Documents handed out:
Portfolio Committee Amendments to AARTO Amendment Bill as of 28 June 2017
Committee Report on AARTO Amendment Bill [Report available at Tabled Committee Reports once published]
The Committee met for the final consideration of the Administrative Adjudication of Road Traffic Offences (AARTO) Amendment Bill.
The Committee discussed the Democratic Alliance submission on the AARTO Amendment Bill which raised concerns about the definition of “electronic service” and about the constitutionality of the Bill. The State Law Adviser and Parliamentary Legal Adviser explained why the Bill was constitutional. They agreed that perhaps the definition of “electronic service” should be tweaked.
The Committee agreed to the drafting of the proposals they had made to the Bill on 27 June.
Adv Noluthando Mpikashe, Parliamentary Legal Adviser, said that after the 27 June meeting she had received a submission of proposed amendments from Mr M De Freitas (DA) and she is not sure whether to read them to the Committee.
Mr M Sibande (ANC) said it is disturbing that some people did not take the Committee seriously. In this whole process they have been together with Mr De Freitas, even when this Bill was introduced to the Committee, he kept quiet and did not participate. Also yesterday he did not participate and kept quiet and agreed with everything they were proposing. Therefore, it is not correct to entertain the submission from Mr De Freitas.
The Chairperson said it should be remembered that the Committee agreed that if Members wanted to raise issues they could raise them so those issues could be dealt with in this final draft before they table the Bill before Parliament.
Mr T Mpanza (ANC) said Rule 82 dealt with objections not additional submissions, but he did not know whether these are objections or submissions. If that is the case, he agreed with Mr Sibande that they should not entertain these submissions because they will be setting a precedent they would not sustain going forward.
The Chairperson said Members were allowed to make some comments before the finalisation of the draft report.
Mr G Radebe (ANC) said they should not pre-empt what Mr De Freitas is saying, but rather hear what he has to say and deal with it in terms of the rules and take a decision afterwards.
The Chairperson said it is impossible to deal with this matter when its author is not present in the meeting. They should just park it for now and deal with it when Mr De Freitas arrives at the meeting.
Mr L Ramatlakane (ANC) said that the problem they have with that suggestion from Chairperson is that they still do not know what is contained in the comments from Mr De Freitas because they will go through the Bill clause by clause and at the end find out that the content of the comments from Mr De Freitas is material to what they have discussed in the Bill. Therefore, they should rather hear those comments from Mr De Freitas before they engage directly with the Bill.
The Chairperson agreed that they start with the comments from Mr De Freitas.
Adv Mpikashe read through the submissions made by Mr De Freitas:
The first comment deals with the amendment of the definition of “electronic service”. It states that it is not clear whether the committee wants to add a definition for "electronic service" or "electronic communication". If it is for "electronic service" it is not apparent which portion of the Electronic Communications Act 2005 will apply as that Act does not seem to contain such a definition. If the committee wants to define "electronic service", it is proposed that the amendment should refer to section 19(4) of the Electronic Communications and Transactions Act, 2002 which states: "Where any law requires or permits a person to send a document or information by registered or certified post or similar service, that requirement is met if an electronic copy of the document or information is sent to the South African Post Office Limited, is registered by the said Post Office and sent by that Post Office to the electronic address provided by the sender."
The second comment is on the Committee’s proposed amendment to the definition of “infringement” which is “any act or omission in contravention of this Act and any road traffic legislation". The DA states that it may be argued that this amendment fails to recognise the marked difference between an "infringement" that would be prosecuted in terms of the AARTO Act and a criminal "offence" that would be prosecuted in terms of the Criminal Procedure Act. Following such a definition, acts such as driving under the influence could, in theory, be defined as an infringement under the Act. Subsequently, the alleged offender would be liable to pay a fine instead of this conduct amounting to a criminal offence prosecuted by the Courts in terms of the Criminal Procedure Act. This would clearly defeat the interests of justice, especially with regard to serious traffic violations. Furthermore, some commentators are of the opinion that the Bill should not do away with the marked distinction between a minor and a major infringement as the reason for the distinction between the types of infringements is to allow major infringements to be handled with the gravity they deserve.
The third comment is on the proposed deletion of section 17(1)(f) (iv) and the amendment of section 18. The submission is that in terms of section 17(1)(f) of the principal Act if a person is alleged to have committed an infringement an authorised officer must serve on that person an infringement notice. This notice must inform the infringer that, among other matters, that not later than 28 days after the date of service of the infringement notice, the infringer may elect in the prescribed manner to be tried in court on a charge of having committed the alleged offence. The Bill is proposing to delete section 17(1)(f) (iv), and additionally, proposes to amend section 18 of the Act.
These amendments may prove to be unconstitutional. In terms of section 34 of the Constitution, a person has the right to "have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum". Further, in terms of section 35, each accused person has "a right to a fair trial" which also includes the right to "to a public trial before an ordinary court [and] to adduce and challenge evidence".
Although the Bill does not take away an alleged offender’s right to approach a court, it is alarming that the right is not mentioned in the notice served on alleged offenders. It is highly likely that road users will not be informed of their rights to have the matter adjudicated by a court of law, and when they are informed of their right through the courtesy letter as discussed in section 19 of the Bill, such a user would already be R100 poorer due to the cost of such a letter.
The Amendment Bill purports to remove an alleged infringer's right to approach a court until such a time that a courtesy letter has been issued. A road user's immediate right is to have an opportunity to make a representation to the Road Traffic Infringement Authority as established by the Act. In theory, this would not be unconstitutional insofar as the alleged offender still has the ability to approach another independent and impartial tribunal or forum in appropriate circumstances as laid down in the Constitution. However, it cannot be said that the Road Traffic Infringement Authority would constitute such an independent and impartial entity. As highlighted in a number of submissions received on the Bill, representation officers would be employed by and under the direction of the Authority, and would not be able to act independently and impartially.
In the event where the representations by the alleged infringer are unsuccessful, the person would have the right to take the decision under review and appeal to the Appeals Authority as established by section 29A of the Bill. This is also flawed for a number of reasons – The Authority will sit at a place as determined by the chairperson, where previously road users had access to Magistrates Courts in their jurisdiction. Furthermore, as in the case of representation officers, the Appeals Authority would not be completely independent, impartial and unbiased and a conflict of interest will indisputably follow. The judiciary is an independent body, fiercely guarded by the Constitution and legislation which guarantees its impartiality and independence by affording it with a number of checks and balances. Therefore, it remains the most appropriate body to review the validity of alleged violations by road users. The DA opinion is that the Bill does not satisfy the rights as afforded to accused persons under the Constitution, and would not be able to survive constitutional scrutiny.
The final comment is on the proposed amendment of section 20 of the Act, as amended by section 12 of Act 72 of 2002. It states that although the amendments to section 20 are mostly superficial, it is necessary to discuss the validity of the original provision. Section 20 contains the provisions about an enforcement order. Such an order must be served on an accused when he or she fails to comply with a notification contemplated in section 18(7), a courtesy letter as contemplated in section 19(2)(b) or has failed to appear in court as contemplated in section 22(3)(a). The DA opinion is that such a provision would not survive constitutional scrutiny for the following reason:
The adversarial system underlying South Africa's civil and criminal justice system provides that the person that alleges must prove the allegation, and not that a person who is accused of a crime or civil wrong must prove innocence. It is alarming that section 20 of the principal Act seems to move away from this position. In layman's terms, the enforcement order in section 20 confirms that the accused person is guilty of the infringement accused of in the complete absence of a trial. The accused person is then forced to pay a fine and demerit points are issued against the driver's licence. It may be argued that this provision is in conflict with section 35 of the Constitution which provides that a person is presumed innocent until proven guilty.
In conclusion, there are a number of provisions that will not survive judicial scrutiny, as they are especially not in line with the provisions of section 34 and 35 of the Constitution. The Amendment Bill adds a new layer of administration that will hinder the interests and achievement of justice. It seems that the amendments are also more aimed at generating income, rather than to improve road safety. The submission would thus value the Committee’s comments or amendments that would ensure that all concerns are satisfied.
The Chairperson apologised to Mr De Freitas for starting the meeting before he arrived.
Mr Radebe said that they should not apologise for starting the meeting before Mr De Freitas arrived because Mr De Freitas knew the meeting started at 9:30am and he should have arrived much earlier. On the submissions by Mr De Freitas, as a Committee they have previously dealt with those concerns. Unless these submissions were sponsored by a particular group which meant that Mr De Freitas is being captured to make sure that these points go forward.
Mr De Freitas said Mr Radebe is talking nonsense and rubbish.
Mr Radebe complained that he is being insulted by Mr De Freitas and must withdraw those words.
The Chairperson cautioned the two Members not to get into a fight because it is un-parliamentary to do so. She asked both Members to apologize for their behaviour – which they did.
Mr Ramatlakane said some of the points raised in the submission seem to be asking constitutional questions. Therefore, it would be proper that they get a view from the state law adviser present in the meeting on whether the Committee should do something with those submissions.
The Chairperson requested the state law adviser to help the Committee in terms of the constitutionality or unconstitutionality of the matters raised in the submissions made by Mr De Freitas.
Mr Mongameli Kweta, State Law Adviser, referred to section 34 of the Constitution on the right of access to the court raised by Mr De Freitas. Indeed, as Mr Radebe had alluded to, this was previously entertained by the Committee. The argument of Mr De Freitas is that the proposal to remove the election to go to court violates section 34 of the Constitution, which means that person will not have the right to go to court. In the Bill itself later on, it states a person may elect to go to court after the tribunal process. Mr Kweta differed on the view that the new proposal violates section 34 of the Constitution. Without limiting section 34, it does not remove the right of access to court. Section 36 of the Constitution does allow the Bill of Rights to be limited in a reasonable manner in a just and democratic society. The proposal would pass constitutional muster because a person will receive notices, courtesy letters, representations and all the way engage with authorities. And a person will have the right to go to the tribunal where his/her side of the story will be heard.
On the independence of the tribunal, Mr Kweta said this was also debated at length by the Committee. The proposal is that the tribunal chairperson and its members will be appointed by the President and there will be no interest by the President in traffic infringements, which could influence the tribunal not to be impartial. The Committee was of the view that the President was an acceptable person to appoint the tribunal members. The tribunal is going to be independent and will not be influenced by any authority or department. Therefore, the new proposal will pass constitutional muster.
Adv Mpikashe said that this is an Executive Bill and it is being processed by the Committee. It is her duty as a legal adviser of Parliament to bring any comment made on the Bill to the attention of the Committee as the Committee needs to decide whether to accept the proposals and/or submissions made.
Ms Mpikashe said that there was a bit of agreement with the definition of “electronic service”. However, she had remembered that the Road Traffic Infringement Agency (RTIA) had a problem involving the Post Office because RTIA cited the strikes and other things that had beset the Post Office. Therefore, they will look at that definition together with RTIA and see if they could tweak it a bit to ensure it is aligned with the provision in the Electronic Communications Act.
On constitutionality, Ms Mpikashe said it should be remembered that there was a presentation the legal advisers had made because the public submissions had raised the possible violation of section 34 of the Constitution. In summary, what the legal advisers said is that the fact that the Bill established the tribunal realizes the right of people to approach a court or independent tribunal. Also, in the establishment of the tribunal it is clear that the tribunal is independent. And if a person is not happy with the outcome after approaching the tribunal, that person has the right to go to court. Section 34 does not apply in this matter because the person is not an accused but an infringer and the state does not have to prove a person’s guilt or innocence. Most people just pay fines but go to court when they feel the fine is too high so that the court can reduce the fine or scrap it; which is the only reason people go to court.
Committee Report on Administrative Adjudication of Road Traffic Offences Amendment Bill
The Chairperson said they will approve the Bill clause by clause.
Clause 1 as amended: The Committee agreed.
Clause 2 as amended: The Committee agreed.
The amendment of section 11: The Committee agreed to the new clause.
The amendment of section 7: The Committee agreed on the new clause
Mr Japh Chuwe, Road Traffic Infringement Agency (RTIA) CEO, noted the omitted part in section 18 on page 8 has been replaced with “courtesy letter and enforcement notice”: The Committee agreed.
Clause 5 as amended: The Committee agreed.
Clause 6 as amended: The Committee agreed.
Clause 8 as amended: The Committee agreed.
Mr Chuwe noted the change in the definition of “issuing authority” on page 4 of the proposed amendments now states “road traffic and transport legislation”: The Committee agreed.
Mr Mpanza said there should be consistency for the names of people on page 15 of the bill. The Committee agreed.
Mr Radebe said as the ANC, they agreed to the Bill.
Mr De Freitas said as the DA they will take the Bill to their party caucus.
The Chairperson said they will allow the support staff to effect the amendments and then adopt the final version. He thanked the Members, the legal unit and support staff for their inputs.
The meeting was adjourned.
Download as PDF
You can download this page as a PDF using your browser's print functionality. Click on the "Print" button below and select the "PDF" option under destinations/printers.
See detailed instructions for your browser here.