Motorists going on holiday this festive season can do so knowing that they cannot be arrested for outstanding traffic fines if they are caught in speed traps or police roadblocks, Europ Assistance, a legal services call line and roadside assistance company, said on Thursday.
”This can only be done if the officer has the warrant in his or her possession at the time of the arrest, which obviously in almost all such cases is not the position,” Europ’s Don Smart said of recent media reports of allegedly illegal arrests.
”Even if there is a contempt of court warrant out for the offender for failing to appear in court on traffic charges, the alleged offender cannot be arrested unless he has been properly served with that warrant,” Smart added.
Technically, before a warrant of arrest can be issued by the courts, summons must be served personally on the accused, to a person apparently older than 16 years of age, either at the accused’s place of work or residence.
”Simply put,” said Smart, ”roadblock arrests without proper summons and warrant procedures having been followed are illegal, notwithstanding alleged comments to the contrary by some traffic authorities that it is their right to do so.”
Motorists who find themselves in such a situation can demand to be provided with a copy of the warrant for their arrest. If the traffic officer fails to produce one, the motorist cannot be arrested unless he has committed an offence in the presence of the arresting officer that would justify an arrest without a warrant.
”Theoretically it is possible to be arrested at a roadblock for outstanding traffic tickets. But all the correct legal procedures need to have been followed by the authorities,” Smart said.
”Under Section 39(2) of the Criminal Procedure Act, if you are arrested at a roadblock you have the right to demand that you are immediately handed a copy of a warrant of arrest. If the officer cannot produce that copy the arrest cannot be carried out.
”The mere fact that your name appears on a list of outstanding fines or warrants is irrelevant,” he said.
He said the general practice of a traffic officer at a roadblock looking up a name on a computer for outstanding fines and then arresting a motorist because there appears to be a warrant for that person is at face value illegal.
Arresting the person and later producing a copy of the warrant will also not make it lawful, Smart added.
There have also been reports of traffic officers allegedly being abusive and finding other reasons to arrest motorists who questioned their arrest.
”It’s therefore always useful to have a small handheld tape recorder in a car to keep a record of such confrontations, but don’t hand the tape over to the arresting officer. Pass it on to a fellow passenger if possible. It will also help your attorney tremendously in later cross-examination of the state witnesses and can in certain circumstances be used as evidence,” Smart said.
Tshwane Metro Police spokesperson Director Mel Vosloo said that while Smart was factually correct, what he said could be misleading.
His force could supply warrants on the spot by fax to motorists on request.
Vosloo said Tshwane Metro roadblock buses carry computers to trace motorists sought on outstanding warrants for not honouring summonses to appear in court, and fax machines to receive copies of such documents.
On receipt, the copy will be served on the motorist, who can then be lawfully arrested.
No such systems are yet in use in Johannesburg or the Ekhuruleni Metro (East Rand).
Johannesburg Metro Police spokesperson Chief Superintendent Wayne Minnaar said his service is in the process of acquiring similar printers.
In the meantime, they will have no problem fetching copies of the document for those who insist on seeing it.
”People mustn’t think they’ll get away if there is a warrant outstanding.” — Sapa