Amended road traf­fic act un­con­sti­tu­tional

The Sunday Independent - - DISPATCHES -

THE AD­MIN­IS­TRA­TIVE Ad­ju­di­ca­tion of Road Traf­fic Of­fences (Aarto) Amend­ment Act was tabled and passed in Par­lia­ment last week. The act fa­cil­i­tates the ad­ju­di­ca­tion of road traf­fic in­fringe­ments. Un­der the cur­rent sys­tem, traf­fic vi­o­la­tions fall un­der the Crim­i­nal Pro­ce­dure Act’s am­bit. Aarto’s ob­jec­tive is to en­sure greater com­pli­ance with traf­fic laws and reg­u­la­tions by en­trust­ing the ad­ju­di­ca­tion of of­fences to an au­ton­o­mous body. The prob­lem is that the act is un­con­sti­tu­tional. If a per­son is al­leged to have com­mit­ted an in­fringe­ment, an au­tho­rised of­fi­cer must serve a no­tice on that per­son. In the past the no­tice in­formed the in­fringer that they might elect to be tried in court on a charge of hav­ing com­mit­ted the al­leged of­fence but the act deleted this sec­tion.

In­stead the in­fringer may elect to be tried in court, which may be done only on the ad­vice of the agency’s rep­re­sen­ta­tions of­fi­cer.

The amend­ments are un­con­sti­tu­tional as sec­tion 34 of the con­sti­tu­tion states that ev­ery per­son has a right to have a dis­pute re­solved in a court of law or, where ap­pro­pri­ate, an­other in­de­pen­dent fo­rum. Sec­tion 35 also guar­an­tees that each ac­cused per­son has the right to a fair trial.

Although the act does not take away an of­fender’s right to ap­proach a court, it is alarm­ing that the right is not men­tioned in the no­tice.

It is likely that road users will not be in­formed of their rights to have the mat­ter ad­ju­di­cated by a court of law. By the time they are in­formed of their right through the cour­tesy let­ter, the user would be R100 poorer due to the cost of such a let­ter.

The act re­moves an al­leged in­fringer’s right to ap­proach a court un­til a cour­tesy let­ter has been is­sued.

A road user has the right to make a rep­re­sen­ta­tion to the Road Traf­fic In­fringe­ment Author­ity (RTIA). The­o­ret­i­cally, this would not be un­con­sti­tu­tional as the of­fender has the abil­ity to ap­proach an­other in­de­pen­dent and im­par­tial tri­bunal. How­ever, RTIA rep­re­sen­ta­tion of­fi­cers would be em­ployed by the author­ity, and would not be able to act im­par­tially.

If the rep­re­sen­ta­tions are un­suc­cess­ful, he or she has the right to ap­peal to the Ap­peals Author­ity. This is also flawed. Such an author­ity is not read­ily ac­ces­si­ble phys­i­cally through­out the coun­try.

In ad­di­tion, the Ap­peals Author­ity will also not be in­de­pen­dentl.

Ac­cord­ing to the act, en­force­ment or­ders must be served on an ac­cused when he or she fails to com­ply with a no­ti­fi­ca­tion or fails to ap­pear in court.

The jus­tice sys­tem pro­vides that the per­son mak­ing the al­le­ga­tions must prove the al­le­ga­tions. It is not up to the ac­cused to prove their in­no­cence. It is alarm­ing that the act moves away from this prin­ci­ple.

The en­force­ment or­der con­firms that the ac­cused per­son is guilty of an in­fringe­ment in the ab­sence of a trial. The ac­cused is then forced to pay a fine and de­merit points are is­sued against his or her driv­ing li­cence.

The bot­tom line is that a num­ber of pro­vi­sions in the act will not sur­vive ju­di­cial scru­tiny, as they are es­pe­cially not in line with the pro­vi­sions of sec­tion 34 and 35 of the con­sti­tu­tion.

For all th­ese (and many other) rea­sons, the DA could not sup­port this bill in Par­lia­ment.

Newspapers in English

Newspapers from South Africa

© PressReader. All rights reserved.