Amended road traffic act unconstitutional
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.