Aarto in the firing line

The Administrative Adjudication of the Road Offences Act 46 of 1998 (the Aarto Act) is unconstitutional. What does this mean? PETER LAMB explains.

The Aarto Act and the Administrative Adjudication of Road Traffic Offences Amendment Act 4 of 2019 (the Amendment Act) have been declared unconstitutional and invalid by the Gauteng Division of the High Court in Pretoria.

The applicant, the Organisation Undoing Tax Abuse (Outa), did not seek any temporary interdict or other temporary relief from the High Court, pending a decision of the Constitutional Court on the validity of these acts.

In the normal course of events, the losing party (in this instance the Minister of Transport and others) can bring an application for leave to appeal to the Supreme Court of Appeal within 15 court days. During the appeal process, the order in question is stayed and not given effect.

In terms of section 172(2) of the Constitution, an order of constitutional invalidity made by the High Court or Supreme Court of Appeal will not have any force unless such order has been confirmed by the Constitutional Court.

The relevance of this discussion of court rules and the enforceability of a court order that declares an act to be unconstitutional is fairly simple. The press statement given by the Minister of Transport around the time of the judgment provided that the Aarto Act would still come into effect on 1 July, 2022. The practical implications of such a position, given the complexity of the administrative procedures and structures envisaged by the Aarto Act, is another issue to take into consideration.

In any event, it remains prudent for logistics service providers to have a working knowledge of the Aarto Act. In summary, the act creates a single national system of road traffic regulation and seeks to regulate every aspect of road traffic. The system is based on demerit points that are incurred for traffic offences or infringements. Once entered into force, the Amendment Act would result in a shift from the default system. Judicial enforcement of traffic laws through criminal law would become a compulsory system of administrative enforcement of traffic laws through administrative tribunals, administrative fines, and a demerit points system.

The Achilles heel of the Aarto Act and the Amendment Act is that these acts seek to move the enforcement of all road traffic fines and traffic laws to the national level. In terms of the Constitution, only the provincial legislature has the legislative authority to regulate road traffic at the provincial level (Part A of Schedule 5 of the Constitution). Additionally, only the local government has the executive competence to enforce traffic fines and parking laws at municipal level (Part B of Schedule 5 of the Constitution). The High Court held that these acts unlawfully intrude upon the exclusive and legislative competence of the local and provincial governments. Simply put, the problem is that the same national structures created by the Aarto and Amendment Acts (for example, the Road Traffic Infringement Authority and the Appeals Tribunal) are the backbone of the two acts. Given this fundamental reliance on these structures, it is difficult to contemplate how the Minister of Transport will salvage the situation.

To summarise the current position: logistics service providers must appreciate that the Aarto Act and the Amendment Act will come into force on 1 July 2022. However, the practical implementation of the acts will most likely be non-existent due to the administrative complexities. Furthermore, the Constitutional Court is likely, in my view, to agree with the judgment of the High Court, and ultimately declare the Aarto Act and the Amendment Act unconstitutional and invalid.