Warning: South Africa’s new road rules run on a ‘guilty unless proven otherwise’ basis

The consequences of driving with a cancelled or suspended driver’s licence are in the spotlight following amendments to the Administrative Adjudication of Road Traffic Offences (Aarto) Act, which will ‘go live’ from 1 July 2021.

The changes give the Road Traffic Infringement Agency (RTIA) the power to suspend your driver’s license if you are guilty of multiple contraventions of the country’s road traffic laws.

The act introduces an expansive demerit point system that will eventually include more than 2500 traffic offences or infringements.

Drivers who commit an offence – such as failing to stop at a stop sign, jumping a red light or speeding – will receive a predetermined number of demerit points, which will accumulate against their driver’s licence over time.

Calculating demerit points

A driver who accumulates more than 15 demerit points will have his or her driver’s licence suspended for a period of three or more months: you get three months for 16 points; six for 17 points; nine for 18 points; and a year for 19 points.

Three suspensions will result in a driver’s licence being cancelled and the driver having to repeat the entire licensing process from scratch.

Infringement notices will be issued by way of ‘spot fines’ or registered letters. You can also check your infringement notices online at aarto.gov.za.

“It is important that you keep a close watch over your demerit point status and take the necessary action to inform the RTIA in the event an infringement notice must be reassigned to another driver,” said Deanne van Doesburgh, head of product development at Hollard Insurance.

If you receive an infringement notice, you have 32-days to either pay the fine; dispute the infringement notice with the RTIA; elect to be tried in court; or nominate another driver, assuming you were not the driver when the violation occurred.

If you do not respond in the first 32-days, you will receive a courtesy letter from the RTIA, reminding you of the outstanding fine plus a R60 penalty fee, with 32 more days to act.

And if you do nothing for 64 days, an enforcement order will be issued. Your demerit points will be automatically added to your licence.

Guilty unless proven otherwise

Important considerations for drivers and vehicle owners include:

  • First, the system operates on a ‘guilty unless proven otherwise’ basis, which means that demerit points will count against you unless you successfully challenge an infringement notice.
  • Second, there is a strong chance that points may be issued against the vehicle owner’s licence rather than the driver, for example in the case of a camera trap.
  • And third, driving a vehicle when your licence is suspended is considered a criminal offence, subject to a fine or jail time.

Your insurers can exclude cover for a loss event that takes place when you or another driver drives your insured vehicle with a cancelled or suspended licence, Hollard warned further.

“We advise our policyholders to ensure that their insured vehicles are always driven by someone with a valid driver’s licence,” said Van Doesburgh.

“If a licence suspension results in a change of use of your motor vehicle or change in the regular driver, then you should immediately notify your broker, because it may result in changes to your premium or introduce additional conditions to your policy”.

Brokers must also remind clients who have ‘named driver’ policies that they cannot simply substitute another driver following a licence suspension.

It is common for motor insurers in certain developed markets to consider ‘black marks’ against a driver’s licence as evidence that they are dealing with a riskier client, but Hollard believes it is too soon to incorporate South Africa’s demerit point system into pricing.

The insurer does not foresee any immediate changes to administrative, claims or underwriting processes in response to the AARTO amendments.

Admin nightmare

Hein Jordt, managing director of Ctrack SA, said that while the new system is a good idea, it is fraught with several administrative pitfalls. For example, the demerit points are allocated to the registered owner of the vehicle.

The accumulation of these demerit points could lead to the suspension or cancellation of an individual’s driving licence.

The act states that the owner must then notify the relevant authorities as to who was driving the vehicle when the law was broken so that the demerit points are correctly allocated to the offending driver.

“This presents an administrative nightmare for large fleets, where many vehicles are registered in a single person’s name,” he said.

“When fines are issued, it will be the responsibility of the fleet manager to transfer the fines to the correct offending driver. This means that it is critically important to keep a log of who is driving vehicles when.”

Jordt said that the way employees use vehicles will also have a significant impact on an owner’s business.

“Drivers who breach road regulations risk their own safety, the safety of others, but are also the cause of additional costs for the business such as fuel, maintenance, insurance and even traffic fines if these are not allocated to the individual driver correctly.

“A driver losing their licence due to an ongoing accumulation of points, will also no longer be able to perform their core job function as a driver,” he said.

“In principle, this act is a good idea, road traffic accident statistics reveal that 90% of accidents are preceded by a road traffic offence. The threat of losing your drivers licence will hopefully change the culture of reckless driving behaviour,” Jordt said.

Read: New road laws hit next month in South Africa – these questions still need to be answered

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