AARTO – What does this mean within the employment relationship?

The new demerit system for SA road users is now law with President Cyril Ramaphosa signing the Administrative Adjudication of Road Traffic Offences (Aarto) Bill on August 13. The roll out is anticipated to be later during this year and will start with Johannesburg and Tshwane.

It is essential for both employers and employees (especially those whose jobs depend on having a valid driver’s licence or those who are bound by the company’s policies pertaining to driving and owning of a motor vehicle), to familiarise themselves with the Act and its effect and to take all necessary steps to protect oneself from any possible negative fallout. 

In general the demerit system provides for drivers to be penalised for traffic infringements by the loss of points and which may ultimately result in the suspension/loss of a driving licence.

Generally this is how it works;

  • Each driver will start with zero points (irrespective of the number of classes of vehicle licences held);
  • Depending on the severity of the offence, one to six points are allocated for offences. If a driver collects more than 12 points, it will result in the suspension (disqualification) of the driving licence; 
  • As soon as you exceed 12 points your driver’s license is suspended for a period of three months for each point above 12. (e.g. if you have 10 points on your driver’s license and you receive a fine coupled with five demerit points, your license to operate a vehicle will be suspended for a period of nine months); 
  • If your license is suspended you must hand it over to the relevant authorities and apply to have it returned to you as soon as you are eligible to drive again;
  • Three suspensions will result in its cancellation. This will mean that you will have to go through the entire process again. Learners and drivers licences will need to be applied for;
  • Failing to pay traffic fines can also lead to a block on obtaining a driver’s licence and an administrative fee, in addition to other penalties will become payable;
  • The driver may apply for the return of the licence on expiry of the suspension (disqualification) period;
  • Demerit points will be reduced (for all persons/operators) at a flat rate of one point every three months (or as otherwise prescribed), except when it is evident that the process has been deliberately delayed to obtain a reduction in points;
  • Where documents previously had to be delivered by registered mail through the Post Office, authorities will now also be able to serve documents electronically and send reminders via WhatsApp and SMS; and
  • The establishment of an Appeals Tribunal, which will preside over issues raised under the bill.

It is important for both employers and employees to know the process and how to deal with this in the workplace:

Step 1: the driver will receive an infringement notice (fine) from AARTO (considered to have been received 10 days after it was posted).

Step 2: Upon receipt of this notice you have 32 days to either:

  • Pay a discounted penalty. The value of fines for juristic persons and infringers that hold cross-border road transport permits, as contemplated in section 1 of the Crossborder Road Transport Act, 1998 (Act No. 4 of 1998) will be calculated on the basis of three times the value of the fines as contemplated in column 6 of Schedule 3 of the Act. No demerit points are applicable unless the employer nominates the relevant driver. Demerit points are applicable for all other drivers – even if you pay the fine.
  • Make a representation to the RTIA (Road Traffic Infringement Agency).
  • Arrange to pay in monthly instalments.
  • Nominate the driver of the vehicle.
  • Elect to be tried in court. 

Step 3: -After 32 days the driver will receive a courtesy letter reminding you that you have an infringement notice outstanding. You will be charged for this courtesy letter and your options are now more limited:

  • Pay the Penalty (no discount) as well as the fee for the courtesy letter;
  • Make a representation to the RTIA;
  • Arrange to pay in monthly instalments; and/or
  • Elect to be tried in court. 

Step 4 – Enforcement letter – If you still have not exercised any of your rights as above, you will receive an enforcement order. You must now pay the fine as well as additional fees for the courtesy letter and the enforcement order. Your options are now extremely limited and you may no longer nominate the driver of the vehicle:

  • Pay the Penalty (no discount) as well as the fees for the courtesy letter and enforcement order;
  • Apply for revocation of an enforcement order.

Step 5: The final step involves a warrant of execution which gives the sheriff the power to:

  • Seize and sell your movable property to defray the penalty, fees and cost applicable;
  • Seize and deface your driving licence and/or professional driving permit;
  • Remove and deface the licence disks of all your vehicles;
  • If applicable, seize and deface the operator cards of all the vehicles for which you are the registered operator; 
  • Immobilise all your vehicles; and
  • Blacklist the owner of the vehicle at credit bureaus.

It goes without saying that all employers more especially those with company vehicles or in the transport industry have to take urgent steps to ensure that it is properly protected.

Should your employee/the company fail to deal with such offenses promptly this could lead to the immobilization of company vehicles or even that company property is attached and sold to defray the penalty. 

Another equally important consideration is that employees can incur demerit points in their private capacity without the employer being any wiser. Should such an employee no longer be allowed to drive vehicles (whether private or company) an employer may be at risk in respect of its insurance and public liability.

Employers are advised to immediately redress this in its policies and procedures to mitigate its risks. It should as a matter of course immediately review its existing policies and procedures. Where gaps/risks are identified it will be necessary to draft and thereafter make all its employees aware of these new/ updated policies and procedures.

Once the employees have been made aware of these new/updated rules the employer should implement and consistently strictly apply these when dealing with traffic related offenses and fines. 

Such policies and procedures will have to include as a minimum:

  • Who will be covered by the policies and procedures;
  • Objectives for the policies and procedures;
  • Measures to deal with the administrative process involved in fines received under AARTO (this may be in respect of company owned or privately owned by used by company vehicles);
  • The payment of fines and the recovery thereof from the employee that drove the company vehicle (bearing in mind the provisions of section 34 BCEA) or the nomination of that driver to the authorities within 32 days after receiving the infringement notice; 
  • Disciplinary procedures and the scale of sanctions depending on aggravating circumstances, for each traffic fine incurred;
  • Incapacity procedures for employees whose licenses have been suspended or cancelled;
  • Regular monitoring of its employees’ drivers licenses.

As this may have a severe and restrictive effect on an employer and all unnecessary and additional risks which could cause the employer to suffer loss and damages it is suggested that all employers review their current policies and procedures with the aid of an attorney to provide it with maximum protection.

NB: Please note that this article is for informational purposes only and not for the purpose of providing legal advice. Should you require more information on this topic or any issue arising out of this please contact Allardyce & Partners on 011-234 2125 or enquiries@www.allardyce.co.za

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