An advocate says Durban authorities may be using scare tactics to get motorists to pay traffic fines by sending out summonses by post and serving them through an illegal process.
Durban authorities may be using scare tactics to get motorists to pay traffic fines by sending out summonses by post and serving them through an illegal process. Check your summonses - do you have one of these documents?
CAR magazine Legal Logbook correspondent and advocate Don Smart has pointed out that he has seen three of these documents which, in his opinion, have been sent out in an irregular manner.
Smart said the documents were headlined 'summons in criminal case', but they had been sent through the post, which meant they had not been served in terms of the requirements of the law.
"The legal version must be served in person to either the offender or, if they are not there, to a person over the age of 16 (or apparently older than 16) either at the accused person’s work or residence." He added that anything sent by post was merely a letter.
"These documents are in fact a ‘summons’ to appear in court as opposed to the ‘Notice Before Summons’ (or Section 341 Notice) that are sent by post. The authorities have deleted or left out the line that usually appears on a summons that indicates that if you do not respond or pay the fine you could be arrested and sentenced to a fine or imprisonment. It also does not refer to any section of the Criminal
Procedure Act," said Smart.
"The document should include this detail so that it is clear under what authority it has been issued and the recipient is accordingly aware of his or her rights."
He said the public was concerned that these "legal" documents served through the post may not reach them and could later lead to their arrest for failing to comply.
The KwaZulu-Natal Director of Public Prosecutions said he did not find anything wrong with the "summons" issued by the Durban Clerk of the Court. The director stated: "Obviously, a 'notice before summons' is what it purports to be and there is no indication on such notice of a court date and the only risk of arrest is if a proper summons is properly served."
Smart said that this was not intended as a “notice before summons” and that a court date was stipulated on the document. He also said you could not pay an admission of guilt on "a notice before summons", but only a fine so that a summons is not issued and you are not prosecuted. In the case of these documents, they are issued by the Clerk of the Court on the instruction of the prosecutor and provision is made for the payment of an admission of guilt fine. A "notice before summons" (under section 341) is not issued by the Clerk of the Court but by the respective Traffic Authorities.
Smart said that traffic authorities know that more than 80 per cent of people will pay an admission of guilt fine out of fear of being arrested or stopped at a road block.
"Those who have received a summons by post would be justified in not responding to it and cannot be arrested, nor can they be arrested at a road block ‘for outstanding fines’ as a proper summons has not been served, so a warrant could not be issued," said Smart.
Smart said he was not suggesting that motorists should not pay fines if they were guilty. "But scare tactics should not be used to get motorists to pay fines and court officials should follow the correct procedure."
If you have received a summons by post please notify CARtoday.com at [email protected] as motorists have called for further action to stop this practice.
The summons issued by the Durban Clerk of the Court is yellow and the words "SUMMONS IN A CRIMINAL CASE" appear in bold at the top of the document. On the reverse side, reference is made to Section 51 of the Criminal Procedure Act for the payment of admission of guilt.
Original article from Car