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South Africa: AARTO compliance and employment ramifications

21 September 2023
– 6 Minute Read

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Overview

  • The Constitutional Court has recently upheld the constitutionality of the Administrative Adjudication of Road Traffic Offences Act, as amended by the Administrative Adjudication of Road Traffic Offences Amendment Act (AARTO).
  • While the substantive provisions of AARTO have not yet come into force, Minister Sindisiwe Chikunga announced that the Department of Transport aims to implement the Act by 1 July 2024.
  • AARTO will have far-reaching implications for employers and employment relationships.

The Administrative Adjudication of Road Traffic Offences Act 46 of 1998, as amended by the Administrative Adjudication of Road Traffic Offences Amendment Act 4 of 2019 (AARTO) is not only about a demerit system against individual motorists for their road traffic violations.

AARTO has far reaching consequences for current and future employment relationships.

While the substantive provisions of AARTO have not yet come into force, Minister Sindisiwe Chikunga announced that the Department of Transport aims to implement the Act by 1 July 2024. Therefore, the day is closing in where employers will have to face the realities of AARTO in their workplaces.

This is particularly relevant where employees are employed as drivers or are expected to have valid driving licences or professional driving permits during the course of their employment, and includes those employees who are bound by the employer’s policies in respect of operating a motor vehicle.

It is important that employers familiarise themselves with AARTO and its implications and implement precautionary measures to mitigate against any potential risk.

The most glaring consequence of AARTO is that of the demerit system. An employer’s operator permit will be subjected to this system when contraventions are committed by its employees while on duty and/or in their personal capacities. The demerit system places an obligation on employers to account for their own conduct as well as that of their employees.

Section 17 of AARTO requires that the owner or operator of a motor vehicle who permits any person to drive or exercise control over such vehicle must ascertain the full names, identity document, residential, postal, business and email address of the driver. This will apply to employers and those with operator cards. Moreover, AARTO may also apply to employers who contract with independent contractor drivers in addition to employee drivers, where such an independent contractor operates under the employer’s operator card.

In light of this, employers are required to keep a record of the authorised drivers who operate their vehicles. If the employer fails to keep a record of the authorised drivers of a vehicle and/or to nominate the driver of the vehicle, the employer may be liable to pay a hefty fine and/or face imprisonment for one year.

The potential penalties for habitual infringers, that are applicable to employers, include the following:

  • The suspension of the employers’ operator card or any permit or licence issued in terms of any road traffic legislation or transport legislation;
  • During the period of suspension, the company may not apply for an operator card, motor vehicle licence disc, operator card or any other permit, card or licence disc issued in terms of road traffic legislation or transport legislation;
  • During the period of suspension, the employer would be barred from operating a motor vehicle on a public road;
  • The cancellation of any permit or licence issued in terms of any road traffic legislation or transport legislation or operator card;
  • Payment of a monetary penalty; and
  • Liability for a fine or imprisonment for up to one year.

While it is not clear how AARTO will be enforced, it is important for employers to have in place measures that will assist in effectively managing the risks posed by AARTO to the proper functioning of their businesses. The suggested measures will depend on the size and nature of the business and may include the following:

  • Appoint a person in the company responsible for the coordination and administration of AARTO matters;
  • Implement proper record keeping measures such as logbooks and written particulars of authorised drivers;
  • Conduct regular verification of the demerit points recorded against the name of an employee driver or any person who is required to drive the employer’s vehicle (once the demerit points system is implemented);
  • Regularly collect mail from the Post Office in order to nominate the driver of the vehicle and/or to qualify for the 50% discount where there is an infringement, within 32 days after the service of an infringement notice;
  • Nominate the employee who drove the vehicle at the time of the alleged infringement. The consequence of the nomination is that the employee will incur the relevant points and penalty. The nomination must be done within 32 days of service / presumed service of the infringement notice. If the employer fails to do so within 32 days, it loses the option to nominate the driver;
  • Implement and enforce strict policies and procedures in relation to operating company vehicles. Further, make amendments to the disciplinary codes and employment contracts; and
  • In relation to amendments to the employment contracts, the employer can provide that the employee consents to the employer accessing the employee’s AARTO information.

In relation to amendments to the disciplinary policy, the employer can provide, for example, that it is a disciplinary offence to obtain a traffic fine (or demerit points) whilst driving a company vehicle. This means that the employer would be required to deal with the consequences of the employee driver’s licence being suspended versus the licence being cancelled.

In this regard, where the employee driver’s licence has been suspended, the employee will need to assess the period of suspension and then decide how to approach the matter in order to accommodate the employee’s inability to perform their duties during the period of suspension and balancing that with the operational requirements of the employer.

Where an employee driver’s licence has been cancelled, the employer may be able to institute disciplinary proceedings or incapacity proceedings against the employee where there is an appropriate policy in place.

AARTO has significant ramifications for employers’ business operations, and it becomes necessary for employers to understand the risks that could lead to them suffering loss and damages. It is imperative for employers to review and amend their policies and contracts of employment to accommodate the implications of AARTO.

The intricacies of enforcement are yet to be determined, but employers should be alive to the possibility that the new system will place additional permitting and administrative burdens on them, and effectively make employers liable for their employees’ traffic infringements to a greater extent.