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.
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):
“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 notillegal 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.
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.
Once again, the role of social media in revealing the locations of roadblocks set up by the Metro Police is in the spotlight, this time involving allegations that an entire list of planned weekend roadblock locations has been “leaked” on a WhatsApp group.
According to the Sunday Tribune, the Acting Chief of the Durban Metropolitan Police Department, Steve Middleton on Friday evening, instead of adopting a professional policing approach in investigating the alleged crime and handling it in accordance with internationally applicable policing protocols, taken to Facebook to level threats against the alleged perpetrator.
“Hand yourself over or risk arrest” he allegedly demanded of “P Pillay” in his Facebook post.
What’s truly terrifying about this matter however is how Middleton is quoted as saying “We will open a charge of defeating the ends of justice with the police” and then saying “We will then liaise with the state prosecutors to see exactly what information and what evidence will be necessary to get a conviction”.
Surely even the most junior junior policeman would or should, if he is unsure of what the elements of a crime are and what evidence is required in order to secure a conviction, ask a state prosecutor to clarify the matter before taking any action which could come back to bite him and/or the Metro later? Failure to do so can only be described as reckless behaviour and often results in law suits which are ultimately settled out of court by insurance companies the Metros engage to provide them with “professional indemnity insurance”.
The fact that a so-called “Metro Police Chief”, who is the most senior of all people in Metro Police structures can have the audacity to admit to a journalist that he has no idea of what the legal test for a charge of “defeating the ends of justice” is, bears testimony to the utter incompetence of the top brass in many Metro Police structures. And we then wonder why it is that the rank and file of Metro Police Departments similarly demonstrate gross incompetence and tend to suffer from “Rambo syndrome”?
As Mr Middleton will no doubt find out, the legal test for a charge of “defeating the ends of justice” is stringent and merely informing a group of individuals you may or may not know but have no knowledge of whether they are involved in a crime or not of the location of one or more roadblocks does not even come close to meeting that test.
After all, even Google Maps, which is freely accessible to anyone with a smartphone references “police activity” when used to navigate the route with the least delays to your destination. I use it frequently, even when I know exactly where I am going and especially at this time of year when ridiculously long delays are caused by the showy roadblocks established to demonstrate to us all just how much the authorities “care about our safety” over the festive season.
Since I am making this admission in public and am referencing Google Maps, are charges now going to be brought against me and Google Inc for “defeating the ends of justice”?
I don’t drive drunk, in fact, I don’t drink alcohol or use drugs at all but if I did I think that knowing that there are roadblocks around would sway my decision in favour of using a “take me home” service, Uber or a taxi instead of risking arrest. If just one person were to be so swayed by the “leaking” of roadblock locations, then it would have the effect of preventing a crime and possibly even preventing injury or death – in other words, it would have the exact opposite effect to “defeating the ends of justice”.
This is not to say that I find the concept of sharing legitimate and lawfully constituted roadblock locations on social media to be in the interests of public safety, more especially when those roadblocks are utilised to detect criminals transporting contraband and/or to establish vehicle and driver fitness, but from my observation relatively few roadblocks are established for this purpose.
You see, numerous, if not most roadblocks established by Metro Police and other traffic authorities have little or nothing to do with crime prevention, road safety and/or assessing vehicle and driver fitness and some actually constitute a danger to road safety because of how and where they are set up.
Allegedly, on Sunday 26 November 2017, the Ekurhuleni Metropolitan Police Department set up a roadblock on the R21 freeway in Kempton Park and this had the effect of causing what can only be described as ridiculous delays to motorists on that freeway.
The apparent sole purpose thereof was to execute warrants of arrest against motorists who had failed to appear in court and the operation could not have yielded more than a handful, if any such arrests. If it had, it would have been plastered all over the media by the EMPD as they have done in the past when they managed to execute a remarkable sixteen arrests over a period of two and a half hours, whilst simultaneously causing undue and unjustifiable delays to thousands of motorists heading to and from OR Tambo International Airport.
Allegedly, a woman driving with her young children in her car spent 100 minutes (almost two hours) reaching the front of the queue, only to be waved through without so much as a single, let alone second glance at her or her vehicle and apparently because her number plate did not trigger an alert with respect to a warrant.
She was, as I can only assume others were, extremely annoyed by this grossly unreasonable delay and given the fact that she was nothing more than an innocent party for whom the Metro Police have no regard caught up in this abusive practice, she tweeted the location of this roadblock. Apparently, the not-so infamous PigSpotter with more than 534,000 followers did the same.
A couple of years ago, the PigSpotter was regarded by the Johannesburg Metropolitan Police Department as being “public enemy number one” and people like Wayne Minnaar engaged in a slew of threats to track him down and prosecute him for “defeating the ends of justice” as well as for crimen injuria for calling Metro cops ugly names.
What became of that? Blow all, except for his astronomical rise to stardom, a phenomenal growth in his Twitter followers and the eventual registration of a company by the name of PigSpotter (Pty) Ltd through which Cliff Pinto gets to sell PigSpotter memorabilia.
The Durban Metro Police Department has apparently learned nothing from this phenomenon and what’s worse is that its so-called “Chief” apparently thinks that it’s clever to take to Facebook to vent his frustrations over his own glaringly obvious failure to implement sufficient internal controls to prevent the leaking of confidential information from within the very organisation he heads. He even goes so far as to publicly admit that this was “not the first time that information has been leaked”.
Just whose fault is that? After all, he is the so-called “Chief of Police” and is ultimately responsible for each and every action and incident arising from within the Metro Police Department.
If I were Middleton, I would have quietly investigated the origin of the leak, gathered the requisite evidence to convict the staff member responsible and made damn sure to plug the hole in the system. There’s also another option – to put out hordes of false information in order to deter would be “drunken drivers” and encourage them to use public transport as has been done by some Metros in the past, or to engage in “random roadside breath alcohol testing” as is currently being practiced in the Western Cape if your sole purpose is to catch “drunken drivers”.
The very last thing I would have done, if I did it at all, would have been to take to social media to throw a hissy fit and publicly identify and threaten a member of the public with arrest.
For as long as I can remember, KwaZulu-Natal has had a “zero tolerance” policy yet it has consistently managed to deliver the most catastrophic road death statistics in the country. Perhaps it’s time for it to consider adopting a less tolerant approach to incompetence within its law enforcement entities, or is this simply asking too much?
Howard Dembovsky is the Chairperson of Justice Project South Africa
See also: “Can you be arrested for flashing lights warning other motorists of speed traps?” by Advocate Johan Jonck here.