23 October 2020

Executive Summary of AA submission on draft Regulations to AARTO Act

The Automobile Association (AA) is submitting comments on the draft Regulations published for comment in Government Gazette 43758 on October 2, 2020.

Several regulations do not read grammatically and we have noted where drafting needs to be revised for clarity.

We are concerned over the timeframe for service of infringement notices, which is proposed to be increased from 40 to 60 days. The AA's view is that 40 days is sufficient, and we argue for a shorter period.

The level of detail required to appear on an infringement notice has been substantially limited, and the AA has proposed this change be abandoned.

A change to the regulation on enforcement orders would have the practical effect of preventing a motorist from ever revoking an enforcement order. However, due to a technicality, the new wording would appear to be unenforceable, and we believe the current wording should be retained.

Driver nominations now require a copy of the driver's licence. This creates difficulties in the case of infringements committed when a vehicle is stolen, in which case the owner would not know the driver nor have a copy of their licence, or driven without the owner's permission, or by an unlicensed driver. There is no reason for the change and the AA has advised against it.

The Appeals Tribunal remains a bone of contention. The AA's belief is that it would not add value to the adjudication process and its impartiality would always be in question. We have recommended, once again, that it be discarded.

One of the issues relevant to the Appeals Tribunal is that a motorist who chooses to appeal to the Magistrate's Court will still be saddled with an enforcement order before judicial processes are concluded, and that no provision is made for outcomes of the process to be notified to the RTIA if the case moves to higher courts. The AA has proposed changes to address both these issues.

An inconsistency in the drafting means that the Regulations don't specifically provide for suspension of use of vehicles belonging to a juristic person or operator once that vehicle's licence or operator card respectively incurs more than 15 points. The AA has proposed wording to rectify the concern.

The AA is deeply concerned at the costs that will be charged for road users to access their demerit points status. This information is as essential to a citizen as other everyday pieces of information held by government, like an income tax statement of account from SARS, and should be available at no charge. The AA has made this proposal.

When a fine is paid in instalments, only six instalments are allowed, down from ten. This will be very burdensome on poor drivers, especially with the large increases in fine values, and the AA has recommended the existing number of ten be retained.

The AA has very considerable concerns that the protections afforded motorists in terms of the service of infringement notices have been eroded. We have implored the Department of Transport to at least re-introduce the use of registered post for infringement notices not served in person, so that there is a realistic chance of the notice coming to a motorist's attention.

We have also asked that the words "in person", which were removed from the section on personal service, be restored, to emphasise that personal service cannot occur in any other way than person to person. The AA has a concern that the the definition of personal service may be being stretched to encompass postage.

Still on the issue of service, we are strongly opposed to the RTIA's proposed new ability to serve documents at an "address obtainable from any other credible and lawful source". Official documents, especially initiating documents like infringement notices, should be served to the address designated by the driver or vehicle owner, and nowhere else.

The new Infringement Penalty Levy is a multi-billion Rand stealth tax which generates revenue orders of magnitude beyond that needed to restore the RTIA to financial health. The AA opposes it outright - taxation on this scale is a matter for Parliament as a whole, not individual ministers who can enact regulations at the stroke of a pen. Furthermore, the RTIA is running at a loss due to its wasteful spending and the astonishing salaries of its top five executives. The taxpayer and motorist should not be required to rectify this profligate spending with user charges introduced in under-handed ways.

Schedule 3 to the AARTO Act contains a list of penalties and demerit points associated with the various charge codes. Some of them can only be said to be shocking, such as someone who forgets to notify the authorities of their address change within 14 days receives a R3000 fine, while someone who endangers oncoming traffic at night by blinding them with their headlights is fined just R1500. The AA has attacked the new Schedule 3 in the strongest possible terms and believes that a technical committee should be convened to review it fully.

Finally, the RTIA came into being as a result of the AARTO Act and is merely an organ of state. It should be regulated from the Department of Transport, but the Government Gazette in which the draft Regulations were published contained lists, as one of the contact people, a staffer from the RTIA.

Since the RTIA will benefit substantially from many of the draft Regulations, a clear conflict of interest is created by having any of its staff at all involved in receiving these comments. We have been strongly critical of this and further intend to write to the Minister of Transport to seek his assurance that that all processes leading to the adoption of the 2019 AARTO Amendment Act and the drafting of these Regulations have happened at arms' length from the RTIA, its board, management and staff.

Endorse the AA’s submission on the AARTO draft Regulations here.

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