Confusion around Aarto and e-tolls…

The relationship between the Administrative Adjudication of Road Traffic Offences (Aarto) Act and e-tolls has been highlighted in the media recently and, according to Justice Project South Africa (JPSA), is misleading and needs to be clarified.

“While it is true to say that under the current Aarto Regulations, drivers of operator-class motor vehicles could have their driving licences suspended for failing to pay e-tolls (that is, if the points-demerit system was in force now) this is not true with respect to drivers of around 91 percent of the registered self-propelled vehicles in South Africa,” JPSA states.

“Even though it has not been promulgated yet, a December 7, 2015, draft amendment to the Aarto Regulations indicated the intention of the Department of Transport to dispose of the single demerit-point applicable to charge code 3821 in Schedule 3 (the ‘Aarto charge book’) of the Aarto Regulations.”

JPSA says that it is little more than a play on words to say that “not paying your e-tolls is not a traffic infringement” and “instead counts as disobeying a road sign”.

“The descriptive wording of charge codes 3820 and 3821 is ‘Failed to comply with the directions conveyed by a road traffic sign by using a toll road without paying the toll charge’. Therefore, the underlying infringement is driving on a toll road without paying the toll charge,” JPSA explains.

According to JPSA, no infringement notices have yet been issued under Aarto, nor prosecution for failure to pay e-tolls.

“Perhaps part of the reason for this phenomenon is that serving infringement notices in person, or by registered mail, is a costly affair. The Aarto Amendment Bill seeks to introduce an ‘electronic service’ which will save issuing authorities and the Road Traffic Infringement Agency (RTIA) astronomical amounts of money.

“The Bill also seeks to remove the right of an alleged infringer to elect to be tried in court and in so doing, to be afforded their constitutional right to a fair trial. As a result, issuing authorities, including but not limited to the South African National Roads Agency Limited (Sanral), would never have to prove their allegations, if the Bill is signed into law.

“JPSA maintains that, despite the Aarto Amendment Bill reportedly having been scrutinised and certified by the State Law Advisors, it will fail to pass constitutional and other legal muster if it is signed into law. The e-tolls issue is a separate, but interlinked, issue and is yet to be resolved,” JPSA concludes.