Big blow for Outa as ConCourt refuses to declare Aarto Act unconstitutional
The Organisation Undoing Tax Abuse (Outa) has suffered defeat in its bid to have the Administrative Adjudication of Road Traffic Offences (Aarto) Acts declared invalid and unconstitutional.
The Constitutional Court (ConCourt) delivered its judgment on Wednesday, dismissing Outa’s application.
Outa had won its case in January last year when the Pretoria High Court ruled that both the Aarto Act and Aarto Amendment Act, which introduced a demerit system for traffic infringements, were inconsistent with the Constitution.
The high court declared the acts as unconstitutional on the grounds that the law encroached on provincial and local government competencies.
However, then Transport Minister Fikile Mbalula and the Road Traffic Infringement Agency (RTIA) lodged an appeal with the ConCourt.
Arguments
Outa had argued before the ConCourt, last November, that the Aarto Act fell within the exclusive competence of the provincial government, thus, Parliament, as the national legislature, had no competence to pass the act.
“For all intents and purposes, the parties presented the same argument before the Constitutional Court that had been presented before the high court,” Chief Justice Raymond Zondo said during court proceedings on Wednesday.
Zondo said Mbalula, RTIA and the Road Traffic Management Corporation (RTMC) argued that the subject matter of the Aarto Act under road traffic regulations fell within the concurrent legislative competence of both national and provincial spheres of government.
Therefore, it meant that Parliament could pass the Aarto Act.
The respondents had also argued that the legislation was not concerned with matters related to provincial roads and traffic or municipal roads and parking.
Order of invalidity refused
In a unanimous decision, Zondo said the ConCourt upheld the arguments advanced by the respondents.
The Chief Justice said the court had rejected Outa’s contention that Aarto removed certain powers from municipalities and gave them to other state organs.
“The Aarto Act seeks to regulate road traffic in the whole country. In this regard, this court also referred to the fact that if it were to uphold the contention by Outa that the subject matter of the Aarto Act falls within the exclusive legislative competence of the provincial sphere of government, it would mean that every province has competence to pass laws in relation to this subject matter and questions would arise whether the different provinces would make the same or different laws.
“This court pointed out that this is one of the indications that this is a matter that falls within the national competence where the national sphere of government has concurrent legislative with the provincial spheres of government.
“In this case, since Parliament has competence legislation such as the Aarto Act, it cannot be said that Parliament had no power to make this law,” Zondo said while delivering the judgment on Wednesday.
The apex court also agreed that Aarto and the way notices would be served to alleged traffic offenders was not inconsistent with the Constitution.
“This court has, therefore, refused to confirm the order of invalidity made by the high court, has upheld the minister’s appeal and set aside the order of the high court.
“The court also made a declaratory order to the effect that the provisions of section 17 of the Aarto Amendment Act which permit the serving of notices and other document under the Aarto Act on an alleged infringer… will not be inconsistent with the Constitution once they come into operation,” Zondo added.
No costs order was made against Outa.
Mbalula has since reacted to the court victory.
We won
— ANC SECRETARY GENERAL | Cde Mbalula (@MbalulaFikile) July 12, 2023
Big things we did ny that dept of transport we scrapped etolls,We won against outta on AARTO,We started a massive paving and closing of potholes project ,We revstalised major job creation infrastructure project msikaba( n2 wild coast ) launched trains…
— ANC SECRETARY GENERAL | Cde Mbalula (@MbalulaFikile) July 12, 2023
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