The ups and downs of AARTO

Round two of our series on the Administrative Adjudication of Road Traffic Offences (AARTO) Act. As promised, GAVIN MYERS will continue the feature with an outline of the Act from a business perspective – what it means, how it works, what the implications will be, and how to manage it.

Since the first feature on AARTO published in FOCUS March 2011, and an update in the press last month, the full implementation of the Act (ie with points demerits) originally promised to come into effect on 1 April 2011, has again been postponed. Word from Department of Transport (DoT) spokesman Logan Maistry was that no new date was set but that it “will” be implemented within this financial year. If history is open to repeating itself, that could extend to the next as well.

I’m sure you’ll agree; it would be so much better if the DoT, and all relevant bodies such as the Road Traffic Management Corporation (RTMC) and the various Municipal bodies, got their ducks in one arrow-straight row beforehand.

This article is very much a continuation of the first – the basics are still the same in terms of how points and fines are administered. However, there are certain differences that need to be noted when looking at the Act from the perspective of business. Remember, the first part took the perspective of the private individual (the article is available on www.focusontransport.co.za).

Before delving into the nitty-gritty, one or two definitions and reminders need to be noted:

1. When referring to an “operator” the following are included, according to the National Road Traffic Act (NRTA) Regulations of 1996:
• Goods vehicles with a GVM higher than 3 500 kg
• Breakdown vehicles
• Dangerous goods vehicles (section 273 – 283 NRTA)
• Buses or mini-buses with a GVM higher than 3 500 kg or with capacity for more than 12 passengers
• Any vehicle used for the conveyance of passengers for reward, eg taxis, shuttles.

2. Remember, that AARTO 01 and AARTO 02 refer to fines received from a traffic officer at the scene of the offence, the only difference being 01 is completed by hand while 02 is electronic (eg overloading at a weighbridge), while an AARTO 03 notice is issued after the fact (eg camera speeding fines).

3. Remember, too, the lifecycle for fines has four stages – infringement notice, courtesy letter, enforcement order and warrant of execution.

Points and fines
Let’s follow the same outline as before – beginning with the demerit points. As previously covered, the maximum demerit points an individual can accumulate is 12, with each subsequent point resulting in a three-month licence suspension. This system holds true for operators, their drivers (who will generally need to be nominated), and their vehicles as well, in that each of an operator’s vehicles is allowed a maximum of 12 demerit points on its profile, and exceeding this will result in the suspension of the vehicle’s operator card, again for three months per point above 12.

The operator itself is not exempt as the company’s total fleet, too, will incur points. This means: operators are allowed a “total” amount of demerit points (the combined total for all the vehicles in the fleet) as per section 45 of the NRTA which is calculated by a sliding scale as per Schedule four of the AARTO regulations. Again, exceeding the maximum will result in a suspension, this time of all operator cards issued to the operator, but only for a period of one month per point, not three.

The reduction of points is still the same – one for every three months for every vehicle in the fleet that has not incurred additional points. Note that if a court finds that the process has deliberately been delayed with the aim of a reduction of points, this will be null and void.

So, regarding the fines, not too much has changed. The main point is that there are obviously different charges applicable to different classes of vehicle as per the charge sheet (remember that allowing the fine lifecycle to reach the enforcement order stage will automatically incur demerit points on the National Contravention Register).

Here though, are the interesting bits, and this is where some believe the “darker side” of AARTO shows through. Operator vehicles incur points for operator fitness infringements, for which both the driver and operator will receive a fine. Drivers of a non-operator vehicle – for example, an employee driving a company car – do not have to be nominated, and the fine will then have to be paid at triple the original value!

Slightly confusing, I’m sure you’ll agree. Jan du Toit of the South African Labour Guide summarises it as follows: “With operator vehicles, there are two possibilities – fines for operator fitness and fines for speeding. With regard to operator fitness, the driver gets fined and possible demerit points, plus the company gets an operator fitness infringement and demerit points for both vehicle and fleet, but the fine value is not inflated.

“With speeding fines, the company can either pay the fine at the normal value (still not inflated) or nominate the driver. This will depend on the company’s policy regarding such AARTO infringements. If the driver is successfully nominated, he is responsible and may incur demerit points. No demerit points are allocated for the vehicle or fleet since this does not relate to operator fitness,” he says.

“With a non-operator vehicle and speeding fines, or any other fine that is not issued in the name of the driver, the company may nominate the driver (or may not), or may pay the fine at three times the value (or may not), or make representation or elect to be tried in court (or may not). There are no demerits for the company or vehicle since the vehicle is not an operator vehicle and the company does not have an operator fleet.”

What is clear then, is that it is important to set out how the fines are managed. In fact, how the entire process is managed.

Management
Your approach to managing AARTO (and your employees) can vary due to many factors. It is highly recommended that a person be appointed to manage AARTO for one’s company. This is important as there are numerous aspects that need to be kept track of, such as the status of infringements, demerit points and logbooks, among others. This person would also have to collect notices, nominate drivers, appear in court on behalf of the company and deal with offenders. The company should also implement proper record keeping procedures such as comprehensive logbooks, and points will need to be verified regularly.

It is important to note, with regard to logbooks, section 17(5) of the Act, which states: “The owner or operator of a motor vehicle who permits any person to drive such vehicle or otherwise to exercise any control over such vehicle, without having ascertained the full names, acceptable identification and residential and postal address of such person is guilty of an offence (note!) and liable upon conviction to a fine or imprisonment for a period not exceeding one year or to both a fine and such imprisonment.” (This begs the question as to why, then, fines can be paid at triple the value as described earlier). Thus, a logbook is the easiest way to ensure compliance.

In addition, it is also recommended that comprehensive policies (clearly outlining the company’s stance with regards to obligations, actions, options and consequences) and/or amendments to an employee’s contract are made and all additional relevant documentation put on record. Typical examples could be to:

• Inform the driver of the Act and obtain his agreement to the company’s policy regarding it, as well as the use of their vehicles• Oblige him to conduct comprehensive pre-trip inspections and alert the employer of any problems beforehand, and appoint a manager to sign-off the vehicle before each trip• Alert the company of any notices (AARTO 01 or 02) received whilst on the road
• Alert the company to any demerit points incurred on his/her licence of which the company would not be aware (ie when driving a private vehicle). The employee may also authorise the company to verify points on their behalf – this process will cost R60 for whoever undertakes it
• An agreement as to who is liable for the fines and how they will be paid (authorisation for deductions from salary, etc)
• A comprehensive disciplinary code pertaining to all aspects of AARTO and the company’s policy thereof.

Du Toit suggests that your approach to the policies can be a “gloves on or off” one, but it should be remembered that through every point of policy and procedure formation, the company should consult with a labour relations lawyer in order to protect both itself and its employees. There are many aspects to each of the policies and it is imperative that they be covered wholly and comprehensively.

It is important to remember that this article is by no means comprehensive, it could never be. It is merely a guideline, as was part one, to familiarise you with the basic aspects central to AARTO and your business. Therefore we would advise attending seminars or taking a course – such as that offered by the South African Labour Guide – that deals with the matter in a holistic manner.

The full implementation of AARTO may have been delayed yet again and, yes, there are many contradictions in the Act which are seemingly (hopefully) being corrected, but all parties concerned are positive it is a certainty nonetheless. The only question is when. Take advantage of the breathing space now by getting yourself and your employees familiarised with at least the main aspects of the act, and your company geared up to deal with the increased admin that will doubtlessly result from it – forewarned is forearmed.