So there you are, driving down the road, minding your own business, when you get snared by a roadblock. The traffic cop who comes to your window asks for your driver’s licence, checks your car’s number plates and licence disc, then goes back to his vehicle. When he returns he brusquely tells you that you’re under arrest because you have “outstanding traffic fines”.
Despite your protests that you have never even received a summons, and you’re on your way to an important meeting, you find yourself locked up in the back of a van with 20 other “offenders” for a couple of hours, before being taken to the traffic department’s headquarters. There, you’re detained until family or friends arrive to pay your fines.
Your bakkie with its load has in the meantime been driven by one of the traffic cops to the municipal pound, and after your ransom has been paid it’s up to you to make your own way there to recover it. A variation on the theme is that you’re driven, in the police van, to an auto teller, where you draw the cash to pay your outstanding fines.
This same scenario is played out daily all over South Africa, and the public meekly accepts the situation, despite the fact that the traffic police, in their quest for revenue, are breaking a host of laws and trampling your legal and constitutional rights into the dirt.
Ex-magistrate and prosecutor advocate Don Smart, author of Guide to Motor Law SA, says roadside arrests like these are illegal. Before a motorist can be detained, the arresting officer must give him or her a warrant of arrest, and that warrant will only have been issued if the accused had been properly summonsed to appear in court, and failed to do so. A notification that was sent to you through the post is not a legally served summons. A properly served summons will have been signed for by the accused or a person over 16 years of age at his or her home or place of work.
“Even if the traffic department has a warrant for contempt of court, they cannot and should not force you to pay the original fine at the roadside — that’s a separate issue,” says Smart. “When they insist that a summons was properly served in terms of the law, you’re entitled to ask for proof of service if you believe you did not receive it. They can take you to a police station, but if the summons was not properly served they must then release you.”
Durban metro police went one step further last year when they converted a kitchen at their headquarters into a cell, with barred windows and a steel gate, where they locked up dozens of motorists who had unpaid fines. When the media started asking questions, the door was hastily removed and a sign saying “Courtesy area” was stuck up on the wall. I’ve interviewed four people who were locked up in the illegal cell, and all maintain that they had never received summonses and were never shown warrants for their arrest. They were most definitely not placed in any sort of a courtesy area.
In terms of the law, people arrested by traffic officers should be taken immediately to a South African Police Service police station or the court that issued the warrant. Traffic departments are not allowed to lock you up at the roadside while they carry on with their roadblock, and they may not take you to a bank teller to draw cash to pay the “fines”. They also may not take your vehicle to a municipal pound, but must allow you to arrange for a person of your choice to fetch it. If necessary, they should ask the SAPS to make arrangements for your vehicle to be taken somewhere safe.
Angela Bullock works for a courier company in Durban. Late in 2005 she received a phone call from one of her company’s drivers, saying that he’d been locked up in a Durban metro cell because he had outstanding fines, and his delivery vehicle was also impounded, which affected his employer’s business. When Bullock arrived at Durban metro to pay his fines, the policeman behind the counter asked for her ID, and then promptly threw her into the cell as well, claiming that she too had outstanding fines.
She asked for more details, and was shown a traffic ticket with her ID number reflected alongside a black male’s name. The vehicle registration and make quoted on the ticket was also not hers. Durban’s traffic cops refused to listen, so Bullock spent time locked in the cell with a group of men until her employer paid the R1 200 fine to get her out. “I was told that I’d be kept there all night if nobody paid, and I was terrified,” she says. “I’d have sold my own mother to get out of there.” She’s now taking Durban metro to court for damages.
If anybody tries to arrest you for outstanding fines, insist that they present you immediately with a copy of the warrant. If they have a warrant but you were never served a summons, ask for proof that the summons was delivered and signed for. Should they not have a warrant, or if they try to take you to any place other than an SAPS police station or a magistrate’s court, tell them that the arrest is illegal and you want to call your lawyer. Then do it!
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