Dear Arrive Alive
I received a SMS notification RE an outstanding traffic fine yesterday (18 Aug 2011) from Umsobomvu municipality. The date of the alleged offense is 29 January 2009. This is the first notice that I received of the offense.
Is this legal – i.e. is the fine still valid after more than 2 years, and am I obliged to still pay the fine?
If this is not legal, what is the procedure for me to follow to get the issue / fine resolved?
I still need to request a proof of the fine via a written notice.
There are a few issues surrounding these SMS messages and many of the letters that get sent out by both post and email that I would like to address in answering your question.
Firstly, I would like to categorically state that there is no legislation that exists that says that notification or service of camera or any other fines may take place via SMS or email. There is also no legislation that states that because a fine appears on a fine payment site like payCity.co.za or ViewFines.co.za that the person under whose profile it appears has been served with such notice.
The Criminal Procedure Act provides for service of section 341 (first) notices by standard permit mail and section 54 summonses in person whilst the AARTO Act provides for service of infringement notices and other documents either in person or via registered mail. The registered mail requirement under AARTO is there to prove when service has taken place.
Traffic authorities operating under the Criminal Procedure Act sometimes send out the initial section 341 notices and sometimes don’t bother – or the standard mail items simply go astray and this is why so many people then say that they never received the notices. I have absolutely no reason to doubt that you did not receive the notice as it is a well-known fact that standard mail does not establish service as there is no tracking at all attached to it.
But what is very disturbing about what happens thereafter is that traffic authorities then discard the other provisions of the Criminal Procedure Act and instead of issuing and serving summons, they hand over their traffic fines to debt collection agencies who in turn send out SMS messages, letters and emails too defaulters and these take a number of forms, ranging from a reminder to pay to outright threats of arrest, etc.
What the authorities and debt collection agencies fail to understand or acknowledge is that a traffic fine is not a debt, it is an accusation of criminal wrongdoing (under the Criminal Procedure Act) and whilst AARTO attempts to change this, the fact is that the constitution does not allow for presumption of guilt and the constitution is the highest law in the land.
I believe that the “prescription period” that applies with respect to how long is allowed by the NPA before a traffic authority proceeds to summons varies from 18 months to two years and from province to province but I have seen no specific documentation or instruction on this and there are some who hold that there is no prescription period or statute of limitations.
My advice to you is to contact the author of the SMS and tell them that you are ready and willing to accept service of a summons in terms of the Criminal Procedure Act and demand that your rights under the Criminal Procedure Act and the constitution are adhered to. Of course, the debt collection agency is incapable of doing this and they will probably ignore your demand and simply move onto someone else that they can intimidate into coughing up so I would follow this up with a letter to Umsobomvu Municipality, which is based in Colesburg in the Northern Cape and send your demand by registered mail.
The ball will then be in their court and they will have the choice of complying with your demand and the law or they will simply withdraw the matter. But I do warn that many of these smaller municipalities (and some big ones too) then go on to further abuse the law and post section 54 summonses to people in violation of the Criminal Procedure Act. Should this happen to you, then please contact me immediately and retain the summons and the envelope in which it was posted so that we may pursue the matter and register a docket for defeating the ends of justice against the person who did so. Such people must be criminally charged because they are violating your rights and contravening the Criminal Procedure Act.
I am not for one second suggesting that people such as yourself should ignore their traffic fines, nor am I suggesting that they should await summonses as this is both irresponsible and can have serious consequences for the person that does so. To the contrary, what I am saying is that all motorists should pay attention to their traffic fines and deal with them immediately – either by paying them if they were guilty or by defending them if they were not. But what I am also saying is that it is high time that traffic authorities in South Africa stopped abusing the system and ignoring or overtly breaking the very laws that they seek to enforce and started acting like law enforcement agencies instead of businesses.
It is my firm conviction that debt collectors should stick to chasing civil debt, of which there is more than enough to go around in light of the recession and other economic factors and leave traffic law enforcement and fine collection to the authorities. If the debt collectors want to play at being cops they should either go and join their local law enforcement agency or simply march into a flea market and buy themselves a set of blue lights and go out and terrorise motorists face to face instead of hiding behind SMS messages and call centre telephones.
I have been accused of encouraging lawlessness by VVM “attorneys” who collect “stagnated fines” on behalf of the JMPD and of being hyper-critical by some law enforcement agencies and government institutions and whilst I will not sink to their levels by responding to their unwarranted and defamatory comments, I will say that they should take an introspective look at themselves and ask themselves just who it is that is breaking the law and in doing so, encouraging lawlessness. If telling the truth is a crime, then I am guilty as charged, but I abide by all laws of the land and despise anyone who does not do similar – including authorities and debt collectors.
National Chairman – Justice Project South Africa (NPC