The Committee was briefed by the Road Traffic Infringement Agency (RTIA) and Department of Transport (DoT) on the Administrative Adjudication of Road Traffic Offences (AARTO) Amendment Bill. The briefing covered motivations for amendment of the Bill. Members were also taken through a clause by clause breakdown of the Bill. The Bill sought to amend the AARTO Act in order to achieve efficiency and financial sustainability of issuing authorities as well as the RTIA. Pilot projects were conducted at two municipalities to check systems in place and account for any weakness which arose. It was emphasised the attitude and behaviour of road users needed to change - each day 38 people lost their lives on SA’s roads. At a technical level the DoT believed that the Bill closed gaps and loopholes. The intention was not to be punitive to drivers but to reduce road accidents in SA. The Committee was asked to consider the Bill and endorse it.
Members remarked that they would have liked the briefing to have spoken to challenges and inefficiencies with the current legislation which necessitated drafting of the Bill – the DoT was asked to provide, in writing, to the Committee the challenges and inefficiencies encountered. Detail should also be provided on how the Bill addressed the challenges and inefficiencies. Members were not convinced that the Bill would change behaviour on SA’s roads. There were questions on how adjudication of all people in the metro system would be done, if there was sufficient capacity, financial implications of the Bill and how municipalities would be affected by the Bill. Opposition Members felt that there should be a total redraft of the AARTO Act instead of the proposed amendments – they also felt the pilot projects, having been run without demerit systems, were useless.
The Committee raised that the Bill made certain forms of conduct a criminal offence and cautioned that it was best to leave criminal matters to the courts. Further discussion ensued on capacitation of the appeals tribunal, whether rehabilitation was linked to penalties and duplication of work between the courts and appeals tribunal. Members were particularly concerned about licence discs removed from un-roadworthy motor vehicles affecting the ability of the owners of those motor vehicles to make a living. The Parliamentary Law Adviser’s Office assured the Committee that the Bill was legally sound and noted that most of the matters raised by Members related to policy.
The Minister of Transport, Mr Joe Maswanganyi, and Deputy Minister of Transport, Ms Lydia Chikunga, extended apologies to the Committee for not being able to attend the meeting.
Opening remarks by Department of Transport (DoT)
Mr Mathabatha Mokonyama, DG, DoT, apologised for not being able to attend a previous meeting of the Committee where the briefing was supposed to have taken place. The Bill sought to amend certain provisions of the Administrative Adjudication of Road Traffic Offences (AARTO) Act. The Bill covered the service of infringement notices. Impractical things were removed. Pilot projects were conducted at two municipalities, namely, Tshwane and the City of Johannesburg. Lessons were learnt from the pilots. There was also an aspect of rehabilitation. Brief background on the process on the Bill was provided. The Bill was approved by Cabinet in March 2016 and almost spent a year with the Portfolio Committee on Transport. At a technical level the Department believed that the Bill closed gaps and loopholes. The Bill was published for public comment thrice when it was with the Portfolio Committee. Considerable inputs were made on the Bill.
Input by Road Traffic Infringement Agency (RTIA)
Mr Jeff Chuwe, RTIA CEO, stated that the mandate of the RTIA was by no means easy. Attitude and behaviour of road users needed to change. Each day 38 people lost their lives on SA’s roads. The figure was 14 000 annually. If one added up the death toll over eight years one could fill a soccer stadium i.e. 98 000 deaths. Road deaths had financial implications to the tune of R200 billion. The pilot projects were conducted to check on systems and impact they had. The intention was also to gauge what weaknesses there were. By the time a national rollout was ready, which was hoped to be in 2018, there had to be an efficient system. The Bill as it stood was drafted taking into consideration lessons learnt from the pilot projects. Three categories of weaknesses were identified, namely, operational challenge issues, systems issues and legislative deficiencies. Other pieces of legislation, such as the National Credit Act, also had to be taken into consideration when the Bill was conceived.
Briefing by Department of Transport (DoT) on AARTO Amendment Bill
Mr John Motsatsing, DoT Senior Legal Administration Officer, outlined the Administrative Adjudication of Road Traffic Offences Act, No 46 of 1998, sought to promote road traffic quality by providing for a scheme that discouraged road traffic contraventions and facilitated the efficient adjudication of road traffic infringements. The Bill however sought to amend the Act in order to achieve efficiency and financial sustainability of issuing authorities as well as the Road Traffic Infringement Agency (RTIA) which the Bill amended to the Road Traffic Infringement Authority. The Committee was taken through the Bill clause by clause:
Clause 1 - amended section 1 of the Act by adding, deleting and substituting certain definitions.
Clause 2 - amended section 4 of the Act which provided for objects and functions of the Authority.
Clause 3 - amended section 11 of the Act which provided for administrative staff and remuneration.
Clause 4 - repealed section 12 of the Act which provided for appointment of sheriffs.
Clause 5 - amended section 13 of the Act which provided for financing of the Authority.
Clause 6 - amended section 15 of the Act which provided for opening of banking accounts for the Authority.
Clause 7 - amended section 17 of the Act which provided for issuance of infringement notices and ascertainment of demerit points position, amongst other things.
Clause 8 - amended section 18 of the Act which made provision for the right of an infringer to make a representation to a representations officer.
Clause 9 - amended section 19B of the Act which provided for payment of fines imposed for traffic infringements.
Clause 10 - amended section 20 of the Act by deleting subsection (3)(b) of section 20.Section 20 of the Act provided for enforcement orders issued by the registrar in respect of failure to pay fines imposed for traffic infringements.
Clause 11 - repealed section 21 of the Act. Section 21 empowered the registrar to issue a warrant against an infringer who failed to comply with an enforcement order which required him/her to pay the penalty and fees.
Clause 12 - repealed section 22 of the Act which provided for procedure in respect of a trial of an infringer who did not pay the penalty but elected to be tried in court.
Clause 13 - amended section 25 of the Act which provided for disqualification of infringers from driving or operating a motor vehicle after an infringer exceeded the prescribed threshold of demerit points.
Clause 14 - amended section 29 of the Act which provided for categorisation of offences, infringements and demerit points.
Clause 15 - Introduced a new Chapter IVA in the Act which provided for establishment of the appeals tribunal whose main function was to hear appeals and reviews and to adjudicate on any matter brought to it by an infringer aggrieved by a decision taken by a representation officer.
Clause 16 - amended section 30 of the Act which provided for service of documents on an infringer, personally or by registered mail. The proposed amendment provided for service by means of postage, electronic service or communications as prescribed.
Clause 17 - amended section 31 of the Act which provided for penalties. The Clause stated that laws of prescription did not apply to traffic penalties and fines.
Clause 18 - substituted the whole of section 32 of the Act which provided for apportionment of penalties.
Clause 19 - amended section 34 of the Act which dealt with the power of the Minister to make regulations.
Clause 20 - amended section 35 of the Act which dealt with transitional provisions.
Clause 21 - generally provided for the substitution of certain expressions in the Bill. The “Road Traffic Infringement Agency” was replaced with the “Road Traffic Infringement Authority”.
Clause 22 – provided for the short title and commencement.
The intention was not to be punitive to drivers but to reduce road accidents in SA. There was a need to halve the number of road fatalities on SA’s roads. The Committee was asked to consider the Bill and to endorse it.
The Chairperson stated that Members should restrict themselves to questions of clarity as there would be ample time to engage properly on the Bill as the process unfolded. He however would have liked the DoT to have spoken to challenges and inefficiencies with current legislation that required the Bill to be drafted. Insight into these would prevent matters from recurring. The DoT was asked to, in writing, provide Members with insight into challenges and inefficiencies encountered. Detail on how the clauses addressed challenges and efficiencies should also be outlined. He noted that the Act was silent on the threshold on demerit points. He also pointed out that in the past there were objections to the Bill.
Mr Mokonyama agreed to provide the document as requested. When things were implemented, one often discovered that things were missed. Hence a review was needed from time to time. It was difficult to cover everything. Unfortunately no guarantees could be given that amendments in the future would not be needed.
Mr Chuwe was aware that there were criticisms on the Bill. Criticisms allowed the RTIA and the DoT to do introspections.
Mr W Faber (DA, Northern Cape) was not convinced that the AARTO Amendment Bill would change behaviour on roads. How would adjudication of all people in the metro system be done? There was close to a million fines in the metro system and capacity was lacking. There should be a new draft of the AARTO Act instead of amendments - a brand new Act was needed. He asked how the pilot projects could be implemented without the demerit point system as there was no demerit point system in the pilot projects. Both pilot projects were useless. Something needed to be introduced that Members would be satisfied with. Was it correct that there were no financial implications? He asked how operational equipment, training and furniture and stationary etc was going to be paid for if there were no financial implications. Clause 13 spoke to economic implications - the operator was held liable for fines that different drivers of a vehicle received. One motor vehicle could have up to ten drivers. How would municipalities be affected by the provisions of the Bill? Fines were a main source of revenue for municipalities. How would the demerit system be dealt with by the tribunal? How would the tribunal deal with even half of the fined persons at metros i.e. 500 000 persons? It was a monumental task. Something could not be implemented if it would not work.
Mr Chuwe stated that the intention was to change behaviour of drivers. The Bill was one of the interventions that the DoT envisaged to change behaviour of road users. The Bill would however not address everything. He was not too sure about a redraft of the Act. There could be a technical arrangement. The intention was to have a system that was efficient. The demerit points system was included in the pilot projects but was not applicable - if the demerit points system was applied in the pilot projects people who were stopped on roads in the piloted areas would have been prejudiced compared to the rest of SA. The pilots were an analytical exercise. The focus of the briefing was on the Bill. Interventions proposed were objective and was supported by empirical evidence. There were lessons learnt from the pilots. Financial implications were considered. The public was under the impression that law enforcement was a revenue generation scheme when it was more about road safety. Issuing authorities did incur expenditure. Empirical evidence could look at what the socioeconomic impact was. There were some provisions repealed in the Act. For instance the RTIA no longer had the power to issue a warrant of execution against a person with infringements. He felt the Bill to be a positive intervention.
Mr Mokonyama added that when the AARTO Act was conceived there were challenges of the Fourth Industrial Revolution. The digital world at that time had not been in full swing. The DoT was therefore confining itself to amendments to the Act that it was now trying to introduce. The DoT did not have a view about a total overhaul of the Act. Intention of the amendments was not to affect the economy negatively. There was no outright intention for freight operators to lose business or for municipalities to lose revenue.
Mr J De Goede (DA, Gauteng Provincial Roads and Transport Committee Member) asked what was meant by electronic services or communications – did it include SMS’s and emails? He felt it to be a grey area.
Mr Chuwe, referring to electronic devices, said that infringements could not be served by SMS. Electronic services were introduced to complement traditional methods of service such in person or by registered post service. Electronic means were only used to inform people about infringements but they would not be served electronically. The person had to choose the manner in which they wished to be served.
Ms Shamaara Ally, NCOP Procedural Officer, referred to Clauses 26 and 30 and pointed out the use of “must” placed an obligation for service either to be personal or by registered mail. She added that the Electronic Communications Act did allow for service to take place by SMS and email.
Mr L Magwebu (DA, Eastern Cape) stated that the Bill made certain conduct a criminal offence. Systems in countries were inquisitorial or accusatorial. SA had an accusatorial system. He cautioned that criminal matters be left to courts. If a person was not happy with something then such person should be able to go to court. The function was already handled by courts. People could just as well go to prosecutors for representations. Criminal matters should be left to the criminal system where people who dealt with it were legally trained. Adjudication should be left to the courts. The tribunal needed capacity. If a person was refused a social grant by the Department of Social Development the person could appeal such decision. He was concerned that resources would be needed. He still felt that the matter should be left to the courts. The demerit point system could be debated. Traffic violations should be handled by the courts. It was a monumental task which even the courts found difficult. More prosecutors were even needed at courts.
Mr Mokonyama, referring to administrative action and adjudication, said it happened everywhere. There was space for administrative adjudication. The idea was to relieve the pressure from the courts. The AARTO Bill did not prevent persons from going to court for final adjudication. Courts were the final recourse. The Competition Commission operated in the same way. The idea was to remove small offences from courts to lessen the burden. Major offences still went to court.
Mr Motsatsing added the intention was not to be punitive but to change behaviour of drivers. Road traffic transgressions were deemed by the courts to be minor. In many instances such offences got scrapped from the court roll. There were differences between road traffic offences and the juristic system. Road traffic violators often received suspended offences instead of going to jail. If the driver behaved then he would not accumulate demerit points. There was responsibility on the driver and operator to operate a roadworthy vehicle.
Mr Chuwe, referring to independence of the appeals tribunal, pointed out that the Minister of Transport could categorise different types of infringements. The appeals tribunal would only deal with administrative issues. Offences would still fall under the courts. The idea was to lessen the burden of the court system. If a traffic matter was longer than two years on the court roll it was automatically struck off. People used the system against itself. People purposefully clogged the court system so that matters could be struck off the court roll. Some courts dealt with 50 traffic matters a day. The appeals tribunal would be run by skilled and legally qualified people. These individuals would report directly to the Minister. However in terms of the Promotion of Administrative Justice Act (PAJA) all administrative actions could be referred to court.
Mr Thabo Tsholetsane, Chief Operations Officer (COO), RTIA, stated the AARTO Act only came into play when a person broke the law. The RTIA was the adjudicator. Representation offices were independent of issuing authorities. Some issuing authorities themselves were against the AARTO Act. The AARTO Act balanced the right of the infringer and the duty of issuing authorities.
Mr M Tseki (ANC, Chairperson of the Human Settlements and Cooperative Governance and Traditional Affairs Committee in the Gauteng Provincial Legislature) asked the DoT to provide clarity on rehabilitation. Would rehabilitation be linked to penalties? Why was the authority allowed to open up so many bank accounts? He noted that Clause 13 spoke about a person’s license disc being removed if the vehicle was perhaps not roadworthy etc. He felt that this affected the person’s ability to use the motor vehicle to earn a living. How would the appeals tribunal operate? Would there be sufficient capacity? There were courts that carried out these functions, after all.
Mr Mokonyama responded that licence discs were removed from unsafe motor vehicles on a daily basis. Unsafe vehicles were a danger and the intention was to save lives. Circumstances would dictate whether a vehicle should be removed from the road. Banking details were simplified.
Mr Chuwe, referring to operators being shut down, stated that regulations initially provided for a complete shutdown. Operators were engaged and the understanding was that everybody needed to abide by the law. Some operators had their head offices abroad and it was necessary for them to come into the fold of abiding with the law. Operators needed to take responsibility for persons who drove their vehicles. Rental companies should at all times be aware of who used their vehicles.
Mr B Nthebe (ANC, North West) asked how person’s behaviours or attitudes on the roads were going to be changed. On Clause 14 he asked what the prospects were of civil disobedience. Provinces like the Eastern Cape and the North West needed good scholar transport. If the scholar transport vehicle’s licence disc was removed then the motor vehicle could no longer be on the road - would the person involved have to appeal at a national office?
Ms Palesa Moalusi, Chief Financial Officer (CFO), RTIA, replied that there could not be rehabilitation without education. Education was emphasised in the Bill. In terms of whether the appeals tribunal would be national or in the provinces, the tools of trade would be at municipal level.
The Chairperson stated that the National Credit Regulator also had a tribunal -did its tribunal prevent persons from going to court?
Mr E Makue (ANC, Gauteng) was appreciative of efforts being made as 14 000 people were dying annually on SA’s roads. He was concerned whether the information at hand was still enriching the process even though public hearings in the National Assembly had taken place in 2013. In terms of empirical evidence, what country had introduced this type of legislation?
Mr M Chabangu (EFF, Free State) stated that changes to the legislation were made after public participation at local level as well as after deliberations by the Portfolio Committee on Transport. He felt that rehabilitation could not surely mean to take away licence discs of motor vehicles. People need their motor vehicles to make a living. There had to be alternatives.
Mr J Khawe (ANC, Chairperson of Gauteng Roads and Transport Provincial Committee) pointed out that presently there were issues between authorities and boards. The RTIA was now taking away the power of authorities and giving it to boards.
Mr Magwebu asked what the cost of setting up and running the appeals tribunal would be. He felt that the courts were already performing the function. If the tribunal was to deal with minor infringements and courts major offences, he suggested the justice cluster brief the Committee on the issue in its next session on the Bill. Why could the courts not be beefed up? The courts just needed additional capacity. Prosecutors were capable of handling representations made. This was how it was currently done.
Mr Mokonyama responded that everything was not taken to court. There were administrative actions. Minor infringements were taken out of the court system. The system was being enhanced. Another option was being provided before matters went to court. This was done in many other Acts. However, every administration adjudication could be taken to court. People were abusing the court system by clogging the system.
Mr Tsholetsane felt that prosecutors should deal with criminal matters and not representations on fines. Most offences were of an administrative nature. Few of the offences were major. Currently persons were allowed to go to court for administrative issues. The appeals tribunal would lessen the burden on courts.
Mr Faber felt that capacity was lacking to deal with the appeal process.
A representative from the Parliamentary Law Adviser’s Office assured Members the Bill was legally sound. Most of the matters raised by Members were of a policy nature.
The Chairperson reiterated that information should be provided in writing to the Committee.
Draft Committee Minutes dated 3, 4 and 17 October 2017
Draft Committee Minutes dated 3, 4 and 17 October 2017 were adopted without amendment.
The meeting was adjourned.
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