AARTO Amendment Bill: deliberations

Meeting report

Members observed a moment's silence to mark the passing of Mr Ahmed Kathrada

Administrative Adjudication of Road Traffic Offences (AARTO) Amendment Bill [B38-2015] Further deliberations
Parliamentary Legal Advisor's submission
Dr Noluthando Mpikashe, Parliamentary Legal Adviser, stated that she, on behalf of the Parliamentary Legal Advisors (PLA) and Mr Mongameli Kweta, on behalf of the Office of the State Law Advisors (SLA) would deal with the legal issues that arose during the public briefing process.

The Committee had asked for the meaning of certain definitions to be highlighted.

Dealing firstly with “Adjudication” (as in the context of the Administrative Adjudication of Road Traffic Offences (AARTO) Act) Dr Mpikashe noted that the Oxford English Dictionary meaning of the Act, and said that there were three types of disputes that could be resolved through adjudication. The adjudicative process is governed by formal rules of evidence and procedure and is objective. Decisions could be rendered by an impartial, passive fact finder, usually a judge, jury, or administrative tribunal. She noted that section 166 of the Constitution provides that the judicial system consists of the Constitutional Court, Supreme Court of Appeal, High Courts; Magistrates Courts; and “any other Court” established or recognised in terms of an Act of Parliament. She submitted that the Tribunal would have a similar status to a court and that its members ought therefore to have knowledge of the law.

Section 27 of the AARTO Act said that the Tribunal, or a member of the Tribunal acting alone in accordance with this Act, may adjudicate and cited examples of when a single member could do so – for instance: ,

• any application that may be made to it in terms of this Act
• any order provided for in this Act in respect of such an application;
• allegations of prohibited conduct; by determining whether prohibited conduct had occurred
• imposing a remedy for the prohibited conduct as provided for in the Act
• giving an order for costs in terms of section 147
• and exercise any other power conferred on it by law.

There were also instances when the Competition Tribunal may adjudicate. For this reason she suggested that it was better to refer to an Adjudication Tribunal, rather than an Appeal Tribunal, in the AARTO Amendment Bill.

Presumption of Innocence was another concept that the Committee had asked to be explained.  Presumption of innocence was specified as a fair trial right, in section 35(3)(h) of the Constitution, The State must prove the elements of the crime beyond any reasonable doubt but the infringer was not required to prove innocence beyond a reasonable doubt. However, the Constitutional right to presumption of innocence related to a fair criminal trial and did not apply to proceedings outside of a criminal trial.

Electronic service had also been discussed. Government Gazette 464 of 22 June 2012 contained an amendment to the High Court Rules, which provided that under section 4A(1), delivery of documents and notices,  other than those falling under rule 4(1)(a), may be effected by a number of means as specified, and this included “by facsimile or electronic mail to the respective addresses provided” (with the standard notification on address changes). Chapter Ill, Part 2 of the Electronic Communications and Transactions Act, No 25 of  2002 applied to service by facsimile (fax) or electronic mail. Service under this rule need not be effected through the Sheriff. However, originals could not be filed with the registrar by fax or email. There was therefore ample recognition in the court system already for electronic service. In addition, she drew the Committee's attention to Baliso v First Rand Bank , where it was ruled that once a credit provider had provided a track and trace report showing that  notification was sent to the consumer by the post office, the credit provider was deemed to have delivered, and the consumer would have to argue why this was not considered reasonable. This further emphasised that electronic service would be recognised.

Rehabilitation was another point where clarity was sought since juristic persons cannot attend rehabilitation programmes. The Road Traffic Infringement Act (RTIA) stated that rehabilitation programmes would not be applicable to juristic persons, so that a different programme will be designed for them.

Members had also sought clarity on the Indigent policy. Dr Mpikashe noted that poverty was not accepted in the criminal justice system, so that if an indigent person could not pay a fine, they would have to then opt for the jail sentence.

Members had asked for further comment on demerit points. Members questioned whether a person who had been found guilty of drunken driving by a court, and also had demerit points applied to their licence, had received a double punishment. She advised that the Members could consider adding wording allowing the courts to decide whether it would opt for a criminal finding only or also empower the RTIA demerit points. She drew an analogy that the courts had a discretion, in a case where a person had been found guilty of a sexual offence, also to include their name on the Sexual Offences Register. She cited a case in which the Constitutional courts had the discretion to choose if it would include the name of the person involved in the Sexual Offences Register if found guilty of a sexual offence.

Office of the State Law Advisor briefing
Mr Mongameli Kweta, State Law Advisor, reported that there had been concerns about the possible infringement of section 33 of the Constitution, which provided for just administration action, and section 34, which guaranteed everyone the right of access to courts. The Amendment Bill contained proposed wording to the effect that f the person’s efforts to get a legal representative failed he/she may appeal to a tribunal. Public comments expressed concern that this was effectively depriving people of their right of access to courts and to just administrative action. Mr Kweta amplified that anyone who is affected by something done by a public entity has the right  so that  his/her case might be considered by the tribunal but the stakeholders are concerned that this violates their rights to access to courts and their rights to just administrative action. Just administrative action linked to a prosecution means that everyone has a right to administrative action that is lawful, reasonable and procedurally fair. The same would apply in relation to an administrative body's actions.

Presently the AARTO Act provides that when a person receives an infringement notice, s/he may decide to pay or not pay the infringement notice fine, and has a right to approach the Representations Officer and present his/her case. The new proposals in the Bill now state that a person not satisfied with the Representations Officer's decisions would then need to approach the Tribunal. Public representations suggested that this violated their rights to access to courts. However, Mr Kweta emphasised that this fear was unfounded, because a person not satisfied with the decision of the Tribunal could still appeal the decision of the Tribunal by going to the High Court; therefore the requirements of section 34 of the Constitution were satisfied. 

It had been suggested that the word “rehabilitation” should be changed, but having considered the alternatives he advised that “rehabilitation” was the correct word in the context. A person who committed an infringement would receive demerit points and be rehabilitated during the period .

Road Traffic Infringement Agency (RTIA) briefing
Mr Japh Chuwe, Chief Executive Officer, RTIA, introduced his team.

Mr Thabo Tsholetsane, Chief Operating Officer, RTIA, noted that he would give the responses of the RTIA on public comments by the Ekurhuleni Metropolitan Police Department (EMPD) and National Taxi Association (NTA).

EMPD commented firstly on the comment around the proposed timeline of three months, for the certified copy of the document. This comment was appreciated but this requirement was not part of the Road Traffic Act (RTA) and could be burdensome on the people.

Another comment had been made in relation to clause 1 item 7, that all the words of “sheriff” should be removed. RTIA agreed that this was a consequential amendment that was noted.

EMPD had suggested that the words In authority, appeals and review must all be defined. RTIA responded that the ordinary meaning of these words, in the absence of any special definition, would apply. The definition of “authority” was included in the AARTO Bill. The Committee would need to decide whether they wished to have definitions of appeals and review included. The RTIA suggested that, if so,  such definition should read “the appeals and review conducted by the Appeals tribunal in accordance with Chapters IVA of the Act”.

EMPD had suggested, for clause 2, that the rehabilitation programmes should be included. That was correct; it would require additional regulation. A new clause was introduced on page 8 to cover the repeal of section 21, so that it was correct that section 21 should be removed. He clarified that on page eight was introduced because of the repeal of Section 21 hence all aspects of Section 21 process service was an administrative process, not a court process that was regulated by the Criminal Procedure Act(CPA).

There was a suggestion that clause 8 removed the option of the infringer to go to trial, and that this was unconstitutional. RTIA responded that the court process had been substituted with the administrative body of the Appeals Tribunal. As explained above, the right to approach courts was not being denied but it could be exercised only once all administrative processes had been exhausted.

EMPD had suggested, in relation to the proposals for section 18, that the infringer was essentially being accused twice, and had also asked for clarity whether the right to review was automatic or if this would be done by way of application, and if RTIA had adjudication and sentencing powers. RTIA responded that the review process could be instituted on application by the infringer, so that the review would not be automatic. RTIA could adjudicate, but not sentence. The intention under section 20 in the principal AARTO Act was to deal with infringements of the National Land Transport Act (NLTA) of 2009, and any cross-border infringements.

EMPD had asked for a definition of the National Road Traffic Offences Register (NRTOR) in the Bill. However, RTIA reported that the definition was already included in the Bill.

RTIA further noted, that in relation to section 25(2)(b) amendments, regulations would be drafted. These would address the change of numbers, the process under 25(3)(a) for issuing a receipt for documents confiscated, similar to the National Road Traffic Act (NRTA), and under 25(4) there seemed to be a misunderstanding, which the Minister could also clarify by making regulations.

Mr Tsholetsane also clarified the responses on comments from National Taxi Association (NTA). It had commented that the NRTA defines an “operator” as the person responsible for the use of a motor vehicle, who had registered as the operator of such vehicle. The point was that the owner of the vehicle should not get demerit points instead of the driver getting them. Section 25 of the AARTO Act  and Schedule 3 of the Regulations distinguished between driver-infringements, and operator infringements. The operator may not be held liable for driver related infringements in circumstances where the operator was not the driver.

It was noted that section 17 of the principal Act said that drivers are obliged to submit and update their postal and physical address details to registering authorities or driving licence centres. This was done in order to serve infringement notices to the drivers. However the operators must also submit their drivers' details and would be liable for an offence if they did not do so, when the drivers had committed an offence. Section 21 of the principal AARTO Act, which dealt with the issuing of warrants, has been repealed by the Bill. Now the AARTO Act seeks to deal with the infringer administratively and not through court processes.

Cost implications of the Bill
Mr T Tsholetsane then briefed the Committee on the cost implications of the provincial and municipal issuing authority (IA) readiness cost implications for AARTO roll-out. The points that had to be covered included:

• signed agreement with South African Post Office (SAPO) to ensure that postage of AARTO Infringement Notices (AARTO 03) and Notice for Summons (AARTO 32) that captured IA camera recordings were sent by registered mail, at a cost of R7.80 per notice
• equipment acquisition and instalment (workstations (computers), printers and scanners. These came at no cost since they were provided by RTMC under Electronic National Traffic Information System (eNATIS). Contract
• copiers to be leased by IA  who would use the current copiers
• network connectivity workstations set-up and linking to NCR / eNaTIS also came at no cost, being provided by the RTMC under eNaTIS contract
• Local Contravention Management System (LCMS) which involves Local Area Network (LAN) connection set-up and  hardware for Local Contravention Management System (LCMS) and upload of camera & weighbridge data to NCR. Here the IAs would use the existing camera office
• AARTO Stationery and books were obtained from the Government Printing Works (GPW) as the sole provider. The current expenditure on section 56 Notice Books would be moved across to be used for AARTO Books, at R56,84 per book
• registration of books on the NCR / eNaTIS under the name and code of each particular issuing authority would be done by the staff currently performing the capturing of books & section 56 notices.

He noted that tasks to be performed on NCR/eNaTIS included registering of all officers, users and back office personnel on NCR, and creating user profiles on eNaTIS for all officials that will perform AARTO duties on the system. This would be the responsibility of the provincial helpdesks. Linking of all officers to their specific issuing authority on NCR and to Notice Books issued to them, as well as the actual issuing of notice books to traffic officers and  register books issued to specific officers would be one of the administrative tasks of the office managers.

As far as remuneration was concerned, this would be needed for current personnel, for AARTO-linked training of traffic officers and back-office personnel which involves training of all traffic officers on AARTO Act & processes. Back office officials would need to be trained on the NCR/ eNaTIS, AARTO processes & Standard Operating Procedures. Users of the AARTO module would need to be trained on the LCMS, for the uploading of documents and data at no cost.

Where some IA s may not be able to fully comply with all the requirements, then an agreement could be made with another IA to perform certain functions on its behalf. If this did happen, it must be clearly indicated on the forms for applications of linking officers to stations. The costs of the current back office would be reduced, as the NCR will be used to capture handwritten notices. At the moment, about 23% of revenue was lost because of non-payment, but the AARTO processes to be introduced meant that infringers will pay when enforcement orders have been authorised. A time frame of six months is needed to order AARTO books, so the IA will need to make bookings from the GPW now. The codes for each IA would be different.

Discussion
Mr C Hunsinger (DA) asked about the timeframes around Infringement Notices, Notices for Summons and response times, in the event of a challenge. He asked for clarification should the infringer appeal; would the timeframes for the AARTO process stop, and if so, when would it re-start. He was pleased to note the window period given for vehicles that were not roadworthy.  He felt it was a good idea to allow for demerit points to be lifted if the owner did bring the vehicle for testing within a defined period of time, but asked the RTIA to be more specific on such issues.

Mr M De Freitas (DA) asked the RTIA to clarify if the rollout of printers included agreements for spares and maintenance, and if calls could be made to contractors to fix printers immediately that there was a fault. He also wanted to know what the procedure was should the workstations break down, and how these would be repaired. He asked why the RTIA was not bearing the cost of R56.84 for each AARTO book. He asked what plans were in place after the established training period, because newly-employed people would not be familiar with the system.

Mr M Sibande (ANC) asked Mr Tsholetsane to clarify what amendments he was referring to when he mentioned “the clause on page 8”. He expressed concerns on the implications of the provincial and municipal Issuing Authority readiness for AARTO roll-out, saying that there was a difference between local and metropolitan municipalities. He wondered if local municipalities had capacity to accomplish the rollout. He asked about the weighbridges, of which there were not many, and asked how the systems would communicate with each other, pointing out that some areas did not have good network coverage.

Mr L Ramatlakane (ANC) acknowledged the detailed presentation from the Parliamentary legal adviser but asked her to clarify whether defective vehicles could be fixed to avoid demerit points. Regulation of public transport taxis was under the National Road Transport Act, so he wanted to enquire how these corrections would be integrated into the AARTO Bill. He was persuaded by the comments about the term “rehabilitation” but asked the SLAs to submit written comments. He asked Dr Mpikashe to say why she seemed reluctant to address the issue of the Tribunal.

Mr M Maswanganyi (ANC) suggested that the RTIA needed to follow through and address the issue of international drivers, and ensure that the RTA would be amended. Interpol had the authority to prosecute infringers outside the borders where the infringement occurred, and he asked if the same applied under the RTIA.

The Chairperson asked RTIA to clarify the comments on the constitutional matters, including the demerit points, and to clarify if adding an additional clause to ensure that infringers were not punished twice would give rise to delays.

Dr Mpikashe stated the RTIA had already made commitments on how it would deal with unroadworthy vehicles, so she suggested that Mr Ramatlakane's question had been addressed in the presentation.

Mr Kweta agreed that he would make written submissions.

Mr Tsholetsane reported that the timeframes started to run immediately when the results on the infringement cases were communicated to the infringer. The period would be interrupted by an appeal or response, but would start again when another notice was sent to the infringer. The timeframes would continue to run if the infringer did not act on any of the notices.

He noted that the RTIA is implementing polices to get more testing stations. The eNaTIS contract provided for a contractor to install equipment that is applied for by the IAs; and  sub-contractors in the province would fix any equipment that has a fault and would also service the equipment. Section 17 of the AARTO Act provides that IAs must issue infringement notices by buying books, so that it is the responsibility of the IA to buy the books. The equipment used for NCR would be opened up on AARTO platform, the staff would be trained and AARTO staff would assist on transaction by travelling around with its bus. In addition, AARTO team would be troubleshooting on training for municipalities. The AARTO team would also go around to do compliance checks and on the standing operating procedures.

He noted that the amendments on page 8 related to section 12; AARTO had been amended and “sheriff” was being deleted from the Amendment Bill. He agreed that the municipalities may need more staff, but AARTO processes could be done where licensing processes were done. He agreed that there were not that many weighbridges, but municipalities with weigh bridges must send notices through post offices. Any issues on the network would be addressed by ensuring every IA would have eNaTIS connectivity through fibre/network, and he pointed out that every municipality that had NCR already did not need new connectivity, although Provinces operated in different ways. He added that 14 SOPs had been developed so there would be penalties would apply when municipalities did not operate according to SOPs.

He clarified that there would be no demerit points on the operator for driver error, but they could be applied to the operator's car, and if the operator car is taking to a testing centre within a period of time the operator car might not spend the whole time set for rehabilitation. Administrative rehabilitation of Road Traffic offenders is dealt with within the AARTO Act, but the RTIA would clearly define and state the terms concerning rehabilitation, with the assistance of the SLAs. The RTIA would address the issue of international drivers, and the RTMC would specifically address international enforcement.

The Chairperson remarked that an additional clause might be needed to address the issues, and the wording of the clauses may need to be changed.

Mr Ramatlakane asked for further clarification on the Constitutional Court judgment and explain what would happen if the address of an infringer could not be easily found.

Mr Tsholetsane accepted that the RTIA had not been specific on some answers, and made a commitment that the RTIA would consider the cases with the State Law Advisors.

Mr Chuwe reported that the Minister of Transport had given an indication that  there were some challenges in cross-border matters, and appreciated the suggestions.

The Chairperson remarked that the legal team would deliberate and send information to Members during recess before the AARTO Amendment Bill went to Parliament. She agreed that it would be useful for the Committee to look at the Amendment Bill and Regulations simultaneously. She agreed with other Members that it would be useful to see all proposals in the form of a new draft, to allow the Committee to make further comment on it.

Programming discussion
The Chairperson noted that the Committee had received a six-page submission from a Mr Mungani, and it would be desirable for the Committee to be able to go through that and get some guidance on agencies that could be invited to brief the Committee.

Mr Ramatlakane suggested that since some of the agencies had briefed the Committee in 2016, the Committee Secretariat could perhaps give some proposals on who could be invited.

The Chairperson agreed that said that the Committee would discuss the regulations, plan for agency visits to the Committee, Annual Performance Plan and the letter from Mr Mungani at the next meeting.
Mr Maswanganyi suggested that the Committee needed to deal with matters concerning Tasima (Pty) Ltd, which could become a matter of national importance to the RTMC. He asked the Chairperson to request an update from RTMC and the Department of Transport before the Committee went on recess.

Mr Chuwe invited Members to visit the RTIA offices, as the Tasima (Pty) Ltd building was next to the RTIA building.

Members agreed that it could be very important to visit Tasima but would like to hear a briefing first from the Deputy Director General of the Department of Transport.

The meeting was adjourned.