Enforce it by breaking it.

Rob Handfield-Jones March 3, 2011

The Joburg Metro Police Department has issued, and continues to issue, thousands of invalid traffic fines. Director Gerrie Gerneke’s attitude is they must still be paid to avoid motorists being “inconvenienced at roadblocks”. The latter is a euphemism for “illegally arrested and jailed”.

Enforce it by breaking it

Photo credit: Rosanne Bane

The cause of the trouble is section 30 of the AARTO Act which states that all camera infringement notices must be served on the infringer by registered post. Since one doesn’t collect a registered item from the Post Office by accident, the use of registered post to deliver camera fines is an elegant way of making sure people don’t weasel out of fines by claiming they didn’t get them, made more elegant still by the proviso that proceedings may continue against you if you don’t collect the registered item within ten days.

However, it also means that if a fine arrives directly in your post box, it’s automatically invalid. If any further AARTO processes are subsequently taken against you in respect of that fine, like attachment of assets, they are illegal. You also cannot be arrested at a roadblock for not paying the fine. The only times you can be arrested for a traffic violation are when you commit a serious traffic offence and are directly apprehended by an officer at the scene of your folly, or when you have been summonsed under the Criminal Procedure Act to appear in court to answer a charge arising from an traffic violation and you fail to appear, resulting in a warrant for your arrest being issued.

Sheriff

You cannot, under any circumstances, be arrested for failing to pay a fine stemming from an AARTO infringement, valid or otherwise. The worst that can happen is that the sheriff may attach your assets to the value of the outstanding fine plus costs and that won’t happen if the fine was invalid to begin with. Do not be taken in by Gerneke’s claims that JMPD is applying to have the law changed to legalise the department’s issuing of AARTO notices by standard surface mail – no such step has been taken and no such proposed amendment has been issued by the Department of Transport for comment. Section 30 of the AARTO Act stands as it is written and the JMPD (and the RTMC’s AARTO unit) are committing an offence every time they send out a notice by standard surface mail.

So when Gerneke says that motorists may be “inconvenienced at roadblocks” (ie. arrested) for not paying an AARTO infringement notice that was illegally issued, he is manufacturing law as it suits him, a privilege which not even Parliament enjoys! You cannot be arrested at a roadblock except when a warrant for your arrest exists or you have committed an arrestable offence at the roadblock itself. Any other arrest is illegal and if it happens to you, you should sue. Indeed, not three weeks ago, Judge Billy Mothle of the North Gauteng High Court awarded R50 000 in damages to the victim of an unlawful arrest and issued a harsh rebuke against the police for the skyrocketing number of unlawful arrests. He emphasised that people should only be arrested and detained for just cause.

Getting right back to the point though, since where were roadblocks supposed to be ‘convenient’ anyway? Their function is to catch criminals, not provide roadside entertainment. According to the latest NIMMS stats, almost 59% of drivers killed in traffic crashes are under the influence of alcohol. I find it personally very inconvenient that I have to share the roads with such people and it annoys me that the JMPD is so concerned with people paying its illegal fines, yet so indifferent towards drunk drivers. Research the JMPD arrest rates for drunk driving some time – they are abysmal.

Masquerading

I can’t imagine that a law-abiding driver would have a problem with the convenience or otherwise of a roadblock. Why should they have anything to fear if their car is roadworthy, they are properly licensed and they drive in accordance with the law? If the cost of safer roads is that I have to sacrifice five minutes of arrival time, I’m all for it. But when ‘inconvenience’ is a euphemism for ‘illegal arrest’ and the roadblock is actually a revenue collection operation masquerading as road safety, I am having my time wasted for no good reason and I’m being inconvenienced whether they cuff me or not.

The JMPD’s disregard for the law is based on an admittedly good understanding of human psychology: most people, when they receive a fine, will automatically assume that justice is being served in a fair and even-handed way. The thought doesn’t enter their minds that the enforcers could be the real criminals, and in most cases citizens don’t have the knowledge to tell a legal fine from an illegal one. The JMPD (and also the RTMC’s AARTO unit) are operating in flagrant violation of the law by issuing infringement notices in contravention of Section 30, and they demonstrate their contempt by knowingly continuing to issue them several months after the fact was first reported in the media.

Courtesy

More to the point, even if the JMPD drags out another of their stock arguments and claim that the notices are just a courtesy prior to the actual issue of an AARTO infringement notice and there is no breach of Section 30, the courts have held over and over that if something looks like a duck and quacks like a duck, it IS a duck. If you hold up a bank with a realistic-looking toy gun, you’re going to jail for as long as if it was a real one. If the ‘courtesy notices’ are so realistic that they are indistinguishable from the real thing – and if the JMPD accepts payment of fines based on them – then I can’t see how they are not in breach of section 30 of the Act. The average consumer wouldn’t reasonably be expected to know the difference between a real infringement notice and the JMPD’s straight-to-your-postbox jobbies, and the fact is that the two are identical. I would love to see the JMPD try and present the ‘courtesy notice’ argument before a magistrate…

I therefore advise everyone who has received an infringement notice by standard surface mail to urgently read the webpage http://www.aarto.co.za/ssm.asp and pass it around to all who may be affected – you may be entitled to have your fine refunded to you if the notice on which it was based was invalid. South Africa’s drivers need to take a stand against officials who don’t see the irony in enforcing the law by breaking it.

About Rob Handfield-Jones, the author

Rob's motto is "...cars, cars, cars..." and he's been a leading innovator in the field of driving skills training since 1989. Away from the serious stuff, Rob enjoys working on cars, writing about them and playing with them - he has numerous TV stunt-driving credits, many wins and lap records in circuit racing, and has also tried his hand at special stage rallying. He writes regularly on road safety issues for several publications and is a well-known radio commentator via his "On the road" road safety slot on Classic FM 102.7.