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Presentation to the Portfolio Committee on Transport

Responses to the public written submissions on the AARTO Bill [ 38-2015]

07 September 2016

INDEX

• Background • Objects of the Bill• Written Submissions on the Bill• Common issues/Divergence

Background

•The Administrative Adjudication of Road Traffic Offences Act,1998 (Act No. 46 of 1998) (the Act) seeks to promote road trafficquality by providing for a scheme that discourages road trafficcontraventions and facilitate the efficient adjudication of roadtraffic infringements.

•The Act has been in operation without the demerit points system,in the jurisdictional areas of Tshwane and JohannesburgMetropolitan Municipalities

Background (Cont.) s

• The Bill seeks to amend the Act in order to achieve efficiency and

financial sustainability of issuing authorities as well as the Road

Traffic Infringement Agency, which the Bill amends to the Road

Traffic Infringement Authority (Authority).

• The amendments identified in the Bill will assist the agency as well

as the issuing authorities to be financially stable in order to

proceed with proper implementation of the Administrative

Adjudication of Road Traffic Offences Act (“AARTO”).

Objects of the Amendment Bill

• To amend the Administrative Adjudication of Road Traffic Offences Act 1998 (Act No.46 of 1998)

• To provide for financing of the Authority by empowering the Authority through its Board to open a bank account

• To do away with the issuing of warrants by the repeal of section 21• To simplify manner of service of documents by the Introduction of

electronic method of service• To provide for the Apportionment of Penalties• To provide for Transitional provision• To provide for general provisions and consequential amendments

Written Submissions ReceivedInput 1: Received from: Wayne Paul

• Claims the Bill is flawed. AARTO Infringements send by ordinary mail are illegal

• JMPD is using this as mere revenue collection

Response

• The Bill is not flawed• Agree that in terms of AARTO service has to be by registered

mail or in person• Noted allegation made

Written Submissions ReceivedInput 2: Received from: Rowan Singh

• How will service by sms/e-mail be proven?• What happens to those without cell numbers in their names?• What happens to those without e-mails?• Electronic medium will create more opportunities for criminals to target

unsuspecting individuals

Response

• Electronic service will be proven by digitals stamp and records• Those without electronic means will be served through other means• There are protective mechanisms through digital platforms

Written Submissions ReceivedInput 3: Received from: Art Rajkumar• Objects to electronic service claiming no-one should have

access to personal phone details, including government• Government is treating infringements as revenue generator

but waste billions on corrupt, inflated tenders & unaccounted for expenditure

• AARTO is simply a way to extort money from honest, hard working people by common thieves

Response• The objectives of the AARTO is to increase road safety and

not revenue generation• Objections noted and operational implications will be

considered

Written Submissions ReceivedInput 4: Received from: Gert Lombard

• AARTO system is not operated correctly with operators fitting registration plates that do not belong to the vehicle – the system does not verify the vehicle

• Traffic authorities do not verify the legality of the registration of a vehicle or the legality of the number plate

Response

• No substantive issues on the Bill, however, he raises data integrity and verification issues related to operations

Written Submissions ReceivedInput 5: Received from: Karl Keppke

• The assumption that the electronic mail was delivered to the recipient • The challenge is that the legislation is written in such a way the recipient has to prove

the non-recipient of the message• Such poses a challenge for people who do not have financial means or skills to

defend themselves • Unscrupulous individuals might scam unsuspecting individuals • Difficulty in maintaining updated database – people change cellphone numbers on a

daily basis

Response

• the burden of proof is always on the issuing authorities, and electronic service does not disadvantage the infringer

• Procedures will be put in place to manage the updating of information provided by infringers, similar to regulation 32A of the NRTA

Written Submissions ReceivedInput 7: Received from: Anne Parsons

• Enquires why licence renewals no longer being send• This results in people being fined for late renewal• Alleges this was motivated by revenue generation• Enquires whether notices will be send by sms and whether it is

legal

Response

• Renewal licences are being send• The Bill is motivated by increasing compliance to road safety• Electronic service is legal

Written Submissions ReceivedInput 8: Received from: Gareth Edwards

• Claims electronic service is not a guaranteed, safe or reliable method of safe – he gives a number of scenarios

• Claims implementation is unconstitutional being implemented in Gauteng only

Response

• Electronic service is more reliable given the technological advancements available

• Implementation is not unconstitutional at all by being applicable in certain jurisdictions

Written Submissions Received

Input 9: Received from: Leon Combrink

• Concerned about Section 30 which removes the burden of proof from the issuer to the infringer

Response

• The burden of proof is always with the issuing authorities and the RTIA

Written Submissions ReceivedInput 10: Received from: Henk van Herwaarden

• Claims electronic service is pointless if no-one uses it• Text messaging is a ridiculous poor method of service• Payment platforms must keep information for longer to enable payments• More payments would be made if payment mechanisms were made easy

Response

• Electronic service is actually more efficient• Payment platforms will be increased – currently at more than 2000,

including SAPO, banks, retailers

Written Submissions ReceivedInput 11: Received from: Pieter Bredenkamp

• Electronic communication does not prove delivery since there is no signature confirmation

• Electronic service will open way for poor administration

Response

• Electronic service is actually the most advanced form and will in actual fact increase efficient administration

Written Submissions ReceivedInput 12: Anton Valks

• Opposes electronic service, claiming to exposing people to being scammed• Also opposes the deeming provisions of service of documents• The Bill unfairly strengthens the hand of the enforcers against infringers• All monies received from road infringement must be used to improve road safety • Motivates for a shift from speed prosecutions to serious offences such as driving under influence

and moving violations • AARTO is unconstitutional because it presumes infringers to be guilty until they prove their

innocence

Response

• Electronic service does not expose anybody, but empowers infringers to act timeously • The deeming provisions are not new, but simply add presumptions on electronic service • Bill does not unfairly disadvantage infringers• Input is in support of the funding for road safety interventions • There is nothing unconstitutional about the provision to prove innocence

Written Submissions ReceivedInput 13: Received from: Avi Jagarnath

• Raises concerns about electronic service (data integrity and verification)

• Proposes that issuing authorities should be punished more severely for non-compliance

Response

• Concerns about electronic service noted • Noted the need for issuing authorities to comply

Written Submissions Received

Input 14: Received from: Raynard Swanepoel

• Claims AARTO process takes advantage of students in need of parking space, who park in “no parking” zones due to lack of sufficient space

Response

• The law is law and must be complied with irrespective of one’s status in life

Written Submissions ReceivedInput 15: Received from: Dries Wolmarans

• Claims electronic service is inappropriate due to dependence on service provider paid to ensure delivery

• The onus of electronic service delivery should rest with the authorities

Response

• Electronic service is effective irrespective of who is responsible for it

• The authorities will have the responsibility and burden of proof for service delivery

Written Submissions ReceivedInput 16: Received from: Cosmos Ndlovu

• Suggests more emphasis on traffic officer visibility for law enforcement

• Proposes driver intervention programmes • Further proposes compulsory toll-free hotline to report non-

compliance by taxis and buses• Law enforcement should schedule operations based on hazardous

situations such as peak traffic hours

Response

• Appreciate the positive proposals made

Written Submissions ReceivedInput 17: Received from: Orlando L Edwards

• Claims electronic service is not a guaranteed, safe or reliable method of safe – he gives a number of scenarios

• Claims implementation is unconstitutional being implemented in Gauteng only

Response

• Electronic service is more reliable given the technological advancements available

• Implementation is not unconstitutional at all by being applicable in certain jurisdictions

Written Submissions ReceivedInput 18: Received from: Dintwe Mohutsioa

• Submits that the Bill is written in too much legal technical jargon that only lawyers can understand whereas it will affect all drivers

• Proposes that laws must be written in all official languages

Response

• Comment noted and appreciated

Written Submissions ReceivedInput 19: Received from: Henry DuBois

• SMS is not sufficient means to communicate given the crime and theft currently occurring

• Since authority required proof of address when registering or renewing licences, they should send registered mail

Response

• Electronic service is only being provided in addition to normal service methods

Written Submissions ReceivedInput 20: Received from: Dr Sahadew

• Does not agree with making electronic service a legal means of service

Response

• Disagreement noted.• Electronic service is the most technologically advanced

means

Written Submissions ReceivedInput 21: Received from: Arulan Pillay

• Providing for financing of Authority can lead to Issuing Authorities harassing motorists just to increase revenue

• Authority should be fully funded by Treasury – there shouldn’t be any required incentive to make traffic officers do their daily jobs

• The Bill is one-sided in favour of Authority without considering the motorist

Response

• There are protective mechanisms in the Act to protect motorists against harassment

• Noted suggestion for full Treasury funding• The Bill is actually balanced and is aimed at increasing road safety for the

benefit of all citizens

Written Submissions Received

Input 22: Received from: Zigana Bulelwa

• Proposes that government must ensure road signs are clearly visible and people not be prosecuted where there are no visible signs

Response

Suggestion noted and appreciated

Written Submissions ReceivedInput 23: Received from: Catryn Meyer

• Electronic service – what about people without cell phones and/or e-mail addresses

• Raised operational challenges relating to law enforcement

Response

• People without electronic means will be served by other means• Operational challenges not applicable to the purposes of this Bill

but noted

Written Submissions ReceivedInput 24: Received from: Cobus van der Walt

• Claims the Bill not change the situation as it is imported from Europe

• Claims it will not stop fatalities but aimed at revenue generation

Response

• There is wisdom in best practice as the system is customized for South African situation

• It is not aimed at revenue generation and with increased compliance, lives will be saved

Written Submissions Received Input by Johannesburg• Proposes deleting the words “nor the Agency” from Section

16 on Limitation of Liability in order to hold Agency accountable for damages suffered by another person as a result of Agency’s actions

Response

• Caution against removal of such Clause• The Agency is in any case exposed to and accountable for

vicarious liability as a result of its employees’ actions

Written Submissions Received Directorate Public Prosecutions KZN

• Provision for electronic service is unconstitutional because it violates an infringers right to a fairtrial

• Technology to be used is not as reliable and bulk of offenders are simply never addressed• Law enforcement is a revenue income stream for municipalities and never about road safety• Local authorities do not have the capacity to perform the most basic types of law enforcement• The new amendments will lead to an increase in corruption and litigation• Consensus among KZN prosecutors that the amendments are appalling

Response

• Nothing unconstitutional, the system is fairly implemented • Technology all actually improve data integrity • Road safety interventions will be up-scaled• Ongoing capacitation of traffic law enforcers • Proper risk assessment and mitigation plan in place• AARTO was piloted in two jurisdictions, Tshwane and Johannesburg in GP – national rollout and

to other provinces still pending

WRITTEN SUBMISSIONSSonja Matthee : Public Prosecutor – Worcester Magistrate Court

•Sec. 17 should not replace sec. 56 & sec. 341 of CPA.•Create arrangement to pay in instalments. •Sec. 18 representation should be more formal.•Sec. 22 would entail infringers walking in to request that they appear in court.•Sec. 24: Demerit systemØ Harsher penalties & dedicated prosecutors & magistratesØ Companies expect drivers to operate unroadworthy vehicles are not

fined but only drivers are punished.Ø Uniform or national fine list to be considered.

WRITTEN SUBMISSIONSResponse

•AARTO 01 & 31 would serve the same purpose as sec.56 & sec.341 Notices – NRTR 32A caters for update of addresses.•Representations are formal under AARTO as one has to fill in a prescribed form.•Sec.22: Infringers may only come to court when they are summoned (elective option or offences).•Sec.24: Points Demerit Ø Financial penalty alone would not serve as a deterrent, points demerit

would assist in changing behaviour.Ø Driving a vehicle with a suspended license is an offence (Schedule 3).Ø Infringement on an operator vehicle for unroadworthiness would create

an infringement for the owner.Ø Schedule 3 provides for standard & uniform penalties countywide.

WRITTEN SUBMISSIONSCommission for Gender Equality

Clause 1•Objection to use of phrase “Issuing Authorities (applies clauses 3 & 8).•Supports deletion of definitions of major & minor infringements.

Clause 2•Support the changes.

Clause 3: See clause 1

Clause 6•Support the changes

WRITTEN SUBMISSIONSCommission for Gender Equality

Clause 8: See clause 1•Blocking of licence disc must be removed from s.20(5)(c).•It is unconstitutional.

Clause 9•Support the changes.

WRITTEN SUBMISSIONSResponse

Clause 1• Changes do not deal with the phrase “Issuing Authorities” (this applies

clauses 3 & 8).• Supports for deletion of definitions of major & minor infringements accepted.

Clause 2• Support for the changes accepted.

Clause 3: See first bullet of clause 1 response

Clause 6• Support for the changes accepted.

WRITTEN SUBMISSIONSCommission for Gender Equality

Clause 8: See response on first bullet of clause 1•Blocking of licence disc would serve as a deterrent & ensure infringers respond. Maximum period of 12 months applies•All administrative processes would have been followed before enforcement order is authorized.

Clause 9•Support of the changes accepted.

WRITTEN SUBMISSIONS

Niel Lowrens: TMT Services•Definition of date of service to be deleted.

•Manner of serving must be made as wide as possible.

•Electronic service is supported.

•All forms of service methods must be retained.

•Penalty clause in sec.32 must also apply to the Agency.

WRITTEN SUBMISSIONS

Niel Lowrens: TMT Services

Response

•Date of Service: Agree with the proposal however the definition must be expanded to take into considerations the manner of service (date stamps, presumption clause).•Support of electronic service appreciated.•Bill anticipate to add other forms of service to existing methods.•Extension of penalty clauses to RTIA is welcomed.

WRITTEN SUBMISSIONS

Adv. Bradley Smith : National Prosecution Authority

Clause 1(d)

• Deletion of definition of “date of service”.• Notification to an infringer about accumulated demerit points

through registered mail must be amended.• Return of service & presumption is not supported.• Electronic service & postage recommended (high cost of

registered mail) but may also be unreliable.

WRITTEN SUBMISSIONS

Adv. Bradley Smith : National Prosecution Authority

Clause 3(a) & Clause 4

• Agency has to have finance even before they may receive monies from penalties.

• Amount or percentage of fines to be withheld by Agency.• Service delivery maybe compromised.• Accruing of interest is undesirable.• Expenditure regarding rebranding.

WRITTEN SUBMISSIONS

Adv. Bradley Smith : National Prosecution AuthorityResponse

• Date of Service: Agree with the proposal however the definition must be expanded to take into considerations the manner of service (date stamps, presumption clause).

• Agreed as it is consequential amendment.• Return of service on electronic service has been accepted by

the courts already. ECT Act covers this aspect.• Alternative forms of service are catered for & re-service of

documents is also recommended.

WRITTEN SUBMISSIONS

Adv. Bradley Smith : National Prosecution Authority

Response• Agency has to come up with ways of investing money & retaining

surplus for such cases.• The amounts would be prescribed by Minister. • Municipalities would receive the monies due on a monthly basis &

collection of penalties would increase.• Interest is minimal & RTIA uses it to service bank charges for the

National AARTO Bank Account.• Expenditure in rebranding is not exorbitant & maybe done over a

longer period.• Amendments covers all forms of service in cases where infringers

do not have electronic means.

Common Issues/ Divergence

• General concurrence and support on the Bill however there are divergent views on implementation

• Concurrence on the need for a modern traffic management system

• Utilisation of law enforcement as a revenue generation mechanism for local authorities

• Concerns about the reliability of notification of infringement notices by SMS and emails

• Lack of capacity in the local authorities

• Lack of fixed and updated addresses/ data integrity

Ends

THANK YOU