In August 2019, President Cyril Ramaphosa signed the controversial Administrative Adjudication of Road Traffic Offences (AARTO) Amendment Act no 4 of 2019 (“the Act”) into law. The new AARTO Amendment Act has been met with a great deal of opposition, many alleging that the Act will not pass the test of constitutionality.
Due to the controversial nature, the Act is not yet in full effect and the public are still challenging provisions of the Act, but it is important to know the applicability and consequences of the new Act.
WHAT’S NEW?
Some of the key implications for vehicle owners, drivers and operators are as follows:
A demerit system is introduced whereby you are allocated demerit points when committing a traffic infringement;
Your driver’s licence will be suspended if you reach the maximum points (12 points) allowed in terms of the demerit system;
If your licence has been suspended three times, your licence will be confiscated and you will need to re-apply for your driver’s licence;
Failure to adequately respond to an infringement notice or courtesy letter will result in the authorities not issuing a permit, driver’s licence or licence disc until the penalty is paid or revoked;
Notices can be sent electronically as well as by registered mail;
Law abiding behaviour will reduce a road user’s demerit points.
PENALTY PROCESS
Once you have committed a traffic violation/ infringement you will receive an Infringement Notice. After 32 days, a Courtesy Letter will be sent to you. Should you not respond to the Courtesy Letter, after a further 32 days, you will be served with an Enforcement Order.
Should you fail to pay the penalty in terms of the Enforcement Order, a Warrant of Execution will be served on you, and after 7 (seven) days, the Warrant may be executed.
Infringement Notice/ Courtesy Letter: On receiving, via registered mail or served in person, a ticket (formally called an Infringement Notice), or a Courtesy letter, you have 32 days in which to exercise one of the following options:
Pay a discounted penalty;
Make a representation to the Road Traffic Infringement Agency (“RTIA”);
Arrange to pay in monthly instalments;
Nominate the driver of the vehicle;
Elect to be tried in court.
Demerit points will only be allocated once an infringer complies with an Infringement Notice by paying the penalty.
Appealing or objecting to an Infringement Notice must be done by written representation to RTIA, and if unsuccessful an appeal may to be lodged with RTIA’s tribunal.
You will be unable to renew your driver’s licence, licence disc or professional driver’s permit if an Infringement Notice has been issued against you.
Enforcement Order: If you do not respond to the Courtesy Letter, you will be served with an Enforcement Order. Demerit points will be allocated and recorded against your name. Once the Enforcement Order is served, you do not have any of the previous options available to you. The only options available are to:
Pay the penalty as well as the fees for the Courtesy Letter and Enforcement Order within 32 days from the date the Enforcement Order was served on you;
Apply for revocation of an Enforcement Order.
Warrant of Execution: If you do not respond to the Enforcement Order, a Warrant of Execution will be issued and handed to a Sheriff for immediate execution. The Warrant may allow the Sheriff to:
Seize and sell your movable property to defray the penalty, fees and cost applicable;
Seize and deface the endorsement on your driving licence;
Remove and deface the licence disks of all your vehicles;
If applicable, seize and deface the operator cards of all the vehicles for which you are the registered operator;
Immobilise all your vehicles.
The following are a few common traffic violations together with the demerit points allocated to the violations by the Act:
Traffic Violation Demerit penalty
Driving while holding your cell phone. 1 demerit
Driving without a license. 4 demerits
Driving in excess of 16-20kmph over the speed limit. 1 demerit
Driving in excess of 21-25kmph over the speed limit. 2 demerits
Driving in excess of 26-30kmph over the speed limit. 3 demerits
Driving in excess of 31-35kmph over the speed limit. 4 demerits
Driving in excess of 36-40kmph over the speed limit. 5 demerits
Driving in excess of 40kmph over the speed limit. 6 demerits, together with
criminal prosecution
Driving and/or sitting in the driver’s seat while the engine is 6 demerits, together with running, while under the influence of an intoxicating criminal prosecution substance.
IMPACT OF THE AARTO AMENDMENT ACT ON EMPLOYERS
Once the AARTO Act commences, employers will need to ensure that their drivers have valid driver's licenses. For drivers whose licenses are suspended or cancelled, employers must ensure that such employees do not drive. Naturally, this will impact on the employer's operations. This may have an impact on employers, not only who employ drivers in that specific role, but an employer who employs any persons required to drive from time to time. This may further affect an employee’s ability to travel to and from work.
In circumstances where the employee's license is cancelled, the employer may be able to institute incapacity proceedings against the employee, should they no longer be able to carry out their duties.
Before the AARTO Amendment Act comes into full effect, employers who make use of drivers as employees are advised to review their current workplace policies and terms and conditions of employment. Employers should have in place suitable processes to deal with drivers who are essentially disqualified from, and unable to perform their work due to their driver's licenses being suspended or cancelled.
Although the full application of the Act is still to be confirmed, it is important to familiarise yourself with the processes to be put in place as to avoid having your driver’s licence suspended, which may significantly hinder your ability to work and/or may significantly affect your business should any of your employees’ driver’s licences be suspended.
For further assistance or queries contact emily@kernattorneys.co.za or call 010 109 1055 to set up a consultation.
image: RTMS Website