Crippling crisis of legitimacy in transport policies

MAHIKENG– Tough time crossing the road on a rainy day? Students’ pedestrian crossing lacks a pedestrian phase, while the intersection itself is literally a puddle to duck and dive. Buses pile along this corridor, as other vehicles queue with them on their way to the other side of Mmabatho. Pedestrains probably violate the traffic law by crossing without a phase; but then again, when they are on the intersection they should have priority. Priority is not given to them in most instances because turning traffic exceeds the cycle time in the traffic light. Who should be charged here? Well, probably whoever is responsible for coordinating traffic– not the road users. Does the AARTO Act enable municipalities to implement? What do you think?

The South African transport policy environment is rather well-known for excellent transport policies, comprehensive planning and poor implementation. However, it seldom discussed how compliance with policies is a prerequisite for implementation. Furthermore, it is crucial to consider the extent to which compliance is incentivised or disincentivized by actors involved in the transport policy sphere. In this particular note, a focus on the Administrative Adjudication of Road Traffic Offences Act of 1998 (as amended as Act No. 4 of 2019). The Act is largely focused on creating a relatively seamless interface between infringements of road traffic legislation or transport legislation  and penalising offenders through a demerit system. It has various layers of correspondence associated with it, and the list of offences and the associated demerits is readily available to the public. While road safety in South Africa is an important issue, various contracts of trust are violated by motorists and non-motorised transport users. Between 1998 and 2019, much has been said about the Act, however it remains a hot and tense topic and for now seems manageable and easy to discuss. 

At the heart of this issue is something which our students and I discussed in a Transport Policy course earlier this week— the tension between legality and legitimacy. James Anderson outlines quite clearly:

“For policymaking, legitimacy is affected both by how something is done (i.e. whether proper procedures are used) and by what is being done. Some actions of government, even when within the legal or conditional authority of of officials, may not be regarded as legitimate  because they depart too far from prevailing notions of what is acceptable.”

Of course there are various other factors, but for purpose of simplicity, focusing on the “demerit” system brings forth some interesting angles about and around how difficult the work of a transport policy maker actually is. When trying to get a policy off the ground, you’re bound to find resistance— which is the whole point of policy making: navigating one crisis after another. 

Pressure groups challenge the cost of agenda specific non-compliance and constitutionality

Pressure groups in SA tend to create a conducive environment for non-compliance through representation in a legal or legitimate argument that is close to public norms and beliefs. Some have raised red flags, while others are trully taking the debate much further.

Formerly known as the Organisation Undoing Tolling Abuse, now Undoing Tax Abuse, OUTA’s focus is on the non-compliance with eTolls as an infringement because it defeats their cause. Since the roll out of electronic tolling aimed at collecting funds from road users as a measure to pay for the road infrastructure associated with the Gauteng Freeway Infrastructure Project, OUTA has argued that users should not be liable to paying tolls to fund a specific road. Their argument against the AARTO Act is oriented along these lines: they fund it unjust to have road users’ non-compliance with eTolls result in them accumulating demerit points every time they pass the gantry. OUTA is very influential in the transport policy compliance sphere, as it has gathered significant momentum, however their constituency which may infringe on legislation, are now not performing criminal offences any longer, under the Act (which is a good thing).

Another pressure group known as the Justice Project SA focuses on the administrative character of the Act, in terms of how it works within the legal context and its application. The Justice Project SA has made significant contributions to and about road traffic issues, and thus have built some influence and legitimacy with regard to their cause. An example of their submissions reveals their focus on the actual implementation of the Act, and highlighting its practice; they also do not want to see “unlawful shortcuts ” being taken by “greedy issuing authorites” which may be incentived to maximise profits. In this example, their submission highlights that the 2015 Bill was aimded “to facilitate the prosecution of e-toll “offenders” and ensure that the proliferation of speed cameras which contribute nothing to road safety but everything to the coffers of issuing authorities and the RTIA alike continues to spiral out of control.”

Howard Dembovsky, chairperson of the Justice Project South Africa, challenges its constitutionality in terms of how it assumes guilt before proof in his personal capacity. He feels that this assumption is largely unjust, and should be rephrased in the Act. Through “The AARTO Atrocity” which is basically “” a domain that is nearly official, he brings to light some of his postions and long-standing debate against the Act as is. In his words:

Although it does not say so directly, at its core, the AARTO Act is premised on the principle that if a motorist is issued a fine for any road traffic infringement, that motorist is guilty unless he or she proves him or herself to not be guilty. This principle goes directly against the grain of the Constitution of the Republic of South Africa, 1996 as well as every legal principle which is held dear where innocence must be presumed ahead of a conviction arising from a fair trial, and lines the AARTO Act up squarely within the sights of a constitutional challenge. “

Business will have to change the way they do things

Business is confronted with the responsibility for road traffic infringements while incentivised to invest in the skills associated with road traffic rule compliant driver behaviour and practices.

Insurance companies are under pressure to adapt to the policy shift in a manner that enables them to reflect changes in cover for a person with a suspended license or high demerits (without disclosing the tracking data they have (probability of getting caught)). The terminology in the act refers to “drivers”, “operators” and “persons in control” of the vehicle which refers to persons actually using the vehicle; companies or entities which own the vehicle which other persons drive; and persons who control the vehicle is a wording that opens up the scope for various scenarios. Therefore, drivers, operators and “persons in control” of the vehicle will have unique liability. 

According to the South African Labour Guide, companies and fleet  owners are compelled to invest in drivers’ propensity to comply as skilled vehicle users. This places telematic solutions and other services at the heart of the future of skilled driver practices.  Companies with a valid drivers license as a prerequisite for work or employment may need to account for suspension issues. Others may need to account for probable impact of employees having their license suspended.

In such instances the importance of viable public transport alternatives can not be ignored in order to add options for road users who have a choice; especially in terms of logn-distance transport. Travel options that shift liability reduce the probability of infringement along various travel needs, for households and companies. 

Municipalities may need to be part of a deeper conversation related to calming traffic to encourage roadways safety

Municipalities are excluded in a sense from this act in terms of implementation beyond administration and issuing. Including an avenue for warranting interventions is enables both sides to be accounted for.

While the Act focuses on road traffic, my view is that it neglects the roadway as a space in which contracts of trust take place. Municipalities need to be responsible for creating conducive environments for compliance for both NMT and motorized transport. This may imply legislating roadway design practices that induce and encourage safety oriented roadway behaviour. (I’m surprised that the COTO team did not raise this directly.) This requires processes for warranting interventions that improve the road safety of a neighbourhood, roadways  and intersections (ie traffic circles, sidewalks and bike lanes)— let alone administering the associated Intelligence of Transport Systems. 

Opportunities for existing and future actors in road safety and its administration

Some opportunities that are lower hanging fruit relate to expanding the scope of the Act to reflect a more balanced view of the roadway from simply “road traffic” in the form of pedestrian and other non-motorised compliance and demerits. This, as our colleague from the Automotive Association indicated needs to be complemented by large scale law enforcement and a technically skilled road traffic official with physical capability, digital and legislative expertise. 

There is also a need for technologies that are already in place to administer infringements for companies but not households (ETC tolling company) to expand their scope to support and simply household needs. Public officials or the Authority may need to create a transparent form of verification between traffic officer; driver; and digitally verifying the infringements (number plate, gis location, and vehicle reporting driver behaviour upon request for the specific time to avoid privacy issues). Many tracking, and insurance companies may become part of this service, which could simplify the process and including a discount on premiums for driver transparency upon infringement would do the trick (there are many counter arguments to this approach though). Lastly, road traffic officer monitoring and verification of practice and enforcement in which all activity is monitored as part of their annual performance. This may potentially reduce the propensity for traffic officers to be implicated in unlawful behaviour because system administrators would not need to ask: “how long were you there? How many vehicles did you stop? Any evidence of infringements or compliance?” Instead, all this information would be available in real-time. 

Policies have to adapt as close as possible to current and future public needs

Some transport policies are entrepreneurial in nature, and policy makers may need to create and focus on the system effects of transport interventions. However, it is not easy to do this when pressure groups, media reports and other debates sway public opinion and their propensity to comply. What really matters is how the policy makers and the ministry responds to the pressure groups, public opinion and practical factors associated with business, households and entrepreneurs. If they neglect the debates, then the policy might not evolve with the time. If they delve deep into the discussion, then a clearer picture could be drawn along all party lines. This might not mean consensus, or a perfect policy. Instead it would imply that the policy is a true policy because it responds to the the current and future needs— through action or non-decision. Where the headlines associated with our Minister say “it is too late to stop the AARTO Act” we’re probably missing the opportunity to nurture it. As I say to our students “some policies are implemented, some are said to be” (paraphrasing here to sound fancy). 

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