South Africa’s Administrative Adjudication of Road Traffic Offences (Aarto) Act – which is back in play after a recent Constitutional Court ruling – is likely to pose a significant barrier for wheels operators in the country.

This is according to industry leaders responding to the Constitutional Court ruling last week which declared that South Africa’s Administrative Adjudication of Road Traffic Offences (Aarto) Act was “valid and constitutional”.

The Organisation Undoing Tax Abuse (Outa) had brought an application calling on the Concourt to confirm the Pretoria High Court’s judgment of November 2022 that the Aarto legislation was unconstitutional and invalid.

The concern re the Aarto Act is the demerit system whereby a person, operator or company pays the penalty and incurs negative points when a traffic infringement is committed.

Drivers will start with zero points and will ‘earn’ demerit points.

Currently, the threshold is a maximum of 12 points, with the proposed amendments recommending 15 points. From point 13, the various sanctions of suspension or cancellation of a driving licence will occur.

The laws also make provision for new offences to be added, even those relating to admin, such as failing to update addresses.

‘Huge barrier to wheels operators’

Onne Vegter, Chairman of Satsa’s Transport Committee, told Tourism Update that although “the road to hell is paved with good intentions”, Aarto had not been thought through properly.

“The Aarto demerit point system is likely to pose a huge barrier to wheels operators, not least because the legislation does not differentiate adequately between drivers and owners.

“A wheels operator with a large fleet employs several drivers and if they are fined, the demerit points accumulate to the operator or owner of the vehicle. The Aarto legislation wants to penalise the operator rather than the driver, with the risk that a tourist transport operator could lose their operator card or possibly their accreditation as a tourist transport operator. Even with the current system it is notoriously difficult to redirect a traffic fine to the driver if the vehicle owner was not the driver,” said Vegter.

Vegter noted that most wheels operators have no trust in the Department of Transport's ability to manage this effectively, and the likely result will be that wheel operators will be unfairly penalised and might even find their personal driving licence suspended, which could happen within a few months of implementation if they have a large fleet.

“The reality is that even the best drivers get fines. It is well known that many traffic authorities are in the habit of trapping even law-abiding motorists who are most likely to accidentally exceed the speed limit, such as at the bottom of a downhill where the speed limit temporarily drops from 100kph to 60kph.

He continued: “It is profitable for them to trap motorists like this, so even the most careful drivers will get fines from time to time. My fear is that with this legislation, the fleet owner will personally be held responsible for the behaviour of the drivers who drive their fleet. This is neither fair nor rational.”

Vegter added that corruption among traffic officials is already a major concern, harming the country’s tourism industry and reputation as a tourist-friendly destination.

“We regularly receive complaints about illegal spot fines and demands for bribes, and the additional threat of a demerit may give corrupt traffic officials more leverage to harass motorists and extract unlawful bribes.”

Harder to obtain operating licenses

Vegter believes that the Aarto demerit system will make it harder for operators to obtain their operating licences from the National Public Transport Regulator (NPTR) for accreditation.

“The risk of unintended consequences is significant. A demerit system could work well in a developed economy with the administrative competence to administer the system justly, and differentiate between owners and drivers. Wheels operators in South Africa are concerned (with good reason) that our bungling Department of Transport simply does not have the administrative capacity or competence to manage this system without these unintended consequences.”

Tourist guides, who have also dealt with the negative NPTR fall-out, have also expressed their concerns on a Facebook group, noting the potential for bribery and corruption, the extra administration involved and fear of losing their licenses.

Click here to view the Aarto road traffic penalties.