'Aarto is unconstitutional'

The Administrative Adjudication of Road Traffic Offences (Aarto) Act goes against the constitution and certain steps taken within the pilot project are illegal, says the Justice Project SA (JPSA).

It explains that the Road Traffic Infringement Agency (RTIA) is allegedly breaking the law by hiring debt collectors, without following proper procedure first. The agency has confirmed it is sending debt collectors to bring in fines that have been due since 2010.

The RTIA is meant to collect outstanding fines according to Aarto. However, it is battling with a lack of funding and has instead turned to collection agencies, costing it as much as 15% of outstanding penalties.

According to the RTIA's latest annual report, for the year to March 2011, 1.47 million infringement notices were issued, of which 221 913 were cancelled. The agency says the amount now outstanding is estimated at about R500 million, but is a moving target as infringements continue to be committed daily.

Howard Dembovsky, chairman of the non-profit JPSA, says the procedure being followed in the Aarto collection process is incorrect, as the agency cannot appoint debt collectors without following the correct procedures.

Dembovsky argues the RTIA is meant to send out courtesy letters 32 days after infringement notices, followed by an enforcement order if the motorist does not pay 32 days' after the order.

The registrar may issue a warrant of execution if the infringer does not pay within 32 days of the order. A warrant of execution is then given to an appointed sheriff to execute if the infringer does not pay seven days after the warrant.

However, no warrants have been issued since the Act came into being in 2008, and no sheriff has ever been appointed, says Dembovsky.

One of the collection letters, in ITWeb's possession, sent by a debt-collection agency to a motorist, says the R500 infringement has been handed over to it for collection. The letter warns that the motorist must pay up within 32 days, or face a warrant of execution.

“It is illegal to skip steps in the Aarto process. The RTIA feels it can skip the courtesy letter and proceed straight to an enforcement order and then a warrant of execution and all the other nasty stuff, like blacklisting the alleged infringer with a credit bureau.”

Dembovsky says, while the Act allows black listing, this is against the constitution because infringement notices are effectively accusations of wrongdoing. “The constitution says 'every accused person has a right to a fair trial, which includes the right to be presumed innocent'.

“Aarto seeks to circumvent this provision of the constitution - presuming you guilty until you prove yourself innocent and defining accusations against you as debts. The Aarto Act was enacted without considering other legislation in this country.”

RTIA registrar Japh Chuwe says its process is fair and provides benefits to infringers who comply as they save the cost of the R60 courtesy letter. “Debt collection will seek to encourage compliance from infringers by reminding them of outstanding debts and allow them further opportunity to clear their records.”

He adds he has the choice whether to follow the warrant route as the Act says the “registrar, may... issue a warrant against the infringer...”. “The process of debt collection is implemented as a more efficient and acceptable mechanism. It is the prerogative of the registrar as provided in the Act, to authorise warrants of execution, which in themselves are a harsher penal provision,” says Chuwe.

While a warrant is not automatic, according to section 21(1) of the Act read on its own, section 20(3)(b) says: “An enforcement order must state that a failure to comply with the requirements of the enforcement order within the period contemplated in paragraph (a) will result in a warrant being issued to recover the applicable penalty and fees,” Dembovsky points out.

“Now, either an enforcement order that complies with section 20(3)(b) of the Act is making a false threat, or section 21(1) is not an optional component. How can you have it both ways? And people ask why it is said that the Aarto Act is flawed? It is similar to a Swiss cheese - smelly and full of holes.”

Debt collectors retain 15% of whatever they collect, which means that the RTIA is paying for a service that would cost it nothing if it went through sheriffs, as the costs would then be borne by the infringer, says Dembovsky.

“The fact is that the RTIA is giving away 15% of fine revenues to private industry when it has the option (admittedly) to recover all infringement and penalty amounts through using a duly appointed sheriff.”