Traffic fines - know your rights!

What are your rights if you are stopped at a roadblock and the traffic/metro police determine that you have not paid outstanding traffic fines and that there is a warrant out for your arrest?

Summary

See below for a more detailed explanation.

If you ignored a summons requiring you to appear in court for failing to pay a traffic fine, the court may issue a warrant for your arrest for being in contempt of court.

Practical steps to follow:

1.     If you do get stopped and they want to arrest you, demand to see a copy of the warrant.

The police can only arrest you if they have the original or a copy of the warrant for your arrest on them.  (In terms of Section 45 of the Criminal Procedure Act an arrest on a copy or a written communication from a magistrate or peace officer is legal.).

A practical ruling by the Director of Public Prosecutions is that the Metro Police must supply the warrant of arrest or at least a copy of the warrant within 30 minutes after the arrest. It is impossible for the Metro Police to have 1, 5 million original warrants of arrest at the road block.

2.      If the police cannot produce a copy of the warrant of arrest, refuse to go with them and point out that the arrest is illegal.

3.      If they persist and still want to arrest you despite their inability to produce a copy of the warrant advise them that you will sue them for unlawful arrest. At that time, take down all the details of the arresting officers, and list the date and time of the arrest. In particular make a mental note of all the events and surrounding circumstances concerning the arrest and as soon as possible thereafter (whilst the events are still fresh in your mind) make a detailed statement.

4.     Thereafter, take legal advice and if you are advised to do so, lay a charge against the police as soon as possible after the incident.

Your Legal Rights: Unlawful Arrest of Motorists for Outstanding Traffic Fines

Source: Don Smart (Adv)

Author: Guide to Motor Law (SA).

The main guidelines to a person’s legal rights and the unlawfulness of an arrest or detention for traffic fines are:-

1. You must ask for a copy (the law states demand) of the warrant of arrest or written authorisation, and if the traffic official refuses or cannot provide you with a copy when arrested then the arrest and subsequent detention is unlawful, even if there turns out to be a valid warrant.

2. The Criminal Procedure Act allows for a telegraphic or a similar written or printed communication from a magistrate, justice or peace officer stating that a warrant has been issued for the arrest of the person so as to satisfy the above requirement. The Electronic Communications and Transactions Act also allow for data transmissions (e.g. cell or e-mail transmissions) to qualify as written communications. In terms of the law, you must be handed a copy of that written authority if you demand to be furnished with a copy. If the arresting official cannot hand you a copy of the data transmission when arrested then the arrest and detention remains unlawful. This transmission must state that there is a warrant for your arrest and give adequate details of the reasons for the arrest. An extract from a list of persons for whom warrants may exist will not comply with the legislation and constitutional requirements.

3. You have the right to be fully informed of the reasons for your arrest. You must also be informed of your constitutional rights when arrested and detained. It will not be sufficient to merely state that there is a warrant for an outstanding traffic summons for X amount.

4. If the traffic officials detained you in a traffic vehicle, bus, office or similar place of detention while they carried on with other duties or arrests, then the detention will also be unlawful.

5. If you were arrested and detained while the officials checked if there were outstanding fines or warrants and they did not have the warrant when arresting you then the arrest and detention will be unlawful. They will effectively have arrested you once they confine or restrict your liberty for the outstanding traffic matter.

6. If you were subjected to any human rights abuses then you will have a further claim against the authorities in addition to the claim for unlawful arrest and or detention.

7. Most legal writers or authorities are of the opinion that arrests and detentions for minor traffic fines are unconstitutional. The Criminal Procedure Act provides for a procedure that empowers a peace officer to issue a written notice to an accused (even after arrest) as method of securing attendance of accused in a magistrate’s court where the fine to be imposed is less than that prescribed by the Minister of Justice (Currently R5000). The Constitutionality of arresting persons for minor traffic violations, where an admission of guilt fine is provided for, and only in respect of a few hundred Rand and then detaining them (as is the case in most matters) still has to be considered by the Courts.

8. If the purpose of the arrest was clearly to induce you to pay the outstanding fine and not to bring you before court then the arrest will not be lawful. The practice of arresting of persons at roadblocks at night intentionally outside of court hours) or before weekends or public holiday periods such as over Easter, on warrants for petty or minor traffic offences and then detaining them with the threat and motive that they will stay in jail unless or until they pay the fines outstanding, is indicative of such unlawful motives.

9. The law requires that arrested persons must be brought to the place stipulated in the warrant or the police station (SAPS) as soon as possible after the arrest. This should be checked against the written warrant. In the majority of cases the arrested persons are not taken to the designated place but to the traffic offices or ATM to pay the fines or directly to the traffic court. The effect of an arrest is that the person arrested is in unlawful custody and the person must be detained until lawfully discharged.

10. After your arrest, you should request copies of the summons, return of service certifying that the summons was properly served on you, and court authorisation of the warrant. Put simply, the summons is a traffic fine served on you, while a warrant is a written authorisation for your arrest failing to appear in court on the summons. The summons must be served personally at your workplace or residence and if you are not there it can be served on someone apparently older than 16 that apparently lives or works there. You can obtain copies of these documents from the Clerk of the Criminal Court. In some places these officials are traffic personnel and the Courts are administered by the Traffic Departments. You may need the assistance of your attorney to obtain the right documents or ensure that these are given to you.

11. Checking the service of the summons and issue of the warrant will verify the legality of procedures. There have been reported instances where no such warrant existed, the service was irregular and where an alleged corrupt official stated that a warrant/s existed and took the money while no warrants existed.

12. In traffic matters a summons cannot be posted.

13. You can only be arrested for a traffic fine where you failed to appear in court on a summons.

In a civil claim for damages, each case is evaluated by the court on the particular circumstances of the unlawful arrest and detention and those of the person arrested. The length of the period that the person is detained, circumstances under which the person was detained and the effect the arrest and detention had on the person are some of the factors that will influence the amount of damages that the arrested person will be awarded by the court. Keep full notes on all procedures applied to you, times, places where you were taken or detained, how long you were detained and also where possible the names of officials. Some traffic officials, primarily those of the Metro Police, do not wear name tag identification. In such a case note their features so that you can identify them and take down the traffic patrol vehicle’s registration number.

The most important advice is to ensure that if you do receive a traffic fine (at the scene this will have the same effect as a summons) or postal notice of a fine, a summons, or more importantly a notice of a warrant, attend to it immediately and ensure that you receive an official receipt for any payments. It is also vitally important to get written confirmation from the Traffic Authority of the change of your (seller and the new owner’s) particulars when you sell a vehicle or when you change your residential or work address.

After you have been arrested you should consult an attorney as soon as possible. There are prescriptions periods that will apply to your claim against the Traffic Police.