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Alta Swanepoel AARTO: RISKS and SPECIAL PROVISIONS B R I D G I N G T H E G A P B E T W EE N T H E O R Y A N D P R A C T I C E.

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Presentation on theme: "Alta Swanepoel AARTO: RISKS and SPECIAL PROVISIONS B R I D G I N G T H E G A P B E T W EE N T H E O R Y A N D P R A C T I C E."— Presentation transcript:

1 Alta Swanepoel AARTO: RISKS and SPECIAL PROVISIONS B R I D G I N G T H E G A P B E T W EE N T H E O R Y A N D P R A C T I C E

2 AARTO has been in force in Tshwane and Johannesburg since 2008 All aspects of AARTO has not been implemented yet Risks and specific consequences have not been evaluated yet Demerit points of legislation will only be in place when AARTO is in force in entire country INTRODUCTION

3 LEGISLATION Act 46 of 1998 Amendments in 1999, 2000 and 2002 Regulations published in July 2008 Amendments in March 2010 Draft amendment published in April 2011 Revokes old regulations and republishes entire set – not implemented yet Draft has been amended again – not republished

4 AARTO is the process act to prosecute road traffic infringers – Tshwane and JHB It exists parallel to CPA Currently only road traffic infringements Amendment to include cross-border, toll and NLTA infringements Criminal Procedure Act, 1977 is the process act to charge criminal offenders CPA is not replaced by AARTO AARTO does not deal with criminal offenders Road traffic offences still prosecuted under CPA until AARTO is fully implemented Where does AARTO fit in?

5 NRTA PROVISIONS Owner – person who use and enjoy motor vehicle Title holder – person who gives permission to sell vehicle Section 73 of NRTA creates a presumption: Owner drove/parked vehicle, if driver unknown Corporate body = owner, presumed director or servant drove vehicle as duty or to further interest of company

6 Proxy legislation The legislation relates to owners/operators of motor vehicles There is no definition of a “proxy” or a “representative” in the legislation The provisions of the different acts allocate duties an liability to owners, operators, directors or servants of companies The responsibility to allocate duties and the management of liability remains with the owner or directors of a company – the legislation stipulates the duties but not the manner in which it must be managed

7 Sec 341 Pay/nominate driver Sec 56 Pay/ court Warrant Sec 54 Pay/ Court Warrant Criminal Procedure Offence Trial/ plead guilty Acquit/ convict Proxy may be arrested on warrant Sec 54 – service: 14 days, person 16 or older, home or work address

8 RTIA = Road Traffic Infringement Agency Deals with payments, representations, nominations Commissioner of Oaths Needs to signs AARTO 07, 08 and 14. Affirmation or affidavit Service fees R 60/R100 Discounts 50% - pay in 32 days GENERAL INFORMATION

9 Enforcement Order Infringement Notice Warrant Courtesy letter AARTO PROCESS Each process valid for 32 days Time limits to respond Resubmission in 21 days if no receipt is received Risk: Costs may be incurred if response is not in time Risk: Company will pay more if driver is not nominated on camera and parking infringements

10 New provisions in AARTO Act Must change address with authorities within 14 days – failure - infringement Serving by registered mail: *Presume mail is received 10 days after date on notice from Post office *Last know address used + NaTIS address +AARTO 07 address +Address on AARTO 01 or 02 Actual collection date NOT recorded on NCR If notice is not collected – process continues Risk: Company will incur costs and be charged if driver is not nominated

11 New provisions in AARTO Act Must change address with authorities within 14 days – failure - infringement Serving by registered mail: *Presume mail is received 10 days after notice from Post office *Last know address used + NaTIS address +AARTO 07 address +Address on AARTO 01 or 02 Risk: Mail will be regarded as delivered even if address is wrong or out dated

12 Infringement Notice 50 % discount - Demerit points recorded Pay in 32 days No discount, pay less per month over 6/12 months – AARTO 04 Demerit points recorded on first payment Pay in instalments To RTIA – AARTO 08 – minor infringements May be accepted/rejected/referred to court Make representation Choose to appear in court AARTO 10 Court AARTO 07 Commissioner of Oaths must sign Nominate driver Courtesy letter issued Does not act on notice Proxy receives mailed notices: Procedures required if proxy does not act in time Proxy receives Operator charges – AARTO 03 – needs to determine action company will take on it

13 Courtesy letter No discount – Service fee R60/R 100 Demerit points recorded Pay in 32 days No discount, pay less per month over 6/12 months – AARTO 04 Demerit points recorded on first payment Pay in instalments To RTIA – AARTO 08 – minor infringements May be accepted/ rejected/referred to court Make representation Choose to appear in court AARTO 10 Court Not available Nominate driver Enforcement order issued Does not act on notice Service fee: - R60 -R 100 Representation fee – R 200

14 Enforcement Order No discount – Service fee R60/R 100 x 2 Pay in 32 days AARTO 14 Commissioner of Oaths Request revocation Not available Representation Nomination Court Recorded on issue of EO Demerit Points All vehicle licences Driving licence and Prdp NaTIS Block Warrant of execution of property issued Does not act on notice Risk: Licences not issued for any vehicle of owner Demerit points recorded Licences blocked

15 Warrant Issues warrant Registrar of RTIA Costs charged by Sherriff also collected Sherriff executes warrant Property, licence, operator card Impounds Normal rules of execution of property apply Court rules Vehicle may be immobilized to prohibit use Immobilizes vehicle No property – section 54 issued – criminal court process No property Additional costs, loss of property, documents and vehicle use

16 DEMERIT POINTS Maximum of 12 points DP for drivers and operators Every point over 12 points = 3 months disqualification to drive Point = 3 months 1 point every 3 months if no further points are obtained Reduction of points Third disqualification = Cancel licence Reapply for learner’s and driving licence

17 OPERATOR CHARGES Section 49 and 51 of National Road Traffic Act Vehicle control 49(d) Driver Control 49 (c) Control dangerous goods transport 49(f) Control loading of vehicles 49(g) Information 49(a) Card display 49(b) Presumption Owner regarded as guilty if he cannot prove: *reasonable action *not employee’s job * Did not connive with employee

18 Entire Fleet suspended on maximum points Additional costs – R 1250 per charge Fleet cannot be extended if OP card is suspended Points for operator cards – suspension of vehicle RISKS AARTO Operators Driver not licensed Roadworthiness of vehicle Overloading Dangerous goods

19 Fleet suspended Schedule 4 1 Month = 1 Point over maximum Points Maximum/ number of vehicles OPERATOR FLEET POINTS Operator must have driver policy, fleet maintenance policy, procedures and disciplinary process to comply with section 51 of NRTA

20 3. Vehicle 3 infringement 4 DP 1. Vehicle 1 infringement 4 DP 4. Vehicle 1 – Pins reduce by 1 after 3 months 2. Vehicle 2 infringement 4 DP Fleet = 120 OP vehicles Max points = 1140 Fleet points

21 ItemCodeRefDescriptionClPenaltyD PRandDiscPay Op Reg 35(7) Operated a vehicle without a front or rear number plate affixed to the vehicle OC (c) Sect. 32(1) Operated a goods vehicle with a GVM > 3500 kg. without a professional driving permit issued to him or her. I (c) Reg. 192A(2)(a) Goods vehicle with GVM more than 3500kg not fitted with contour or strip markings at the sides / rear or such markings affixed higher than 600mm from lower part of body I (d) Sect. 58(1) Failed to stop motor vehicle at stop sign of traffic or customs official. Non-RWC I

22 Example - Driver Display number plates with no SANS mark – R 1000 and 3 points Commits no infringements for three months Points reduce = 2 points total Speeding 128 in 100 zone - R 1000 and 3 points = 5 points total Overload vehicle 10% –R 1500 and 5 points = 10 points total Drive without valid PRDP – 4 points = 14 points total Person disqualified for 6 months from driving Submits licence card – Failure R DP 22

23 Example – Driver and Operator Points Driver : No PrDP – Sec 32 – R DP Stop lamp not in working order – Reg 169 – R DP No contour marking – Reg 192A – R DP Driver did not stop sign – Sec 58 - R DP Overloaded – Reg R DP Driver – 8 points Operator: Sec 49(c) – R DP Sec 49(d) – R DP No action against OP Sec 49(g) – R DP 16 points – OP card suspended 1 year 23

24 Knowledge on legislation Responsible for management of notices Procedures for failure to comply with legislation Negligence – results in block on licences RISKS AARTO Proxies Driver not licensed Roadworthiness of vehicle Overloading Dangerous goods

25 DP in private time – also contribute to total Driver infringements – Operator charged Address details required on regular basis 13+ Demerit points – not allowed to drive RISKS AARTO Drivers Cannot pay penalties on behalf of driver Must nominate driver for speed, red light and parking infringements Driver should refuse to drive unroadworthy/ overloaded vehicle Driver needs to complete AARTO 27 - Permission to check DP New drivers need to submit AARTO 29 – Statement of DP

26 Contracts must require submission of regular point statements Operator cards may be suspended – cannot fulfil contract requirements Contractor must provide loading instructions Subcontractors must control drivers, loading, etc. RISKS AARTO Subcontractors Consignor/ consignee responsibilities to be extended Mass determination Declaration with mass loads

27 Company Policy and Procedures Additional wording in contracts – Driver may not be disqualified from driving Reporting of infringements and offences Code required to manage driving of vehicles – existing offences – new consequences Recording of drivers using vehicles Rules on inspection of vehicles Reporting of demerit points acquired Procedure if employee’s actions result in additional cost for company Responsible driver appointed if more than one driver is using vehicle

28 Training Material AARTO Act and regulations with relevant legislation from NRTA, Guideline on redirecting of fines AARTO driver manual AARTO Poster National Road Traffic Act

29 Sec/RegProblemActions Sec 25  Driver incurs more than 12 points.  Disqualified from driving for period of time  Discipline driver  Suspend or dismiss driver Sec 26  Driver does not reveal demerit points to company  Increases company risk – may not have sufficient drivers to drive vehicles.  Use AARTO 27 to check points  Discipline driver. Check demerit points with AARTO 27.  Determine who is responsible for admin fees

30 Sec 17, 19, 20, 21  Failure to react to operator infringement notice  No discount allowed  Additional charges to be paid And R 1250 per infringement  Responsible person should be disciplined  Fees and full penalty to be paid Failure to provide proxy with information on representation or possible defence on charges Pay penalties, incur demerit points, possible suspension of operator card of vehicle and financial loss in use of vehicle Discipline person responsible and determine who must pay penalties and costs Driver incur more than 12 points Disqualified from driving for period of time Suspend or dismiss driver Driver does not reveal demerit points to company Increases company risk – may not have sufficient drivers to drive vehicles Use AARTO 27 to check points – R 60 Discipline driver Check demerit points with AARTO 27 Determine who is responsible for cost

31 Sec/RegProvisionDuty Reg 1850 Licensing of motor vehicle Appoint proxy for m/v Apply to correct R/A Every branch is separate business – need to license at R/A 54 Within 21 days of buying m/v Annual renewal (21 day grace – reg 23(3)) Reg 3563Number platesObtain number plates Fit to m/v – new m/v (2009+) fix permanently Reg 3665Licence discDisplay disc on m/v Reg 5368Change of ownerForm NCO to R/A

32 Reg 5469Stolen vehicles Report SAPS – 24 hours Form CNV to R/A – 7 days Reg 5571Scrap vehicleForm CNP/ MVR1A -3 months Reg 55A72Impounded by SAPSForm CNP/ MVR1A -3 months Reg 6579ExportingForm CNV Sec Unlicensed driver not allowed to be employed as driver or to drive vehicle Check licence and PRDP validity Sec 42/ reg Roadworthy certificate Annual certificate within 6 months before relicensing –display as part of licence disc (21 day grace – reg 145) Sec General roadworthiness of vehicle Ensure vehicle complies with;  Documents and numbers  Reg 149 to 220 equipment  Reg 221 to 229 dimensions  Reg 230 to 249 loads  Reg 250 to 265A passenger veh

33 Sec 45/ reg Operator registration Display card in terms of reg 272 (21 day grace – reg 267(7)) Sec 49(a)185Furnish information Sec 49(b)185Display card – report if stolen Sec 49(c)185Control driver Be able to prove control as required in terms of section 51  Training  Disciplinary procedures  Check PRDP Sec 49(d)185Control roadworthiness Be able to prove control as required in terms of section 51  Trip sheets  RWC records Sec 49(e)185Control vehicle use to ensure safety Be able to prove control as required in terms of section 51 Sec 49(f)185Control transport of dangerous goodsBe able to prove control as required in terms of section 51  Training  Record keeping  Special agreements

34 Sec 49(f)185 Control transport of dangerous goods Be able to prove control as required in terms of section 51  Training  Record keeping  Special agreements Sec 49(g) 190 Control loading and transportation Be able to prove control as required in terms of section 51  Loading instructions  Training  Agreements with consignors  Weigh slips, axle mass control Reg D/G placards Ensure placards and Trem/Trec cards match up Reg General duties Comply with SANS specs and regulations Reg Compatible loadsCheck compatibility SANS Reg D/G training Annual training PRDP training by approved body Reg Driver documents Trem/Trek cards and Dangerous goods declaration Sec 81325ExemptionsApply to MEC if vehicle does not comply to legislation requirements – TRH 11

35 Adds R 40 to each penalty (R20 discount) No discounts for foreigners and 3 x the penalty? Changes in operator points No sliding scale for operators No commissioner of oath signature? Submission of documents by Changes in form format AARTO 32 and 33 No Act amendments yet Law Enforcement Bill will amend AARTO Act Draft amendments

36 AARTO requires management of drivers, proxies, general administration of vehicles Roadworthiness of vehicles Contracts with subcontractors Law enforcement will be a factor Disciplinary procedures to be in place New amendments in process CONCLUSION


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