The Portfolio Committee on Transport went through the recent drafting of the proposed Portfolio Committee Amendments to Administrative Adjudication of Road Traffic Offences Amendment Bill with the assistance of the Road Traffic Infringement Agency (RTIA). An important focus was the appeals tribunal established by section 28 which was a critical intervention which RTIA wanted to have within the AARTO framework. The Committee was generally pleased with the proposed amendments to the Amendment Bill. Members asked if being allowed to infringe twice on a 10 point demerit system was not too lenient; how would RTIA ensure that the appeals pipeline would not be congested; what happened after the appeals process; was there capacity to collect whatever was due to them; what the process was for appointing tribunal members, how remuneration of tribunal members would be decided on, the size and quorum of the tribunal and how RTIA planned to fund its rehabilitation programme and the tribunal staff. Members warned against a huge administrative burden which could arise and over regulation.
The Chief Executive Officer of RTIA stated that the tribunal would consist of a chairperson and no less than eight further members appointed by the President, on a part time basis, and on the recommendation of the Minister. The tribunal needed to be independent and have authority. Meetings could be held if 50% of the members were present. RTIA noted that there was a commitment of R10 million for rehabilitation programme funding. In closing the Acting Chairperson indicated that the problems and challenges South Africa had with regard to road tragedies should not take away the foresight of nation building and one had to guard against emotional responses in drafting the law which could create potential social unrest. RTIA was asked to return in two weeks’ time with the finalised proposed amendments to the Bill.
The Acting Chairperson said last year the Committee had engaged with the AARTO Amendment Bill. There were a number of concerns raised during public consultation about the double jeopardy and demerit system which was contained in the principal Act but never put into effect. The Committee was not properly mandated to handle some of these issues as they were not contained in the Amendment Bill. The Committee had needed to go back to the National Assembly which could mandate the Committee to continue the public consultation process. Those who were competent to deal with such matters were the legal advisors of Parliament who were present at the meeting
Ms Noluthando Mpikashe, Parliamentary Legal Advisor, said that the National Assembly had given permission to the Committee to proceed to amend further sections that were not part of the Amendment Bill. An A list, containing the proposed Portfolio Committee amendments had been drafted. RTIA would explain better what was contained in the A list.
The Acting Chairperson said that the adoption of the A list would not be concluded in the meeting. In the next meeting a decision would be made and there after public comments would be taken into consideration.
Mr Japh Chuwe, Road Traffic Infringement Agency (RTIA) CEO, went through the A list and touched on the salient features (see document). His team would add clarity and respond to questions about the A list. He made the following points:
• A new definition of ‘habitual infringer’ was established to provide textual clarity. A habitual infringer meant an infringer, operator or juristic person who, in terms of section 25, incurs demerit points resulting in a disqualification more than two times. The definition of ‘infringement’ was changed. RTIA made no distinction between a major and minor infringer.
• With regards to ‘issuing authority’, RTIA had added that any other state institution declared by the Minister by regulation was to be an issuing authority. This empowered the Minister to do everything that was important to achieving the objectives of the Act.
• The appeals tribunal established by section 28 was a critical intervention which RTIA wanted to have within the AARTO framework. RTIA wanted to balance the scales. No one entity would be a referee and player at the same time. This would bring credence and encourage compliance with the Act.
• Road traffic and transport related infringements were included.
• Rehabilitation programmes were added into the Act for habitual infringers.
• There was an amendment which now read “inform the infringer that the demerit points positions may be ascertained from the national contraventions register at the office of any issuing authority, registering authority or driving licence testing centre in the prescribed manner”.
• The amendment of section 18 which dealt with representation. Minor representation was removed.
• Infringement notices were to be served within 40 days. This would increase compliance and galvanise law enforcers. He noted that infringers elected to go to court because they knew that case overload at courts would mean that their cases would only be dealt with after a long time. So this amendment would help reduce the number of people going to court. People had the right of review or appeal against any decision.
• Section 19B dealt with the infringer defaulting on payment and the resulting implications of this. This was one of the key deficiencies which RTIA had looked at. If matters landed in court and the infringer did not appear in court, it had been argued that that person should not be issued a warrant of arrest but instead be referred back to the administrative process so that administrative justice would prevail. Instead RTIA proposed an enforcement order which carried the highest and harshest penalty within AARTO. He added that although this seemed like an insufficient punishment, once the enforcement order was produced there was no way of getting out of it. At the most individuals could delay the process only by 11 months.
• With regard to the disqualification mechanism, there was a distinction between a juristic person, one which was an operator and one which was not an operator. The operator could be a juristic person or a natural person.
• Learner drivers and juristic person that were not operators were to be subject to the process.
• The tribunal would consist of a chairperson and no less than eight other woman or men appointed by the President, on a part time basis, and on the recommendation of the Minister. A related force and effect was needed so that it would not be seen as a mini committee that was subjugated or controlled. The tribunal needed to be independent and have authority. The President appointed the chairperson and other members of the tribunal. For the appeals tribunal, members appointed needed to be of great integrity and good reputation. The second part dealt with the manner in which these individuals would operate. To ensure that they operate at the highest level of integrity, provision was made for the declaration of interests.
• The intention of the amendments was to elevate the integrity of the body to the highest level. The environment was an integrated environment. The integrity of the process was integral. That was why RTIA went to such great lengths as legal class action could affect all the services and stakeholders across the value chain.
• There were three basic elements to the functions of the tribunal: 1) to adjudicate on any matter brought to it by an infringer aggrieved by a decision taken by the representation officer; 2) to hear appeals for any decision of the representation officer that may in terms of this Act be referred to it; 3) to make any ruling or order necessary or incidental to the performance of its functions. There was a 30 day provision so that the wheels of administrative justice could take hold. These were simple and straightforward basic functions.
• On the qualifications of tribunal members, RTIA expected members to have related expertise and it needed to have a broad cross section of the population of the Republic. Members needed sufficient legal training and experience in road traffic infringements. Members need to be South African citizens and have suitable qualifications in a field related to road traffic and transport legislation or any special skills, qualifications, expertise or experience in matters concerning legal, financial and economic matters. Members too needed to be committed to the purposes of the Act.
• On the conditions of appointment and vacancy filling, there was provision for the filling of any vacancies in the tribunal. The President, on the recommendation of the Minister, may remove any member of the Tribunal for reasons stated in the Act. The deputy chairperson of the tribunal had certain responsibilities.
• On the decisions of the tribunal, the tribunal had the prerogative to independently apply their mind. They would operate similar to the judicial process. A simple majority would take precedence and became the official decision of the tribunal. RTIA wanted to emphasise that no decision would be declared invalid merely by reason of a vacancy in the tribunal or by the fact that a person not entitled to sit as a member of the tribunal sat as such member at the time the decision was taken. The majority vote would take precedence.
Mr C Hunsinger (DA) recognized the hard work which RTIA had done and its excitement about the Bill. He asked what the essence of the term, “habitual infringer” was. If people were allowed to infringe twice on a 10 point demerit system, this was too lenient and intolerable. He recommended that this be changed to one infringement round. With regards to subsection 2, he argued that there should be a consultation subject to the Minister of Finance. Alignment was needed with similar tribunals. How would RTIA ensure that the appeals pipeline would not be congested? What happened after the appeals process? People could exploit the opportunity of a loop process between appeal tribunal and the courts.
He noted that the instalment process was very generous and a good way to do it. He asked how much of an instalment failure would result in consequences. With regards to the register, should juristic persons be included such as business entities and car fleet companies.
He noted the possibility of a huge administrative burden which could arise. The licences of offenders should be marked. The person should reapply for a driver’s licence. With regards to presidential authority for tribunal appointments, is the President the appropriate person to make these appointments? Should not a legal structure be involved to ensure that there is no political agenda? What is the maximum number of people on the tribunal? To what extent would the appointment of this tribunal be gender representative and diversity ensured in accordance to demographics of the country. He referred to the consultation process and asked what would constitute consultation.
Mr M De Freitas (DA) suggested that the Committee get the draft regulations for the next meeting. Were the rehabilitation programmes and the establishment of tribunal budgeted for? He said clarity was needed on the term “sufficient persons”.
Mr M Maswanganyi (ANC) asked for clarity about the permit licences and if the suggested amendment was practical. Why punish a company and not the offender? This could possibly harm the economy. There was a need for proper defining to happen here. With regards to presidential appointments, would this not be cumbersome as the Presidential Office was already very busy. Why could the Minister not appoint the chairperson and deputy chairperson?
On the administration of the tribunal, he noted that designated officers were needed. The department needed to provide a budget for the tribunal and he highlighted issues of over regulation. Clauses containing “must” should not be in such legislation. More flexibility was needed. He cautioned that one minister could be subject to another minister. This needed to be looked at.
Mr M Sibande (ANC) thanked RTIA for their work and said he was impressed by some of the things which were included from the consultations with South African Local Government Association (SALGA) and other entities. He asked if there was a chance to consult the key role players which were taxi and bus associations and industries. On board remuneration, he stated that the board should not have power to determine their own remuneration. On presidential appointments to the tribunal, he noted the debate about whom between the President or the Minister should have the power to make appointments. He said that one needed to be cautious with regard to duplication here. On compliance, was there capacity to collect whatever was due to them? Systems needed to speak to each other. He said that systems did not speak to each other. What mechanisms could be established to ensure that when laws were implemented, systems spoke to each other?
Ms S Xego (ANC) said that the Committee was not fighting with RTIA but clarity was needed particularly with regards to habitual infringers and benefits. With regards to the representation officers, she advised that 50% woman representation needed to be established. She was worried about how the Committee would know how these persons had been appointed to the tribunals. She noted that there were uneducated people who had particular skills which could help the tribunal. Could a person who was uneducated be appointed to the tribunal? With regards to the sitting of the tribunal, 50% could be confusing. Fifty plus one was better. She supported the suggestion that the tribunal needed to sit as per the demand of their work.
The Acting Chairperson asked for clarity on the appointment of boards. There was no board which got appointment without the approval of Cabinet. All boards went through that channel. He asked how the Minister got the names for board appointments. Was there an advert that went out, was the Portfolio Committee to be involved? This was not clear. What was the norm with regards to the board’s period of service. Why did this one need a five-year period? He asked what the ceiling for the board structure was. If there was a ceiling there was need for a quorum. What constituted a quorum and what did not? What was the limitation on the number of board members in the case of resignation?
Mr Chuwe appreciated the questions and comments. He said that RTIA was excited about the process. They recognise the governance challenges.
Mr Adam Masombuka, DOT Chief Director: Legal Services, said the norm for a board was three years. With regards to appointment powers, the ‘guidance and advice’ would be looked into and he added that the power could be reduced to ministerial power.
On the appointment process, there was a clause which needed to be included on the notice of nomination of board members. On board remuneration, he said that Treasury was there for a reason. In most boards, remuneration was determined in consultation with the board. With regard to quorum options, the proposed amendments excluded that. There would be clarity on the minimum and maximum number of persons.
Ms Mpikashe said that with regards to the PMFA, if an agency has a board the accounting officer had the power to decide on salaries and that there were also official authorities in place.
For board sittings, if 50% of the members were present, there could be a sitting. The tribunal had eight persons and a chairperson which made it nine members in the tribunal in total. In the event of a voting split, the chairperson would make the final decision.
She added that the tribunal would replace the court. The tribunal needed to have similar standards to that of a court. With regard to tribunal best practice, most tribunals were appointed for five years. The appointment of members was conducted by the President who only appointed members every five years. She did not think this would be a burden to the Presidential Office.
Mr Mongameli Kweta, State Law Advisor, said that the phrase “in consultation with” needed to remain. With regard to regulations, in the proposed Bill there were many areas where issues needed to be prescribed in the regulations. He advised that the regulations be in place before the Bill was enacted.
The Acting Chairperson asked for clarity on the minimum and maximum number of persons on the tribunal and the matter of 50% plus 1 regarding majority voting. There needed to be an information note with regards to the five-year tribunal period.
Mr Hunsinger asked if the minimum quorum would be five plus the chairperson.
Mr Thabo Tsholetsane, RTIA Chief Operating Officer (COO), said that RTIA needed to go and draft all the considerations and suggestions. On the question about ‘habitual infringers’, RTIA wanted to give a chance for infringers to change their ways. If a person was suspended once, it meant that the person was not doing things right on the road. The agency did not want to create too many habitual infringers.
On the matter of appeal congestion, he said people who were infringing knew that the courts were overburdened with cases and as a result they wanted to go to court knowing that their cases would be dealt with at a much later date. The mechanisms put in place within the Bill would ensure that people did not run away from the process. After the tribunal process, infringers could approach the High Court. This was catered for in the Bill. If one did not honour the instalment plan, the process went to an enforcement order.
On the inclusion of companies and trusts, he said juristic persons were included. RTIA went for the company because of operational infringements related to operating licences and permits. On the handing back of licences, RTIA agreed that it should look at endorsements. This was in the regulations. There was a set procedure.
With regards to subsection (c), in the regulations which were under Schedule 3 of AARTO, the Minister had already done the classification. Learners needed to be included. Best practice dictated that issues which change over time needed to be put into the regulations.
He said that there was a commitment of R10 million funding for rehabilitation programmes. There was a budget for this, however there was some difficulty in holding onto the budget.
He noted that consultation with the taxi industry was needed. There had been extensive consultation with the South African National Taxi Council (SANTACO) already. The benefit of habitual infringers was that a person needed to go through a process. People could go to driving schools and get retested. He added that representation of women would be a matter they would look at. The appointment process would be made clear in the Government Gazette.
Mr John Motsatsing, Deputy Director General at the DOT, confirmed the process with regards to endorsement of licences. RTIA could submit draft regulations after consultations.
Mr Chuwe said that the spirit and letter of the discussion was amazing. The framework was beneficial for the country. He noted Mr Hunsinger’s comment about the need to be more forceful in dealing with infringers. This was a positive comment. A more practical and enhanced proposal was to be made. Taxi associations would add to the consultation process. RTIA took things very positively. There was light at the ended of the tunnel.
The Acting Chairperson thanked RTIA for the response. He indicated that the problems and challenges South Africa had with regard to road tragedies should not take away the need for foresight about nation building. The Act has had challenges since1998. He wanted to guard against emotional responses. Being an infringer should not mean a death penalty or becoming an outcast because lawmakers said so. This could be a recipe for people to rise up against the law. He urged the lawyers to think about such consequences. RTIA needed to think about double jeopardy with regard to endorsements. He asked how many weeks RTIA needed to finalise the A list given the wide ranging issues raised.
Mr Chuwe replied that in two weeks’ time all would be ready.
Mr Hunsinger said that there were two sets of infringements being dealt with: the person and the vehicle. There was detail on the person’s rehabilitation but not on the vehicle. He asked for consideration about vehicle rehabilitation.
The Acting Chairperson said that this was food for thought.
The meeting was adjourned.
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