Advisories & Articles

OPINION: “Defeating the ends of justice”? Bah humbug!

Howard Dembovsky writes:

Once again, the role of social media in revealing the locations of roadblocks set up by the Metro Police is in the spotlight, this time involving allegations that an entire list of planned weekend roadblock locations has been “leaked” on a WhatsApp group.

According to the Sunday Tribune, the Acting Chief of the Durban Metropolitan Police Department, Steve Middleton on Friday evening, instead of adopting a professional policing approach in investigating the alleged crime and handling it in accordance with internationally applicable policing protocols, taken to Facebook to level threats against the alleged perpetrator.

“Hand yourself over or risk arrest” he allegedly demanded of “P Pillay” in his Facebook post.

What’s truly terrifying about this matter however is how Middleton is quoted as saying “We will open a charge of defeating the ends of justice with the police” and then saying “We will then liaise with the state prosecutors to see exactly what information and what evidence will be necessary to get a conviction”.

Surely even the most junior junior policeman would or should, if he is unsure of what the elements of a crime are and what evidence is required in order to secure a conviction, ask a state prosecutor to clarify the matter before taking any action which could come back to bite him and/or the Metro later? Failure to do so can only be described as reckless behaviour and often results in law suits which are ultimately settled out of court by insurance companies the Metros engage to provide them with “professional indemnity insurance”.

The fact that a so-called “Metro Police Chief”, who is the most senior of all people in Metro Police structures can have the audacity to admit to a journalist that he has no idea of what the legal test for a charge of “defeating the ends of justice” is, bears testimony to the utter incompetence of the top brass in many Metro Police structures. And we then wonder why it is that the rank and file of Metro Police Departments similarly demonstrate gross incompetence and tend to suffer from “Rambo syndrome”?

As Mr Middleton will no doubt find out, the legal test for a charge of “defeating the ends of justice” is stringent and merely informing a group of individuals you may or may not know but have no knowledge of whether they are involved in a crime or not of the location of one or more roadblocks does not even come close to meeting that test.

After all, even Google Maps, which is freely accessible to anyone with a smartphone references “police activity” when used to navigate the route with the least delays to your destination. I use it frequently, even when I know exactly where I am going and especially at this time of year when ridiculously long delays are caused by the showy roadblocks established to demonstrate to us all just how much the authorities “care about our safety” over the festive season.

Since I am making this admission in public and am referencing Google Maps, are charges now going to be brought against me and Google Inc for “defeating the ends of justice”?

I don’t drive drunk, in fact, I don’t drink alcohol or use drugs at all but if I did I think that knowing that there are roadblocks around would sway my decision in favour of using a “take me home” service, Uber or a taxi instead of risking arrest. If just one person were to be so swayed by the “leaking” of roadblock locations, then it would have the effect of preventing a crime and possibly even preventing injury or death – in other words, it would have the exact opposite effect to “defeating the ends of justice”.

This is not to say that I find the concept of sharing legitimate and lawfully constituted roadblock locations on social media to be in the interests of public safety, more especially when those roadblocks are utilised to detect criminals transporting contraband and/or to establish vehicle and driver fitness, but from my observation relatively few roadblocks are established for this purpose.

You see, numerous, if not most roadblocks established by Metro Police and other traffic authorities have little or nothing to do with crime prevention, road safety and/or assessing vehicle and driver fitness and some actually constitute a danger to road safety because of how and where they are set up.

Allegedly, on Sunday 26 November 2017, the Ekurhuleni Metropolitan Police Department set up a roadblock on the R21 freeway in Kempton Park and this had the effect of causing what can only be described as ridiculous delays to motorists on that freeway.

The apparent sole purpose thereof was to execute warrants of arrest against motorists who had failed to appear in court and the operation could not have yielded more than a handful, if any such arrests. If it had, it would have been plastered all over the media by the EMPD as they have done in the past when they managed to execute a remarkable sixteen arrests over a period of two and a half hours, whilst simultaneously causing undue and unjustifiable delays to thousands of motorists heading to and from OR Tambo International Airport.

Allegedly, a woman driving with her young children in her car spent 100 minutes (almost two hours) reaching the front of the queue, only to be waved through without so much as a single, let alone second glance at her or her vehicle and apparently because her number plate did not trigger an alert with respect to a warrant.

She was, as I can only assume others were, extremely annoyed by this grossly unreasonable delay and given the fact that she was nothing more than an innocent party for whom the Metro Police have no regard caught up in this abusive practice, she tweeted the location of this roadblock. Apparently, the not-so infamous PigSpotter with more than 534,000 followers did the same.

A couple of years ago, the PigSpotter was regarded by the Johannesburg Metropolitan Police Department as being “public enemy number one” and people like Wayne Minnaar engaged in a slew of threats to track him down and prosecute him for “defeating the ends of justice” as well as for crimen injuria for calling Metro cops ugly names.

What became of that? Blow all, except for his astronomical rise to stardom, a phenomenal growth in his Twitter followers and the eventual registration of a company by the name of PigSpotter (Pty) Ltd through which Cliff Pinto gets to sell PigSpotter memorabilia.

The Durban Metro Police Department has apparently learned nothing from this phenomenon and what’s worse is that its so-called “Chief” apparently thinks that it’s clever to take to Facebook to vent his frustrations over his own glaringly obvious failure to implement sufficient internal controls to prevent the leaking of confidential information from within the very organisation he heads. He even goes so far as to publicly admit that this was “not the first time that information has been leaked”.

Just whose fault is that? After all, he is the so-called “Chief of Police” and is ultimately responsible for each and every action and incident arising from within the Metro Police Department.

If I were Middleton, I would have quietly investigated the origin of the leak, gathered the requisite evidence to convict the staff member responsible and made damn sure to plug the hole in the system. There’s also another option – to put out hordes of false information in order to deter would be “drunken drivers” and encourage them to use public transport as has been done by some Metros in the past, or to engage in “random roadside breath alcohol testing” as is currently being practiced in the Western Cape if your sole purpose is to catch “drunken drivers”.

The very last thing I would have done, if I did it at all, would have been to take to social media to throw a hissy fit and publicly identify and threaten a member of the public with arrest.

For as long as I can remember, KwaZulu-Natal has had a “zero tolerance” policy yet it has consistently managed to deliver the most catastrophic road death statistics in the country. Perhaps it’s time for it to consider adopting a less tolerant approach to incompetence within its law enforcement entities, or is this simply asking too much?

Howard Dembovsky is the Chairperson of Justice Project South Africa

See also: “Can you be arrested for flashing lights warning other motorists of speed traps?” by Advocate Johan Jonck here.

Is the failure to pay e-tolls a criminal offence?

e-toll email

It has come to our attention that SANRAL and/or its business partners, Electronic Toll Collection (Pty) Ltd – a Kapsch TrafficCom Company, has been sending out emails in an apparent attempt to refute the notion that prescribed debt in the form of unpaid e-tolls is not simply going to be let go.

Once again, it is noted that the contents of these emails refers to the non-payment of e-tolls constituting a criminal offence for which offenders can be prosecuted and as a result, incur a criminal record.

This is in no way a new claim and/or tactic on the part of SANRAL. In fact various individuals at SANRAL have been making such claims and threats since before the go-live date of 13 December 2013 (four years ago) and every single time SANRAL sees itself backed into a corner and losing the battle in collecting monies from a public which has quite simply refused to be bullied into paying for this ridiculous scheme, they again level their threats.

But is there any truth to their threats, and if so, what are the implications which would arise out of a conviction?

The short answer is yes; failure to pay any toll arising from driving on a toll road is theoretically a criminal offence in certain jurisdictions, but just because there is some truth to SANRAL’s propaganda does not mean that it is the whole truth and nothing but the truth.

To the contrary, the level of applicability to criminal convictions is so low that SANRAL has sought to try and pull the wool over everyone’s eyes in the single prosecution it brought against Dr Stoyan Stoychev more than two years ago, in 2015.

Stoychev was prosecuted for number plate fraud and the non-payment of his e-tolls was merely a coincidental, ancillary charge which arose out of that, yet SANRAL tried its utmost to deliberately distort the facts in this matter to make it appear as if this was “the first e-tolls prosecution”, even going so far as to commission a professional quality video it published on YouTube.

Prior to and since that conviction on 10 September 2015, SANRAL has not brought even a single “vanilla” prosecution for non-payment of e-tolls, in fact it has not instituted a single criminal prosecution for non-payment of e-tolls ever, nor has it issued a single notification in terms of Section 341 of the Criminal Procedure Act (fine), let alone approached the clerk of the court to issue and serve a single summons in terms of Section 54 of the Criminal Procedure Act. A criminal conviction simply cannot arise unless the accused person is summoned and either pays an admission of guilt fine or is convicted by the Court.

The lack of mass prosecution is in no way to be interpreted as representing an indication of SANRAL’s benevolence and/or sympathy with road users. SANRAL would have dearly loved to “make examples” of a few people and in so doing, scared everyone else into submission but the fact of the matter is that this would be and has proven itself to be a lot easier said than done.

What the law says.

Section 25(5) of The South African National Roads Agency Limited and National Roads Act, 1998 (Act 7 of 1998) unequivocally prescribes that:

“Any person liable for toll who, at a toll plaza or other place for the payment of toll determined and made known in terms of subsection (1), refuses or fails to pay the amount of toll that is due—

(a) is guilty of an offence and punishable on conviction with imprisonment for a period not longer than six months or a fine, or with both the term of imprisonment and the fine; and

(b) is liable, in addition, to pay to the Agency a civil fine of R1 000. This amount may be increased in 1999 and annually thereafter in accordance with the increase in the official consumer price index for the relevant year as published in the Gazette.”

Therein lies the basis in truth where, in terms of Section 25(5)(a) of the SANRAL Act, it is indeed an offence to fail or refuse to pay tolls.

Just so you know, the SANRAL Act is road traffic legislation which falls within the ambit of legislation enacted by the Department of Transport and is therefore subject to the identical conditions any other road traffic and transport law enacted by that department is subject to, particular where it comes to the prosecution of offences created by its provisions.

Section 89(1) of the National Road Traffic Act, 1996 (Act 93 of 1996) similarly prescribes that:

“Any person who contravenes or fails to comply with any provision of this Act or with any direction, condition, demand, determination, requirement, term or request thereunder, shall be guilty of an offence”,

And Section 89(6) then goes on to prescribe that:

“Any person convicted of an offence in terms of subsection (1) read with any other provision of this Act shall be liable to a fine or to imprisonment for a period not exceeding one year.”

As you can see, the commission of any offence in terms of the National Road Traffic Act is considered, at minimum, to be twice as serious as the non-payment of toll, notwithstanding the fact that Section 25(5)(b) of the SANRAL Act contemplates a peculiar form of duplicate punishment which seeks to punish the offender twice for the same offence.

There are two different prosecution instruments used to prosecute any and all offences created by road traffic and transport law.

One of these prosecution instruments is the Criminal Procedure Act, 1977 (Act 51 of 1977) and this relic of the apartheid era has some pretty ominous provisions built into it which seek to punish “criminals”, regardless of the level of seriousness associated with the crime such persons commit. The provisions of the Criminal Procedure Act apply everywhere in South Africa except in the jurisdictions of the Metropolitan Municipalities of Tshwane and Johannesburg.

While paying a fine associated with a notification in terms of Section 341 of the Criminal Procedure Act cannot result in the recordal of a criminal record (previous conviction), paying an admission of guilt fine associated with a section 54 summons or section 56 written notice to appear in Court must, according to Section 57(6) of the Criminal Procedure Act, result in the clerk of the Court recording a conviction in the “criminal records book for admissions of guilt”.

In practical application however, the provisions of Section 57(6) of the Criminal Procedure Act do not result in a criminal record being registered on the SAPS Criminal Records Centre database when people pay admission of guilt fines for “traffic fines”. If it did, there would be few drivers and/or vehicle owners who would not be automatically precluded from employment and travel.

But in the jurisdictions of the Metropolitan Municipalities of Tshwane and Johannesburg, the provisions of the Administrative Adjudication of Road Traffic Offences (AARTO) Act, 1998 (Act 46 of 1998) apply and these are markedly different to the Criminal Procedure Act. Through the provisions of Section 22(4) of the AARTO Act, anyone who pays an admission of guilt fine arising out of an AARTO infringement notice “does not incur previous convictions”, thereby effectively decriminalising so-called “minor offences”.

Now, given the fact that Section 17(1) of the AARTO Act is prescriptive in prescribing that If a person is alleged to have committed an infringement, an authorised officer or a person duly authorised by an issuing authority, must instead of a notice contemplated in section 56 or 341 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), and subject to section 23, serve or cause to be served on that person an infringement notice,…”, it should be pretty clear to all concerned that the Criminal Procedure Act may not be used to prosecute e-toll non-payers within a large area of the current GFIP’s roads infrastructure.

Regulation 3(1)(b) of the AARTO Regulations, 2008 further goes on to prescribe that an AARTO 03 infringement notice must be issued and served by “registered mail” within 40 days of the alleged infringement and the non-payment of any toll is specifically contemplated (albeit poorly in relation to e-tolls) under charge codes 3820 and 3821 in Schedule 3 of the AARTO Regulations.

The implication of these laws.

Although they will never admit it, the anomaly of the provisions of two, distinctly different prosecutions instruments existing for the self-same offence has left SANRAL with somewhat of an administrative nightmare. As stated above, a large area of the roads which comprise the GFIP are governed by the provisions of the AARTO Act while other areas are governed by the provisions of the Criminal Procedure Act. The map below demonstrates how some of the GFIP falls within the jurisdiction of the Criminal Procedure Act and others fall within the jurisdiction of the AARTO Act.

Prosecuting e-tolls violations – What prosecution instrument applies where?

SANRAL quite simply cannot choose to use one Act or the other to issue prosecute the non-payment of e-tolls, it has to use the prescribed prosecution instrument and since a large proportion of the GFIP falls within the jurisdictions where the AARTO Act must be used, it has no choice but to comply with its provisions. Additionally, some parts of the GFIP fall within the provisions of the AARTO Act in one direction on the freeway, and within the provisions of the Criminal Procedure Act in the other.

Even though SANRAL has tried to have the provisions of the AARTO Act amended to cater for up to 100 infringements to be included on a single AARTO 03 infringement notice, this is not possible in terms of the AARTO Act and each infringement must be cited separately on its own infringement notice.

Even if only one million motorists fail to pay e-tolls, at minimum SANRAL would have to issue no less than two million infringement notices per day, but in reality, it would probably have to issue and serve well over four times that many. The current cost of the registered letter service provided by the SA Post Office is R27.30 per registered letter (there is no such service as “registered mail” or “registered post). Take that rate and times it by four and you will see that SANRAL will cost itself no less than R54.6 million a day in posting AARTO 03 infringement notices, thus further worsening its financial situation in the hope that some people will pay the fines.

Where the Criminal Procedure Act applies the service of summonses issued in terms of Section 54 of the Act must be effected in person and the process servers involved in that process do not work for free either. In fact, the cost of such personal service is considerably more expensive than the SAPO’s registered letter service and that is not the only consideration which needs to be taken into account. All criminal matters would have to be heard in the lower Courts with jurisdiction over the part of the GFIP in which the “offence” occurred and the Court rolls simply cannot cater for millions of additional prosecutions.

So where to from here?

From what has been laid out in this article, you should be able to understand that whilst SANRAL’s threats are loosely based on the facts, but ignores the practical implications and other factors which would surround criminal prosecution for the non-payment of e-tolls.

JPSA does not and never will tell people not to pay e-tolls. What it does do however is to provide you with truthful and relevant information to enable you to make your own mind up as to what you want to do about e-tolls.

It is highly unlikely that SANRAL will ever be able to prosecute everyone who refuses to buy into its ill-founded e-tolls scheme, but if you want a 100% guarantee that you will not be prosecuted, then the only way to achieve that is to go and pay what SANRAL claims you “owe” in e-tolls.

If however you wish to take a stand and take your chances, the possibilities of you actually being prosecuted are so low that they are practically negligible and all of what has been articulated in this article is relevant. If you are unlucky enough to be the one who is prosecuted, then all of the provisions of the Constitution, 1996 and various other provisions of legislation are applicable and at the very least, you are entitled to a fair trial in an ordinary public Court.

Make up your own mind, but only do so after considering all of the relevant factors – not based on “what everyone else is doing”.

Recent SMS messages and emails masquerading as being from the RTIA

Since 21 September 2017, JPSA has been flooded with enquiries from members of the public who had received emails from the email address “RTIA@trafficnotification.co.za” craftily and deviously seeking to extort monies from them. These emails contain the logo of the Road Traffic Infringement Agency (“RTIA”) and the words “Outstanding Infringements summary report as at 07 September 2017 (JMPD infringements only)” followed by a person’s name and full national identity number.

This is what the emails look like:

Below this “header” appears a schedule of outstanding infringement notices against the particulars of the person to whom the email was sent which looks something like this with *You will not be able to renew your vehicle or driving license whilst an Enforcement Order is outstanding trailing it:  

The above list includes up to 30 alleged infringements in it, which list may not necessarily be exhaustive, but only includes infringement notices issued by the JMPD.

And then there’s a table which looks like this:

Apparently, SMS messages have also been sent to some people, which look like this:

In both cases, the telephone number 011 036 7515 is listed as the contact number for the JMPD, however, this phone number does not exist in the real world.

So what’s the problem?

At the outset, it is important to note that we acknowledge that the reason people are receiving SMS messages and emails similar to this one is that they do indeed have outstanding infringement notices which exist against their particulars.

In most instances this would be as a result of a vehicle registered in the name of the person to whom the email is sent having allegedly committed one or more road traffic infringements – most probably speeding or parking infringement. If the infringement notice starts with the prefix “02” it’s most probably a speeding infringement and if it starts with the prefix “03” it’s most probably a parking infringement.

The likelihood of it being a parking infringement is extremely low, since the JMPD was well-known for its obsession for deploying hidden speed cameras and focusing on little other than speeding and little else, in the 16 years preceding the recent termination of illegally extended speed camera contracts, which may or may not have been revived by now.

JPSA’s issue is not with the fact that people are being notified of “traffic fines” which have been issued against those people’s particulars. Our “issue” is with the timing and manner in which this has been done since, without exception, those who have contacted us to ask about the ligitimacy of these emails have complained about not knowing that any of the fines listed had been issued, some of which date back five years to 2012, when the JMPD ceased unlawfully violating Section 30(1) of the AARTO Act by posting bogus “AARTO infringement notices” it had captured on its own systems since April 2010 by “ordinary domestic mail”.

In most instances, even where they don’t date back as far as 2102, the fines listed in these emails have mostly “stagnated” and in so doing, become unenforceable since procedure has not been followed by the authorities. Syntell, the JMPD and the RTIA are acutely aware of this fact and it is the JMPD itself which has repeatedly complained in the media and elsewhere that the RTIA has not done its job, but has instead, allowed these fines to stagnate.

It is therefore JPSA’s assertion that the email and SMS campaign launched by Syntell (Pty) Ltd, masquerading as the RTIA is at best, devious and seeks to take advantage of that portion of the public who may be unaware of the fact that many, if not most of these fines have “stagnated” and cannot result in an enforcement order being issued – ever.

We know that many people do not like having to read through a detailed explanation before getting to the nitty-gritty of how to deal with a situation, therefore we will provide this up front. Detailed information is however available later in this advisory.

Practical advice regarding these email notifications

If you have received one of these emails, it is our advice that you visit the aarto.gov.za website without delay and get a full printout of all of your outstanding infringements. If you have any enforcement orders, deal with those first.

Unfortunately, we have lost all faith in the ability of the RTIA to act impartially, since they have actively demonstrated that they are not. If you have any enforcement orders, you may find that you are left with little choice but to pay them in order to complete any licensing transaction you may be trying to complete.

With respect to any other posted infringement notice (starts with the prefix “02” or “03”) which is still at the “infringement notice” or “courtesy letter” stage, download, complete and submit an AARTO 10 election to be tried in court form for each and every infringement which exists against your particulars.

This will prevent the so-called “adjudication procedure” from continuing automatically and/or unexpectedly and will help you exercise your constitutional right to a fair trial. If/when you are summoned (in terms of Section 54 of the Criminal Procedure Act), you are perfectly entitled to raise the issue that the authorities have not complied with the so-called AARTO “adjudication procedure”.

Electing to be tried in court does not equate to unlawfully “evading liability” as has been asserted by the RTIA. Furthermore it does not equate to an intention of “flooding the court system” and would not be necessary if the RTIA simply had the credibility and genuine independence to “adjudicate” over matters from which it makes money.

JPSA and its Chairperson take extreme offence to the attitude of the RTIA that the Constitution does not apply to “traffic fines” and that issuing authorities and the RTIA cannot, or should not be held accountable by the courts.

Further details surrounding this issue

If you are interested in the full details surrounding this issue, please click on the button below.

Are these emails authentic?

No-one can be blamed for being suspicious of emails which appear out of the blue, claiming that they “owe monies” to anyone. In this particular case we can confirm that these emails are authentic insofar as they relate to the individuals who have received them, but this is only part of the story.

Please read on in order to fully understand why it is that although the facts contained in such emails are not untrue as such, the entire motivation and intention behind them is extremely devious and patently dishonest in nature.

Who or what is the “RTIA”?

The Road Traffic Infringement Agency (“RTIA”) is a State Owned Enterprise which was created out of thin air by Section 3 of the AARTO Act.

The RTIA masquerades as being an “independent adjudicator between motorists and issuing authorities”. In reality however, when it comes down to the brass tacks of the AARTO Act, the RTIA is effectively little more than a “debt collector on steroids”, with far-reaching powers to effectively force the payment of traffic fines on behalf of all of the issuing authorities (traffic departments, etc.) where the AARTO Act applies and in order to create yet another revenue-focussed State Owned Enterprise.

We do not say this lightly and assert that the RTIA is not and never can be an “independent entity” which can be likened to the courts – even by the farthest stretch of the imagination.

More than 95% of the RTIA’s 2015/16 revenues came from its share of traffic fines, combined with the fees it raises upon courtesy letters, enforcement orders and written representations it makes unsuccessful; issued in terms of the AARTO Act. The grant it received from Parliament to sustain itself in that financial year represented just under one sixth of its salary bill alone.

Essentially, the RTIA can be likened to the proverbial wolf debating with a sheep who is going to have who for dinner! So much for its disingenuous motto: “justice in adjudication”.

Are these emails actually from the RTIA?

The domain names that are owned and operated by the RTIA are “aarto.gov.za” and “rtia.co.za” ONLY. Any emails which do not originate from either of these two domains are not from the RTIA itself, but from a third party who may or may not be authorised to send emails on the RTIA’s behalf.

We can unequivocally state that, even if these emails were sanctioned by the RTIA, they were not sent by the RTIA.

Who owns the domain trafficnotification.co.za?

The domain name “trafficnotification.co.za” is registered to Syntell (Pty) Ltd, one of the bigger private enterprise players in the traffic fines industry. Amongst a plethora of others, its clients include the JMPD, the RTIA, the EMPD and the City of Cape Town Traffic Services. The website www.paycity.co.za also belongs to Syntell.

Is Syntell authorised to use the RTIA’s logo?

Traffic fine “contractors” to the numerous traffic authorities throughout South Africa have been using the logos and/or badges of their clients in  email communications for ages now. Some have even gone so far as to establish call centres which redirect any queries meant for the traffic authority to whom they contract to their own private companies. In so doing, these private companies masquerade as being the actual traffic authority.

Syntell is no exception to this rule and simply loves plonking an official badge, logo and/or entity name other than its own on communications it sends out in an apparent effort to appear to be the traffic authority itself.

It is a fact that nowhere in the AARTO Act is the RTIA authorised to favour one issuing authority over another. This said, and given the fact that the RTIA has actively condoned may illegal practices under the AARTO Act in the past, is not beyond the realm of possibility that the RTIA may have authorised Syntell to use its name and logo in this particular email campaign.

However we would like to give the RTIA the benefit of the doubt and say it is unlikely that it and/or its management would have been so short-sighted to have authorised the sending of emails referring to outstanding AARTO infringement notices issued by only one issuing authority – namely the JMPD.

If the RTIA did indeed commission this email campaign, we are pretty sure that the Tshwane Metropolitan Police Department (“TMPD”), Gauteng Department of Community Safety (GDoCS) and the Road Traffic Management Corportation’s (“RTMC’s”) so-called “National Traffic Police” would like to know why it is that their fines were actively excluded.

Issuing authorities’ duty to properly serve infringement notices

Without exception, each and every person who has contacted us regarding these emails has asserted that they knew nothing about the alleged infringements prior to receiving this email.

  • Section 30(1) of the AARTO Act clearly prescribes that “Any document required to be served on an infringer in terms of this Act, must be served on the infringer personally or sent by registered mail to his or her last known address.”
  • Regulation 3(1)(b) of the AARTO Regulations clearly prescribes that “An infringement notice contemplated in section 17 (1) of the Act shall be issued and served or caused to be served to the infringer by registered mail, on a form similar to form AARTO 03 as shown in Schedule 1, within 40 days of the commission of the infringement.
  • Section 30(2) of the AARTO Act then goes on to introduce an unreasonable presumption that “A document which is sent by registered mail in terms of subsection (1), is regarded to have been served on the infringer on the tenth day after the date which is stamped upon the receipt issued by the post office which accepted the document for registration, unless evidence to the contrary is adduced, which may be in the form of an affidavit.”

Anyone who applies even a small portion of their mind would acknowledge that in order for someone to do anything about a traffic fine which has been issued against their particulars, they would need to know that this has happened. After all, how can anyone be expected to do anything about anything they know nothing about?

It’s one thing if a traffic officer stops you and issues you with a citation there and then, thus serving you with the infringement notice and making you aware of it immediately, but it is another issue entirely if you are not stopped, but instead have an infringement notice posted to you.

Without fail, each and every person who has queried these emails has asserted that they never knew anything about the existence of the infringement notices prior to the email and this can only mean that they were not served with them. In the vast majority of cases, the RTIA’s own “SAPO tracking detail” at its website confirms that service was not effected. Furthermore, in a high volume of cases, it also reflects that they were not even posted.

The RTIA’s duty to properly serve other AARTO documents

The AARTO Act is very specific in prescribing the processes which must follow one another within very strict, inflexible timeframes. The RTIA is responsible for issuing courtesy letters which must be issued if an alleged infringer has failed to exercise any of the so-called “elective options” upon an infringement notice within 32 days of the service of an infringement notice – and the issuing authority has informed the RTIA “in the prescribed manner”.

Once a courtesy letter has been issued, it must be elevated to an enforcement order if the alleged infringer has not exercised any of the three so-called “elective options” available to them in terms of a courtesy letter within 32 days of the service (or presumed service) of the courtesy letter. In the 2015/16 financial year, the RTIA issued 640,169 enforcement orders, arising out of 3,016,050 courtesy letters it issued.

All courtesy letters and enforcement orders must also be served in person or by “registered mail”. Remarkably, since the inception of the AARTO experiment in Tshwane and Johannesburg, the RTIA has not caused even a single courtesy letter or enforcement order to be served in person. Instead, it relies on “secure/hybrid mail” to post these important documents, despite knowing that there is something seriously wrong with the functionality of this product offering of the South African Post Office.

“Stagnated” fines

It has repeatedly been held that AARTO infringement notices which have not complied with the so-called “adjudication procedure” as is prescribed in the AARTO Act have “stagnated” – in other words, become unenforceable. The most recent reference thereto comes from a High Court Review Judgment in the matter between Fines 4 U (Pty) Ltd and Audi Johannesburg versus Sherman Amos (the Deputy Registrar of the Road Traffic Infringement Agency) and others (Pretoria High Court Case number 30586/2014).

Simply put, because the AARTO Act prescribes the processes which must be followed by both, alleged infringers and the authorities, entities like the issuing authorities and the RTIA may not make things up as they go along. If no further action has resulted from the issuing of an infringement notice within the prescribed time frame, then no further action may lawfully result. This in turn causes that infringement notice to “stagnate”, wherein it cannot proceed any further.

Contrary to popular belief and arising out of inaccurate news reports, Judge Prinsloo and the High Court did not order that “all stagnated traffic fines must be cancelled” programatically. What his judgment did hold however is that anyone who becomes aware of the fact that they have such stagnated AARTO infringement notices against their particulars may raise the issue that that the so-called “adjudication procedure” has not been followed and for that reason, the fine should be cancelled.

Why is the RTIA keeping stagnated fines alive?

The practice of keeping traffic fines which have stagnated alive on websites and other computer systems is not new to South Africa, nor is it unique to the AARTO Act and/or the RTIA. In fact, this practice is so widespread that it would be impossible to list every traffic authority that does so. More accurately, we have been unable to find even one which doesn’t.

Where the AARTO Act is not in force, but instead the Criminal Procedure Act applies, there is even a  national directive from the National Director of Public Prosecutions to withdraw and finalise any and all traffic fines issued by traffic authorities which have not resulted in the issuing (and service) of a summons within 18 months of the alleged offence. This is not a “new” directive as such, it merely standardises the former provincial directives which varied the time frame within which this process must happen. Nevertheless, all of these directives have been ignored by traffic authorities and their contractors since the year dot.

The apparent reasoning behind keeping stagnated fines alive appears to arise from a belief that some, less well-informed people will pay fines which simply cannot proceed any further in the false belief that the threats leveled against them will actually be carried out if they don’t pay. They can’t and therefore, asserting that they can is tantamount to extortion and outright fraud.

The RTIA’s reasoning for keeping stagnated fines alive appears to be predicated much along the same lines, except insofar as the AARTO Act doesn’t actually prescribe what must happen if the issuing authorities and/or the RTIA does not do their jobs. Very little legislation contemplates the failure on the part of authorities to do their jobs, quite simply because it is assumed that because they are law enforcers, they will.

If such authorities don’t do their jobs as prescribed, it falls upon the public to take the authorities to court in order to force them to act within the framework of the law.

Has JPSA written to the RTIA about this issue?

Since Howard Dembovsky and JPSA were grossly and unjustly insulted by politicians in the Parliamentary Portfolio Committee for Transport in September 2016, we are done writing to the RTIA and others involved in the “AARTO issue”. Any future such debates will take place in a forum where politicians do not get to actively demonstrate their immunity from defamation suits.

UPDATE

On 27 September, the RTIA put out the following media statement, “apologising” for the so-called “communication error” in SMS communications. As you will see, no reference was made or even implied with respect to the email communications which were sent. JPSA takes a very dim view of this disingenuous and misleading so-called “apology” and has written to the RTIA to inform it as such.

Cessation of “pay as you go” speeding fines in Joburg no great loss

JOHANNESBURG – As revealed in the Moneyweb article entitled “No more camera fines for Joburg speedsters” on Wednesday 17 August 2017, the City of Johannesburg is not currently issuing and posting somewhere in the region of a half a million camera “speeding” fines each month, as it used to do in the past.

Instead, traffic officers – some equipped with speed measuring equipment – are being utilised to physically and visibly enforce road traffic laws in and around the City.

This is due to the termination of a string of contracts with private “contractors” which previously supplied the City with portable speed cameras to “hide in the bushes” in an effort to generate revenue, and whose whose contracts could not lawfully be extended. JPSA believes that this is a good thing, as opposed to the bad thing it is being made out to be.

There are those who believe that this development means that “motorists can now speed with impunity” but whilst it may be true that physical law enforcement is not capable of generating as many fines as automated entrapment is, physical enforcement is nonetheless way more effective. Where delinquent motorists are stopped at the time of the alleged infringement and taken to task immediately this has the bonus effect of preventing the possible consequences that could arise out of non-compliance with speed limits.

The proponents of camera-based “speed enforcement” make claims of it enhancing road safety, whilst simultaneously failing to provide any empirical evidence to support their claims that hidden speed cameras reduce crashes. Instead, what is apparent from the annual reports of entities such as the Road Traffic Infringement Agency (RTIA) which administers the AARTO Act’s “adjudication procedure” is that the payment rate of fines which are posted is extremely low but is compensated by high volumes.

In the 2015/16 financial year, the RTIA reported that a grand total of R264,261,091 was collected and paid to the four issuing authorities under the AARTO Act in relation to the 6,720,193 infringement notices issued, 82.07% of which were posted.

The RTIA pocketed a further R224,628,726 arising out of its share of the penalties and the fees due to them which were paid. The RTIA does not break its figures down into which issuing authority received what and when, but since the JMPD was responsible for issuing 79.48% of the infringement notices issued in that financial year, it is reasonable to assume that a significant chunk of the revenue collected went to the JMPD.

Traffic law enforcement should never be about generating revenue for Municipalities, agencies and private companies, but sadly, it is and has been for decades. Road safety considerations come a distant last place in the big scheme of things.

“I’m not sure what road safety benefit can be ascribed to ‘pay as you go’ speeding fines which arguably benefit private ‘contractors’ above and beyond anyone else,” said JPSA’s chairperson, Howard Dembovsky.

“Based purely on a casual observation of the behaviour of motorists in Johannesburg, I have not noticed any increase in the incidents of speeding since the withdrawal of the portable speed cameras the JMPD used to deploy,” he concluded.

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Refusal of licence discs, driving licenses and PrDPs

Introduction

For at least two years now, Justice Project South Africa has been dealing with a high volume of queries from members of the public who have been affected by administrative blocks on NaTIS which prevent licensing transactions.

While the South African Post Office is spreading mass panic by telling people that they can’t renew their licence disc “because a warrant of arrest has been issued”, neither this nor the tactics employed by licensing authorities where they tell people they must pay all of their traffic fines in order to get their disc is typically true.

It’s extremely unfortunate that the public is apparently ignorant with respect to why this is happening, given the fact that part of the mandate of traffic authorities and government agencies is to educate the public. In particular, the Road Traffic Infringement Agency (RTIA) is quick to boast about how it is responsible for educating the public on AARTO, however little evidence of this actually happening exists. Continue reading

Transportation of school children (and other people) on bakkies

 

What you need to know about the amendment of Regulation 250 of the National Road Traffic Regulations.

On 11 May 2017, it will become specifically illegal to transport school children for reward in the goods compartment of any vehicle. Many people, including but not limited to the Minister and spokespersons for the Department of Transport have lauded this as being a giant stride in the right direction for road safety. I completely disagree and here’s why: Continue reading

Is insurance claim repudiation the answer to “drunk” driving?

Howard Dembovsky writes…

It has become common for insurance companies to include clauses in their policies where it is held that if a person drives under the influence of alcohol or drugs having a narcotic effect, their claim will be repudiated in the event of a claim. It has also become increasingly more common of late for them to repudiate claims citing the involvement of alcohol in crashes.

When I first heard that this was the case, I thought “good – at least someone is doing something and there will be a consequence which befalls those who drink and drive”. After all, the current state of affairs insofar as it relates to the prosecution of driving under the influence of alcohol is shambolic and both, I personally and JPSA have a long and vociferous history in trying to actively address this problem.
Continue reading

Rescheduling road traffic offences to Schedule 5 offences is not the answer

Howard Dembovsky writes…

It is not unusual for reactionary, emotional and downright illogical statements to arise from the Minister of Transport and the RTMC when it becomes clear that no progress is being made in stemming the tide of road carnage in South Africa, but the latest assertions emanating therefrom are truly frightening and downright reckless.

When announcing the latest festive season road fatalities which amounted to 42 immediate deaths per day arising out of the 1,755 total deaths during the 2015/16 festive season, Ms Peters said “I have been deeply concerned by those caught speeding and the seeming ease with which these speedsters were granted bail”. She also said “The reclassification of all road traffic offences to Schedule 5 of the Criminal Procedure Act will receive high priority in our endeavour and quest for a mandatory minimum sentence for drunken driving, for inconsiderate and reckless and negligent driving.” Continue reading

Planning your journey – it’s not as simple as it used to be

Potholes

Lewis Caroll said: “If you don’t know where you are going, any road will get you there.” Unfortunately, Mr Caroll lived during the 19th Century and he most certainly did not live in South Africa.

According to the ¹South African National Roads Agency (SANRAL), South Africa has an estimated roads network of some 750,000 kilometres, of which only 158,124 kilometres were tarred as at 19 August 2014. Some of these tar roads are in a fair to good condition and, in a few cases, excellent condition and some may as well not be tarred since they are so pitted with potholes that they can hardly be defined as safe roads upon which to drive. Gravel roads bring with them their own set of problems, not least of which is that most city cars (and drivers) are simply not fit to drive on them. Continue reading

JPSA’s submission on government gazette 39482 AARTO Regulations draft amendments

Department of Transport
Private Bag X193
PRETORIA
0001

ATTENTION: Mr Sello Mokubyane and Adv N Thoka

PER EMAIL TO: MokubyaS@dot.gov.za and Thokan@dot.gov.za

Your Ref: GOVERNMENT GAZETTE No. 39482, NOTICE No. 1204, 7 DECEMBER 2015
Our Ref: GG
39482 Comments

Tuesday, 29 December 2015

Dear Sirs,

PUBLICATION OF THE ADMINISTRATIVE ADJUDICATION OF ROAD TRAFFIC OFFENCES ACT, 1998, ADMINISTRATIVE ADJUDICATION OF ROAD TRAFFIC OFFENCES AMENDMENT REGULATIONS, 2008 FOR COMMENTS

 

  1. We refer to the proposed amendments to the Administrative Adjudication of Road Traffic Offences Amendment Regulations, 2008 tabled in Notice No. 1204 of 2015 in Government Gazette No. 39482 of Monday 7 December, 2015.

Continue reading