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JPSA: Statement by the Justice Project South Africa, non-profit corruption prevention company, on the changed version of the AARTO Amendment Bill (02/07/2013)

2nd July 2013

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On Friday 28 June 2013 a significantly changed version of the AARTO Amendment Bill, 2013 was published for public comment in government gazette 36613. The former version was published on 20 February 2013 for public comment in government gazette 36173.
 
Justice Project South Africa submitted a comprehensive set of comments on the former version and has been acknowledged in the memorandum on the objects of the latest AARTO Amendment Bill as having participated in this consultative process.
 
The latest version has corrected many of the flaws contained in the previous version published for comment but has unfortunately introduced some new ones, and again refers to “electronic service” of AARTO documents without defining what form of electronic service will be deemed to be lawful.  It also reintroduces the presumption that such a document will be deemed to be served 10 days after sending it by post or electronic means.
 
It is of concern to us to note that once again, it is being mooted in certain circles that the AARTO Amendment Bill seeks to  “pave the way to allow service of infringement notices by ordinary mail” as opposed to registered mail.  This is most certainly NOT the case at all.
 
Whilst the amendment to section 30 of the Act proposed in the Bill specifically removes references to registered mail and alludes to an additional service method by “electronic” means, it further goes on to say “as prescribed”.  This term means that the regulations attached to the AARTO Act will have to clearly prescribe and define the methods by which service must take place and this is most certainly the case with respect to posted documents in terms of AARTO.
 
The current regulation 3(1)(b) of the AARTO Act states that “An infringement notice contemplated in section 17(1) of the Act shall be issued and served or caused to be served to the infringer by registered mail, on a form similar to form AARTO 03 as shown in Schedule 1, within 40 days of the commission of the infringement.”
 
In the proposed amendments to the regulations published in 2011, this provision was NOT disposed of but was further defined as below (extract from proposed updated regulations):
CHAPTER 2
Adjudication procedure
 
Infringement notice and notice of summons
 
2.
(1)
Where an infringer committed an infringement, an infringement notice contemplated in section 17(1) of the Act must in accordance with that section be served or caused to be served on the infringer–
 
(a)
in person at the roadside, on form AARTO 01 or AARTO 02; or
 
(b)
by registered mail, on form AARTO 03, within 40 days of the commission of the infringement;
 
(c)
in person at a place other than the roadside on form AARTO 03 within 40 days of the commission of the infringement; and
 
(d)
in the case of an unattended vehicle, the Authorised Officer must place an AARTO 31 or 34 notice in a conspicuous manner on the unattended vehicle.
 
For some ominous reason, it would appear that someone wants the public to believe that ordinary mail will be allowable as a means of service for AARTO infringement notices.  This can never be the case since ordinary mail does not cater for the specific postage date of a particular infringement notice, let alone its date of service.  This is more especially true with respect to the “permit mail” methodology of posting mail items since this involves the bulk up front purchase of postal fees and any item can be posted using this facility, without any record of the specific items posted.
 
The AARTO Act relies heavily on prescribed timelines and is rendered completely impotent immediately when an infringement notice is sent out in an unrecorded manner.  The onus of proving the date on which an infringement notice is posted is and always will vested directly with the issuing authority and their say-so, as opposed to an independent record thereof with the South African Post Office will never be regarded as sufficient by any Court in South Africa.
 
Justice Project South Africa will again be commenting on the latest version of the AARTO Amendment Bill however we feel that it is important to set the record straight with respect to the issue of service of AARTO infringement notices by ordinary or “permit” mail, just in case the JMPD again decides that they may simply forge ahead with illegal service of their infringement notices, as they have in the past and continue to fraudulently intimidate motorists into paying them at their prolific roadblocks.

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