The Committee met to be briefed on draft regulations of the Administrative Adjudication of Road Traffic Offences (AARTO) amendment bill.
The Committee first dealt with correspondence from a Department of Transport official who had been aggrieved by certain processes and procedures at the Department, and had sought relief through the Committee. After discussion, the Committee agreed that the correspondence would be referred to Parliament’s legal advisors and that the Department official would be given another opportunity to come and orally present the facts of his grievances.
With regard to the AARTO Amendment Bill, the Road Traffic Infringement Authority (RTIA) emphasised that there was a direct link between the AARTO Act and the National Road Traffic Act (NRTA) in terms of the description and categorisation of all traffic violations that could be committed. There was also a direct importation and implication from what was contained in the National Land Transport Act (NLTA) regarding the possible infringements which could be committed by operators, consigners and consignees.
Regulations would be found in the main body and would be accompanied by a number of schedules. Schedule 1 described all the supporting forms, from AARTO 1 to AARTO 3. AARTO 1 forms were the hand-written notices, with the primary basis of having a direct impact on increasing road safety, as there would be the elimination of any possible challenge regarding the service of the notice. AARTO 2 was similar to AARTO 1, in that it was issued directly to the infringer. This typically happened at the weighbridges, and would be for those infringements applicable to both the driver and the operator of the vehicle. The AARTO 2 would be issued at the side of the road and automatically captured, and electronic means could be used, as notices were printed from gadgets even at the weighbridges.
The overwhelming majority of infringements were AARTO 3, and were electronically issued. The RTIA had advised all issuing authorities that there had to be a movement away from saturation of AARTO 3 notices, as they had made no impact on improving road safety. There were cameras that churned out AARTO 3 notices as they were placed in demarcated 60km/h zones, where motorists would be found driving beyond that limit, and critics had always lamented that what issuing authorities were doing was simply generating revenue.
Schedule 2 of the regulations detailed the applicable costs being levied for every type of service. It would indicate how much it was to send by ordinary mail or registered mail, and how much it would be if there were an application for revocation and all other services. Schedule 3 listed every type of transgression found embedded in the NRTA. The schedule included the specific sections of the law and regulations which had been broken. Following that would be a summarised and detailed description. Thirdly, there would be the applicable demerit points which accompanied the transgression, although not every transgression of the NRTA would have a demerit point applicable. Fourthly, the applicable penalty amount would be given, and the applicable discounted portion would be detailed. In the current regulations, the applicable discounted amount was an automatic 50%. Lastly, in the case where the infringement was operator related, the specific section of the NRTA which had been transgressed would be cited. With public transport, most transgressions were related to section 49 of the NRTA.
Members asked how the Committee could protect drivers from being nominated unfairly, as that was a possibility within the nomination process. Had the Border Management Agency (BMA) been considered inclusive within the regulations? How would the RTIA manage the mandatory rehabilitation of drivers with international licences? It also commented that it would be difficult for it to predetermine how the Minister of Transport would finalise the draft regulations, as its responsibility was to pass the AARTO amendment bill, and not the regulations specifically.
DoT official’s grievance: procedural issues
The Chairperson welcomed all present, and proceeded to read correspondence from a Department of Transport (DoT) official to the Committee regarding its invitation for the official to present himself before the Committee. She then asked for guidance from the Committee on the way forward.
Mr M Sibande (ANC) referred to the ad hoc committee of inquiry into the fitness of the SABC Board, where a witness had also been requested to appear before that Committee and had refused. This Committee now found itself in a comparable situation, where Mr Stanley Mngadi had refused to comply with its request, which had been that he should write down what he wanted to bring to the Committee’s attention. The Committee had given Mr Mngadi an opportunity to address his concerns in writing and in person, but he had refused attendance, quoting sections of the constitution which were well within his rights.
Mr C Hunsinger (DA) said as Mr L Ramatlakane (ANC) had reported engaging with Mr Mngadi and had tabled the document which had been submitted to the Committee at that stage, it had to be recognised that Mr Mngadi’s report had been under the DoT letterhead -- with a signature -- making the document official. Though Mr Mngadi had been given opportunities to avail himself to the Committee, there remained further opportunities which he should be given in terms of fairness. He asked that Mr Mngadi be invited again, with a proviso that the Committee was anticipating finalising the bill which it was considering on the day.
Ms S Xego (ANC) said she was being made aware for the first time of the letter which had been submitted under the DoT’s letterhead. The difficulty was that Mr Mngadi was an employee of the DoT, and knew the internal channels to pursue in ventilating his grievances. He had indicated why he was declining to appear before the Committee, including that the Committee was not showing commitment, and he would therefore refer his grievance to Parliament and the President of the country. Referring the matter to the House meant the Committee had the opportunity to respond to the issue, and the Committee had to educate Mr Mngadi on the procedures of Parliament. She had previously advised that Mr Mngadi had to appear before the Committee in his personal capacity. She suggested that the Minister and the Acting Director-General (ADG) of the DoT be copied in an e-mail notifying them of the letter before the Committee under the DoT’s letterhead. Could the letter also be referred to Parliament’s legal advisors on how the Committee could attend to the contents of the letter?
Mr Sibande said Mr Mngadi knew all the protocols and processes to follow, and his view was that Mr Mngadi had the intention of embarrassing the DoT.
Mr Ramatlakane said the Committee also had to consider Mr Mngadi’s right to protection with regard to how he was ventilating his grievances. He did not think the way Mr Mngadi had raised his concerns should somehow make him a victim, as he had the right to write in whatever way he felt. It had also been correct for Mr Mngadi to bring to the Committee’s attention the possible unconstitutionality of any piece of legislation passed before the 1996 SA constitution. He concurred with Mr Hunsinger that Mr Mngadi be invited to come to the Committee again. Additionally, the Committee would need to respond to Mr Mngadi’s letter in full so that if it became evidence in a court case in future, the Committee would have responded considerately,
The Chairperson said that as advised, the letter would be referred to Parliament’s legal advisors. Mr Mngadi would be invited to appear before the Committee again, and the Minister and ADG would be copied about the official status of the letter and be advised that a DoT functionary -- probably having exhausted all the internal processes of the DoT -- was also not happy with the processes of the Committee as well.
She then called upon the Road Traffic Infringement Authority to take the Committee through the AARTO amendment regulations
AARTO draft regulations
Mr Japh Chuwe, Chief Executive Officer (CEO), Road Traffic Infringement Authority (RTIA), said that it was dealing with an extremely complicated process regarding the Administrative Adjudication of Road Traffic Offences (AARTO) -- not a voluminous Act itself, but its regulations were quite detailed. The RTIA was emphasizing the point that there was a direct link between the AARTO Act and the National Road Traffic Act (NRTA), in terms of the description and categorisation of all traffic violations that could be committed. There was also a direct importation and implication from what came out from the National Land Transport Act (NLTA), and the possible infringements which could be committed by operators, consigners and consignees.
The exercise of providing the Committee with the regulations as requested had been a tedious and complex exercise because of the detail within the regulations, where the biggest challenge would be ensuring the technical correctness and accuracy of the cross-referencing applicable to the AARTO and the regulations. The regulations had been divided into a number of schedules.
When speaking to supporting regulations, there had been other aspects that Mr Thabo Tsholetsane, the RTIA’s Chief Operating Officer, had mentioned when he had been discussing what the cost implications would be that issuing authorities would have to bear. To that extent, the aim was to come up with a solitary unified system which would categorise all infringements, offences or traffic violations and would place them on the same equitable base. Regulations would be found in the main body and would be accompanied by a number of schedules.
Schedule 1 described all the supporting forms, from AARTO 1 to AARTO 3. AARTO 1 forms were the hand-written notices, with the primary basis of having a direct impact on increasing road safety as there would be the elimination of any possible challenge regarding the service of the notice.
AARTO 2 was similar to AARTO 1, in that it was issued directly to the infringer. This typically happened at the weighbridges, and would be for those infringements applicable to both the driver and the operator of the vehicle. For instance, a taxi driver would be issued with an infringement notice because the taxi driven would be unroadworthy, but the driver could not be held accountable for that as the responsibility for the roadworthiness of the taxi was the duty of the owner. Therefore AARTO 2 would be issued at the side of the road and automatically captured, and electronic means could be used as notices were printed from gadgets even at the weighbridges.
He said the overwhelming majority of infringements were AARTO 3, and were electronically issued. The RTIA had advised all issuing authorities that there had to be a movement away from saturation of AARTO 3 notices, as they had made no impact on improving road safety. There were cameras that churned out AARTO 3 notices as they were placed in demarcated 60km/h zones, where motorists would be found driving beyond that limit, and critics had always lamented that what issuing authorities were doing was simply generating revenue. In the RTIA annual report for 2014/15, 97% of notices were for AARTO 3 only, and the remaining 2.96% notices had been AARTO 1. Relying on AARTO 3, the Authority would not be able to see that Mr Chuwe had been driving drunk or been driving an unroadworthy vehicle. The RTIA acquired the forms from government printing services, where all issuing authorities could simply place orders directly.
Schedule 2 of the regulations detailed the applicable costs being levied for every type of service. It would indicate how much it was to send by ordinary mail or registered mail, and how much it would be if there were an application for revocation and all other services.
Schedule 3 listed every single type of transgression found embedded in the NRTA. The schedule included the specific sections of the law and regulations which had been broken. Following that would be a summarised and detailed description. Thirdly, there would be the applicable demerit point which accompanied the transgression, although not every single transgression of the NRTA would have a demerit point applicable. Fourthly, the applicable penalty amount would be given, and the applicable discounted portion would be detailed. In the current regulations, the applicable discounted amount had been an automatic 50%. Lastly, in the case where the infringement was operator related, the specific section of the NRTA which had been transgressed would be cited. With public transport, most transgressions were related to section 49 of the NRTA.
Mr Chuwe emphasized the exceptionally interactive nature of not only having to cross-reference on the NRTA, but also in respect of the applicable regulations and determining the nature and the type of form, since the RTIA had been producing them. The work that had been done in that respect showed the type of expertise within the RTIA.
The RTIA had also considered some comments that had emanated from the public hearings exercise, and he therefore cautioned that some of the cross-referencing would be found in the AARTO amendment bill. There were certain elements that needed to go into the regulations regarding the establishment of the appeals tribunal, and the RTIA recognised that considering the AARTO amendment bill together with its regulations was before the Committee for the first time, as had been requested. The Committee also had to consider that the regulations before it were draft documents, and the RTIA would wait until the bill was at its final stages.
The RTIA also had recognised the interest shown by the general public on the envisaged rehabilitation programmes. When it came to electronic communication, the regulations would not be too detailed as the RTIA was not the primary source or functionary in this regard.
Mr Tsholetsane said the RTIA had reviewed the old AARTO regulations and found that certain things contained therein made no sense in the way they had been drafted, in that they made it very difficult for people to comply and difficult for the RTIA to do certain things as well. The draft regulations before the Committee therefore had been revamped and there could no cross-referencing to the old regulations, as the sequence had also changed.
He referred to the page where regulations for the Appeals Tribunal had been inserted.
Lodging of Appeals
Mr Tsholetsane said there was a little detail that needed reworking there, to ensure that the lodging of appeals would be in line with the process of appeal or review, in terms of administrative law.
Appeals Process (procedure and time frames)
The RTIA would still develop processes and the timeframes on when to lodge an appeal and how long an appellant would be advised after the appeal. Therein, the RTIA would have to consider the Promotion of Administrative Justice Act (PAJA) and the Promotion of Access to Information Act (PAIA) in ensuring alignment with whatever provision the RTIA would draft in that regard.
Notifications of Sittings
The RTIA would draft a provision considering how to notify people about sittings and whether the appellant had to attend, as well as the travel arrangements and all other issues to do with attendance.
Record of Proceedings and Decisions of Tribunal
The RTIA would also be drafting a provision on how to deal with a decision and how people could appeal to the court, which would be information that would be contained under the record of proceedings.
Provision for no discount / full payment after Tribunal rules in favour of RTIA or issuing authorities (IAs).
Mr Tsholetsane said the provision was for a situation where a person would be trying to avoid liability by going to the appeals tribunal with a case that had no merit being there. Once the tribunal had ruled in favour of the Authority, the issue of the discount would fall away.
Penalties payable by Issuing Authorities and the Authority
He said that the Committee would recall that the Johannesburg IA had commented, and the RTIA had regulated that IAs which did not comply with the law had to be punished, with the penalty being the docking of their revenue. The issuing authorities had said the RTIA had to be held liable as well, if it failed in a similar manner. The provision on penalties dealt with that aspect.
14 (1) Subject to section 24(3) (a) of the Act, demerit points were incurred by infringers when an infringer was found guilty of an offence by a court, and the court directed as such.
The RTIA was responding to the advice from the state law and Parliament’s legal advisors.
(3) An infringement or offence committed by an operator in terms of section 49 of the National Road Traffic Act, as indicated in column 9 of Schedule 3 --
(b) in the case of an infringement or offence committed in terms of sections 49(d), 49(e), 49(f) and 49(g) of the National Road Traffic Act, both the operator and the driver of the vehicle at the time will be responsible for the payment of their respective applicable penalties but, despite the provisions of sub-regulation (2), no demerit points shall be incurred by the driver.
The above responded to the Committee’s concern that drivers would incur demerit points for vehicle fitness matters which were the responsibility of the owner.
(5) The total number of demerit points which, if exceeded, resulted in the disqualification of a person to drive any motor vehicle, as contemplated in section 29(d) of the Act, was 12 points and in the case of a holder of a learner’s licence, the total number was six points.
Mr Tsholetsane reminded the Committee that the demerit points threshold was 12 for licence holders, and the RTIA had decided to draft a regulation for learner’s licence holders so that they could also receive demerit points when they committed infringements. At the demerit points’ threshold, which was six, learner’s licence holders would be compelled to go to rehabilitation.
Disqualification, Cancellation of documents and Rehabilitation programmes
17.(1)The notice on the disqualification period contemplated in section 26(1) of the Act, by which an infringer must be informed that he or she has incurred more than the number of demerit points referred to in regulations 14(5) and 14(6) as the case may be, for the second time, must be on form AARTO 21 as shown in Schedule 1, issued and served by the Authority on the infringer in terms of regulation 33(4) and provide the following information…
Mr Tsholetsane said all the green highlights in the draft regulations spoke to disqualification right through the document. The RTIA had realised that it had always referred to suspensions in regulations, but when going to the NRTA, nowhere was there a reference to suspension but rather disqualification, and therefore the RTIA had simply aligned the regulation with what had been contained in the NRTA.
17. (1) (b) in the case of holder of a learners licence --
(ii) that he or she must be referred to an approved/accredited compulsory rehabilitation programme in terms of section 4(2)(g) of the Act;
Mr Tsholetsane said the sub-regulation wording still had to be cleaned up to correspond and be consistent and to clarify that not all rehabilitation programmes would be compulsory, as there would be voluntary programmes.
(3) The attendance of the rehabilitation programme contemplated in sub-regulation (1) must be arranged by the infringer in terms of sub-regulation 1(a) (ii) in consultation with the Authority, and may include:
(a) an advanced driver training course; or
(b) driver re-testing to determine driver fitness; or
(c) therapy and counselling sessions with a training provider accredited by the Authority
Mr Tsholetsane said that originally there was vagueness on the specific programmes, with reference to hospital trauma units and mortuaries. As the Committee had strongly had exceptions to such rehabilitation, the RTIA had reconsidered, seeing that rehabilitation would also be compulsory and voluntary in some aspects.
Notification of Disqualification and Cancellation of documents
He said that RTIA had to be quite sensitive and clear as to how people would be informed about demerit points having reached the threshold and that they had to go mandatorily for rehabilitation. The RTIA would be further refining the regulation to align it with all relevant processes in terms of the law.
Rehabilitation Application Procedure
Mr Tsholetsane said the procedure still needed refining in terms of the appropriate legal drafting.
He said that schedule 4 dealt with the types of issuing authorities and how they were coded. Schedule 5 dealt with how the South African Police Service (SAPS) would deal with AARTO.
Schedule 6 – Standard Operating Procedures (SOPs)
The RTIA had decided to include SOPs within the regulations so that they would be legal, and so that no one issuing authority could do as it wanted.
Mr Hunsinger requested that the Committee be provided with the outstanding schedules and lists, as referred to by Mr Tsholetsane. How could the Committee protect drivers from being nominated unfairly, as that was a possibility within the nomination process? Had the Border Management Agency (BMA) been considered inclusive within the regulations?
Mr J Maswanganyi (ANC) said it would be difficult for the Committee to predetermine how the Minister would finalise the draft regulations, as the Committee was responsible for passing the AARTO amendment bill and not the regulations specifically. Could the Chairperson give guidance as to whether the Committee could deal with the draft regulations before even passing the AARTO amendment, as he thought that the presentation had been sharing information with the Committee?
The Chairperson agreed that the session was indeed for information purposes, seeing that the Committee had requested the draft regulations from the RTIA so it could have an idea how the AARTO amendment would be regulated. She asked how the RTIA would manage the mandatory rehabilitation of drivers with international licences.
Mr Tsholetsane replied that the provision would have to be removed, as the RTIA could not be imposing mandatory rehabilitation on international drivers.
Regarding the protection of drivers through nomination, the RTIA had been grappling with the matter over the years, as it had found that deceased persons would sometimes be nominated. It recognised that the issue of nomination of drivers by fleet owners, when a driver was no longer in the employ of the owner, could be a challenge. The RTIA would have to apply its mind to such possibilities.
The current regulation 5 read: ‘The successfully nominated driver may not submit further nominations and is liable for the infringement and shall incur demerit points applicable for the infringement’. Since it was already there, the RTIA would have to review the regulation to cater for false nominations.
Mr Tsholetsane said the RTIA had been liaising with the BMA and attended its meetings regularly. It had recently attended the BMA’s national steering committee.
The Chairperson reminded the Committee that as requested previously, the support staff were going to inform the Committee which DoT entities were still to update the Committee on their revised Annual Performance Plans (APPs).
Adv Alma Nel, Director: Legal and Policy Research, Office of the MEC, Gauteng Department of Transport, said the Committee had seen all the DoT’s entities except the Driver’s Licence Account (DLA) in 2016, and because of time constraints when the Committee had considered the Budget Review Recommendation Report (BRRR), it had seen only five entities:
- The Passenger Rail Agency of South Africa (PRASA);
- Rail Safety Regulator (RSR);
- South African National Roads Agency Limited (SANRAL);
- South African Maritime Safety Authority (SAMSA), and;
- The Road Accident Fund (RAF).
Given the further Parliamentary programme and other constraints, she had perused the DoT’s proposed revision of its Strategic Plan (SP) -- where it had changed its legislative targets -- to see which entities the Committee should consider inviting. There were just two days that the Committee could consider the entities where there were nine slots. Apart from the above mentioned five entities, she was proposing the addition of the Airports Company of South Africa (ACSA), the Ports Regulator of South Africa (PRSA), the RTIA, the Road Traffic Management Corporation (RTMC) and the Cross-Border Road Transport Agency (C-BRTA). The Committee had recently received a briefing by the Road Accident Fund (RAF), and it could consider replacing them in terms of the available slots, as there were ten entities that had to brief the Committee.
Mr De Freitas suggested that the RSR not be prioritised, but for ACSA and the RTMC to be brought in instead. Every year the Committee’s programme made it impossible for the last entities to get as much time as the rest for engagement, so his suggestion was for the Committee to have more days and longer sessions per entity. He suggested an extra day to the three days open for the Committee to interrogate DoT entities.
Mr Sibande was concerned about whether the Committee would manage to be briefed by all ten entities, as they were all important.
Mr Ramatlakane said since there were nine slots, and if indeed three days were “doable,” he was in favour of that. Entities would have to be told to present directly on the brief they would receive, and would be allowed only 30 minutes.
Mr De Freitas said if the slots were nine, an additional fourth day that would mean two entities per day, and one on the final day. He agreed with the suggestion of the time limitation on the presentations.
The Chairperson requested confirmation as to whether there was agreement to Mr De Freitas’s proposal.
The Committee agreed.
There were further deliberations on the Committee’s programme.
The Chairperson informed the Committee about the following day’s programme. and the meeting was then adjourned.
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