AARTO Bill [B38B-2015]: negotiating mandates

NCOP Economic and Business Development

14 August 2018
Chairperson: Mr M Rayi (ANC, Eastern Cape)
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Meeting Summary

The Eastern Cape, Free State, Gauteng, KwaZulu-Natal and Limpopo Provincial Legislatures voted in favour of the Bill with proposed amendments. Mpumalanga abstained from voting on the Bill. The Northern Cape and the North West Provincial Legislatures also voted in favour of the Bill inclusive of their recommendations. The Western Cape did not vote in favour the Bill and raised concerns about it.

The Committee discussed the proposed amendments by the Eastern Cape Provincial Legislature. Amendments were proposed to clauses 7, 8, 12, 14, 15, 16 and 17. The Road Traffic Infringement Agency and the Department of Transport spoke on the pros and cons of the proposed amendments. Thereafter the Committee voted on the Eastern Cape proposed amendments. The ANC majority voted that clauses 7, 12, 15, and 17 remain unchanged but the proposed amendments to clauses 8, 14 and 16 were accepted.

In the discussion, Members had raised concern about the right of persons to have the option of going to court. They felt that persons should have a choice of going to court or to the Infringement Appeal Tribunal. Members were assured that persons still had the right to go to court and that no constitutional rights were being infringed. The Chairperson suggested that the matter be flagged by the Committee as he was interested to know what the option of going to court was like with other government entities such as the National Credit Regulator and the Competition Commission. Members were concerned about the costs involved in having the High Court as the court of first instance if the infringer wished to exercise that option. Some Members felt the status quo of the existing traffic courts should remain for dealing with traffic infringements as the cost of the new system was huge and they doubted the Infringement Appeals Tribunal would have the capacity.

Meeting report

Administrative Adjudication of Road Traffic Offences (AARTO) Amendment Bill: negotiating mandates
The Chairperson said that the proposed amendments that had come out of public hearings in the provinces were important to consider. When negotiating mandates were presented by each province, there should be focus on these.

Mr W Faber (DA, Northern Cape) added that provinces had the right to negotiate on negotiating mandates.

The Chairperson replied that he was merely guiding the process to be followed. All Members were after all on the same page.

Eastern Cape Province
Ms T Xhanti, Chairperson of the Eastern Cape Portfolio Committee on Transport, stated that the Eastern Cape Provincial Legislature voted in favour of Bill. The Eastern Cape Provincial Legislature proposed amendments to clauses 7, 8, 12, 14, 15, 16, and 17.

Free State ProvinceMr Faber said that he had a problem with the negotiating mandate of the Free State Province. He could not make out what the document was saying and was not sure what format had been used in drafting it. How were Members expected to read the document?

Ms M Dikgale (ANC, Limpopo) was not sure whether the Free State Legislature was in support of or against the Bill. The document was more in the form of a report.

The Chairperson pointed out that the first line of the document did state that the Free State Legislature was in favour of the Bill. However, the document did not make reference to specific clauses for which amendments were being proposed.

In the absence of a Free State delegate, Ms Dikgale read out the Free State negotiating mandate which stated that the Province was in support of the Bill with the additional proposed amendments. No specifics were given as to which clauses the amendments pertained to.

Gauteng Province

Mr E Makue (ANC, Gauteng) stated that the Gauteng Provincial Legislature voted in favour of the Bill. Proposed amendments were to clause 1(f): Definition of “Habitual Infringer”; clause 13(a) amending section 25(4); clause 16(a)(1); clause 16(b); clause 29A(3); clause 29a(5); clause 29D(4) and clause 29J - right of appeal. Gauteng also made general comments on the Appeals Tribunal’s capacity, the independence of the Appeals Tribunal, the qualifications of members of the Appeals Tribunal, the implementation date, special provision should be made for foreign drivers and provision should be made for a Road Traffic Offences Register.
KwaZulu-Natal Province

In the absence of a KZN delegate, Ms Dikgale read out the KwaZulu-Natal negotiating mandate. KZN supported the Bill. The concerns raised at the public hearing were attached to the negotiating mandate.

Limpopo Province

Ms Dikgale said that Limpopo supported the Bill with proposed amendments to clause 9(c); clause 29C: Qualifications of members of Tribunal; clause 29H: Decisions of Tribunal and clause 17.

Mpumalanga Province

Mr M Mhlanga (ANC, Mpumalanga) stated that Mpumalanga Provincial Legislature had decided to abstain from voting on the Bill.

Northern Cape Province

Mr Faber said that the Northern Cape Provincial Legislature was in support of the Bill but wished its inputs on the Bill to be taken into consideration. These included that the Department of Transport needed to consult extensively, that a transitional budget be provided to ensure a smooth transition to the new system. Also there was a concern that the Bill did not address the current challenges that road users encountered.

North West Province

In the absence of a North West delegate, Ms Dikgale read out the Province’s negotiating mandate. The North West Provincial Legislature was in support of the Bill but recommended that the implementing agency, that is, the Road Traffic Infringement Agency must submit a detailed report on the outcome of the pilot project conducted in Gauteng to the Provincial Legislature within seven days and the Department of Transport had to disseminate information on the demerit point system throughout the Province at road traffic centres and post offices.

Western Cape Province

In the absence of a Western Cape delegate, Mr Faber presented the Province’s negotiating mandate. The Western Cape did not support the Bill. It had concerns about its implementation, the accrual of fine revenues and the capacity of the Infringement Appeals Tribunal to handle the huge number of appeals against fines.

Mr Mhlanga referred to the Democratic Alliance position on the Bill being attached to the negotiating mandate and asked if the Committee had to take into consideration party positions.

The Chairperson responded that all that the Committee needed to consider was the province’s mandate. Political parties would have their own submissions.

Mr Makue pointed out that there were no recommendations from the Western Cape thus the Western Cape Province had not held public hearings.

Ms Dikgale added that instead of consulting people on the ground, Western Cape had consulted its legal department.

Ms Noluthando Mpikashe, Parliamentary Law Adviser, said that the Constitution required public participation and that consulting with legal advisers was not considered public participation.  

Mr Japh Chuwe, RTIA CEO, responded that RTIA and the Department of Transport had sent delegates to the Western Cape Province to support the public hearings which had taken place. It was just not mentioned in the negotiating mandate before the Committee.

Mr Faber asked that Mr Makue retract his statement about no public hearings taking place in the Western Cape.

The Chairperson stated that the Committee relied on what was contained in the negotiating mandate. If public hearings were not reflected in the negotiating mandate then the Committee assumed that there was no public participation.

The Committee then engaged on the proposed amendments by the Eastern Cape Province.

Eastern Cape Province proposed amendments

Clause 7(a)
Mr Chuwe said that what was being proposed was unnecessary. Regulations supported the implementation of the Act and mechanisms were provided for in the regulations. Thus the regulations would cover what was being proposed.

Mr Makue agreed and said the Committee accepted that such detail was covered in the regulations. He was more concerned about clause 7(c) which other provinces had also made recommendations on. What was needed was that owners of vehicles needed to be held responsible.

The Chairperson noted that RTIA had explained that clause 7(a) was covered in the regulations. Clause 7(c) would be dealt with afterwards.

On clause 7(b) Mr Chuwe stated that the intention of the AARTO Act was to deal with infringements and to lessen the burden on courts. The automatic right to appear in court was being repealed in the Bill. If a person wished to go to court it had to be determined if there was an appeals mechanism. There was an Infringement Appeals Tribunal. It was independent of the RTIA and issuing authorities. However in terms of the Administrative Justice Act every individual had an automatic right to go to court. The RTIA and the Department of Transport were aware that the matter was not trivial and it had been considered thoroughly. To this end an Infringement Appeals Tribunal had been established. There was thus no need to retain the election to go to court.

Mr L Magwebu (DA, Eastern Cape) respectfully disagreed with Mr Chuwe. He emphasised that the right to go to court was a constitutional right. It had to be optional to go to court. People had to be given the option. He felt that the point made by the Eastern Cape was a valid one as people should be given the choice.

Ms Dikgale supported the explanation given by Mr Chuwe.

Mr Makue agreed saying the individual could still go to court. The person had the right to appeal to the court or to the Tribunal.

The Chairperson suggested that the matter be flagged. He had asked what the position was about court with other entities such as the National Consumer Commission, the National Credit Regulator and the Competition Commission. People had to have the right of choice between a court or the Tribunal.

Mr Chuwe continued that when a person elected to go to court the rules of the Magistrates Court Act had to be abided by. If a person failed to appear in court when it was required then the person would be placed in contempt of court. A warrant of arrest could be issued. He explained that section 22(3) of the AARTO Act stated that a magistrate must not issue a warrant of arrest. An enforcement order should rather be issued so that AARTO processes could come into play.

Mr Faber pointed out that other provinces had also raised the matter. The Northern Cape felt that there was no need for tribunals. He felt that the Bill was in contravention of section 34 of the Constitution. The Bill did perhaps not take away the right to go to court but the right to go to court was not mentioned in the notice of service. It should be on the notice of service that the person had the right to go to court. The person had to now bear the cost of a letter informing him that he had a right to go to court. The cost was R100. He added there was no way the Infringement Appeals Tribunal would be able to handle the large volumes that the courts were struggling with.

The Chairperson said that Members had the option of voting on whether the provision should remain in the Bill or that the proposed amendment made by the Province was accepted. The alternative was to vote at the final mandates meeting.

Ms Dikgale said that the ANC being in the majority was in favour of the provision in the Bill remaining.

Mr Magwebu replied that perhaps Members needed to refresh themselves on their understanding of the Bill and that voting should be left to the final mandates meeting.

Mr Makue added that Gauteng had considered this in clause 7 and had not seen the need for an amendment.

Mr Chuwe addressing Mr Faber said that the Constitution had a Bill of Rights. The rights were however not absolute. Administrative matters were being dealt with. Section 36 of the Constitution dealt with the limitation of a right.

The Chairperson said that the ANC majority did not agree with the amendments proposed by the Province in clauses 7(a) and 7(b). Clauses 7(a) and 7(b) would remain as they were.

Mr Chuwe said that RTIA and the Department of Transport did not agree with the Province’s proposed amendment to clause 7(c). If the person was the owner of the vehicle then the person was responsible for the vehicle. International benchmarking was that the owner was always responsible. The proposed amendment to clause 7(c) was not accepted. He agreed with Gauteng that the owner should be held liable.

Ms Xhanti in response asked what if the owner’s vehicle was stolen.

Mr Chuwe replied that provisions of the Road Traffic Act did cover when an owner’s vehicle was stolen. The owner was protected and had rights when a vehicle was stolen. There was no disadvantage to the owner.

Mr Magwebu asked what happens where the motor vehicle was taken without the consent of the owner such as when a son uses his father’s vehicle without consent. The owner could not be held accountable as there was use without consent of the owner.

Mr Chuwe answered that the Criminal Procedure Act (CPA) had mechanisms and processes to address issues that came up. Provision was made in terms of what was expected from the owner. SA’s legal framework adequately covered matters.

Mr Makue stated that the Gauteng Province wished to keep owners of vehicles accountable because there were too many people killed by reckless driving. The point of the Bill was to limit casualties on roads. Somebody had to be held accountable and take responsibility.

Mr Chuwe suggested that his responses be captured in writing as it would assist Members. Written responses to all proposed amendments by provinces would be provided to the Committee.

The Chairperson said that he had raised the matter of written responses with Mr Chuwe before the meeting.

The ANC majority once again agreed that clause 7(c) remain unchanged.
Mr Chuwe agreed to provide the written responses to the Committee by Friday 17 August 2018.

Clause 8

Mr Makue felt that the proposed amendments to the clause were reasonable except for the proposal that unemployed persons should be exempted from paying penalties. Where a person was unemployed, the court was already sensitive to a person’s circumstances. He proposed that the Committee accept the other proposed amendments in clause 8.

Mr Chuwe said the same argument about regulations applied to clause 8 as to clause 7. He left it up to the Committee to decide whether to accept the proposed amendments. He confirmed that where a person was proved to be indigent, it would be taken into consideration. The AARTO Act did take into account a person’s financial problems. Payments of penalties could be done by way of instalments. So indigence was covered operationally. There was no need to have an amendment covering unemployed persons.

Mr Magwebu asked Mr Chuwe to commit that such matters would be covered in the regulations. He was concerned that they would not be covered in the regulations. It was good that fines could be paid off in instalments. Another option to consider was the reduction of fines.

Mr Chuwe gave the assurance that as regulations stand there was an automatic reduction of fines by 50%. There was no need to substantiate why the fine should be reduced. The reduction was automatic. It was contained in the regulations.

Clause 12

The Eastern Cape disagreed with the Bill's repeal of section 22 of the AARTO Act. It wanted section 22 retained.

Mr Chuwe replied that the Eastern Cape proposed that section 22 be retained so that when one was not happy with appeal or review processes then one had the right to go to court. He stressed that administrative justice ensured that every person had the right to go to court.

Mr Magwebu stated that when a person wished to review a decision of the Infringement Appeal Tribunal one had to go to High Court. Going to High Court was expensive. Where were the poor to get funds from? Having the High Court as the court of first instance was far too expensive.  

Mr Makue stated that from a moral point of view people had to adhere to traffic rules. The ANC majority agreed that clause 12 remain as is in the Bill.

Clause 14

The Eastern Cape wished for the categorisation of minor and major infringements to be maintained.

Mr Chuwe pointed out that there were two types of traffic violations. The first was infringements and secondly there were offences. AARTO legislation dealt with infringements. Offences were more serious and were dealt with by the courts. There used to be a distinction between minor and major infringements. The RTIA removed the distinction so that representations could be made by an infringer whether minor or major.

The Committee agreed with what was contained in the Bill and that it should remain unchanged.

Clause 15

The Eastern Cape said that provision should be made for condonation of late filing of appeals or reviews.

Mr Chuwe replied that there was no need for provision to be made for condonation. AARTO legislation would deal with matters whilst they were still fresh. He emphasised that the infringer was always empowered. The infringer was advised of options that were available. There was no disadvantage to the infringer for the late filing of an appeal or review. On the proposal for an exemption of the payment of the prescribed fee, Mr Chuwe replied that he had already covered indigence in clause 8(c). He was open to the proposal about the Infringement Appeals Tribunal having offices in all provinces. It would bring about greater access. The RTIA did have mobile offices. The final point made by the Eastern Cape was that appealing to the High Court was costly. Mr Magwebu had shared the same concern. Mr Chuwe pointed out that the AARTO process was highly interactive. In all probability 90% of matters would be dealt with before they reached the Tribunal for appeal or review. The AARTO process would be able to sort out matters administratively.

Mr Magwebu wished to confirm that RTIA had mobile offices. He felt that the whole AARTO/RTIA issue was becoming more burdensome, the more was being said on it. He still felt the existing courts were already in place. People should be given the option to access the court to deal with disputes. He once again urged Members to reflect further before voting as it would be the poor who would bear the brunt.

Mr Faber said that the appeal authority was not impartial and independent. The judiciary on the other hand was an independent institution. He felt that the Bill would not survive constitutional scrutiny. He added that many of the provinces asked why the wheel was being reinvented. The establishment of new entities cost government millions of rands. There were many cost factors to consider: qualified people were needed; the courts already had qualified people to deal with these matters; the cost of the Infringement Appeal Tribunal; training its staff. In Gauteng Province alone there were half a million infringements a month. How would one institution deal with all the infringements in SA. The capacity was simply not there.

The ANC majority was in favour of the Clause 15 provisions as they were in the Bill.

Clause 16

Mr Chuwe said that the proposed amendment by the Province did not change much in the clause besides the structure of the wording.

Mr Faber asked how service would be done by electronic means. Would service be by short message system (sms) or by social media? The Committee needed to have clarity. Persons needed to be served properly.

Mr Chuwe replied that sms was not considered service. There must be legal service. Sms would only be used to bring it to a person’s attention that a document was to be served on him/her by proper service. The RTIA working with the South African Post Office (SAPO) also had electronic service mail. He explained that the platform to be used could handle huge documents and there would be verifiable mechanisms to confirm that a person had received the document and had read it. The infringer had the right to choose the manner in which he/she wished to be served. He reiterated that only verifiable electronic platforms would be used for service.

Ms Mpikashe stated that the wording proposed by the Province made better drafting sense than what was in the Bill and she suggested that the clause be amended.

Mr Mongemeli Kweta, State Law Adviser, suggested that “electronic means” as proposed by the Province be replaced by “electronic service”.

The Committee agreed to both suggestions.

Mr Magwebu asked if postage as contained in the Bill and in the Province’s proposal meant the same as registered mail.

Mr Chuwe replied that Mr Magwebu was correct and that it should be stated as registered mail.

Ms Mpikashe confirmed that the courts recognised registered mail.

Clause 17

The Eastern Cape proposed that laws of prescription apply to penalties and fees payable.

Mr Chuwe was concerned that if prescription applied then the causal effect might have an impact on operational mechanisms. He would prefer that the clause remain as it was in the Bill. It was up to the Committee to decide.

The Committee agreed that the clause would remain unchanged.

The meeting was adjourned.

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