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.

Introduction

Few people take road traffic laws nearly as seriously as they should and one of the biggest problems with this is that many have come to accept traffic fines as a “fact of life” or regard them as bending of the rules instead of as the commission of a crime.

When a speeding fine arrives in the post, some people go off and pay it whilst the vast majority simply ignore it. Sadly, it is this exact attitude that causes so many people to become repeat offenders and one of the biggest problems with this is that when people repeatedly offend and either get away with it by the payment of a traffic fine, with a slap on the wrist, or discarding it in its entirety, what often happens is that their behaviour escalates.

The escalation in disobeying speed limits takes two forms. The first is the frequency with which speed limits are disobeyed and the second is the variance by which they are disobeyed. It is the second form of escalation that is both, very dangerous and could affect the rest of offenders’ lives if they get caught doing it. This is completely aside from the consequences which could befall such offenders if they crash, and that is an entire discussion on its own.

Realising that speed plays a significant role in determining the outcome of road traffic crashes and that excessive over speeding is on the rise, an amendment to Section 35 of the National Road Traffic Act was enacted in 2010 wherein the driving licenses of those convicted of, amongst other offences, excessive speed, will be suspended when they are convicted of these offences.

The contents of Sections 35 and 36 of the National Road Traffic Act

Please note that we are presenting the wording of this section verbatim, as it appears in the Act and therefore, any spelling errors, etc. are those contained in the Act. The annotations in red are a description of the relevant offence in that section of the Act.

Sections 35 and 36 of the National Road Traffic Act read as follows:

35. On conviction of certain offences licence and permit shall be suspended for minimum period and learner’s or driving licence may not be obtained
(1) Subject to subsection (3), every driving licence or every licence and permit of any person convicted of an offence referred to in –
(a) section 61 (1) (a), (b) or (c), in the case of the death of or serious injury to a person;
Offence above: (a) Failing to immediately stop the vehicle and report the accident, (b) ascertain the nature and extent of any injury sustained by any person or (c) if a person is injured, render such assistance to the injured person as he or she may be capable of rendering.
(aA) section 59(4), in the case of a conviction for an offence, where-
(i) a speed in excess of 30 kilometres per hour over the prescribed general speed limit in an urban area was recorded; or
(ii) a speed in excess of 40 kilometres per hour over the prescribed general speed limit outside an urban area or on a freeway was recorded;
Offence above: Disobeying the speed limit applicable to that road and/or the class of vehicle driven at the time of the offence.
(b) section 63 (1), if the court finds that the offence was committed by driving recklessly;
Offence above: Reckless or Negligent Driving
(c) section 65 (1), (2) or (5),
where such person is the holder of a driving licence or a licence and permit, shall be suspended in the case of –
(i) a first offence, for a period of at least six months;
(ii) a second offence, for a period of at least five years; or
(iii) a third or subsequent offence, for a period of at least ten years, calculated from the date of sentence.
Offence above: Driving under the influence of alcohol or a drug having a narcotic effect
(2) Subject to subsection (3), any person who is not the holder of a driving licence or of a licence and permit, shall, on conviction of an offence referred to in subsection (1), be disqualified for the periods mentioned in paragraphs (i) to (iii), inclusive, of subsection (1) calculated from the date of sentence, from obtaining a learner’s or driving licence or a licence and permit.
(3) If a court convicting any person of an offence referred to in subsection (1), is satisfied, after the presentation of evidence under oath, that circumstances relating to the offence exist which do not justify the suspension or disqualification referred to in subsection (1) or (2), respectively, the court may, notwithstanding the provisions of those subsections, order that the suspension or disqualification shall not take effect, or shall be for such shorter period as the court may consider fit.
(4) A court convicting any person of an offence referred to in subsection (1) shall, before imposing sentence, bring the provisions of subsection (1) or (2), as the case may be, and of subsection (3) to the notice of such person.
(5) The provisions of section 36 shall with the necessary changes apply to the suspension of
a driving licence or a licence and permit in terms of this section.
     
36. Procedure subsequent to suspension or cancellation of licence or permit
(1) Where a court has issued an order that any licence or any permit be suspended or cancelled, the prescribed procedure shall be followed.
(2) Whenever a licence is or a licence and permit are suspended or cancelled in terms of an order of court, the suspension or cancellation shall apply to every other licence or licence and permit, as the case may be, held by the person concerned.

 

Understanding these provisions

Very few ordinary motorists are in a position to understand the full extent of the implications of Section 35 of the National Road Traffic Act, so we will put this into layman’s terms for you.

  1. On conviction for any of the offences cited in Section 35 of the National Road Traffic Act, the first thing that will happen is that you will incur a permanent criminal record.
  2. If you are not stopped at the time, you will receive a notification in the post that you will be summoned to appear in court for a “No Admission of Guilt” (NAG) matter.
    • In areas where the Criminal Procedure Act administers traffic law, this will take the form of a notice issued in terms of Section 341 of the Criminal Procedure Act. This document must be posted to you within 30 days of the alleged commission of the offence.
    • In areas where the Administrative Adjudication of Road Traffic Offences (AARTO) Act is in force and administers traffic law, you will receive an AARTO 33 notification of offence. There is currently no requirement for this document to be served on you contained in the AARTO Act, but this is the document that is currently used.
    • Whichever document you receive, you will be informed that a summons in terms of Section 54 of the Criminal Procedure Act will be issued and served on you.
    • There is no stipulated timeframe within which a summons must be issued and served, however the National Prosecuting Authority has stipulated that this must be done within 18 months in the Western Cape and 24 months in Gauteng, after which the matter should be withdrawn.
    • Failing to appear in court on a criminal summons will lead to a Warrant of Arrest being issued against you.
  3. If you commit any one of these offences and are stopped at the time of the offence, you will be arrested.
    • You will be taken to a police station and detained whilst your fingerprints are taken and a criminal docket is registered against your name.
    • You may be released on bail to appear in court at a stipulated date and time on the criminal charges that have been brought against you.
    • Failing to appear in court will lead to a Warrant of Arrest being issued against you.
  4. Under Section 35(1)(aA)(i) and (ii) the term “in excess of” means a speed of 31km/h or more over the speed limit in an urban area and a speed of 41km/h or more over the speed limit outside of an urban area or on a freeway.
  5. Incurring a criminal record will affect many areas of your life including but not limited to:
    • Affecting your prospects for employment as many employment agencies in South Africa are illegally querying criminal records that applicants may have.
    • If you work for a financial institution, it is likely that part of your employment contract will include periodic criminal record checks and the incursion of one will give your employer grounds to dismiss you.
    • If you hold a Professional Driving Permit (PrDP) you will not be able to renew it – ever.
    • If you make application for any form of visitor’s visa to a foreign country, you will be refused such a visa on the grounds that you have a criminal record.
    • If you make application to emigrate to a foreign country, you will be refused on the grounds that you have a criminal record.
  6. The suspension of your driving licence for the period stipulated in the Act is not an optionalrequirement.  It is a mandatory suspension period.
    • Although many judicial officers (Magistrates) have interpreted Section 35(3) as giving them thediscretion to not suspend your licence, it must be noted that the wording “…that circumstances relating to the offence exist…” is definitive in making this discretionary power applicable only to the circumstances relating to the offence.
      • This means if the court is satisfied that you had a valid reason for committing the offence.
      • It does not mean that suspending your driving licence will prejudice you and therefore your licence may not be suspended.
        • “I didn’t know my licence could be suspended” is not a valid excuse.
        • “I need my licence to earn a living” is not a valid excuse.
      • Whether you are remorseful afterwards or not is in fact irrelevant to the circumstances relating to the offence and it must be remembered that it is only people who are found to be “psychopaths” who show no remorse when they commit crimes.
      • A valid reason for speeding would be reacting to an emergency situation, etc.
  7. WARNING: If you agree to pay an admission of guilt fine without going through the motions of undergoing a trial, you will still incur a criminal record.
    •  You are therefore advised to seek competent legal representation.

If this is the first time that you have committed such an offence, there is a possibility that you may have your legal counsel speak with the public prosecutor about a diversion programme you may be eligible for.

  • Have your legal counsel speak with the public prosecutor about a NICRO diversion programme and establish whether such an option may be pursued.

Disclaimer

Please note that the information provided on this web page is provided for information purposes only and does not constitute legal advice.

Author Information

Howard Dembovsky is National Chairperson of Justice Project South Africa. He may be contacted through our contact page.