It is important that we assist road users with a bit of awareness and legal certainty with regards to the consequences of lawless behaviour on our roads! Too easily do we get confused about whether the conduct would result in a fine or an arrest.
Even though we firmly believe that lawlessness on the road is the single biggest contributor to road fatalities – we need to ensure that the Rule of Law is maintained and that we implemt and enforce legislation in a manner that is fair and in line with the laws of the land!
We would like to share a recent Q&A with Justice Project whicj addresses some of these uncertainties:
Question:
Please could you list 5 steps towards contesting a traffic fine?
Answer:
I am never keen on “do it yourself” advice/guides because people either inadvertently or deliberately mix up the provisions of the AARTO Act, the Criminal Procedure Act and the TCSP guidelines. There is also a huge difficulty insofar as the fact that the AARTO Act and the Criminal Procedure Act apply in different jurisdictions and people who read these “guides” rarely have any regard for which provisions apply to them and which don’t.
At the outset, I feel duty bound to warn all motorists not to take much reliance in any “guide” or “traffic fines toolkit” which can be found all over the internet in an attempt to construct a do-it-yourself contestation of a traffic fine. I say this because there is an enormous amount of garbage on the internet which will achieve little more than to land you in even hotter water.
It is somewhat telling and extremely sad that most people regard traffic fines to be those issued for camera speeding offences and red light violations and little else. This has arisen from the propensity of many traffic departments around the country to embrace speed cameras and all but abandon physical law enforcement of moving violations.
It would not however be true to say that all traffic law enforcement in South Africa is done by camera and you need to fully understand that if you have been summoned to appear in court by means of a summons in terms of Section 54 or a written notice in terms of Section 56 of the Criminal Procedure Act and fail to appear in court if you have not otherwise disposed of the matter prior to the court date, a warrant for your arrest will be issued.
This said, it is your absolute Constitutional right to contest any accusation of wrongdoing, including but not limited to a traffic fine since Section 35 of the Constitution holds, amongst other things, that any accused person has the right to be presumed innocent until proven guilty – not the other way around.
There is no one size fits all answer here, not only because every case differs, but because there are currently two distinctly different pieces of legislation used to prosecute road traffic offences –
- The Administrative Adjudication of Road Traffic Offences (AARTO) Act which is only applicable in the jurisdictions of the Cities of Johannesburg and Tshwane; and
- The Criminal Procedure Act which applies everywhere else.
Although the processes are similar, you cannot use the forms and procedures prescribed under AARTO to contest a fine issued under the Criminal Procedure Act and you cannot, for example, approach the public prosecutor under the AARTO Act like you can under the Criminal Procedure Act. As their names suggest, the AARTO Act is an administrative process, while the Criminal Procedure Act uses the criminal justice system. The consequences thereof are markedly different. JPSA has litigation in the High Court at this very moment to address this issue.
FAQs for readers:
1. When you receive a fine should there always be ONE car in the image? If there is another car other than yours, does that warrant a fine to be contested?
a. No. This is ONLY applicable to class A radar which is very rarely used in South Africa any more.
2. If you were snapped/ticketed in 2014 and only receive the fine in 2015, is it still valid? What is the time frame for a fine to reach an offender?
a. The TCSP guidelines for prosecutions using speed measuring equipment and traffic light violation equipment has reference.
b. Under the AARTO Act, which is only applicable in the jurisdictions of the Cities of Johannesburg and Tshwane, the infringement notice must be issued and served upon alleged infringer, either in person or by registered mail within 40 days of the alleged infringement. This prescript is contained in Regulation 3(1)(b) of the AARTO Regulations.
c. Under the Criminal Procedure Act, which applies everywhere else, a compounding notice in terms of Section 341 of the Criminal Procedure Act must be issued within 30 days of the alleged offence. It may be posted to the alleged offender and Section 341 of the Criminal Procedure Act does not prescribe that such a notice must be served in person or by registered mail.
3. If you receive no notifications of any traffic violations but can’t renew your car licence because of it? What should you do?
a. JPSA receives countless queries on this very issue every single day, particularly since the RTIA went berserk issuing enforcement orders under the AARTO Act earlier this year.
i. We therefore resolved to publish an advisory on this at http://blog.jp-sa.org/post/panic-stations-your-licence-disc-has-been-refused-now-what to prevent us having to answer the same questions over and over again.
ii. The advisory contemplates all of the conditions which can cause a license disc, renewal of a driving license or a PrDP to be withheld and offers practical advice on how to identify and sort the problem out.
4. If you have several unpaid fines can you be given a reduction when paying all of it at once? What would the procedure be?
a. If you have AARTO fines, then no. The AARTO Act does however have as one of its options, provision for you to apply to pay in instalments, but this offering of credit is dependent on the value of each fine as a standalone issue and the maximum term the RTIA will grant you is six months, for fines of a higher penalty amount.
b. If you have fines issued under the Criminal Procedure Act, then yes, you can visit the public prosecutor at the Magistrates Court which has jurisdiction over them and ask him or her to reduce the fines.
i. However it must be borne in mind that if those fines are scattered through different jurisdictions you are unlikely to succeed to any great degree.
ii. A prosecutor in Ekurhuleni for example will not care much for how much you have managed to build up in Cape Town.
iii. It may surprise you but there are an additional 241 traffic authorities other than the JMPD and TMPD in South Africa and each and every one of them comprises a different jurisdiction which has no authority over the other jurisdictions.
iv. It is also worthwhile noting that none of them are in any way obliged to allow you a way to establish whether you have traffic fines with them through online websites such as www.paycity.co.za, www.viewfines.co.za or other websites.
v. The AARTO website at www.aarto.gov.za/index.php/query-my-fine carries all of the infringement notices issued within the jurisdictions of the Johannesburg and Tshwane Metropolitan Police Departments only.
5. Can you contest fines if you never received any notification?
a. Most certainly you may if they were incurred where the AARTO Act is in force.
b. Where the Criminal Procedure Act is in force, so basically everywhere except the Cities of Johannesburg and Tshwane, it will depend on whether the “fine” was issued on a compounding notice in terms of Section 341 of the Criminal Procedure Act or whether it has escalated to a summons in terms of Section 54 of the Criminal Procedure Act.
c. If it is still at the stage of a compounding notice in terms of Section 341 of the Criminal Procedure Act, then you cannot contest it based on the fact that it was not served on you, because there is no prescript in Section 341 of the Criminal Procedure Act that it must be served on you. You may however contest it if the date of the issue of the first notice was later than 30 days from the alleged offence.
d. A summons in terms of Section 54 of the Criminal Procedure Act unfortunately allows for that summons to be served on any person who is apparently over the age of 16 years who resides at your last known residential or work address on the NaTIS registry.
i. If your address details are not up to date on the NaTIS registry it is highly likely that the first time that you become aware of the existence of a summons in terms of Section 54 of the Criminal Procedure Act will be when you are arrested at a roadblock since not attending court is regarded to be contempt of court and Magistrates issue warrants of arrest in these circumstances.
ii. Sometimes, process servers are lazy and/or act fraudulently by stating on the return of service that they have served the summons on a non-existent person. In this case you would have grounds to challenge the service of the summons and possibly to even register a case of defeating the ends of justice against the perpetrator, but this will not alter the fact that you will be arrested. You may also then have grounds for a civil claim against the process server who caused you to be arrested.
Howard Dembovsky
National Chairman – Justice Project South Africa (NPC)
Association Not For Gain | Incorporated as a non-profit company under the Companies Act, 2008 | Registration Number 2010/019972/08
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“Injustice anywhere is a threat to justice everywhere” – Martin Luther King
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Also view:
Demerit System, AARTO and Driver Behaviour