The issue surrounding the roadside arrest of motorists due to a warrant of arrest for outstanding traffic fines has for a number of years been a contentious one. The main point of contention is the application of the law, or rather the selective application of the law by traffic officials when arresting drivers on a warrant of arrest.
Letís have a look at what the legal requirements are. A warrant of arrest is authorised by the magistrate for contempt of court when the accused has failed to pay the admission of guilt fine AND failed to appear in court. The accused however can still pay the admission of guilt and contempt fine to prevent arrest.
When it comes to the traffic authorities arresting drivers at the roadside for outstanding warrants of arrest, they are acting in accordance of the Criminal Procedure Act, 1977 and not the National Road Traffic Act 93 /1996. In terms of the CPA, the driver may be brought to court on a written notice (Section 56), through a subpoena or be warned in terms of Section 72 to appear in court. It is our view that Section 72 should be applied to ensure their appearance in court and exceptions only be made where the accused does not have proof of their residential address.
However, the CPA also states that when affecting an arrest on a warrant THE ORIGINAL SIGNED COPY must be handed to the accused at the time of arrest - something the Metro Police fail to do. Their argument is that because they have literally millions of warrants, an electronically printed or facsimile version is sufficient to detain a person. They also act in the belief that where there is a probability of a warrant against a person, that is sufficient cause for the arrest.
The rights of the driver are prejudiced almost as a matter of course under these circumstances. The right to legal representation, sight of the correct documentation at the time of arrest and the subsequent illegal detention are in most cases ignored. Complaints generally fall on deaf ears and, if anything, make matters worse. Interestingly enough, Tswane Metro is facing numerous court actions for damages because of wrongful arrests and detention due to procedural errors on the part of their officers.