AARTO: ROAD USERS RIGHTS AND OBLIGATIONS
BACKGROUND INFORMATION / ABSTRACT
The Administrative of Road Traffic Offences Act, No. 46 of 1998, (AARTO), which was approved by Parliament in 1998, will enter into force on 1 February 2008 [ if specific conditions are in place] in the magisterial district of Tshwane on a pilot basis for a period of 7 months. Thereafter the system will be rolled-out on a national basis.
The objectives of AARTO are, amongst others : to encourage the payment of penalties imposed for infringements; to establish a procedure for the effective and expeditious adjudication of infringements; with the purpose to encourage compliance with the national and provincial laws and to alleviate the burden on the courts of trying offenders for infringements. AARTO further aims to penalise drivers and operators who are guilty of infringements or offences through the imposition of demerit points leading to the suspension and cancellation of driving licences, professional driving permits or operator cards.
AARTO further imposes certain rights and obligations on drivers. These include : payment of fines within 32 days, which will result in a substantial discount; submit an application to make payments in installments; submit a representation for consideration; provision of the name, ID number and contact detail of the driver of the vehicle if the owners was not the driver at the time of the offence; or elect to follow the court procedure. Upon payment of a fine, demerit points applicable to the particular offence, would be allocated and recorded against the name of the Infringer.
Should the alleged offender fail to carry out any of the available options within a period of 32 days, certain follow-up procedures would follow and more stringent measures put in place. If the case is not successfully resolved after a period of 64 days, more drastic steps would be taken, which could result in the attachment of property to pay the original penalty and defray costs.
The purpose of this paper is to explain how the system will work and impact on road users; provide some of the standardised fines and demerit points for some critical offences; as well as to briefly provide certain rights and obligations in this regard.
One of South Africa's greatest challenges is to reduce the carnage on our roads significantly. The fact that more than 90% of all road accidents are preceded by a road traffic offence, makes the improvement of road-user perceptions, attitudes and behaviour a matter of urgency. The challenge of a high rate of non-compliance with traffic regulations, coupled with a continuous downward trend in the finalization of offences and a judicial system that is unable to effectively deal with traffic infringements, must be dealt with absolute priority.
The present system of fine collection is totally inadequate. Fines are either not paid, or are substantially reduced by the magistrates; or bribes are paid to get off the fine altogether. In some areas courts will only accept the hearing of a limited number of traffic violations, which is detrimental to the necessary successful conclusion of all traffic-related cases. Currently less than 20% of traffic cases are finalised and the fines paid. Two of the most important catalysts in effecting an improvement in driver behaviour and law compliance are well planned, efficient and effective law enforcement, coupled with and supported by an equally effective and just road traffic adjudication system.
The current adjudication process, which results in many traffic notices not being considered by the courts and left un-concluded, de-motivates traffic officers. All traffic contraventions in terms of the provisions of the National Road Traffic Act (NRTA), 1996 (Act No 93 of 1996) and its Regulations are currently being administered in terms of the Criminal Procedure Act, 1977 (Act No 51 of 1977). Most of the bigger traffic departments are operating some sort of Local Traffic Contravention Management System (LTCMS), such as Trafman, TCS, Cyprus or an own, customised developed system for the recording and administration of offences in this regard. There is currently no national road traffic contravention register in place. A system that will support the successful conclusion of each and every notice issued, should serve as motivation for traffic officers to undertake their task with more vigour.
The Administrative of Road Traffic Offences (AARTO) Act, No. 46 of 1998, which was approved by Parliament in 1998 was, amongst others, created with the view to forge a closer and more effective and efficient link between enforcement and the adjudication process, yet which is still objective, transparent and fair. AARTO brings with it parity of fines which will encourage the road using public to take traffic offences and resulting fines much more seriously. It also brings with it improved fine collection procedures and a revenue stream that will be used for improving road safety; as well as more convenient ways of paying fines and more penalties for not paying within the prescribed time, eventually leading to confiscation of movable property and ultimately to being declared unfit to operate a motor vehicle.
The purpose of the Act is to promote quality, safety and discipline in road traffic by providing for a scheme to discourage road traffic contraventions, to facilitate the adjudication of road traffic infringements, to support the prosecution of offences in terms of the national and provincial laws relating to road traffic, and implement a points demerit system; to provide for the establishment of an agency to administer the scheme; to provide for the establishment of a board to represent the agency; and to provide for matters connected therewith.
The objects of the Act therefore are, despite the Criminal Procedure Act, 1977 (Act No. 51 of 1977) :
(a) to encourage compliance with the national and provincial laws and municipal by-laws relating to road traffic and to promote road traffic safety;
(b) to encourage the payment of penalties imposed for infringements and to allow alleged minor infringers to make representations;
(c) to establish a procedure for the effective and expeditious adjudication of infringements;
(d) to alleviate the burden on the courts of trying offenders for infringements;
(e) to penalise drivers and operators who are guilty of infringements or offences through the imposition of demerit points leading to the suspension and cancellation of driving licences, professional driving permits or operator cards;
(f) to reward law-abiding behaviour by reducing demerit points where they have been incurred if infringements or offences are not committed over specified periods;
(g) to establish an agency to support the law enforcement and judicial authorities and to undertake the administrative adjudication process; and
(h) to strengthen co-operation between the prosecuting and law enforcement authorities by establishing a board to govern the agency.
At a meeting held with the Minister of Transport on Monday, 6 March 2007, it was decided that the AARTO Act must be implemented during 2007. It was further agreed that an AARTO pilot project would be introduced from 1 September 2007 in a specific geographical area to test the functionality of the system, forms and procedures. The system will be rolled-out nationally from 1 April 2008.
2. COMMITTING TRAFFIC OFFENCES AND INFRINGEMENTS
In accordance with the Administrative Adjudication of Road Traffic Offences Act, No. 46 of 1998 (AARTO), if a person commits a road traffic violation in terms of the National Road Traffic Act, No. 93 of 1996, such violation will be categorised as follows:
- A traffic offence; or
- A minor infringement; or
- A major infringement.
A traffic offence is regarded as a very serious violation of the law, which warrants a major sentence on conviction, such as imprisonment, or a substantial monetary fine, or both. Traffic offences will therefore still be dealt with in terms of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), which means an offender will be arrested, charged and the case will be placed on the role for a hearing in court.
Minor and major infringements mean offences categorised as such in terms of section 29(a) of the AARTO Act, detail of which is provided in the Regulations.
Traffic infringements will be dealt with in accordance with the administrative procedures, as prescribed in the AARTO Act. If a person is alleged to have committed an infringement, the traffic officer will issue an Infringement Notice. Infringement Notices will initially be written by hand while electronic notices; generated by means of hand-held computers used by traffic officers at the roadside, will be phased in over a period of time. In the case of so-called camera infringements, for example exceeding the speed limit and ignoring traffic signals; Infringement Notices will be electronically generated by the National Traffic Information System (NaTIS), and served on the Infringer by registered mail.
On receiving through either registered mail, or being served in person with an Infringement Notice, an alleged Infringer has several choices that he or she should comply with within a period of 32 days after having received such notice. These choices are the following:
(a) in the case of a minor infringement, pay the penalty and qualify for a substantial discount, or make representations to the Agency; or
(b) in the case of a major infringement, pay the penalty and qualify for a substantial discount (in this case no representations may be made); or
(c) make arrangements to pay the penalty in monthly installments; or
(d) identify the person who was the driver of the vehicle at the time when the offence or infringement was committed; or
(e) elect to be tried in court.
Failure by the alleged Infringer to exercise any of the above options within the prescribed time of 32 days, the following steps will be taken:
(a) A Courtesy Letter will be served on the alleged Infringer, requesting that either payment be made or to exercise any of the other options provided, within a further period of 32 days. In such case the discount will no longer be applicable, and the Infringer will have to pay the full penalty plus an additional fee for the letter.
(b) Should the Infringer still fail to respond to the letter, an Enforcement Order will be served. The Order will demand that payment must be made within yet a further period of 32 days, and in which case the discount will no longer be applicable and the Infringer will have to pay the full penalty plus an additional fee for the letter as well as an additional fee for the order. Once an Enforcement Order is served, none of the other options provided will be valid any longer.
(c) Should the alleged Infringer again fail to satisfactory respond to the Order, a Warrant will be served and handed to a Sheriff for immediate execution. Such execution will include:
(i) seizing and selling of movable property of the Infringer to defray the penalty, all applicable fees and cost; and
(ii) seizing and defacing of the driving licence and/or professional driving permit of the Infringer; and
(iii) removing and defacing of the licence disc of the motor vehicle/s of which the Infringer is the owner; and
(iv) if applicable, seize and deface the operator card of the motor vehicle/s of which the Infringer is the registered operator; and
(v) immobilising such vehicle/s of which the Infringer is the owner; and
(vi) reporting the Infringer to a credit bureau.
The AARTO process is schematically represented in Annexure A hereto and the individual steps in the process are discussed in more detail below.
3. COMPLYING WITH AN INFRINGEMENT NOTICE BY PAYING THE PENALTY
Infringers may comply with an Infringement Notice by paying the penalty, as reduced by the discount amount shown on the Infringement Notice, to the issuing authority within a period of 32 days. Regardless the place of issue, payments can be made in the following manner:
(a) at any Post Office in the country; or
(b) at any ATM of a bank with which an agreement for this purpose has been concluded by the Agency; or
(c) posted by registered mail or delivered by courier services, a postal order or a bank guaranteed cheque in a clearly marked envelope.
Arrangements may be made with the Agency to pay the penalty in installments, in which case the procedure described under 4(b) below must be followed. Upon approval of such arrangements, the same payment procedures as described above, will be applicable.
On receipt of such payments the Agency will:
(a) Record the payment received and allocate the applicable demerit points for the specific infringement against the name of the Infringer in the contraventions register on NaTIS; and
(b) Notify the Infringer by registered mail:
(i) of the number of demerit points allocated for the specific infringement; and
(ii) the total number of demerit points accumulated to date; and
(iii) the number of points left before his or her driving licence, professional driving permit or operator card will be suspended or cancelled.
4. COMPLYING WITH AN INFRINGEMENT NOTICE BY SUBMITTING A REPRESENTATION OR APPLICATION, PROVIDING INFORMATION OR NOTIFICATION
Infringers may further comply with an Infringement Notice by submitting a representation or application, or informing or notifying the Agency, in the prescribed manner, within a period of 32 days after being issued in person or receiving the Infringement Notice by registered mail, on the following:
4.1 Representations :
Submit a Representation, only in the case of a minor infringement, to the Agency. Such Representations are made by submitting a sworn statement or affirmation indicating the existence of reasonable grounds why the Infringer should not be held liable for the penalty payable in terms of the Infringement Notice. The Agency will forward such Representations to an independent Representations Officer for consideration. The Representations Officer will :
(i) duly consider the Representation;
(ii) may conduct an independent investigation to verify facts;
(iii) may allow the Representation, if there are reasonable grounds indicating why the infringer should not be held liable for the penalty; or
(iv) may reject the Representation if no reasonable grounds for allowance could be found. In this regard it should be noted that a penalty cannot be reduced, a Representation is either allowed or rejected. If the Representation is:
(i) Allowed: On such notification by the Representations Officer, the Agency will cancel the Infringement Notice and inform the Infringer accordingly of the decision; or
(ii) Rejected: The Representations Officer will :
(i) provide reasons for the decision, and
(ii) may further advise that the Infringer may elect to be tried in court. The Agency will notify the Infringer of the decision/s of the Representations Officer by registered mail, upon receipt of which the Infringer :
(i) may elect to be tried in court (only if so recommended by the Representations Officer), and in which case the procedure under 4(c) below must be followed by the Infringer, or
(ii) must pay the penalty in full, plus the prescribed fee for the Representation plus the prescribed fee for the Courtesy Letter, if any, within 32 days; or
(iii) apply for payment of the penalty in installments within 32 days, in which case the procedure under 4(b) below must be followed by the Infringer; or:
4.2 Pay in Installments :
Submit an Application to the Agency that payments be made in monthly installments. The Agency will investigate the credibility of the Infringer and inform him or her of the outcome and the monthly installments to be paid, should the Application be granted. The first instalment has to be paid within 32 days after receipt of the approval by the Infringer. Should the Application not be granted, the Infringer must pay the full penalty within 32 days after receipt of such notification plus the prescribed fee for the application. The discount are not applicable to payments made in installments or once an application has been received and recorded; or
4.3 Identification of Driver :
Provide information, to the satisfaction of the Agency that he or she was not the driver of the motor vehicle at the time of the alleged infringement, together with the full name, acceptable identification; as well as residential and postal addresses and telephone numbers of the alleged driver or person in control of the vehicle at the time of the infringement. In such cases the Agency will cancel the original Infringement Notice and serve a second Infringement Notice per registered mail to the person so identified. Should such identified Infringer fail to respond in the prescribed manner within 32 days, the original Infringement Notice will be reinstated and the first Infringer will become liable to pay both the penalty and the prescribed fee of the Courtesy Letter to be issued in such a case; or:
4.4 Elect to follow Court Procedure :
Notify the Agency of his or her intension to follow the court procedure. In such cases the Agency will cancel the Infringement Notice and instruct the issuing authority to issue a summons to the alleged Infringer to appear in court, which will be posted by registered mail.
In addition to the penalty amount to be paid, prescribed fees will payable by the Infringer for the above Representations, if rejected, and Applications. The discount on the penalty is not applicable to nay of the above options.
The prescribed forms on which such Representations or Applications, Information on drivers or Notifications is to be provided are obtainable as follows:
(a) At any traffic authority; vehicle registration and licencing office or driver testing and licencing centre; and
(b) Downloadable from the Internet website of the Agency; and
(c) Will be faxed on request.
5. COURTESY LETTERS
If an infringer has failed to comply with an Infringement Notice as described under 2 or 3 above, the Agency will issue a Courtesy Letter and serve it on the Infringer by registered mail. Such Courtesy Letter will inform the Infringer that:
(a) He or she has failed to comply with the requirements of the Infringement Notice; and
(b) He or she must, within a period of 32 days after receipt of the Courtesy Letter:
(i) pay the penalty; as well as the prescribed fee for the Courtesy Letter in terms of 3 above; or
(ii) in the case of a minor infringement, submit a Representation to the Agency in the manner described under 4(a) above; or
(iii) apply to make payments in installments in terms of 4(b) above; or
(iv) notify the Agency in the manner described under 4(d) above if he or she elects to be tried in court; and
(c) Failure to comply with the above requirements of the Courtesy Letter within the time permitted, will result in the issuing of an Enforcement Order.
Should the Infringer exercise more than one of the options provided under 5(b) above, and such options include 5(b)(i) and/or 5(b)(iii) – to pay the penalty, the matter will be concluded without consideration of any of the other options.
Without following the issuing of an Infringement Notice, Courtesy Letters will be automatically generated by NaTIS and served on Infringers by registered mail for the following infringements after expiry thereof and the prescribed grace period lapsed:
(a) Failure to renew a vehicle licence; and
(b) Failure to renew a driving licence card or professional driving permit; and
(c) Failure to submit a vehicle for a compulsory roadworthiness test within the prescribed time frame.
In addition to the applicable fees payable in the above cases, a fee for the Courtesy Letter will be applicable.
Notices will be issued in the following cases:
(a) If an Infringer makes an insufficient payment; or
(b) The cheque used for payment is dishonoured, or
(c) If an Infringer who has made arrangements to pay a penalty in installments, fails to pay such installments or makes an insufficient payment on an instalment or the cheque used for payment of that instalment is dishonoured.
In the case of :
(i) an insufficient payment; or
(ii) the cheque used for payment is dishonoured, the Infringer will be notified that:
(a) The full amount owed, including the prescribed fee for the Notice, must be paid within 32 days of service of the Notice; and
(b) Failure to comply with the Notice will lead to a Warrant being issued against him or her.
In the case where the Infringer fails to pay the penalty in installments as arranged, or makes an insufficient payment on an instalment, or the cheque used for payment of that instalment is dishonoured; the Infringer will be notified that:
(a) The outstanding balance of the instalment, including the fee for the Notice,
(i) must be paid within 7 days of service of the Notice; or
(ii) that arrangements must be made within that time for the payment thereof; and
(b) Any payment referred to in (a) above must be made as arranged and that subsequent instalments must be paid as originally arranged; and
(c) Failure to comply with the Notice will lead to a Warrant in respect of the full amount owed being issued against him or her.
7. ENFORCEMENT ORDERS
Enforcement Orders will be issued if an Infringer has failed to comply with:
(a) The requirements of a Courtesy Letter; or
(b) The requirements of a Notice, or
(c) Has failed to appear in Court, either :
(i) following a traffic offence, or
(ii) after specifically electing to be tried in court.
In such cases the following steps will be taken and accordingly recorded in the contraventions register on NaTIS:
(a) Issue an Enforcement Order and serve it by registered mail on the Infringer; and
(b) Automatic allocation of the demerit points incurred by the Infringer for the offence or infringement.
The Infringer will simultaneously be notified of the following:
(a) The number of demerit points that have been allocated and recorded against his or her name; and
(b) The total number of demerit points accumulated to date; and
(c) The number of points left before his or her driving licence, professional driving permit or operator card will be suspended or cancelled.
The Enforcement Order served on the Infringer will:
(a) Require payment of the penalty in full, plus Representation fees and the fee of the Courtesy Letter, if any, as well as the prescribed fee of the Enforcement Order within a period of 32 days of the date of service of the Order; and
(b) State that a failure to comply with the requirements of the Enforcement Order within 32 days will result in a Warrant being issued to recover the applicable penalty and fees.
Until such time as an Infringer has paid the penalty and the additional fees as required in terms of an Enforcement Order, no:
(a) Driving licence; or
(b) Professional driving permit (PrDP); or
(c) Vehicle licence disc;
will be issued to an Infringer or in respect of a motor vehicle which is registered in the name of the Infringer until such Enforcement Order has been complied with or has been revoked.
8. REVOCATION OF AN ENFORCEMENT ORDER
An Enforcement Order will be revoked if:
(a) The Infringer applies to the agency in the prescribed manner and submits satisfactory reasons why an Enforcement Order must be revoked; or
(b) The issuing authority applies in the prescribed manner for a revocation of the enforcement order.
If an Enforcement Order is revoked:
(a) Its consequences will be cancelled; and
(b) The national contraventions register on NaTIS will be updated; and
(c) The Infringer will be informed accordingly; and
(d) His or her driving licence, professional driving permit or operator’s card will be issued or returned, unless he or she has been disqualified otherwise.
If an Infringer does not comply with the provisions of an Enforcement Order within 32 days after issuing thereof, a Warrant will be issued and handed to a Sheriff for execution, which will include:
(a) Seizing and selling of movable property of the Infringer to defray the penalty, fees and cost; and
(b) Seizing and defacing of the driving licence and/or professional driving permit of the Infringer; and
(c) Removing and defacing of the licence disc of the motor vehicle/s of which the Infringer is the owner; and
(d) If applicable, seize and deface the operator card of the motor vehicle/s of which the Infringer is the registered operator; and
(e) Immobilising such vehicle/s; and
(f) Reporting the Infringer to a credit bureau.
An Infringer may, at any time prior to the execution of a Warrant, comply with an Enforcement Order through the payment of the penalty and all applicable fees, including the prescribed cost of the Warrant, in which case the Warrant will not be executed.
If a Warrant has been executed, the payment of the penalty and fees from the proceeds of the execution will be recorded in the national contraventions register.
10. ALLOCATION OF DEMERIT POINTS
A person, who has committed an offence or an infringement, incurs a number of demerit points ranging from 1 to 4 for any one offence or infringement committed, depending on the seriousness thereof. An example of demerit points, including penalties and discounts for some infringements, are attached under Annexure B. Demerit points are incurred on the date on which the penalty and fee, if any, imposed for the infringement are paid, an enforcement order is issued or the infringer is convicted of the offence in court.
If a person has committed two or more infringements, or is convicted by a court of two or more offences arising out of the same circumstances, demerit points are recorded only in relation to one such infringement or offence, being the infringement or offence to which the highest number of demerit points applies. The demerit points in respect of offences or infringements by operators and drivers are recorded separately even if they arise out of the same circumstances.
If a person appeals against a conviction by the court for an offence no demerit points are recorded unless the appeal is rejected or abandoned in which case demerit points are incurred in the prescribed manner.
11. REDUCTION OF DEMERIT POINTS
If demerit points have been incurred by an Infringer, such total number of points as recorded in the national contraventions register on NaTIS against that person will be reduce with one (1) point for every three (3) months during which no demerit points were incurred by that person, except for the time the court found that the court process had been deliberately delayed by that person to obtain a reduction in points.
12. PROHIBITION ON DRIVING OR OPERATING MOTOR VEHICLE
If a person incurs demerit points which, when added to the points previously recorded against that person in the national contraventions register on NaTIS, exceeds a total of twelve (12), that person will be disqualified from driving or operating a motor vehicle. The disqualification period equals in months the number of points by which the total of twelve (12) is exceeded, multiplied by three (3).
A person who is so disqualified:
(a) Must immediately hand in any driving licence or professional driving permit to the issuing authority for retention by such authority during the disqualification period or must remove the prescribed operator card from the vehicle in applicable cases; and
(b) May not apply for a driving licence, professional driving permit or operator card during the disqualification period.
Any person who drives or operates a motor vehicle during his or her disqualification period is guilty of an offence and liable on conviction to a fine or imprisonment for a period not exceeding one (1) year or to both a fine and such imprisonment.
Upon expiry of his or her disqualification period, a person may apply to the issuing authority to return his or her driving licence or professional driving permit or to reissue an operator card.
13. CANCELLATION OF A DRIVING LICENCE, PROFESSIONAL DRIVING PERMIT OR OPERATOR CARD
A person who incurs demerit points resulting in a disqualification to drive or operate a motor vehicle for a third (3rd) time, must immediately hand in his or her driving licence, professional driving permit or operator card issued in respect of that vehicle to the issuing authority. Upon receipt of such a driving licence, professional driving permit or operator card, as the case may be, the authority will take the necessary steps to destroy such licence, permit or card.
Upon expiry of his or her disqualification period, a person may reapply for and be issued with a driving licence, professional driving permit or operator card in terms of the applicable road traffic laws.
The procedures, as provided for in the AARTO Act and briefly described above, provide for a transparent, fair and effective system to manage and control road traffic offences and infringements, and should contribute to a large extent to:
(a) promote quality, safety and discipline in road traffic by providing for a scheme to discourage road traffic contraventions,
(b) facilitate the adjudication of road traffic infringements,
(c) support the prosecution of offences in terms of the national and provincial laws relating to road traffic, and implement a points demerit system; and
(d) effect a reduction in road fatalities and injuries.
Information provided by Gerrie Botha
Director : Research and Development
Road Traffic Management Corporation, Pretoria, South Africa
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