Why ConCourt dismissed high court ruling on Aarto Act

The Constitutional Court emphasised the role of parliament in usurping the functions of local government when it declined to confirm the high court ruling that the Aarto Act was invalid.

The matter was brought by the Organisation Undoing Tax Abuse (Outa) which requested the apex court to confirm the Pretoria high court ruling that the act was unconstitutional and invalid.

Outa argued that the passing of the Aarto Act fell outside the powers of parliament as it was the authority of provincial governments to establish such legislation.

It further argued that the Aarto Act trumped the exclusive executive functions of the local sphere of government.

In his unanimous judgment, chief justice Raymond Zondo said provincial and local governments share their own legislative powers, but some of these powers can be overridden by parliament.

In terms of the constitution, the provincial legislature has power to pass legislation within the functions listed in Schedules 4 and 5. Road traffic regulations are listed in Schedule 4 and in Parts A and B of Schedule 5 of the constitution.

However, section 44 of the constitution states that parliament has the power to pass legislation in regard to matters under Schedule 4 and 5 and to assign any legislative powers, except the amendment of the constitution, to either local or provincial government.

Why Zondo rejected Outa’s contentions

Zondo assessed the objectives of Aarto as listed in the act to respond to Outa’s contention that parliament had no power to pass the act as, according to the organisation, this was the authority of provincial legislation.

Aarto’s first objective is to encourage compliance with the national and provincial laws relating to road traffic while promoting safety.

Zondo said since there are nine provinces, Outa’s contention would mean all provinces could each pass provincial legislation aimed at encouraging compliance with national and provincial laws.

“If Outa’s contention that the subject matter of the Aarto Act falls within the exclusive legislative competence of provincial legislatures were correct, the question that would arise is: how would the provincial legislature pass legislation the objective of which is to encourage compliance with national and provincial laws?”

Aarto’s second objective is to encourage the payment of penalties imposed for violations and to allow those with minor infringements to make representations.

Zondo pointed out that an infringement is the responsibility of and determined by the courts and courts are not regulated by provincial laws.

“So if Outa’s contention were correct, how would a provincial legislature pass a provincial act in regard to a matter that falls outside its competences?”

The third objective of the Aarto Act is to establish a procedure for the effective adjudication of infringements. However, Zondo said this also falls within the judicial system and therefore within the national sphere of government, not provincial.

“So, it is difficult to understand how legislation that seeks to establish a procedure connected with a matter that falls within the competence of the national sphere of government would fall within the exclusive legislative competence of a provincial legislature.”

Aarto’s fourth objective was to alleviate the burden on the courts of traffic offenders, and again this fell within the competence of the national government and not the provincial legislature, Zondo said.

The court found that like the National Road Traffic Act, the Aarto Act regulates matters which must be appropriately regulated nationally.

“A person licensed to drive a vehicle may drive the vehicle anywhere in SA and on any type of road. Legislative provisions aimed at encouraging drivers to drive safely and penalising them when they do not is something which is eminently suitable for national regulation.”

It would “lead to chaos if each province or each municipality had its own rules about safety on the road. Again, this would not prevent a province or municipality from passing an ordinance or bylaw to create additional rules or offences to cater for regional or municipal concerns.”

The court did not confirm the Pretoria high court’s ruling that Aarto was inconsistent with the constitution and was invalid, and dismissed the application with no costs.

Meanwhile, Outa said they were not too devastated by the court judgment, stating that they were merely trying to warn the government that the system would not work.

CEO Wayne Duvenage told SowetanLIVE's sister publication TimesLIVE that they were more concerned about the implementation of the act, but that the government does not seem to consider external input.

“We had workshops with stakeholders and invited the Road Traffic Infringement Agency and they just refused to come. As for the ruling, we can agree to disagree. We respect the ruling, but we might not have got the argument across. We tried to prevent a disaster ... We are not aggrieved by this judgment. Go ahead and let’s see what happens,” he said.

TimesLIVE