Sechaba ka’Nkosi A retired public prosecutor from the Johannesburg Magistrate Courts’ traffic division has launched a lone crusade against wheel clamping and fining at shopping malls. Roy Welsh has embarked on a mission to put the two practices on trial, believing that they violate motorists’ constitutional rights to a free and fair trial. He is considering bringing a private prosecution against shopping malls. He has laid charges of extortion and transgressions of the Criminal Procedure and Road Traffic Acts against two shopping centres. If he wins, he could save shoppers millions of rands collected in “fines” every year. A survey this week revealed that malls impose “fines” of between R50 and R300 to release clamped vehicles. They claim the money is donated to charitable organisations. But people who refuse to pay are often allowed to leave with a warning. Welsh, who worked as a police- man and a traffic officer before his appointment to the traffic courts, says: “From the onset I want to state that my arguments concerning legislation relevant to this matter are based on my experience and not on guesswork.” He says in terms of the Criminal Procedure and Road Traffic Acts, only police and traffic officers are empowered to fine people for parking offences. And if motorists are not happy with the fine, they can wait for a summons and go to court to explain the circumstances that led to the offences. That way motorists have a right to defend themselves in a court of law.
Shopping malls are not covered by the two Acts and their employees are therefore, by implication, acting illegally by clamping car wheels and imposing “spot fines”. “Section 34 and 35 of the Constitution guarantees everyone the right to defend such a matter in court,” argues Welsh. “Clearly then the shopping centres are violating the motorists’ constitutional right to defend the matter in court, which makes their wheel clamping and fining practice totally unlawful.” Johannesburg malls such as Sandton City and Eastgate do not clamp wheels. Southdale refused to comment while Southgate defended its actions. “Clamping is done to protect people who park in areas designated for others,” said Southgate representative Phili Mtsali. “It is done to protect people like paraplegics, who happen to be in the minority. It also benefits the public at large because it makes access for emergency vehicles easy when it is needed.” But Welsh is not convinced. He says people sometimes park in those areas because of circumstances beyond their control. He insists that is why courts should be involved to determine the extent of the violation. “What if you have a pregnant woman who needs immediate medical attention or a sick person in your car and you know that there is a medical practitioner in the centre?” asks Welsh. “Are you supposed to go around and waste time looking for an empty bay to park?” Welsh has been a victim of shopping centre wheel clamping. Two years ago he deliberately parked his car at Southgate mall in an area clearly demarcated as not available for public parking. His car was clamped, he paid the fine and got a receipt. Then he went to lay a charge of violation of the Criminal Procedure and Road Traffic Acts by Southgate at the Mondeor police station. Last year the case was dismissed without any action taken against the centre. When Welsh questioned this he was told the public prosecutor had refused to take action on the basis that there was not enough evidence to prosecute. Meanwhile, the Mondeor police station became the beneficiary of Southgate’s “fines”, receiving R15000 for its trauma unit. “I consider the R15 000 as a bribe, because while it was being paid the investigation of the mall quietly ceased,” Welsh alleges. “Southgate was a suspect in a criminal case at the time payment commenced.” Mondeor police dismissed Welsh’s allegations as “nonsense”. “If there is any complaint about Mondeor police station he [Welsh] is welcome to come and lay a charge so that we can investigate,” says Captain Johan du Toit. Welsh has also laid charges against the Southdale mall. Again he was told there was not enough evidence to prosecute and when he supplied more, the docket disappeared. Welsh’s attempts to get the National Directorate of Public Prosecutions involved have proved fruitless, and this is why he has decided to bring a private prosecution. “The gloves are off. Both shopping centres mentioned are operating as vigilantes and both enjoy police protection against prosecution in return for bribes and favours,” he says.