Article

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:

 

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.

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”.

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

Section 35 of the National Road Traffic Act.

Road Traffic Offences for which your driving licence MUST be suspended

Abstract

On a monthly basis, we receive a mountain of enquiries from people who have been informed that they are to be summoned to appear in court on “No Admission of Guilt” (NAG) matters and it is becoming untenable to reply to each and every enquiry repeating what is mostly a standard response. For this reason, we have decided to put this web page up so everyone comes to understand the seriousness of these matters and hopefully avoids falling foul of the law. Continue reading