The one long and boring article you HAVE to read and share with all your friends

Motorists Rights & Responsibilities in Roadblocks plus the status of AARTO and the points-demerit system

Following repeated requests for clarification arising from the receipt of emails with or without attachments containing various pieces of extremely alarmist and factually inaccurate information, Justice Project South Africa (JPSA) wishes to set the record straight so that members of the public are fully appraised of what the situations surrounding the abovementioned topics are.

JPSA also warns that the PDF document entitled “Metrocops arrest rights” purporting to be from The Southern African Vehicle Renting and Leasing Association, “SAVRALA” wherein a number of incorrect statements are made with respect to how motorists should react when presented with a situation where Metro or other Traffic Police or law enforcement officials wish to arrest them may cause a worsened situation to anyone who takes heed of its contents.

This document is not a “one or two pager” with scant and/or inaccurate information. Instead it contains comprehensive information that you absolutely must know, so please be sure to read the entire contents of this advisory. Please also forward it to everyone you know so that the nonsensical emails that are doing the rounds can be counteracted upon with true and factual information.

The implementation of AARTO and the points-demerit system

The Administrative Adjudication of Road Traffic Offences (AARTO) Act was enacted in parliament in 1998 and  proclaimed to be in force, excluding the points-demerit system from July 2008 in the Pretoria (Tshwane Metropolitan Police) and November 2008 in the Johannesburg Metropolitan Police areas only, NOT IN MPUMALANGA!!! As of December 2010, AARTO is not in force in any other area or jurisdiction in South Africa and it is planned to be rolled out to other jurisdictions. Only once it has been rolled out throughout the entire country will the points-demerit system be proclaimed in the Government Gazette as is required by South African law. All other implementations throughout South Africa will similarly have to be proclaimed in the Government Gazette as and when they are to take effect.

There is therefore, absolutely no truth in the nonsensical emails that are doing the rounds at present, as they have for a significant amount of time, stating that the points-demerit system is in force “as of midnight last night” etc. despite the fact that they have (probably fraudulently) made use of law firms’ letterheads and other institutions’ names.

AARTO fines range from R100 to R250 mainly for pedestrians and non-motorised vehicles, and R250 to R1500 for motorised vehicles. AARTO offences.

Serious road traffic offenses such as reckless or negligent driving, drunk driving, culpable homicide, etc. are still dealt with by the Criminal Procedure Act and involve criminal charges and consequences for offenders.

With respect to outstanding AARTO fines (infringement notices), please be sure to read the sections that deal with withholding of license discs and arrests at roadblocks so that you fully understand your rights under AARTO. The “10km/h grace” is and will remain in force with respect to speeding offenses since there is no requirement for all speedometers to be calibrated to strict standards. JPSA has proven beyond all reasonable doubt that driving at 10km/h below the speed limit at all times prevents any speeding fines coming its way and encourages members of the public to do the same.

Traffic fines and your address details on eNatIS

Be sensible. Having outstanding traffic fines upon which you have taken no action is both irresponsible and bordering on criminal behaviour. As much as no-one likes receiving traffic fines, it is not good to ignore them and expect that they will miraculously evaporate. Every responsible citizen should therefore act responsibly and lawfully by dealing with their traffic fines as soon as they receive/become aware of them.

In most instances where people claim to have never received their traffic fines, this is due to them having changed address without notifying the relevant registering/licensing authority. We hasten to add that this is not always the reason for non-receipt of fines, but from our observation it is the most common cause.

You are reminded that under the National Road Traffic Act and Regulations, you are obliged to update your address details in the prescribed manner within 21 days of changing address and not doing so is an offense for which you can be fined. Filling in the “change of address notification” on your license renewal notification is neither the prescribed manner nor any guarantee that your address details will be updated and you should always make sure that you acquire and complete the correct documentation for this at your licensing authority and then make sure that the changes are made. If you are in any way unsure whether your address details are correct or not, then go and enquire at your local licensing authority since it is your responsibility; not that of the traffic authorities to ensure that your address details are in fact correct. The editor of NewsHorn suggests that for this, take a tent, a flask of tea and food, it can take time.

Consequences of ignoring traffic fines
AARTO infringement notices

Under AARTO, the consequences of ignoring your traffic fines have a severe financial impact on you and strict timelines are prescribed in the Act and Regulations for processes and their associated penalties to be played out. At the very most, this process takes 6 months from the date of infringement to closure with severe consequences in-between. At least, that is how the process is supposed to work in accordance with this legislation and just because the current participants have not followed these processes in accordance with the Act and Regulations to date does not mean that they will not in future.

  • Note that all AARTO 03 infringement notices (camera fines) must be served via registered mail, no exceptions. However, if this condition is met and you fail to collect the document within 10 days of posting, it is deemed by law to have been served so don’t think you can get away with not signing for it.
  • License discs and driving license renewals may be withheld if any one infringement notice in your name has progressed to an enforcement order. Prior to the existence of an enforcement order, this practice is unlawful.
  • The most poignant facts with respect to AARTO fines are that a summons or warrant of arrest with respect to an infringement notice (fine) may NEVER be issued under any circumstances.
Fines issued under the Criminal Procedure Act (CPA)

“Traditional or old style” traffic fines which are currently issued in the areas outside of the two traffic authorities currently operating under AARTO are dealt with by the CPA. This is the current method used throughout South Africa outside of Gauteng jurisdiction and will remain so until such time as AARTO is proclaimed in those jurisdictions. The consequences of not attending to these fines can be significantly more traumatic to motorists who think that they can simply ignore them in that the ultimate result could be the issue of a warrant of arrest against the vehicle owner concerned.

Traffic authorities regularly abuse the provisions of the CPA with respect to service of criminal summonses, but there is blame on both sides that needs to be apportioned. One needs to remember that a summons with respect to a camera fine would never be generated in the first place unless the registered owner of the vehicle ignored a notice issued under Section 341 of the CPA when it was generated.

Whilst it is certainly true that the CPA’s lack of requirement for notices to be served in any way other than standard (non-registered) post has often lead to the lack of delivery of these notices, it is equally true that many people, including attorneys and other people who should know better regularly ignore these and say “I will wait for the summons”.

This is an extremely hazardous practice since it is this process that is often abused by traffic authorities and process servers who incorrectly and unlawfully serve these summonses by not delivering them in person and then lying on service returns to the courts.

It has even become increasingly apparent that summonses issued under Section 54 of the CPA have been posted instead of personally served and despite this being completely unlawful, it does not help the person who has been affected in this manner when they miss their court date.

Magistrates who see their and the court’s time wasted by people who fail to appear on the stipulated court date on these summonses do not delve deeply into how or if the summonses were served. They presume that process servers have been honest on their returns and simply apply a contempt of court charge and issue a warrant of arrest for the offender who has failed to appear before them. What happens in many cases is that process servers cannot even read or lie about delivering the documents, but the court does not care about that. To do so would infringe on their tea breaks or early going-home-time.

Execution of warrants of arrest

Once a warrant of arrest has been served, the public become fair game for anyone who has the authority to arrest them. Whilst some warrants of arrest are sometimes executed by police who actually go to the home or work address of the offender to arrest them, which is how a warrant should be executed in the first place; more often than not, these warrants go unexecuted for significant periods of time and end up getting executed at roadblocks set up by traffic authorities, where these warrants relate to traffic fines.

Remember that a warrant of arrest under the CPA is a very serious document and is used for a wide variety of criminal offenses including rape, murder, robbery and traffic fines. (In Mpumalanga,it also seems to help helps if you are tight buddies with a police officers (and male) and can claim anything and have your ex-girlfriend or ex-wife jailed). A policeman executing a warrant of arrest does not care for what crime the warrant was issued; he/she merely cares about the fact that it is a criminal that is to be arrested.

Traffic authorities who set up roadblocks in their jurisdiction either have live feeds or copies from their databases at these roadblocks and warrants are often executed there and then. Knowing your rights can be of enormous benefit to you and being misinformed about them could land you in a lot of very hot water, the consequences of which could have devastating effects.

Please take heed of the following:

  • A warrant of arrest against you is an authority to arrest you on a criminal charge; it is not an authority to abuse you and/or your rights under the constitution.
  • You have the right to demand to see a copy of the warrant of arrest be shown to you and they must show it to you immediately however take note of the following:
    • This does not have to be an original.
    • You may be detained whilst they go and fetch one, so long as they can demonstrate that the warrant exists. This could even be in the form of an SMS.
  • You have no right to demand or be shown proof of service of a summons at a roadblock, so don’t even go there.
    • This does not mean that you have no right to access this information at a later stage, so just bear this in mind.
  • If you are arrested on the strength of a warrant of arrest, you must be taken to the place of holding stated on the warrant of arrest as soon as possible after your arrest.
    • The term “as soon as possible” is extremely ambiguous and does not mean within a certain time frame. In the case of a parent transporting his/her childen – they should be allowed to call someone to fetch the children.
    • “As soon as possible” in your eyes may be within 10 minutes of being arrested whilst in the eyes of the traffic authority it may be within an hour of them finishing their three-hour roadblock.
    • It would be for a court to decide if the time frame was reasonable or not, not you.
    • If you are taken to any place other than that stipulated on the warrant, this would be a violation in terms of the warrant, but this is a matter that can be taken up at a later stage. Trying to do so at the time would be little short of stupid since you would already be at a disadvantage due to your circumstances.
  • You must be informed of your rights under the constitution at the time of your arrest.
    • If you are not, do not make a big song and dance of it at the time, simply note it and in particular, whom it was who failed to do this. – Do not take a photo of the office with your cell phone, merely remember the name.
    • When you are detained at a police station, one of the documents you will be issued and made to sign will be a notification of your rights under the constitution. Read this document carefully and bear its contents in mind. Do not refuse to sign it.
    • This document covers the SAPS when they detain you but does not cover the person who arrested you if they did not inform you of your rights at the time of your arrest.
    • If you are refused anything that appears on this document during your detention, take note of it and whom it was who refused you these rights, but do not try and take it up there and then as this will lead to dispute under which you will once again find yourself at a severe disadvantage.
  • At any time, whether you are being issued a fine or being arrested, you have the right to ask to see the appointment certificate (card) of the peace officer who is fining or arresting you.
  • Law enforcement officers must now be clearly  identifiable : Section 3(A)(7) of National Road Traffic Act states clearly that ‘‘A traffic officer shall at all times when wearing a full or partial traffic officer’s uniform, display his or her official name tag above the right breast pocket of his or her uniform in such a manner that it is completely visible and easily legible.’’ Don’t get into an argument about this; merely politely ask to see their appointment certificate.
  • Once you ask or demand to see this, the deed is done and if they refuse to show it to you, they have committed an offense.
  • The offense that they have committed has, in terms of the CPA, the effect of making everything that they do unlawful, including issuing you with a fine or summons or arresting you.
  • Once again, do not try and take this up at the time, merely note it and whom it was who refused to show it to you. Remember that there will always be a way to find out whom it was who refused to show you this.
  • Once you have been detained, you will have the option to pay an admission of guilt fine or appear before a court. The choice is yours. Just do not lose your cool. Cops thrive on it.

Beware of emails and other notifications purporting you of  “a new law” etc. and particularly be advised that there is no law in South Africa or anywhere else that states that a female cannot be arrested after certain hours. Anyone, of any sex etc. can be arrested at any time, so long as the arrest is lawful.

 

PLEASE PRINT THIS AND KEEP WITH YOU. AT THE KLCBT OFFICES ANYONE MAY OBTAIN AN ANTI-CORRUPTION CARD WITH REGARDS TO ROADSIDE BRIBES. This increases every year during the December holidays as unscrupulous traffic police are then working for a personal Christmas bonus.

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