Justice Project SA warns about legality of immediate driving license seizure

Since the announcement by the Minister of Transport on 27 December 2011, calling for the immediate seizure of driving licenses wherein it was said that “drivers arrested for any traffic offence must have their driving licenses seized as well as suspended and/or cancelled” and JPSA being asked for comment thereon, we openly stated that there is no legislation that permits any traffic officer to do this.

This has resulted in a flurry of actions and statements to justify this call, as well as a retraction by the Minister, which was then followed up by a reinstatement of seizures by the Acting CEO of the RTMC, Collins Letsoalo on eTV News where he stated that authorities would indeed “seize them and give them back to alleged offenders once they have appeared in court.” JPSA’s and my standpoint on this matter has by contrast, remained constant but we do now feel that there is a need to clarify things thoroughly.

Collins Letsoalo quoted section 25(1)(b) of the National Road Traffic Act as the basis on which this will be done. Interestingly enough, JMPD spokesperson, Wayne Minnaar also made a statement to a newspaper that the JMPD will do as has been instructed (seizing licenses), thus showing that they are prepared to selectively act upon some orders given to them, whilst they disregard and ignore others (like that given to them to cease issuing unlawful infringement notices). This also comes after it was reported to the JMPD that one of their officers was stealing driving licenses from people to whom he issues infringement notices.

There appears to be a significant degree of confusion with respect to Section 25 of the National Road Traffic Act, wherein executive powers are indeed granted to the CEO of the Road Traffic Management Corporation to suspend and/or cancel the driving licenses of persons who hold such documents under certain conditions.

Prior to the National Road Traffic Amendment Act’s proclamation in 1999, this power was conferred on the Transport MEC for each province however in terms of the National Road Traffic Amendment Act which has been incorporated into the latest version of the National Road Traffic Act, MECs no longer possess this power and it is now the exclusive property of the CEO of the RTMC. We therefore wonder why it is that official Department of Transport statements are spreading misinformation by making reference to Transport MECs having this power, when it was withdrawn when it was transferred to the CEO more than 10 years ago.

Notwithstanding the fact that this section does indeed exist and grant powers to the CEO, like all legislation, it cannot be read and acted upon in isolation, and it would appear that other provisions of Section 25 are not being taken into account. Reading Section 25(1)(b) in complete isolation of the rest of this section makes it appear that the CEO may suspend/cancel anyone’s license at will, but this is not the case.

Section 25(2) through (10) of the said legislation makes it very clear that any such person as the CEO may determine to be a candidate for suspension or cancellation of their driving license should be subjected to a re-test with respect to the class/es of driving license held, after which their driving licence may be cancelled if they are found to be incompetent.

The Act makes no reference whatsoever to the CEO having the power to decree that traffic authorities should be allowed to exercise his powers, nor does it suggest that deputation or traffic officers/authorities may take place. Furthermore, there is a strong likelihood that the National Road Traffic Act is in respect of this provision, in conflict with the Promotion of Administrative Justice Act, which requires administrative action that is lawful, reasonable and procedurally fair.

Should the current Acting CEO exercise these powers, it is questionable whether such actions by him would be lawful at all, given the fact that the Labour Court has already found his appointment to have been irregular, invalid and unlawful on 10 March 2011. Mr Collins Letsoalo has said that the matter is being appealed but to date, no evidence of this being the case has been forthcoming and the appeal cut-off date has been exceeded.

In light of this fact, any action or order he takes or gives would be deemed as being unlawful and Ultra Vires (beyond his powers) due to the findings of the court unless the matter is in fact on appeal and evidence of this can be provided. It would therefore be wise to leave the suspension and/or cancellation of driving licenses to the courts, which work on a little thing called evidence and require convictions prior to imposing sentences and punitive measures.

It is unclear whether the Acting CEO has indeed acted on his perceived powers thus far, but it has been suggested that he has done so and therefore it would not be unreasonable to expect that legal challenges will ensue once people come to understand that his actions are unlawful. Additionally, the consequences surrounding grounds for litigation in the event that a person’s driving licence was suspended or cancelled prior to conviction where such person were to be acquitted by a court are simply too mind-boggling to contemplate.

There can be no doubt that the continued carnage on our roads is, to coin a phrase, “unacceptable” and that decisive and well thought out plans and measures must be taken to stem the tide of people being maimed and killed on our roads. However, the blanket seizure/suspension/cancellation of driving licences of persons accused of road traffic offences prior to trial and conviction is dangerous ground to be treading on.

Granting executive powers in an irresponsible manner, especially to people who have little or no experience in matters with which they are dealing is reckless at best and should be avoided at all costs.

We maintain our stance that traffic officers have no lawful powers to seize driving licenses of people they arrest and that suspension and/or cancellation thereof must remain a function of competent courts. We again reiterate that AARTO contains mechanisms to impose demerit-points on and/or suspend or cancel driving licenses and this has been stalled by the RTMC and Department of Transport.

JPSA is and remains committed too true, well thought out, planned and executed road safety initiatives and is signatory to the United Nations Decade of Action for Road Safety 2011-2020. We will not however support unlawful actions being taken or practiced by anyone and will not keep quiet when they are.

Best Regards,

Howard Dembovsky
National Chairman – Justice Project South Africa (NPC)
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