SUBMISSION ON AARTO BILL, 2015 Alta Swanepoel Alta Swanepoel and Associates CC

INTRODUCTION Owner of Alta Swanepoel and Associates CC – consulting firm. Consultant to the Department of Transport and the RTMC during the initial process of drafting the AARTO Regulations and Schedules. Consultant to government agencies and transport companies on traffic and transport related matters. Presents AARTO information sessions to companies, drivers, etc.

Definition of issuing authority “issuing authority” means— (a) a local authority contemplated in Chapter 7 of the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996), the Local Government Transition Act, 1993 (Act No. 209 of 1993), or any other applicable law; or (b) a provincial administration, in so far as such authority or administration is responsible for traffic matters in its area of jurisdiction; (c) the Road Traffic Management Corporation, established under section 4 of the Road Traffic Management Corporation Act, 1999, in so far as such authority, administration or Corporation is responsible for traffic matters; The existing definition does not cater for the other authorities that also do enforcement on road traffic infringements. An amendment to the AARTO Regulations in 2013 incorporated a number of organisations as issuing authorities in the regulations. The Act does not allow for such provisions in the regulations and the power to prescribe additional issuing authorities needs to be added in the bill Suggested amendment: (d) any other authority prescribed by the Minister, that is empowered to do law enforcement in terms of road traffic and transport legislation,

Definition of infringement “Infringement” means a any act or omission in contravention of this Act or road traffic legislation: The definition should be extended to allow infringements in terms of the National Land Transport Act, Cross-border Road Transport Act, National Roads legislation, etc. Infringements committed in terms of the Road Traffic legislation must be charged in terms of AARTO and offences in terms of the NLTA must be charged in terms of the Criminal Procedure Act Offences like not having a PRDP and operating as a taxi without an operating licence are often committed by the same driver – different documents must be issued

DEFINITION FOR registered mail The term registered mail is not defined To avoid unnecessary challenges to the legislation it is suggested that the term be defined Suggested definition of registered mail: Registered mail means mail that is sent with any mail service where the mail can be tracked and where the status of the mail delivery is available to the authorities,

DEFINITION of date of service Existing definition of “date of service” means the date on which an infringer has signed for the relevant document served on him or her under section 30; The definition needs to be amended to cater for postal service as well. The definition should read – “means the date on which an infringer has signed for the relevant document served on him or her under section 30 or the date the relevant document is presumed to have been served in terms of that section.”

Section 13 - Funding of Agency Amendment to section 13 necessary to generate funds. Agency functions as a type of “National Prosecuting Authority” focussed on traffic infringements Success with road safety programs, successful law enforcement and a law abiding road users will reduce the funds of the Agency The Agency must be distinguished from other agencies as far as self-funding is concerned. Fewer offenders will result in less accidents (crashes) and hopefully less pay-outs by the Road Accident Fund Funds could then be made available to allow the Agency to ensure the processes required for successful service of notices can be executed. The original purpose of the inclusion of agreements in the RTMC Act - where the RTMC contracts with law enforcement authorities in terms of their performance to reduce accidents in exchange for funds– must be implemented. This will allow authorities to focus on law enforcement functions without considering the income from traffic infringements as their only source of revenue. The relationship between the funding requirements in the RTMC Act, AARTO Act and RAF Act must be taken into account to ensure objective and effective law enforcement that is not focussed on revenue.

Section 21 - Warrant Section 21 should not be repealed in its entirety. The only sanction that remains in the legislation is the blocking of documents like licence discs and driving licence cards. Unfortunately, there are many road users who do not even have legal licence discs and driving licences when they are apprehended in the first instance and blocking a document they do not even possess will not serve as a deterrent at all. Immobilising motor vehicles under controlled and prescribed conditions will be a much better deterrent. It is suggested that the paragraphs (1)(a) to (d) be repealed but that the power to immobilise a vehicle be retained with a prescribed procedure as how this sanction must be applied.

Section 34 – Power to make Regulations New clause amending the Minister’s powers to make regulations. It is suggested that section 34 of the Act be amended to allow for circumstances where an infringement notice, courtesy letter or enforcement order may be re- issued if the initial time periods or administrative actions could not be executed within the time frames stipulated. Infringements that are not served within certain time periods may not be re-issued in terms of the existing legislation.   Provision has to be made for procedures to re-issue notices under certain circumstances. The provision should be in the regulations as it is administrative and does not require and act amendment.

Section 35 - Amendment This amendment is unnecessary as section 341 and section 56 notices may in any event not be issued for an offence in terms of the Criminal Procedure Act, 1977 where the AARTO Act is in force and the section is correct as it is currently drafted. Offences are covered by the Criminal Procedure Act, 1977 Infringements are covered by the AARTO Act, 1998 Where the AARTO Act applies infringements must be charged in terms of the AARTO Act and offences must be charged in terms of the Criminal Procedure Act, 1977  

Foreign infringers and offenders Existing problem in both the Criminal Procedure Act as well as AARTO legislation No “spot fine” system in SA Neighbouring countries all charge foreign offenders immediately and require payment immediately National Contraventions Register should be available at border posts and foreigners with outstanding traffic notices should be required to pay the notices before leaving SA Offenders who did manage to leave without paying should be required to pay on re-entry DIPLOMATS – Although they have immunity, a reporting system is required with the Department of Foreign Affairs to allow traffic departments to report serious misconduct that may be dealt with within the diplomatic structures.

CONCLUSION AARTO can be a very effective system and is designed to handle charging in large volumes The existing Criminal Procedure System is not designed to manage 400 or 500 cases per court role per day The system relies on offenders not appearing, as no court will be able to deal with these cases if all offenders appear on notices AARTO can address this and a demerit point system will assist with changing driver behaviour.

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