JOHANNESBURG – The Minister of Transport has responded to a Parliamentary question brought by the Freedom Front Plus wherein it was asked whether the AARTO infringement notices were being served lawfully as is required by Section 30 of the AARTO Act, or not. It was further asked whether or not the Minister of Transport had sought legal opinion on the legal implications of serving infringement notices contrary to the Act.
This question were asked in writing and for written reply of former Minister of Transport, Sibusiso Ndebele on Friday 9 March, 2012 and written response thereto was received on 6 August 2012. By the context of the reply, it is clear that the response was authored by Sibusiso Ndebele, although it was presented by the new Minister, Mr Ben Martins.
In his reply, the Minister of Transport stated that:
1. The Department of Transport was aware of the fact that the JMPD have been sending out infringement notices by ordinary mail. The exact statement made was “In order to limit postage costs, Johannesburg authorities issued the first notice by ordinary mail by means of an AARTO 03 form. This was to be followed up by a notice by registered mail.”
a. The claim that “This was to be followed up by a notice by registered mail” never materialised. No such follow-up notices have ever been sent by the JMPD and this is not in the least bit difficult to prove given that the “RA Numbers” applicable to the relevant infringement notices are blank on the JMPD’s TMT Services system.
b. It is nonsensical to state that sending out a preliminary (first) notice by ordinary mail and then following it up with a registered mail item would “limit postage costs”. If anything, this would increase postage costs. This lame argument was originally used early on in 2010 by those in the JMPD trying to justify their actions, but it has evolved over time.
2. The reply goes on to say “However, regulation 3(1) determines that the infringement notice must be served by registered mail within 40 days from the date of infringement…” but then somewhere along the line, the train of thought seems to have evaporated.
a. The JMPD has been sending AARTO 03 infringement notices by ordinary mail since 1 June 2010 and since then, almost 20 multiples of 40 days have elapsed without a single infringement notice running on the TMT Services system ever being served in terms of the prescripts of the Act.
b. The re-issue and service of these notices by registered mail at any juncture post 40 days from the date of the alleged infringement would be similarly unlawful.
3. The reply further goes on to state “However, Johannesburg has recently secured funds for the posting of infringement notices by registered mail and it is believed that Johannesburg will use the eNaTIS and serve infringement notices by registered mail as from April 2012”.
a. It is this statement which demonstrates that the response was authored at some time prior to April 2012, when Ndebele was still Minister of Transport.
b. It is now August 2012, and to date the JMPD continues to send out AARTO 03 infringement notices by ordinary mail.
c. It is true that infringement notices captured by MVS Phumelelo (Pty) Ltd and Syntell (Pty) Ltd are being captured on the eNaTIS system, however those captured by TMT Services (Pty) Ltd on their own system continue to be sent by ordinary mail.
d. Infringement notices registered on the eNaTIS system start with 02-4049, 02-4099 or 02-4052. These are typically sent by registered mail as is required by the Act and the penalty (fine) amount for a juristic entity will be identical to that which an ordinary person would incur. There will additionally be no banking details on the reverse of the infringement notice and the alleged infringer will have to pay the RTIA by means of visiting the Post Office or Bank.
e. Infringement notices recorded on the TMT Services (Pty) Ltd system on the other hand start with 02-4024, will arrive by ordinary mail and the penalty amount for juristic persons will be triple that applicable to natural persons. These notices bear the banking details of the JMPD itself and the RTIA will not see a cent of the monies paid into it – ever.
4. In response to whether the Department of Transport had sought legal advice on the service issue, the Minister responded: “…legal opinion on the implications of serving traffic offence notices in a format other than the one prescribed by the Act was not obtained, as Section 30(1) and Regulation 3(1) of the AARTO Act are clear that an infringement notice must be served either in person or by registered mail.” It further went onto say: “The Registrar of the Road Traffic Infringement Agency (RTIA) and I are of the opinion that the legislation is clear and that a legal opinion is not required to clarify exact legislation.”
The response by the Minister of Transport therefore begs the question: if both the Minister of Transport and the Registrar of the RTIA know that the Act is clear and that the JMPD is not acting within the prescripts of it, then why have they done nothing to bring a halt to the unlawful practices of the JMPD? Is it the standpoint of the Minister and the Registrar that a law enforcement agency acting unlawfully is perfectly acceptable in South Africa?
It is a commonly known fact that the JMPD forces people to pay these unlawful fines on a daily basis in their roadblocks and in doing so engages in the crime of racketeering as they use extortion by means of the threats of arrest to extort these monies from motorists.
The complaint laid with the Public Protector by Justice Project South Africa (JPSA) in June 2011 is yet to be finalised by the Public Protector and we have been informed that this will happen “soon”. This was lodged after multiple engagements with the JMPD, RTMC and RTIA failed to achieve any tangible results.
Howard Dembovsky may be contacted for further comment on 082 418 6210 – email firstname.lastname@example.org
The original content of the Parliamentary question and answer appears below:
FOR WRITTEN REPLY
QUESTION NO 542
DATE REPLY SUBMITTED: 06 AUGUST 2012
DATE OF PUBLICATION IN INTERNAL QUESTION PAPER: FRIDAY, 09 MARCH 2012 (INTERNAL QUESTION PAPER: NO 7 – 2012)
542. Adv A de W Alberts (FF Plus) asked the Minister of Transport:
(1) Whether, during the test period in which the Administrative Adjudication of Road Traffic Offences Act (AARTO/APBO), Act 46 of 1998, was put into action in Johannesburg and Pretoria, traffic offence notices were served on alleged offenders (a) by registered mail and/or (b) in person; if not, in which city are the instructions, as contained in section 30 of the Act, not adhered to; if so, what (i) systems or (ii) authorities are used to serve traffic offence notices on alleged offenders by registered mail and/or in person;
(2) whether he sought legal opinion on the implications of serving traffic offence notices in a format other than the one prescribed by the Act; if so, what was the opinion; if not,
(3) whether he intends to seek legal opinion on the matter; if not, why not; if so, what are the relevant details?
3. THE WRITTEN REPLY
The Minister of Transport:
(1) (a) and (b) (i) and (ii)
Infringement notices in terms of the Administrative Adjudication of Road Traffic Offences Act (AARTO), 1998 (Act No. 46 of 1998), were served in person by means of an AARTO 01 form in both Tshwane and Johannesburg. Infringement notices for camera infringements were served by registered mail by means of an AARTO 03 form in Tshwane. In order to limit postage costs, Johannesburg authorities issued the first notice by ordinary mail by means of an AARTO 03 form. This was to be followed up by a notice by registered mail. However, regulation 3(1) determines that the infringement notice must be served by registered mail within 40 days from the date of infringement and the required funds to serve the notices by registered mail could not be secured. In both cases, the South African Post Office (SAPO) is used as the service provider to serve or deliver the infringement notices.
Tshwane uses the National Traffic Information System (eNaTIS) for the processing of all its infringement notices, whilst Johannesburg uses the eNaTIS system since July 2011 for the processing of its personally served AARTO 01 infringement notices. Johannesburg uses systems as provided by its sub-contractors for the delivery of camera infringement notices by ordinary mail. However, Johannesburg has recently secured funds for the posting of infringement notices by registered mail and it is believed that Johannesburg will use the eNaTIS and serve infringement notices by registered mail as from April 2012.
(2) A legal opinion on the implications of serving traffic offence notices in a format other than the one prescribed by the Act was not obtained, as Section 30(1) and Regulation 3(1) of the AARTO Act are clear that an infringement notice must be served either in person or by registered mail.
(3) The Registrar of the Road Traffic Infringement Agency (RTIA) and I are of the opinion that the legislation is clear and that a legal opinion is not required to clarify exact legislation.
National Chairman – Justice Project South Africa (NPC)