On 13 August 2019, the President signed the Administrative Adjudication of Road Traffic Offences Amendment Act 4 of 2019 (AARTO Amendment Act). The AARTO Amendment Act contains important amendments to AARTO, shifting from the default system of judicial enforcement of traffic laws through criminal law to a compulsory system of administrative enforcement of traffic laws through administrative tribunals, administrative fines and demerit points system, including the introduction of the concept of habitual infringer and serving legal process via email. 

The effect of AARTO and AARTO Amendment Act is that if you accumulate enough points in terms of the points-demerit system, the only ticket you will be receiving will be suspension or cancellation of your driver’s license.

Constitutional Challenge

On 13 January 2022, the Pretoria High Court handed down its judgment in the constitutional challenge  brought by the civil action organisation and non-profit company named Organisation Undoing Tax Abuse (OUTA) against the Minister of Transport, Minister of Co-operative Governance and Traditional Affairs, Road Traffic Infringement Authority (the Authority) and the Appeals Tribunal (the Tribunal), respectively.

Important to note is that the challenge did not concern the desirability of the legislation which provides for a penalty system for drivers who are guilty of traffic infringements or offences through the imposition of demerit points. In this matter, the court was called upon to decide whether the national government had the legislative competence to legislate on matters relating to provincial roads or traffic or in relation to parking and municipal roads at local level and whether the two aforementioned Acts violated the exclusive provincial legislative competence conferred upon provincial and local government in terms of section 44(1)(a)(ii) of the Constitution. In short, the question was whether the national government trespassed on the narrow constitutional areas over which the national government has no legislative or executive power.

OUTA submitted that the two Acts were inconsistent with the Constitution of South Africa, as:

1. The AARTO and AARTO Amendment Act took control of the exclusive legislative authority of the provincial legislatures by regulating road traffic and creating a sole national system, whereas the provincial, and municipal road and traffic regulations falls within the exclusive legislative competence of the provinces (Schedule 5, Part A and B of the Constitution).
2. The AARTO and AARTO Amendment Act took control of exclusive executive competence of local government (Schedule 5, Part B of the Constitution) to enforce traffic and parking laws at municipal level.

Overlapping of powers

Governmental power is distributed between national, provincial and local spheres of government and each executive competency of each of these spheres of government are identified and listed in Schedule 4 and 5 of the Constitution. In some areas, the national and provisional spheres of government have concurrent legislative competence (for instance “road traffic regulation”), while in others, provinces have exclusive legislative competence (provincial roads and traffic) or municipalities have exclusive executive authority (traffic and parking” and “municipal roads).

In the matter Johannesburg Metropolitan Municipality v Gauteng Development Tribunal and Others 2010 (6) SA 182 (CC), one of numerous judgments confirming the position, the Constitutional Court held that the executive power conferred exclusively on municipalities and provincial government may not be encroached upon by national legislation. One of the reasons for this (as stipulated by the Constitutional Court in Tronox KZN Sands (Pty) Ltd v Kwazulu-Natal Planning and Development Appeal Tribunal and Others 2016 (3) SA 160 (CC)), is that municipalities are best suited to make planning decisions as they are localised decisions which should be based on information which is readily available to them.

Where the Constitution confers functional areas regarding the same issue to different spheres of government, the functional areas should be interpreted based on what is appropriate in the different spheres. In resolving the issue relating to allocation of powers to the different spheres and to determine what is appropriate, regard should be given to the historical power allocation. The argument is that if power has traditionally been conferred to a municipality, then the power to enforce traffic laws should be dealt with on a municipal level.

In was also contended that the Schedule 4 functional competences should be interpreted as being distinct from and as excluding those competences listed in Schedule 5. The aforesaid was referred to as the “bottom-up” approach requiring carving out those listed competencies tarting from the bottom of the hierarchy and working up to the provincial and national sphere. In the Ex Parte President of the Republic of South Africa: In re Constitutionality of the Liquor Bill2000 (1) SA 732 (Liquor Bill) the approach was explained:

“[55] But the exclusive provincial competence to legislate in respect of ‘liquor licences’ must also be given meaningful content and as suggested earlier, the constitutional scheme requires that this be done by defining its ambit in a way that leaves it ordinarily distinct and separate from the potentially overlapping concurrent competences set out in Schedule 4.

[58] The structure of the Constitution, in my view, suggests that the national government enjoys the power to regulate the liquor trade in all respects other than liquor licensing. For the reasons given earlier, this, in my view, includes matters pertaining to the determination of national economic policies, the promotion of inter­ provincial commerce and the protection of the common market in respect of goods, services, capital and labour mobility.”

It is important to note that competencies which resort under exclusive legislative and executive competence of municipalities must first be carved out and thereafter the competencies upwards.

In respect of Schedule 5, the national legislature may, in the event of a possible conflict between the competencies, only encroach upon the exclusive legislative competencies listed in Schedule 5 under section 44(2) of the Constitution. However, national government may do so “in exceptional circumstances of compelling public interest but only in as far as it is “necessary’’ to do so to maintain national security; to maintain economic unity; to maintain essential national standard; to establish minimum standards required for the rendering of services; or to prevent unreasonable action taken by a province which is prejudicial to the interests of another province or to the country as a whole”.

Lastly, the court considered whether the offending provisions of the two Acts could be severed, to prevent both Acts in their entirety being declared unconstitutional. In this regard, the court held that once the provisions relating to provincial roads or provincial traffic law infringements or any provisions relating to municipal road, traffic or parking by-law infringements were removed, the remaining provisions would not be able to give effect to the main objective of the statute, which is to create a single, national system for administrative enforcement of road traffic laws.

Conclusion

The High Court concluded that the AARTO and AARTO Amendment Act unlawfully intrude upon the exclusive executive and legislative competence of the local and provincial governments, respectively and as such, the two Acts are inconsistent with the Constitution. The declaration of constitutional invalidity would still have to be confirmed by the Constitutional Court and according to reports in the media, the Minister of Transport intends to take the judgment on appeal.

For now, map out the road but do it in pencil.