The fight against South Africa’s “unconstitutional” road laws

South Africa’s new Administrative Adjudication of Road Traffic Offences (AARTO) Act is expected to be in full effect from June next year (2020), bringing major changes to the way traffic offences are policed.

These new road laws could have some major issues, however, especially when it comes to the prosecution of drivers who have committed traffic offences.

Justice Project South Africa chairperson Howard Dembovsky has brought litigation in his personal capacity against the AARTO act as it stands now, prior to the AARTO Amendment Act which is not yet enacted.

Dembovsky argues that the new road laws are inherently unconstitutional and the Amendment Act serves to exacerbate these problems.

The AARTO Act has been criticised by many, including the AA, for being designed to make money from South African motorists.

Constitutional conflict

Dembovsky told MyBroadband that his litigation argued that the AARTO Act, and the Amendment Act, are built on a foundation of the presumption of guilt.

“It reverses the onus of the burden of proof, as well as imposing a duty on an alleged infringer to act, failing which he, she or it will have prejudices imposed on him, her or it,” Dembovsky told MyBroadband.

“This is entirely inconsistent with Sections 33(1) 35(3) of the Constitution of the Republic of South Africa, 1996.”

“It does this by requiring the alleged infringer to act on infringement notices and courtesy letters. Should an alleged infringer fail to act, regardless of whether he, she or it has received the infringement notice and/or courtesy letter, an enforcement order will be issued,” he added.

The effect of this courtesy letter is to forfeit the 50% discount on a fine and add a further fee for the issuing of the letter, while the enforcement order adds a further fee to apply demerit points to the recipient’s driving licence.

Dembovsky noted that all of this occurs without a trial, despite trial before an ordinary court being every accused South African’s absolute right.

Trials and the accused

Dembovsky said that the AARTO Act’s proposed system would be unconstitutional due to its lack of a trial.

“The AARTO Amendment Act seeks to do away with trials in Courts and to replace them with written representations, a Tribunal, and reviews or appeals in the Magistrates’ Court,” he said.

“None of these constitute a trial, where one’s accuser would have a duty to prove one’s guilt.”

Under this system, the offender would be presumed guilty and would have to struggle to prove their innocence before their fine and demerit points would be revoked.

“My opponents contend that a person who is issued with a traffic fine is not an accused person, because the AARTO Act is administrative, rather than criminal in the way it prosecutes traffic infringements,” Dembovsky said.

“What they don’t say is what such a person should be regarded as being, if not an accused person. It’s mind-boggling!”

The litigation against the Act is set to be heard in the Pretoria High Court in the first term of 2020.

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The fight against South Africa’s “unconstitutional” road laws