AARTO Amendment Bill: negotiating mandates
NCOP Economic and Business Development
21 August 2018
Chairperson: Mr M Rayi (ANC, Eastern Cape)
The Committee had in a previous session instructed the Road Traffic Infringement Agency (RTIA)/ Department of Transport (DoT) to respond to proposed amendments made by provinces on the Administrative Adjudication of Road Traffic Offences (AARTO) Amendment Bill. The RTIA/DoT had already responded to the amendments proposed by the Eastern Cape Province, and continued the process with responses to amendments proposed by the remaining eight provinces.
The majority of the proposed amendments were already either covered in the Bill or were rejected with plausible explanations being given, which the Committee for the most part accepted. As could be expected, there were proposed amendments by provinces that held merit and were accepted. These included proposed amendments which called for harsher consequences for driving without a licence, and the suggestion that Schedule 3 should categorise driving while disqualified or with a suspended licence as an offence. Both of these proposals pertained to Clause 13, but would be included in the regulations, so there was no amendment to the Bill itself.
The Chairperson identified two issues which perhaps needed further thinking. The first was around the service of documents, and the second was around access to magistrates courts. The RTIA spoke to the acceptance of a proposed amendment to Clause 15(29)(J) that allowed for review and appeals to be dealt with by magistrates courts, as referring matters to the High Court could cause delays and be costly. The RTIA introduced a new clause to replace the existing sub-clause (29) (J) to give effect to the proposed provincial amendment. Members asked whether the new clause gave an infringer an election to go to court, and whether the choice of going to the magistrate’s court was there, without having gone to the Appeals Tribunal. Just as the Committee was on the verge of accepting the new clause to replace the existing (29) (J), the Parliamentary Legal Advisers Office interjected and stated that after careful consideration, it would no longer be the case to replace the existing (29) (J). The reasoning was that it was important to retain the right of appeal. The Parliamentary Legal Advisers Office suggested that the Appeals Tribunal be given a lower status so that an appeal to a magistrate’s court could be made. On the process ahead, a C-list of amendments would be sent to provinces for consideration in their final mandates.
The Chairperson asked that the Committee be provided with regulations that went along with the Bill.
Members observed that if the AARTO was to work, greater awareness of it was needed, especially among taxi associations. The DoT was asked what its plans in this regard were, and whether radio as medium to create awareness had been considered. Members suggested that a simple to understand booklet be compiled. They asked whether confiscated drivers licences would be safely stored by the authorities. The Department of Transport was asked to in writing respond to the questions asked.
Provincial Negotiating Mandates on (AARTO) Amendment Bill
The Chairperson said that the Committee would be working through a document that had been compiled by the Road Traffic Infringement Agency (RTIA)/Department of Transport (DoT) in response to the amendments/comments that were contained in the negotiating mandates of provinces. The Committee had already at a previous meeting considered the negotiating mandate and proposed amendments of the Eastern Cape Province.
Mr Japh Chuwe, Chief Executive Officer (CEO): RTIA proceeded to present the responses of the RTIA/DoT to the Committee. The Chairperson said that once responses were presented, the Committee Members had to decide on whether to amend the Bill as proposed in the negotiating mandates, or for the Bill to remain unchanged.
Western Cape Province
Section 32 of the AARTO Act, 1998
The Western Cape had proposed that the President seek provincial concurrence before implementing the Bill.
Mr Chuwe said that there was nothing in law that required the President to seek provincial concurrence before promulgating the Bill, as long as section 76 processes had been followed.
Mr E Makue (ANC, Gauteng) said that promulgation rested with the President and that the Bill should remain as it was.
The Committee agreed that the Bill should remain as it was.
Clause 18 – apportionment of penalties and fees
The Province was concerned that if a province became an issuing authority, the fine revenue that previously accrued to local municipalities would fall away.
Mr Chuwe stated that as the Bill stood no municipal authority would lose their revenue.
The Committee agreed that the Bill should remain as it was.
The Province was concerned that the Appeals Tribunal may not have the capacity to deal with the number of applications that were to be brought before it.
Mr Chuwe explained that the Appeals Tribunal would come into play only at the end of the process. He was aware that there were millions of infringements. A statistical analysis had been done on what the workload might be. Less than 5% of infringement notices were representations. Furthermore, 43% of all representations were unsuccessful. The statistics showed that only 2.4% of all notices issued would be appealed or reviewed. He assured the Committee that the Appeals Tribunal would have the necessary capacity.
The Committee agreed that the Bill should remain as it was.
Clause 13 and section 24 & 29 of the AARTO Act, 1998
The Province proposed that there should be harsher consequences for driving without a driving licence.
Mr Chuwe responded that there was agreement with the proposal. He stated, however, that there was no need to amend the Bill as harsher consequences would be provided for in the regulations.
The Committee agreed that the Bill remain as it was.
The Province, in the definition of a ‘habitual infringer,’ proposed that an operator and a juristic person be excluded.
Mr Chuwe said that the proposal was unacceptable, as operators and juristic persons were capable of being habitual infringers for vehicle infringements.
The Chairperson said that the definition spoke about a habitual infringer, and did not make a distinction between, for instance, the owner of a taxi and the driver of that taxi. There was no clarity on who would be held liable. Would it be the owner or the driver?
Mr Chuwe explained that where a taxi driver was employed by the owner/operator, and if such driver drove recklessly, then the driver was held liable and not the owner. This was confirmed in section 17(1) of the AARTO Act. Owners were not liable for infringements of the driver, and vice versa. The driver was not liable for infringements of the owner, such as a vehicle not being roadworthy.
The Province proposed that Schedule 3 should categorise driving while disqualified or with a suspended driving licence, as an offence.
Mr Chuwe supported and agreed to the proposal. Schedule 3 would be amended to provide for the categorisation. No change to the Bill would be done.
Clause 16(a) (1)
The Province proposed that registered mail be included as a manner of service, and that there should be a mechanism for confirmation of receipt of service through electronic communication.
Mr Chuwe said that the regulations would dictate which documents would be sent through normal mail or which through registered mail. Electronic service would have date stamps attached to them. There was full compliance with the Electronic Compliance Act. A Short Message Service (SMS) would not be used as a form of service. An SMS would be used only to inform the infringer that he/she was to be served. There was no need to amend the Bill.
The Province proposed that the number of days after which a service of documents may be presumed served should be increased.
Mr Chuwe said that the current presumption of service was 10 days and felt it to be adequate. Increasing the number of days would defeat the purpose of the Act in terms of expediting the adjudication of infringements.
Clause 15(29A) (3)
The Province proposed that the number of members of the Appeals Tribunal should not be fewer than ten, instead of eight as contained in the Bill, and may also be appointed on a full-time basis.
Mr Chuwe responded that the proposal was acceptable in as far as the number of members was concerned, but the decision on whether or not to appoint members on a full-time basis should be based on the observation of the utilisation of the Appeals Tribunal over a period of time.
Mr E Makue (ANC, Gauteng) said that the Gauteng Province had asked for full-time members to ensure that there was the necessary capacity. It was premised on the principle that justice delayed was justice denied.
Mr B Nthebe (ANC, North West) said that the intention was to reduce the burden on the judiciary. He felt that the RTIA’s response was not clear. When was the Appeals Tribunal to be in place?
Mr Chuwe responded that the Appeals Tribunal would be there from day one. The RTIA was merely emphasising the need to be circumspect about the number of members of the Appeals Tribunal. Assurance had been given to the public that the government was looking after their interests. Circumspection was around how to capacitate the Appeals Tribunal. The regulations would determine implementation.
Clause 15(29A) (5)
The RTIA/Department of Transport accepted the textual change proposed.
Clause 15(29) (D) (4)
The Province proposed that an Appeals Tribunal member should, if it should happen, provide a “written” notice of resignation to the Minister of Transport.
Mr Chuwe said that the proposal was accepted. The manner of resignations would be outlined in the regulations.
The Province proposed that review and appeals should be dealt with by the Magistrates Courts, as referring matters to the High Court would delay matters and be costly.
Mr Chuwe said that it was never the intention to place a financial burden on the infringer. The RTIA, the DoT, the State Law Advisers Office and the Parliamentary Legal Advisers Office were still dealing with the matter. An alternative could be to amend section 29(J) with a new clause titled “Judicial Review of decision of Tribunal”. The new clause was captured on pages 8 and 9 of RTIA/DoT document under responses to the Eastern Cape Province’s proposed amendments. The new clause would state that any infringer affected by a decision of the Tribunal may institute proceedings for judicial review of the said decision in any Magistrates Court designated by the Minister in terms of the Promotion of Administrative Justice Act(PAJA), 2000 (Act No. 3 of 2000).
The Chairperson asked whether the new clause dealt with the election to go to court.
Mr Chuwe confirmed that it did, and also covered the right to review the decision of the Appeals Tribunal by introducing the option of approaching the Magistrates Courts instead of the High Court, which was expensive.
Mr Nthebe asked when the infringer would be able to exercise this right. Was it before or after going to the Appeals Tribunal?
Mr Chuwe responded that it would be after the infringer had gone to the Appeals Tribunal and after all internal appeals mechanisms had been exhausted.
The Chairperson asked whether it was not automatic for the person to have the right to go to court if the infringer was unhappy with the Appeals Tribunal.
Mr Kweta Mongameli, State Law Adviser, explained that the Bill would give one the option to go to the
PAJA to allow for the Minister of Justice to designate magistrates courts to deal with the review of administrative decisions. There would be special courts to deal with AARTO issues.
The Chairperson asked whether an infringer had the right to a magistrates court without going to the Appeals Tribunal.
Mr Mongameli said that it was a policy decision that the Executive needed to make.
Mr Chuwe said that the intention of the legislation was to lessen the burden on courts. The Appeals Tribunal had to deal with road safety and road safety management. If ultimately the infringer was still unhappy, then he/she could go to court. Even if all processes had been exhausted, it did not mean that he/she would be successful in the magistrates court.
The Chairperson asked that the new clause be forwarded to Members and the provinces so that it could be dealt with in the final mandates.
Mr Nthebe wished to confirm that it was the Justice Minister that had to designate courts to deal with matters. Members should be provided with a formulation on what needed to be done.
The Chairperson pointed out that practical implementation needed to be considered.
Mr Makue said that the new clause being proposed was on pages 8 and 9 of the RTIA/DoT document. The new clause need not be sent to the provinces. Members could make the changes needed and send it to provinces. What was being proposed was that infringers would be given the option of approaching magistrates courts. Concerns had been raised by taxi associations about a lack of communication over the legislation. There were many uncertainties.
Ms G Manopole (ANC, Northern Cape) referred to the uncertainty, said that sometimes there were unintended consequences. She was concerned about what role the Department of Justice and Constitutional Development played. Perhaps the Department of Justice and Constitutional Development shuld be included in the newly proposed clause.
The Chairperson asked the Committee whether it found the new clause acceptable.
The Committee accepted the proposed new clause.
Clause 15(29H) (1)
The Province proposed that there should be an Appeals Tribunal in each province.
Mr Chuwe said that the Appeals Tribunal would service all the provinces. Huge volumes were not expected, as the Tribunal would deal only with contested decisions after representations had been made. Sittings would be determined by the volume of transactions, and would be flexible. Operational implications had to be taken into consideration.
Clause 15(29A) (3)
The Province felt that the Appeals Tribunal should be independent of the RTIA and should not be financed from revenue collected through AARTO processes.
Mr Chuwe responded that the RTIA did not control the Appeals Tribunal and was not involved in its processes. There was no need to amend the Bill.
The Chairperson noted that the RTIA was an entity of the DoT and was dealing with issues raised by the provinces in negotiating mandates. He suggested that perhaps in some indirect way the RTIA could have some influence.
Clause 15(29C) (1) (b)
The Province proposed that some of the Tribunal members should not only be in possession of legal qualifications, but also be legal practitioners.
Mr Chuwe said that there was no need to amend the Bill. The process of appointment was a Ministerial process, and members would have the necessary qualifications.
Commencement of the Act
The Province felt that six months for implementation was insufficient.
Mr Chuwe said that the six months’ preparation leeway was a minimum requirement. Consultation with stakeholders was taking place.
The Chairperson pointed out that if challenges were encountered, the period could be extended.
Discrimination between citizens and non-citizens
The Province was concerned that the differentiation between a citizen and a non-citizen could be in conflict with the constitutional right to equality.
Mr Chuwe said that there was no distinction created between a citizen and a non-citizen in the Act or in the Bill. He did point out that even when non-citizens were abroad, they could be served electronically. They had to return to SA at some point. There was a National Contraventions Register that was kept. It was distributed all over SA, including at border posts. SA’s neighbouring countries issued spot fines which the AARTO did not provide for.
The Chairperson asked why spot fines could not be given to non-citizens.
Mr Mongameli said that even the constitution (section 36) made provision for the limitation of rights. In some instances, there could be discrimination that was justifiable. It would not be unconstitutional, but it may sound discriminatory. However, provision could be made for two systems -- one for foreigners and one for citizens, but it may be problematic constitutionally.
The Province felt that demerit points would have a negative impact on the livelihoods of ordinary citizens.
Mr Chuwe said that demerit points had been introduced to discourage contraventions of road traffic laws which led to loss of life and serious injuries. Anyone who obeyed traffic laws had nothing to fear about the AARTO or the demerit system.
The Committee accepted the explanation. The Bill would remain as it was.
The Province had also raised further issues. These were that there should be greater public awareness on the Bill, and it questioned the basis of having pilot projects in Johannesburg and Tshwane. There were also concerns that the Bill did not address corruption by traffic officers.
Mr Chuwe said that public awareness efforts would be continued. The pilots were held in Johannesburg and Tshwane because of the margins of both metros, and the volume of its drivers and vehicles. The AARTO would nevertheless benefit both big and small municipalities. The Prevention and Combating of Corrupt Activities Act dealt with corruption, and prosecutions could be done via the Criminal Procedure Act. The Bill dealt with the improvement of road safety.
The Chairperson, in the interests of time in dealing with proposed amendments by provinces, asked that where clauses/concerns had already been explained, that they need not be repeated.
Mr Chuwe handed over proceedings briefly to Mr Mncedisi Bilikwana, Executive: Legal & Governance, RTIA.
Northern Cape Province
The Province felt that the 32-day period for enforcement orders should be extended.
Mr Bilikwana explained that only after a total of 104 days was an enforcement order served. This was more than sufficient time to exercise one’s rights and deal with an outstanding infringement notice.
The Committee agreed with the explanation given, and the Bill would remain unchanged.
The Province also made inputs on Clause 13 (demerit points), about taking the administration of traffic fines out of court, public awareness on the Bill, and finally about budgets for the implementation of the Act. Most of the issues had already been responded to by the RTIA, and were accepted by the Committee. The RTIA noted the comment around implementation budgets. Comments around research on road user behaviour causing accidents were noted. Research was done by the RTIA and other agencies on a continuous basis.
Other issues mentioned by the Province and noted by the RTIA were that too many entities were being established, and that the establishment of the Authority was a means for government to outsource its work. The outsourcing issue had been raised by the Congress of South African Trade Unions (COSATU) as per the working document.
Mr Bilikwana said that the Authority had been established as an entity of the DoT and performed extended functions of the Department as part of government.
Mr Makue said that the input on outsourcing had been made by the National Education, Health and Allied Workers Union (NEHAWU), and not COSATU. He felt that the input by NEHAWU should not be considered at present, but should have been taken into consideration by the Province during hearings.
The Chairperson said that inputs by stakeholders should form part of the reports of provinces. The Committee at present was dealing only with submissions from provinces, and not stakeholders. When Parliament held public hearings, then organisations could make submissions. He noted that neither COSATU nor NEHAWU had made submissions during Parliamentary public hearings. Inputs by individual organisations should not be included in the negotiating mandates of provinces. Only if the issue of the organisation was captured in the negotiating mandate of the province would it be considered.
He was not sure about when the Committee would be able to deal with the final mandates of provinces on the Bill. Provision would be made on the Committee’s Programme. He added that on 4 September, the Committee would be having public hearings on the National Land Transport Bill.
Free State Province
Section 35 of the Act
The Province felt that all infringements committed before the implementation of the Act should be cancelled.
Mr Bilikwana said that all infringements issued in terms of the Criminal Procedure Act (CPA) prior to the Act’s commencement should be dealt with in terms of the CPA until finalised.
The Province also touched on stakeholder engagements -- that the South African Post Office (SAPO) should be engaged around the importance of proper implementation of the Act.
Mr Bilikwana confirmed that engagements with the SAPO were taking place.
The Province had also raised issues around electronic service (Clause 16), demerit points (Clause 13) and jurisdiction of the Appeals Tribunal (Clause 15) which had been responded to before. The Province had asked whether or not laws of prescription may be waived.
Mr Bilikwana commented that the laws of prescription could be waived from time to time, taking into account the seriousness and impact of the offences and infringements.
The Committee was satisfied with explanations given by the RTIA, and the Bill would remain unchanged.
Section 29 of the Act
The Province felt that the threshold for demerit points should be increased.
Mr Chuwe, taking over from Mr Bilikwana, said that the proposal had been noted and that the Minister of Transport may exercise his discretion to increase the threshold. This was covered in Regulation 24 of the AARTO Regulations.
Section 17 of the Act
The Province proposed that the issuance of infringement notices should be automated and captured systematically, to avoid acts of corruption.
Mr Chuwe said that the proposal was accepted, but that there was no need to amend the Bill. It was a matter for practical consideration and an operational issue.
The Province also raised concern that it was difficult for operators to trace responsible drivers for purposes of nomination.
Mr Chuwe said that employers/companies should have employment details of employees. It was an offence for a vehicle owner to give control of his/her vehicle to anyone without ascertaining the user’s particulars and confirm that they had valid driving licences. He felt that there was no need to amend the Bill.
Section 21 of the Act
The Province felt that the issuance of warrants of execution was not acceptable.
Mr Chuwe agreed with the Province, and said that section 21 relating to the issuance of warrants, as well as section 12 relating to appointment of sheriffs, was being repealed by the Bill.
The Clause had been dealt with before ,and the RTIA felt that the Bill required no amendment.
The Committee was satisfied with the explanations provided on the proposed amendments.
North West Province
The Clause which covered demerit points had already been dealt with. The Bill would remain as it was.
The Clause spoke to a review of the decision of the Appeals Tribunal. The Clause had been dealt with before.
The Province was concerned that habitual infringers would abuse rehabilitation programmes. Who would foot the bill for the programme?
Mr Chuwe noted that infringers would be allowed to access the programme only once a year. The programme would be subsidised by the DoT, and the infringer would be liable to pay a minimum fee.
Transitional arrangements had already been explained previously.
The Committee agreed that no changes would be affected to the Bill.
The Province asked whose responsibility it was to deal with infringements issued in terms of the Act.
Mr Chuwe responded that it would depend on the nature of the infringement notice issued. With some infringement notices, the driver would exercise his/her options, while with others, the operator would be required to exercise the option in terms of the Act.
Clause 15, section 31 and penalty collection
Appointment of members of the Appeals Tribunal, prescription of penalties and penalty collection had already been addressed.
The Committee agreed that the Bill would remain as it was.
The Chairperson asked that the Committee be provided with the regulations that went along with the Bill. Final mandates on the Bill would be dealt with sometime in September 2018. The date was yet to be confirmed. He said that there were two issues that perhaps needed further thinking. The one was around the service of documents, and the second was around access to magistrates courts.
Ms Noluthando Mpikashe, Parliamentary Legal Adviser, said that Mr Chuwe had earlier spoken about the option of replacing sub-clause 29(J) in Clause 15. After some consideration, she said that it would no longer be done. It was important to retain the right to appeal. She suggested that the Appeals Tribunal be given a lower status so that an appeal could be made to a magistrate court.
On the process ahead she said that a C-list of proposed amendments would be drafted. The C-list would be sent to provinces for consideration in their final mandates.
Mr Makue said that it was apparent that if the AARTO was to work, greater awareness was needed, especially among taxi associations. Did the DoT have a plan in this regard? He suggested that an easy to understand booklet be compiled. What was the DoT planning on radio talk shows? He also asked what efforts were at schools to educate learners. He also asked, when licences were taken away from drivers because they had reached the limit on demerit points, whether such licenses were safely kept by the authorities. He said that answers to his questions could be forwarded to the Committee in writing.
Minutes dated 27 June 2018, 7 and 14 August 2018, were adopted unamended.
The meeting was adjourned.
Rayi, Mr M
Khawula, Mr M
Makue, Mr E
Manopole, Ms GM
Mathevula, Ms B
Mthethwa, Mr JM
Nthebe, Mr B
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