The police are back on some roads and will be mounting roadblocks over the festive season. The purpose of the increased police presence is to control traffic and enforce better driving standards.
Guest column: MIRIAM T MAJOME
Traffic fines were also recently increased exponentially by the Financeminister Mthuli Ncube. The biggest fear playing on people’s minds is whether or not the police will revert to their pre-2017 ways, when they turned rogue and inflicted unimaginable horrors on the motoring public, making them lose all the respect and love of the people.
The most traumatic memories of the traffic police are the dastardly metal spike they used to throw at moving vehicles and the impounding of vehicles or the threats to do so. The public generally distrusted the police and are still angry at their excesses.
The police actions fuelled bribery and corruption and became a big point of discussion. It was not possible to talk about the police without mentioning corruption in the same sentence. Below is a sampling of some of the questions and issues readers discussed.
Can the police just take people’s cars?
No. The police cannot just impound vehicles without authority or as articulated by the law. Every driver has the right to refuse to admit to wrongdoing and demand that their case be referred for trial. So the police cannot force people to admit to crimes under threat of impounding their car.
The driver must insist on a ticket so they can appear in court to defend themselves. The Criminal Procedure and Evidence Act does not support spot fines generally.
It is unlawful for the police to insist on spot fines under the guise of not having ticket books or other stationery. They should not be out on the streets policing without adequate resources.
Is impounding cars even legal?
Impounding cars and threats to do so is the police’s most effective bargaining chip even though it is illegal. Impounding vehicles merely because of refusal or failure by drivers to pay spot fines is not legal. This was well enunciated in the March 2015 case of Njabuliso Mguni v Minister of Home Affairs and others.
In this case the police had impounded the car for a number of offences which the driver admitted to but had no money to pay.
The police had impounded his car as a result. It’s hard to say whether this was punishment for not having money or was security to ensure payment of the fine.
The judge in the case roundly declared the conduct as unlawful and ordered immediate release of the car.
Babbage v The State and spot fines
Zaine Babbage was given a spot fine for using his mobile phone while driving. The judge said he should have been issued with a ticket to pay the fine later. He emphasized that he should have been given a reasonable time to pay it unless he himself had elected to pay the fine on the spot.
Of importance here is the reasonableness of the law as opposed to the punitive and retributive approach of the police. At worst they could make any driver rue the day they got their driver’s licence.
It is the motorist who should take the option to pay the spot fine and not the police forcing it and presenting it as the only option.
How can the ticket system be enforced?
The police often justify spot fines and impounding vehicles because the public cannot be trusted to pay the fines later on their own. It is obviously very expensive to pursue the legions of fines defaulters.
The police do not have special resources dedicated to tracking traffic offenders for minor traffic misdemeanours. So from an economic and logical view, they find it effective to pin offenders to pay on the spot. Sometimes though the seemingly irrational and heavy-handed approach of the police is justified as they deal with some very tough people who generally do not respect road rules.
The majority of drivers now require aggressive policing if only to save lives including their own.
The police are allowed to use their discretion and powers within reason to enforce the law. They can, for example, demand spot fines from foreign drivers in transit and impound cars driven by suspected thieves.
Each case should be individually assessed and not use a one size fits all approach. Even if where drivers furnish genuine documentation and traceable references, the police could still refuse to bargain.
A judge’s wisdom
“I fully understand the predicament the Home Affairs finds itself in. But it occurs to me that there is currently no legal framework justifying the manner in which these collections are being done.
There is no law which compels a motorist to deposit a fine with the police if he desires to challenge the alleged offence…any attempt to refuse is met by threats to have the vehicle impounded by the police . . . the prevailing statutory instruments do not support the way spot fines are collected.’
Miriam Tose Majome is a lawyer and teacher. She writes in her personal capacity and can be contacted on firstname.lastname@example.org