Aarto Act pre­sumes guilt

Changes re­move the right to a fair trial for law-abid­ing cit­i­zens and delin­quent mo­torists alike

The Witness - Wheels - - FRONT PAGE - AL­WYN VILJOEN

THE port­fo­lio com­mit­tee on trans­port of the KZN Leg­is­la­ture will on April 24 and 25 brief mo­torists and drivers on the Aarto Amend­ment Bill.

Aarto stands for “Ad­min­is­tra­tive Ad­ju­di­ca­tion of Road Traf­fic Of­fences” and the most con­tentious change in the amend­ments is that the act now pre­sumes guilt and puts the onus on the reg­is­tered ve­hi­cle owner to prove in­no­cence.

Jus­tice Project SA (JPSA) chair Howard Dem­bovsky said on the or­gan­i­sa­tion’s web­site if the Aarto Amend­ment Bill is signed into law, mo­torists will be left vir­tu­ally pow­er­less to de­fend them­selves.

Dem­bovsky is not against im­ple­ment­ing the much-de­layed act to make SA’s roads safer.

“Clearly delin­quent drivers must be taken to task for their trans­gres­sions and sus­pend­ing the driv­ing li­cences of ha­bit­ual of­fend­ers may as­sist in that re­gard.

“How­ever, the more the Aarto Act is tam­pered with, the more it fo­cuses on the dis­posal of what ap­pear to be ‘both­er­some pro­vi­sions’ of law which stand in the way of the rev­enue gen­er­a­tion process and the less it fo­cuses on road safety.

“This trav­esty sim­ply can­not go un­chal­lenged,” Dem­bovsky said. He en­cour­aged any­one who holds a driv­ing li­cence, or who man­ages a fleet of ve­hi­cles, to par­tic­i­pate in the pub­lic brief­ings now be­ing held in prov­inces.

“This is the very last chance for mo­torists to do so and if they don’t their si­lence will be taken as tacit agree­ment to the Aarto Amend­ment Bill.

“Once it is signed into law, if a mo­torist in­curs a traf­fic fine, they will have lit­tle other choice than to pay it. This will af­fect ‘law-abid­ing cit­i­zens’ and delin­quent mo­torists alike, since all that needs hap­pen is for a traf­fic fine to be is­sued against your, or your ve­hi­cle’s par­tic­u­lars.”

War­rant of ex­e­cu­tion

The one amend­ment praised by fleet op­er­a­tors is that the amended bill seeks to re­peal the war­rant of ex­e­cu­tion built into the cur­rent Aarto Act.

A war­rant of ex­e­cu­tion em­pow­ers a sher­iff to seize pri­vate property to the full value of the penalty and all fees, in­clud­ing the sher­iff’s fees. It also in­structs the sher­iff to seize your driv­ing li­cence and de­face the li­cence disc on your ve­hi­cle and to dis­able your ve­hi­cle.

But fleet op­er­a­tors are against the amend­ment that al­lows the fine to be e-mailed, tweeted or texted, in­stead of served in per­son or by reg­is­tered mail only.

Ten days af­ter the dig­i­tal mes­sage is sent, the act deems it legally served, whether the re­cip­i­ent read the in­fringe­ment no­tice or not.

“Your abil­ity to ex­er­cise your con­sti­tu­tional right to a fair trial by elect­ing to be tried in court, is to be re­moved en­tirely.

“If a traf­fic cop is­sues an in­fringe­ment no­tice to you, you are re­garded as be­ing guilty and im­me­di­ately con­sid­ered to be a debtor,” Dem­bovsky said.

Drivers or fleet op­er­a­tors who feel that they are not guilty must write to the Road Traf­fic In­fringe­ment Author­ity (RTIA), which is a a state-owned en­ter­prise.

If the RTIA de­crees the writ­ten representation un­suc­cess­ful, R200 is added to the penalty.

To appeal this, drivers or fleet op­er­a­tors will have to ap­ply to the Aarto Tri­bunal to re­view the mat­ter. This must be done within 30 days of the un­suc­cess­ful representation and must be ac­com­pa­nied by a fee set by the min­is­ter of Trans­port.

If your re­view at the tri­bunal fails, a fleet op­er­a­tor or very rich driver can ap­proach the high court for re­view. The amend­ments in­clude that an in­fringe­ment no­tice on which the traf­fic of­fi­cer had made a er­ror, can be reis­sued if a driver or fleet op­er­a­tor’s writ­ten representation against the no­tice suc­ceeded.

En­forced or­der

Drivers who fail to pay fines within the pre­scribed time frames, face an en­force­ment or­der, which will be is­sued three months af­ter an in­fringe­ment no­tice has been is­sued.

An en­force­ment or­der will block drivers from ac­quir­ing a li­cence disc, driv­ing li­cence card or pro­fes­sional driv­ing per­mit un­til the fine and other fees are in full, as well as deduct points from their driv­ing li­cences.

Fleet op­er­a­tors have to name drivers of a com­pany ve­hi­cle, or face hav­ing the in­fringe­ments on the com­pany’s ve­hi­cles ap­plied against their driv­ing li­cences.

e-Toll protesters, as well as many peo­ple who are get­ting fines from ve­hi­cles with cloned plates driv­ing in Gaut­eng, should be es­pe­cially con­cerned about a pro­vi­sion in the amend­ments that will lever­age the Aarto act to en­force e-toll pay­ments.

A fine for failing to pay the e-toll ap­pli­ca­ble to a par­tic­u­lar e-toll gantry is R250 per gantry for light mo­tor ve­hi­cles and R500 for op­er­a­tor class ve­hi­cles.

There are no de­merit points ap­pli­ca­ble to a fine of R250, but there is one de­merit point ap­pli­ca­ble to a fine of R500.

Pass­ing three gantries in each di­rec­tion to and from work each day in a light mo­tor ve­hi­cle or mo­tor­cy­cle will add up to some 30 gantries in a five-day week, with ac­cu­mu­lated fines of over R7 000. A truck us­ing the same route will have to pay R15 000 fines, and the driver or proxy can have their driv­ing li­cence sus­pended for 54 months at the end of that month, if they pay the in­fringe­ment no­tices.

eToll protesters face in­cur­ring these fines and en­su­ing de­merit points with no re­course to have the case tried in court.

How will this af­fect drivers

Apart from pre­sum­ing guilt, Dem­bovsky is wor­ried the amended act will turn the law’s fo­cus from mak­ing safer drivers to just fin­ing drivers to fund salaries at the RTIA, a state-owned en­ter­prise that gets over 90% of its funds from traf­fic fines.

The Aarto Amend­ment Bill has been passed by the Na­tional As­sem­bly in Par­lia­ment and is now be­fore the Na­tional Coun­cil of Prov­inces (NCOP) for fi­nal ap­proval.

Un­less cit­i­zens chal­lenge the un­con­sti­tu­tional el­e­ments in the Aarto Amend­ment Bill, it will next head to the Na­tional Coun­cil of Prov­inces for adop­tion, af­ter which it will be signed into law by the pres­i­dent, leav­ing mo­torists vir­tu­ally pow­er­less to de­fend them­selves.

“Your abil­ity to ex­er­cise your con­sti­tu­tional right to a fair trial by elect­ing to be tried in court, is to be re­moved en­tirely. If a traf­fic cop is­sues an in­fringe­ment no­tice to you, you are re­garded as be­ing guilty and im­me­di­ately con­sid­ered to be a debtor.”

PHOTO: FILE

With the SA Na­tional Taxi Coun­cil al­ready against the Aarto Amend­ment Bill, mo­torists can ex­pect more road-block­ing protests — like this one staged by eThek­wini bus drivers against un­paid wages last year — if the cur­rent pro­vi­sons of the bill are...

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