand whereas it affected all drivers. This was a sound point that pertained to the writing of laws in all official languages. RTIA noted and appreciated the comments but said that there was nothing substantive in the comment about the substance of the Bill itself.

Mr Henry DuBois submission claimed that and SMS is not a sufficient communication service given the theft of information, and that since the Authorities required proof of address for registration of a vehicle of licence renewal, registered mail was the best option. Again RTIA responded that electronic service was not the only means and that RTIA  was not doing away with registered mail.

Mr Woolhal Sahadew submission did not agree with making electronic service a legal method of service. RTIA noted the point

Mr Arulan Pillay submission claimed that providing for a financing authority could lead to issuing authorities harassing motorists just to increase the revenue. The Authority should be fully funded by National Treasury and there should not be any incentive to make traffic officers do their job daily. The bill was one-sided, and favoured the Authority rather than the motorist. RTIA responded that there were  mechanisms in the Act already to protect motorists against any type and form of harassment. The suggestion for full funding by National Treasury was noted. The Bill was balanced in that it aimed to increase road safety for the benefit of all citizens. The protection provided for representations if the infringer claimed to have been unjustly treated by the issuing authority and traffic officer.

Ms Bulelwa Zingana submission proposed that government must ensure that road signs are clearly visible and people should not be prosecuted where there were no visible signs. RTIA noted that suggestion and commented that this confirmed the wisdom and effectiveness of effective visible policing. By interacting with the traffic officers, they could detect any other forms of non-compliance.

Ms Catryn Mayer submission asked about electronic service for people without cell phones and email address. She raised operational challenges related to law enforcement. RTIA repeated that people without electronic means would received service by another method. Mr Chuwe stressed again that the Amendment Bill was essentially moving from only one to more forms of service, with interfaces to allow people to print, scan and upload documents and it made sense to move with the technological advances.  The operational challenges raised in this submission were noted, but did not relate to the content of the Bill.

Cobus van der Walt submission claimed that the Bill did not change the situation, as it was imported from Europe. He said it would not stop fatalities but was revenue-biased. RTIA commented that wisdom and best practice were to be found internationally and the Bill  had been customised for the South African situation. There was merit in looking at what other countries were doing. The basic principles only had been imported. Mr Chuwe said that AARTO was not aimed at generating revenue. With increased compliance, more lives would be saved on the road.

City of Johannesburg submission contained inputs from stakeholders, but the main proposal was to delete the words "nor the agency" from section 16: Limitation of Liability, in order to hold the Agency accountable for damages incurred by another authority where the Agency's actions were the cause. RTIA responded that section 16 dealt with limitation of liability and was aimed at protecting not only the Agency but any employee of the agency who did something in good faith, in which case neither the Agency nor individual would be liable for damages. However, the deletion of the words would result in a situation where, despite the good faith, the Agency could be sued. This was provided for already in the principle of vicarious liability, which was accepting liability for the actions of employees. For this reason, there was no need to change the clause.

The Directorate of Public Prosecutions in KwaZulu-Natal submission outlined several points:
1) provision for electronic service was unconstitutional because it  violated the rights of infringers to fair trial
2) the technology which was used was not as reliable
3) Law enforcement is a revenue making stream for municipalities and is never about road safety.
4) Local authorities did not have the right capacity to handle even the most basic types of law enforcement   
5) the new amendment would lead to an increase in corruption and litigation.
The Directorate added that there was consensus amongst KZN prosecutors that the amendments were “appalling”.

RTIA said that there was nothing unconstitutional, as the system was fairly implemented. These submissions had been raised on 16 August 2008, in a meeting between RTIA and the Magistrates Commission. It was interesting that the legal fraternity claimed the unconstitutionality of AARTO and said it would be able to provide a thick document that indicated every single aspect that was unconstitutional, within the next seven days. That had never been provided and no one claiming unconstitutionality had ever come up with a specific example of how that unconstitutionality occurred.

He added that there was ongoing capacitation of traffic officers and law enforcers, handled with RTMC and various provincial and municipal administrators. Capacitation and roll out was taken care of. Proper risk assessments and mitigation was in place. He summarised that essentially the objections related to two issues: one an unconstitutionality claim and the other being the objection to electronic methods of service.

Ms Sonja Matthee, a Public Prosecutor from Worcester, submission was directed to comments on the amendments to sections 17, 18, 22 and 24. She said that there should not be a repeat of sections 56 and 341 of the Criminal Procedure Act, that this created an arrangement to pay in instalments. She felt that the new section 18 representation should be more formal. Section 22 would allow infringers  to walk in to request that they appear in court. The demerit system would mean harsher penalties and the need for dedicated prosecutors and magistrates. Companies expecting drivers to operate un-roadworthy vehicles would not be fined but the drivers would be punished. She suggested consideration of a uniform or national fine list.

Mr Chuwe said that it was unfortunate that such learned people “displayed a level of ignorance”.   The AARTO legal framework was very detailed. The Act was first passed in 1998, and was amended in 1999, 2000 and 2002. In 2008 there were very detailed supporting regulations based on five schedules that categorised the operation mechanisms, forms, and gave a very detailed analysis and categorisation of every single infringement, so that 2 054 offences were captured, based on the National Road Traffic Act provisions. There was no uniform and national fine list to be considered under this Bill because it was provided for in Schedule 3 of the 2008 regulations. Since then, there had been a number of amendments to regulations also. AARTO 1 and 31 would  serve the same purpose as the current section 56 and section 342 notices. The National Road Traffic Regulation 32A captured the updating of the address. Representations made on AARTO were also formal.

Speaking to the demerit points system, he said that a financial penalty alone would serve as a deterrent, but the points demerits would assist in changing behaviour. This was a key and important point. The implementation of a point demerit system became the key equaliser for everyone, and it would be an offence to drive a vehicle while a licence was suspended.

The Gender Equality Commission submission firstly objected to the use of issuing authorities. On clause 1, it supported the deletion of the definition of  major and minor infringement and changes made in clauses 2, 6 and 8. CGE said the blocking of licences discs provision needed to be removed because it was unconstitutional. RTIA responded by saying that the changes proposed did not deal with the phrase “the issuing authorities” which applied to clauses 3 and 8.

TMT  submission said that there had been non-compliance by the City of Johannesburg when serving notices by ordinary mail. RTIA was aware of this. It agreed with the proposals on date of service, but said that the definition needed to be expanded to take into consideration the manner of service, the date stamp and presumption clause. RTIA pointed out that this was already dealt with in section 30(2)

Advocate Bradley Smit submission said that amendments were needed to the definition of "date of service", that the notification about infringer about accumulated demerit points through registered mail needed to be amended. He did not support the return of service presumption. He said that electronic service and postage were recommended but may also be unreliable. He said, in regard to clause 3 and 4, that the Agency would have to be financed even before it received any money from penalties, and service delivery may be compromised. He said accruing of interest was unreliable. RTIA agreed with the proposals on the date of service, but  the definition must be expanded to take into consideration the manner of service (date stamps, presumption clause). The date of service was also agreed to, as it is a consequential amendments. The electronic service had already been accepted by the courts, and was covered by the Electronic Communications and Transactions Act. Alternative forms of service had been catered for, and re-service of documents was also recommended.

Mr Chuwe added that the Agency had to come up with ways of investing money and retaining surplus. The amounts would be prescribed by the Minister. Municipalities would receive the monies due on a monthly basis and collection of penalties would increase. The interest was nominal. and RTIA used it to service bank charges for the National AARTO Bank Account. Expenditure in re-branding was not exorbitant and may be done over a longer period. He repeated again that the amendments covered all forms of service, catering also for cases where infringers did not have electronic means

He summarised that throughout the submissions, some common themes were apparent.

1) General occurrence: There was support for the Bill, but divergent views on implementation. A number of comments were made on the operational aspect. RTIA limited itself to elucidating all those points that directly related to the essential aspects of the bill. There was commentary on the operational challenges, which RTIA would escalate to the relevant issuing authorities.

2) There was concurrence on the need for a modern traffic management system.

3) The utilisation of law enforcement as a revenue generation mechanism for local authorities. This was something that would always be a criticism, and it would only be dispelled by effective and visible law enforcement. There needed to be a specific strategic shift on law enforcement, so that greater emphasis was placed on the issuing of AARTO 1 notices and interactive policing that would highlight other challenges.

4) There were concerns raised about the reliability of notification of infringements by SMS and emails. RTIA stressed that SMS would only become an additional platform, to be able to inform someone of infringements. Those who had email capacity would be able to be served via these means.

5) There was a lack of capacity in local authorities. The examples made dealt with operational issues and would be covered in RTIA's training of officers, which hopefully would assist in eliminating bribery and other problems,

6) Lack of fixed and updated addresses and data integrity. This was going to take a turnaround time of 18 months at best, but RTIA would be relying on Regulations 32 of the National Road Traffic Act which was now operational.

Mr Chuwe concluded that RTIA had been grateful for the positive public input.

Discussion
Mr  Ramatlakane suggested that since further input was still to be made on other submissions, any questions should stand over until then.

Other business: Scheduling
The Chairperson proposed that the meeting scheduled for  Friday  be deferred to the following Tuesday, when the Acting Director General of the Department of Transport would be able to attend as it was particularly important that there be a presence during the presentation by the Passenger Rail Agency of South Africa.

Mr Radebe agreed and added that the Chairperson of the board must come back with answers.

The Chairperson noted that whilst the appointment of boards was not done by the Director General,  recommendations would be made to the Minister.   

The meeting was adjourned.