Transport Minister Fikile Mbalula has rejected the assertion that the new traffic laws seeking to introduce the demerit points system were unconstitutional. He was responding in the Gauteng High Court, Pretoria, in the application launched by the Organisation Undoing Tax abuse (Outa).
The organisation is challenging the constitutionality of the Adjudication of Road Traffic Offences Act 46 of 1998 (Aarto Act) and the Administrative Adjudication of Road Traffic Offence Amendment Act 4 of 2019 (Amendment Act) passed by Parliament.
Mbalula was cited as the first respondent, with the Road Traffic Infringement Authority and the Appeals Tribunal as the third and fourth respondents respectively.
The second respondent was the Minister of Co-operative Governance and Traditional Affairs, Dr Nkosazana Dlamini Zuma, who did not oppose the application and committed to abide by the court outcome.
During the virtual court hearing over two days, Outa argued that Parliament acted outside its constitutional powers to pass the legislations, and called on the court to declare them unconstitutional.
Advocate Matthew Chaskalson, SC, representing Outa, said the laws usurped the exclusive legislative authority of the provincial legislatures as, in terms of the Constitution, provincial and municipal traffic regulations fall under the legislative competence of the provinces.
He further argued that the acts usurped the executive authority of local government, granted in terms of the Constitution, to enforce traffic and parking laws at municipal level.
“These legistions create a system whereby traffic laws are, by default, enforced through a national system of administrative tribunals, administrative fines and demerit points,” said Chaskalson.
He said the government did not have the power to pass national legislation regulating all road traffic.
“By so doing, it unconstitutionally invaded the exclusive legislative competence of the provinces and the exclusive executive competence of the municipalities. The participation or approval of the provinces cannot not cure this fundamental defect,” Chaskalson said.
Alternatively, Outa contended that the service provisions of Section 17 of the Amendment Act are “manifestly inadequate and are unconstitutional”.
The Amendment Act effectively removed the requirement that the service under Aarto must be personal or by registered mail.
In terms of the amendment, the Aarto is permitted to service notices of traffic transgressions by means of email, SMS or voice message.
“It allows service by email, SMS or voice mail. Given the serious consequences that may flow from an infringement, such service is inadequate,” said Chaskalson.
He added that proper service, at all stages of the adjudication process, “is critical to ensuring that an infringer’s constitutional rights are protected”.
In an answering affidavit, Mbalula opposed the application and argued that if the court did rule that Aarto was unconstitutional, it should suspend the declaration of invalidity for 24 months to allow Parliament to rectify it.
However, Outa rejected Mbalula’s version, stating that Aarto had not yet been rolled out nationally “so the acts should be set aside with immediate effect so the state does not incur significant rollout costs which end up wasted”.
Mbalula’s legal representative, Advocate Maphelo Gwala, shot down the argument that Parliament exceeded its Constitutional power by formulating the legislation.
He said Parliament had the power to legislate in any matter for as long as it is within the bounds of the Constitution, including the Schedule 4 legislation under which Aarto fell.
Regarding the assertion that the acts would intrude the exclusive legislative authority of the provincial legislatures, he said: “We submit that there is no intrusion at all.”
He said the national council of provinces obtained concurrence from the provincial governments for the acts to be passed. He said it was necessary for the legislation to be passed because it sought to have “uniform standard for all road users so that there is no unequal treatment to road users when it comes to road infringements”.
Gwala also cited that the carnage on the roads was “disastrous to the economy” and that the legislation was aimed to deal with that. He lamented that the criminal sanction had proven to be ineffective because the courts could not deal with the influx of road traffic offenders. “It is only 20% of the matters that get finalised in courts.”
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