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The Pretoria High Court declared the AARTO Act (46 of 1998) and its accompanying Amendment Act (4 of 2019)
“unconstitutional and invalid” on 13 January 2022. This followed after the Organisation Undoing Tax Abuse (OUTA) challenged the constitutional validity of the Act in 2020.

1. The Act
The AARTO Act, spearheaded by the Minister of Transport, sought to overhaul the way that South African
traffic laws are enforced, and the offenders of such laws punished, by creating an entirely new system of compulsory administrative enforcement, rather than the previous system of judicial enforcement through criminal law. In essence, the Act proposed a system whereby a legislative authority would be created to
exclusively handle contravention of traffic laws. If an infringer of traffic laws was unhappy with a decision
by the Authority, the infringer would need to refer their matter to the Appeals Tribunal, which the Act also
sought to establish. Only if a matter had been decided on by the Authority and the Appeals Tribunal,
would a dissatisfied party be allowed to refer the issue to a Court in terms of the Promotion of
Administrative Justice Act, 3 of 2000.

2. The Challenge
Of great importance to note, is the fact that OUTA’s challenge to the constitutionality of the Act is not based on the proposed new system per se, but instead lies in a much deeper and more central constitutional theme: the powers and functions of our three-sphered governmental system, being National, Provincial, and Local.

In its application, OUTA argued that the National Government, through Parliament, had no legislative competence to enact the Act or its amendment as, in doing so, the National Government had trespassed on the narrow constitutional areas over which it has no legislative or executive power. In simpler terms, OUTA believes the National Government is meddling in the affairs of the Provincial and Local Governments as road traffic issues have historically, almost exclusively, been dealt with by these two spheres of government. The Minister, in his answering papers, argued that the National Government does indeed have – remember this –concurrent powers to get involved in this issue and that those powers are
inferred upon it by the Constitution.

The tug of war centred around Schedules 4 and 5 of the Constitution. To oversimplify, these schedules list
various specific governmental responsibilities and appoint a responsible governmental sphere for each.
Regarding road traffic (in the broadest of terms), the schedules prescribe that:

  • The National and Provincial Governments have concurrent legislative competence on issues regarding “road traffic regulation”;
  • The Provincial Government has exclusive legislative competence on issues regarding “provincial roads and traffic”; and
  • The Local Governments have exclusive executive authority on issues regarding “traffic and parking” and “municipal roads”.

Remember ‘concurrent’? The Minister relied on this provision to argue that the National Government has
the necessary powers and that these powers were executed concurrently with the Provincial Government
to the extent that 8 of the 9 provinces agreed to the Act.

3. The Age-Old Question: How should we interpret the Constitution?
Differences in the interpretation of the Constitution is no new occurrence and our Constitutional Court
has had to, on numerous occasions, deal with this issue. Although our Constitution is arguably the finest
in the world, there exists no singular recipe for the proper interpretation thereof. This has led to extensive
(and perhaps rather, expensive?) litigation on the issue.

Of great assistance to the Court in this matter, was the fact that the many previous instances of courts
dealing with the interpretation of the Constitution have led to some reliable approaches to this problem.
The Court applies a hybrid of previous approaches:

  • The bottom-up carving out approach, which argues that where issues overlap, those competencies which resort under the exclusive legislative and executive competence of Local Government, must first be carved out. This must then be repeated for the competencies of the Provincial Government until finally, only the exclusive legislative and executive competencies of the National Government remain.
  • The prefix approach, which argues that the mere prefix attached to the specific function adequately indicates the responsible sphere, for example, municipal roads, or provincial roads.
  • The historical allocation of power approach, which argues that where the Constitution confers powers over the same issue to different spheres of government, preference should be given to the sphere that historically executed the powers.

After applying the above approaches, the Court found that the Minister’s attempt to rely on the
concurrent competencies would result in the bottom-up approach being applied from the top-down and
would accordingly, be incorrect, and subsequently sets fire to the problematic Act (figuratively, of course).

4. Can anything be salvaged from the burning Act?
The Constitution comes with a built-in sanction for offending laws by providing that Courts must declare any law inconsistent with the Constitution, invalid. This can be done by either declaring a specific part of the act invalid or by declaring the entire act invalid. The test to decide this was eloquently worded in the matters of Coetzee v Government of the Republic of South Africa and Matiso and Others v Commanding Officer, Port Elizabeth Prison and Others (1995):

If the good is not dependant on the bad and can be separated from it, one gives effect to the good
that remains after the separation if it still gives effect to the main objective of the statute.

Ultimately, the Court found that the offending provisions of the Act could not be severed from it, as the
main objective of the Act was to replace the previous system with a system that was firmly in the hands of
the National Government. The Act, in its entirety, was allowed to burn.