AARTO Amendment Bill [B38-2015]: deliberations

Meeting report

Administrative Adjudication of Road Traffic Offences (AARTO) Amendment Bill [B38-2015]: deliberations
The Chairperson expressed her dissatisfaction with the small number of Members that attended the Committee since a quorum was required to take decisions. She noted that because of the absence of such a quorum, deliberations only would be held on the AARTO Bill would take place, with the decisions being postponed. The Committee was under pressure because of Bills having been postponed whilst Parliament was in recess for local government elections.

Clause by clause deliberations
General issues
Mr C Hunsinger (DA) wanted to refer to the general issues and expressed his concerns about three aspects
- firstly, the financial cost of implementation, with particular reference to the financial state of municipalities affected by the AARTO Bill. These concerns were based on the experience, and on the experience of the expenditure by the pilot project in Johannesburg,where the costs had increased up to R16bn for training and equipment only (two crucial aspects of implementation).
- secondly, he had concerns around the standard operating procedures, and the development of legislation, bearing in mind the realities that had to be faced before any implementation. Even the pilot project isolated inconsistencies, which could be expected when working with a wide scope of managerial and operational implications. More detail would have to be found on these before drafting the Bill
- thirdly, he was still not happy with the differentiation between minor infringements and major infringements and asked for further clarification about what each type implied.

Mr M Maswanganyi (ANC) asked for clarification on the introduction of amendments, either to the Act or the proposed Bill.

The Chairperson explained that the current amendments were affecting both provisions in the Act and were picking up on previous Bill drafts.

Mr Hunsinger thought Clause 9 lacked clarity in regard to electronic use and conventional post, because the way the Bill was worded did not make it clear whether these should be complementary or “and” options, or “or” that would make them mutually exclusive. He thought that a combination of the two methods should be used. This would result in savings. He noted the intention of the Department of Transport (DoT or the Department) to move towards electronic notifications and he asked at what stage it would be possible to shift to a purely electronic system. He would welcome an open debate.

The meeting broke for a short while to caucus.

On resumption, Mr Hunsinger asked if other Members were to join the meeting and was told that no more Members were expected. On hearing that they were not, he suggested that an official from the DoT should perhaps answer questions still outstanding from the previous sessions.

Committee while making inputs.However, he questioned the sense in continuing without a full Committee as it could mean that not all input would be on record, and he asked about the next stage of the Bill.

The Chairperson said that once a quorum had been reached, the Committee would be asked if it would be willing to formally place the Bill before Palriament. All contributions from Members and stakeholders would be taken into account before discussing the Bill in the House. The Bill would be prepared in an English version for the House.

Mr Hunsinger argued that many contributions and questions had not yet been addressed and discussed with Members, therand he was unsure if these points were included.

Mr G Radebe (ANC) asked who will have the main authority in respect of cross border transport, in respect of clause 3 . He also wanted to know about the potential monetary cost of shifting the authority for transport-related issues to the Road Traffic Infringement Agency (RTIA), and where the budget would come from.

Mr Maswanganyi said that the Committee should be mindful of the possible legal problems in continuing without the rest of the Members present, and he suggested that rather than working on new issues, those present now should confirm that all previous concerns had been taken into account. He requested legal advice on the state of the meeting.

The Committee Secretary said that, given the current absences, the Committee had a duty to nonetheless proceed raising issues of concern and proposing changes. These could then be further discussed at the following session.

Mr M Sibande (ANC) supported the previous proposals and suggested that Members continue on the basis of reviewing the previous changes suggested.

Answers to questions raised in previous session
The Chairperson asked that the official present respond to questions raised at the last session.

Mr Thabo Tsholetsane, Chief Operations Officer, RTIA, firstly addressed questions around municipalities' acquisition of equipment and the cost they will be assuming regarding vehicles, offices, electronic equipment and other aspects. The Department had been evaluating what material the municipalities involved in the pilot project had. RTIA will cover and provide training for public authorities

The next issue raised related to the outsourcing of data updating to service providers. RTIA explained that this would actually help municipalities save money as they would not have to increase their staff.  Currently, the task of collecting drivers’ data was done differently by each city, and they were implementing the stages that should lead to standardisation of 31 or so procedures that were currently used. This standardisation should avoid company misbehavior or attempts to deal with the administration from another municipality instead of going to the local municipality.

Mr Tsholetsane addressed the question about the terms ‘minor’ and 'major' infringements in the Bill. He clarified that this relates to the initial three categories stated, including offences. However, there would be only two types of sanctions - one for infringements and one for offences. For infringements, there would be a detailed categorisation of infringements that will facilitate the task of assigning de-merit points to a license. These might include parking without obstruction or parking in a way that was obstructing the flow of traffic; the latter could translate into demerit points on the driver’s license.

He then explained that it was necessary to include a task management position in the issuing authorities, who would be tasked with implementing all aspects of AARTO.

Mr Tsholetsane then addressed the question by Mr Maswanganyi about categorisation of infringements. In a previous Committee session, it was explained that if the driver is a different person to the owner, each will be liable for different penalties - for instance for driving an unlicensed vehicle and for owning an unlicensed vehicle. If the owner and driver were the same, only the highest penalty would apply. Under the new system all registered owners will be notified when their vehicles are the subject of infringements.

In regard to Mr Sibande's question about the success of the model proposed in the Bill, Mr Tsholetsane explained that when the system was implemented in Johannesburg the number of categorised issued infringements went from less than 200 to over 430.

Mr Tsholetsane then addressed Mr Radebe's question on outsourcing of services. He clarified that it was not the issuing that would be outsourced, but the training provided to registered municipal and local authorities in order for them to provide the service would be outsourced.

Mr Sibande said that the numbers were important.

Mr Hunsinger wanted to return to the financial issues. There were novel intentions and objectives with this Bill. It was possible that it might achieve some savings in other departments, such as health, by reducing accidents. However, he urged the DoT to come up with real numbers. Although the DoT had numbers from the pilot project, no prospective analysis has not been given, and that would require estimated revenues, incomes, and others. He would not be happy to pass the Bill without those numbers having been presented and analysed. It was vital that the municipalities knew the expected financial implications. They would have to implement the Bill at the local level, directly affecting their budget cycle, which they had to manage very carefully a year in advance. He added that without clear targets the DoT will not be able to analyse and reach conclusions on the success of the implementation.

Mr Hunsinger asked the DoT what systems were already in place to assign sanctions. He particularly wanted to know the time frame for giving demerit points to infringers - and suggested that an example could be the number of points for drunk driving, or the number of points for failing to wear a seatbelt. For the drunk driving the demerit points could be quantified only after a court judgment whereas for the seatbelt it would apply instantly. He suggested that DoT should consider some form of disqualification during that period of time that the infringers were the subject of a court assessment.

Mr Hunsinger finally noted that the DoT should be careful when extracting assumptions from a project that had only been implemented in cities, very different from municipalities. Even when comparing metros, it must be noted that Cape Town gained R40bn from traffic fines, 40% of its revenue, and this raised the question of what would happen under a changed system.

Mr Maswanganyi suggested that the Committee could start looking at the amendment list. He agreed that it was important to consider the effects that the implementation process could have at the municipal and local levels of government, both positive and negative. He also urged the Committee to be more specific and broader in its understanding of possible and upcoming issues so Members could be able to address the questions around the media if approached.

The Chairperson followed up on the points raised by Mr Hunsinger about the finances. The DoT was requeted to summarise all financial conclusions extracted from the pilot project and SALGA's experience. Once it had that, the Committee would be able to deliberate about how to incorporate the financial evidence, after public hearings had been concluded.

The Chairperson enquired about the rehabilitation programme saying that “rehabilitation” was not included in the Objects of the Bill, and although the Bill touched on this, it seemed to be in concept only.

Clause 1

Mr Maswanganyi asked for clarification on what 'clear' meant in Clause 1(a)

Mr Tsholetsane said that besides being certified, any copy of  an issued license must be legible, and the holder must be recognisable from the photograph.

Members raised some comments at this point whether it would not be wise to postpone the clause by clause reading.

The Chairperson concluded that this session was being used to increase inputs and deal with corrections and the clause by clause reading would be done during a full Committee session. She added that the Committee was also awaiting suggestions from the State Law Advisers that would take account of the points raised by the Committee.

Mr Maswanganyi pointed to section 1(c) of the principal Act and asked for clarification on  the difference between then terms 'agent' and 'authority'.

The Chairperson intervened at this point. Whilst she was happy for the DoT to address questions such as that one just raised by Mr Maswanganyi, she also wanted  RTIA to take the Committee through the current amendments. Another list of amendments to the principal Act is to be presented by the Legal Advisers.

Mr Tsholetsane tnoted that in the previous legislation there was only one reference to the RTIA (also called the Agency). That did not grant it any real authority when requirements were not met by other parties. With the current specification in the Bill, the powers of the Agency were wider and it could even go so far as withholding money from municipal authorities if procedural requirements were not met. This should simplify the complications that the RTIA presently faces.

Mr Maswanganyi argued that the DoT must bear in mind that municipalities are a sphere of government and the RTIA is just an Agency under the Department. An accumulation of power in an Agency being exercised against municipalities could create problems in cooperative governance.

Mr Tsholetsane argued that because municipalities hold such power, the current provision around the possible withholding of monetary resources aims is specifically intended to address and correct misbehavior on the part of the local authorities. Judging from the experience of the pilot project,  the Municipality of Johannesburg, with input from the SA Local Government Association (SALGA) had  requested a better power balance between the Agency and the municipalities, to deal with cases where there might be mismanagement.

Mr Radebe felt that there was not sufficient clarity on the term “RTIA” and he wondered why the term “Agency” was not included in the definition.

A Legal Adviser from the Department of Transport referred to the principal Act and said that the legislation already provided a definition of 'agency' in section 3 of the principal Act. Because there was now a shift in the use of the words, from Agency to Authority in the Bill, there had to be a new definition for 'Authority'. That change was now reflected in the Bill.

Mr Tsholetsane brought it to the attention of Members that clause 10 of the Bill proposed an amendment for section 32 (3) of the Act. The power to issue penalties would be acquired by the new 'Authority'. In summary, the amendment in clause 1(c) is simply a change of name, with the adjudication of new powers added.

Mr Tsholetsane then referred to clause 10 of the Bill, to shed light on an additional power given to the Authority. He went back to the example of mutually applied penalties presented by Johannesburg's authorities, emphasizing that the Authority will also be subject to checks on  compliance.

Mr Maswanganyi expressed his opinion that these provisions would cause complications. He argued that the Department should not over regulate, because there could be unexpected consequences  between the DoT and municipalities. These provisions ran counter to the spirit of cooperative governance and ultimately would lead to difficulties.

Mr Radebe pointed out that with the current provision a serious competition of power between levels of government would appear, and so he supported Mr Maswanganyi's suggestion of dealing with issues of compliance from a cooperative governance viewpoint.

The Chairperson asked the legal advisers to look into amendments and to consider the whole of section 32, as well as considering the empowering provisions, in light of the concerns raised by the Committee about cooperation and competition among levels of government.

Mr Maswanganyi asked whether it was really necessary to specify the types of electronic means of communication in clause 1(d), under the definition of 'electronic services'. Due to the changing dynamics of this industry, specifying this in the legislation could lead to continuous amendments to cater for any innovative and unknown channels of communication. He would like to see this re-phrased.

Mr Radebe also suggested that the provision should just specify the use of 'email and related means'. He thought the provision should be left open because of the ever-changing use of social media as a legitimate channel of communication.

The Chairperson agreed with the previous contributions and added that there was a need to include a mention of matters of privacy.

Mr Tsholetsane argued that the DoT had considered this aspect when drafting the section, after consultation with experts in the field, and they had been careful to refer to all existing means of communication. DoT believed that the current provision fully catered for the concerns raised by Members.

Mr Radebe disagreed, and argued that even after the explanation from the Department, he still felt that the section was exclusionary.

The Department's Legal Adviser clarified that clause 1(d)(a) was sufficiently open to include any type of electronic means of communications, and so the concerns of Members were covered.

Mr Tsholetsane added that the DoT had made a mistake by not referring to municipalities as issuing authorities in the definition.

Mr Maswanganyi was still not happy with the explanations because he thought that the clause should be worded more widely, with the detail being added in regulations.

The Legal Adviser took the point and said the DoT would work on new proposals.

Mr Tsholetsane highlighted the principal Act's wording in relation to infringements, and said that a distinction was no longer being drawn between major and minor infringements.

The Legal Adviser then noted that before some of the proposals that had been made by Members earlier were incorporated, the DoT had wished to check them.

The Chairperson said that since these had been officially proposed by Members they should have been incorporated already.

Mr Radebe said that the Legal Adviser had acted out of order. The function of the officials was merely to determine whether the proposals were relevant, and if they were, then they should have been included. The Committee had the job of oversight and approval, not the Department. Even if not all members of the legal team had attended the Committe's sessions, it should not be necessary for the legal advisers to go back and consult again with the entire department.

The Chairperson made some inaudible remarks.

Name change
Mr Tsholetsane said that there had been discussions on the change of name from the National Contraventions Register (NCR) to either National Offences Register (NOR) or National Road Traffic Offences Register (NRTOR). The Department wished to know the preference of the Committee.

Mr Hunsinger said that his question had actually been directed to whether a change of name would cause any substantial difference in the functions of the Register. He was in agreement with the NOR descriptor

Mr Maswanganyi referred to section 14 of the principal Act, that referred to Chapter 7 of the Constitution (Local Government), and said that the Local Government Transitional Act mentioned in the section no longer was in force.

The Legal Adviser responded that if the Constitution sets this framework, any mention of it must be repeated against relevant national legislation.

Mr Radebe proposed the removal of the reference to Local Government from this section.

Mr Hunsinger thought it should be maintained. There were numerous references to the delegation of authority. As the Committee had discussed on previous occasions, this piece of legislation is particularly important for municipalities and therefore the reference to that legislation should remain.

Mr Tsholetsane pointed out that the references could be updated and made the subject of a further amendment. He also mentioned that the inclusion of other points was being discussed, particularly in relation to cross border matters, and may be included. If this was done then the definitions would need to be amended.

He added that clause 1(j) was amending the figurehead of the 'representation officer'. Currently, that officer would be a person contracted by the Agency in terms of section 5 of the Act, or appointed by the Registrar in terms of section 10, after an infringement had been committed. This raised many issues. If the main body of the legislation were to state that the representative must be contracted by the Agency there was the possibility of corruption unless the environment was strictly controlled, as this was national legislation. If the reference to minor and major infringements was to be dropped, this would affect the role of the representation officer.

Clause 2

Mr Tsholetsane elaborated on clause 2, which amended section 4 of the AARTO Act. This emphasised earlier points about the Registrar not having absolute power. It provided for an appeal process.

Mr Maswanganyi argued that even with the current provision the Registrar had similar powers to a court, and he felt that an infringer would face too many legal consequences in front of the Registrar.. In principle this office should not have these powers, and the budget really did not support it.

Mr Tsholetsane noted the points and said that the DoT would come back with more proposals.

Chairperson's remarks
At the start of the afternoon session he Chairperson expressed her concern that the numbers in the Committee had dwindled still further (except for apologies). There had been huge input into the AARTO Bill during the public hearings and it had already changed quite significantly from the version presented at the public hearings. The next meeting would allow for new issues to be raised and debated.

Clause 2 continued
Mr Tsholetsane noted that clause 2(d) stated that section 3(c) of the AARTO Act will be deleted. Section 11 of the principal Act was important, as it dealt with remuneration with the approval of the Minister of Transport, "in consultation" with the Minister of Finance. Concerns had been raised about the authority of the Minister. It had been decided to withdraw the provision.

Mr Maswanganyi requested further clarification about the use of 'in consultation' in this clause.

Mr Tsholetsane explained that currently the Minister determines salaries and consults with the Minister of Finance on whether this is appropriate. That provision had applied since 1997 to avoid unilateral decisions being taken on monetary compensation.

The Chairperson asked what the role was of the Board in the consultation process.

Mr Tsholetsane clarified that if the actions of the political heads had been reckless, the Board could have the authority to deal with compensation.

Mr Maswanganyi asked if the Board's power to 'determine' allowed it to decide, or if it was limited to advising? He noted the use of the phrase 'in consultation' in section 11 and said that this might be unnecessary, given that there was a constitutional mandate that the Department must refer to the Minister of Finance on matters of compensation.

Mr M Sibande (ANC) enquired about the actual powers of the Board.

Mr Tsholetsane said that the Board would make recommendations which will be considered by the Minister. It was indeed the Executive's responsibility to consult with the Department of Finance. That was important because the DoT would have to finance its operations out of National Treasury resources until such time as the penalties issued started to flow back through to the Departmet.

The Legal Adviser clarified that the current provision pointed to the Minister's obligation to reach an agreement with the Department of Finance before realising compensation. He suggested that the Department could change the reference from 'in consultation' to 'after consultation' with the Minister of Finance. It was, however, correct that the Minister of Finance would have to oversee any matters related to compensation.

Mr Maswangnyi argued that there was a big difference between the two concepts and wanted the Legal Adviser to clarify.

The Legal Adviser said that either of the phrases would imply that there msut be involvement of the other party during the process. 'In consultation' implied a more meaningful involvement in the decision-making process. 'After consultation' presupposed that the consultation would be the final verification without the Minister having had to be actively involved along the way.

The Chairperson noted a proposal to withdraw the wording since it was in any event included in the Constitution.

Clause 3
Mr Tsholetsane noted that clause 3 that amended section 13 (d) of the Act, and pointed out that  "and" had been added between the two last subsections.. This was an inclusive preposition.

Clause 4
Clause 4 amended section 15 of the Act, which had stated that the Director General of the DoT must approve the opening and maintaining of bank accounts by the RTIA. The change now shifted the emphasis to ensure that the RTIA could not open any account without permission from the National Treasury.

Mr Maswanganyi asked why the RTIA should feel the need to open multiple accounts. He qeustioned the deletion of the word 'the' before 'money' saying that this surely was referring to a specific amount, not money in general.

Mr Tsholetsane argued that the quantities referred to in the clause may be from various sources. The reasoning behind opening several bank accounts was to allocate quantities separately for specific purposes and issuing authorities.

Mr Sibande asked why the Department had now included a reference to the Board, which was not in the previous legislation.

Mr Tsholetsane explained that the Board is the accounting authority, in charge of governance and engagement with shareholders. The Board would have extensive knowledge of issues in the entity.

Clause 5
Mr Tsholetsane explained that clause 5 was amending section 19(b) of the Act, changing the references to 'Agency' to 'Authority'. It now implied that the last process after non-compliance should be an enforcement order.

Clause 6
Clause 6 inserted an amendment into section 20 of the AARTO, to deal with the issuing of warrants. According to the current legislation, if an infringer failed to comply with an enforcement order, then a warrant would follow.

Mr Sibande asked what provision would cover the issuing of warrants when infringers did not comply.

Mr Tsholetsane explained that as previously mentioned, the final process would be to issue an enforcement order without the process of issuing a warrant.

Clause 7

Clause 7 amends section 21 of the Act, and deals with restitution of personal property such as vehicles. The Registrar may take decisions related to motor vehicles and immobilisations. The delegated responsibilities did not however seem to be feasible.

Clause 8
Clause 8 amended section 22(b) and dealt with the institution of a warrant. However, given that section 21 was to be deleted, this would also need to be deleted.

Mr Maswanganyi said that the DoT should meet with SALGA to discuss matters of law enforcement at the municipal level arising from a national mandate. There had initially been disagreement on the issues.

Mr Tsholetsane agreed that SALGA submissions did go into section 21 of the Act. The submissions concerned the immobilisation of vehicles, and exemplified the difficulty of meeting this mandate, which was the reason for suggesting that the section be removed. Some other comments on the section and the amendment related to perceptions of excessive power in the RTIA, and there was a danger of constitutional challenge, which could be very costly, should the section have been retained.

Mr Tsholetsane referred to the possibility of creating a Board of Appeals and set out the  organisational consequences that this could have.

Mr Maswanganyi said that he would support the creation of any platform that could make processes cheaper and faster. However, he was sceptical about the creation of a Board of Appeals. He also disagreed with section 23 (d) of the Act that referred infringers to the High Court, because this provision failed to take into account that high courts were not readily accessible for all citizens.

Mr Sigande asked what would happen where infringers could not easily be located, where their details had not been included in databases.

Mr Tsholetsane said that the processes now put in place were providing infringers with greater opportunities not to have to go all the way to the court. The reason why the High Court had to address these issues was that they were essentially reviewing an administrative decision that affected a citizen. He told Mr Sibande that even where infringers could not readily be located, they had been identified,perhaps through previous penalties and their details would already be registered on the system.

Mr Maswanganyi felt it was unfortunate to incorporate this provision at such a late stage of the drafting, although the inclusion made some sense because otherwise those participating in public hearings would argue that they were not aware of it. He pointed out that High Courts tended to postpone traffic cases to be dealt with right at the end of the rolls.

The Legal Adviser said that the provision was intended to guarantee that there would be public participation. Perhaps this new provision should be separately published for public comment before sending the Bill to the House.

The Committee Secretary noted that because substantial amendments had been made to the initial drafts, the DoT had considered that further public participation and engagement would be required. However, more information would be provided on that later.

Clause 9
Mr Tsholetsane noted that clause 9 amends section 30 of the Act. He criticised the inefficient job that the South African Post Office (SAPO) was currently doing, which posed a great challenge to the DoT. Municipalities had also complained about the cost of the inefficiencies to their revenue. Previously, section 30 wording had been problematic, referring to 'prescriptions' in the definition section.

Members returned to some discussion on electronic methods of service, and Mr Tsholetsane proposed that the phrase “as prescribed” should be used when referring to the type of electronic service that may be utilised.

The meeting was adjourned