Many South Africans do not understand the practical implications of being convicted (found guilty) of a criminal offence, even less so when the conviction is regarding a traffic offence. Some people seem to think that when they break the rules of the road, they are not breaking the law. Unfortunately, most of them find out the hard way that our laws are very strict on these types of offences. This article deals with some of the most common traffic offences and will shed some light on the subject.

What is a traffic offence?

  • Various traffic rules exist in our legal system and it is considered to be a criminal offence if a person breaks these rules (traffic offence”).
  • These traffic offences are mainly regulated by the National Road Traffic Act and its Regulations, as well as the Criminal Procedure Act. Examples of traffic offences are failing to wear a seatbelt, overtaking on a solid line, failing to stop at a stop sign, texting while driving and so on.
  • A person can be given a notice or summons to appear in court on a specific date or to pay an admission of guilt fine. If s/he is found guilty or pays an admission of guilt fine, s/he will incur a criminal record on his/her name.

When is it a criminal offence to speed?

  • It is a criminal offence to exceed the prescribed speed limits. The general speed limits are set as follow (however, this may vary depending on speed signs along the road):
    • 60 kilometres per hour on a public road in an urban area (the region surrounding a city or town);
    • 100 kilometres per hour on a road outside an urban area;
    • 120 kilometres per hour on a freeway.
  • a person who is found guilty of speeding could face up to a maximum of three years’ imprisonment.

When is it a criminal offence to drive under the influence of alcohol?

  • It is a criminal offence for a person to drive a vehicle or occupy the driver’s seat of a motor vehicle (while such vehicle’s engine is running) on a public road while being under the influence of alcohol. The following specific limits will apply:
    • Blood test: the concentration of alcohol may not be more than the limit of 0.05 gram per 100 millilitres.
    • Breathalyser test: the concentration of alcohol may not be more than the legal limit of 0.24 milligrams per 1000 millilitres.
  • A person cannot refuse to provide a blood or breath sample when requested to do so by a police official. The people who are authorised to extract blood are medical officers of a prison, a registered medical practitioner or a registered nurse.
  • If the blood or breath samples are taken within two hours after the time of the alleged offence and the alcohol level is above the specified limit, it will be presumed that it was above the specified limit at the time that the offence was committed. If a person is found guilty of driving under the influence of alcohol, s/he could face a fine or a maximum of six years’ imprisonment.

Is negligent or reckless driving a criminal offence?

  • It is important to know the difference between negligent and reckless driving:
    • Negligent driving means that the driver did not obey all the traffic rules of the road, for example, not keeping a safe following distance, talking on a cell phone while driving, ignoring road signs and so on.
    • Reckless driving means that the driver deliberately disobeyed traffic rules to such an extent that it undermines the safety of others in the process, for example, forcing his/her way through tense traffic, exceeding the speed limit at a very high speed, driving under the influence of drugs or alcohol and so on.
  • In order to determine whether a person will be charged and convicted of the mentioned offences, the court will look at the circumstances and the severity of each case.
  • For example, if a person has been seriously injured due to the negligent driving of another driver, the driver may be charged for reckless driving after considering the speed the vehicle was travelling before the accident occurred, whether the driver considered the safety of others using the road and so on.

Can a person’s licence be suspended if found guilty of these traffic offences?

  • Yes, a person who has been found guilty for speeding, driving under the influence of alcohol, or negligent or reckless driving can have his/her licence suspended:
    • six months for a first conviction;
    • five years for a second conviction; and
    • ten years for a third and subsequent conviction.
  • A person’s licence can only be suspended for speeding in the following circumstances, when s/he exceeds the speed limit:
    • by more than 30 kilometres per hour on a pubic road in an urban area; or
    • exceeds the speed limit by more than 40 kilometres per hour on a freeway, outside of an urban area.

How can a traffic fine be disputed?

  • If a person wants to dispute a traffic fine, s/he can send a representation letter to the relevant traffic department where the fine was issued or the prosecutor who deals with traffic offences at the relevant court. The representation letter must provide reasons why the person believes s/he should not be held liable and what s/he requests (for example, to reduce the amount).
  • All the circumstances of the matter, together with the reasons provided will be taken into account. If the representation was successful, the traffic fine can be reduced or cancelled. If the representation was unsuccessful, the traffic fine will remain valid.

Do you have any more questions?

What are the consequences of having a criminal record against my name?

  • A person will get a criminal record if s/he is accused of allegedly committing a criminal offence and either pays an admission of guilt fine, or is found to be guilty by a court.
  • Most commonly, a criminal record can affect any future employment opportunities as it will reflect on the South African Police Service Criminal Record Centre database.
  • For example, a person applying to be driver might struggle to be employed if s/he has previous convictions for speeding, driving under the influence of alcohol and negligent or reckless driving.

Is it possible to not get a criminal record?

  • In certain instances, it is possible to undergo a pre-trial diversion programme. For example, if a person is a first-time offender of a minor criminal offence (such as speeding) and shows genuine regret, the prosecutor has the discretion to agree to a diversion programme being completed. This means that there will be no criminal trial where a person can be found guilty and s/he cannot get a criminal record.
  • The purposes of diversion are to rehabilitate a person who is charged with allegedly committing a criminal offence, to place him/her back in society, to prevent him/her from committing criminal offences in the future and to avoid him/her getting a criminal record. Diversion can be seen as an alternative to punishment.
  • A diversion programme may consists of counselling, community service and so on.
  • The prosecutor can be approached to enquire whether diversion will be possible, depending on the circumstances of each matter.

What about AARTO?

  • The Administrative Adjudication of Road Traffic Offences Act (“AARTO”) deals with certain traffic infringements in a non-criminal manner.
  • This means that that a person will get notice of the alleged traffic infringement and the fine payable, which will be clearly marked as an AARTO infringement notice.  
  • AARTO infringement notices can be delivered in three different ways:
    • in person by a traffic officer or police official, for example, if pulled over;
    • written out and placed on a vehicle’s windscreen for parking infringements;
    • sent by registered post.
  • If a fine is paid under AARTO, it will not lead to a criminal record.



How can LegalWise assist you?

Should you require an explanation of your rights on this topic, please contact your nearest Branch.

LEGAL CONTENT DISCLAIMER:

The information contained on this website is aimed at providing members of the public with guidance on the law in South Africa. This information has not been provided to meet the individual requirements of a specific person and LegalWise insists that legal advice be obtained to address a person’s unique circumstances. It is important to remember that the law is constantly changing and although LegalWise strives to keep the information up to date and of a high quality, it cannot be guaranteed that the information will be updated and/or be without errors or omissions. As a result, LegalWise, its employees, independent contractors, associates or third parties will under no circumstances accept liability or be held liable, for any innocent or negligent actions or omissions by LegalWise, which may result in any harm or liability flowing from the use of or the inability to use the information provided.



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