Arrive Alive asked the question, “How long does the traffic office have to issue a summons before a traffic ticket becomes invalid?”
They referred this question to the Experts from Justice Project South Africa and shared their response:
“There is ongoing and prolific confusion about this issue, mainly caused by traffic authorities typically applying loose standards to what is in fact a very simple set of guidelines and members of the public thinking that it is OK to ignore traffic fine notices and for that matter, summonses. I fear that your question, whilst seeming innocent enough is a loaded one and it will become apparent why I say this as you read. I also suspect that you would not have expected such a “long winded” response, but this is a topic worth covering thoroughly, so please make yourself comfortable and pay full attention.
Here is how it is supposed to work under the Criminal Procedure Act – not AARTO, which I will discuss separately:
- Alleged infringement captured on camera – let’s call this “day zero”.
- Within 30 days, a notice of offence under Section 341 of the Criminal Procedure Act must be generated and sent to the alleged infringer.
- If the Section 341 notice is generated on the 31st day, it is unlawful and must be withdrawn without argument.
- This is not a summons in a criminal case, but is a notification of a timeframe in which a fine may be paid before the matter becomes criminal.
- It is at this stage that the alleged offender should take action on the notice, but typically this does not happen.
- This notice is posted via regular post to the last known address of the alleged infringer.
- A timeframe in which the fine may be paid will be provided and the guideline is that this timeframe should be 60 days.
- Photographs may be requested and must be provided free of charge by the issuing authority.
- At this stage, the alleged infringer may opt to pay the fine or address a letter of representation to the traffic authority.
- Successful representations will result in either the fine being reduced or scrapped entirely.
- If the allotted timeframe in which to deal with the Section 341 notice elapses without action on the part of the alleged infringer, a criminal summons in terms of Section 54 of the Criminal Procedure Act must then be generated and served.
- This should occur on the 91st day after day zero.
- A court date and a date before such court date before which an “admission of guilt fine” may be paid in order to avoid a court appearance must appear on this summons.
- Once a summons has been generated, it must be served in person at the last known residential or employment address of the infringer.
- The summons must be served on a real person, preferably but not necessarily the accused.
- The Criminal Procedure Act allows for the summons to be served on any person, who is apparently over the age of 16 years, residing with or in the employment of the accused at that address.
- The summons must be served no later than 14 days prior to the trial date, Sundays and public holidays excluded.
- A return of service must be completed by the summons server and forwarded to the court concerned.
- o At this stage, the alleged infringer has three options:
- Pay the fine prior to the date on the summons which allows the avoidance of a court appearance.
- Approach the public prosecutor with a representation.
- Appear in court on the specified court date and defend the matter.
- If the alleged infringer does not take any action and fails to appear in court on the allotted court date, then a magistrate will hold them in contempt of court and levy an additional fine for this.
- A warrant of arrest will also typically be issued at this stage and now things turn ugly as this warrant, like any other criminal warrant of arrest will be executed when the accused is found.
- The intention of a warrant of arrest is to secure the attendance of the accused in court and should be executed at their last known residential or work address.
- Warrants are often executed in roadblocks and at roadside stops as well and it is here that abuses often take place.
- When the accused is arrested, they must be taken to the place specified on that warrant and detained in custody. They may not be taken elsewhere unless it is as an interim measure before conveying them to the place stipulated on the warrant.
- The accused has a right to have sight of a copy of that warrant (not necessarily the original) and this must be produced on demand.
- The accused may not be detained whilst the warrant is fetched from a police station etc. so if a copy is not immediately available, they may not be detained.
- The accused may not however demand to see the return of service from the summons server.
- When arrested, the accused will have the option to pay all outstanding amounts and be released.
- By letting a traffic fine get to this stage, the person concerned would typically have brought everything that happened on themselves and it is very difficult to have sympathy for a person who does this.
- Whilst the Prescription Act does not place a prescription period on debts to government (national or local), it must be borne in mind that a traffic fine is not a debt, but is in fact a fine in terms of a criminal charge.
- There is absolutely nothing in the law that says that an accused is obliged to plead guilty to a criminal charge, in fact quite the opposite.
- The Constitution says that every person, regardless of what they have been accused of, is entitled to be presumed innocent until proven guilty but traffic authorities have been allowed to believe that the Constitution does not apply to traffic fines. It does!
- The National Prosecuting Authority (NPA) has placed a few guidelines with respect to traffic fines in place and typically, it is held that if a traffic fine is not finalised within 18 months then it should be scrapped but should is the operative word here. There you are, your question has just been answered, but please read on.
- The reason for this unofficial prescription period is that any good attorney would argue that it is impossible to build a defence on matters where photographic fines are involved after an unreasonable amount of time has elapsed. This is an extremely good argument given that road conditions in this country change so dramatically, even over relatively short periods and this argument rarely fails.
- This does not however stop traffic authorities from pursuing the matter way beyond this period and many will continue to pursue them for half a decade or more in the false belief that a traffic fine is a debt. It is not.
- However in practice things are often happen in a way that is completely different to the scenarios above in that:
- Traffic authorities regularly ignore the 30 days from date of alleged offence story and send out “first notices” months or even years after the alleged infringement.
- Because there is no need for proof of service of a Section 341 notice there have been instances where traffic authorities suddenly find a heap of camera offences that they have not processed previously and backdate the issue of the Section 341 notice in order to proceed to the next stage.
- Section 54 Summonses are very rarely generated on the 91st day after the alleged infringement. These can be generated months or even years after the required date.
- When these are served according to the provisions of the Act, some people refuse to sign for a summons and get abusive with summons servers when they try to serve them with summonses. This is a very stupid and ignorant thing to do since it is tantamount to refusing or disposing of one’s own rights.
- Both, traffic authorities and summons servers regularly abuse the system and don’t serve summonses in accordance with the Criminal Procedure Act.
- There have been numerous instances of summonses being posted via ordinary mail. Even registered mail would be unacceptable under the Act, but this does not stop them.
- There have been numerous instances of summonses simply being placed in the post box, or thrown over the gate at the accused’s premises.
- Where summons servers engage in these practices, it is astounding just how many summonses are allegedly served on “a female with brown hair”, which aptly describes almost every female on the planet, depending on what one’s definition of brown is. Even a blonde’s hair is “brown” when viewed in certain lighting conditions!
- It is hardly surprising that this happens given that the remuneration for serving summonses is appalling and no qualifications beyond being able to read, write and possibly drive are required in order to become a process server.
- Neither the traffic authorities nor the summons servers care whether a summons is served correctly since it is not them who will end up in cells if you fail to appear in court.
- Magistrates and court officials, whilst sort of caring that a summons has been served in the prescribed manner, take the word of the summons server for the fact that the summons has in fact been served lawfully.
- Several traffic authorities also abuse this process by issuing and serving summonses in remote roadblocks by setting court dates as soon as 24 hours after the summons is served.
- This practice is completely unlawful since the court date on a Section 54 summons must be at least 14 days in the future to enable the accused to secure a defence and appear, but this does not stop these unscrupulous authorities from acting in this manner.
- The net result of this practice is that the accused person often settles the fine there and then to avoid the court appearance.
- Similarly, authorities who act in this manner love detaining people in the back of minibuses and vans until such time as they settle their outstanding fines with them.
- This too is completely unlawful and constitutes unlawful arrest for which civil legal action can and should be pursued but is more often than not, not pursued.
- Many traffic authorities have taken to passing on their “stagnated fines” to private debt collection firms who then adopt some very questionable methods to secure payment. These methods include:
- Sending threatening SMS messages.
- Sending threatening letters or emails.
- Placing telephone calls to the alleged infringer, sometimes late at night.
- Posing as the traffic authority or municipality.
- Demanding payment under threat of arrest.
These unethical, extortionist operators then go about intimidating motorists into paying their fines and in doing so, pleading guilty to a criminal offence in violation of the accused’s right to a fair trial and negating the State’s responsibility to prove guilt beyond reasonable doubt. Is this fair or strictly legal? No. Does this mean it will stop? Certainly not! It makes so much money for these debt collection firms and municipalities alike that, because money makes the world go round, they will continue acting like this unless they are brought to task and those who have tried (like JPSA) have regularly been lambasted and threatened by these companies and complaints to higher authorities including the Council for Debt Collectors simply falls on deaf ears.
Under AARTO, the process has been completely revamped and real, fixed timelines have been set. “Guidelines”, which by the very definition of the word implies that they are optional fall away and are replaced with legislated procedures and timelines and this has advantages and disadvantages for all concerned.
The AARTO Act decriminalises “minor” traffic offences and sets definitive actions in play for both, the traffic authorities and recipients of traffic fines – placing duties and responsibilities on both sides. Below is the lifecycle of AARTO and you will easily see how this differs enormously from the Criminal Procedure Act. Just always bear in mind that the National Road Traffic Act is the underlying legislation behind both sets of legislation and procedures.
Although the points-demerit system is yet to be implemented, I will write this as if it were in play.
- An electronic (camera) AARTO 03 infringement notice must be issued within 40 days of the alleged infringement.
- An AARTO 03 infringement notice must be posted via registered post to the infringer’s last known address.
- The infringement notice is deemed to have been served 10 days after the date of posting so not collecting it is just downright stupid.
- The alleged infringer then has 32 days from the date of service to pay the fine at the 50% discounted amount shown on the infringement notice, or to:
- Nominate a different driver within 14 days.
- Make a representation within 64 days.
- Elect to be tried in court within 64 days.
- The infringement notice is then removed from the AARTO system and transferred to the Criminal Procedure Act.
- If the accused fails to appear in court, a warrant of arrest may not be issued, but the case then goes back into the AARTO process.
- Apply to pay in instalments within 64 days.
- If this option is chosen, the discount falls away automatically and the instalments are calculated on the full fine amount.
- If the alleged infringer pays within the 32 days at the 50% discounted amount then the applicable points get applied to their driving licence immediately when payment is received.
- If the alleged infringer does not pay within the 32 days and has not elected to be tried in court or been granted the right to pay in instalments, then an AARTO 12 courtesy letter is generated and the discount falls away, plus a charge of R60 gets levied for this courtesy letter. The alleged infringer is then given a further 32 days to pay the fine at 100% of its face value, plus the R60 for the courtesy letter.
- A courtesy letter may be served via registered post or in person
- If the alleged infringer still does not pay, then an AARTO 13 enforcement order is issued and the alleged infringer is given a further 32 days to act, with the following provisos:
- A further charge of R60 is levied for the enforcement order.
- The applicable demerit-points are immediately applied to the alleged infringer’s driving licence.
- A block is placed on eNatIS for the withholding of licence discs for all vehicles registered in the name of that person.
- A block is placed on eNatIS for the withholding of driving licence renewals for that person.
- If/when they pay, these blocks are removed.
- Enforcement orders may be served via registered post or in person.
- If the alleged infringer still does not pay, then an AARTO 24 warrant of execution is generated and the following applies:
- A further charge of R60 is applied for the warrant of execution.
- The alleged infringer is blacklisted with credit agencies.
- The alleged infringer has 7 days to pay the full fine amount plus R180 in terms of the documents that have been generated.
- If the alleged infringer still does not pay then the warrant is executed by the sheriff and the following will apply:
- o The sheriff has the right to seize movable property to the value of the fine, all penalty fees and his charges from the alleged infringer.
- He/she also has the right to remove licence discs and number plates from all vehicles registered in the name of the alleged infringer.
As you can see, the AARTO process is finite and has strictly legislated timelines for each process to be enacted. At the most, this period is 183 days, if it takes the full 40 days for the infringement notice to be issued and 10 days for it and all other documents to be collected when sent via registered mail. This means that every traffic fine will have a finite period of validity however what is not clear is what will happen after that. Because an AARTO fine is not a criminal offence, and the AARTO Act has effectively taken traffic fines into a civil procedure, prescription comes into play and these amounts become debts to the State for which the prescription period is currently 30 years. So in effect, the sheriff may execute the warrant of execution at any time within a 30 year period of its issue!
It is more than clear that not dealing with one’s traffic fines by one of the prescribed means can have disastrous consequences for an alleged infringer and these consequences have an extraordinarily long time to play themselves out, even though the first few steps of the AARTO process happen within a relatively short timeframe.
However, having said this, there is a definite responsibility on the issuing authority and the RTIA (Road Traffic Infringement Agency) to abide by all of the processes strictly and within the legislated timeframe and it is here that the “pilot phase” has fallen squarely on its backside! For example, the JMPD – one of the two participants in this process has failed dismally on progressing beyond courtesy letters on any of its infringement notices that it has issued to date. Having said that, it has furthermore failed to progress to courtesy letters on most of its infringement notices issued as far back as almost two years ago!
The net result of this is that, because legislated due process has not been followed, it will have no choice but to completely write off each and every infringement notice that it has not followed the legislated process on and whilst this may represent a financial disaster for the JMPD and the City of Johannesburg, they have no one other than themselves to blame for this. The TMPD and the RTIA are no better off since they too have failed to progress beyond enforcement orders in most cases.
Just as an alleged infringer has the legal obligation to act appropriately within the legislated timeframes, so too do the authorities – if not, then the AARTO Act is completely unconstitutional and unenforceable. When the authorities involved become aware of this, there are no doubt going to be more than a few flared tempers but then again, it is and was incumbent on them to be aware or what they were getting into in rolling this process out and just because they thought that they could abuse it like they had the Criminal Procedure Act, does not mean that they can. JPSA will not allow this and just because no one has stood up to abuse in the past does not mean that we will stop doing so. There are 8.5 million licenced drivers in this country and 2 municipalities and one government agency involved in the process thus far. Just whom do you think is going to win this battle?
As they say in the classics, “Put that in your pipe and smoke it!” ”
National Chairman – Justice Project South Africa”
Visit Arrive Alive for all you need to know when it comes to the rules of the road.
Source: Arrive Alive