How to fight traffic fines in SA: ALL you need to know

Source: Wheel24, 12/02/2015

Cape Town - The 2015/16 holiday season is upon us and millions of
South Africans will take to the roads. Local authorities will
(hopefully) be enforcing traffic laws as the nation's annual
traffic-fine blitz begins.


Traffic violations are a contentious issue and given how prolific
speeding cameras are in the country and the propensity for police to
"hide behind bushes", it's understandable that many South Africans
question the validity of traffic fines.


Do you know how to contest a traffic fine?
SA expert responds
Justice Project South Africa chairman, Howard Dembovsky, shares legal
advice for contesting traffic fines. He warns of unreliable "garbage"
on the internet and urges drivers to know their rights.


Dembovsky said: "At the outset, I feel duty bound to warn all drivers
not to take much reliance in any 'guide' or 'traffic-fines toolkit'
that can be found all over the internet in an attempt to construct a
do-it-yourself contestation of a traffic fine.


"I say this because there is an enormous amount of garbage on the
internet which will achieve little more than to land you in even
hotter water."


4 things you should know when contesting a traffic fine:

1. There are different types of fines
Dembovsky responds: "It is somewhat telling and extremely sad that
most people regard traffic fines to be those issued for
camera-speeding offences, red-light violations and little else. This
has arisen from the propensity of many traffic departments around the
country to embrace speed cameras and all but abandon physical law
enforcement of moving violations.


"It would not however be true to say that all traffic law enforcement
in South Africa is done by camera and you need to fully understand
that if you have been summoned to appear in court by means of a
summons in terms of Section 54 or a written notice in terms of Section
56 of the Criminal Procedure Act and fail to appear in court if you
have not otherwise disposed of the matter prior to the court date, a
warrant for your arrest will be issued."



2. Know your rights
"It is your absolute Constitutional right to contest any accusation of
wrongdoing, including but not limited to a traffic fine since Section
35 of the Constitution holds, amongst other things, that any accused
person has the right to be presumed innocent until proven guilty – not
the other way around."



3. There is no one-size-fits-all answer
"Not only because every case differs but because there are currently
two distinctly different pieces of legislation used to prosecute road
traffic offences:



• The Administrative Adjudication of Road Traffic Offences (AARTO)
Act which is only applicable in the jurisdictions of the Cities of
Johannesburg and Tshwane; and
• The Criminal Procedure Act which applies everywhere else.



4. There are different forms and procedures
"Although the processes are similar, you cannot use the forms and
procedures prescribed under AARTO to contest a fine issued under the
Criminal Procedure Act and you cannot, for example, approach the
public prosecutor under the AARTO Act like you can under the Criminal
Procedure Act.


"As their names suggest, the AARTO Act is an administrative process,
while the Criminal Procedure Act uses the criminal justice system. The
consequences thereof are markedly different. JPSA has litigation in
the High Court at this very moment to address this issue."


Below are steps to take for contesting traffic fines:


Criminal Procedure Act – S341 (when you receive a traffic fine but not
a court summons)
1. You may write to the traffic department.


2. You`ll need only the compounding notice number.


3. If you have the compounding notice, attach a copy of it to your
letter. Keep the original safe.


4. Letters need not be accompanied by an affidavit.


5. You can post, fax or email your letter to the traffic
department.

You are not required to use registered mail if
you post it, but it helps to establish a paper trail.


6. The traffic department may respond to you in writing. In reality
this rarely happens.


7. If your representation is successful, the fine will either be
cancelled or reduced.


8. The most common outcome is for the fine to be reduced because they
want the money.


9. If your representation is unsuccessful, you will need to await the
summons to be issued and served on you.


10. By paying the admission of guilt fine on the compounding notice
(prior to a summons) you will not incur a criminal record.


Criminal Procedure Act – S54 or S56 (when you receive a summons to
appear in court)
1. You may write to or approach the public prosecutor at the
magistrates court you are summoned to appear in.


2. You`ll need the original S54 summons or S56 written notice.





3. If you write to him/her, attach a copy of the summons or written
notice to your letter. Keep the original safe.


4. Letters need not be accompanied by an affidavit.


5. You can post, fax or email your letter to the public prosecutor.


You are not required to use registered mail if you post it,
but it helps to establish a paper trail.


6. If you write to the public prosecutor and do not deliver your
letter in person, he/she may respond to you in writing. In reality
this rarely happens.


7. If your representation is successful, the summons will either be
withdrawn or the fine reduced. The most common outcome is for the fine
to be reduced because they want the money.


8. If your representation is unsuccessful, you will have to appear in
court if you do not pay the admission of guilt fine.


9. If you appear in court, you are strongly advised to have an
attorney represent you but be careful to obtain one who is familiar
with traffic law. There`s a lot of truth to the saying "a man who
represents himself has a fool for a lawyer" so be careful.


10. If you pay the admission of guilt fine or are found guilty in
court, the Criminal Procedure Act says you must be given a criminal
record.



AARTO Act – AARTO 01 or AARTO 03 (applies to Tshwane and Johannesburg)

1. You`ll need an AARTO 08 representation form from
www.aarto.gov.za.


2. You`ll need all of the details required on that from, including the
infringement notice number and issuing authority name
3. If you have any additional evidence, etc. you may attach it to your
representation.


4. All AARTO 08 representations must be signed in front of a
commissioner of oaths.


5. You submit this form by the methods stated on the form. You can
upload it at the www.aarto.gov.za website. It is recommended that you
use the facility on the AARTO website to submit it since this causes
the status of the infringement notice to change to "representation"
immediately on eNaTIS. You also get an AARTO 05c receipt to download
immediately.


6. By law, you must be notified of the outcome of your representation
on an AARTO 09 result of representation. In reality this rarely
happens.


7. If your representation is successful, the infringement notice will
be cancelled. If it is unsuccessful the RTIA may add a further R200 to
the penalty if you made representation after 64 days had lapsed from
the time of infringement.


8. If your representation is unsuccessful, you may elect to be tried
in court, in which case a summons in terms of Section 54 of the
Criminal Procedure Act must be served on you.


9. If you are found guilty in court, you will have to pay the fine but
you will not incur a criminal record.