When the Pretoria High Court ruled in OUTA’s favour on 13 January and declared the Administrative Adjudication of Road Traffic Offences Act (AARTO) and the AARTO Amendment Act unconstitutional and invalid, we expected pushback from government.  Therefore, Transport Minister Fikile Mbalula’s announcement that his department will challenge it, didn’t come as a shock to us. But what happens next, and where does it leave motorists? 

OUTA has until 3 February 2022 (15 days from the high court judgment) to file an application to the Constitutional Court for the high court finding to be confirmed. The confirmation application is brought in terms of section 172(2)(d) of the Constitution. After this, the Minister will be able to address his objections to the outcome by challenging our confirmation application in Concourt. 

“Any decision that invalidates provincial or parliamentary legislation or any conduct of the President must be confirmed by the Concourt before it has any effect. The Concourt has the discretion on whether to hear a matter; an exception to which is where an Act has already been declared invalid and the Concourt is required to confirm the finding. This is in terms of Rule 16 of the Constitutional Court Rules,” explains Andrea van Heerden, OUTA’s Senior Legal Project Manager.

Until the Concourt confirms the Acts to be unconstitutional and invalid there remains legal uncertainty regarding AARTO.

OUTA is urging Minister Mbalula to consult widely with civil society and major road safety stakeholders to gain input on meaningful initiatives to improve law enforcement and develop a national culture of road safety which is constitutionally sound in law and effective. 

“If AARTO was indeed the silver bullet, as government suggests, then why has it not had any meaningful impact on the number of road fatalities in Gauteng over the past decade? Laws and regulations are meaningless unless these are effectively enforced, which can only be achieved through improved professional visible policing. In addition, the driver actions causing these issues are criminal offences and not the lesser offences that AARTO regulates,” says Van Heerden.

In addition, the driver actions causing these issues are criminal offences and not the lesser offences that AARTO regulates. 

OUTA says we need the following to combat the carnage on the roads 

- Public buy in through proper public consultation to fix the regulations

- Visible and professional policing 

- Properly trained law enforcement law enforcement to engender a culture of good road behaviour

- The removal of unlicensed drivers and unroadworthy and unlicensed vehicles from our roads

Just because the demerit system works in other countries does not mean it will work in South Africa, says OUTA’s CEO Wayne Duvenage. “In those countries where these systems are successful, they have excellent administrative competencies and vehicle registry systems that are accurate and interconnected to other areas of government administration, which operate at a high degree of efficiency,” he says.