The Committee met to continue public hearings on the Administrative Adjudication of Road Traffic Offences (AARTO) Amendment Bill.
The Road Traffic Infringement Authority (RTIA) responded to submissions from stakeholders. It said CANCOM had raised a concern regarding the date of service of documents which the RTIA had changed. The date of service of documents via registered mail would be determined when the individual signed for them. In the event that an individual did not fetch the documents, the resumption clause would kick in, which was ten days after the documents would have been at a collecting branch. Where the RTIA would be using electronic services, the date of service of documents would be the day when the message would be opened by the recipient. The RTIA believed that this was in line with the Electronic Communications and Transactions Act, 2002 (ECTA). CANCOM had also been concerned around the issue of habitual infringers, but it seemed that it did not thoroughly understand why the legislation had been developed for a proxy and what a proxy’s responsibilities were in relation to an infringement.
Regarding concern about section 17, where the repeal of the election to be tried in court could constitute a violation of section 35 of the South African Constitution, the matter had been canvassed with the Committee. What the RTIA had been trying to do was to streamline the administrative process through introducing an appeals tribunal, so that the last line of defence would not be representation of oneself by an infringer, but that people could be allowed to appeal.
Regarding timeframes involved in the AARTO, it was required that issuing authorities served notices to alleged infringers within 40 days after the contravention. If that did not happen within that time, any notice afterwards would stand no chance. The RTIA had imported the provisions from the Technical Committee for Standards and Procedures for Traffic Control and Traffic Control Equipment, where directors of public prosecutions had been giving guidance in terms of what had to happen. The advice had been that if the RTIA and issuing authorities missed the 40 days, there was a big possibility that people would not remember the contraventions.
The AARTO Act’s intention was that when a driver did not commit infringements over a period, but had demerit points, the points would decrease. Traffic rehabilitation, however; proposed that if an infringer attended a rehabilitation programme, the accumulated demerit points could be decreased at an accelerated rate instead of waiting for three months. Among the RTIA’s proposals on the AARTO were that learner’s licence holders would incur demerit points thenceforth, instead of starting the acquisition of demerits after acquiring a driver’s licence. The RTIA would start collating a register of demerit points for learner’s licences, as they were currently not catered for. The reasoning for the register was the number of young drivers involved in fatal car crashes. RTIA would also start keeping a register of individuals found driving without licences, where their identity numbers would be recorded.
With regard to foreign drivers and permit holders, the RTIA was in discussion with the Cross- Border Road Transport Agency (C-BRTA) and planned to link up with the Department of Home Affairs (DHA) in recording and keeping a register of international drivers that infringed, and who could also be allocated demerit points. The NCR website already had a link where international drivers could be nominated if caught on camera infringing while driving a fleet vehicle of his/her employer.
The National Taxi Alliance (NTA) highlighted the difficulty which taxi operators faced in ensuring their drivers had postal addresses where the authorities could serve relevant processes on them. The AARTO amendment implied that the owner had to ensure that his driver had a fixed address, although it was a reality that in 2017, most South Africans still did not own their own property. If processes were unable to be served on an operator’s drivers, it was the operator who could lose his operator’s licence, his driver’s licence or his vehicles – or all three. The burden placed on taxi owners was borne by no other employer in SA or elsewhere.
It also asked when the DoT was intending to subsidise taxis. When would radical economic transformation be implemented in the taxi industry, because the PUTCO bus company still held long expired bus contracts?
Business Unity South Africa (BUSA) said that promulgation of the principal AARTO Act had led to a pilot project in Tshwane and Johannesburg, and at a 2014 National Economic Development and Labour Council (NEDLAC) engagement a report of the pilot project had been circulated. The report had highlighted several concerns, and BUSA was worried that the feedback from that engagement had not been articulated in subsequent amendments to the AARTO. The Road Traffic Management Corporation (RTMC) had done further work in terms of research and studies around 2014, but it appeared that again the thrust of the communication from that work had not found its way into some of the amendments.
Regarding demerit points, NEDLAC stakeholders had raised concerns about the impact on jobs which could result from the unintended consequences from some of the clauses in the AARTO Amendment Bill, which might make some people unemployable through no fault of their own, as their driver’s licences could be withdrawn because of the accumulation of demerit points.
In 2010, the SA government had committed itself to reducing road fatalities by 50% in line with the United Nations (UN) decade of road safety initiative. Both before and after that intention and signatory commitment, there had been no shortage of strategic plans to navigate SA’s way towards achieving that target, but the country had not been able to achieve it. That had been a point of engagement for BUSA at the most recent NEDLAC when engaging Government partners on the National Road Safety (NRS) strategy, which had then been presented at that NEDLAC, where it was indicated that the 50% target would move back to 2020-2030. The concern raised had been why the focus had been shifted to 2030 though the target aligned with the National Development Plan (NDP). BUSA’s view was that the strategy document had been a usefully summary document of all the pervious strategies. SA possibly had to reflect whether by pushing the target to 2030 it would not be missing an opportunity to realistically intensify its focus on the initiative.
The 2014 RTMC report showed that 80% of crashes resulting in fatalities could be attributed to tyres, but AARTO did not cater for inspection of tyres. If tyres were an important factor, the question was what mechanisms were available, other than visible policing and road inspections to check tyres. Similarly, 43% of fatalities could be attributed to pedestrians and jay walking, and 16% to speed. AARTO mostly focused on speed, and BUSA wanted to know where there was a similar and equal focus regarding how to communicate and educate pedestrians on the road, and to engineer SA roads to have pedestrian bridges at access points.
BUSA was concerned about the shift towards using technology as a stretch too far, without the necessary management structures and integrity of process when considering social media. If someone were to be served a traffic infringement notice via Facebook, there would be concerns about that and the definition of electronic service. There were insufficient safeguards or understanding of what was meant by electronic service, and BUSA’s view was that personal and registered service should rather be the focus. BUSA was further concerned that the AARTO process was focused on an automated process to generate infringements as opposed to changing behaviour, where a key process was engagement between a traffic officer and a member of the public when an infringement had taken place.
The Southern African Vehicle Rental and Leasing Association (SAVRALA) said that ‘electronic service’ meant service by means of electronic communication as defined in the Electronic Communications Act, 2005 (Act no. 36 of 2005). SAVRALA was not deterred from engaging with the authority to determine the full implications via a consultative method to understand how they could best utilise technology between Government and SAVRALA. On redirections, SAVRALA asked if the current framework could be reviewed -- there were 32 days from date of first infringement notice received. Could a web-based system be made available, similar to that used by the City of Cape Town? The possible impact of any amendments on changing driver behaviour had to be explored and measured, and there should be re-engagement with broader stakeholders afterwards.
The Committee commented that in the rural areas close to South Africa’s borders, it was known that seasonal workers were being used by employers, so how would the RTIA address an infringer who did not have a licence, identity document or a permit to be in the country? It also sought clarification about the checks and balances around the different deadlines envisaged for sections of the AARTO Amendment Bill -- for instance, the resumption clause, and who would be doing the verification of delivery of notices and what the acceptable levels would be, and for reasons that an individual would not have received a notice in the prescribed time. Who would be responsible for the execution of verifications in terms of roles and function?
In what way would the NTA, as an alliance, assist in the driver nomination process – nominating the actual driver who had transgressed? How did it currently assist in the driver nomination process?
Though BUSA had indicated challenges with the service of infringements through social media and the electronic service, it had offered no alternatives. It was acceptable in the courts for service notices to be received through e-mail, but there seemed reluctance from BUSA for it to be done through the AARTO amendment.
Members wanted clarity:
- On why the presumption period would be only ten days, because in the event of a postman not having delivered registered mail to an infringer in the rural areas, the presumption clause would kick in after ten days. Had the RTIA thought through that?
- In countries like Zimbabwe, if a foreigner did not observe traffic regulations, he/she was fined on the spot. What would happen with international drivers infringing on traffic rules in South Africa?
- What would the NTA prefer to be included in the AARTO amendment to cater to the concerns the Alliance had raised?
- Why could the RTIA not be allowed to re-issue an infringement notice after the 40 days awaiting representation?
- Would there be detailed regulations that would explain the categories of offences allocated to owners and infringements allocated to drivers?
- How did BUSA imagine that normal sheriffs of the court would be able to handle the enormous volumes of statistical databases of information to which BUSA subscribed?
- What regulations or mechanisms could be inserted into the AARTO regulations or amendment to effectively change driver behaviour?
- What, instead of revenue generation, had to be the aim of the AARTO amendment which would still reduce road crash fatalities and change driver behaviour, and give effect to the National Road Traffic Act (NRTA) as well?
The Chairperson welcomed everyone and indicated that the Committee would be continuing with submissions and responses on the Administrative Adjudication of Road Traffic Offences (AARTO) Amendment Bill. She would allow the Road Traffic Infringement Authority (RTIA) only 20 minutes to present its responses to some of the submissions from the previous day.
Road Traffic Infringement Authority (RTIA): Response to stakeholder submissions
Mr Thabo Tsholetsane, Chief Operations Officer (COO), RTIA, said the RTIA would be responding to all the submissions made to the Committee on 22 March 2017.
CANCOM had raised a concern regarding the date of service of documents, which the RTIA had changed.
Mr Tsholetsane said that the date of service of documents via registered mail would be determined when the individual signed for them. In the event that an individual did not fetch documents, the resumption clause would kick in -- that was, ten days after the documents would have been at a collecting branch. Where RTIA would be using electronic services, the date of service of documents would be the day when the message would be opened by the recipient. The RTIA believed that was in line with the Electronic Communications and Transactions Act, 2002 (ECTA).
CANCOM had also been concerned around the issue of habitual infringers.
Mr Tsholetsane replied that it seemed that CANCOM did not thoroughly understand why the legislation had developed a proxy and, in relation to the infringement, what the proxy’s responsibilities were. A proxy would be a person standing in for a company. If the said person had received any infringement order, it would be clear that that person would not have been the driver of the vehicle which had infringed at a particular point, which would be why the individual would have become a proxy. The legislation had been drafted so that there were provisions for such proxies to nominate and point out who had been driving the vehicle at the time it had infringed. The process was simple, in that an owner of a fleet of vehicles had simply to have a register of all drivers of his vehicles so that when an infringement order came, he could point out who the driver had been on a particular date when a vehicle of his had infringed. The RTIA had further simplified the issue for rental car companies with large fleets of vehicles, by developing an electronic interface called ‘electronic nomination,’ so that companies would not have to fill in AARTO 7 nomination of driver forms daily. The RTIA had also invited companies that had fleets of vehicles to pilot the interface, and a regular user of the service had been the Airports Company of South Africa (ACSA). CANCOM had not been using the service since the inception of the pilot..
Another concern raised had been regarding section 4 (2) (h), where CANCOM had said if proxies were labelled habitual offenders, they would permanently be on rehabilitation programmes.
Mr Tsholetsane replied that the concern had been out of context, since he had indicated that proxies would not have been responsible for the infringements. In cases where a proxies did not do their work in terms of the nomination process, they would have to take responsibility for the infringement. The legislation would also not force rehabilitation programmes on people. The rehabilitation would be for those people showing remorse and who would want to decrease their demerit points at an accelerated rate.
Regarding concern about section 17, where the repeal of the right to election to be tried in court could constitute a violation of section 35 of the South African constitution, Mr Tsholetsane said the matter had been canvassed with the Committee. What the RTIA had been trying to do was to streamline the administrative process through introducing an appeals tribunal, so that the last line of defence would not be representation of self by an infringer, but people could be allowed to appeal.
There had also been a concern about section 18, where it had been said that the RTIA and issuing authorities would be given multiple opportunities to re-issue enforcement notices, and had queried how the proposed draft would fit in to the rigid AARTO timelines.
The RTIA had indicated that section 31 of AARTO Act referred to non-prescription of penalties. From that, the RTIA believed that where due process in terms of service had not been followed and the person challenged that without challenging the infringement, the RTIA could re-issue the infringement notice. The process restarted when re-issuing had occurred, except that there would have been a delay caused by a non-reception of the notice in the first issuing of the infringement. Mr Tsholetsane said he could confirm that when people made representations querying the infringement and if the representations officer found that the query was a lie, the officer would notify the infringer of the non-success of the query, and when the infringer received the result, the 32-day period would kick-in.
The RTIA had realised that proxies were electing to go to court, whereas the legislation said the ‘alleged infringer’. Keeping that in mind, the RTIA had realised that since the proxies were not the ‘alleged infringer,’ proxies were not doing the right thing. When challenged on the incorrectness of the tendency, Fines4U CC and Another v Johannesburg Metropolitan Police Department and Others (42649/2012)  ZAGPJHC 23;  2 All SA 408 (GJ); 2014 (4) SA 89 (GJ) (25 February 2014), the hearing judge had told the Johannesburg Metropolitan Police Department that it had to accept elections to go to court by proxies. This had been wrong, but the court had made a judgment. The RTIA was working on that issue to be sorted out in the legislation.
CANCOM had also raised issues under Chapter IV (a) that rights of access to courts would be taken away. Additionally, there was concern that infringers would be required to pay for appeals tribunal services.
The RTIA reiterated that the appeals tribunal was to streamline administrative processes and would not necessarily take away access to courts, because any person would be dissatisfied with the appeals tribunal service. The person still could go to court for review of the decisions and processes of the appeals tribunal. The RTIA had never intended for people to pay for the services of the appeals tribunal, as it had indicated that the tribunal would be funded from the revenue generated from infringements. Additionally, the appointments to that tribunal would be better done if they were by the President of the country, instead of the Minister of Transport.
Mr Tsholetsane said CANCOM had also had another concern with section 17 having no provision for administration of infringements incurred by international drivers.
The RTIA realised the matter was unrelated to the AARTO Amendment Bill, but because the matter was big and though there was a very small percentage of international drivers that infringed; the RTIA had found difficulty in that although the AARTO process had to apply to international drivers, there was other legislation that limited the RTIA from forcing international drivers to pay traffic fines before leaving South Africa. The RTIA would be making suggestions to the Committee so that the issue could be accommodated going forward.
Regarding the timeframes involved in the AARTO, it was required that issuing authorities serve notices to alleged infringers within 40 days after the contravention. If that did not happen within that time, any notice afterwards would stand no chance. The RTIA had imported the provision from the Technical Committee for Standards and Procedures for Traffic Control and Traffic Control Equipment, where directors of public prosecutions had been giving guidance in terms of what had to happen. The advice had been that if the RTIA and issuing authorities missed the 40 day deadline, there would be a big possibility that people would not remember contraventions.
Regarding the upload of infringement notices; once an individual was caught speeding with a camera the issuing authority had to upload the image in the National Contraventions Register (NCR) within 20 days after the contravention. That was the infringement, and the image would have to be processed simultaneously so that they could be sent to the South African Post Offices (SAPOs) so that the other 20 days from the 40 days for a notice of infringement to be served on an infringer would be taken up by the process of the notice moving from the SAPO to the infringer. The RTIA’s experience was that the SAPO took eight to ten days to process a notice of infringement. In cases where the SAPO did not process notices, the infringements would prescribe and if they were still sent after 40 days, people reminded the RTIA of that fact and that they could no longer be served with such infringements.
Regarding presumption, he said that most people would have their first notification in their post boxes. What then happened, and when they saw that it was an infringement notice, they would not collect it from the post box with the intention of saying they had not been served within the 40 days. The presumption clause had been specifically made for that, so that when people claimed to not have been served within the prescribed timeframe, even though they knew the notice was there; after ten days a notice had been sitting in a post box it was presumed that an infringer had received the notice. On the 11th day, the 32 days where an alleged infringer had been caught contravening could do something about the infringement, would kick in. What people and fleet companies did was to not collect the notice from the post box and would simply look at the NCR and would notify the RTIA that they had not been served, though the notice had been with the SAPO. This was where the RTIA questioned how people knew they had notices, but had queried not being served. Of course, since the NCR website had the information, that would be the response given to the RTIA. However, the RTIA went into the same NCR, as SAPO gave the RTIA feedback as to when a notice arrived at SAPO. Where the NCR showed that a notice had reached SAPO within the required timeframe, the RTIA had evidence that a person had been served and the presumption clause had kicked in. Therefore cancellation of an infringement notice could not be successful, and the individual would be issued with a courtesy letter. If the individual still did nothing about the infringement after the courtesy letter, an enforcement order would be issued where transactions from the said individual would be blocked until they explained to the RTIA what had happened.
The individual could either pay the fine or apply for revocation, where they would explain why nothing had happened regarding the notice and the courtesy letter, and if the reasons were satisfactory, the revocation would be successful.
Once an enforcement order was issued, the demerit points would automatically be allocated. Demerit points were not only allocated at the stage of the enforcement order, but would be allocated after an admission of contravention, and the driver opted to pay the fine immediately.
Mr Peter Baloyi, Senior Manager: AARTO Operations, RTIA, said the AARTO Act’s intention was that when a driver did not commit infringements over a period, but had demerit points, the points would decrease. Traffic rehabilitation, however, proposed that if an infringer attended the rehabilitation programme, the demerit points accumulated would be decreased at an accelerated rate instead of waiting for three months. Among the RTIA’s proposals on the AARTO were that holders of a learner’s licence would incur demerit points thence forth, instead of starting the acquisition of demerits after acquiring a driver’s licence. The RTIA would start collating a register of demerit points for learner’s licences, as they were currently not catered for. The reasoning for the register was the number of young drivers involved in fatal car crashes. The RTIA would also start keeping a register of individuals found driving without licences, where their identity numbers would be recorded.
In terms of foreign drivers and permit holders, the RTIA was in discussion with the Cross- Border Road Transport Agency (C-BRTA) and planned to link up with the Department of Home Affairs (DHA) in recording and keeping a register of international drivers that infringed, and who could also be allocated demerit points. The National Contraventions Register (NCR) website already had a link where international drivers could be nominated if caught on camera infringing whilst driving a fleet vehicle of his/her employer. The intention was that if an international person introduced a passport after being stopped on the side of the road, the traffic official could write an infringement notice so that the timeframes, as explained by Mr Tsholetsane, would apply similarly in such cases.
The RTIA had checked how the Department of Correctional Services (DCS) had done its rehabilitation programme for its 2016/17 Annual Performance Plan (APP). The RTIA planned to work with the DCS, as there were offenders sentenced due to traffic offences which were not catered for in the DCS’s rehabilitation programme.
The rehabilitation would be self-referral and voluntary, where traffic offenders would have to attend an approved programme that would be prescribed, and in terms of the number of dates available. Those drivers and operators found guilty of traffic offences in a court of law would have to mandatorily attend the rehabilitation programme.
Mr Baloyi said the RTIA would have to encourage infringers to attend the programme prior to reaching the threshold, indicating that infringers could go if they had two demerit points and upwards.
The RTIA would pay through a cost sharing mechanism for participants to be part of the rehabilitation programme. The Agency would be discussing with the Sector Education Training Authorities (SETAs), together with infringers, on paying a certain percentage for the rehabilitation programme. The proposal would be better detailed in the funding model for the AARTO Amendment Bill. The rehabilitation programme would have to be accredited by the South African Qualifications Authority (SAQA) and participation certificates issued by service providers as proof of attendance of the rehabilitation programme..
The RTIA also would regulate matters so that infringers could attend the rehabilitation programme only once in a 12-month cycle to avoid abuse of the system. This meant an infringer could attend the programme twice in a 12-month cycle, but the demerit points would not be reduced in the second attendance at the programme. For first time traffic offenders, the RTIA had proposed that demerit points be reduced by six after attendance of the rehabilitation programme.
The RTIA also would be engaging the National Institute for Crime Prevention and Re-integration of Offenders (NICRO) for assistance with the rehabilitation programme, as it had a history in rehabilitation programmes it had run together with the National Prosecuting Authority (NPA).
Mr Tsholetsane said that the RTIA had already had an agreement with the Transport Education and Training Authority (TETA) and the Health and Welfare Sector Education and Training Authority (HWSETA) in the 2015/16 financial year for jointly funding the rehabilitation programme by about R70 million. However; because the AARTO Amendment Bill had not been approved yet and all attendant work had not been completed, the RTIA had had to forego the funding.
Mr M Sibande (ANC) said traffic offenders would possibly oppose paying for the rehabilitation programme, as prisoners currently did not pay for DCS rehabilitation programmes. In the rural areas close to South African borders it was known that seasonal workers were being used by employers. How would the RTIA address an infringer who did not have a licence, an identity document or a permit to be in the country?
Mr L Ramatlakane (ANC) asked why the presumption period would be only ten days, because in the event of a postman not having delivered registered mail to an infringer in the rural areas, had the RTIA thought through that non-receipt of a notice though the presumption clause would kick in after ten days? Additionally, where there was a change of address by an infringer which the RTIA would not have been aware of, had there been provisions for that non-receipt of notices in the amendment bill? Regarding the rehabilitation programme for habitual traffic offenders, why had the RTIA not simply called it a ‘habituation programme’?
Mr M Maswanganyi (ANC) wanted clarity on the issue of international drivers, because in countries like Zimbabwe, if foreigners did not observe traffic regulations, they were fined on the spot. What would happen with international drivers infringing on traffic rules in South Africa? It also sounded like rehabilitation would be provided to SA drivers alone. There currently were too many accidents caused by buses with overloaded trailers on the N1 route going beyond the Limpopo River. Additionally, some international drivers acquired SA driver’s licences without having ever to sit through the normal processes of acquiring a SA driver’s licence.
Mr C Hunsinger (DA) was curious about the checks and balances around the different deadlines envisaged for sections of the AARTO Amendment Bill. He asked about the resumption clause and who would be doing the verification of delivery of notices, and what the acceptable levels would be for the reasons an individual would not have received the notice in the prescribed time. Who would be responsible for the execution of verifications in terms of roles and function? He concurred with Mr Ramatlakane that something else should be considered rather than rehabilitation, as this had particular connotations. He was leaning towards ‘reintegration,’ as the message had to be clear that there would be an acceptable way of applying for habitual offenders to be reintegrated. In terms of reintegration or other forms of rehabilitation, there was road rage and there were people using their vehicles in ways not designed for their particular purposes, and he was opposed to the current licensing regime (K 53) used by the Department of Transport (DoT). How could all of that be addressed? Habits or behaviour could be changed in only two ways – either by scaring people, or by the provision of some incentive. He hoped AARTO would be both a scare tactic, but would also provide an incentive for drivers to behave well on SA’s roads.
Ms S Xego (ANC) referred to CANCOM’s concern around access to courts being taken away in preference to a tribunal, where infringers would be required to pay for the services of the appeals tribunal. Were such fees required to be paid by infringers?
Mr Tsholetsane said RTIA had considered the fact that rehabilitation would not be compulsory, and the three demerit points accumulated would be revised only after an infringer had respected the rules of the road for at least nine months. If an infringer wanted to accelerate the reduction of demerit points, they could voluntarily undergo the rehabilitation programme on a cost sharing basis.
Regarding how RTIA would deal with international traffic offenders caught without any documentation, he said that schedule 3 categorised people driving without licences and those driving with suspended licences, as an offence. Such offenders would be arrested and taken to court, together with undocumented international drivers. The RTIA had drafted this provision, recognising that there were drivers who had suspended licences, but were grossly negligent by driving with the suspended licenses. These drivers would be arrested and placed before a judge, in terms of the AARTO amendment.
The RTIA had imported the ten days presumption period from other legislation, because of its experiences. In terms of a delay in the receipt of infringement notices, the RTIA had indicated that in instances where a post box was not available, the notices had to be delivered to a particular house where a signature would have to be appended on the delivery document, to confirm that there had been receipt of the notice. That activated the 32-day period, because the presumption period worked in cases where the infringement notice was sitting in someone’s post box at a particular post office.
Mr Tsholetsane said that when a licence holder changed residential addresses, the National Road Traffic Act 93 of 1996 (NRTA) required the individual to inform the registering authority within 21 days of the changed address. If that time lapsed, licence holders could find themselves having infringed already by not doing so. In cases where a person had complied with that provision of the NRTA and could prove so, the RTIA and the representations offices would allow the representation. For instance, there had been people that had had enforcement orders against their names, which meant the presumption period had expired, with the infringement notice sitting at a post box at the post office. The courtesy letter had remained at the post office whilst the presumption clause had been activated. The individual had submitted to the registering authority that he had never received any of that documentation, as he had been hospitalised for a particular period, or out of the country. In such cases, the RTIA considered and cancelled the enforcement order.
The rehabilitation programme was not necessarily for habitual infringers, as those with only three demerits could also attend it. The RTIA had initially referred to infringers as habitual offenders, where at some forum on the AARTO, it had been informed that the reference had negative connotations. The RTIA would consider referring to the programme as a ‘habituation’ or ‘reintegration’ programme.
Mr Tsholetsane said that over the years, the RTIA had never been allowed to train traffic officers to administer spot fines in SA. Indeed, law enforcement officers had raised the issue with the RTIA each time they had engaged on the AARTO amendment. That had been the reason the RTIA was in discussion with the C-BRTA and planned to link-up with the DHA in recording and keeping a register of international drivers that infringed and could also be allocated demerit points. However, there remained complexities around the matter, as the presumption periods and 32 days to receive the infringement notices had to also be enjoyed by international drivers.
The RTIA would appreciate legislators’ assistance in developing and drafting amendments to effect such changes, because in Botswana and Mozambique, when international drivers could not pay a spot fine, they were incarcerated immediately. Those changes could be made in the National Road Traffic Act (NRTA) and imported into the AARTO.
The RTIA concurred that some road accidents were caused by minibus taxis towing trailers that were double their size, and were international taxis. There was an attendant issue which the Committee should consider; which was how the taxis were allowed to leave Park Station in Johannesburg to reach Limpopo, as they were not supposed to have left the station at all with big trailers. Sometimes one could see an international taxi having been stopped by law enforcement, but it would then be allowed to proceed.
There were two categories of licences. There were the international drivers who produced their international licenses at road blocks. Additionally, whatever international documents an international driver had obtained from the DoH could be used to apply for a National Register Number, as an international identity document would not be recognised by the National Traffic Information System (eNaTiS). eNaTiS would produce a national traffic register number, which could be used to convert the international driver’s licence into a South African driving licence, as per section 22 of the NRTA. Secondly there were international drivers that were in SA, either legally or illegally, who tended to produce their international licences when they were stopped. According to the law, if an international was in SA for 366 days without ever leaving the country, the international driver’s licence became null and void wherever it had been issued from. From day 366, that license holder from abroad, having not converted their licence to a South African licence, ceased to have a valid driver’s licence.
Mr Tsholetsane said the NCR had been designed so that it reacted to events. The Public Protector (PP) had received a complaint from a driver that they had never received an infringement notice, but had been served with an enforcement order. The RTIA had gone into the NCR and had proved that on a specific day the infringement notice had been collected from the post office and had been signed for by the collector. Following that, the courtesy letter also had been collected by a Mr X. In all instances, the collector had been the complainant. He said that in most cases where infringers got away without being fined, it was where the post office had processed documents but had not handed over the information to the RTIA through the NCR. Most of the checks and balances were automated, and the RTIA could always pull information from the NCR to verify legitimacy of orders or applications for revocations.
He said he could not comment on the current licensing regime (K 53), as that was a DoT competence.
Regarding incentives for responsible drivers, Mr Tsholetsane said he had been consistent, when asked about this aspect in the provinces during RTIA workshops, that according to the SA constitution, every licensed vehicle driver was supposed to be responsible in the first place, so why should there be an expectation of an incentive for responsible driving behaviour. However, the RTIA could consider possibly giving credits, but it would need direction in that regard.
The RTIA had indicated that the appeals tribunal services would not be paid for by the appellant, as the RTIA had looked at the infringement revenue to fund the services of the appeal tribunal, although it had later approached DoT for assistance in that regard.
The Chairperson asked the RTIA to elaborate on its proposed partnership with NICRO. She was concerned that if the RTIA was proposing rehabilitation for learner drivers that could be problematic, as habitual traffic offenders could continue infringing beyond the acquisition of a licence. What would happen when new drivers committed traffic offences due to faulty fleet vehicles given to them by employers?
Mr Hunsinger said he needed clarity as to whether the RTIA had alluded to reintegration as part of bail conditions for arrested drivers, because that was inherently problematic, in that at that stage there would not have been a proven offence. Had the RTIA proposed decreasing the full volume of demerits through the reintegration programme optionally? He felt that it had to be mandatory rather than voluntary, as the intention would be to have better behaving drivers.
He wanted recognition by the RTIA about the use of incentives for responsible driving, because he was not satisfied by Mr Tsholetsane’s response that the constitution enjoined South Africans to be responsible drivers. Educational success, for example, was acquired through both scare tactics and rewards. He believed that the message would circulate, that if one individual received a discount for good behaviour, that could have a knock-on effect across the system and lead to different behaviour, which was part of the intent.
How much would the AARTO amendment cost municipalities in the different categories?
Mr Maswanganyi said he would like SA to revisit the issue of international drivers. He was not satisfied with the treatment of foreigners equally with SA nationals, because all other countries did not have equality of treatment between nationals and foreigners. He wanted to know which legislation allowed for this. The government had to make a provision in law which would allow law enforcement officers to issue spot fines and compel their settlement by foreign drivers. Why should foreign drivers have a special dispensation on SA’s roads?
Mr Sibande supported Mr Maswanganyi’s sentiments, reiterating that he wanted elaboration on the provisions for foreign drivers that were undocumented. Who was responsible for overloaded international passenger transport? Where was the gap which Mr Tsholetsane had alluded to? He also needed clarity as to who was responsible -- between the owner and the driver -- of a minibus which had been given to the driver in an un-roadworthy condition.
Mr Ramatlakane said that since the Committee seemed to be in consensus about there being a need for a provision for foreign drivers and their offences, the DoT legal unit would possibly need to draft something and present it to the Committee for consideration. Additionally, he proposed that the DoT also think about the mechanics of what the spot fine would be. There seemed to be reluctance from officials of the RTIA and DoT to deal with these matters, as they had been raised in 2016 already.
Mr Tsholetsane replied that the RTIA was not running away from issues surrounding foreign drivers, and that as earlier indicated it had started engaging the C-BRTA and the DHA in terms of what mechanisms, supported by which laws, could be put in place so that at some point RTIA had reviewed the establishing legislation of the C-BRTA to see if there would be anything of use therein. He apologised for the lack of definitive responses on the matter, but he did not want to commit to matters that were still ongoing work.
He said that the Committee would recall discussing why operators would have to bear the responsibility for the infringements by their drivers. He had explained how the owner of a minibus would be held responsible and how drivers would be liable as well for their conduct on the road, and the Committee had agreed that could not be allowed. The owners/operators would be liable for the condition of their vehicles. Owners who gave un-roadworthy vehicles to drivers which led to deaths on the roads had to be charged with murder, as they would have contravened the NRTA.
The RTIA would see, within the traffic space, where it could incentivise good road behaviour.
Mr Tsholetsane said that the RTIA would possibly have to develop a document which would explain what municipalities had to do in implementing the AARTO amendment, and what was expected in terms of payment by them in that regard. The RTIA would return to the Committee with such a document, as the AARTO amendment was being finalised.
National Taxi Alliance (NTA): Submission
Mr Francis Masitsa, President, NTA, thanked the Committee for inviting the NTA to give input on the AARTO amendment. He then read through the submission with the Committee, which highlighted the difficulty which taxi operators faced in ensuring their drivers had postal addresses where the authorities could serve relevant processes on them. The AARTO amendment implied that the owner had to ensure that his driver had a fixed address, although it was a reality that in 2017, most South Africans still did not own their own property. If processes were unable to be served on an operator’s drivers, it was the operator who could lose his operator’s licence, his driver’s licence or his vehicles – or all three. The burden placed on taxi owners was borne by no other employer in SA or elsewhere.
Mr M de Freitas (DA) proposed that incorporated into the AARTO amendment had to be a provision that owners be responsible only for ensuring the roadworthiness of their vehicles. Demerit points would have to be linked to a driver, and not the owner. Could the NTA respond to that proposal?
Mr Maswanganyi said as he understood the AARTO amendment, it already provided for the driver and owner responsibilities so that demerits could be allocated accordingly and fairly. He asked RTIA to reflect on the matter. He also asked that the NTA conclude on the point it was driving to in its reference to the case of Mazibuko v City of Johannesburg.
Mr Sibande said he thought that the NTA would propose possible solutions to minimise road carnage, as there were some owners that were guilty of un-roadworthy vehicles remaining on the road.
Mr Ramatlakane asked whether there would be detailed regulations that would explain the categories of offences allocated to owners, and infringements allocated to drivers. He asked the NTA if the RTIA had provided such categories, and what the NTA’s view would be. If the regulations were detailed, as he had alluded to above, would NTA members still see the AARTO amendment as blocking them from participating in the economy of the country? The NTA had referred to unfair trade, and had said that no other businesses had a similar burden as that put upon taxis, but would it agree that its trade in transporting passengers was critical in the sense of their conveyance to their destinations safely, and for preserving life? Therefore, the criteria on the condition of the equipment used by its members had to be such that life would be preserved. What would the NTA prefer to be included in the AARTO amendment to cater to the concerns the Alliance had raised?
Mr Hunsinger asked if the NTA supported the AARTO as it currently had been drafted, where there was a lot of dependence on the distinction and role of agencies and entities to ensure that an infringer would be held responsible for the service of a notice. In what way would the NTA assist in the driver nomination process, because as an alliance they would be approached in assisting with nominating who the actual driver had been who had transgressed? How did the NTA currently assist in the driver nomination process?
Mr Tsholetsane referred to Mr Maswanganyi’s allusion to the responsibilities of the owner versus those of the driver, and said that in terms of the NRTA the provisions demanded that the driver of a vehicle be responsible for how they drove. Failing that, the driver would be liable for breaches of the NRTA. Section 49 of the NRTA provided for the responsibilities of operators or the actual owners of vehicles used for a business. Operator’s vehicles were required to be roadworthy and in operational condition, and in the absence of operator’s vehicles meeting operational standards, the responsibility for failing those standards would be allocated to the owner. If a driver was caught speeding by a camera on SA’s roads, the infringement notice would be sent to the owner of the vehicle, as the address on the register of vehicles would be that of the owner. Upon receipt by the owner -- because he knew who would have been operating his vehicle on the day the infringement had occurred, and the owner had particulars of said driver -- the owner had to nominate the driver and send the details to the issuing authority so that it could redirect the fine accordingly. Whether the address of the nominated driver had changed or not, the owner would not be involved. He said the draft regulations for the AARTO amendment were similar to the operational regulations for the NRTA.
Mr Masitsa replied that the NTA was a partner in the road safety campaigns through its Operation Ndlelantle, which had been running for a decade, and it intended to run the campaign for the entire year instead of the school vacation dates and peak holiday season.
The NTA was an organisation of law abiding citizens, though the implication was not to say they did not infringe some laws in SA at one point or another. In so far as infringements and vehicle-related offences were concerned, the NTA took ownership as the roadworthiness of a vehicle was the primary responsibility of an operator. The NTA also concurred with the RTIA on driver-related offences. Its argument was that punishment had to be visited on the guilty parties and no one else, so it emphasised that it already nominated drivers in instances where it received such infringement notices. However, the context, as illustrated by the Mazibuko v City of Johannesburg, was that a large percentage of Johannesburg inhabitants lived in informal settlements where there were no addresses, and the AARTO amendment required that there be an address. The only way an owner could ensure a driver had an address was to ensure that drivers leased property in their name. That was the burden the NTA was unable to bear and because of that, when a driver infringed the owner’s permit to operate would be confiscated. Owners looked primarily at whether a driver owned a driver’s licence, a professional driving permit (PDP), and to the best of the owner’s knowledge some contact address where the driver could be found. That was the best the owner could do, but insofar as providing the type of physical address required by the AARTO amendment, it meant the owner could not employ a driver even though he/she met the criteria. Secondly, the owners would be unable to operate their businesses as ordinary South Africans, although they could have permits and PDP drivers, but because they had no acceptable type of residence, whereas in the previous dispensation drivers were allowed to have what had been called a ‘lodger’s permit,’ which would serve as official documentation. Mr Masitsa said though Mr Tsholetsane had given assurances that there would be separate responsibilities allocated to owners vis-à-vis drivers, he was not convinced that owners would not be prejudiced by the AARTO amendment. It had already been stated that the owners’ inability to provide a credible address for their nominated driver would be a criminal offence. What then were owners to do?
Mr Alpheus Mlalazi, General Secretary: NTA, said that the Alliance distinguished violations into two categories -- moving violations, and violations where fines were issued to drivers. Moving violations accumulated to owners, therefore demerits went to the owner of the vehicle. Additionally, when a taxi was illegally parked or a meter had expired, the fines accumulated to the vehicle owner, and until that was clearly defined in the NRTA and AARTO amendments, that translated to the fact that most operators who owned more than four taxis would not have driver’s licences. The NTA was therefore appealing to the Committee to consider that aspect. The NTA’s understanding was that demerit points were automatic -- immediately a violation was reported, a demerit accumulated before nomination. As taxi owners, they also had private vehicles, and the process of nominating a driver if an owner had 10 to 15 taxis could be cumbersome. The NTA wanted explicit details on the delineation of responsibilities between an owner and a driver at the time a violation had occurred.
There had been a local government case in Potchefstroom in 2016, similar to the Mazibuko v City of Johannesburg case, in that it did not matter where a driver said he lived, the onus remained with owner to ensure that the information given to him by a potential driver would be credible. Because drivers did not own houses, they moved around. This meant that if an owner employed a driver for 10 years, the driver’s six or seven relocations during this period had to be known by the owner even though the driver would not necessarily report such movements each time they were made. For example, taxi drivers did not keep taxis at their homes, but left them at an isibaya, where taxis were kept overnight. Rarely, therefore, could owners go and see where taxi drivers lived, as the drivers never took taxis to their homes. The AARTO amendment did not seem to be in line with the reality of the taxi industry.
The NTA could never place the economic value of their business above the lives of the people they transported, or other road users. The NTA always sought to keep their vehicles in good condition but drivers were human, and thus the NTA supported the AARTO amendments so that drivers who intentionally violated the rules of the road, leading to injuries and loss of life, could be liable for charges.
The principles of the NTA were fairness, justice and equality, tempered by the realities of SA life -- that was what the NTA wanted the AARTO to look like. The NTA did not want the AARTO amendment to translate to a large number of taxi operators becoming criminals by implication.
Regarding the nomination of a driver where violations occurred, the NTA asked whether some form of enabling technology could not be sought which would allow the taxi associations to communicate more seamlessly. For example, there was the OLAS receipt (Operating License and Route Annexure). The NTA had always encouraged its members to replace their unsafe taxis, but the process of getting a new taxi had a requirement which was the verification of the operating licence to satisfy banks that an operator was indeed legal. Neither the NTA nor the banks were able to read the OLAS system, and if there was a link where -- if a potential driver walked into an association wanting employment -- the association could read from a system which indicate whether the driver had demerits and outstanding warrants, so that it could then deal with the driver appropriately. Unfortunately, associations did not have access to such systems and the NTA was not even sure whether such technology existed. For some very sinister reasons, the DoT and NTA tended to disagree on very important issues like ensuring that drivers were credible, and the processes of removing un-roadworthy taxis for replacement by safe ones.
The Chairperson said the Committee would appreciate a memorandum from the NTA detailing the issues where it disagreed with the DoT.
Mr Dumisani Mpanza, Treasurer: NTA, asked when the DoT was intending to subsidise taxis. When would radical economic transformation be implemented in the taxi industry, because the PUTCO bus company still held long expired bus contracts?
Adv Adam Masombuka, Chief Director, Legal Services: DoT, said he would consult the public transport division at DoT in response to the questions.
Mr Sipho Dibakwane, Policy Analyst: DoT, said the Department had crafted a Public Transport Transformation Plan (PTTP) which was still in the DoT’s internal processes en route to Cabinet. The PTTP spoke to the concern raised by Mr Mpanza, and the public transport division did have pockets of funding where the DoT wanted to develop a holistic approach to responding to the concerns of the taxi industry. It was hoped that Cabinet would process the plan during 2017.
The Chairperson asked whether the PTTP was inclusive of the radical economic transformation policy.
Mr Dibakwane replied that what the DoT had inherited post-1994 had been a piecemeal approach to public transport. The PTTP therefore would attempt to address the current challenges, as the DoT felt that it needed to subsidise the commuter, which would go a long way towards changing the public transport space. The door was certainly open for the taxi industry to engage with the DoT.
Ms S Xego (ANC) said that when the DoT presented its quarterly reports, the Committee always fought with it about the budget allocation for taxi recapitalization. Was the NTA still interested in that programme? Why were taxis not being brought in for scrapping, or could the Committee tell the DoT to shut that programme down?
Mr Mlalazi replied that in the taxi industry history, the only direct intervention which had enabled taxi owners to replace un-roadworthy taxis had been the taxi recapitalisation programme. The NTA was grateful for the programme, though it felt that the DoT had not consulted enough with taxi operators on matters concerning the industry around the recapitalisation programme. The NTA had made a lot of noise around the specifications on taxi recapitalisation compliant vehicles, in that there had been a lot of things added there that had nothing to do with safety. The seating configuration of the vehicle had taken away income unnecessarily, but had pushed the price of the vehicle from about R162 000 to between R400 000 to R600 000. The standard taxi recapitalisation compliant vehicle did not have a middle seat at the front, where the explanation had been that it was supposed to have an electronic fare collection machine installed, or when drivers changed gears, this interfered with the passengers. The NTA’s plea was for the DoT to engage the taxi industry seriously, because it supported the recapitalisation programme entirely as it had assisted immensely.
Mr Masitsa said if the DoT had adopted the principles of the NTA -- which were fairness, justice and equity -- then the Department and the taxi industry would have developed a much better relationship to date. If one wanted to walk fast it was best to walk alone, but if one wanted to walk far then all parties had to hold hands and walk together, and that was not what DoT were doing. There was a problem within the scrapping agency as the proceeds from scrapping were not devolving to their intended destinations. There were some beneficiaries, but that was at the expense of others. He could not recall the number of times the NTA had approached DoT officials on the matter, with no positive response.
The Chairperson thanked the NTA for attending, and welcomed the Business Unity South Africa (BUSA) and Southern African Vehicle Rental and Leasing Association (SAVRALA) delegations.
Business Unity South Africa (BUSA): Submission
Mr Marc Corcoran, Trade and Transport Sub-Committee, BUSA, said it was important that the context of the AARTO amendment and road safety not be lost in the engagements. BUSA hoped that the engagement would activate a further relationship with the DoT, as it had engaged the Minister of Transport with her senior executives at the beginning of 2016, though the momentum from that engagement had fizzled out. The invitation BUSA had received to give input on the AARTO amendment would hopefully give renewed vigour to that work going forward.
The manner in which the AARTO Amendment Bill had been presented had been a concern to BUSA’s constituents. He asked if there was somewhere at a technical and more operational level where BUSA could have a fuller engagement, as the AARTO amendment had reached BUSA at short notice from a third party.
Regarding the burden of costs to attend the consultations with Parliament, the committees could consider video conferencing to allow more consultation with a wider stakeholder audience.
After promulgation, the principal AARTO Act had led to a pilot project in Tshwane and Johannesburg, where at a 2014 National Economic Development and Labour Council (NEDLAC) engagement, a report of the pilot project had been circulated. The report had highlighted several concerns concerning AARTO, based on the pilot project. BUSA was concerned that the feedback from that engagement had not been articulated in subsequent amendments to the AARTO Act. The Road Traffic Management Corporation (RTMC) had done further work in terms of research and studies around 2014, but it appeared to BUSA that the thrust of the communication from that work had again not found its way into some of the amendments.
NEDLAC stakeholders had raised concerns about the impact on jobs which could result from the unintended consequences from some of the clauses of the AARTO Amendment Bill, by making some people unemployable through no fault of their own, as their driver’s licences could be withdrawn because of demerit points’ accumulation.
There seemed to be more priority put on the generation and collection of revenue through the amendments in the AARTO. A major concern since the October 2016 NEDLAC engagement had been a follow-up on the pilot project report, where government officials had told BUSA that there had been a follow-up study evaluating the efficacy of AARTO, and BUSA had indicated to government that its stakeholders would appreciate a report of that study.
A question that had been raised at the same NEDLAC had been whether AARTO would change driver behaviour, as BUSA had questioned whether there had been any empirical evidence to speak to that, without the demerit points system being in place. The parties at NEDLAC had been concerned as to whether that question had been adequately ventilated and responded to.
In 2010, the SA government had committed to reduce road fatalities by 50%, in line with the United Nations (UN) decade of road safety initiative. Prior to, and after, that intention and signatory commitment, there had been no shortage of strategic plans to navigate SA’s way towards achieving that target.
However, the country had not been able to achieve it. That had been a point of engagement for BUSA at the most recent NEDLAC when engaging government partners on the National Road Safety (NRS) strategy, which had outlined the view that the signatory 50% target would move back to 2020-2030. The concern raised there had been why the focus had been shifted to 2030, though the target was aligned with the National Development Plan (NDP). BUSA’s view was that the strategy document had been a usefully summary of all the previous strategies without offering anything new or any fundamental insight as to how SA would change its approach to be able to achieve the 50% target. The response had been that the UN currently was undergoing a review on how sustainable goals were set to extend to 2030. BUSA, however, had information that even the European bloc had reduced their fatalities by a significant proportion over the first four to five years of being signatory to the decade of road safety initiative. SA possibly had to reflect on whether it would not be missing an opportunity to realistically intensify its focus on the initiative by pushing the target to 2030.
Mr Corcoran presented a roadmap showing how BUSA saw SA getting from 14 000 average road fatalities in 2010, to fewer than 7 000. BUSA’s concerns would be in the impactful use of technology in vehicles over the next five years. There would be the addition of more safety features, and autonomous driving would take a more proportional representation within fleets. In that regard, BUSA felt that the target for the reduction on the basis of the UN initiative had not fully accounted for the technology advances that would have taken place. In the legislative environment, there had been little outline of what regulations were required for kinetic vehicles; how Government would deal with autonomous vehicles; what the timeline would be for dealing with managing a new sharing economy, which would and should have an impact on road safety. There was little sense of what the impact of that opportunity would be.
There was a lot of focus on the short and medium term up to 2020, but it was noticeable that for the final decade, there was sparsity in terms of focus, and this was where SA had to understand a bit better whether AARTO would play a greater role by then, or if there would be other mechanisms that would need to be applied. In the 2014 RTMC report, it was important to consider that under pillar three (safer vehicles), 74% of factors resulting in crashes had been attributed to tyre bursts. A further 6% had been attributed to smooth tyres. From that pillar three, the RTMC report had shown that 80% of factors resulting in crashes could be attributed to tyres, yet AARTO did not cater for the inspection of tyres. If tyres were an important factor, the question was what mechanisms there were other than visible policing at road inspections to check tyres, if they contributed to that many crashes. Similarly, in pillar four (safer road users), 43% of fatalities could be attributed to pedestrians and jay walking, and 16% to speed. AARTO focused mostly on speed, and BUSA wanted to know where there was a similar and equal focus in AARTO on how to communicate and educate pedestrians on the road safety, and to engineer SA roads to have pedestrian bridges at access points. BUSA would want to know where the hot spots and priorities were, so that the focus could be placed on those areas in the data so that collectively road safety could be impacted.
Econ was a technology in Europe which was being stipulated as mandatory from 2018. Effectively, the technology was an embedded simcard in a vehicle. If there was an accident, the vehicle would call an emergency service provider which would ensure that within an hour a geo-location of the vehicle would have been provided, and if the driver was still conscious the responding emergency personnel could speak to the driver. Such technologies were what BUSA would have liked to be considered, but to their knowledge they were nowhere in SA’s radar.
There were also a number of areas regarding the prioritisation matrix of the NRS strategy which were ‘quick win ‘initiatives, and BUSA’s concern submitted at NEDLAC had been that it would have liked to understand better the process of prioritisation, as it had felt that there probably were other initiatives that could be implemented easily and would have a bigger impact. There were also inadequate engagement structures in place, in that BUSA and its members found that when they submitted comments on the various amendments they often did not receive feedback. Moreover, when revised legislation was made public, it seemed that there had been no consideration of their inputs. There was therefore a submission fatigue that had started creeping in, and there was a sense that though BUSA wanted to engage and participate as a key stakeholder, it felt there needed to be a formalised way of engagement, however manifest that would be, so that BUSA became part of the development and drafting process rather than being in a situation where it had to respond at short notice. Unfortunately, a lot of the amendment bills had also been published for comment over the December break, which had created challenges for BUSA members in terms of responding adequately.
In 2015, the European Safety Report trajectory had indicated a decrease of just under 10%, which represented 25 000 people out of a population of 740 million. SA accounted for half that number of fatalities with a population of 50 million. Though there were observations in the NRS about how SA could learn from other countries on how to change behaviour anecdotally, Mr Corcoran said he had been amazed when the smoking legislation had been introduced that there had been no smoking police, or a demerit points equivalent put on society, but rather the message had been about the benefits of the law and society had accepted that. The challenge was to figure out how to replicate that change in people’s behaviour in a similar fashion, where it had been so easy to understand and adopt.
BUSA was concerned about the shift towards using technology as a stretch too far without the necessary management structures and integrity of process when considering social media. If someone was served a traffic infringement via Facebook, for example, there would be concerns about that and the definition of electronic service. There were insufficient safeguards or understanding of what was meant by electronic service, and BUSA’s view was that personal and registered service should rather be the focus.
BUSA was further concerned that the AARTO process was focused on an automated process to generate infringements as opposed to changing behaviour, where a key process was engagement between a traffic officer and a member of the public when an infringement had taken place. From research in other countries, the importance of the enforcement officer engaging with an infringer at the point of infringement could not be lost, versus when an infringer received an infringement notice sometime later in the post, and the opportunity to educate the infringer had been lost. The whole process in terms of the design of the AARTO, as adapted from Australia, had been the need to ensure via visible policing that face-to-face contact between the traffic authority and the road users was a key element in changing road traffic behaviour.
On the definition of infringements and their status to be decriminalised and put into an administrative process, there were some constitutional concerns involved. BUSA also wanted to understand why the sheriff, as part of the old enforcement process, had been removed from the new process.
Regarding habitual offenders, BUSA was concerned about the unintended consequences the AARTO amendment would place on fleet owners, as large fleet owners relied on proxies. There were individuals who, through no fault of their own, could end up being habitual offenders depending on the administrative process. There were concerns on how rehabilitation entities would be structured and funded, and what the criteria for success would be. BUSA believed there had not been enough consultation and thorough thought, though the intentions had been good, about these entities and there was still opportunity for further discussions.
The repeal of section 12 of the AARTO principal Act also concerned BUSA, and the business and e-mail address of infringers in relation to the electronic service had been earlier addressed as concerns. Representation after 40 days was believed to have some constitutional hurdles which could not be overcome.
Regarding the section 25 amendment of the principal Act, BUSA would want to understand the process followed in that amendment.
BUSA would look forward to engaging on what the motivation had been for the establishment of the appeals tribunal, and to what extent it would save time and money.
Mr Ramatlakane said though BUSA had indicated challenges with the service of infringement documents through social media and the electronic service, it had offered no alternatives. It was acceptable in the courts for the service of notices through e-mail, but there seemed a reluctance from BUSA when it would be done through the AARTO amendment. Why would BUSA have no issue remaining with the sheriff of the court under the AARTO amendment? Why could the RTIA not be allowed to re-issue an infringement notice after the 40 days awaiting representation?
Mr Hunsinger said as far as he understood, all current road infringements had been covered within the framework of the intention of AARTO, with only the method of penalties being different. There was no intent to exclude certain offences or to give priority to other offences over others. If his understanding of the AARTO amendment was different and wrong compared to that of BUSA, he asked BUSA to explain to him the correct comprehension of the AARTO amendment. How did BUSA imagine that normal sheriffs of the court would be able to handle the enormous volumes of statistical databases of information which BUSA subscribed to? He was aware that road crash data had not been up to a good standard, but he also acknowledged improvements in the population of that data set. The Committee was serious about the implementation of road safety processes, as indicated in the plethora of documentation in that regard.
Mr De Freitas said he had not seen the report on the AARTO pilot project referred to by BUSA, and would request that BUSA submit that to the Committee.
Mr Sibande said the presentation by BUSA referred to the European bloc as an example, and asked if BUSA had any comparable information from the Southern African Development Community (SADC) bloc it could make available to the Committee. Had BUSA interacted with other stakeholders in the transport industry, as it had reported that AARTO had been enacted in 1998 with no follow-up development for the following decade thereafter? Was BUSA dissatisfied with how its inputs on AARTO had been accommodated so far? What possible solutions were there in terms of BUSA’s concerns, as he was worried that some stakeholders were concerned about keeping the status quo, as it suited the profitability of their businesses.
The Chairperson asked what regulations or mechanisms could be inserted into the AARTO regulations or amendment to effectively change driver behaviour. Instead of revenue generation, what had to be the aim of the AARTO amendment which would still reduce road crash fatalities and change driver behaviour, and give effect to the NRTA as well?
Mr Corcoran replied that he had indicated at the beginning that he was no legal expert, and asked for questions of a technical legal nature to be forwarded to BUSA, though he had taken note of them.
The preference from BUSA was that registered mail and in-person services were preferred. The challenge was that there had not been an adequate understanding of what had been meant by electronic service in terms of the practicability of operation regarding social media. Who would be the responsible person regarding typing errors on e-mail addresses if an infringement notice was sent to the wrong recipient? Therefore BUSA agreed that where possible technology should be used, but it differed on the application of that technology. At the 2015 NEDLAC, when the electronic service of notices had been presented, BUSA had agreed in principle with electronic service. The agreement in principle had been that when the regulations were being drafted, BUSA had wanted to participate in that process to understand better the motivation and intent, and to ensure that there would be no unintended consequences from wanting to improve the process without ensuring the right balance in the approach of the electronic service.
BUSA was not clear as to why the sheriff had been taken out of the proposed AARTO amendment, as it had always been part of the AARTO principal Act.
He asked that the question on representation and the 40 days provision be responded to in writing by BUSA.
His point about tyres had been that smooth tyres and tyre bursts contributed 80% towards road crashes. AARTO was therefore one element were tyres were included as a violation, but BUSA wanted to know where within the plan there was a clear focus on how to tackle the issue. If tyres had been identified as a key element in contributing to fatalities, where was the action plan to drive that focus? That would rely on visible policing and vehicle inspections, as traffic infringement through speeding offences caught by cameras would not help much with tyre problems and roadworthiness.
To expect that sheriffs would be able to deal with the current volume of traffic infringements was indeed impractical. However, those infringements where a sheriff would be required would be a much smaller percentage of the general volume of infringements.
The crash data referred to the tyres and pedestrians statistics, and the challenge was about how government could identify the right mechanisms, tools and action plans using the data. He was encouraged that the Committee wanted data, because there could well be data available already to which BUSA was not privy. BUSA’s statement on data had been made on the basis of an absence of data or not knowing whether anything was happening in that regard.
The reference to an AARTO report had been based on a response BUSA had received at NEDLAC, but it would also certainly like access to it as it had not received the actual document.
Mr Corcoran said he had not been deliberately Eurocentric in choosing to use the European model, but it was interesting that in a population of 750 million, Europe had managed a decrease in fatalities in very varied road traffic conditions, and this was what was being highlighted. This was because at a previous NEDLAC, there had been a suggestion that the decision to move the ‘decade of action’ goals from 2020 to 2030 had been based on a general acceptance that it was a challenge for most signatories of that UN initiative to achieve the 50% target. BUSA had been pointing out that reaching the 50% target was possible, as many countries with lower fatalities per 100 000 than SA had made strides towards that target in that decade. Regarding comparable African data, Mr Sibande would be aware that there was little accurate data, and he would welcome a supplement of that data.
The point was not to say whether AARTO stakeholders had been consulted satisfactorily, but rather that one meeting every couple of years did not constitute substantive engagement regarding a partnership towards trying to achieve a collective goal of reducing road fatalities. It would be error to describe whether consultation was achieved through one or five meetings a year. The management of the respective expectations was that of being part of a process, so that when legislation was being presented stakeholders could feel they had been allowed to give input in a meaningful manner. BUSA maintained its view that its input had not been considered when it had been presented. The legislation had ignored everything, though that was the legislator’s prerogative. BUSA felt that there should at least be a platform where stakeholders could be briefed on what would not be agreed on by Government, and the reasons for this, which was something that had occurred recently during the engagement on the National Road Safety strategy.
BUSA’s view on the suggestion that there were operators who benefited from the maintenance of the current AARTO system, was that it did not know the extent of the profit and would not hold the view that an administrative system continued to allow road fatalities without addressing them, in lieu of profit making. The counter was that if everybody abided by the speed limit, what would happen to revenue collection in some provinces and cities? If there was improvement in road safety and there were no accidents, the panel shop industry would have less business. Therefore there was that double-edged sword, where you have an improvement but consequences for the downstream value chain.
In terms of the 40 days perspective, BUSA felt that the infringement would have to be withdrawn, and not whether it could be re-issued.
There were members in the business sector in Johannesburg and Tshwane who had reported on their experiences with AARTO, indicating that when enforcement orders had been placed on a fleet operator and the infringer had been identified, the infringement had then been presented and the nomination had been redirected back to the authority, but the experience was that the redirection never completed. Therefore, when the AARTO 07 document was completed and redirected, it would not be taken off the contravention register from the proxy, and would remain there without being transferred on to the renter of the vehicle. BUSA appreciated the challenge and had engaged with the authorities on what data had to be included in the AARTO 07 to ensure an adequate opportunity for the authorities to redirect. BUSA felt that its members generally presented adequate information, but the challenge was that once the information had been presented, there was no processing of it. Meanwhile, the clock continued counting, and given the current challenge in the communication and servicing of notices, this meant there were instances where enforcement orders had been placed on fleet owners, making the operator unable to operate.
In terms of regulations and what suggestions BUSA could make regarding driver behaviour change, Mr Corcoran said it was one thing to make legislation and another to have boots on the ground that had the awareness and focus. He did not think it was for want of a legislative framework, but rather the enforcement and the people on the ground, which was where the opportunity existed. BUSA could forward suggestions on regulations.
On revenue generation, BUSA said the collective focus had to be the successful change in behaviour of drivers. Moreover, the drive within the current process led one to feel that there was an over-reliance on how the RTIA could generate revenue.
Mr Tsholetsane said he had been involved in the NEDLAC process, where BUSA had given input. Among BUSA’s suggestions which had been incorporated into the AARTO amendment were, for example, issues which had arisen regarding demerit points on offences which did not cause accidents, and the RTIA had removed such matters accordingly. The RTIA had done a thorough exercise, going into schedule 3, to effect the removal. Not every proposal business submitted as input would be discarded, but neither did that mean business would be legislators or policy makers.
He had been involved in AARTO since 2003, when he had engaged SAVRALA on the nomination issue, and even then SAVRALA had rejected the process of nomination. The RTIA had insisted that nomination should happen, as fleet operators were the ones hiring out vehicles to people the RTIA did not know. He was told at the hearing that business adapted, and he was questioning himself whether business adapted sufficiently if nominations remained a challenge for businesses, with fleet operators bemoaning the enormous administration involved in nominations, and that they could not keep copies of particular documents and other matters. As far as he understood, soft copies could be kept by fleet operators when they were hiring out vehicles, since operators gave clients hard copies of rental documents.
On documents not being processed by the authorities and the RTIA, as the Committee had heard in the presentations, operators did not want to keep particular documentation nor want to supply others, but wanted to complete a process requiring the same documents which operators could not keep. As a result, operators submitted improperly completed documents for redirection, which unfortunately meant there was no way forward. In other instances, when things were done properly, the RTIA found that the issuing authority either in Tshwane or Johannesburg had not followed up and when that was the case, the RTIA assisted in clarifying such matters. Therefore a context had to be given as to when and why things happened in a particular way, as the blame could not be put squarely on one party. Government could not always have to be the compromising party -- business had to come to the table.
Mr Corcoran agreed that business and government had to find each other going forward. There was the RTIA and local agencies in cities where a domino effect occurred where, if a city did not perform its role in the AARTO process by not completing step one, the RTIA was left in an invidious situation as the matter was escalated. From personal experience, where he had identified an issue and subsequently contacted the authority and found relief, it signalled that the process did not work efficiently all the time as there were different key role players.
He maintained that BUSA they had not found their way achieve a proper outcome if one took the AARTO 07 form and completed it in full. One had to be writing in one’s facsimile number. Certain people could not capture their fax numbers, but going forward the industry had indicated that if a matter went to court the docket would be suitably and adequately completed in order to comply with the authorities.
Southern African Vehicle Rental and Leasing Association (SAVRALA): Presentation
Mr Winston Guriah, President, SAVRALA, said he would not go into the preamble, but there were initiatives in which the Association had participated over the years to focus on specific aspects of the AARTO ,as listed in the preamble. He then read through the presentation with the Committee.
He said that on Page 2: Clause I (3), ‘electronic service’ meant service by means of electronic communication as defined in the Electronic Communications Act, 2005 (Act no. 36 of 2005). SAVRALA was not deterred from engaging with the authority to determine the full implications via a consultative method to understand how they could best utilise technology between Government and SAVRALA.
On redirections, SAVRALA asked if the current framework could be reviewed -- there were 32 days from date of first infringement notice received. Could a web-based system be made available, similar to what the City of Cape Town used? The possible impact of any amendments on changing driver behaviour had to be explored and measured, and there should be re-engagement with broader stakeholders afterwards.
Ms Xego said the electronic service of notices of infringements, though a concern for SAVRALA, was not the only service of notice proposed in the AARTO amendment. Had there been any transport stakeholders that had been left out in the public hearings?
Mr Sibande said he needed clarity on the key car rental concerns, as listed under the introduction. From SAVRALA’s presentation, it seemed that fleet operators were vulnerable to the submission of misleading information by renters, as its members were unable to gather correct and complete information before hiring out cars. For instance, buying a mobile phone currently required the client to RICA the handset so that all their particulars could be captured in a central database. Where was the problem with fleet operators not having a similar mechanism?
Mr Maswanganyi asked what the difference between CANCOM and SAVRALA was. He concurred with Mr Sibande that SARVALA could not blame the DoT for the rental sector’s inability to capture and process correct renter information.
Mr Baloyi said that it seemed from SAVRALA’s input that it had an idea of how to navigate the AARTO system when referencing proxies being disqualified as legal drivers, and the RTIA had been engaging the rental car sector for years. He believed that a proxy, according to NRTA regulation 336, was clear about when a proxy was registered with their respective issuing authority. Being a fleet operator, rental companies could certainly get an identity document (ID) of the car renter, so that nomination and redirection could be done. If proxies did not capture the ID document, probably that would be where the problem arose. Did proxies submit correct information to issuing authorities for nomination, or was it a matter of submitting whatever information there was and hoping that redirection would proceed on its own?
Mr Tsholetsane added that the RTIA had found that the so called proxies representing industry approached the RTIA differently -- firstly, as a properly registered proxy within the processes of the NRTA; secondly, a letter with a power of attorney would be presented that a proxy had been given authority to act in a certain way. The RTIA was in a situation where it had to accommodate an individual with a power of attorney letter, though not registered as a proxy, because the law did not allow such things. Such people would write ‘proxy’ at the top of the form without there being an ID number, but there would be an address. Unfortunately the RTIA could not process such a transaction as the regulations were clear that for the RTIA to perform transaction X, a particular form had to be completed fully.
Adv Masombuka said the DoT did not agree with the notion that the AARTO amendment had to be sent back to NEDLAC, as there was a NEDLAC report already that authorised the DoT to proceed with the bill to committees, like that of transport. In that report, business had been represented by Mr Corcoran and a large delegation and Government had been represented by Adv Masombuka, Mr Tsholetsane and others, Labour and the community also had been represented. All representatives had signed off on the report.
Mr Guriah replied that SAVRALA would not have come to Parliament if it did not want to find a proper measure between all parties and stakeholders.
If one looked at the technology that had been invested in SAVRALA’s members’ portals that would give an understanding of the change management that SAVRALA and its members had embarked upon, in trying to find an easier and quicker mechanism of provide service delivery. As Members of the Committee would have rented vehicles at some point, they would have experienced the frustration caused by delays at a rental counter. SAVRALA were not distancing themselves from electronic means, but were simply saying that there needed to be a better understanding of the implications of how the electronic measures as proposed by the AARTO amendment bill would come into effect, and how those dynamics would affect SAVRALA.
Mr Guriah was not privy to whether all stakeholders in the transport environment had been consulted or not. As had been alluded to by BUSA, possibly the lateness of the invitation would have prevented some stakeholders from reaching the hearings.
The key car rental concerns had been a contextualisation of where SAVRALA and its members found themselves in terms of the big cost concerns in their environment. Manufacturers’ car prices increased 4-12% annually.
On driver information supply on page7, the new clause 1(c) basically stated that car rental companies had to validate customer information. Validation was extremely difficult, and rental companies would of course use their best endeavours to do so, but the process had to ensure that the information passed on to authorities was sufficient. For instance, if any Member went to a Hertz rental counter and was asked for proof of residence, Mr Guriah wondered how many Members carried that proof around with them.
SAVRALA had said the habitual infringer should be the proxy upon whom the aspect of law should be applied, instead of the actual infringer. Being questioned was whether the intention had been to impose a penalty on the infringer, or any person that could be held responsible. If the latter was the case, was that not leading back to what SAVRALA had asked earlier as to whether the AARTO Amendment Bill aimed at revenue generation, or was the concern about road safety and driver behaviour?
Mr Sandile Ntseoane, General Manager: SAVRALA, said the key car rental concerns were rather ongoing focus areas that SAVRALA continuously and consistently grappled with year on year. SAVRALA had had a recent engagement with the RTMC on redirections, including with the Member of the Executive Council (MEC) for Transport in Gauteng, who had then led SAVRALA to the City of Ekurhuleni where a process had been found to alleviate some of the congestion SAVRALA had found when processing its licensing as a bulk transport user.
Mr Guriah said CANCOM was a private company handling the redirection of fines for some of SAVRALA members, but it was not a SAVRALA association. SAVRALA members had the prerogative of using any supporting association they felt would assist in their ventures.
Mr Maswanganyi said that though the Committee had already had stakeholder input, others were still to come, and therefore SAVRALA being privy or not to the list of stakeholders was neither here nor there. The Committee had written to stakeholders over and above the advertisements in newspapers to invite inputs, and therefore there had to be no doubt about the legitimacy of the public hearings.
Mr Ntseoane maintained that SAVRALA had got to know about the AARTO amendments incidentally through its individual members who were also members of BUSA. SAVRALA was certainly not disputing the fact that stakeholders had been invited, but suggested that a wider spectrum of invitations be considered next time.
Mr Hunsinger reiterated Mr Maswanganyi’s point that letters had been additional to an advertisement, and that was not standard procedure. Invitations were generally gazetted, and SAVRALA simply had to keep an eye on Government Gazettes. Additionally, the Committee had held a second round of public hearings, and stakeholders had to be cognizant of that.
The Chairperson said that the Committee had populated its database with additional stakeholders, as it had close to 50 submissions on the AARTO Amendment Bill. She thanked SAVRALA for honouring the invitation.
Mr Tsholetsane said that the RTIA would be updating their responses, mainly to the NTA and Johannesburg submissions, for a future date.
The Chairperson thanked everyone and the meeting was adjourned.
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