After more than 18 months of unlawfully sending out infringement notices under the Administrative Adjudication of Road Traffic Offences (Aarto) Act via normal mail, the Johannesburg Metro Police Department (JMPD) has invalidated more than eight million fines.
It has not changed the issuing process despite instructions from the Road Traffic Infringement Agency (RTIA), asking it to stop that process and to start sending notices via registered mail, as prescribed by the Act.
Communication revealed by the Justice Project SA (JPSA) shows that RTIA acting registrar Japh Chuwe wrote to JMPD chief Chris Ngcobo, and to director Gerrie Gerneke, on 11 January 2011, requesting them to cease this practice.
JPSA national chairman Howard Dembovsky says sending infringement notices via normal mail is in direct violation of Section 30(1) of the Aarto Amendment Act, 1999.
The section states that “any document required to be served on an infringer in terms of this Act must be served on the infringer personally or sent by registered mail to his or her last known address”.
It has been about 569 days since the JMPD started issuing fines via normal mail, and over eight million physical infringement notices have been sent out. If the average fine costs R250, the total amount of invalid fines is about R2 billion.
Comfortable mechanism
Chuwe said in the letter that the agency is aware the JMPD continues to send notices via ordinary mail and so reminds it that this practice is contrary to the prescripts of the Act.
He then requested the addressed parties to cease such practice going forward.
“Whereas there may be merit in the decision to serve the infringement notices by ordinary mail, due to financial and other considerations, the agency cannot support the continuation of this practice as it flouts the current provisions of the applicable legislation.”
He added that the legislation is currently being amended to ensure a more efficient framework is in place.
Chuwe also advised the JMPD to withdraw infringements where drivers submit representation applications for fines served via ordinary mail.
The acting registrar previously confirmed to ITWeb that service via standard mail is unlawful and invalidates infringement notices.
“Infringers can make representations on Aarto 08 to the RTIA or elect to go to court on Aarto 10 forms.” In correspondence to the JPSA, Chuwe said the RTIA is not in a position to unilaterally withdraw all the notices served via ordinary mail.
“We are comfortable that the Aarto provides a mechanism to challenge the issuing of any notices that were allegedly issued incorrectly and would advise that the infringers follow the processes provided by means of representations.”
However, Dembovsky says the JPSA would like to see a massive influx of Aarto 08 representation forms, but there are piles of these applications that have not been processed.
He also says the options for those who have already paid the invalid fines are tough. “How do you turn to a municipality that you know is bankrupt and ask it to refund people?”
Money-making opportunity
“The JMPD has not only continued to send out Aarto 03 infringement notices by regular permit mail since receiving the letter, but has also repeatedly defended its position in doing so, and has furthermore repeatedly stated to the press and members of the public that the notices are 100% lawful and must be paid,” says Dembovsky.
He adds that by ignoring the RTIA, the JMPD can only be described as criminally motivated because it has ignored a lawful instruction and knowingly continues to act unlawfully.
“While JPSA is not at all surprised by the fact that the top management of the JMPD have acted in such an irresponsible and corrupt manner, it is horrified by the fact that the minister and Department of Transport have seemingly taken a backseat and allowed the JMPD to thumb its nose at the RTIA, thus making a complete mockery of the Aarto Act and all of its provisions.
“Law enforcers are breaking the law in order to enforce it. The JMPD recognised an opportunity to make money, and [it] did. We've been screaming about this since 1 June.”
Investigation underway
The JPSA has sent a copy of the letter from Chuwe to JPMD officials, along with a further complaint to the investigator at the Public Protector's office.
It first lodged a complaint on the matter on 16 June.
The Public Protector has not yet returned a determination on the matter, but the JPSA remains confident it will come early in the new year.
Manager of communications at the Public Protector's office, Oupa Segalwe, says the investigation is still underway.
“We did receive the complaint in June, but it's difficult to say when it will be concluded. We are still gathering all the necessary information from all the parties involved.”
No final date has been set for implementation of Aarto yet, since there will first be a stakeholder seminar for the purposes of public consultation.
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