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JPSA supports the AA’s licensing extension request

Justice Project South Africa (JPSA) supports the call of the Automobile Association of South Africa (AA) for Transport Minister, Fikile Mbalula to extend the validity period of all licenses beyond the 30 August deadline. It also urges the Minister to consider doing the same in respect of professional driving permits, and to give special consideration to the difficulties experienced by learner drivers, as a direct effect of the lockdown.

“Learner drivers whose learner’s licenses expired or are still to expire after 31 May are particularly adversely affected,” said JPSA chairperson, Howard Dembovsky. “During the ‘hard lockdown’ learner drivers could not undergo any formal instruction through driving schools, which were prohibited from operating under ‘levels 5 and 4’.”

He also asserted that the resultant demand for new tests for learner drivers who were affected by the lockdown will impact on volumes of applicants to repeat such learners’ tests. “This, in turn has a counterintuitive effect on social distancing, particularly in DLTCs where bookings must be done in person,” Dembovsky said.

Regarding professional driving permits, Dembovsky said that the process to renew a PrDP is more cumbersome than any licence and where one has or is to expire after 31 May 2020, such demand for renewals will have a similar counterintuitive effect, not only in DLTCs, but in doctors’ waiting rooms.

“We hope that the Minister will give the AA’s and our requests his urgent consideration,” he concluded.

The AA’s request to the Minister appears below:

Letter to Minister Mbalula Re License Extension (29 June 2020)

Compulsory wearing of face masks in public places

Since 1 May 2020, it has been law that a cloth face mask, homemade item or other item which covers the nose and mouth of its wearer must be worn in public, when entering buildings or premises, or while travelling in public transport. It has also been law that all employees of businesses who may come into contact with members of the public must be provided with such a mask or covering by their employer.

While it is law that such coverings must be worn, some people appear to be ignoring this requirement. Because no offences for failing to do so have been defined in the regulations, strictly speaking, no-one may lawfully be arrested or prosecuted for such failure. A law enforcement official may however instruct a non-compliant person to either put on such a covering in his or her presence or go home. Failure to do so would constitute the offence of failing to comply with the instructions of a law enforcement official, which is an offence.

The absence of prescribed offences (lacuna) in the law should not be seen as an excuse to not wear coverings. The idea behind everyone wearing some form of protective gear is to mitigate the risks of spreading of COVID-19. It is both foolish and inconsiderate not to wear an appropriate face mask or covering. Simply put, the intended purpose is: “I protect you from me – you protect me from you,” and has been used to great effect in some other countries.

People should however be careful when buying face masks. Because homemade and makeshift face coverings are not subject to any standards, specifications or regulations, anyone can make and sell them.

We have recently learned that some entrepreneurs have taken to selling fabric masks at such places taxi ranks and allowing potential buyers to try them on before purchasing. This practice is extremely dangerous and defeats the entire purpose of wearing a face mask. Common sense dictates that if a person who tries a facemask on unknowingly has COVID-19 and hands it back to the seller to sell it to someone else, the virus can easily be spread.

To download Government Gazette 43258 of 30 April 2020, please click here. The applicable regulations are regulations 5 and 14 and their sub-regulations.

National Road Traffic Amendment Bill, 2020 to be introduced to Parliament “during 2020”

On Friday 3 April 2020, the Minister of Transport published his intention to introduce the National Road Traffic Amendment Bill, 2020 to Parliament during its 2020 sittings, in the separate Government Gazette number 43201.

This comes after Cabinet announced the proposed introduction of the National Road Traffic Amendment Bill, 2019 to Parliament in a media statement dated 12 March 2020, shortly before the national sate of disaster came into effect.

Since the commencement of the lockdown, a flood of directions have been published in the Government Gazette, with numerous new and overriding directions being issued on a daily basis, while government decrees new provisions to address the COVID-19 pandemic, in the complete absence of normal democratic processes which are largely suspended during a national sate of disaster.

Although its publication is a democratically mandated requirement, its timing appears to be an attempt to fly the said referral to Parliament under the radar while constantly evolving COVID-19 legislation causes considerable distraction from normal legislative processes.

The National Road Traffic Amendment Bill, 2015 was originally published for public comment in Government Gazette 37249 of 28 January 2015, with a closing date for inputs of 28 February 2015. Although numerous draft amendments to the National Road Traffic Regulations which rely on the passing of the Bill into law have been published for comment since then, no amendments to the Bill have been published since 2015.

Despite numerous efforts to obtain a copy of the 2019 and/or 2020 version of the Bill, Justice Project South Africa (JPSA) has been unable to do so. On Friday 4 April, JPSA again wrote to senior officials at the Department of Transport to request a copy of the latest Bill.

Owing to the absence of an updated Bill, JPSA is unable to comment on what is contained in the 2020 version at this stage, beyond citing the long list of provisions stated in the objects of the Bill recorded in the latest Government Gazette, announcing its introduction to Parliament.

These provisions include numerous provisions applicable to number plates, microdots, the regulation of driving schools and the removal of the permissible breath and blood alcohol limit for the crime of driving under the influence of alcohol. The latter has been on the cards since the publication of the National Road Traffic Amendment Bill 2012 (see Government Gazette 35528 of 18 July 2012).

Prior to the lockdown, Transport Minister, Fikile Mbalula has repeatedly stated that the zero-alcohol “limit” is contained in the AARTO Amendment Act, signed by the President on 19 August 2019 and which Mbalula claims will come into effect nationally on 1 June. To date, the commencement of the AARTO Amendment Act has not been proclaimed by the President and Mbalula is not empowered to proclaim its commencement.

Whether it comes into force on 1 June or not, alcohol levels while driving are not provided for in the AARTO Amendment Act.

If the zero-alcohol level is to take effect from 1 June, this means the National Road Traffic Amendment Bill, 2020 will have to be fast-tracked through Parliament when Parliament resumes its normal operations.

To achieve the 1 June implementation date, the usual democratic processes of passing the 2020 Bill through the National Assembly, the Parliamentary Portfolio Committee for Transport, the National Council of Provinces, further public participation, back to the National Assembly and then onto the President to assent to it, sign it into law and proclaim its commencement in less than two months will undoubtedly have to be sacrificed. Whether this will pass constitutional muster is debatable.

This is more especially so considering that no-one except possibly a few elite politicians and bureaucrats appear to know what is contained in the 2020 Bill.

The objects quoted in last Friday’s Government Gazette are far from everything contemplated in the 2015 Bill. Among the other previously proposed provisions are the introduction of a “graduated driving licence system”, known as a “provisional driving license” which will see newly qualified drivers being subjected to stringent limitations for a period after passing their practical driving licence test.

Also contained in proposed regulations that followed the 2015 Bill, is the proposal to retest all current holders of driving licences every five years when they are compelled to renew their driving licence cards. The feasibility of this proposal has virtually been destroyed by the shambles created by the Gauteng pilot implementation of the online driving licence test and driving licence card renewal booking system implemented in 2019, even if the yet to be determined retesting criteria are clarified.

Only those who have followed the developments of the numerous draft legislative provisions since the Bill was first published for public comment in July 2012 will be able to make head or tail of what the enactment of the 2020 version of the Bill may mean. However, in the absence of the wording of the 2020 version, together with any amendments to the draft regulations, even those who have followed their progress are effectively in the dark.

JPSA will do its best to keep the media and the public updated on what lies ahead but can only do so if the Department of Transport is transparent.

Announcement of the introduction of the National Road Traffic Amendment Bill, 2020 to Parliament in Government Gazette number 43201 of 3 April 2020

43201_03-04_Transport

 

National Road Traffic Amendment Bill, 2015 in Government Gazette 37249 of 28 January 2015

38429_gen77_NRTA_Amendment_Bill

 

National Road Traffic Amendment Bill, 2012 in Government Gazette 35528 of 18 July 2012

documentsGG_20120718_35528_Bill_for_comments

Results of social media polls on AARTO

Thank you to those who participated in our polls on social media regarding your knowledge on AARTO and whether you want it to be implemented nationally in June 2020. Below are screen captures of the results of our Facebook and Twitter polls, together with one run by Pigspotter, who has a large follower base.

While some may say that those who participated represent a fraction of a percent of the driver population (which is 100% correct), there is a good reason for this.

You see, just like was the case with a survey conducted by the RTIA in 2017, the questions we asked were intentionally loaded. The only difference is that it is easier not to participate on social media than when you are ambushed a licensing department, while standing in a queue.

Why do we say the questions were loaded? Well, because the normal human reaction to a question that asks if you know EVERYTHING there is to know is to not want to look ignorant – or to put it bluntly – stupid.

The loaded nature of the second part of the question plays to people’s sense of reasonableness. After all, what reasonable and law-abiding motorist would not want a points-demerit system to finally come into play in South Africa, when it has been promised for so long? The first “victims” of it would be minibus taxi drivers, right?

It was not our intention to dupe anyone, just to conduct a social experiment. With that said, it seems a tad unlikely that Mr Monde Mkalipi of the RTIA was being truthful when he said “most South Africans want the AARTO Act” when the sample results below appear to indicate the exact opposite.

To be fair, no-one can make a decision either way unless they do know EVERYTHING there is to know about the AARTO Act (or anything else for that matter).

It has been our observation over more than a decade that motorists know very little about the prosecution instruments relating to road traffic offences, and even less about the AARTO Act. This is simply NOT their fault.

That said, it is our stance that the RTIA, being the government enterprise tasked with educating motorists on the AARTO Act should have made some progress in the eleven and a half years the AARTO Act has been in force in Tshwane and Johannesburg. It is apparent that it has made little, if any at all.

IF the AARTO Act does come into force nationally in June 2020, motorists are in for a nasty surprise and many who regard them as being “law-abiding citizens” (because they pay their traffic fines) will find their driving licenses being suspended quite quickly. If/when that happens, there will be an outcry, but it will be too late to do anything about it.

Please go and have a look at https://aarto.co.za so that you understand the full implications of the AARTO Act. After that, if the small percentage of you who say you know everything there is to know and want it to come into force in June still feel that way, then fine, that is your prerogative.

Facebook poll – run over 48 hours.

Twitter poll – run over 24 hours

Pigspotter’s Twitter poll – run over 24 hours

The RTIA’s 2017 survey

Below is the survey the Road Traffic Infringement Agency conducted in 2017. As you will see if you click on this link, this is the only “research paper” available on the RTIA’s website.

RTIA_Survey_2017

The time has long since passed to formalise the “blue light protocol”

It can be terrifying to see blue flashing lights in your rear-view mirror, particularly with the prevalence of bogus cops on South Africa’s roads. So why is there no formal way to deal with this scary situation?

JOHANNESBURG – On 6 December 2019 Justice Project South Africa announced the withdrawal of its endorsement of the “Combatting of Blue Light Gangs Protocol” (often shortened to the “Blue Light Protocol”) it had developed together with the Road Traffic Management Corporation in late 2013.

This arose from an increasing number of violent attacks on and threats levelled against motorists by genuine law enforcement officials who appeared to either be unaware of the protocol or had deliberately chosen to disregard it.

The protocol was intended to protect motorists from attacks by criminals posing as law enforcement officials, together with the brutality sometimes perpetrated by overzealous law enforcement officials.

Shortly thereafter, a revised protocol was developed and sent to the Police Ministry by anti-crime activist Yusuf Abramjee, for consideration for it to be ratified and incorporated into SAPS standing orders. We have heard nothing further from SAPS since then.

Today, the office of the Provincial Commissioner of the SAPS, Gauteng put out a media release in which the Provincial Commissioner advised motorists who felt uncertain about the authenticity of law enforcement officials trying to stop them, to follow the protocol, which he shortened into a paragraph which reads:

“This type of crime is real. Members of the public are thus urged to exercise caution and in the event that they suspect that they are being stopped by bogus cops, put on their hazards and drive to a nearby police station or even a filling station. Motorists should also have the SAPS 10111 number on speed dial and make the call when it is safe to do so.”

Peculiarly, in December 2019, Brigadier Vish Naidoo – national spokesperson for SAPS denied the existence of the former protocol which has been on the Arrive Alive website since November 2013. He authoritatively said: “if police tell you to stop, you must stop” and “people must stop undermining the authority of the State”.

Abramjee, who has come out in open support of the protocol says: “We need this blue light protocol as a matter of urgency. Motorists are scared of stopping and one can understand why. We’ve had a number of incidents recently again where bogus cops have attacked motorists.”

“I have today made contact with SAPS to request an urgent meeting with SAPS legal services officials and the Provincial Commissioner but feel this matter urgently needs to be escalated to the National Commissioner,” said Howard Dembovsky, chairperson of JPSA.

“It is very dangerous for the top brass of SAPS to advise motorists to take precautionary measures to avoid falling foul of bogus cops, while simultaneously failing to formalise the protocol so that every law enforcement official is aware of it and follows it, without resorting to violence and abuse,” he concluded.

SAPS media release appears below:

Office of the Provincial Commissioner of the SAPS, Gauteng
13 February 2020
MOTORISTS URGED TO REPORT POLICE OFFICERS USING UNDUE FORCE ON THEM FOR FAILING TO STOP AT NIGHT
Parktown – Management of the SAPS in Gauteng has noted with concern, a social media post accusing police of brutality in relation to motorists being stopped, particularly at night.
The post further suggests that police refused to open a case for a complainant after one such incident, citing reasons that management will now look into and take action should any wrongdoing be found.
Police management views these allegations in a serious light, and wish to assure the public that action will be taken against any member found on the wrong side of the law. Gauteng Provincial Commissioner, Lieutenant General Elias Mawela is calling upon the person who drafted this specific social media post to contact police to lay a formal complaint or open a case. The person may visit their nearest police station, call the Crime Stop number 08600 10111 or give a tip off on the MySAPS app that can be downloaded onto any smartphone. Information will be treated with confidentiality.
In the meantime, police on 08 February 2020, arrested two alleged blue-light hijackers in Mabopane. This came as a result of intense investigations after police picked up a trend in a number hijackings where motorists were hijacked by either a VW Polo and/or a silver Corsa sedan, both fitted with blue lights.
“This type of crime is real. Members of the public are thus urged to exercise caution and in the event that they suspect that they are being stopped by bogus cops, put on their hazards and drive to a nearby police station or even a filling station. Motorists should also have the SAPS 10111 number on speed dial and make the call when it is safe to do so,” advised the Provincial Commissioner.
Police management will ensure that awareness is raised internally to ensure that members ultimately approach this type of situation rationally.
For media enquiries:
Captain Kay Makhubele
SAPS Gauteng
082 xxx 0402

JPSA withdraws endorsement of “Blue Light Protocol”

JOHANNESBURG – Justice Project South Africa has announced that it has withdrawn its endorsement of the “Blue Light Protocol” which it developed with the Road Traffic Management Corporation in 2013. This comes in the wake of CCTV footage showing a woman being violently manhandled by Tshwane Metro Police Department (TMPD) officers at a petrol station on the night of 5 December, after she allegedly failed to stop for them in a poorly lit area.

 

JPSA Chair, Howard Dembovsky said the protocol was developed to combat the prevalence of criminals using easily acquired blue lights and other police equipment to pose as law enforcement authorities.

He said that so-called “blue light gangs” had been committing violent crimes ranging from robbery, hijacking and kidnapping to rape and murder for many years, but that police had failed to effectively tackle the problem. “Despite this fact, numerous police and traffic officers are wholly insensitive to this issue and incorrectly believe that they are empowered by the law to abuse members of the public who try to protect themselves from violent crime,” he commented.

“In some instances, people have been beaten up. In others, they have been shot at and even been killed by overzealous law enforcement officials. This cannot go on and if, as it appears to be, the Blue Light Protocol is contributing to this abuse, JPSA can no longer endorse it,” he declared. He explained that the National Road Traffic Act requires a motorist to immediately stop for a traffic officer in uniform. Police are also included in the definition of a traffic officer in terms of the Act.

He added that although failure to stop is a criminal offence, if a motorist felt unsafe, he or she should immediately call 10111 to verify the authenticity of the police stopping them and prepare to flee if anything goes awry.

“Should it turn out that the individuals stopping a motorist are criminals posing as police, the motorist should, where possible, institute civil and criminal proceedings against the culprits and the police, the latter of whom are constitutionally obliged to protect them from criminality,” Dembovsky commented.

“In this case, it is our view that the officers concerned should be prosecuted for assault, since it is clear that the woman was merely trying to guard against falling victim to violent crime and was not fleeing from police,” he concluded.

UPDATE: A revised and improved protocol will be released and announced shortly.

Draft AARTO Regulations published for public comment

Minister of Transport – Fikile Mbalula

JOHANNESBURG – Draft regulations in respect of the Administrative Adjudication of Road Traffic Offences (AARTO) Amendment Act are inconsistent with the Constitution and are likely to result in further legal challenges. This is according to Justice Project South Africa Chair, Howard Dembovsky.

The regulations were published in the Government Gazette number 42765 of 11 October 2019, and can be downloaded at:  http://www.gpwonline.co.za/Gazettes/Gazettes/42765_11-10_Transport.pdf

“The draft regulations provide a more complete picture which should have been available during the public consultation phases,” Dembovsky said. “But they go far beyond merely amending the existing regulations – they repeal all the existing regulations and create an entirely new set of regulations,” he said.

“The ‘consultations’ held by the national and provincial legislatures when the AARTO Amendment Bill was being discussed centred only on the Act,” he continued. “But the draft regulations comprise over a hundred pages with scores of new provisions,” he commented.

Although an Act is passed by Parliament, regulations may be made by the Minister without the scrutiny of the legislature. Dembovsky said that this practice was flawed and allowed regulation without Parliamentary oversight.

The foundations of the AARTO Act itself are already set to face a constitutional challenge brought by Dembovsky in April 2018. That matter is to be heard in the Pretoria High Court in early 2020 and is largely unaffected by the AARTO Amendment Act, which is likely to face its own legal challenges.

“At a first reading, the regulations appear to have been rushed to completion and leave many details to the discretion of functionaries and institutions instead of providing clarity on exactly how the processes outlined in the AARTO Amendment Act are to function,” Dembovsky explained. “In particular, the regulations virtually ensure that road users seeking to challenge infringement notices will be confronted with onerous bureaucratic hurdles.”

Dembovsky urged members of the public, and especially legal professionals, to scrutinise the draft regulations, and to submit their comments, objections and suggested amendments before the 10 November deadline.

“In JPSA’s view, a comment period of 30 days is far too short to allow thorough public scrutiny of a complete re-write of regulations pertaining to the recent extensive re-write of the AARTO Act,” he said. “Notwithstanding our encouragement to the public to submit their comments, we believe that the comment period should be extended substantially and call on the Department of Transport to do so,” he concluded.

Footnote:

To make sense of the draft regulations, it is necessary to have the AARTO Amendment Act at hand. The Amendment Act can be downloaded at: http://www.gpwonline.co.za/Gazettes/Gazettes/42648_19-8_Act4of2019AdminiAdjudicRoadTrafficOffencesAmendAct.pdf

Why let the truth get in the way of a ‘good story’?

Road Traffic Infringement Agency company secretary Mcedisi Bilikwana (left) and registrar Japh Chuwe (right). Photo: Keitumetse Maako

“The recently amended Administrative Adjudication of Road Traffic Offences (AARTO) Act is merely meant to promote road safety and nothing else, contrary to reports which allege it would bully motorists into paying their e-toll bills”.

So said the Road traffic Infringement Agency’s (RTIA’s) Registrar, Japhtha (Japh) Chuwe at a media briefing held by the National Press Club in Pretoria, on 19 September 2019.

He reportedly went on to say that the “new” law was not intended for the alleged purpose and that “this misleading information is disingenuous.”

To lend weight to his musings, Chuwe referred to the publication for comment of draft amended regulations to the AARTO Regulations, published in Government Gazette 39482 of 7 December 2015. As he correctly pointed out, therein it was proposed that the single demerit-point applicable to drivers of vehicles for which a Professional Driving Permit (PrDP) is required be removed, but the R500 penalty remain.

That amendment has still not been enacted, almost four years after it was published for public comment.

Propaganda

It is a widely acknowledged fact that all good propaganda has a foundation in truth. Get a charming, eloquent individual to convey that propaganda, and you can almost certainly convince many people that the world is flat.

There’s no denying that Chuwe is a charming and  eloquent individual. He comes across as extremely knowledgeable and genuine, and is an exceptionally talented spin doctor.

However, what Mr Chuwe fails to mention is that the identical Government Gazette also proposed a new AARTO infringement notice form.

The form that proves that the AARTO Act IS about enforcing e-tolls compliance

Called the AARTO 03e “infringement notice [in respect of] multiple camera or electronically captured infringements”, this form seeks to incorporate twenty-five such infringements on a single infringement notice, as opposed to one infringement per notice number. There are many flaws with this ill-conceived idea. Not least of these is that if one wishes to make a representation or nominate a driver for a single infringement, there is no way to do so.

AARTO 03e infringement notice [in respect of] multiple camera or electronically captured infringements.

The relative newcomers to the block in respect of the AARTO Act, OUTA, who have not only publicly stated their intention to challenge the AARTO Amendment Act, but also had quite a lot to say about the timing of that Gazette at that time, have failed to counter Chuwe’s patently untruthful allegations.

That being what it may, one must ask just who is being “disingenuous”. Is it those who have said that AARTO and e-tolls go hand in hand, or is it Mr Chuwe?

The future of e-tolls

On 6 July 2019, President Ramaphosa announced that he had mandated the Minister of Transport Fikile Mbalula working with Finance Minister Tito Mboweni and Gauteng Premier David Makhura to submit to Cabinet a solution to the impasse around e-tolling on Gauteng freeways, to bring an end to the e-tolls catastrophe. “The President has called on the Ministers and Premier to table proposals to Cabinet by the end of August 2019,” the statement read.

On Wednesday 28 August, Mbalula met with OUTA and the AA, only for the SA Government news service to announce on Saturday 31 August that the so-called “deadline” had been extended “to allow for thorough consultation with organs of civil society, labour and business”.

Five weeks later, on 4 October, he met with NEDLAC and COSATU.

Considering the initial e-tolls solution deadline set by the President, it’s hard not to wonder Minister Mbalula waited until the eleventh hour to commence consultation with some organs of civil society, and then a further six weeks after it to meet with others, business and labour. What’s more, it’s hard not to wonder what may have possibly changed in the stance of organs of civil society, labour and business since Gauteng Premier, David Makhura convened his so-called “e-tolls review panel” more than five years ago, in 2014.

Announcement expected

According to MoneyWeb, President Ramaphosa is expected to make an announcement in respect of the commencement of the AARTO Amendment Act on Saturday 5 October 2019.

Let’s wait and see what is announced.

Is it illegal to use social media to warn others about roadblocks?

“Joanne” asks: “I have a quick question. Is it illegal to warn people on a community WhatsApp group of a road block where you are informed of and asked to pay outstanding traffic fines?”

While the question may be “quick”, its answer is a little more complex and therefore has to be comprehensive. It must also be noted that this answer is strictly confined to warning people of roadblocks established for the purpose of collecting traffic fine revenues. Of course, the short answer is: “no, it is not illegal to warn people of the existence of roadblocks in certain circumstances“. But please do read on for further clarity.

What the law says

In terms of the law, there is no definitive prohibition in respect of warning others of the existence of law enforcement operations of any kind. This includes, but is not limited to roadblocks. However, where such an operation is being conducted with a specific purpose in mind (e.g. to apprehend a dangerous criminal), warning the persons who are sought in such operations could be construed to constitute defeating the ends of justice.

That said, in the narrow context of what Joanne’s question appears to be asking, it is unlikely that a Court would accept any allegations of defeating the ends of justice. There are numerous reasons for this, not least of which is that our Courts have previously held that flashing one’s lights to warn oncoming motorists of the existence of a speed trap, for example, does not constitute this crime.

The reason is simple. To be guilty of defeating the ends of justice, the person flashing their lights would have to have a reasonable suspicion that an oncoming vehicle is exceeding the speed limit, or is about to exceed the speed limit. (see: S v Perera [1978 3 SA 523 (T)])

Obviously, there is a difference between flashing one’s lights and using social media to reveal the locations of law enforcement operations and as yet, no legislation has been drafted, or even proposed, to deal with this phenomenon.

While it may be true that warning people of the existence of roadblocks established for the purpose of crime detection and prevention, detecting unroadworthy vehicles, etc. may be shoehorned into the definition of defeating the ends of justice, the same is not true of doing so in respect of roadblocks established with the objective to collect fine revenues, through means of coercion.

What makes such coercion possible is ordinary people’s ignorance of the law. This in turn makes them vulnerable to such practices. After all, what reasonable person would reasonably conclude that a law enforcement official would deliberately engage in unlawful practices?

Both, the Criminal Procedure Act and the Administrative Adjudication of Road Traffic Offences (AARTO) Act have inbuilt, definitive mechanisms to deal with offenders who fail to act in respect of their traffic fines.

The Criminal Procedure Act

In the case of the Criminal Procedure Act, these mechanisms include a warrant of arrest. One is issued should the alleged offender fail to appear in Court, once he or she has been summoned to do so, and fails to appear in Court or otherwise dispose of the matter prior to the trial date.

Where a warrant of arrest has been issued, peace officers are under strict instruction to arrest the person cited in that warrant and are immunised from claims of unlawful arrest. Although such warrants may be executed at a roadblock, the warrant itself does not limit its execution to roadblocks. In fact, the warrant of arrest instructs the peace officer to immediately proceed to arrest the person in respect of whom it has been issued, and bring him or her before the Court that issued the warrant of arrest.

In the case of a road traffic offence for which an admission of guilt fine may be paid, no warrant of arrest may be issued prior to the Court date. Furthermore, no person can be forced to pay a traffic fine in the absence of a Court convicting that person of the offence he or she is alleged to have committed.

According to Section 57(6) of the Criminal Procedure Act, the payment of an admission of guilt fine that appears on a summons issued in terms of Section 54 or a written notice issued in terms of Section 56 of the Criminal Procedure Act, shall result in a criminal conviction being recorded in the criminal records book for admissions of guilt, held at the Magistrates’ Court with jurisdiction.

Although this provision may sound scary, in practical application, criminal records that reflect on the South African Police Service (SAPS) Criminal Records Centre (CRC) database require that a docket is registered and the fingerprints of the convicted person are taken prior to such recordal. In the case of traffic fines, this rarely (if ever) happens unless that person has been arrested prior to their trial and makes payment of an admission of guilt fine after their fingerprints have been taken*.

[* This has repeatedly been confirmed in litigation and judgments before the High Court.]

The AARTO Act

The AARTO Act differs considerably from the Criminal Procedure Act inasmuch as it does not include a warrant of arrest. In fact, it does not include a summons or written notification to appear in Court, unless (in its current form*), the alleged infringer elects to be tried in Court. Even where an alleged infringer does elect to be tried in Court, and subsequently fails to appear in Court, a warrant of arrest may not be issued.

Instead, the AARTO Act employs a series of administrative actions which are designed to effectively force the payment of traffic fines. Amongst these coercive measures is the enforcement order, which has the effect of blocking licensing transactions – but only insofar as things such as licence discs being refused – not the payment of licensing fees being similarly disallowed.

The existence of one or more enforcement orders blocks the issuing of a driving licence, professional driving permit and licence disk.

[* The AARTO Amendment Act, No. 4 of 2019 removes the right of an alleged infringer to elect to be tried in Court. It is not yet in force.]

Roadblocks and so-called “roadside checks”

It is no secret that traffic law enforcement authorities regularly set up roadblocks, with the primary purpose of collecting what they regard to be their dues in respect of traffic fines revenues.

Although they regularly call such roadblocks “roadside checks” in order to circumvent Section 13(8) of the SAPS Act, coupled with the provisions of the Constitution of the Republic of South Africa, 1996 (“the Constitution”) in respect of freedom of movement and the prohibition of arbitrary searches, blocking a road constitutes a roadblock and not a so-called “roadside check”.

Roadblocks are called “roadblocks” because they BLOCK the road – in one direction or both directions! (doh!)

This is so, even if Automatic Number Plate Recognition (“ANPR”) is used to identify those motorists who have outstanding traffic fines.

Section 3I (three, capital i) of the National Road Traffic Act empowers any traffic officer to stop any motorist without the need to establish any “probable cause”. It has been suggested by many that this provision is unconstitutional. To an extent, JPSA agrees, more especially when it is used to establish so-called “roadside checks” for reasons other than establishing the fitness of the driver and/or the vehicle they are operating.

ANPR cameras are used to identify vehicles with outstanding traffic fines, etc.

What the Constitution says

Section 35(3) of the Bill of Rights in terms of the Constitution provides numerous rights to all accused persons. These persons do not have to be arrested and/or detained in order for these constitutional rights to apply. Section 35(3)(h) specifically provides: “Every accused person has a right to a fair trial, which includes the right to be presumed innocent, to remain silent, and not to testify during the proceedings”.

A traffic fine constitutes an allegation of wrongdoing. From the reading of Section 35(3) of the Constitution, it is apparent that anyone who stands accused of committing a road traffic offence or in infringement is an accused person. Not so say law enforcement authorities, State Owned Enterprises and Agencies and politicians.

For reasons best known to them, law enforcement authorities, State Owned Enterprises and Agencies and politicians have come to the conclusion that Section 35(3) of the Constitution does not apply to those who stand accused of road traffic infringements and offences. Some have even gone so far as to say that the mere fact that a traffic officer has issued a notice constitutes prima facie evidence that the person cited in that notice is guilty of the offence or infringement*. Others have said that because the AARTO Act is administrative in nature, a person in respect of whom an infringement notice is issued is not an accused person “because no term of imprisonment” is contemplated as one of the punishments the AARTO Act provides for.

[* See the answering affidavits of the Minister of Transport and the Road Traffic Infringement Agency.]

These seemingly absurd allegations will be tested in the Pretoria High Court during the proceedings in HD Dembovsky v The Minister of Transport and 16 Others (Case Number 24245/2018) during February 2020, the full pleadings of which can be found here.

Coercing payment of traffic fines at roadblocks

There is no law that permits traffic authorities to coerce the payment of traffic fines at roadblocks – or anywhere else for that matter. While it may be true that no other law expressly forbids it, it is untrue to say that it is not forbidden. Section 2 of the Constitution provides “This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.” (emphasis added).

While many traffic law enforcement authorities claim that they do not attempt to coerce (force) payment of traffic fines, little could be further from the truth. There is nothing unlawful about informing motorists that they have outstanding traffic fines. It is however unlawful to attempt to coerce payment, through actions and/or threats.

  • Retaining a person’s driving licence until they pay, or the traffic officer abandons trying to force him or her to pay is tantamount to unlawful seizure – without a warrant or “probable cause” that the driving licence card in question is a counterfeit document.
  • Preventing a person from leaving the site is tantamount to unlawful or false arrest because that person’s right to freedom of movement is infringed.
  • Telling a person that he or she faces arrest if he does not pay, in the absence of a valid warrant of arrest, is tantamount to extortion because it constitutes a threat designed to extract monies.

Demands for payment in respect of any traffic fines in respect of which a warrant of arrest is not present are all, strictly unlawful and should be treated with the contempt they deserve. While a person in respect of whom may pay an admission of guilt fine in respect of both, the charge of contempt of court and the underlying original offence with which they were charged, there is nothing in law that provides that he or she must do so.

If any person wishes to admit guilt by paying a traffic fine, he or she is fully entitled to do so, however, he or she may not be forced to do so.

Note what the RTIA’s own signwriting says: “Paying traffic fines made easy inside”. The RTIA CLAIMS that this bus is used to EDUCATE motorists in respect of ROAD SAFETY and their RIGHTS in terms of the AARTO Act.

Informing people of the whereabouts of roadblocks designed to coerce payment of traffic fines

So now that a background to the legalities of traffic fines and how they should be dealt with has been provided, finally we get to the issue of people informing others of the whereabouts of roadblocks designed to coerce payment of traffic fines through social media.

By design, roadblocks of any kind usually interrupt the natural flow of traffic. In some instances, this interruption can be mild, whilst in others, they can be significant and even costly to those caught up in them. These effects can range from being slightly delayed in one’s journey, to missing flights that have been paid for and cannot be rescheduled or refunded, and everything in between.

When those who use social media to inform others of such operations, it is not usually their intention to assist law-breakers to evade the long arm of the law. On the contrary, it is usually their intention to assist others to avoid the inconvenience caused by such operations. After all, these operations affect everyone caught up in them, even if such a person has no traffic fines and nothing to fear from law enforcement operations.

In fact, informing people of the whereabouts of roadblocks designed to coerce payment of traffic fines, whether it be via social media or any other means, can be viewed as constituting a valuable public service. This is because in most instances, it is law enforcement officials that are acting unlawfully. Unlawful behaviour should never be condoned, even if it occurs in the name of “law enforcement”.

What traffic law enforcement officials need to come to realise

Traffic law enforcement officials, and law enforcement officials in general need to come to realise that the end does not justify the means. Laws exist for a reason and it is the constitutional duty of every law enforcement official to uphold both, the law and the Constitution.

Breaking the law and infringing on people’s constitutional rights is contrary to the constitutional mandate imposed on law enforcement officials. If their expectation is for ordinary people to respect them, they should refrain from acting outside of the framework of the law and the Constitution. When they don’t refrain from these practices, they reduce themselves to the same level of criminality they are supposed to prevent and address.

What’s more, when their principles – like senior officials and politicians engage in condoning and justifying unlawful behaviour by law enforcement officials, they expose themselves as authoritarians of little or no moral fibre.

What responsible people do when they incur traffic fines

First and foremost, it should go without saying that law-abiding motorists don’t incur traffic fines. That’s because they obey road traffic laws and don’t allow their concentration to lapse whilst driving.

Sadly though, many have come to believe that traffic fines can be ignored because they merely represent a money-making racket. After all, most traffic fines constitute little more than an invoice allowing the breaking of what are considered to be lesser laws, so long as payment is made to the authorities when one does so.

Although this thinking is understandable to some extent, especially in view of the fact that even Treasury considers traffic fines to be debts to local and provincial authorities, the fact is that traffic fines should never be taken lightly. Their purported purpose is to discourage the contravention of road traffic laws, not allow one to contravene them so long as one pays.

When a responsible person becomes aware of a traffic fine issued against him or her, he or she deals with it in the appropriate manner, as quickly as possible. “Dealing with it” does not mean paying a bribe. It means taking the appropriate action to address the matter.

The appropriate action may include, but is by no means limited to paying the penalty. If you know you are guilty, put on your grown-up underwear and pay the fine!

If you are not guilty, or have any other reason to challenge the notice in question, then do so as quickly and efficiently as possible. Remember that the Constitution holds that it is the duty of whomever accuses another to prove their allegation, not for an accused person to prove their innocence.

Disclaimer

The opinions offered in this article are those of Howard Dembovsky and are not to be construed as constituting legal advice. If you have any doubt or questions regarding legal principles, you are strongly advised to consult with a duly qualified legal professional.

Also see:

 

JPSA comments on proposed licensing transaction fee increase

On 8 March 2019, the Department of Transport published a proposed vehicle licensing transaction fee increase of R10 per transaction (payable to the RTMC) in Government Gazette 42291. As you may recall, this fee increased by R30 per transaction, from R42 to R72 with effect from 1 January 2018.

Here below are our comments on this proposed increase:

GG 42291 Licensing Transaction Fees increase - JPSA submission

 

If you are interested in comments submitted by other persons, below is the submission of Mr Rob Handfield-Jones of driving.co.za on this proposed increase.

RHJ - Comments on Proposed Transaction Fee Increase - GG42291