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Tweets are not law, Mr Minister

Justice Project South Africa (“JPSA”) is alarmed that on 31 December 2020, Transport Minister, Fikile Mbalula falsely and irresponsibly tweeted:

“In order to ease the pressure on motorist and to allow sufficient time for authorities to clear the backlogs as a consequence of the earlier restrictions, we have extended the validity of learner’s and driver’s licences, vehicle licences, professional driving permits”.

As of 5 January 2021, no government gazette which gives any effect to the said extension of the validity period of vehicle licenses and the discs associated with them has been published. This rubbishes the Minister’s claims that as of 31 December last year the said extension had already been effected.

He did not say “we will” or “we are going to” extend the validity period of vehicle licenses, he said “we have” done so.

Despite his unfortunate tendency to take to social media to promote himself, the Minister is a trusted public official whose word should be beyond reproach. It is only when or if the appropriate amendment is published in the government gazette that it will be of any force and effect. Twitter is not a substitute for the government gazette. Full stop!

Several media houses have published the Minister’s false claims and as a result, it is not unlikely that trusting members of the public who have taken him on his word have been fined.

Members of the public are advised to place no reliance in tweets emanating from the Minister of Transport unless specific, verifiable references to official government publications are provided to back up his claims.

UPDATE

Since we put this media release out, Minister Mbalula has deleted his tweet. This is not an unusual behaviour of dishonest people. That is why we made a screen capture of it before putting this media release out.

On Saturday 9 January 2021, the Department of Transport put out a media release “clarifying” the situation. It appears below and is also incorrect. It refers to the Government Gazette of 30 November 2020.

Although the Minister signed the amendment on  30 November 2020, no Government Gazette dealing with licensing was published on that day. The date of the said gazette was 3 December 2020.

The amendment to direction 6 appeared at regulation 2 on page 4 of Government Gazette 43958 of 3 December 2020. As can be seen at regulation 3, its date of commencement was the date of its publication in the Government Gazette.

RTMC threatens motorists with unlawful arrest

ANPR cameras are used to identify vehicles with unpaid traffic fines

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

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

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

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

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

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

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

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

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


UPDATE

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

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

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

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

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

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

08112020-Festive-season-arrests-highlighted

National Road Traffic Amendment Bill public participation re-opened

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

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

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

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

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

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

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

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

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

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

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

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

Expired driving licence cards, etc. extension

Important information for affected drivers:

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

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

 

 

Sadly, AARTO enforcement orders are fuelling crime

Justice Project South Africa (JPSA) is gravely concerned that fraudsters continue to exploit the existence of enforcement orders issued in terms of the AARTO Act. These criminals operate under the noses of the officials at registering authorities and driving licence testing centres in Johannesburg and Tshwane. They can be very convincing, more especially when they approach unwitting motorists who just want to renew their vehicle licence disc or driving licence card with the minimum of fuss and delay.

While this phenomenon is not new, the sharp increase in the volume of enforcement orders issued by the RTIA recently has greatly aggravated the situation. Even a single enforcement order electronically blocks licensing transactions.

Unwitting motorists are usually approached by scammers while they are queuing or when they are turned away at service counters. Often, they are approached before they even enter the licensing facility’s grounds and offered “assistance”.

Soon after providing their driving licence card to these criminals, they are presented with a printout of their AARTO infringements and told to settle all of them immediately, in cash. False claims of warrants of arrest are also used to increase the urgency, as are discounts used to sweeten the deal, if they pay now.

There is no warrant of arrest under AARTO. Furthermore, the 50% discount which is provided for if the fine is paid within 32 days of the actual or presumed service of an infringement notice cannot be reinstated once it has been forfeited.

Once a person has been scammed, he or she is offered little or no assistance by the licensing authorities. They are usually referred to the SA Police Service and, in many cases, find themselves being turned away by SAPS officials who tend to say: “no crime has occurred because you willingly gave your money to these people”. This is simply not true. All victims of fraud “willingly” give their money to scammers.

“The authorities have been aware of these problems for many years,” said JPSA’s chair, Howard Dembovsky. “Although I have served on various ‘security committees’ convened by the City of Johannesburg to tackle this issue, none of them have met this year, and it seems they have been abandoned,” he continued.

Dembovsky further expressed his concerns that: “with the intended national implementation of the AARTO Amendment Act will come so-called ‘electronic service’ and this will provide new opportunities for online scammers who run very little risk of being arrested, as may be the case with those who physically lurk at licensing centres.”

The only way for motorists to mitigate the risk of falling prey to these scams is to deal with one’s traffic fines properly. Motorists can check their AARTO fines status at http://www.aarto.gov.za/index.php/query-my-fine, after which they should exercise one of their so-called “elective options”.

Although there are other platforms, JPSA advises that if one wishes to pay an AARTO fine or enforcement order, doing so at the Checkers Money Market counter or online at payCity seems to work well and immediately changes the status to “paid”. We further advise that motorists avoid paying cash to anyone and especially not to accept “assistance” from individuals that they do not know.

Motorists who wish to educate themselves regarding the processes associated with the AARTO Amendment Act may do so by visiting https://www.jp-sa.org/aarto-amendment-act-simplified/.

JPSA and its head fully endorse the AA’s AARTO regulations submission

Spot the speed camera: The creative lengths that will be gone to in generating revenue.

Justice Project South Africa (JPSA) and its head, Howard Dembovsky in his personal capacity as a motorist, publicly endorse the submission regarding the latest draft AARTO regulations made by the Automobile Association of South Africa (the AA) on 22 October 2020.

“The latest draft regulations confirm everything that JPSA and I have been saying for over a decade, regarding the blatant commercialisation of traffic fines, and the AA has now hit the nail on the head,” said Dembovsky.  

“From the enormous increases in the fines and the administrative fees payable, to numerous new obstacles which are to be put in the way of a motorist who wishes to prove his or her innocence; these draft regulations make it clear that money and not justice or road safety is the primary focus of the AARTO Act,” he lamented.

Except where alleged infringers elect to be tried in court under its current provisions, the AARTO Act already regards traffic fines as little more than invoices.

“Should the AARTO Amendment Act be implemented nationally on 1 July 2021, where a popup Tribunal further hinders access to the lower courts, the injustices it will create are too frightening to imagine. Once regulations have been enacted, reversing them is a very tedious and costly process,” Dembovsky continued.

“In fact, the AARTO Amendment Act and its regulations now openly contradict basic principles of justice and fairness, with drivers earning minimum wage set to be hit hardest,” he concluded.

  • The AA’s submission to the RTIA may be found here.
  • The AA’s executive summary may be found here.
  • To further participate in the commenting process, please visit the DearSA legislative commenting platform or scan the QR code below. You have until 1 December 2020 to do so.

JPSA supports the AA’s licensing extension request

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

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

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

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

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

The AA’s request to the Minister appears below:

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

Compulsory wearing of face masks in public places

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

43201_03-04_Transport

 

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

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

documentsGG_20120718_35528_Bill_for_comments

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

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

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

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

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

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

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

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

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

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

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

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

SAPS media release appears below:

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