The AARTO Act: constitutional or unconstitutional?

The aim of the proposed Act is to create a system that uses administrative tribunals, administrative fines and demerit points to enforce traffic laws on a national level.

The argument

OUTA argued that the Act in its current form is unconstitutional on the following grounds:

1. In terms of our Constitution, provincial and municipal traffic regulations fall under the legislative control of each province. The Act wishes to infringe upon the exclusive legislative authority of the provincial legislatures.
2. The Act wishes to infringe upon how local government is to enforce traffic and parking laws at municipal level.

OUTA is of the opinion that national government does not have the administrative power to pass legislation regulating all road traffic and offences through national legislation as this intrudes on the exclusive competence of the provinces as well as the municipalities situated in each one.

The question before the Court, therefore, was whether the proposed legislation intrudes upon the competence of local and provincial government and whether the Act will prevent local and provincial spheres of government from regulating their own affairs.

The court’s decision

Honourable Judge Basson found in favour of OUTA and agreed with its position. She concluded that, “It therefore follows in my view that the AARTO Act and the Amendment Act must be declared to be inconsistent with the Constitution in its entirety. It is therefore declared that the AARTO Act and the Amendment Act are unconstitutional and invalid.” Council for the Minister requested an order that a 2 year period be provided to address the shortcomings in the Act. The court went further to decide that the Act cannot be “amended” as this would not be possible due to its unconstitutionality.

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Written by Wessel de Kock

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