CAN I BE PROSECUTED FOR BREAKING THE SPEED LIMIT?

Mandie is cruising along at 31 km/h over the speed limit in an attempt to keep up with the rest of the cars on the road. She thinks she is simply going with the flow of the traffic when suddenly she sees flashing lights in her rear-view mirror. Mandie does not take traffic laws seriously and has come to accept traffic fines as a “fact of life”. She regards transgression as bending the rules rather than the commitment of a crime.

Months later, when the traffic notice arrives in the post, Mandie prepares herself for a speeding fine but is shocked when the notice informs her that she has to appear in court. Unknown to Mandie and most other South Africans, an amendment to Section 35 of the National Road Traffic Act (the Act) was enacted in 2010. This means the driver of a motor vehicle that exceeds the maximum speed limit by more than 30 km/h may be criminally prosecuted and that, if convicted, his/her driver’s license may also be suspended.

This provision could be disastrous for many road users. Not only is Mandie required to appear in court, but she could also face the prospect of having her license suspended and, what’s more, receive a criminal record.

Section 35 of the National Road Traffic Act:

  1. In terms of Section 35(1)(aA)(i) and (ii) the phrase “in excess of” means a speed of 31 km/h or more over the speed limit in an urban area and a speed of 41km/h or more over the speed limit outside an urban area or on a freeway.
  2. If you commit any one of these offences and are stopped at the time of the offence, you will be arrested. You will accordingly be released on bail to appear in court on a stipulated date and time.
  3. If you are not stopped at the time, you will receive a notification in the post that you will be summonsed to appear in court in a “No Admission of Guilt” matter.

The consequences

The notice will inform you that a summons in terms of Section 54 of the Criminal Procedure Act will be issued and served on you. Failure to appear in court on a criminal summons will lead to a warrant for your arrest being issued.

The Act requires a person to be convicted of an alleged offence before legal consequences follow. Since speeding as described above is a criminal offence, the State will still have to prove beyond a reasonable doubt that a person is guilty of such offence.

Furthermore, the suspension of your driver’s license for the period stipulated in the Act is not an optional requirement. It is a mandatory suspension period. One’s license will be suspended for six months in the case of a first offence. Where a person is found guilty of a second offence, his/her license may be suspended for five years and, in the case of the third or subsequent offence, for ten years.

Although many judicial officers (magistrates) have interpreted Section 35(3) as giving them discretion about suspension of your license, it does not mean that if suspending your driver’s license will prejudice you, your license will not be suspended.

Conclusion

The simple principle is that speeding can have dramatic consequences, so do not speed under any circumstances.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

WHEN CAN SOMEONE BE RELEASED ON BAIL?

People are often outraged when they hear of accused persons who have been released on bail. There are several factors to be considered when deciding whether someone should be let out on bail or not.

Who is allowed bail?

According to section 35(1)(f) of the Constitution[1] everyone who is arrested for allegedly committing an offence has the right to be released from detention if the interests of justice permit, subject to reasonable conditions. This provision sets out that the law cannot take away an innocent person’s freedom arbitrarily, but recognises that in certain circumstances it may be in the interests of justice to take away or limit this freedom.[2]

When can bail be refused?

The next question that arises is how we know when the refusal to grant bail is in the interests of justice. According to section 60(4) of the Criminal Procedure Act[3] (CPA), the interests of justice do not permit the release from detention of an accused where one or more of the following grounds are established:

  1. Where there is the likelihood that the accused, if released on bail, will endanger the safety of the public or any particular person or will commit certain offences;
  2. Where there is the likelihood that the accused, if released on bail, will attempt to evade trial;
  3. Where there is the likelihood that the accused, if released on bail, will attempt to influence, intimidate or conceal witnesses or destroy evidence;
  4. Where there is the likelihood that the accused, if released on bail, will undermine or jeopardise the objectives or the proper functioning of the criminal justice system, including the bail system;
  5. Where there is the likelihood that the release of the accused will disturb the public order or undermine the public peace or security.[4]

In considering whether the grounds in (a) to (e) above have been established, various factors, which are set out in Sections 5 – 9 of the CPA, may be taken into consideration, these include the following:

  1. The degree of violence towards others implicit in the charge;
  2. The accused’s ties to the place at which he or she is to be tried;
  3. Assets and travel documents held by the accused;
  4. The accused’s relationship with the witnesses and the extent to which they could be influenced;
  5. Whether the accused supplied false information during his or her arrest or bail proceedings;
  6. Any previous failure to comply with bail conditions or indications that he or she will not comply with any bail condition;
  7. Whether the nature of the offence or the circumstances under which the offence was committed is likely to induce a sense of shock or outrage in the community; and
  8. Whether the shock or outrage of the community might lead to public disorder if the accused is released.[5]

The court decides whether the accused should be let out on bail by weighing the interests of justice against the right of the accused to his or her personal freedom and in particular the prejudice he or she is likely to suffer if he or she were to be detained in custody, and must take into account, inter alia, the period for which the accused has been in custody; the probable period of detention until the end of the trial if bail is not granted; the reason for any delay in the trial and any fault on the part of the accused; any impediment to the preparation of the accused’s defence due to the detention of the accused, and the accused’s state of health.[6]

When dealing with Schedule 5 and 6 offences the accused will be detained in custody unless the accused can show the court that it is in the interests of justice or that exceptional circumstances exist which permit his or her release, respectively. [7]

Conclusion

It’s clear that the court must weigh up many factors against each other and although we do not always understand why accused persons are released on bail, anyone would want a fair bail application if they found themselves in a similar position.

References:

  • The Constitution of the Republic of South Africa, 1996
  • J Chaskalson & Y De Jong – Criminal (In)Justice in South Africa, 2009:86
  • The Criminal Procedure Act 51 of 1977

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)