PRESENTATION ON THE AARTO AMENDMENT BILL, MARCH 2017
WHO IS CANCOM?WHO DOES CANCOMREPRESENT?
CURRENT ISSUES BEING EXPERIENCED BY CANCOMREGARDING THE AARTO ACT AND WHY?No AARTO Fines being issued via registered mail for approximately the last 12 months;JMPD and TMPD not redirecting any Infringements at all;Still no provision of administration for infringements incurred by foreigners in the AARTO Act;Enforcement orders being issued on Infringements that should have been administered thus deeming the enforcement orders “illegal”;Medical emergency companies Infringements not being administered, thus causing medical response vehicles to be off the road due to being unable to renew vehicle licenses;Infringing on the Constitutional Rights of Individuals – Section 32 “Access to Information”; section 33 “Just Administrative Action”; Section 34 “Access to Courts” and Section 35 “Right to a FairTrial”If the purpose of AARTO is to be believed in that it was promulgated to improve road safety and reduce bad road behavior resulting in accidents and death, it is unfathomable as to why the custodians of AARTO do not want to implement achievable administrative processes to ensure that this happens. Driver behavior will only change if the correct offender is being held liable – this is currently not happening.
HOW IS CANCOM ABLE TO PRESENT PROCESSES AND COMMENT ON THE AARTO AMENDMENT BILL AND LEGISLATION
Average fine receipt per month =50,000 infringements and [email protected] monthly average amount ofR 18,750,000.00*(*This is a somewhat reduced amount being presented at R 375.00 / infringement)
IMPACT OF NOT REDIRECTING INFRINGEMENT’S TO THE CORRECT OFFENDER:
Actual habitual offenders never held liableIncreased lawlessnessOn-going accidents and road deaths caused by speeding and lawlessnessNational road safety figures ever negatively increasingLow / non collection of Infringements moneys owing due to lawlessnessHolding the wrong Individual Liable – UnconstitutionalFlooding of the Courts / Proposed Tribunal
Fines 4 U Judgement – 24/02/2017
It is pertinent to note, that although CANCOM have had many dealings with the custodians of AARTO, good and bad, as well as having launched a few court cases, not once have any of these matters been discussed in the media, nor have CANCOM felt the need to bring any of these matters to the media’s attention.The judgement in the Fines 4 U case, however, was highly published in the media. It is therefore expected that the public is going to use this judgement in theirfavouras well as other companies who’s motives are not moral.As previously mentioned, CANCOM has always promoted the roll-out of AARTO, it merely needs to be administratively correct.
Proposed Changes to AARTO Act and Regulations
Page 2: Chapter I (i) (F)Changing acceptable identification from being a “photocopy “to a “clear certified copy of the applicable certificate of document referred to in paragraphs (a) to (e)This is not practical or feasible. It is already difficult to present a copy of an ID of a driver renting a vehicle due to the sheer volumes involved. It is not feasible to obtain a certified copy from a rental client on every occasion. Commissioners of Oath cannot be employed for such purpose by the car rental companies as a commissioner is not entitled to charge a fee for such service. Client’s including foreign clients who hire vehicles will not be in a position to obtain certified copies. Imposing this as a requirement will also negatively impact on the business of car rental companies.
Page 2: Chapter I (vi)-“date of service “changing from when the infringer has signed for the relevant document to “date of service “means, that the date onwhich an infringer has received the relevant document ……”How is it going to be determined as to when an infringer has actually received the relevant document given the strict time lines implemented by the AARTO Act.
Page 2: Chapter I : “Electronic service“ means service by means of an electronic communication as defined in the Electronic Communications Act, 2005 (Act No. 36 of 2005)
There is an intimation that Electronic Service is to be included in the current legislation but no clear provision has been made thus far.Will the new provisions include SMS Delivery, E-mail Delivery, e-Postal Delivery. If so, to whom will they send the notifications to in the case of businesses?Will this include the allowance for any person / company to enter into a electronic interface with the current e-NaTISSystem that is currently running and running successfully between ABSA and e-NaTIS?If the current time restrictions implemented in the AARTO Act and Regulations are to remain, how will it be determined when an Infringement Notice has been received by the alleged infringer?Will the Electronic Service allow for nominations and representations to be submitted Electronically?
Page 3: Chapter I section 4 (e): Insertion of definition after “Enforcement order “ of “Habitual Infringer” means and Infringer, operator or a juristic person who, in terms of section 25, incurs demerit points resulting in a disqualification more than two times,”
Its seems that the intention is to be able to label a proxy as a “habitual offender” meaning that the proxy will ultimately have demerit points against him/her at all times and will be “disqualified” as a legal driver. This provision is grossly unfair and an infringement of the constitutional Rights of the proxy, including those under section 34 and 35 of the Constitution. *The proxy of a company is seemingly being held responsible for all offences allegedly incurred by any vehicle that is registered in the name of the company. This is ludicrous as it logistically impossible that a proxy can drive multiple vehicles and the same time, however the AARTO Act is intent in keeping the blame on the proxy.
On page 2, after line 28, to insert the following paragraph:“(f)by the substitution for the definition of “issuing authority” of the following definition:“issuing authority”means(d)any other state institution declared by the Minister by regulation to be an issuing authority
CANCOM are in agreement that the Demerit Point System should include driver’s with learner’s licenses,etc… however, an Issuing Authority would need intense training, guidance and management, and CANCOM does not believe that ANY state institution be handed the “rights” of an Issuing Authority.Currently there is major corruption in numerous state licensing departments in which a large number of individuals have recently been arrested for false transactions. These same individuals have removed “enforcement orders” and “blocks” against various entities during their corrupt dealings.As recent as last week I received an e-mail stating that I could get all my AARTO Fines discounted by 70% - this type of corruption will flow over into the demerit point system.
On page 3, after line 12, to insert the following paragraph:“(k)by the deletion of the definition of “sheriff”;ANDOn page 3, after line 12, to insert the following paragraphTribunal”means the Appeals Tribunal established by section 29A”.
This particular clause change will be addressed later in this document.
“Amendment of section 4 of Act 46 of 19982. Section 4 of the principal Act is hereby amended—y the addition in subsection (2) of the following paragraph:"(h)administering prescribed rehabilitation programmes for habitual infringers.”
Proxy’s of Company’s will permanently be in “rehabilitation programmes”;Who will pay for the rehabilitation programme?Who will run the rehabilitation programme and deem it a success / failure?
5) The owner or operator of a motor vehicle who permits any person to drive such vehicle or otherwise to exercise any control over such vehicle, without having ascertained the full names, [acceptable identification and]residential[and], postal and where applicable business and e-mail address of an infringer, such person is[guilty of an offence and]liable[upon conviction to a fine or imprisonment for a period not exceeding one year or to both a fine and such imprisonment]for the prescribed penalty and fees.” ”
No Fleet Business Owner would permit any persons to drive their vehicles without prior vetting of the Individual, however, to obtain copies and keep such copies of all documents and information required in the above proposed change is an administrative burden.The reasoning behind such documents (namely a now commissioned copy of acceptable identification) was always that apparently “false information” was being provided to the relevant authorities. In the 3,500,000 cases that CANCOM have dealt with over the last 10 years, not one case has ever been proved to have been false information, nor has one offender declared that an offence was wrongly redirected to him / her.Wanting to hold the business owner liable for all prescribed penalties and fees is taking away the aim of AARTO in getting to the correct offender, and seemingly becoming another resource of funds to be recovered.
Page 8-Chapter III, Section 18 Representations (1)– including option, that if a representation is made due to the AARTO Act, having not been followed, and is successful, the same infringement may be re-issued to the same infringer, as long as 180 days from the date of offence has not passed.
How does this impact the prescribed time lines within AARTO for representations?Why should the RTIA / Issuing Authority have the right to re-issue an Infringement if they are not able to issue the Infringements in time according to the Regulations?How will this be managed to prevent duplications of Infringements, as well as the same Infringement being issued but under another Infringement Notice Number?CANCOM believe that should the Infringement Notice not be Issued within the prescribed time as currently stipulated, the Infringement Notice should then be deemed unlawful and subsequently withdrawn or cancelled.This proposed method has been successfully challenged in the High Court with reference to the Fines For U court case.
Page 8-Chapter III, Section 18(7)…”substitution for subsection (7) of the following subsection:“(7) If the representations are rejected, the representations officer may advise the infringer[to elect in the prescribed manner to be tried in court,]of his or her right of review or appeal and must serve or cause to be served…”
This clause is removing the option of “Elect to be Tried in Court” until a courtesy letter has been issued;Currently, no Courtesy Letters are being received=, let alone AARTO 03 Infringement Notices;Firstly this fringes on removing anindividual’s constitutionalright to be heard in court;It has been proven time and again that representations are being rejected but with no consistency and many with no reason. This is going to result in most cases being sent for appeal;By the time an appeal is submitted and hopefully “heard”, all discounts and additional penalty fees would be added to the alleged infringement, thereby increasing the potential liability for the alleged infringer;A tribunal or appeal process is not a legal substitution of an individual’s right to be tried in court;As CANCOM were previously chastised for using the AARTO 10, Election to be Tried in Court forms to deal with their clients numerous outstanding infringements as a “Scapegoat”, it would seem that the current proposal to remove this option is intended as malicious behavior towards the Fleet and Rental Companies.
“Amendment of section 19B of Act 46 of 1998, as inserted by section 11 of Act 72 of 20025. Section 19B of the principal Act is hereby amended—(a)by the substitution in subsection (1) for the words preceding paragraph(a)of the following words:“(1) If an infringer makes[an]insufficient payment to the[agency]Authority in terms of this Act in respect of a fine or thechequeused for payment isdishonoured, a notice as prescribed must be served on an infringer, informing him or her—”(b)by the substitution in subsection (1) for paragraph(b)of the following paragraph:"(b)that failure to comply with the notice contemplated in paragraph(a)will lead to[a warrant]an enforcement order being issued against him or her in terms of section20."; and(c)by the substitution in subsection (2) for paragraph(c)of the following paragraph"(c)that failure to comply with the notice will lead to[a warrant]an enforcement order in respect of the full amount owed being issued against him or her in terms of section20;".”
The above clause and proposed changes are too broad. At what stage will it be deemed insufficient payment of an infringement?Should all representations and appeals be declined (as they are currently), enforcement orders will be issued (As they are currently), blocking therelevatvehicle from having any transactions being completed on the e-NaTISSystem (As they are currently), thereby forcing the enforcement order and all charges to be paid (as they are currently) – this is forcing the “alleged infringer” to pay for infringements that they are not liable for (as they are currently).
CHAPTER IVAAPPEALS TRIBUNALEstablishment and constitution of the Tribunal
CANCOM is against the establishment of a Tribunal for cases that need to be appealed;Currently, the relevant authorities cannot manage the volume, and the representation officers do not take their administrative function seriously – how will a Tribunal be any different?If the relevant authorities merely administer the Infringements as they should, there will be very little need for a Tribunal, thus the AARTO 10 Process can remain and should remain;How can the RTIA appoint members to the tribunal – they are acting as the judge and jury;A fee has to be paid in order for an individual’s case to be heard – more money.
PROBLEMS IDENTIFIED:Service of NoticesNomination of Actual DriverDemerit Point SystemAllowing the Issuing Authority “to make wrong right” – one sidedPresuming guilt before innocenceEnforcement OrdersHolding Proxy’s of Companies unlawfully LiableDelaying / Lengthening the Administrative Process for the Alleged Infringer to Prove themselves Innocent
Need provisions in the Act and Regulations to accommodate fleet companies – currently the AARTO Act will work for the individual, but is making it impossible for the fleet owner’s to comply;Have a sufficient and cost effective electronic system that fleet companies can use to obtain their liability, make representations and payments (as it is currently working with ABSA) that works;Give the likes of CANCOM the opportunity to discuss concerns and issues (as they experience these on the ground on a daily basis) and afford us the time to “fix” problems – CANCOM have requested no less than 15 times, a meeting with the RTIA to discuss these issues;The Proxy cannot be held liable for all Infringements – this needs to be addressed.