How the new AARTO Act will affect employers

Once enacted, the AARTO act could pose a problem for companies in which employees are required to drive.

South Africa experiences an alarmingly high amount of road accidents (and consequential fatalities and injuries) annually, which has the effect of costing the country billions in rand every year. Speeding, drunk driving, lack of seatbelt and child restraint usage and unsafe vehicles are some of the leading causes of accidents, fatalities and injuries on the road.

It is against this background that the President signed the Administrative Adjudication of Road Traffic Offences Act 4 of 2019 (AARTO Act) into law on 13 August 2019. Several objections were lodged against the AARTO Act during the Bill process but despite those objections, it was still signed into law. The AARTO Act is not yet effective in law as its commencement date has not been announced but there are still a few agencies and associations that plan on contesting the newly signed legislation.

What is the intention of the AARTO Act?

The AARTO Act is intended to address motorists' non-compliant behaviour to road traffic laws by effecting zero-tolerance policies to traffic violations. In implementing these policies, the AARTO Act encourages motorists to adopt a new habit of voluntary compliance by introducing a new 12-point demerit system under which a motorist who repeatedly commits road traffic violations can have his or her driver's licence suspended or even cancelled.

If a motorist's driver's license is cancelled, he or she will be required to redo the learner's and driver's examinations. Motorists who drive with a suspended or cancelled license could face a further 12-month suspension and/or be sentenced to one year imprisonment.

Appealing or objecting to an infringement notice must be done by written representation to the Road Traffic Infringement Agency (RTIA) and, if unsuccessful, has to be lodged with the RTIAs tribunal.

What is the impact on employers?

Inevitably this will have an impact on companies that rely on employee's employed as drivers and/or are required to use of company vehicles as part of their job. Once the AARTO Act commences, employers will need to ensure that their drivers possess valid driver's licenses. For drivers whose licenses are suspended or cancelled, employers must ensure that such drivers do not drive. Naturally, this will impact on the employer's operations and thus raises questions around the actions that can legally be taken by the employer against such drivers.

In circumstances where the driver's license has been suspended, the employer will need to assess the period of suspension and then decide how to approach the matter in order to accommodate the employee's inability to perform during suspension on the one hand and balancing the needs of the operational requirements of the company on the other. In circumstances where the driver's license is cancelled, the employer may be able to institute incapacity proceedings against the driver.

Before the AARTO Act comes into effect, employers who make use of drivers as employees are advised to review their current workplace policies and terms and conditions of employment. Employers should have in place suitable processes to deal with drivers who are disqualified from performing their work due to their driver's licenses being suspended or cancelled.

This article was co-authored by Webber Wentzel associate Kalene Watson and Webber Wentzel professional support lawyer  Shane Johnson.