The Committee met to consider proposed changes to the Administrative Adjudication of Road Traffic Offences (AARTO) Amendment Bill which had been put forward by stakeholders and affected persons during an extensive consultation process. Each relevant proposal was fully discussed, under the guidance of state law advisors, to consider whether it should be included in the final draft of the bill, or omitted.
Issues covered during the debate were:
- How to deal with foreigners who commit traffic violations and leave the country without paying for the infringement;
- The impact of a licence suspension on the remuneration and job security of low-paid taxi and delivery drivers;
- The need for an interface between the National Contraventions Register (NCR) and local government management systems;
- The high cost of serving infringement notices by registered mail, and the legality of using lower cost alternatives, such as e-mail or cellphones;
- The relative merits of the Electronic National Administration Traffic Information System (eNaTIS) and the National Contraventions Register (NCR);
- Concern over the legal process, which assumed a person’s guilt until proved innocent, rather than vice versa;
- The use of all 11 official languages in serving infringement notices;
- Aspects of the points demerit system, which was yet to be rolled out, but which had already attracted criticism from stakeholders.
The Committee was concerned about the lack of participation from taxi associations who would be directly affected by the Bill. They proposed that the consultation process be prolonged to make time for further submissions. Members felt that the pilot projects in Tshwane and Johannesburg should have given them enough information on what the advantages and disadvantages of the Bill were.
The Chairperson said the Department of Transport (DoT) would be taking the Committee through the process of oral submissions on the Administrative Adjudication of Road Traffic Offences (AARTO) bill by the stakeholders. The State and Parliamentary law advisors were also present to help with legal matters. She requested that both the law advisors should also present on any legal matters that they thought the Committee should know about once the department had completed with its presentation.
Mr Mathabatha Mokonyama, Acting Director General; DoT, said that the Department would report on the comments made by the stakeholders during the public hearings. The AARTO Bill had gone through a thorough process. It had gone through Parliament, and he believed the DoT had widely and extensively consulted with stakeholders and affected persons during its initial draft stages. The Cabinet had been further approached for permission to consult further and engage with stakeholders. The comments had been considered and incorporated into the bill. The bill had also gone through the cluster system of government, such as the Forum of South African Directors-General (FOSAD), Justice, Crime Prevention and Security, and the Cabinet Committee, after which Cabinet had approved and allowed the Department to come before Parliament. The DoT was aware that there was a process for considering the socio-economic impact that needed to be followed. Nonetheless, the Department had received its certification from state law advisors informing that there had indeed been collaboration between the state law advisors and the Department during the consideration of the comments.
There were three major issues that the Committee and stakeholders had raised. One was pertaining to the constitutionality the Bill, the legal standing of using electronic email, and public participation. The Committee could rest assured that participation had indeed taken place. The Chief Executive Officer of the Road Traffic Infringement Agency (RTIA) would take the Committee through the comments that had been made during last week’s public hearings.
Mr M Sibande (ANC) asked Mr Mokonyama to repeat, and give more clarity on what these three major issue were.
Mr Mokonyama repeated that the issues that many stakeholders had raised at the public hearings -- not that the others were not a concern -- were related to the constitutionality of the bill, the issue around the processing of the bill, and the legality of using electronic media.
Department of Transport (DoT) on the AARTO Amendment Bill
Mr Japh Chuwe, Chief Executive Officer; RTIA, reported that there would be two presentations that would be in order. In respect of the comments and submissions, the DoT had tabled their presentation last week. Two types of submissions, oral and written, had been taken into consideration. For the sake of these presentations, the Department had compiled only the major issues raised by the stakeholders in their oral submissions. The comments that had been included in the 32-slide presentation were from Alta Swanepoel, Tasima, Cancom, the South African Local Government Association (SALGA), the Justice Project South Africa (JPSA) and South Africa Taxi (SA Taxi).
In respect of the comments that the DoT was considering, there were a number of other amendments that had been made by the Department which had not been commented on during the public hearings.
Alta Swanepoel had submitted that the amendment to the definition of “issuing authority” should include any other authority prescribed by the Minister, to amend the definition of “infringement” to allow infringements in terms on National Land Transport Act (NLTA), the Cross-Border Road Transport Act (CBRTA) and National Road Transport legislation, to include the definition of “Registered mail” in the definitions section, and amend the date of service to cater for postal service. She felt the amendment of Section 21 should not be repealed in its entirety and proposed a retention of paragraph (1)(e), which provided for power to immobolise a motor vehicle, amend Section 34 to allow for circumstances where an infringement notice, a courtesy letter or enforcement order may be re-issued, and the retention of Section 35 as it was in the principal Act, hence there would be no need for further amendment. The National Contraventions Register should be available at border posts and foreigners with outstanding traffic notices should be required to pay the notices before leaving South Africa. Offenders who did manage to leave the country without paying should be required to pay on re-entry.
The response of the Department was that they did not agree with the amendment of the definition of “issuing authority” to allow the Minister to prescribe additional issuing authorities if the need arose to do so. The Department agreed to extend the definition of infringements to allow infringement in terms of the NLTA, CBRTA and National Road Legislation. It also agreed to include “Registered mail” in the definition section to create legal certainty in terms of what constituted registered mail, and it agreed to amend the date to cater for postal services.
The Department disagreed with the retention of Section 21(1)(e), which provided the power to immobolise motor vehicle. It agreed in principal with the amendment to Section 34 to allow for circumstances where an infringement notice, courtesy letter or enforcement order may be re-issued. It disagreed with the proposed retention of Section 35, as it was in the principal Act.
SA Taxi had submitted that the suspension of driving licences would affect the employees’ remuneration, penalties for similar infringements had to be consistently applicable to all infringers, and had proposed the suspension of the operator’s card. In addition, they had also questioned the AARTO’s readiness, as it had been piloted in only Gauteng.
The response of the Department was that the implementation of the demerit points would not affect the cancellation of a driving licence if the driver complied with road traffic laws. The AARTO standardised all road traffic related infringements, and there was a master implementation plan. The demerit points were linked only to the infringing motor vehicles.
The SALGA had submitted that there should be an interface between the National Contraventions Register (NCR) and the local government management system. Currently, all issuing authorities had their own issuing systems, some may have implemented their own self-developed systems, and others used service providers that specialised in traffic management. The Department had made provision for an interface that would update on real time information, regardless of where the information was coming from. The only common platform would be used was the NCR, which would upload the capturing of the related infringement data and make it applicable for further processing. The National Traffic Information System (eNaTIS) and its challenges should be should be reconciled with penalties, which may lead to audit queries. The challenges had implications on the basis of accounting – cash or accruals. They had also submitted concerns about the high cost of registered mail. The current provision, which was applicable under the Criminal Procedure Act, under Section 3(4)(1) and Section 56, was that notices could be issued just by ordinary mail.
SALGA had also made mention of representation, and how this affected ordinary infringers and the interest of the issuing authorities. In Section 32 of the bill, the Department had made a provision to withhold monies from institutions, SALGA opposed this amendment, holding that the registered owner of the vehicle should be held responsible for the infringement, as opposed to the driver. He said that the department would go into much detail about this submission. SALGA had opposed the amendment of Section 21, particularly in respect of the possible disempowering of the issuing authority which had the accountability for law enforcement. The Department was critical of SALGA’s proposal for replacing Section 21, and had come up with a positive counter proposal so that one did not necessarily remove Section 21, but included an intervention mechanism.
It had also been suggested that a less expensive method of electronic service should be used, and a rehabilitation programme developed. The rehabilitation programme interlinked with Section 21, but in the absence of that, the most potent provision that would take its effect would be the rehabilitation programmes that would be administered. Also, it was submitted that the RTIA should be renamed. The proposal was to change the RTIA from an ‘agency’ to an ‘authority.’
The response of the DoT was that the interface between the NCR and local government management system processes was working efficiently, and this interface link was the one that produced the desired results. The matter of the eNaTIS challenges and the reconciliation of penalties had been addressed by making payments to issuing authorities. The RTIA had tried to be good custodians of the AARTO environment. In the 2014/15 financial year, they had collected R184 million, which had been paid to issuing authorities. In the 2015/16 financial year, they had made R264 million.
The electronic system had been introduced to help with saving costs for registered mail. The Department noticed that the City of Johannesburg issued between 200 000 and 300 000 infringement notices every single month. If one was serving the notices through registered mail, the cost of service came out at between R8 million and R10 million.. The provision of the various types of service methods would also significantly reduce the actual costs of service as required by the bill.
The RTIA had increased the capacity of its officers to deal with representation nationally. It was proposed that the Department should deal with the representation by ensuring enough capacity. The regulation made provision that any representation submitted must be adjudicated within 21 days. The RTIA had adjudicated 99.34% of representations, as provided by the legislation. It was not possible to adjudicate 100% at end of financial year, because one had to make provision for those that submitted representations on the very last day or week.
The Department had agreed with the proposal to withhold monies from the RTIA. This was the proposition that RTIA had made, that it was empowered to withhold monies from the issuing authority if the issuing authority did not comply with legislation. The RTIA proposed that, similarly, if the RTIA was not compliant they should also be penalised by the issuing authorities by withholding money that was due to the RTIA. The Department had agreed with this proposal.
Holding the registered owner of the vehicle responsible for infringements and not the driver was actually the current process that was being followed in the Department. There were similarities between this submission and Cancom’s submission during the second day of public hearings. In those circumstances where there was electronic detention of non-compliance, the details of the driver were not necessarily at hand and the only detail one had was the owner of the vehicle. This would help to point out who had contravened with the law. The owner of the vehicle would then be given the opportunity to declare who the driver of the vehicle was at the time of the infringement, if they were not the driver. However, the Department disagreed with amending Section 21 because the warrants had a negative impact on socio-economic issues. The Department agreed with the inclusion of the provision to establish and administer a rehabilitation programme, but the socio-economic impact of the warrant execution was something that the Department had considered.
TASIMA’s submission was comprised of two issues -- legislative provisions and the other operational issues. Mr Chuwe commended the Committee for not allowing for stakeholders to use them to fight battles that were not related to the Bill. TASIMA had indicated that the eNaTIS had 20 different integrated modules, all aspects of the NCR had been tested and were functional. They had indicated that it was not optimally operated by the issuing authorities and RTIA, but the NCR provided for all the required functionality, and there were exceptions that may still be handled under the Criminal Procedure Act (CPA). They had proposed the removal of the definition of the National Road Traffic Offences Register (NRTOR) from the Bill.
The response of the department was that the eNaTIS had been developed as a register of vehicles, drivers, etc and any addition to NCR functionalities had caused numerous changes to the eNaTIS, costing the government millions of unnecessary rands. RTIA’s assessment of the NCR had found 101 deficiencies and had reported this to TASIMA in 2013. Only five issues had since been attended to. The issuing authorities and RTIA had stopped issuing notices due to the lapse of posting processes. The NCR had some issues that had been presented to TASIMA. It was a misrepresentation that the NCR was ready for national implementation. Further, the proposals by TASIMA were not welcomed, nor acceptable, to RTIA requirements, as TASIMA had also proposed some changes to the system. This meant that changes to the system would automatically require changes to legislation as well. Operational issues were dealt with through the AARTO master implementation plan on a continuous basis. The government had a prerogative to determine its business and operational requirements and tools.
The JPSA had submitted that electronic service ignored the laws governing the service of legal documents, and that the service was inadequate, as not all drivers possessed cell phones and the other electronic addresses contemplated by the section, nor were motorists technically competent. There were currently three cases where the JPSA had taken legal action. Firstly, it had sued the Minister of Justice and the Minister of Transport. Secondly, they were suing the RTIA as well as the municipalities of Tshwane and Johannesburg. Thirdly, they were suing the Registrar in his personal capacity for the work that was being done under the AARTO. Other issues that they had mentioned were sub judice, so the Department was not in a position to respond to the submissions by JPSA.
The response of the Department was that the point made by the JPSA was inapplicable, because the AARTO was a pure administrative process which was unconnected to the court system. In any event, the rules of the court (Rule 4A) had been changed since 2012 pursuant to the proclamation of the Electronic Communications and Transactions Act (ECTA), to accommodate electronic service of court documents. Motorists would be served with notices electronically to the extent that they would have provided such address information to the Agency
JPSA had also submitted that the presumption of service based on secure mail was inadequate, as the Agency had never been able to serve any courtesy letter using that method before.
The response of the Department was that this point raised by the JPSA was irrelevant, as it did not relate to any clause which was proposed in the amendment. The agency had confirmed that it had been able to successfully effect the service of documents, utilising the registered mail.
JPSA had submitted a proposed amendment through the insertion of sub-section (3) under Section 32, because the section did not do anything to enhance the efficiency of the system. The issuing authority became entitled to the AARTO share of revenue as soon as it began complying again.
The response of the Department was that the measure would compel the issuing authorities to comply at all times, because the retention of the revenues would adversely affect their cash flows.
Furthermore, JPSA had submitted that a remedial driving programme should be developed for demerited drivers. It also mentioned issues relating to the unconstitutionality of the Bill.
The response of the Department was that the bill had been referred to the State Law Advisors for pre-certification and the certification process. The reason for these referrals was to obtain confirmation that the bill was indeed constitutional. Pursuant to the tabling of the constitutionality issues during the oral submission, RTIA and the Department had engaged with the State Law Advisors to obtain additional information regarding the compliance of the legislation with the constitution.
Cancom had submitted that the system was not adequate because it did not make provision for delivery notices that were sent to the infringer by SMS, there was no clause that dealt with infringements by international drivers, and the issuing authorities were unable to manage the volumes of infringements they received in their respected areas. The manner in which the different infringers were communicated with should be different -- individuals should be served through registered mail, and companies via electronic notification, through web services or file transfer protocol. Cancom submitted that there should be emails with delivery receipts and monthly electronic files to confirm receipt of all notices.
The timelines for an infringer should be managed differently for each of the infringers. The bill should make provision for individuals to be able to make payments more easily. For companies, a time to identify the offender should be increased, as this would enable electronic notification via the web, and an audit trail could be developed to ensure notices were sent to the correct person.
The response of the Department was that the bill sought to address the service of documents via other means. An SMS would not be used for service, but to inform the infringer of their processed infringement. Standard operating procedures had already been developed and were currently being implemented. Capacity for capturing electronic submissions had been developed. The Department had also communicated to Cancom that the election to be tried in court should be done in line with the law, and RTIA applied the law only when the infringer had not responded to the infringement. The system that Cancom was proposing for individuals to receive infringements via the registered mail had proved to be expensive. Companies already had access to the web, email transmissions could already be tracked and proven, and proxies needed to take responsibility for vehicles that were registered in their name.
RTIA had also increased the payment points to more than 2 000 platforms. The time to nominate was 32 days, as per the Act – the Department did not support providing any additional time just for businesses. As such, the web application for nominations was available to fleet companies. The notices were sent to the addresses provided by the infringer or to the registered owner’s addresses.
In addition to the oral submissions, there had also been written submissions. It had been submitted that motorists were not sufficiently sophisticated to interact with the electronic serving method, and in addition to that, it was proposed that all official 11 languages should be used when serving the notice via registered mail or addresses.
The response of the Department was that the AARTO provided varied methods of serving in order to suit the different needs and circumstances of infringers. The traffic fines had historically been communicated in English and Afrikaans. The suggestion made relating to the use of all 11 languages had been accepted.
Mr James Geach had not submitted any substantive input relating to the Amendment Bill, but he had mentioned that the South African Post Office (SAPO) was not a reliable channel for serving infringements.
Mr Solly Tayob had submitted concerns relating to operational issues, such as the inaccuracy of the database information.
The Chairperson asked the law advisors to also make their inputs relating to the public hearings before the Committee asked questions.
Adv Noluthando Mpikashe, Parliamentary Legal Advisor, commented that there were four legal issues that had been raised concerning the Bill. These included the three which Mr Mokonyama had already mentioned, and the fourth was related to the AARTO’s inequality in respect to the pilot project being rolled-out in only one province. The JPSA had submitted that the AARTO was unconstitutional because it presumed that someone was guilty until proven innocent. They relate this submission to the bill stating that once a person had received a courtesy letter, that meant that the person was assumed to be guilty in terms of the Act and the Amendment Bill. As mentioned before, the submissions for the bill had been made outside the Bill; there was not a single mention of a clause that had been pointed out as being unconstitutional. The submissions were general submissions that had been made for the whole Bill.
The JPSA had also submitted that there were sections of the AARTO which violated Section 35 of the Constitution, as it stated that everyone had the right to remain silent until they were proven guilty. Section 35 of the Constitution dealt with three categories of people -- those that were arrested, detained and accused. The courts and scholars had said that Section 35 of the Constitution was applicable during and before the trial of an accused person. The AARTO process was not a criminal justice system, it was an administrative way of dealing with offences that were committed on the road, and this was evident in Section 17 of the bill. Further, in terms of Section 17 of the bill, where a person was alleged to have committed an infringement, the issuing authority had the right to issue that person with a notice, and Section 17 listed the things that should be included in the notice. Importantly, Section 17(1)(f) says that “the issuing authority must inform the infringer that in no less than 32 days after the date of service, the infringer may…”, and after this it lists things which the infringer may do.
Another paragraph that she alerted the Committee to was Section 17(4), which says “the infringer may elect in the prescribed manner to be tried in a court on a charge of having committed the alleged offence”. This meant that only after this did the infringement become an offence in terms of the Criminal Procedure Act, and only then could the presumption of innocence kick in for the court procedures to take place. After this, the state would be given a chance to prove their case and the elements of the crime beyond reasonable doubt. The infringer would also be given a chance to prove that they did not commit any crime. Therefore, the Bill did not state that one was guilty before being proven innocent. She said there was no clause in the Act or Amendment Bill that violated Section 35 of the Constitution.
Another matter that had been raised was the issue of electronic service. The JPSA had also mentioned that in SA, electronic service was not allowed. She disagreed with this. In 2012, a general notice had been issued by the Department of Justice under notice number R464. It was titled Amendment of the Rules Regulating the conduct of the proceedings of the several Provincial and Local divisions of the High Court of South Africa, and it allowed the electronic service of delivery. It read: Delivery of documents and notices: Service of all consequence notices, not falling under Rule (4)(1(a), “in any proceedings and any other party to the litigation, may be affected by one or more of the following manners to the address or addresses provided by that party under the rules”. Facsimile and electronic mail were listed as ways in which one could serve a notice, as per Rule (4)(1)(a).
The JPSA had also mentioned the Section 29 notice of the National Credit Act. She alerted the Committee that the Constitutional Court had dealt with the Section 29 notice. In the case of the Baliso v Firstrand Bank judgment, the Constitutional court had used a paragraph which read: ““once a credit provider had provided the track and trace report indicating that a Section 29 notice was sent to the correct branch of SAPO and had shown that a notification was sent to the consumer, that credit provider would have generally shown that it had discharged its obligation under the Act to effectively deliver notices”. What the courts were interested in was whether the person who had sent that notification was able to prove that it had been delivered, and this would be sufficient for the courts. Initially, the JPSA had been concerned as to how the Department would prove in court that a notification was sent.
Adv Mongameli Kweta, Senior State Law Advisor, commented that according to the stakeholders, once an infringer had been served with a notice, he/she had to prove that they were not guilty, or that they did have the right to be heard. Section 33 of the Constitution provided for just administrative action, and stated that “everyone had the right to administrative action that was right, lawful, reasonable and procedurally fair”. The right for any infringer to be heard before the court was linked to “procedurally fair”. The right of access, which was provided in Section 34 of the Constitution, gave the infringer the opportunity to appear before a court or a tribunal to state their case. The Promotion of Administrative Justice Act (PAJA) had been duly propagated and enacted to give effect to Section 33 of the Constitution. The Act provided that the infringer had the right to administrative action that was lawful, reasonable and procedurally fair.
Concern had been raised by stakeholders relating to clause 9 of the bill, which provided for service of documents to the infringer’s personal or registered mail. The amendment to the bill in clause 9 provided that a document that had been served on the infringer should also be reflected in the RTIA register. The concern of the stakeholders was that during the adjudication process, while the infringer was being served with a notice, the infringer was not being given an opportunity to be heard or state their case -- that was, before the demerit points were imposed. Chapter 3 of the principal Act outlined the adjudication process in respect of road traffic infringements and the various options that were available to the alleged infringer.
Section 17(1) of the Act stated that once an infringer had been served with an infringement notice, the infringer would notice that their infringer notice contained their personal details, details of the infringement, the demerit points and the right to legal representation in court. These were all the options that were available for the infringer. This meant that the infringer was involved in the whole administrative process. Also, the infringer was given the right to choose whether they would pay an infringement fine within 32 days, or present their case in front of a judge. The infringer also had the right to reject the infringement through a letter, which had to be sent to the issuing authority, stating that they were not the driver of the vehicle during the time of the infringement.
The Act provided that the issuing authority may send the infringer a courtesy letter, on top of the notice of the infringement, reminding them that they had been served with a notice. The courtesy letter also provided the infringer with information about the infringement, their right to state their case in court, the different options of how the infringement could be settled, etc, or to warn the infringer that failure to comply with the law would result in the Registrar issuing a court order against them. If the alleged offender was tried in court, due process with come into play. The alleged infringer had the option of giving effect to the PAJA, rather than opting to go to court.
The stakeholders had submitted that the AARTO Act promoted inequality. This submission was related to Section 36. The Committee should note that Section 36 was not being amended. The stakeholders’ concern was that Section 36 provided that different days may be determined for the implementation of the different provisions of the Act in different areas. Bearing in mind that the actual Act had been piloted only in the cities of Tshwane and Johannesburg, Section 9 of the Constitution provided that everyone had the right to be treated equally. On the other hand, Section 36 of the Constitution states that any right in the Bill of Rights may be limited by a law of general application to the extent that the limiting was justifiable and reasonable in an open and democratic society based on human dignity and equality to freedom. The conditions set out in Section 36 stated that a person should consider factors such as the nature of the rights, the importance of the limitation, the extent of the limitation and whether there were less restricted means to achieve the purpose. The Constitutional court had pronounced on the issue of limitation, saying that the limitation had to be rational.
Stakeholders had also mentioned the demerit points system falling outside the ambit of the bill. The demerit system had not been rolled out yet, but various stakeholders were still not happy with it. His view concerning the demerit system was that the design of the Act provided multiple options for infringers to settles their infringements. The demerit system came into play only when the alleged infringer failed to respond to the notice of the infringement. He believed that the process did not violate any of the rights contained in the Bill of Rights.
Mr C Hunsinger (DA) said he would like for the new amendments to be changed as soon as possible in order to get a better view of the bill. The NRTOR had been proposed in the bill as an amendment by the changing of wording only. He asked how this differed from the NCR, and which of these two were used during the pilot process. He understood that there were infringements that were categorised as minor, and others that were categorised as major. The Department must compile a comprehensive list that explained which offences were major and which were minor infringements. Also, a comprehensive explanation of how each category would be legally dealt with and what available options an infringer had within the categories. Section 9 of the Bill had been proposed as a provision that stated that all notices must be sent via electronic services, but this had not come out clearly. He asked that the section be amended again to make it more specific, and making reference to when the NRTOR or NCR would come into effect.
With regards to dealing with international drivers and companies, he suggested that some form of register be developed that would regulate international companies and drivers. In most cases, local companies preferred to use international transportation because they tended to get away with bending the law. He expressed his concern over the Department’s claim that it was a “misrepresentation that the NCR was ready for national implementation”. The department needed to be clear about what the possible failures of the NCR were, and how it perceived it would perform nationally.
The JPSA had commented on operational issues which the Committee had not taken into consideration before. These comments should be considered, as they could be useful for ensuring consistency across the country when the Bill was implemented. The importance of the Regulatory Impact Analysis (RIA) must be considered, because it dealt with matters like cost implications. At some point the Committee would have to take these into consideration as well.
Mr M de Freitas (DA) said there had been a lot of comments on the readiness of the NCR, especially in connection with dealing with international companies and drivers. What really mattered was how effective the NCR would actually be once the bill had been implemented. He asked the Department to comment on the readiness of the NCR, as well as how the provincial issuing authorities would be incorporated into one register. He sensed that there would be major problems with the demerit points system being linked only to the vehicles themselves. There were many people who would have number of vehicles in their names, and would perhaps never drive the vehicles. The Department must take this into consideration. Surely the demerit points system must be linked to the driver and not the vehicle. Although the rehabilitation programme was a good idea, the practically of it did not make sense to him. He asked how would the programme be funded, and how the Department would prove that someone had been rehabilitated.
Mr M Maswanganyi (ANC) said the penalties on the infringer, which included the implementation of the demerit system by withdrawing their vehicle licence, permit and the licence disc, were a bit too strenuous. He asked if this was not perhaps too much, since the infringer would still have to commit to community service and attend a rehabilitation programme. He asked how the infringer would attend these programmes or attend to community service when he did not have the means to get to the destination. Also, the demerit system would not work, especially when the driver had not yet been charged by the court. The Department should have benefited from the Tshwane and Johannesburg pilot projects. The pilots should have shown what the possible advantages and disadvantages were so that the Department could improve on them. The SALGA had been the only organisation that had managed to provide detailed reports on the implementation of the pilots in the cities.
There was a parking problem within universities, because the parking bays were initially made only for the staff. Nonetheless, due to the increase in affordability, parents could afford to buy their children vehicles and due to the lack of parking space the students ended up parking in areas that were not initially made for parking. The way the Department did its planning did not always come into effect on the ground, and it could mean that the people were unable to comply with the law. He expressed his concern about how expensive and inaccessible the legal system was. Every time people had to go through a legal review, they had to go through conventional courts that were very expensive. There were areas where legal processes were done through a tribunal, which was much cheaper than going to court. The fact was that criminal review procedures could be afforded only by a few rich people in South Africa.
Mr G Radebe (ANC) asked the Department how it would manage to deal with matters where people changed email addresses, which could be due to a change in work positions, or when they refused to submit their phone numbers. He also asked what the purpose of the legislation was, because it did not give him good satisfaction.
Mr L Ramatlakane (ANC) said he was tempted to answer Mr Radebe about what the purpose of the bill was, but he would leave that job to the Department. He asked the Department whether they had consulted with constitutional law advisors for the purpose of clarifying the claims that the bill was unconstitutional. The issue that SALGA, Cancom and SA Taxi had raised on what the pilot process had proved -- its successes and failures -- should have been a part of the report. Could the Department explain what they had learnt from the pilot process, or was the information classified? The issue that had been raised about the definition of infringements could be solved by categorising the infringements under a list, where each category was defined separately. What was the current situation for penalties for foreign companies and foreign drivers – how many unpaid foreign infringements did the country have? He also proposed that legislation should make provision for defining the different means of fine payments for local and foreign drivers.
Ms S Xego (ANC) said she was glad that the SALGA had made a submission, because they represented the public and she believed that they had the best interests of the public at heart. The SA Taxi submission was worrying, because their presenter could not answer the questions that had been posed to him. She asked if the Department had developed any central data base that would be able to show whether someone had indeed received their notification. There had been a submission that proposed the usage of a cheaper secure mail, rather than registered mail -- had the Department done any research on this proposal, and were the mails in fact different? She proposed to the Committee that the process plan should be amended, to give those stakeholders that would be directly affected an opportunity to make submissions.
Ms M Sibande (ANC) said most of the submissions from the stakeholders were from organisations who were worried about how this bill would affect their salaries, and not necessarily the public. The Department should have responded to the tactical methods of some organisations who were trying to manipulate the legislation to make it work for themselves. The legal advisors had not mentioned the proposals in Section 21 because many of the stakeholders had submitted concerns and proposals to amend this Section. He felt that the Committee should involve people that were directly involved in the transport industry, which meant that the Department should consult with more people. He was concerned whether the Committee was not perhaps moving too fast with the process. He asked how the RTIA would be correlated with other existing legislation.
The Chairperson asked Mr Sibande to clarify what he meant by saying that the Committee should consult with more people.
Mr Sibande replied that he understood that there were timeframes for amendment bills that should be followed. However, taxi associations must be given an opportunity to make submissions to the Committee because this Bill affected them directly.
Mr T Mulaudzi (EFF) asked if the RTIA system would be linked to the Department of Home Affairs, to help the department to secure the borders. There could be many reasons why the taxi associations had not submitted comments on the b,ill and this was related to how the Department had promoted it to the public. He asked the Department how far they were with their awareness programme. He agreed with Mr Ramatlakane that constitutional law experts should have been consulted before amending the bill, because the JPSA had already threatened to take legal action. The governments of Tshwane and Johannesburg should be invited to report to the Committee on what their experiences had been, what the important points were to consider once the Bill was implemented in other provinces, and what they believed should be done differently. He also asked when the RTIA provincial offices would be opened.
Mr Mokonyama replied that Johannesburg had submitted a report, but it had not beensufficient. If the Committee believed that the responses they had received were not enough, then they were welcome to call for more submissions. The Committee could invite Tshwane and Johannesburg to present their reports. The legal advisors from the Department would answer the tactical questions. When the Department dealt with amendments, it did not refer to the Act, but rather to the Amendment Bill. The Principal Act could, however, be referred to when Members were trying to state their case. It should be noted that the intention of the bill was to deal with the issue of traffic fines. The Department was trying to avoid going to court and spending millions of rands. In fact, the court process was the last resort. The importance of SALGA could not be over-emphasised. The Department continually consulted with SALGA through workshops. It was aware that the Committee was worried about the claimed unconstitutionally of the bill, but they had duly consulted with legal advisors. Perhaps the Department needed to get a declaration order from court. This process was slightly longer than the usual processes, but they were prepared to take this route.
Mr Chuwe said the legal advisors would answer their questions and he would answer any questions that had been left out. There was an interesting element of the pilot. When one considered all the facts and implications, one would find that there was nothing unreasonable about the implementation of the bill.
The Chairperson reminded the Committee that they had a sitting at 14h00 in the National Assembly. She asked whether the Members would prefer to continue with the meeting at a later stage and prepare for the sitting at 14h00, or continue with the discussion until lunch time. She said the former would allow the Department and legal advisors time to properly prepare their answers to present to the Committee.
Mr Ramatlakane suggested that it would be better to give the Department and legal advisors enough time to prepare their answers.
The Chairperson asked if everyone was in agreement with the suggestion.
All the members of the Committee agreed.
The meeting was adjourned.
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