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The AARTO Act will impact your workplace

The Administrative Adjudication of Road Traffic Offences Act 1998 (Act no 46 of 1998) as amended (“AARTO”), has come into effect on 1 July 2021 and will be implemented in stages, the final stage of which will be 1 July 2022. AARTO has been drafted to replace the Criminal Procedure Act in the prosecution of road traffic offences. The Act is administered by the Road Traffic Infringement Authority (RTIA) and has introduced a demerit system in respect of road traffic violations. The implementation of the first phase of AARTO’s roll-out plan commenced on 1 July 2021 this year.

The points demerit system

The demerit system applies to driver’s licenses, learners’ licenses, vehicle license discs, operator cards and road transport permits.  In terms of AARTO, demerit points are allocated to the relevant document for each traffic violation incurred. Between 1 and 5 demerit points are allocated to each infringement, depending on its seriousness (listed in Schedule 3 to the AARTO Act). Upon reaching 15 points, the relevant document will be suspended for a period of three months in respect of each demerit point incurred over 15. During the period of suspension, the affected person may not operate a vehicle as such will amount to a criminal offence, nor may an effected vehicle be operated. Allowing a person with a suspended license to drive one’s vehicle is subject to a fine of R3,500. The demerit points are reduced at a rate of 1 point every 3 months until zero. A driver’s license will be cancelled upon being suspended for a third time.

The procedure

The purpose of AARTO is to make the road traffic infringement process completely administrative. The administration of a road traffic offence will be done in three stages:

  1. The infringement notice

An infringement notice will be issued and served on the relevant party in respect of the traffic violation committed. AARTO makes provision for electronic service which will include cell phone messages and email. In addition, AARTO has introduced a presumption of service provision, in terms of which it is presumed that the relevant party is in receipt of the notice within 10 days after same has been served via electronic or other means.

Upon receipt or presumed service of the notice, the relevant party may pay the fine at 50% discount and incur the relevant demerit points, request to pay the fine in instalments and incur the relevant demerit points, make a representation to RTIA as to why he/she should not be liable for the fine or nominate the driver of the vehicle if the person on whom the notice is served, was not driving. These steps must be taken within 32 days after service / presumed service.

  1. The courtesy letter

Should the person on whom the infringement notice was served / presumed to be served, fail to take the steps listed above within 32 days after service / presumed service, a courtesy letter will be issued. Once the letter is issued, the infringer forfeits the 50% discount and an additional fee will be charged as a penalty. The infringer may then pay 100% of the penalty and incur the demerit points, and/or make representations to RTIA why he/she should not be held accountable. These steps must be taken within 32 days after the service / presumed service of the courtesy letter.

  1. The enforcement order

Should the infringer fail to respond to the courtesy letter within 32 days, an enforcement order will be issued. In terms of the order, the alleged offender will be held liable for an additional penalty, the demerit points will be applied to the alleged offender’s relevant document and no driving license, license disc or professional driving permit may be issued to the alleged offender. The alleged offender will have 32 days after service / presumed service of the enforcement order to either pay the fine and the relevant penalties or to apply to the Registrar of the RTIA to have the enforcement order revoked.

The warrant of execution

Should the alleged infringer have failed to take any of the steps referred to above, the RTIA may issue a warrant of execution which authorizes the sheriff to attach and sell movable property to the value of the fine and penalties, seize and/or deface the alleged infringer’s driving license or professional driving permit, seize or deface the license disks of all vehicles or immobilize the vehicle and other vehicles which the infringer may own.

Representations against the infringement

The alleged infringer may make representations to RTIA stating why he/she should not be held accountable. This must however be done before the enforcement order is issued. An AARTO 08 form will be used for these purposes. Should the representation be based on the fact that the notice or courtesy letter was not legally served, this will not result in the infringement being cancelled, but in the re-issuing of the document.

Should the representation be rejected, an alleged infringer may apply to the AARTO Tribunal for review or appeal of the rejection. This will be done on an AARTO 10 form. Should the Tribunal refuse the appeal, RTIA will issue an enforcement order.

The alleged infringer may apply to the Magistrate’s Court for review or appeal of the Tribunal’s decision. This must be done within 7 days of the decision and whilst the Magistrate’s court considers the review/appeal, the enforcement order remains in place. The Magistrate Court’s decision is final and cannot be appealed to a higher court.

The implications for employers

As per the above, the demerit system applies to driving licenses and license disks. This will have an impact on employers whose employees drive company vehicles of which the employer is the owner. The employer will be held liable for the infringement fine and incur the relevant demerit points against the vehicle’s license disk. This could ultimately result in a vehicle disk of an employer being suspended as a result of driving infringements incurred by an employee.

AARTO makes provision for the alleged infringer to nominate the person who drove the vehicle at the time of the alleged infringement. This entails that the employer may nominate the employee who drove the vehicle and said employee will incur the relevant points and penalty. The nomination must be done within 32 days of service / presumed service of the infringement notice. If the employer fails to do so within 32 days, it loses the option to nominate the driver.

In addition to the above, the employer faces the risk of large penalties, should it allow an employee with a suspended license to drive a company vehicle. It is accordingly of grave importance that the employer is at all times aware of the status of the demerit points against a relevant employee’s license. Permission to access the employee’s AARTO information must be obtained from employees and a person must be nominated to regularly check on employee information and ensure that all those who drive employer vehicles have valid licenses.

Should an employee’s license be suspended/cancelled, the employer should consider the impact this might have on the business and take the necessary steps. In this regard, the employer should have in place the necessary processes to deal with employees whose licenses have been suspended/cancelled.

In addition, the employer should have policies, employment contracts and terms and conditions of employment in place to ensure that the employer’s operations are minimally impacted by AARTO.

Let Joubert and Associates help your business gear up for AARTO.

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