The Administrative Adjudication of Road Traffic Offences (Aarto) Act and Amendment Bill is a controversial issue. That aside, companies need to understand their responsibilities as well as ways to protect themselves from possible liability relating to employees’ driving offences.
“While there is no proxy system when it comes to the demerit system, companies are responsible for their company fleet, and need to ensure a system is in place for company drivers to comply with the Aarto Act,” says Jakkie Olivier, CEO of the Retail Motor Industry Organisation (RMI).
Ferose Oaten, National Chairperson of the RMI’s Vehicle Testing Association (VTA), points out that many business owners serve as the representatives of the company on behalf of their fleet. “While the Aarto Amendment Bill is quite clear that company representatives cannot lose points on behalf of company drivers, they have to ensure demerits accrue to the correct person,” she says.
Every company must have a responsible person who is ultimately accountable for dealing with licencing, roadworthiness, as well as traffic fines issues. Oaten explains that it will fall on the responsible person of a company to be answerable so as to ensure that all provisions of the National Road Traffic Act and the Aarto Act are complied with. Where they are not, they will need to assign the blame to the natural person who was caught committing an infringement. The most common infringements are those received in the mail (a camera fine) and addressed to the company, with the responsible person’s name and ID number also on it. Infringements or offences for which the driver is stopped for at the time of commission would be written up in the driver’s name at that time.
Not keeping a register of the driver or person in control, while not specifically mentioned in the Aarto Act, becomes an infringement under the obligation that does exist of ‘failing to obtain the particulars of a driver prior to letting them exercise control over that vehicle’. For the first time in traffic legislation in this country, companies and organisations are required by legislation to record these details. It is vital that the address details on record with eNatIS are correct and up-to-date so that infringement notices are deliverable to the correct person. The Aarto Act deems all notices that have been posted to the last known address of the infringer to have been received ten days after posting by registered mail.
“It is my recommendation that company representatives take the time to familiarise themselves with Aarto,” says Oaten.
Gavin Kelly, CEO of the Road Freight Association, says companies need to include an Aarto clause in employment contracts for all employees who will be exposed to the demerit system. This must include company reps, delivery drivers, and so on. “This clause must allow the employer access to the employee’s demerit history. The reason for this is once someone has received 13 demerit points they are no longer allowed to drive a vehicle. The employer can be held responsible if the employee drives after that,” he explains.
He believes a system needs to be put in place where employers can monitor and collate drivers’ and vehicles’ activity data on a daily basis. “Unfortunately, currently there is no such system available from authorities where demerit points accrued can be monitored in a real-time live database.”
Olivier adds that while opinions still differ on whether the Aarto Amendment Bill will be a solution to South Africa’s road safety woes, the fact remains that the road death toll is unacceptably high. “We all need to take responsibility for our own driving and improve our driving behaviour whether a demerit system is imposed or not.” Along with that, he says that nobody should lose sight of the fact that even with poor driver behaviour being the immediate cause of an accident, in many instances the underlying reason remains the un-roadworthy state of the vehicle.
Oaten agrees. “The RTMC Crash Report of 2018 identifies drivers between 25 and 44 (peaking between 30 and 34) experiencing the highest level of fatalities. While 80% of these accidents were attributed to driver behaviour, following some transgression of the rules of the road, the reality is that while driving an unlicensed vehicle is not in itself the cause of an accident, smooth tyres, for example, may be. Consequently, the focus on driver behaviour is all good and well, but needs to be accompanied by an increased focus on vehicle safety and vehicle roadworthiness. Maintaining a roadworthy vehicle by going for regular checks will equally have a positive impact on the number of road crashes,” she concludes.