Contribution: Kevin Hacker.

ARRESTS

There has been much debate concerning the lawfulness of arrests of motorists in terms of warrants of arrest for alleged outstanding traffic fines, which arrests take place at roadblocks set up to enforce the payment of such fines.

Such arrests are usually carried out on the strength of information contained on computers listing possible outstanding warrants, and motorists arrested under these circumstances have complained that they are not provided with a copy of the warrant on demand as required in terms of Section 39(2) of the Criminal Procedure Act No. 51 of 1977, as amended (“the Act”), and further that such arrests constitute a violation of their constitutional rights, particularly such rights enshrined in Sections 12 and 35 of the Constitution of the Republic of South Africa Act 108 of 1996 as amended.

It has been determined that furnishing a copy of a warrant of arrest to a motorist at a police station after the arrest has taken place does not amount to compliance with Section 39(2) of the Act. Should an arrest not be carried out in accordance with Sections 39 and 50 of the Act, same would constitute an unlawful arrest.

The need to present a warrant of arrest to a motorist at the time of his arrest becomes all the more apparent, when one considers that many arrests are for alleged offences that took place from periods of up to five years before the arrest.

Although Section 40(1)(o) of the Act provides that a peace officer may without a warrant arrest a person reasonably suspected of having failed to pay any fine or part thereof on the date fixed by order of Court under the Act, this relates to Section 287 of the Act, and does not pertain to the payment of admission of guilt fines, particularly since a Court does not (by order) fix a date for payment of an admission of guilt fine. Accordingly Section 40 of the Act does not authorise the arrest of motorists without a warrant.

Furthermore, in terms of the Act, arrested persons must be bought to a police station as soon as possible. Arrested persons cannot lawfully be detained by placing them in busses or similar places of confinement until the person pays a fine.

Regarding the arrest of persons at night and before weekends or holidays for petty offences, and the detention of such persons, until such time as their outstanding fines are paid (or at least until such time as the fine for which the warrant of arrest has been issued is paid), it has been held that where the object of the arrest is to frighten or harass an arrested person so as to act in a way desired by the arrestor without his appearing in court, such arrest is unlawful. Furthermore, there is authority to the effect that it is undesirable for an accused to be deprived of his pre-trial liberty if the sentence likely to be imposed is one other than imprisonment.

A warrant of arrest can only be authorised if a summons has been properly served in terms of Section 54 of the Act or a written notice has been issued in terms of Section 56 of the Act.

In terms of Section 341 of the Act, a motorist is required to be notified in writing of the details of the alleged offence and the amount of the fine, within 30 days of the alleged offence (under circumstances where the motorist is not stopped and informed of the commission of the offence immediately and these are typically violations detected by camera). Once the said notice (in terms of Section 341 of the Act) has been issued, and should the amount of the fine not have been paid, the relevant traffic authority is required to issue and serve a summons on the accused shortly after the service of such notice.

Summonses to appear for traffic related violations may not be “served” through the post. All summonses including those for traffic violations must be served by delivering same to the person named therein, or if he cannot be found by delivering it at his residence or place of employment or business to a person apparently over the age of sixteen and apparently residing or employed there.

An interesting question has been raised as to why traffic authorities wait to arrest motorists at roadblocks when the arrest could have been executed at the same address where the summons ought to have been served at.1

In terms of Standing Order (G) 341, which the South African Police Service (“SAPS”) are bound by, the SAPS have recognised that arrests constitute one of the most drastic infringements of an individual’s rights, and SAPS members have been instructed to:-

1. refrain from carrying out arrests if the attendance of the suspects in court may be secured by means of a summons;
2. execute arrests as a last resort only.

Notwithstanding such instructions, members of the SAPS frequently carry out arrests to bully or intimidate suspects under circumstances where their attendance in Court may easily be secured by means of a summons. Members of the SAPS carrying out unnecessary arrests under such circumstances should be reported to their commanding officers in order for departmental steps to be taken against them.

Regarding arrests for unpaid fines, a directive has been issued to all Police Stations by the SAPS Area Commissioner, Johannesburg, in terms whereby personnel have been ordered not to detain any persons for unpaid fines unless the arresting officer has a warrant for the arrest of such person. Personnel failing to comply with this directive have been warned that they will face disciplinary proceedings.

Reference: Advocate D J Smart, who prepared a valuable commentary in regard to the lawfulness of roadblock arrests, which commentary was placed before the Criminal Law Committee of the Law Society of the Northern provinces for consideration.