Van Rensburg v City of Johannesburg

• Jurisdiction: South Africa
• Judge: Horwitz AJ
• Judgment Date: 21 November 2007
• Counsel: E Theron for the plaintiff. S Bunn for the defendant.
• Docket Number: 14572/04
• Court: Witwatersrand Local Division

Horwitz AJ:

Traffic law enforcement, no less than other forms of law G enforcement, is extremely important for society to function in a well-ordered manner. Allied to this is the need to ensure that people who drive on our roads not only obey the rules thereof but, if they disobey those rules, they have respect for, and heed, those procedural laws which are essential to bring the wrongdoers to book. The particular law that I have H in mind is that which obliges an offender to attend court on a specific day to face prosecution for an offence that he or she is alleged to have committed or, if the offender prefers, to admit guilt, pay the prescribed fine and thus avoid the need to suffer the inconvenience of having to spend a few hours in court.

I To secure compliance with what I have referred to as the procedural laws, the City of Johannesburg, through the medium of its Metro Police Division, has resorted to the procedure colloquially referred to as a roadblock. Its prime purpose, so it would seem, is to enable police officers to check the details of drivers against official records maintained by the traffic department and the local magistrates' court and thereby J ascertain whether drivers, who pass through the particular roadblock,

Horwitz AJ

have any unpaid fines recorded against their names, for which they have A been summoned to appear in court, and have failed to heed the summons or summonses. If the investigation yields a positive result, that is, that there are recordals against the name of a driver, the latter is then arrested, imprisoned at one or other police station and from there taken to court to answer the original alleged traffic violation and a further B charge of contempt of court.

A roadblock is a notoriously unpopular procedure, because of the inconvenience that it causes, particularly at peak times. It is the bane of every busy motorist's hectic life as he or she confronts endless lines of slow-moving traffic as they wend their way along congested arterials. C Nevertheless, according to the authorities, it does achieve its purpose and unless and until someone comes up with a more viable and less frustrating alternative, it seems that it is something that the motorised folk of (at least) this city are going to have to live with. (It is not my function to consider whether the operation is lawful or not.)

There are obviously cases in which people are going to be properly D caught for not having paid fines and not having obeyed the alternative directive contained in the summons to appear in court on the appointed day. They may have blithely chosen to ignore the summons or they may in the mean time genuinely have forgotten about it. Then again, because no system is foolproof, there may be instances where a warrant of arrest E has wrongly been issued against a person for not having appeared in court in circumstances in which the particular individual might have paid the fine or in which the summons was in fact not served on him or her. To obviate instances of persons being wrongly accused of, and consequently being arrested and detained at a roadblock for, having ignored F a summons, the defendant, in the guise of its Metro Police Department, put in place quite an elaborate system aimed at providing police officers who man roadblocks with accurate on-the-spot information which can almost immediately be passed on to the alleged offender. The latter would then be in a position to contest the allegation, if the circumstances indicate that he or she is not guilty of the alleged wrongdoing. This G procedure was fully described to me during the trial by one Sergeant Botolo of the Metro Police. He testified that since 15 June 2003 (the date of the incident to which this trial relates, when the plaintiff was arrested for having allegedly ignored five summonses for traffic violations) the City has even improved on the system of safeguards aimed at reducing H inconvenience to motorists and avoiding instances of unwarranted arrests.

The system of safeguards appears to me to have been a most efficient one. The problem that gave rise to the plaintiff's claim (an action for damages against the defendant for unlawful arrest and imprisonment), I however, lay not with the system itself, but rather with the individual Metro Police officers, employees of the defendant, at the scene of the roadblock, who simply did not do their job properly and, indeed, were guilty of a gross abuse of their powers and dereliction of duty. It is, ironically, the very quality of the safeguards aimed at avoiding instances of wrongful arrest and detention that supported the plaintiff's version J

Horwitz AJ

A regarding his arrest and detention by the Metro Police on that day because, if the procedure had been meticulously followed, it is inconceivable that the plaintiff would have been detained after his initial arrest. (I use the notion of support for the plaintiff's version in the limited sense that one might have looked for support for it, if it were necessary. As B matters transpired at the trial, the defendant did not tender any meaningful evidence to gainsay the plaintiff's version, which was beyond any reproach. The plaintiff was clearly a truthful witness and although counsel for the defendant did not go so far as to concede the merits, he preferred to direct most of his attention to the issue of quantum. In C adopting that approach he was both right and fair.)

And now for the merits of the case. I commence with an outline of the procedure which the defendant originally (that is, prior to the plaintiff's arrest) implemented. Although Sergeant Botolo's evidence was very detailed and elaborate it is unnecessary for me to recount it fully. The D following summary of his evidence will suffice.

If a person were confronted at a roadblock with an allegation that he or she had failed to obey a traffic summons, the police on the scene were able to make immediate contact with one of their colleagues at the relevant magistrates' court, stationed in the office in which warrants of arrest were kept. This last-mentioned official also had immediate access E to the original summons - the one to which the warrant of arrest related - with the result that this official was able to immediately verify whether the summons had been served on the person sought to be detained and, if the summons had not been personally served on him or her, the official at the magistrates' court was able to see from the F summons upon whom it had been served. This official would then have been able to pass all the relevant information on to the police officials at the scene of the roadblock.

The plaintiff is a 74-year-old gentleman, a retired accountant, a very decent person, dignified, courteous, soft-spoken and urbane. It was G about 11:00 on Sunday 15 June 2003 and he was on his way to the Vereeniging airfield. When he was in the vicinity of Eikenhof he was confronted with a roadblock. A male Metro Police official indicated to him to pull his motor vehicle off the road and to stop. He heeded this instruction...