Advisories & Articles

Expired driving licence cards, etc. extension

Important information for affected drivers:

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

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

 

 

The AARTO Amendment Act for mere mortals

Compiled by Howard Dembovsky.

Much confusion surrounds the AARTO Act which has been in force in Johannesburg and Tshwane since 2008, and its Amendment Act which is mooted to commence nationally on 1 July 2021.

Recently, the Road Traffic Infringement Agency (RTIA) recycled an old advisory explaining the AARTO Act’s processes, and distributed it to the media. While it is a fairly accurate summary in terms of the current provisions of the AARTO Act, it does not explain the process which will apply if/when the AARTO Amendment Act is implemented nationally.

Although the draft regulations to the AARTO Act are not final yet, one must consider them to be the framework that will be used in the future.

The “new system” differs considerably from the current system and it is puzzling why the RTIA would choose to sow confusion among motorists who are not familiar with it. This is more especially so considering that the RTIA is the entity tasked with administering the AARTO Act and educating the public.

To assist motorists to understand what the AARTO Amendment Act will mean to them, we summarise hereunder, the processes it involves and advise motorists to familiarise themselves with it.

How traffic fines are handled now

Currently, the way traffic fines are issued and progressed by the authorities in almost every jurisdiction of the country is through using the Criminal Procedure Act. As its name implies, it is a criminal process and regards all violations of traffic law to be criminal offences. These offences are prosecuted by the NPA, mainly in the lower (Magistrates’) courts.

The AARTO Act is different. It “decriminalises” all but the most serious traffic offences and subjects them to administrative processes. It does this by categorising road traffic violations as “infringements” or “offences”. Infringements are dealt with administratively. Criminal offences are prosecuted in criminal courts.

The amended AARTO process

The amended AARTO process comprises three steps, which in turn involve several sub-processes, depending on how you, as a motorist react. Throughout its processes the duty is on the motorist to act and failure to do so will result in consequences of varying severity.

These steps are:

  1. An infringement notice;
  2. A courtesy letter; and
  3. An enforcement order.

It should be noted that an “infringement penalty levy” (“IPL”) of R100 is payable on every infringement notice the RTIA “follows up by proper administrative processes. The IPL must be paid in full and is not subject to any discount.

It is not clear whether this means that the IPL will only be payable after the infringement notice stage, when the RTIA issues a courtesy letter or whether it will be payable when the RTIA becomes involved in other processes, like considering representations. It is also not clear whether it will be scrapped if a representation, appeal, or review is successful.

Motorists can and are advised to check if they have any AARTO infringements at http://www.aarto.gov.za/index.php/query-my-fine, remembering that the current process differs considerably from the amended process.

The infringement notice

An infringement notice is either issued and served on the driver at the roadside, at the time of the alleged violation or on the registered owner of a vehicle, after the fact. It constitutes the commencement of legal proceedings against the person cited in it.

Infringement notices are issued by “issuing authorities” like SANRAL, SAPS, Metro Police, and local and provincial traffic departments, to mention but a few. It is not their function to collect the monies associated with infringement notices and they have no mandate to force anyone to pay fines at a roadblock.

  • If an infringement notice is issued and served at the time of the alleged violation, the person cited in it will obviously be aware of it because it will be handed to him or her by a traffic officer. The countdown to other processes starts immediately.
  • If an infringement notice is issued after the fact, it must be delivered to the registered owner by post or electronically.
  • If it is served by post, it must be addressed to the address nominated on eNaTIS by the registered owner and delivered by the SA Post Office.
  • If it is served electronically, any electronic means may be used. This is because the definition of “electronic service” is extremely broad. It does not only include email.
  • In both cases, the infringement notice must be issued and served within 60 days of the alleged infringement. The countdown to other processes starts after 60 days from the alleged infringement.
  • Also, in both cases, the infringement notice is deemed to have been served (received by its addressee) on the tenth day of position unless the contrary is proven.

An infringement notice sets out the details of the alleged infringement and provides the alleged infringer with various options which may be exercised within 32 days of the actual or presumed service of the infringement notice:

  • Pay the penalty (fine) at the 50% discounted rate;
  • Apply to pay in instalments, over a maximum term of six months and in so doing, to forfeit the discount;
  • Make a written representation to the RTIA setting out why one should not be held liable for the alleged infringement; or
  • In the case of infringement notices issued to registered owners of vehicles, to nominate the driver if he or she was not the driver. Doing this should see the infringement notice being cancelled and a new infringement notice being issued to the actual driver.

The courtesy letter

The function of the RTIA is to act as a debt collector for traffic fines and the fees it raises, together with considering things like written representations from motorists and administering the points demerit system.

If an alleged infringer fails to act within 32 days of the actual or presumed service of the infringement notice, the RTIA must issue a “courtesy letter”. This document removes the 50% discount and adds a R100 fee for the courtesy letter to the total payable. It also represents the first involvement of the RTIA in the process.

Once again, the alleged infringer is provided various options which may be exercised within 32 days of the actual or presumed service of the courtesy letter. These are:

  • To pay the full penalty, together with the R100 for the courtesy letter and R100 for the IPL; or
  • To make a written representation to the RTIA setting out why one should not be held liable for the alleged infringement.
  • Notably absent from these options is the ability to nominate the driver or to apply to pay in instalments.

The enforcement order

If an alleged infringer fails to act within 32 days of the actual or presumed service of the courtesy letter, the RTIA must issue an “enforcement order”. This document has the following effects:

  • It applies the demerit points to the alleged infringer’s driving licence, operator card or vehicle licence disc. More on the points demerit system later.
  • It also electronically blocks licensing transactions on eNaTIS, meaning that no driving licence, professional driving permit or vehicle licence disc may be issued.

The enforcement order attracts a further R100 fee which is added to the total payable. It may only be “complied with” by paying 100% of the penalty, together with R100 for the IPL, R100 for the courtesy letter and R100 for the enforcement order (R300 over and above the original fine amount).

The alleged infringer may apply to the RTIA for the enforcement order to be revoked, but only if he or she does so within 32 days of the actual or presumed service of the enforcement order.

Summary of the AARTO process

Making written representations

Written representations may be made to the RTIA, detailing why the alleged infringer should not be held liable for the alleged infringement. This may only be done using an AARTO 08 form. Doing anything else will result in the representation being ignored.

The form must detail all the reasons/defences one wishes to raise, and the form must be accurately completed. Failing to provide all the required information will result in the representation being summarily rejected.

  • If it is successful, the alleged infringement will be cancelled.
  • If it is unsuccessful, the alleged infringer has 32 days from the actual or presumed service to pay, or an enforcement order will be issued.
  • No mention is made in the draft regulations of the IPL being cancelled if a representation is successful.

The AARTO Tribunal

The AARTO Amendment Act introduces a part time Tribunal to deal with the affairs of approximately 13 million drivers plus almost 13 million vehicles (as of August 2020). Its function is to consider applications for appeal or review of the decision of a representations officer who rejects a written representation.

Any person who wishes to apply to the Tribunal for appeal or review must do so using the form AARTO 10 and must do so within 30 days of the decision of the representations officer.

Except in “exceptional circumstances”, the alleged infringer must stick to the contents of their original written representation when applying to the Tribunal. He or she may not introduce new evidence at that stage.

Although an alleged infringer who is not satisfied with the decision of the Tribunal may pursue the matter further, according to the draft regulations its decision is final. If an appeal or review before the Tribunal is unsuccessful, the RTIA must issue an enforcement order.

The Magistrates’ Court

If the alleged infringer is not satisfied with the decision of the Tribunal, he or she may approach the Magistrates’ Court with jurisdiction to appeal or review the decision of the Tribunal. According to the draft regulations, this must be done within 7 days of the Tribunal’s decision.

There is no mention in the draft regulations of the effects of the enforcement order being suspended if an alleged infringer approaches the Magistrates’ Court for appeal or review. This differs considerably with all other appeal processes in South Africa’s courts, where orders are suspended, pending the outcome of the appeal.

The draft regulations also regard an appeal to the Magistrates’ Court as being the end of the road for an aggrieved motorist. This too differs considerably from other legal matters which are subject to appeal to the High Court, the Supreme Court of Appeals and the Constitutional Court.

Nominating the driver

A vehicle owner may nominate the driver within 32 days of the actual or presumed service of an infringement notice. He or she may not do so after that time.

  • A form AARTO 07 must be used to nominate the driver.
  • A clear copy of the said driver’s driving licence card must be submitted together with the nomination form.

It is essential that the owner of a motor vehicle acquires and retains a clear copy of any third party’s driving licence card for purposes of nominating such driver if he or she allegedly violates the law.

Peculiarly, no provision is made to nominate the driver if the violation is categorised as a criminal offence. In such cases, the registered owner must wait for a criminal summons to be issued and served.

The points demerit system

The long-awaited part of the AARTO Act is the introduction of a points demerit system. All points demerit systems in the world have similar features, although the South African version differs inasmuch as it is subjected to administrative processes which do not involve the courts.

  • Every driver, operator or juristic entity starts with zero points;
  • Differing demerit points for each violation are prescribed in Schedule 3 to the AARTO regulations;

As infringements are incurred by drivers or vehicles, the demerit points are associated with that violation. They are applied when:

  • The penalty (fine) is paid, whether at the discounted stage or not; orWhen an enforcement order is issued or a person who is charged with a crime (“offence”) is convicted in court.

The threshold of demerit points which may be incurred without consequence is 15 points.

  • If the threshold is exceeded, the relevant driving licence card, operator card or vehicle licence disc is suspended for three months for each demerit point by which the threshold is exceeded. e.g. If 19 demerit points are incurred, the said document will be suspended for a year.
  • Driving or operating a vehicle during the prohibition period is a criminal offence, subject to a fine or imprisonment and a further six demerit points on conviction.

Once a driving licence card, operator card or vehicle licence disc has been suspended twice, again exceeding the threshold will result in it being cancelled.

  • This means that, in the case of driving licenses, the person will have to start from scratch, with a learner’s licence if he or she wishes to drive again after the lapse of the prohibition period.
  • In the case of operator cards and vehicle licence discs, the draft regulations do not make it clear how or if the relevant document can be reinstated.

Demerit points are applied differently, depending on whether the person is a natural person or a juristic entity, or is an operator:

  • Demerit points are applied to the driving licenses of natural persons.
  • Demerit points are applied to the operator cards of vehicles which are classified as operator class vehicles. In many instances, demerit points are incurred by both the driver and the operator. In others, they are incurred on the operator cards of juristic entities who fail to nominate the driver.
  • Demerit points are applied to the licence discs of vehicles owned by juristic entities which are not operators, if the proxy for the juristic entity fails to nominate the driver within 32 days of the actual or presumed service of an infringement notice.

Demerit points are forgiven and diminished by one point every three months. This is regardless of whether the alleged infringer does or does not incur further infringements. No-one can accumulate a negative number of demerit points. Being a “good driver” is not rewarded. Law-abiding motorists’ “reward”, if one thinks that a demerit points system involves punishment and rewards, is not to incur demerit points.

A few examples of fines and demerit points

Schedule 3 to the draft AARTO regulations contains over 2,600 separate charges for which a motorist or operator may be held to account. Below are just a few examples:

ViolationPenaltyDemerit points (natural persons)Demerit points (juristic entities)
Driving at 71-72 km/h in a 60 km/h zoneR400-1
Driving at 89-90 km/h in a 60 km/h zoneR3,40055
Driving at more than 90 km/h in a 60 km/h zoneCRIMINAL OFFENCE66
Failed to stop behind the line at a stop streetR1,50022
Failed to proceed when a traffic light was green R1,00011
Skipped a red traffic light – motorcycle/light motor vehicle/bakkie, etc.R1,50022
Skipped a red traffic light – operator class vehiclesR2,00033
Refused or failed to comply with a lawful order given by an authorised officerCRIMINAL OFFENCE66
Failed to carry a warning triangle (excl. motor car registered before 1 July 2006)R1,000--
Failed to display a current licence discR2,000--
Failed to licence a vehicleCRIMINAL OFFENCE66
Driver did not carry driving licence card with him/her or produced an expired driving licence cardR20003-
Driver is unlicensed to drive the class of vehicle he/she is drivingCRIMINAL OFFENCE6-
Employed or permitted another person to drive such vehicle while the said driver did not have a valid driving licence.R3,500--
Failed to pay ordinary or e-toll fee – motorcycle/light motor vehicle/bakkie, etc. – per toll plaza/gantryR500--
Failed to pay ordinary or e-toll fee – operator class vehicles – per toll plaza/gantryR1,000--
Reckless or negligent driving/driving under the influence of alcoholCRIMINAL OFFENCE6N/A
Inconsiderate drivingR1,000-1

Checking other persons’ demerit points status

Only companies who employ persons to drive their vehicles may query the demerit points statuses of their employees. They must get the written permission of the said driver to do so and must also pay a fee to the RTIA for such queries.

People and companies who let any other person (not in the employ of their company) drive their vehicles may not query such drivers’ points demerit status, except by making a PAIA application.

Allowing a person who is not licensed to drive one’s vehicle is subject to a fine of R3,500.

Driver rehabilitation programme

An undefined driver rehabilitation program is catered for in the AARTO Amendment Act. It is exclusively available to drivers whose driving licenses have been cancelled and must be paid for by that driver if he or she chooses to undergo the programme.

Successful completion of the driver rehabilitation program will diminish the demerit points on the successful candidate’s driving licence by four points. In other words, it will knock a year off the prohibition period within which that person may apply for a learner’s licence.

NOTE: All the above provisions are draft regulations which are open for public submissions until 1 December 2020. You are encouraged to go to https://dearsouthafrica.co.za/aartoregs/ and make your own submission. You can use the QR code below to go there using your mobile phone.

For more information on the AARTO Act, please visit https://www.aarto.co.za/.

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

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

AARTO Amendment Bill – Gauteng public hearings

JOHANNESBURG – The Gauteng Provincial Legislature is holding public hearings on the AARTO Amendment Bill, 2015 at three venues around Gauteng in the coming weeks. Apparently, a fourth hearing took place at Springs Civic Centre yesterday, but obviously it’s too late for anyone to attend that hearing.

The dates and venues are as follows and all public hearings commence at 16:00:

Date Venue Area
Thursday
22nd March 2018
Braamfontein Conference and Recreation Centre
Cnr Harrison and Smit Street, Braamfontein 
Johannesburg
Monday
26 March 2018
Vereeniging Community Hall
Cnr. Leslie and Beaconsfield Avenue, Vereeniging 
Sedibeng
Wednesday
28 March 2018
Stanza Bopape Community Centre, Mamelodi East
Rammapudu Street, Ext 5, Mamelodi East 1 
Tshwane

No email address has been provided for written submissions but since the chairperson of the Roads and Transport Portfolio Committee at the Gauteng Provincial Legislature is apparently Mr. M. Mgcina, we are assuming that written submissions may be addressed to him via the Committee’s coordinator, who appears to be Mr Sithembiso Mthiyane, and whose email address is SMthiyane@gpl.gov.za.

This is the very last opportunity for motorists in Gauteng to provide their inputs and express their concerns with the Bill which primarily seeks to migrate traffic fines completely out of the jurisdiction of the courts and into a purely administrative system where motorists are presumed to be guilty from the second a traffic fine is issued. A points-demerit system also forms a small part of the AARTO Act.

JPSA encourages anyone who holds a driving licence and/or is the registered owner of a motor vehicle to take the time to read the AARTO Amendment Bill and participate in the public hearings. A copy of the Bill and an easy to understand summary of its more salient points is available at www.aarto.co.za.

First-time offenders and serious criminal road traffic offences

A recent question posted on the Facebook group, Legal Talk SA has again highlighted the fact that few people understand the practical implications of being convicted of a crime – more especially when that crime relates to a road traffic offence. For some bizarre reason, it appears that a great many people do not regard road traffic offences as constituting a crime, but the fact of the matter is that nothing could be further from the truth.

It’s very easy to give other people advice when the consequences which will befall the person asking for advice don’t have any effect on you. As a result, one often finds advice being dished out on social media, and whilst much of this advice may be well-intended,  some of it can have an adverse effect on the person who places their reliance in that advice.

Below is some competent practical advice which will put anyone who stands accused of a road traffic crime in a better position to understand how they should go about dealing with the matter. It must also be noted that as much as this advice applies to road traffic crimes, it also applies to most other crimes for which the offender is arrested and fingerprinted, particularly where those crimes are regarded as being “minor crimes”, like disturbing the peace, for example.

The question posed in the Facebook group was as follows:

“Need an urgent help, I know I messed up, I got arrested for driving 143km/h in 100km/h zone, was released on bail same day, problem is that I was arrested in Ngodwana however I stay in Johannesburg, have been given a court date to attend in Nelspruit which is very far from Johannesburg, what I’m interested in is that what will be the judge Vedict be, how much fine, should I bring the fine the same day or I can pay in installments?”

No-one can accurately predict what the verdict of a Court will be, nor can they accurately predict what penalty will be imposed by a judicial officer if the accused person is convicted. The sentence handed down by a judicial officer in Court and which could be a fine or imprisonment is only part of the story and part of the consequences which will befall you and therefore, one should not be too hasty in making a decision on how to approach such a matter.

The first thing that everyone needs to understand is that when you are arrested for a road traffic offence, regardless of what offence it may be, that offence constitutes a crime, and if and when you are convicted of it or pay an admission of guilt fine in relation to it, you will incur a criminal record which will reflect on the South African Police Service (SAPS) Criminal Records Centre (CRC) database. This will in turn adversely affect your employment prospects and could also result in the refusal of a travel visa.

It is a current policy requirement of the SAPS CRC that a docket number and the fingerprints of a convicted person must be submitted to it in order for such criminal record to be registered, and therefore, if you are arrested and your fingerprints have been taken, and you are then convicted or pay an admission of guilt fine for any crime, no matter how serious or minor that crime may be regarded to be, you will incur a criminal record. Such a criminal record will endure forever, unless you apply to have it expunged after ten years or successfully appeal the conviction at some time prior to that.

Obviously, the best way to avoid incurring a criminal record is to simply always obey the law, however if you do happen to break the law then you must be fully aware of the consequences which will befall you before you make any decision on how to handle the matter.

You should never forget though that it is the duty of the State to prove its allegations, not of the accused to prove his or her innocence and this principle is adequately articulated and catered for in Section 35(3) of the Constitution of the Republic of South Africa, 1996. Furthermore, the provisions of the Criminal Procedure Act, 1977 (Act 51 of 1977) apply.

Whilst judicial officers (Magistrates and Judges) do have the discretion to allow a convicted person to pay the monetary penalty (fine) by means of a deferred fine, meaning that the fine can be paid off in installments, whether the fine is paid immediately or in installments will have no effect on the fact that a criminal record will be registered and will prevail against your name.

There is an old adage that goes “a lawyer who represents himself has a fool for a client” and it must follow that if you are not a lawyer but still choose to represent yourself in a criminal matter, you are placing yourself at a severe disadvantage. As alluded to earlier, it is for the State to prove your guilt in a criminal trial and not for you to prove your innocence.

Not that long ago, both, Julius Malema and Zwelinzima Vavi proved that just because they were arrested for allegedly excessively high speeds, does not mean that the State could prove that they were guilty. It’s all well and good that some people have suggested that this arose out of the political nature of these individuals and/or out of legal technicalities”, but one must remember that the measurement of speed is a highly technical matter and therefore is subject to technical rules and issues.

Admittedly, not everyone has the money to splash out on expensive lawyers, but the decision of whether or not you wish to engage the services of a lawyer to represent you in a criminal matter cannot be made solely on your current ability to afford to engage a lawyer, but must also consider the financial impact which incurring a criminal record will have on you, if you are convicted.

But what if you know that you are guilty and want to minimise the time you need to appear in court?

Well, you may plead guilty immediately when you are asked to plead, and in so doing, save the prosecution the time and effort which would be spent on  proving its case, and in turn the Court’s time in hearing the matter. But as much as a judicial officer may appreciate you not wasting the Court’s time by attempting to “defend the indefensible”, and as a result, may reflect this appreciation by imposing a more lenient sentence, the fact still remains that a criminal conviction will have an adverse impact on your life, going forward.

If you are a first-time offender and are genuinely remorseful, the prosecution may well be willing to enter into a diversion programme agreement with you prior to the matter going to trial and in so doing, keep the matter outside of the Court. Although the National Prosecuting Authority (NPA) in the Free State is reluctant to enter into diversion agreements with persons accused of road traffic offences, the NPA in most of the other provinces is generally not averse to this concept in deserving cases.

A good diversion programme will contain a mix of community service, as well as remedial education, designed to correct the behavior of the offender, rather than punish him or her. Any accused person may approach the public prosecutor to enquire about his or her eligibility to be entered into a diversion agreement, but once again, it is advisable to have a lawyer make such an approach, to ensure that you don’t end up inadvertently admitting guilt and being prosecuted anyway, or have a diversion agreement go awry by being improperly handled.

Once you have entered into a diversion agreement, you will have to appear in court where the criminal charges against you will be provisionally withdrawn. Once all of the conditions of the diversion agreement have been met, the matter will be permanently withdrawn. For more information regarding diversion, please speak to NICRO.

JPSA strongly supports the concept of diversion programmes for first-time offenders, not because it is soft on crime or in any way believes that anyone should be allowed to act as they wish, but because it realises and acknowledges the severe impact that incurring a criminal record has on a person who may not necessarily have intended to embark on a career of criminality. The trouble with imposing a criminal record straight off the bat is that, in its practical implementation, it actively precludes people from employment and people who are precluded from employment will invariably have to either become self employed, sponge off relatives or become a career criminal in order to survive. This, in turn, is not in the interests of justice or society as a whole.

On the score of criminal record checks, it is JPSA’s view that employment agencies and others who, instead of going to the expense and effort of lawfully acquiring the criminal records of individuals through registered Automated Fingerprint Identification System (AFIS) service providers, choose to acquire this information through those who unlawfully check the ID number of the applicant against the SAPS Crime Administration System (CAS) should be shut down and prosecuted. The only legal way to check a criminal record is to do so based on the fingerprints of that person and all other methods are strictly unlawful and generally involve corruption of police officials.

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.