What does the law say about SMSing and driving?

The Cape Town provincial government has enacted a bylaw that has been implemented only in the City of Cape Town.  The bylaw is called the Traffic Bylaw 2011 and it has been implemented on the basis of aiming to reduce the number of road fatalities as a result of cellphone usage.  

From the extract cited below, it can be seen that the bylaw quotes regulation 308A of the National Road Traffic Act when referring to cellphone usage. This bylaw and regulation prohibit the use of cellphones whilst driving. This includes texting and driving.

The bylaw however goes on further to give the authorised officer the power to confiscate and impound a driver’s cell phone when they are caught contravening this regulation/bylaw.  The bylaw further places obligations on the officer to inform the driver of the reasons of the confiscation, issue a receipt for the device as well as notifying the owner of where one can pick up the device.  It further places an obligation on the officer to follow the city’s rules and law regarding impoundment and confiscation.

Under these circumstances, where none of the above has been followed, the authorised officer has breached the bylaw and you may report the matter to the police or the relevant authority. Please make a note of the officer’s name and badge number if available as well as the date and time of the confiscation. 

This by law works in conjunction with the National Road Traffic Act, which is the national piece of legislation that regulates the roads and traffic enforcement. Please read the Traffic By law 2011 under Section 38 below:

Prohibition on use of communication device while driving
38.(1) Subject to any other law, no person shall drive a motor vehicle on a public road—
  • while holding a cellular or mobile telephone or any other communication device in one or both hands or with any other part of the body;
  •  while using or operating a cellular or mobile telephone or other communication device unless such a cellular or mobile telephone or other communication device is affixed to the vehicle or is part of the fixture in the vehicle and remains so affixed while being used or operated, or is specially adapted or designed to be affixed to the person of the driver as headgear, and is so used, to enable such driver to use or operate such telephone or communication device without holding it in the manner contemplated in paragraph (a), and remains so affixed while being used or operated.

(2) For the purposes of this section —

  •  the word “headgear” includes a device which is specially designed or adapted to allow the driver to use a cellular or mobile telephone or other communication device in such a manner that he or she does not hold it in one or both hands or with any other part of the body, and which is connected to the cellular or mobile telephone or other communication device concerned, directly or indirectly, while being fitted to or attached to one or both ears of the driver; and
  •  the phrases “cellular or mobile telephone or any other communication device” and “cellular or mobile telephone or other communication device”, excludes land mobile radio transmission and reception equipment operating in the frequency band 2 megahertz to 500 megahertz that is affixed to the vehicle or is part of the fixture in the vehicle.

(3) Subject to subsections (1) and (4), an authorised officer may, in the public interest and safety of the public, confiscate and impound a hand held communication device.
(4) The authorised officer must, when confiscating any hand held communication device –
  •  inform the owner of such communication device of the reasons of confiscating and impounding;
  • issue a receipt to the owner of such hand held communication device, stating the place at which such device may be claimed ; and
  •  follow all procedures contained in any policy of the City dealing with the confiscation and impoundment of property.

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