The introduction of a long awaited “points demerit” system for drivers is on hold again after a ruling on Thursday in the Pretoria High Court that the enabling legislation is unconstitutional.
Judge Annali Basson has ruled in favour of the Organisation Undoing Tax Abuse (OUTA), agreeing with its submissions that the Administrative Adjudication of Road Traffic Offences Act (the AARTO Act) and a subsequent amendment, did not pass constitutional muster.
This was because the legislation intruded on the exclusive legislative competences of local and provincial governments in relation to road traffic matters.
The ruling will mean that the government will have to go back to the drawing board.
Judge Basson wrote that the dispute was not about the desirability of the legislation, which provides for penalising drivers guilty of infringements or offences through demerit points, which could lead to the suspension and cancellation of driver’s licences.
The issue at hand, she said, was the legislative competence of national government to enact the two acts.
OUTA submitted that the acts trespassed on the narrow constitutional areas over which the national government has no legislative or executive power – provincial and municipal roads.
OUTA said it had been actively involved in the public participation process leading up to the enactment of the legislation, and had spoken out about its concerns and had written two letters to President Cyril Ramaphosa in 2019, raising the issue of constitutional invalidity.
Transport Minister Fikile Mbalula opposed the application.
He confirmed that the AARTO Act created a single national system of road traffic regulation to “regulate every aspect of road traffic”.
The amendment act, he said, shifted the default system of judicial enforcement of traffic laws through criminal law to a compulsory system of administrative enforcement, through tribunals, administrative fines and the demerit points system under the Road Traffic Infringement Authority and Appeals Tribunals, all appointed by the national minister.
This was permissible, he argued.
Judge Basson said the proposed new dispensation moved all enforcement of all road and traffic laws to national level. This, she said, was contrary to the Constitution, which stipulates that each sphere of government must exercise its powers in a manner that does not encroach on the other, unless there is a strong case of national interest.
She said the Constitution gives provinces and municipalities exclusive powers over roads and traffic in their jurisdictions.
She agreed with submissions by OUTA’s advocate Matthew Chaskalson that this meant that what had been given to local government could not be taken away by national government, a matter which has been pronounced upon before by the Constitutional Court.
Judge Basson said while the minister had argued that the court should suspend any constitutional invalidity for 24 months to allow Parliament to rectify the defect in the demerit system for drivers, she did not believe this to be practical or possible.
“Once the provisions relating to provincial roads … or municipal roads, traffic or parking by-law infringement are removed, what would remain would not be able to give effect to the main objective of the statute … there would also be no purpose in setting up the administrative machinery if the vast majority of road traffic infringements do not fall within their jurisdiction.
“It therefore follows in my view that the Act and the amendment Act must be declared inconsistent with the Constitution in their entirety”.
OUTA, in a statement, said the legislation in its current format, did nothing to improve road safety or reduce road fatalities.
“This time around, we trust the relevant departments will engage meaningfully with civil society to obtain our input when developing such important policies for the country,” said Advocate Stefanie Fick, Executive Director of the Accountability and Governance Divisions of OUTA.
“It is unfortunate that government once again chose to ignore valid concerns and well researched input, and pushed ahead with the amendment. Not only did they waste a lot of time, but also valid resources. The AARTO roll-out will have to be stopped while the act is once again amended and taken through the legislative process. Only then can it be implemented.”
By Tania Broughton