AARTO ruling prevented 'unlawful intrusion' on executive and legislative competence

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• Following on from the court ruling on AARTO, the local legal fraternity welcomes the outcome.

• Cape Town-based law firm DSC Attorneys says that 'drastic intervention' is needed to address road safety.

• AARTO has garnered widespread criticism across South Africa.

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Last week's ruling regarding the proposed amended Administrative Adjudication of Road Traffic Offences (AARTO) regulations, including introducing a points-based licence demerit system for traffic offences being ruled unconstitutional and invalid, is a great relief to South African drivers.

This is according to Kirstie Haslam, partner at personal injury firm DSC Attorneys, who says that whilst indisputably drastic intervention is required to address South Africa's dismal road safety record, there have been widespread objections to and concerns surrounding various aspects of the AARTO legislation, including the scope for corruption.

She explains: "If the intention is - as it should be - to address our unacceptably high road death tolls as opposed to revenue collection through fines, AARTO is not the correct vehicle to achieve this.

"The real problem currently in this regard is the fact that there is inadequate enforcement of our current traffic and driving laws. Proper enforcement would significantly impact motorists' driving habits, which in turn would go a long way to reducing the incidence of collisions on our roads."

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South African driving licence

AARTO can't go ahead

As to what this means for drivers following this ruling, Haslam says that the declaration of constitutional invalidity means that the intended implementation of AARTO later this year (albeit on a phased basis) cannot go ahead, and the current position (in terms of existing laws) will prevail. "It is highly likely, in fact arguably inevitable, that this matter will be taken on appeal to the Court of final instance, being the Constitutional Court."

Haslam says the judge raised some important points in the judgement that made the ACT declared unconstitutional and invalid.

She explains: "The judgment hones in on constitutionally technical - yet important - shortcomings of the AARTO legislation; this relates to the boundaries between the legislative competence of the various spheres of government. By way of illustration, section 41(1)(g) of the Constitution stipulates that each sphere of government must exercise its powers in a manner that does not encroach on the geographical, functional or institutional integrity of government in another sphere.

READ: With the High Court having ruled on AARTO, what happens to my outstanding traffic fines?

"In certain instances, the provincial sphere of government has exclusive legislative competence, with the result that the national government has no legislative power in respect of those matters, save for in "exceptional circumstances of compelling national interest" as provided for in the Constitution.

"In this instance, the Court held that provinces are afforded exclusive legislative competence in respect of "provincial roads and traffic" and affording municipalities exclusive legislative competence in respect of "municipal roads" and "traffic and parking".

driving licence
South African driving licence

Unlawful intrusion

Haslam adds that the Court concluded that the AARTO legislation unlawfully intrudes upon the local and provincial governments' exclusive executive and legislative competence, respectively, rendering the AARTO Act and Amendment Act unconstitutional.

She explains that this means that traffic violations in South Africa will continue to be handled as criminal offences and fines will be issued and progressed in accordance with the Criminal Procedure Act, and offences prosecuted in court by the National Prosecuting Authority.

Haslam concludes: "The proposed AARTO Amendment Act would have decriminalised most traffic violations meaning that most traffic violations would have been dealt with via an administrative rather than criminal process."

DSC Attorneys is a Cape-based law firm specialising in personal injury and road accident claims throughout South Africa. 

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