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.
JOHANNESBURG – Draft regulations in respect of the Administrative Adjudication of Road Traffic Offences (AARTO) Amendment Act are inconsistent with the Constitution and are likely to result in further legal challenges. This is according to Justice Project South Africa Chair, Howard Dembovsky.
“The draft regulations provide a more complete picture which should have been available during the public consultation phases,” Dembovsky said. “But they go far beyond merely amending the existing regulations – they repeal all the existing regulations and create an entirely new set of regulations,” he said.
“The ‘consultations’ held by the national and provincial legislatures when the AARTO Amendment Bill was being discussed centred only on the Act,” he continued. “But the draft regulations comprise over a hundred pages with scores of new provisions,” he commented.
Although an Act is passed by Parliament, regulations may be made by the Minister without the scrutiny of the legislature. Dembovsky said that this practice was flawed and allowed regulation without Parliamentary oversight.
The foundations of the AARTO Act itself are already set to face a constitutional challenge brought by Dembovsky in April 2018. That matter is to be heard in the Pretoria High Court in early 2020 and is largely unaffected by the AARTO Amendment Act, which is likely to face its own legal challenges.
“At a first reading, the regulations appear to have been rushed to completion and leave many details to the discretion of functionaries and institutions instead of providing clarity on exactly how the processes outlined in the AARTO Amendment Act are to function,” Dembovsky explained. “In particular, the regulations virtually ensure that road users seeking to challenge infringement notices will be confronted with onerous bureaucratic hurdles.”
Dembovsky urged members of the public, and especially legal professionals, to scrutinise the draft regulations, and to submit their comments, objections and suggested amendments before the 10 November deadline.
“In JPSA’s view, a comment period of 30 days is far too short to allow thorough public scrutiny of a complete re-write of regulations pertaining to the recent extensive re-write of the AARTO Act,” he said. “Notwithstanding our encouragement to the public to submit their comments, we believe that the comment period should be extended substantially and call on the Department of Transport to do so,” he concluded.
“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.