Important advisory regarding summonses issued under the Criminal Procedure Act.
Issued by Justice Project South Africa (NPC) in the interests of public awareness
Authored by Howard Dembovsky
Next to actually going to jail, incurring a criminal record is one of the most serious things that can happen to anyone. It is part of the deterrent factor that laws and law enforcement tries to project in order to instil and maintain law and order.
But when people incur criminal records on an arbitrary, wholesale basis because they have been misled into believing that the “responsible thing to do” is to pay their traffic fines, a grotesque perversion and miscarriage of justice can be the only result.
Recent discussions with a senior ranking officer (Director) in the Ekurhuleni Metropolitan Police Department have given rise to an alarming practice taking place in its jurisdiction. A simple question of why a motorist was arrested and charged with a criminal offence instead of being issued with a Section 56 summons for speeding led to a rally of emails back and forth and the startling revelation that, regardless of whether a docket is registered against you or not, you will incur a criminal record for traffic offences committed in Ekurhuleni if you admit guilt on a summons issued by them.
We have also recently become aware that the Pinetown Traffic Department is now handing out annexures along with summonses issued in terms of Section 54 of the Criminal Procedure Act, informing people that they will incur a criminal record if they pay the admission of guilt fines (or any reductions thereon) instead of defending the matter in court.
We have queried whether what is happening in Ekurhuleni is also happening with the Cape Town Traffic Services and both they and the Assistant Director of Public Prosecutions for traffic matters in Cape Town have come back and assured us that it is not happening there. But what happens in Cape Town is not necessarily what happens in the rest of South Africa.
Obviously, it is not possible for us to direct the same query to all 8 Metropolitan Police Departments, 9 provincial authorities and over 280 local authorities in South Africa, so therefore it is not possible for us to say whether what Ekurhuleni and Pinetown are doing is isolated to their jurisdiction or is being done elsewhere.
The AARTO Act applies in the jurisdictions of the Johannesburg and Tshwane Metropolitan Police Departments ONLY, and decriminalises all but very serious road traffic offences.
Everywhere else, it would be advisable to check and get an answer in writing whether the traffic authority concerned follows the letter of the law like Ekurhuleni and Pinetown or not.
Most people do not regard traffic fines as serious matters
Popular opinion holds that “traffic fines are a fact of life”. That same popular opinion also holds that, in areas where the Criminal Procedure Act is in force you need not take any action until such time as you have a summons in your hands. However if that traffic fine happens to have been issued by the Ekurhuleni Metropolitan Police or Pinetown Traffic Department, you had better be aware of what follows.
The Criminal Procedure Act as it applies to traffic fines – in a nutshell
There are three sections of the Criminal Procedure Act (Act 51 of 1977) that are used to issue traffic fines. These are:
- Section 341 – which deals with the issue of a notice of intention to institute prosecution;
- Section 54 – which is used to institute prosecution after the fact in a Criminal matter following an ignored or non-received Section 341 notice; and
- Section 56 – which is used to institute prosecution immediately when an accused offender is stopped at the time of the alleged offence and issued with a citation there and then.
In practice, the first two sections are used for unattended offences, such as parking tickets and they are also used for offences captured on camera where the offender is not stopped at the time of the offence – like speed and red light violations.
It is interesting to note that Section 341(1) of the Criminal Procedure Act also allows peace officers to issue such a notice to alleged offenders when they stop them, as well as in unattended circumstances but this never happens in practice. The relevance of this will become apparent later in this advisory.
An admission of guilt fine is reflected on all of the three documents referred to above and each of them gives the accused a date before which he or she may pay the admission of guilt fine. Where no admission of guilt fine is allowed, the acronym “NAG” will appear on the notice and the accused must appear before a court.
According to Section 341(1) of the Criminal Procedure Act, the period in which such a notice may be paid is supposed to be within 30 days of receipt of the notice, but when Section 341 notices are posted; traffic authorities typically simply calculate 30 days from the date they issue the first notice and place a payment date in “section D” of the notice.
This is of course unless the traffic department is the Durban Metro Police Department who don’t use the “traditional” Section 341 notice but instead use a rather peculiar letter to inform people that they may pay their traffic fine at a discounted rate.
The problem is, unlike the AARTO Act, the Criminal Procedure Act does not contain a legislated schedule of what notices should look like, so it is difficult to take traffic authorities to task when they act as they please. Similarly, “discounting” traffic fines is the choice of the particular traffic department or public prosecutor under the Criminal Procedure Act, whereas under AARTO, it is a legislated process with prescribed timelines.
Both, the practical use of a Section 341 notice and the period allowed for payment is, in my opinion, a blatant perversion of Section 341 of the Criminal procedure Act, but is yet to be challenged by anyone in a Higher Court in South Africa. It is important to note that there is no requirement for registered mail to be used to serve such a document and service of it does not have to be proven.
If the admission of guilt fine on a Section 341 notice is paid, the matter is finalised without criminal prosecution being brought against the accused and there is no further consequence to it. It is literally done and dusted and will not have any further impact on your life.
What happens if you await a summons?
If a Section 341 is not paid or otherwise disposed of¹ for one reason or another, then prosecution is instituted and a summons in terms of Section 54 of the Criminal Procedure Act² is issued and must beserved on the person cited in it.
It is vitally important for you to realise that personal service (on you only) is not required in terms of Section 54(2)(a) of the Criminal Procedure Act and the summons may be served by serving it at your residence or place of employment or business on a person apparently over the age of sixteen years. Your address is determined by your registered home or work address on the eNaTIS vehicle registry and it is in your own interests to ensure that your details are always up to date on eNaTIS.
What happens if you are stopped at the time of the alleged offence?
When you are stopped at the time of the alleged offence, you will ordinarily be issued with a Summons in terms of Section 56 of the Criminal Procedure Act. The only real difference between this document and a summons issued in terms of Section 54 of the Criminal Procedure Act is that the issue of service is disposed of immediately because it is actually issued to you in person.
Informing you of the consequences of admitting guilt
Section 56(1)(c) of the Criminal Procedure Act says that a Section 56 summons must “contain an endorsement in terms of section 57 that the accused may admit his guilt in respect of the offence in question and that he may pay a stipulated fine in respect thereof without appearing in court.” It is interesting to note that Section 54 does not contain the requirement for this to be printed on the notice but it is covered in Section 57 where it too is allowed to have an admission of guilt fine on it.
Ordinary, people don’t know or care to find out what “section this or section that” means and they simply focus on the part that says “pay without appearing in court” and the penalty amount that appears on the notice. If it’s affordable, they pay the fine – or at least that’s what so-called “law-abiding citizens” do.
Why? Well because the prospect of having to take time off work, engage a lawyer to defend them, stand before a magistrate etc. is unpalatable and scary, plus it conjures up images of huge expenses, a waste of their valuable time and being exposed to unnecessary embarrassment. After all, who really wants to stand before a magistrate and have to explain themselves and who thinks that a traffic fine is a serious matter? Similarly, Magistrates Courts are not well known for their regard for people’s time and rarely get going at 08:30 when you are expected to be at the court.
So what does Section 57 of the Criminal Procedure Act say then?
Well, it actually says quite a lot and if you haven’t been paying too much attention thus far, then now is the time to read what follows very, very carefully.
Firstly, it says that when you pay an admission of guilt fine which appears on one of these summonses, it will have the same effect as if you were to be found guilty by the court³. It does not say that the matter is now swept under the carpet and life resumes as normal.
It furthermore says that the clerk of the court shall, “as soon as expedient enter that admission of guilt in the criminal record book for admissions of guilt”. This means that a criminal record must be registered against your name and ID number, despite the fact that no criminal docket has been registered against you by SAPS and your fingerprints have not been taken.
The first time you become aware of the fact that you have a criminal record may be when you apply for a job or a travel visa and get refused either on the strength that you have a criminal record. Some people, like those employed in the Financial Services industry may actually find themselves losing their jobs when their job review comes around and their criminal record is checked as a routine part of their review.
Is this legal?
Sadly, the short answer to “is this legal” is yes it is. Obviously, the Ekurhuleni Metro Police and Pinetown Traffic Department cannot be criticised for following the letter of the law, as that would be like shooting the messenger, but this provision of the apartheid-era Criminal Procedure Act can only be described as draconian and highly prejudicial. Ekurhuleni’s Section 56 summonses do indeed make reference to Section 57 and 57A of the Criminal Procedure Act as is required.
They also inform you that “by paying an admission of guilt fine it shall be deemed that you have been convicted and sentenced by the court.” What it doesn’t say in plain English is that you will be given a criminal record to go with it!
Is this the way to be dealing with things in the “New South Africa”?
Without trivialising the seriousness of road traffic offences, one has to ask if legislators in our current constitutional democracy would seek to criminalise everyone who commits a road traffic offence, especially since over one billion traffic fines are issued in South Africa every year.
In light of the volume of summonses issued under Sections 54 and 56 of the Criminal Procedure Act on a monthly basis just in the jurisdiction of Ekurhuleni (in the upper tens of thousands, if not more), one can only imagine how many artificial criminals have been created amongst us.
If this practice is widespread, then the situation could be far worse and considering the impact is quite simply, a daunting concept. It is clear that the Criminal Procedure Act of 1977 – one of the few remaining laws created during the apartheid-era left in South Africa is in urgent need of review.
It is also clear that the Administrative Adjudication of Road Traffic Offences (AARTO) Act, which decriminalises road traffic offences, should be fixed up and rolled out nationwide – with its points-demerit system in place – as soon as possible and without further delay.
Suspending a person’s driving licence for a couple of months, whilst inconvenient, pales in comparison to imposing a permanent criminal record on them.
- A judgment in the Pietermaritzburg High Court overturned a conviction specifically in respect to the payment of an admission of guilt fine of R100 on a Section 56 summons in 2011. Similarly, recent judgments in the Western Cape High Court have also overturned criminal convictions imposed on people who paid admission of guilt fines for other criminal offences, like common assault and “disturbing the peace”.
It’s all well and good that the judgments have set aside the convictions and criminal records imposed on the two people concerned however, not everyone has the money to engage lawyers to approach the courts to have their convictions overturned.
In the interests of justice?
Justice Project South Africa is very concerned about what appears to be a sudden “aha moment” by traffic departments showing them that the Criminal Procedure Act gives them the power to criminalise people in a wholesale fashion, as if many traffic officers are not already power drunk. Whilst they may see this as a deterrent to would-be traffic offenders, simply waking up one day 37 years after the fact and deciding to impose criminal records on people is somewhat ominous.
Yes, the Criminal Procedure Act does indeed cater for the imposition of criminal records when people pay admission of guilt fines, but does this mean that it is right or indeed, in the interests of justice to do so? If the answer to that question is “yes” and this practice is widely rolled out, then it won’t be long before almost every South African driving licence holder has a criminal record and as a result, finds themselves unemployable or otherwise prejudiced.
It must be remembered that simply because a person has received a traffic fine does not mean that they are indeed guilty of the offence, or any indeed any offence. We have seen numerous examples of incorrectly issued traffic fines for such things as having a tyre tread depth of less than 4mm across the entire surface of a tyre, when the minimum requirement under the National Road Traffic Act is 1mm; and for driving a motor vehicle without possessing a Professional Driving Permit where none is required for that particular vehicle.
Obviously, we have numerous other examples, including but not limited to false number plates, etc. and the list is simply too lengthy to include. And of course, it must not be forgotten that traffic officers have a terrible reputation for being a corrupt bunch – as are the motorists who pay them bribes. There can be absolutely no doubt whatsoever that it will make perfect sense for people accused of traffic offences, whether they are guilty or not and whether they have ever considered paying a bribe or not, to slip a traffic cop a couple of hundred bucks in order to not be issued with a summons that could or would earn them a criminal record!
What is truly amazing is that the Durban Metro Police Department were in the news towards the end of 2013, wherein it was reported that they have a conviction rate of 7.5% for cases under the extremely serious charge of driving under the influence of alcohol. Other traffic authorities in South Africa largely have similar or worse track records in the prosecution of intoxicated driving offences.
The message that they are sending out to the public in a loud and clear fashion is that they are more interested in revenue and creating artificial criminals than they are in tackling a road traffic offence that accounts for more than 57% of road fatalities.
So where to from here?
Justice Project South Africa is well aware of the fact that this advisory cannot possibly reach each and every person who drives or owns a motor vehicle in South Africa. After all, it appears that only hoax emails go viral these days.
We are very concerned that possibly one of the biggest injustices South Africa has ever seen is in the process of being perpetrated and the damages caused by what is going on may indeed prove to be very, very difficult to reverse if urgent steps are not taken to halt it.
To this end, we have made arrangements with the Road Traffic Infringement Agency to meet and discuss the urgent rollout of AARTO on a national basis and we will also be escalating the matter to the National Department of Transport on an urgent basis.
We are also considering approaching the Constitutional Court in an attempt to, at the very least; hold off the flood of criminal convictions that will almost certainly follow from this bizarre practice but this will take money, which is not a luxury enjoyed by Justice Project South Africa.
After all, it is simply bizarre that if you travel on some roads that people generally refer to as Johannesburg, you will not be subject to the incursion of a criminal record under AARTO, but if you cross that same road, into Ekurhuleni, you will indeed incur a criminal record – for the identical “offence”.
In our view, whilst they should not be trivialised, so-called “minor” road traffic offences should not attract a criminal record and it is high time that the Administrative Adjudication of Road Traffic Offences (AARTO) Act got rolled out. It was assented to in Parliament in 1998 and should have been rolled out properly throughout South Africa by now – almost 16 years later. The reason it hasn’t is because it needs to be tidied up and it’s been opposed by many, amongst whom are… wait for it….
References & explanations:
¹ Section 341 notices are typically issued to the registered owner or proxy for the vehicle in question. On receipt of such a notice, the owner of the vehicle in question may nominate another person as having been the driver of that vehicle, also within 30 days.
² A summons under Section 54 must be served on you as the accused so that you are in possession of it at least fourteen days (Sundays and public holidays excluded) before the date appointed for the trial.
³ Section 57(6) of the Criminal Procedure Act reads as follows: “An admission of guilt fine paid at a police station or a local authority in terms of subsection (1) and the summons or, as the case may be, the written notice surrendered under subsection (3), shall, as soon as is expedient, be forwarded to the clerk of the magistrate’s court which has jurisdiction, and such clerk of the court shall thereafter, as soon as is expedient, enter the essential particulars of such summons or, as the case may be, such written notice and of any summons or written notice surrendered to the clerk of the court under subsection (3), in the criminal record book for admissions of guilt, whereupon the accused concerned shall, subject to the provisions of subsection (7), be deemed to have been convicted and sentenced by the court in respect of the offence in question.”
⁴ State v B Fynn – Kwazulu-Natal High Court, Pietermaritzburg – Case No. DR 619/10 (10 February 2011) set aside a criminal record imposed as a result of a Section 56 summons, so that charges may be properly brought against the accused who paid a R100 admission of guilt fine. State v M Parsons – Review Case No. C2791423 Western Cape High Court Ref. No. 111202 (15 June 2012) stated that forms used for admission of guilt fines should state that payment of an admission of guilt fine could lead to a criminal conviction. State v D Petrus – Western Cape High Court Ref No. 13923 (14 February 2014) also set aside a criminal conviction after the accused was “encouraged” to pay an admission of guilt fine.
Due to these developments, the fact that I have repeatedly been asked to do so and in light of the fact that there is an enormous amount of terrible misinformation on the internet, I am currently working on a few eBooks which will be released on various publication platforms shortly.
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