On cash-cows and the Administrative Adjudication of Road Traffic Offences Act, 46 of 1998 (“AARTO”)
I would expect in these days of COVID-19, that the SA political and administrative spheres would agree that if there are cash-cows that will rake in revenue, they should be revived, polished up, commenced and implimented as soon as possible.
The AARTO Act is definitely such a cash-cow, and after stultifying in only partial application in SA and a slew of court cases, it seems that indeed the politicians are gearing up to making it usable, by initiating the process of making appointments to the AARTO Board (See Notice 346 in Gazette 43471 dated 2020/06/25 – see here).
Yet, AARTO has, to my mind, certain fundamental problems that need to be sorted out before it becomes a viable cash-cow to your COVID-19 strapped economy. I should like to make some points in regard to this, around which to have a discussion.
The difficulty of discussing AARTO
Sometimes, in order to have a discussion however, it makes most sense to reference what one says to a technical language that is not commonly understood or used, and that sometimes even has to be invented idiosyncratically to suit the data and what one needs to communicate, to whom.
This is definitely the case here, so before we start, let me introduce a referencing technique I have developed to refer to legislation and versions of legislation – and it is the ONLY referencing system that works for the purposes of discussing legislation from a technical perspective in relation to the rule of law – in order that I may embark on a discussion of the Administrative Adjudication of Road Traffic Offences Act, No. 46 of 1998 (commonly referred to as “AARTO”) :
Referencing system used here
The referencing system is quite simple really, and it is this:
Acts, their sections, and their versions are referred to by a string of numbers in the format 0000_000_000_00000000_00000_0000_0000_0000, in which a string left at zeros indicates information that is not available or not given
That string refers, left to right, refers to the following: YEAR_NUMBER_SECTION_DATE PUBLISHED_GAZETTE NO_GAZETTE VOLUME_NOTICE NO_REGULATION NO
So, for example:
“Act 1998_046_036” refers to “section 36 of Act 46 of 1998”
“1998_046_000-Act-v19981109” refers to the version of Act 46 of 1998 that was published on 1998/11/09
“1998_046_000-Act-v20030220” refers to the version of Act 46 of 1998 that was published on 2003/02/22
“Notice 1998_046_036_20100401_33084_0538_0014″ refers to Notice 14 in Volume 538 of Gazette 33084 dated 2010/04/01 published in terms of s36 of Act 46 of 1998”
To read the string out in plain English, simply read it backwards. And note, that the reference string can, if and where convenient to the context, be truncated so that it is not so prolix. For instance, “Notice 20030220_33084” refers to “Notice 20100401_33084_0538_0014”
The magic of this reference string is that it ALWAYS allows me to see view legislation chronologically and sequentially. Why is that important? It is important because it allows me to easily audit legislation and actions in terms of legislation against basic rule of law (that’s what I do.. audit legislation and actions in terms of legislation against the rule of law) requirements, such as, that law be published, commenced and applied.
The reference string allows me at a glance to identify such things as legislation that is applied without being first published; commenced but not applied; not commenced but applied anyway; commenced twice on different dates; or repealed twice by different Acts. It also allows me to easily identify a Board that’s done nothing, or a Board that is doing things after their term of office has expired, or a Minister acting outside of their portfolio, and so on. And, in relation to the current discussion, that allowed me to understand there is a fundamental problem with the commencement and application of Chapter III of the AARTO Act that flouts basic principles of the rule of law, and that no matter the intentions of the powers that be to turn it into a cash-cow in these heady COVID days, it may turn into a sinking hole instead.
In other words, the string I use to reference legislation and subordinate legislation derives from a database that is organized chronologically under specific legislation and actions in terms of that legislation, and which allows for the audit of those against fundamental principles of the rule of law.
Let me throw you into the deep end of the reference system straight away, and hope you can take it from there.
Commentary on Act 1998_046_019A and 019B_20030220 (as unamended inserted by Act 2002_072_011_20030220)
Act 1998_046_019A and 019B were inserted into Chapter III “Adjudication Procedure” of the AARTO Act by Act 2002_072_011_20030220.
Act 2002_072_011_20030220 commenced on its date of publication with no provisions relating to commencement.
Following the rule that an Act commences on its date of publication unless otherwise indicated, and that an amended Act commences on the date of commencement of its amending Act, it would seem that Act 1998_046_019A and 019B_20030220 commence on 2003/02/20, which note for later discussion – is a date prior to the commencement of any other section of Act 1998_046_000 because further sections of Act 1998_046_000 were only commenced from 2007/07/01 onward.
This rule is based on the requirement in the Constitution Act 1996_108_081 that says:
“A Bill assented to and signed by the President becomes an Act of Parliament, must be published promptly, and takes effect when published or on a date determined in terms of the Act.”
It is clear from this that an amending Act that goes through the same process of promulgation through Parliament, and assent and publication, is no less an Act in terms of the Constitution than an Act that does not amend another Act and that may not only amend another Act but contain substantive provisions of its own, and therefore would have to commence in terms of the Constitution 1996_108_081 just like any other Act
The big question is however, when and how amendments by an amending Act commenced in the amended Act? To provide a concrete example, it is clear that amending Act 2002_071_000_20030220 commences on 2003/02/22 in terms of the Constitution 1996_108-081 because it contains no commencement provisions itself. However, what determines the commencement of Act 1998_046_000 as amended by Act 2002_071_000? Or, maybe we should even phrase that differently and ask, what determines the commencement of provisions of Act 1998_046_000 as amended by Act 2002_071_000?
There are two possible approaches to determining the commencement date – as in the case of Act 1998_046_019A and 019B
The standard approach to determining commencement of an Act as amended
The standard approach to determining the date of commencement of an Act as amended, using Act 2002_071_011_20030220’s insertion of Act 1998_046_019A and 019B_20030220 as an example – is as follows:
(1) Act 1998_046_019A and 019B_20030220 were inserted into Act 1998_046_000 by amending Act 2002_072_011_20030220, on the date of publication of Act 2002_072_000_20030220.
(2) The date of commencement of amending Act 2002_072_000_20030220 is, in terms of the Constitution 1998_108_081, either on its date of publication , or a date or dates that can be determine from the content of amending Act 2002_072_000_20030220.
(3) The date of commencement of an amended Act is determined by the amending Act. It cannot be otherwise because there is no power under the Constitution providing otherwise. An amending Act that has no provision that speaks to its commencement but be taken as an indication of the Legislature’s intent that it commence on publication. Further, there is no provision in the Constitution for an Act to commence any Act other than itself. As so, if an amending Act contains provisions that an Act it amends commences as amended on a particular date, that would be unconstitutional. And if an amending Act empowers for instance the President to commence it by Proclamation and the President then issues a proclamation that commences the amended Act, not the amending Act, that proclamation would be unconstitutional.
(4) This method of determining the commencement date of an Act has been the modus operandi in SA for ever and a day, and is the one followed as common practice throughout the world. To hold otherwise would offend a number of basic principles of the rule of law such as ensures law is for example certain, known and applied, and would necessitate the unraveling of that in relation to such a vast and extensive body of existing and interrelated legislation as to destabilize the rule of law on a grand scale. Which is no doubt the danger the very specific wording of s81 of the Constitution 1996 sought to avoid
In the result, based on this approach to determining commencements of Acts, as unamended and as amended, we reflect that Act 1998_046_019A and 019B_20030220 commence on 2003/02/22, because Act 2002_072_000_20030220 had no commencement provisions and therefore commenced on its date of publication 2003/02/22; and that therefore ipso facto, Act 1998_046_000_20030220 (ie in its version as amended by Act 2002_072_000_20030220) along with its new sections 019A and 019B commenced when Act 2002_072_000_20030220 commenced – that is, on 2003/02/22.
It is apparent, as confirmed by the issue of Proclamation 1998_046_036_20100401_33084_0538_0014 which purposed to commence Act 1998_046_019A and 019B_20030220 on 2020/04/01 iro Johannesburg and Tshwane, despite that Act 2002_072_011_20030220 and therefore along with it Act 1998-046_019A and 019B_20030220, had commenced throughout the RSA on 2003/02/22.
A sticky question is whether, once Act 1998_046_019A and 019B_20030220 came into existence and commenced on 2003/02/22, whether they became subject to Presidential powers to commence them under Act 1998_046_036_20030220?
The answer to that question, is that the question is moot because those Presidential powers were nugatory given that Act 1998_046_019A and 019B _20030220 had already commenced, and had done with throughout the RSA. Perhaps one can mold this problem within an arguement that the President should be considered functus officio in regards to the commencement of Act 1998_046_019A and 019B_20030220? Who knows as yet.
A further sticky question is whether once incorporated into Act 1998_046_000_20030220 and actively commenced, the President’s powers under Act 1998_046_036_20030220 could be exercised to limit application of Act 1998_046_019A and 019B_20030220 to Johannesburg and Tshwane?
The answer is firstly that this is a moot point because if Act 1998_046_019A and 019B_20030220 are commenced throughout the RSA by operation of commencement requirements in the Constitution, then commencement notice GG20100401_33084_0538_0014’s attempts to expand rather than limit the jurisdictional application of Act 1998_046_019A and 019B_20030220 would be wrong in itself. Another answer is that secondly the question is moot because Act 1998_046_019A and 019B_20030220 having been commenced throughout the RSA already, the President is functus officio in relation to Act 1998_046_036_20030220 as regards commencement of Act 1998_046_019A and 019B_20030220.
What should have been realised by the drafters of amending Act 2002_072_000_20030220, is that they needed to insert a provision in Act 2002_072_000_20030220 for a commencement mechanism that allowed for commence Act 2002_072_011_20030220 (and hence Act 1998_046_019A and 019B_20030220) that was conditional on the operation of Presidential powers in Act 1998_046_036_20030220 commencing their operation in specific jurisdictions
A second approach to determining commencement of an Act as amended?
A second approach to determining the commencement of amendments to an Act, may be to regard the amendments – here, those in relation to the insertion of Act 1998_046_019A and 019B_20030220 – as having been merely engrossed into Act 1998_046_000 by Act 2002_072_000_20030220 (NOTE: whether that date of insertion is to be determined by reference to the date of assent to or publication of Act 2002-072_000_20030220 or some other means is not the topic at the moment but must be an issue borne in mind) without commencement, and that the date of commencement of Act 1998_046_019A and 019B_20030220 is not on that date of insertion but as prescribed by the Constitution. To argue this would require that we argue that the Constitutional provision 1996_108_081 applies not only to an Act as published, but also to an amended Act that is published by way of publication of an amending Act
The primary problem with this approach is that that is not how things are done in the RSA let alone over the world and much legislation would unravel if this became the rule.
A second problem with this approach is that an amending Act is just as much an “Act” in relation to the Constitution as is an original unamended “Act” and as is an amended “Act” and that therefore, the Constitutional provisions in Act 1996_108_083 apply to amending Act as well, and arguing that publication of an Act that contains amending provisions (because remember not all amending Act are solely about amending other Acts) somehow shifts the Constitutional requirement from it as an “Act” (that it bear provisions that allow for its commencement date/s of commencement) to another “Act” that already has its own provisions regarding commencement, and make those apply to the amending Act.
In the result, given this context, we record that Act 1998_046_019A and 019B were inserted into Act 1998_046_000_20030220 on the date of publication of Act 2002_072_000_20030222, and that – give there are no commencement provisions in Act 2002_072_20030222 and therefore the Constitutional provisions apply – they commenced as active sections of Act 1998_046_019A and 019B_20030222 on the date of publication of Act 2002_071_000_20030220 on 2003/02/22, and not by way of President’s Proclamation GG20100401_33084_0538_0014, which Proclamation is therefore nugatory.
And in further result, we reflect that the President’s Proclamation GG20100401_33084_0538_0014 issued in terms of powers of Act 1998_046_036 were outside his Presidential powers because the power to commence that he purported to exercise had already been exercised in relation to Act 2002_072_000_20030220 by operation of the Legislature not having included specific commencement provisions in Act 2002_072_000_20030220 which were realised and eventuated simply upon the publication of Act 2002_072_000_20030220 on 2003/02/22, and that therefore the commencement date of Act 1998_046_019A and 019B_20030220 must be considered to be 2020/04/01, and that the operation of Act 1998_046_019A and 019B_20030220 is not limited by Proclamation to merely Johannesburg and Tshwane, but to the whole of the RSA.
It should be noted, to be considered in relation to the above conundrum, that Act 1998_046_019A and 019B_20030220 both fall within “Chapter III Adjudication procedure” of Act 1998_046_000_20030220 which Chapter III also consists of Act 1998_046_017, 018, 019, 020, 021 and 022, all of which appear to be logically related. However, the commencement of those sections in the rest of Chapter III were effected years later than the date of commencement of Act 1998_046_019A and 019B_20200322 on 2003/02/22, putting the application of some sections of Chapter III of Act 1998_046_000_20030220 at a disjuncture with other sections of Chapter III: For instance, the commencement date of Act 1998_046_017 to 022 (which we imagine to have intended to include 019A and 019B but appear to be nugatory in relation to 019A and 019B because they had already commenced) was fixed as 2008/11/01 iro Johannesburg by Proclamation GG20080701_31197_0000_0024, and was fixed as 2008/07/01 iro Tshwane by Proclamation GG20080701_31198_0000_0025), years and years after sections to which those relate (being Act 1998_046_019A and 019B) had already commenced on 2003/02/22.
Conclusion
So the question is, is AARTO to be the cash-cow under the COVID era or not? I would say not
Because law is a funny thing: It always raises the bar in challenging the political and administrative regimes of the day. And the bar to questions of whether an Act that has been commenced without publication, or not commenced and applied, or applied without being commenced, or amended in its wrong version, can now be applied, is really only as high as the understanding of fundamental requirements of rule of law by those wanting to raise the bar. If you want to walk into court with a big tome bearing the law as published by well-known publishers, or raw Gazettes, without contextualizing what you present to Court as “the law” within the compass of the rule of law, you’re setting the bar really low, and incrementally jeopardizing the rule of law along with other legal practitioners doing the same