BCHC: The implications of the aarto act and the demerit system on the workplace

Written by Danny Hodgson

Introduction

South Africa has worrying statistics surrounding fatalities on the road and traffic violations. This is mainly due to irresponsible and reckless driving, drunk driving and vehicles being on the road that are no longer safe to drive. The Administrative Adjudication of Road Traffic Offences Amendment Act (AARTO), which was signed into law on 13 August 2019, aims to promote safer driving with the introduction of a demerit system.  Although its commencement date is yet to be announced, it is important for motorists and employers to understand what the consequences of this demerit system are before it comes into operation. The commencement was originally expected to be in June this year but given the impact of COVID-19, this may not be possible.

How the system works

The demerit system is a points-based system whereby motorists will incur demerit points as a result of traffic violations or alleged violations. The number of points incurred per violation will depend on the type of violation, with some offences attracting no points and others attracting as many as 6 points. The maximum amount of points that a motorist can incur is 12, and each point above this will result in a 3-month suspension of that person’s driver’s license, professional driving permit or operator card. A license, professional driving permit or operator card will be cancelled after the third suspension.

Demerit points in respect of vehicle operators and drivers are recorded separately even if they arise out of the same incident. The AARTO does however give motorists the chance to reduce their demerit points and, as a result, promotes responsible driving in that 1 demerit point will be lost were no points are incurred over a 3-month period.

The consequences of exceeding the maximum amount of demerit points are quite severe and will cause big problems for those who do not have access to public transport. Employees who earn a living operating as a driver could face dismissal due to their license being suspended or cancelled. Employers will be required to follow an incapacity process as provided for in the Labour Relations Act, 66 of 1995 in order to deal with drivers who can no longer render their services due to a suspension or cancellation. Should employers be unable to accommodate such employees by adapting their duties, they may be justified in dismissing them.

Employers who employ drivers should therefore implement or amend existing policies to regulate the disclosure of demerit points and to outline the consequences of an employee exceeding the maximum amount of demerit points.

A constitutional challenge

It remains to be seen whether the AARTO will survive constitutional scrutiny in the pending case of Dembovsky v Minister of Transport and others [North Gauteng High Court, Case No 24245/18] which is expected to be heard in August or September 2020, given that it is premised on the principle that a motorist issued with a “traffic fine” (i.e., a notification informing the motorist of the alleged offence and inviting payment of an admission of guilt fine) is actually guilty unless he or she proves otherwise. This clearly goes against the constitutional presumption of innocence. On the other hand, the drastic consequences of the AARTO may be counterbalanced to some extent by the need to promote responsible driving. But even if it is upheld, its effectiveness will ultimately depend on the way that it is enforced.