Administrative Adjudication of Road Traffic Offences Act: update briefing by Road Traffic Management Corporation

TRANSPORT PORTFOLIO COMMITTEE
14 November 2007
ADMINISTRATIVE ADJUDICATION OF ROAD TRAFFIC OFFENCES ACT: UPDATE BRIEFING BY ROAD TRAFFIC MANAGEMENT CORPORATION

Chairperson: Mr J Cronin (ANC)

Documents handed out:
Road Traffic Management Corporation Presentation 2007

Audio recording of meeting

SUMMARY
The Road Traffic Management Corporation was asked to explain the delay in presenting its Annual Report and it was resolved that a meeting would be arranged in the new year to discus the Report. The Corporation then proceeded to explain the Administration Adjudication of Road Traffic Offences Act (the Act), which was intended to contribute greatly to road safety by protecting the law and aiming to change the behaviour of drivers and owners. Only 20% of traffic offenders paid their fines, road traffic offences were not currently a priority in the court system, and 95% of road casualties resulted directly from traffic violations. The Act aimed to enforce zero-tolerance, and enforce compliance with traffic laws through encouraging regard for the laws, establishing a procedure for effective adjudication, penalise through de-merit points, and finally through suspension of licences, and reward good behaviour. It would establish an Agency for implementation. A pilot project would run in Tshwane district and project e-force, for on-the-spot ticketing, would soon be implemented. Comments had been sought on the regulations and would soon be finalised.

Members questioned what would be the situation if offenders were unable to pay fines, and asked if their property could be attached. The Corporation explained in detail the system, including payment by instalments, and then further briefed the Committee on the infringer’s rights to make representations on a penalty levied. Questions were raised on what constituted driving with an incorrect licence, driving without a licence, reduction of points, how the Corporation would be funded, fees payable to make representations, how the system would operate in practice, and whether this might not lead to incorrect refusal of representations. Members asked for clarity on how the system would operate against drivers, owners and operators, the training process, and the de-merit system.

MINUTES
The Chairperson noted that the Road Traffic Management Corporation (RTMC) had a delay in presenting its Annual Report, and asked that the reason for the delay be explained prior to the presentation.

Dr John Sampson, Chairperson of the Board of Directors, RTMC, stated that there were a number of issues that needed to be corrected in the initial report. Six items required correction in the financial statements as the Auditor General (AG) was not satisfied with the financial statements, which had not been written correctly in the previous years; and RTMC had to provide answers to additional enquiries. All these factors caused a delay.

Ms N Khunou (ANC) expressed concern over the six items.

Mr Japh Chuwe, Senior Manager: AARTO, RTMC, clarified that those six items were corrected as requested by the Auditor General.

Mr Sampson emphasized that all of these six items were settled and the only outstanding issue remained as to how the audit from the previous year was stated.

The Chairperson suggested that the Annual Report must be revisited sometime next year.

The Administrative Adjudication of Road Traffic Offences Act (AARTO): Road Traffic Management Corporation (RTMC) Briefing
Dr John Sampson, Chairperson of Board of Directors, RTMC, referred to the Administrative Adjudication of Road Traffic Offences Act (AARTO) as the most important contribution to the road safety in South Africa, which would contribute to protecting the laws and changing behaviours. The particular issues of implementation of the Act would be discussed at this meeting.

Mr Chuwe led the members through his presentation on implementation of the AARTO Act. The Act was approved by Parliament in September 1998, and was followed by three amendments in 1999, 2000, and 2002. It was developed to try to address the challenges that only 20% of traffic offenders paid their fines, road traffic offences were not a priority in the court system, and the fact that over 95% of road casualties could be directly related to traffic violations. The goal was to voluntarily change individual behaviour by enforcing zero tolerance and enforcing compliance with the traffic laws. In 2007, the Minister of Transport decided that the Act must be implemented as a six to twelve month pilot project, firstly in the Tshwane Magisterial District and thereafter nationally.

The Act intended to encourage law compliance, payment of penalties, establish a procedure for effective and expeditious adjudication of infringements, penalise infringers through allocation of demerit points, and finally suspension of licences, and operator cards. It would reward good behaviour by point reduction, and establish an Agency.

Mr Chuwe explained how AARTO would operate. A traffic “offence” referred to very serious conduct, such as driving under the influence of alcohol, while a traffic “infringement” referred to less serious violations such as speeding. The offences would be dealt with under the Criminal Law Amendment Act of 1997 and infringements would be dealt with under the new process of the AARTO Act.

Mr Chuwe also explained the outcome of representation, payment of penalties, serving of notices and notice requirements and failure to comply. His presentation explained the demerit point system, as well as the roles and responsibilities of the key players in the procedure. Progress had been made in the implementation of the Act. A Master Implementation Plan was developed that provided for what systems would be implemented, and how this would happen. Project e-Force would soon be implemented, whereby pocket computers would be given to police officers so that they could operate on the road. The National Contravention Register was essential in the process as it would automatically update information related to payments being made. An AARTO Technical Committee was formed and the AARTO unit was established with all different role players representing the municipalities. Draft regulations were published for comment on 28 September 2007 and all comments would be finalized on 22 November 2007.

Discussion
Ms N Khunou (ANC) raised a question regarding infringements and offences and asked what would happen if people were financially incapable of paying their fines.

Mr B Mashile (ANC) commented that the presentation in fact seemed to imply that not much progress had been made yet, although work was in progress to help with the implementation process.

Dr Sampson commented that there were five functions of the RTMC and AARTO was not one of the functions. RTMC took over the Act in February. There was still uncertainty as to when the other functions would be completed. The Minister explained that the implementation of AARTO must be completed.

Mr Mashile noted that it had been stated in the presentation that people had an access to representation on a minor infringement, yet representation was not indicated for a major infringement. A fee must be paid to the agency to get access to representation. Mr Mashile requested this issue be explained.

Mr Mashile also asked whether reduction of points could accumulate beyond zero.

Mr Mashile asked if illegal driving with someone else’s driver’s licence would constitute a major infringement.

Mr Mashile said that the table presented under Process 8 contained major gaps and there remained unspecific issues.

Mr Thabo Tsholetsane, Acting CEO, RTMC commented on the distribution of funds. The structure of the fines would operate through the National Contravention Register, an institution that would record every infringement. This system would be centralised and would be accessible everywhere. There would be agreement between the authorities to set the standards for enforcement actions. The fees would constitute some part of AARTO’s income, but the remainder of the money would go to the agencies and other authorities.

Dr Sampson clarified that AARTO would get the 50% of the income coming from the fees.

Mr Tsholetsane continued that the Ministry of Transport would decide how this money was to be distributed to the agencies.

Dr Sampson said that there would be a high level of compliance on this matter.

Dr Sampson added that the focus was not on the money issue. The issuing and enforcement authorities would wait for the payment of the full amount within 32 days. Once payment was made there would be money available for the Agency. This principle was good as the infringer would start paying for all the processes to finalise the case, and would not be a burden on the tax payers of the country.

Ms Siya Wotshela, Senior Manager: Legal Services, RTMC, commented that AARTO had a provision setting out the apportionment of the funds collected by the issuing authorities. Also the AARTO unit was engaged in consultations with the authorities to address these issues and was currently engaged in a national dialogue to discuss all the remaining issues. Issues of allocation of funds and apportionment needed to be finalised and completed according to the agreement.

The Chairperson asked whether the officials were referring to the Tshwane pilot as a geographical area or a municipal area.

Mr Tsholetsane responded that the principle came from the initial agreement in various places. In case of any offence within any district of Tshwane, the pilot project would be used.

The Chairperson said that there would be some useful experiences from the pilot project, and asked what was envisaged in the case of multiple agreements.

Mr van Tonder commented that the pilot project would not be implemented until February 2008. Although funding and merit points would be issued for the project, the points would not start to accumulate until the system was implemented nationally.

Mr Tsholetsane added that people affected by the pilot would experience and get a sense of what would happen in the case of infringements and fees, and what would be applicable. There still remained key issues of ability of equipment. This problem had been identified and the necessity to provide provinces with equipment was highlighted. The budget needed to be adjusted accordingly.

Mr Tsholetsane commented that the fee must be paid when there was an infringement.

Ms Wotshela clarified, in regard to the issue of representation, that a new proposal would be implemented on a new format available to the public. People used to submit representation to the court. However, the new proposal proposed a new format. The new representation form would be downloaded online and could be submitted to the nearest police station, and in addition representation offices would be established. If someone in East London committed an office and wanted to make a representation, the form must be downloaded from the website and submitted to the central office. Then the matter would be allocated to the appropriate district, based on the jurisdiction. The representation offices would be set up in Pretoria.

Ms Khuno raised a question regarding the representation office and asked if there would be delays.

Ms Wotshela responded that the information necessary to proceed with this matter had already been submitted. No delays were expected.

Mr Tsholetsane added that that there should not be delays with the mailing system as post offices could be found everywhere. The representation information would be updated regularly. People could access this information at the post offices.

The Chairperson stated that this was something that would emerge through the pilot. There were still some questions remaining regarding the representation. However, it was essential that the information must be updated rapidly and effectively.

Mr B Mashile (ANC) commented that this system would be unlikely to give people greater access to justice.

The Chairperson answered that people would always have the option to go to court. That option was not removed.

Dr Sampson stated that the representation forms would be received by electronic means. That would offer more flexibility to the infringement offices to process matters and make the handling more manageable. There would not be people permanently employed in the infringement offices. If such people considered that matters were developing badly, they could get in touch with more officers to deal with the matters. Representation officers would need to be familiar with road traffic matters and would have a legal background.

Ms Khunou asked if the costs of accommodating the officers would be included in the budget.

Dr Sampson responded that the Act envisaged that a person wanting to make representations would have to pay a fee. If the person charged with the offence was found guilty of it, then the fee would be forfeited to the Agency. That would partly fund the costs of the Agency.

Mr Mashile commented that there was a problem with the representation fee being paid when found guilty. He reminded the Committee that everyone was considered innocent until proven guilty. He thought this had the possibility of influencing the Agency negatively, and believed a balance must be found.

Mr S Mshudulu (ANC) expressed concern on the operator driver issue. He noted that the representation right was effectively the right to appeal against the finding on an infringement. Any representation would be based on the principles of practicality and fairness.

Mr Tsholetsane made a point that the Act would give clear indications to people of how to proceed in case of an infringement, and they would be aware of their rights to appeal. Representation could be made in any of the official languages. There still remained concerns of people trying to distort the system. However, the government or the agency could not be responsible for individual behaviour of this nature.

Dr Sampson commented on the view that representations might be refused in order to have the fee forfeited. It was a possibility, yet depended on the integrity of the officers. The representations and the findings of the representation officers must be made in writing. In addition, quality checks must be in place to avoid such situations and prevent the manipulation of the system to generate artificial income.

Mr Mashile commented that fees from public offences constituted a major income for the municipalities. However, the most important point to consider must be road safety.

The Chairperson said that the representation was a paper process, including the decision. The pilot project would demonstrate what kind of issues would arise out of representation and how the public would respond to them.

Ms Wotshela clarified that when the officer made a decision on the representation, the infringer had two options: either to pay, or to proceed to court. The right to exercise both options would be kept open.

Mr Hennie van Tonder, Board Member, RTMC, commented that perhaps the issue of representation had not emerged clearly during the presentation.

Ms Wotshela responded that under the AARTO Act, the Minister was required to categorise various matters into different categories, such as minor and major infringements and offences. In the case of an infringement, the infringer had the right to proceed with a representation. However, in the case of an offence there was no option for representation. If a person was driving using someone else’s license, or an incorrect license, this would be dealt with under another Act. There were 264 different offences.

Ms Khunou referred to a case of driving with a wrong licence, articulated in the presentation, and commented that nothing was mentioned about driving without a licence.

The Chairperson clarified that the full list of offences and infringements was not available to the Committee at the moment. The National Road Traffic Act contained more information.

Mr Mashile asked what “driving with a wrong licence” referred to.

Mr Tsholetsane responded that this meant a person only had a lower class of licence, but did not possess the right licence for the vehicle being driven.

Mr Mashile expressed frustration that the right of representation was not offered to those committing offences, particularly possession of the wrong driver’s license,

Mr S Farrow (DA) commented that if the Members had a problem with any of the issues presented in the Act, they could submit their arguments as a public comment.

Dr Sampson mentioned the training process as set up by the Act. The infringement process was a combination of a whole procedure to be set up. Educating the public offices and the public on the rights and the procedures was an essential component.

Mr Tsholetsane noted that the issue of representation and the rights of infringers were contained in the presentation.

Ms Wotshela further commented that officers would be trained to make sure that they complied with the mandates in respect of the Act.

Mr van Tonder noted that the Act must be implemented. Issues would be raised, and lessons would be learnt as time went by, then changes could be made accordingly. Arguing individual points prior to the implementation would not offer any solutions at this stage.

Mr Farrow talked about his experience with the Australian system. During crucial periods such as Christmas and Easter, points were doubled as an extra incentive to keep the road safe. He wondered if this might not be a useful consideration for this Act. He was concerned with the statement during the presentation that only 20% of traffic offenders paid fines. He asked how the Act would deal with people who drove transportation vehicles belonging to the city, and taxis. and also foreigners driving hired cars, and whether any special arrangements were made to address this matter. He questioned whether an interest rate would be applied to the unpaid fees. In regard to the pocket computer system, he asked, since these would be linked to the entire networked system, about security of the system, and what would happen if such a device were lost or stolen.

Mr M Moss (ANC) asked whether a person committing a minor infringement could have his property seized.

Ms Khunou noted that the Members represented the public and should be looking after their rights and interest. She did not believe that property must not be seized for such an infringement, and wondered if the Act offered any other mechanisms to address the matter.

The Chairperson said that there were two issues in the question. One was what public the Members were representing. The second was that those people being targeted by the Act were not just the general public; they were people who were intentionally breaking traffic rules, by perhaps driving with a wrong license or not stopping at a red light. Infringements must be dealt with fairly. The issue that the Act was dealing with was not poverty, but a fine levied as a direct result of a crime.

Ms Khunou agreed with the Chairperson.

Mr Chuwe touched upon another issue of operator demerits points and how this system worked. The principle was that the driver would not be responsible for something that was not his fault. The company or institution would be accountable for the fault and this would be reflected on the operator’s points, not the individual’s.

The Chairperson asked Mr Chuwe to give Members some examples of how the demerit point system functioned.

Mr Chuwe explained that every demerit point over the maximum threshold of 12 points would result in a one month suspension of all the operator cards of an operator. Drivers must be careful not to get too close to the threshold. Operator problems were also addressed. It was acknowledged that the Act identified some problems and it was the public’s responsibility to submit comments on problematic issues. The Chairperson commented that the shortcut to this problem would be that the operator would be responsible for the fault, not the driver.

Dr Sampson commented that the drivers would function on the basis of permission to operate. In the case of an infringement, the operator’s vehicle could be taken away. In most the cases, the operator was responsible for the illegal acts. The owners must take care of the vehicle and the operator must take full responsibility for all of the vehicles over which he was claiming ownership. This included overseeing the behaviour of the drivers, and ensuring they complied with traffic regulations. In many instances the driver would be blamed due to the prejudice against them and their personal fear of losing their jobs. There was a need to get to a proper balance between enforcement and punishment to ensure that drivers would not lose their jobs. The Act must be implemented. Constant attention must be paid by analysing the issues and then, if necessary, adjusting the system.

Dr Sampson further commented on the issue of payment in instalments. A representation must be made, at the latest, one day before the due date of the fine. Infringers would be given an opportunity to pay for their fines in instalments. Failing to pay the fines would ultimately result in an attachment of property. This could possibly be an administrative nightmare, but the system must not be abused. The goal was to provide the option of representation and punish offenders effectively.

Mr Tsholetsane commented that the Act was developed with the intention to give offenders better access to pay, and not leaving anyone outside the system. It was ready to address the issues.

Dr Sampson commented on taxi drivers. Although some issues were ultimately the responsible of the operator, it was also possible for the taxi driver to be fined and attract de-merit points for faulty behaviour such as speeding. It was emphasised that a minor and individual action would not result in the loss of a driver’s license. That was not how the system worked. In case of an infringement, de-merit points could apply to both the operator and the driver.

Mr Tsholetsane said that merit points would not go beyond zero to reward good behaviour. It was the responsibility of every driver to comply with the system and not break laws.

The Chairperson asked if the issue of number plates could be explained.

Mr Tsholetsane explained that RTMC had already made amendments to the road traffic regulations. This would offer permanent fixing of number plates making it difficult for anyone to use or change an operator vehicle without registering. The intention was to implement a system so that the unregistered vehicles would be identified.

Dr Sampson added that this new system would be an electronic project, which would be automatically updated.

Mr Tsholetsane commented that the Act was intending to offer more solutions to the poor. The option of paying in instalments would be available. However, fines must be paid in full. There were ongoing negotiations regarding the new regulations. No agreement was yet reached between the Department of Justice and the registered commissions. If the Portfolio Committee gave approval, such issues would be submitted to the Department of Justice.

Mr Tsholetsane noted that there were some proposals in relation to officers who lost their scanners. Such devices would allow officers to issue and print tickets on the road. Regarding the accessibility and security issues, Mr Tsholetsane said that no problems had been faced so far. When the Act was finally implemented, the problematic geographical areas and issues would be then identified. In case of a change of residency, the authorities must be notified with a current update. This was essential as the infringement notices would be mailed out.

The Chairperson noted that there would be always problems with change of addresses, post office delivery challenges and other administrative issues.

Mr van Tonder said that the post office was always blamed. 180,000 notices were sent out monthly, yet it was seldom the fault of the post office that they did not arrive.

The Chairperson said that he was very pleased with the Act although he was aware that the complex nature of the issues provided a challenge. The pilot project that would start operating in a few months would address most of these issues.

The meeting was adjourned.