THE BLOG
23/03/2018 06:56 SAST | Updated 23/03/2018 06:56 SAST

New Traffic Law Inconsistent With The Rule of Law

Traffic law does not work like the rest of our justice system, with traffic law, you are guilty until proven innocent.

Vathiswa Ruselo/ AFP/ Getty Images

The illegalities of the Administrative Adjudication of Road Traffic Offences (AARTO) Amendment Bill are too numerous to analyse in the space of one article. Suffice it to say that the Bill embodies the very arbitrariness against which the constitutional drafters sought to protect South Africans when they included the provision for the supremacy of the Constitution and the Rule of Law rather than that of politicians and their whims in section 1 of our highest law.

South Africa's recent swing back to paternalistic authoritarianism is deeply concerning: expropriation without compensation, threats of disarming law-abiding citizens, raids on investigative journalists who expose corruption, internet censorship and an impending criminalisation of 18 to 21-year-old drinkers. Now we are threatened with a traffic law that seeks to oust the jurisdiction of the ordinary courts of law and replace them with an "administrative" process under a state bureaucracy that will almost certainly violate due process and individual rights.

... Traffic law does not work like the rest of our justice system. Whereas ordinarily you are innocent until proven guilty, with traffic law, you are guilty until proven innocent.

The Rule of Law, as a Founding Provision in the Constitution, is a concept about guarding against arbitrariness. This means, among other things, that the courts must adjudicate disputes because, before they can hand down a judgment, they are bound by onerous rules and customs such as having to provide detailed reasons, to hear both sides of a dispute and several other intricacies of courtroom procedure. Administrative agencies are not bound by these rules, but by a much lower standard of administrative justice.

They also do not comply with the Rule of Law, which requires that whoever is applying the law must not be vested with excessive discretion. The law is required to provide the objective criteria that those officials mechanically enforce; something lacking in traffic law.

One of the great tyrannies of traffic law generally, which the changes to AARTO is strengthening, is the reverse onus of proof.

The ordinary principle of natural justice is that the party that alleges must prove, meaning that if law enforcement officials believe you have violated a traffic law, they must prove it before a court of law before you can be punished. This makes logical sense because the truth is not self-evident and the word of a traffic officer should not be sufficient to incur the wrath of the law.

But traffic law does not work like the rest of our justice system. Whereas ordinarily, you are innocent until proven guilty, with traffic law, you are guilty until proven innocent. This is why we pay fines without being found guilty of anything.

AARTO will now provide that if someone does not challenge an infringement notice, an enforcement order will be issued against them regardless and that even if a challenge is successful, a new infringement notice may be reissued within six months.

A lot of Rule of Law-violating traffic law enforcement conduct goes under the radar because South Africans, desperate for safety, do not question the extraordinary powers vested in traffic officers...

Also worrying is the removal of the jurisdiction of the court system.

According to traffic law watchdog Justice Project South Africa, alleged infringers will no longer be able to go directly to court. They must first be processed through the Road Traffic Infringement Authority, and any appeals will go before an executive tribunal. If the tribunal rejects the appeal, only then can the alleged infringer approach the ordinary courts.

In other words, motorists will be forced to spend time and money dealing with what will in all likelihood be a bureaucratic mess before they can approach the courts, a system that is also known not to be timeous or easily affordable.

Our roads are often chaotic and, generally, unsafe. This has led to popular calls for intervention to make the roads safer. Indeed, this is what the changes to AARTO purport to do. We must, however, be cautious and not allow our emotional and passionate desire for safety to cloud our judgment and blind us to the substance – and not merely the form – of the new law.

A lot of Rule of Law-violating traffic law enforcement conduct goes under the radar because South Africans, desperate for safety, do not question the extraordinary powers vested in traffic officers under laws like the National Road Traffic Act, such as being able to drive your vehicle around to test its roadworthiness.

The liberty of South Africans is currently under a multifaceted siege. Now is the time for vigilance and extreme caution when dealing with government's fanciful ideas and initiatives.

Martin van Staden is a legal researcher at the Free Market Foundation and is pursuing a master of law degree at the University of Pretoria.