No warrant, no arrest

2003-12-18 21:00

Johannesburg - Motorists going on holiday this festive season can do so safe in the knowledge 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 legal consultant Don Smart said.

Even if there was a contempt of court warrant out for the offender for failing to appear in court on traffic charges, the person could not be arrested unless he had been properly served with that warrant," Smart added.

"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.

"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 explained that while each case would be evaluated on its own merits, 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 appeared to be a warrant for that person was at face value illegal.

Arresting the person and later producing a copy of the warrant will also not make it lawful, Smart added.

'Have tape recorder at hand'

There were also 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.

"The fact is, officials at roadblocks must comply with the provisions of the Criminal Procedure Act when arresting anyone and a maliciously or wrongfully arrested motorist has the right to claim for damages.

"Unfortunately unless someone takes the authorities to court and they are stopped from carrying out this sort of practice, traffic authorities will go on arresting motorists for outstanding fines.

- SAPA