Month: Dec 2020

RTMC threatens motorists with unlawful arrest

ANPR cameras are used to identify vehicles with unpaid traffic fines

Justice Project South Africa (“JPSA”) notes with concern that the RTMC has stated its intention to flout the law and violate the Constitution this festive season.

According numerous media reports, “The RTMC advises all motorists to check if they have any outstanding traffic fines before embarking on their festive journeys. Traffic officers are being deployed on all major routes and those found with outstanding traffic fines will not be allowed to proceed.”

There is no provision in any law that authorises traffic officers to prevent motorists from proceeding with their journey if they are found to have outstanding traffic fines. A traffic fine is not a warrant of arrest and should not be regarded as one. An arrest warrant is issued by a judicial officer if a person has been summoned to court and has failed to appear.

A traffic fine however constitutes an allegation of wrongdoing. It is not an invoice or a tax. Preventing anyone from proceeding with their journey on the strength of an “outstanding traffic fine” constitutes de facto unlawful arrest. Forcing such persons to pay a fine or fines under threat of formal arrest constitutes extortion.

“As much as I detest having to continually repeat myself, it is high time that traffic law enforcement officials started obeying the provisions of the law that apply to them,” said JPSA’s Chairperson, Howard Dembovsky. “The RTMC is too fond of threatening motorists with things that are not provided for in law,” he continued.

For many years now, the RTMC has threatened motorists who are alleged to be driving under the influence of alcohol with “a minimum of seven days in jail” before being allowed to make a bail application. There is no such provision in the law that authorises this and it is unlikely that there ever will be.

The RTMC is responsible for coordinating road traffic law enforcement nationally.

“Instead of inciting unlawful behaviour by traffic officers, the RTMC should be acting responsibly, by concentrating on initiatives that promote road safety and save lives, where reckless drivers are stopped before they crash into other road users,” Dembovsky said.

“While hidden speed cameras are super money-spinners for greedy municipalities and roadblocks can detect unroadworthy vehicles, together with those that have unpaid traffic fines, neither tackle the wanton reckless behaviour that plays itself out on our roads every day. Only professional visible and active policing can do that,” he concluded.


UPDATE

In response to requests for clarification from Amanda Watson, a senior journalist at The Citizen regarding what legislation provides for traffic officers to prevent motorists from proceeding with their journey if they have outstanding traffic fines, the spokesperson for the RTMC, Simon Zwane said:

“I said people should check if they don’t have warrants of arrests against their name. Warrants issued in terms of the Criminal Procedure Act. Many parts of the country are using section 56 notices of CPA to issue traffic fines and warrants are issued for people fail to pay and fail to appear in court. It is not an Aarto process”. However, as appears below, this is not what the RTMC’s press statement said.

Zwane then went on to say: “It’s warrants issued against unpaid traffic fines and failure to appear in court on the date stated on the traffic notice issued. The starting is an in unpaid fine that leads to a warrant.”

Again, JPSA reiterates that a warrant of arrest in terms of the Criminal Procedure Act will only ever arise in respect of a traffic fine if a person is summoned to appear in court and fails to appear. There is no requirement in the Criminal Procedure Act that anyone MUST pay an admission of guilt fine, and in so doing, admit that they are guilty of the alleged criminal offence.

It is not clear why the RTMC continues to believe that it can threaten unlawful actions. The difficulty with it doing so is that some traffic officers may believe the RTMC and end up inviting a flood of civil claims against their employers when they unlawfully arrest people.

The RTMC’s press release appears below (with the relevant text highlighted):

08112020-Festive-season-arrests-highlighted

National Road Traffic Amendment Bill public participation re-opened

The Parliamentary Portfolio Committee on Transport has re-opened the public participation process regarding the National Road Traffic Amendment Bill, 2020.

The Committee’s website states: “This is a second call for submission on this bill (the previous ran from 26 October to 20 November). The Committee noted that over 6 900 submissions had been received but this was a small number relative to the driving population who would be affected by the Bill. The Committee agreed that the Bill should be more widely advertised, including on radio.”

JPSA points out that the last time driving licence holder statistics were published was in March 2017. As of 28 February 2017, there were 12 283 777 licensed drivers in South Africa.

Considering that the RTMC has repeatedly said that around a half a million new drivers join the driving population annually, it is possible that the current number of licensed drivers is approaching 14 million.

This means that during the last public consultation round, approximately 0.05% of the driving population made submissions to the Committee. This is somewhat ironic, considering that the Bill proposes to remove the below 0,05mg/100ml (0,05%) blood sampled alcohol limit and replace it with a zero level.

JPSA made its submission to the Committee on 20 November 2020. Its submission can be found here.

“It is and remains our view that what is needed for instances of driving under the influence of alcohol (“DUI”) to be effectively reduced is for proper enforcement and prosecution to become the norm,” said JPSA Chair, Howard Dembovsky.

“Whether there is a ‘limit’ or not is irrelevant. No court will convict anyone of this criminal offence if proper forensic evidence is not put before it,” he continued.

Although tens of thousands of motorists are arrested for the crime each year and no statistics are provided by the NPA, it is a known fact that the conviction rate for DUI is extremely low.

“It is our view that removing the alcohol limit entirely will only serve to drive arrests up and the conviction rate down,” Dembovsky lamented. “Although being arrested is a horrible experience, it does not have the same deterrent effect as incurring a criminal record does,” he contends.

“If the conviction rate for DUI was close to 100%, I can guarantee you that few people would take the risk, but that will only happen if evidence is put before the courts,” he concluded.

JPSA welcomes this extension and encourages motorists to make submissions on the Bill to the Committee before the new closing date (20 January 2021). Dear South Africa has reopened its user-friendly public submission portal at https://dearsouthafrica.co.za/road-traffic/ for those who wish to easily make submissions.

Expired driving licence cards, etc. extension

Important information for affected drivers:

On 3 December 2020, the Minister of Transport issued a further extension to the validity period of all learner’s licenses, driving licence cards, temporary driving permits and professional driving permits that expired or will expire from 26 March to 31 December 2020. All such cards are deemed to remain valid until 31 August 2021.

JPSA advises anyone who falls within the category above to download a copy of Government Gazette 43958 of 3 December 2020 to print a copy of page 4 thereof and to carry such copy, together with their expired licence/permit with them while driving. This is to avoid entering into roadside litigation with anyone who may not be aware of the said extension, including but not limited to law enforcement officials, security complex guards and insurance companies.