‘Licence to rob us'

Guilty until proven innocent — that is the problem with the traffic demerit system, says the lawyer spearheading a court case against the government.

On top of this, the system will be an administrative nightmare, and is based on flawed laws and aimed at filling government coffers, he says.

That is the view of Justice Project South Africa’s Howard Dembovsky, who has taken the matter against the government to the North Gauteng High Court, with the organisation claiming  that the Administrative Adjudication of Road Traffic Offences (Aarto) Act  is constitutionally flawed.

The government, however, is undeterred by the pending court action, insisting that the demerit system will be rolled out by mid-2020.

The Nelson Mandela Bay municipality has confirmed that traffic officials in the metro will need to go on refresher courses — all of which should be resolved within the next eight months.

Dembovsky said the points-demerit system, which constitutes a small part of the Aarto Act, was aimed at creating traffic fine revenue mechanisms for the state.

The Aarto Act is managed by the Road Traffic Infringement Agency, which has said that the last phase of its “readiness programme” is under way.

President Cyril Ramaphosa signed the Aarto Amendment Act into law on August 13 after receiving the support of all the provinces, except the Western Cape.

On October 11, the Aarto regulations were released for public comment, giving people 30 days to submit suggestions.

The transition to the demerit system means the allocation of new traffic fine books and IT systems, and training for traffic and administration officials countrywide.

Drivers could lose their licences for repeated violations, with more than 15 demerit points resulting in the suspension of a driver’s licence for a period of three months for each point over the threshold.

Dembovsky said 19 points would see a motorist’s driving licence suspended for a year.

The traffic or municipal court system would fall away and drivers and vehicle owners would drown in bureaucratic red tape should they wish to object to a fine.

“This includes making written representations, applying to a tribunal for review or appeal and, if still not successful, applying to the magistrate’s court for review,” he said.

Dembovsky said the Aarto Act as it now stood was at odds with the constitution.

“This is because it is built on a presumption of guilt, rather than of innocence, as enshrined in the constitution.

 “There is no onus on the state to prove its allegations.

“It is up to you to prove your innocence,” he said.

“If my constitutional litigation succeeds and small fortunes have been spent on equipping local and provincial authorities to implement the Aarto Act, will that not constitute wasteful expenditure on a huge scale?”

His legal challenge, launched in April 2018, will be heard in the North Gauteng High Court in early 2020.

The Road Traffic Infringement Agency has indicated that it will oppose the application, and has appointed lawyers to do so.

In the agency’s  2017/2018 annual report, it said: “Legal Services has gone through the papers and believes there is  cause to oppose the application.”

 Agency spokesperson Monde Mkalipi said it had been implementing a readiness campaign over the past two years that would be rolled out in one go, not in phases, in 2020.

He said 80% of all traffic issuing authorities nationally were ready to implement the system.

“The agency will be embarking on the last phase of a readiness programme during the next six to eight months and [the] aim will be to ensure that all the issuing authorities are well versed with the provisions.

“The law enforcement officers will continue doing exactly what they are now doing — the detection and enforcement of road traffic contraventions.

“The issuing authority that issues the infringement is guaranteed the revenue of the penalty upon it being paid, irrespective of when or where it gets paid,” he said.

“If the [offender] pays within 32 days of the infringement [notice] being served, the [person] is entitled to a 50% discount and the payable amount is guaranteed to the municipality that issued that infringement [notice]. 

“From that full portion paid, the municipality gets 50% and the remaining 50% is transferred to the [Road Traffic Infringement Agency].”

Mkalipi said failure to pay would lead to an enforcement order being issued to block  a person from renewing his or her driver’s licence or vehicle licence.

Bay municipal spokesperson Kupido Baron said the metro’s state of readiness would be dependent on the refresher courses that were needed for both law enforcement officials and administration staff.

Asked if  the municipality would be ready to implement the new system by mid-2020, Baron declined to comment.

Transport department spokesperson Unathi Binqose said all the provinces were ready, with only the training for officials and training material needed — which would be resolved within the next eight months.

Binqose  said the training and equipment costs would be  carried by the Road Traffic Management Corporation but stationery would be bought from the Government Printing Works.

“Aarto is an administrative process that will move away from the courts,” he said.

“Only a person accused of a serious offence such as drunk-driving or reckless and negligent driving will be arrested and charged in court according to the Criminal Procedure Act.”

Organisation Undoing Tax Abuse chief legal officer advocate Stefanie Fick slammed the amendment, saying it was designed to milk motorists.

“Our initial assessment is that it’s an administrative nightmare,”  she said.

Fick described the regulations as a “bureaucratic tangle” aimed at collecting money, with the expected result being frustrated and defiant motorists.  

“There’s a big push to make money in this system by bullying those served with infringement notices or summonses to just pay up immediately and shut up.

“Those who can’t afford the fines and make arrangements to pay them off, over a maximum of 10 months, are penalised by losing the discount,” she said.

“This is a technically complicated administrative system which will be difficult for many motorists to navigate.

“It relies on competent, efficient and honest officials who can process the red tape and refuse bribes from motorists desperate to hold on to their licences.

“Those who rack up demerits and lose their licences face having to pay for their own rehabilitation training.

“If they fail, they must wait a year before trying again.

“Even those who would be prepared to comply and pay up may find that infringement notices don’t reach them.”