AARTO’s big risks to employment in South Africa
The Administrative Adjudication of Road Traffic Offences Amendment Act of 2019 (AARTO) is likely to severely affect employment relationships in South Africa when it launches nationwide next year.
The most notable addition to South Africa’s road laws through AARTO is the introduction of a demerit system, where a person, operator or company (juristic person) incurs demerit points when a traffic infringement is committed.
Despite already being in operation in Johannesburg and Tshwane, the nationwide rollout of the new laws is expected to start in July 2024.
Jerry Kappu and Amandla Makhongwana from Bowmans said that AARTO will have far-reaching consequences for current and future employment relationships.
This will be especially felt for employees who are employed as drivers or expected to have a valid driving licence or professional driving permit.
“The most glaring consequence of AARTO is that of the demerit system. An employer’s operator permit will be subjected to this system when contraventions are committed by its employees while on duty and/or in their personal capacities,” the experts said.
“The demerit system places an obligation on employers to account for their own conduct as well as that of their employees.”
Section 17 of AARTO states that the owner or operator of a motor vehicle who allows someone to drive their vehicle must acquire the driver’s full name, ID, address and email address.
AARTO will also apply to those who use independent contractors, where the contractor works under the employer’s operator card.
“If the employer fails to keep a record of the authorised drivers of a vehicle and/or to nominate the driver of the vehicle, the employer may be liable to pay a hefty fine and/or face imprisonment for one year,” the experts said.
The potential consequences to the employer for the habitual infringements of their employees include the following:
- The suspension of the employers’ operator card or any permit or licence issued in terms of any road traffic legislation or transport legislation;
- During the period of suspension, the company may not apply for an operator card, motor vehicle licence disc, operator card or any other permit, card or licence disc issued in terms of road traffic legislation or transport legislation;
- During the period of suspension, the employer would be barred from operating a motor vehicle on a public road;
- The cancellation of any permit or licence issued in terms of any road traffic legislation or transport legislation or operator card;
- Payment of a monetary penalty;
- Liability for a fine or imprisonment for up to one year.
Although it is not clear how AARTO will be enforced, employers should introduce several measures to help manage the risks of AARTO.
This includes proper record keeping, regular verification of the demerit points against an employee, the implementation of strict policies regarding company vehicles and more.
For instance, in regard to a disciplinary offence, the employer can introduce policies that state it is a disciplinary offence to obtain demerit points whilst driving a company vehicle.
“This means that the employer would be required to deal with the consequences of the employee driver’s licence being suspended versus the licence being cancelled,” the experts said.
If an employee’s driver’s license is suspended, the employer will have to decide the duration of the suspension and determine a way to fulfil the employee’s job responsibilities while also considering the employer’s operational needs.
If the licence gets cancelled, the employer may be able to institute disciplinary or incapacity proceedings against the employee if there is an appropriate policy in place.
“The intricacies of enforcement are yet to be determined, but employers should be alive to the possibility that the new system will place additional permitting and administrative burdens on them, and effectively make employers liable for their employees’ traffic infringements to a greater extent,” the experts concluded.
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