Can traffic officers arrest you for forgetting your driver’s licence?

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JEREMY MAGGS: A routine traffic stop became a frightening experience for one motorist when he was threatened with arrest because he did not have his physical driver’s licence with him.

Now we know this person’s identity, but he has asked us to withhold his name, and he joins us now to explain what happened and why the encounter left him confused about both his rights and the powers of the officers involved.

So welcome, and thank you very much for joining us. You were threatened with arrest. What happened and what exactly did the officer say?

MOTORIST: Thank you so much. On Wednesday morning, 29 July, at around 9:00 in Gezina, Pretoria, I was stopped at a traffic light. So I make a turn and immediately I see two blue lights behind me. It was two gentlemen in balaclavas on motorbikes.

My worry now is why am I being stopped just randomly for turning, so immediately I comply. I find a safe spot. I quickly park. The officer pulls to my right and said, sir, are you aware you actually skipped the red robot? That’s where the incident starts.

I said, what do you mean? A red robot? I stopped and I just turned. He said, no, no, no, you actually took off before it turned green. I thought, okay, here comes a bit of trouble, but nonetheless, I’m late for a meeting, so let me compose myself and not, almost, get into an altercation.

So I simply said, okay, officer, if that is the case, you are the interpreter of the situation, I do apologise. However, maybe it’s because I am in a bit of a rush and maybe I have faltered by skipping the red robot, as you say. So I’m really just trying to comply here.

Given my incidents with police in the past, I know that once the matter gets aggravated, you are on the back foot throughout the entire discussion. Now the interesting part comes. The officer said, sir, I need your driver’s licence. Immediately to my panic – I was stopped in a roadblock yesterday, so I know for a fact my driver’s licence is on me – I look for it in my wallet. It’s not there. I look for it in the cubby hole, I don’t see it. I look for it in my little handbag, it’s not there.

Immediately, I’m getting agitated. [I thought], okay, calm down. I look in the car and say, officer, please just bear with me for two minutes. I just need to tell my colleague that I am running late for a meeting. I told them I’m turning the corner and I’m literally down the road, so let me just inform them.

He said, to me, okay, do that. Quickly, I pull out my phone and I text my colleague, saying that I’m on the way, I’ve been stopped by cops. I leave it at that. I continue looking for the licence. After frisking the car, Jeremy, literally in panic for about close to four to five minutes of just searching the car, below the seats, everything.

I go to the passenger seat and then immediately I said, actually, there’s no need for me to go into this frenzy. Let me give him my ID, so I produce my ID, I hand it over to him. I said, sir, unfortunately, I can’t find my licence, but due to time constraints, could I please ask that you take my ID and you check my licence? It’s valid. I don’t have traffic infringements. I don’t have a suspended licence. I just happen not to have it in person.

What does the officer say? The officer said, sir, are you aware of the new Aarto (Administrative Adjudication of Road Traffic Offences) rules? Then I said, which one, the demerit system? He said, no, the demerit system is on pause. I said that I’m very much aware of the demerit system and aware that it’s being rolled out in specific municipalities. However, it’s been put forward for next year.

Read/listen: What every motorist should know about Aarto demerit points

So now, Jeremy, I think I can consider myself to be a bit of a well-informed South African citizen who complies with the law. In my profession, I deal a lot with public safety campaigns and things of this nature in interpreting policy law to simplify messaging to ordinary South Africans.

So now I’m in a bit of a tizzy. He said, are you aware that due to the new Aarto rules, when I stop you and you don’t have your licence on you, it is an offence. I said, an offence, what do you mean by an offence?

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His colleague then pulls out the book and both of them come to me and say, do you see this highlighted section? What driver’s licence code do you have? I said, Code 10. He said, if that’s the case, sir, the fines on the infringements for other stuff has gone up, but the most critical one in this moment is that I need to make an arrest.

I said, an arrest? Sir, please make it make sense, for what exactly? He said, no, the rule here says, you see on these columns – he shows me in the book – some charges have infringement, some others have offence.

If it’s written offence, we must make an immediate arrest and take you to the police station. I said, sir, not to argue with you but do you think that is the right interpretation of the law? That you need to arrest me for not having a licence in person, which is valid, and you can actually validate that on the phone?

He said, sir, unfortunately, I’m in a position where from our training, this is what we’ve been told. I said, what kind of training are you referring to? He said, we were actually in training about two weeks ago and we raised this thing.

Mind you, to the credit of the cop, he was not abrasive and he was not agitated, like trying to be aggressive. He was simply just saying, this is my interpretation, this is my understanding, and we both have to make an arrest. Therefore, can you please start to make arrangements.

Immediately, I take out my phone, Jeremy, I record a video for my colleagues. I said, colleagues, I am actually getting arrested by the cops, for not having my licence on me and I’m in a bit of a panic, but I don’t know, maybe I’ll call a lawyer. Then I hang up.

I said, perhaps conversations will also just inform me more about what is leading to this misfortunate position. I don’t want to call a lawyer. It’s going to cause a scene.

I said to the officer, sir, how can we first make this thing clear for me so that I know when I get to the police station, what am I going to be charged with so I can inform the person who may need to come fetch my car? Am I going to be detained? What is the procedure?

He said, sir, to be quite honest, if I have to take you to the police station, then I’ll hand you over, the police will have to process you and take it from there.

Read: Government spells out how Aarto will work

Now, immediately a few things then come to mind, Jeremy. One, I think any unlawful arrest immediately traumatised me, having been in altercations with the cops, but just generally knowing the kind of temperature that is experienced by South Africans, I said to the policeman, sir, are you not supposed to be serving and protecting rather than creating fear and intimidation? Because for me, that’s really the position I always ask with the police. I find that sometimes it gives them a bit of knee-jerk reaction to go into drastic punitive measures, unlike resolving through dialogue and conversation.

I said, I don’t want to miss work, I don’t want to end up with reputation damage, I don’t want to be in a financial loss by dealing with lawyers in relation to this situation. How can we make this thing sensible to me so I can relay that to the next person and know what position I’ve got myself into?

He said, we push back ourselves as the people who need to carry this thing out, and I find myself in a position where I’ve dealt with motorists who are not aware of the fact that the law has changed.

I said, but what information has been sent out to the public about what you are saying?

He said no, we ordinarily tell people, like now, when I have to make this arrest on the side of the road.

[That was] red flag number three. Why is there no public education about such things?

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So immediately, Jeremy, the situation escalated very quickly. Twenty-eight minutes later, the cop said to me, sir, I just feel like the next thing I have to go to court and then I find him myself having to prove the fact that you didn’t have your licence. And if you now deny it, then I must now … He said, sir, here’s your ID, good luck with your meeting, you can carry on.

That’s literally the only thing that allowed me to continue with my trip 30 minutes later, purely because the guy felt like, one, he doesn’t want to go to court for something that is not provable in law. I said, if I come to court and I produce my licence, and I say I had it on the day, it was just in my seat, then what do we do?

Then that just became, I think, the one thing that almost saved the day. But essentially that was the discussion with the officer.

JEREMY MAGGS: Thank you very much indeed. Now to what the law actually says. Motorists are required to carry their driver’s licence, but forgetting the card at home is not the same as never being licensed.

There’s also considerable confusion over whether an officer can arrest a driver, whether the licence can be checked electronically, and whether there is a 24-hour period in which to present the card at a police station.

I want to get some clarity now on what officers can and cannot do and what recourse our motorist now has. I’m joined in that respect by Road Traffic Infringement Agency spokesperson Monde Mkalipi.

Monde, must a motorist carry the physical licence card every time they drive?

MONDE MKALIPI: Yes, Jeremy. I think let’s please make this a point quite clear, in terms of Schedule 3 of the Aarto regulations, we have charge 1710 that says, if a motorist operated a motor vehicle whilst he or she did not keep a driving licence or a document or any other prescribed authorisation in the said vehicle, that is an infringement and that warrants a R1 000 fine.

But perhaps let’s also create a distinction here, Jeremy.

There is also another regulation or a charge that says, it’s 1707, that says if a motorist operated a motor vehicle without a driving licence issued to him or her or any document deemed to be a driving licence, then that becomes an offence.

So there are two things here.

The first one, the one that I indicated is we have a motorist not having a driving licence in his or her possession while operating a vehicle. That remains an infringement because in this instance, you have a motorist who has been issued with a driving licence but at that point in time, he or she does not have it in his or her possession.

That remains an infringement. But if the driving licence was never issued, that is an offence. Then the person needs to be arrested on the spot.

So in this particular case of the motorist who you interviewed earlier on, the gentleman does indicate quite clearly that he does have his driving licence, but he unfortunately does not have it in the vehicle at that time.

But he is able to prove that he has got a positive form of identification that traffic officers or police can use to check on the system if indeed he or she does have the driving licence.

So we have to be able to create that distinction, Jeremy, to say if it was never issued, and it cannot be proven that it was ever issued, then that it becomes an offence. The person needs to be arrested.

Read/listen:

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So in this instance, the poor gentleman, what should have happened here is that because he insists that he does have it but not in his possession at that time, then the officers should have perhaps checked on the system.

Yes, indeed, you do have it, but we are still going to issue you with a R1 000 fine, which he can still go forward and still dispute it.

But of course, perhaps it might not be a winnable matter because the law says the driving licence must be in your possession at the time you operate the vehicle, at the time you are stopped by the police or any officer of the law. So we should be able to create those two matters here, Jeremy.

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JEREMY MAGGS: In this particular case, did the officer either overreach or misinterpret the regulation by threatening arrest?

MONDE MKALIPI: I think because these Aarto regulations, Jeremy, are relatively new, and I think it’s quite important that we, as the Road Traffic Infringement Authority, do embark on quite an intensive public education drive that involves our own officers so that you are able to interpret these regulations quite accurately.

So perhaps in a way, there was a bit of a misinterpretation of the regulation, especially if the motorist is saying, yes, I do have it, but unfortunately, I can’t find it at the moment.

Because what could have happened is they could have checked if perhaps they had interpreted the regulation quite accurately to say, well, let us check if you do have it, but not in your possession at this time, then we are going to issue you with a fine.

Not to say if you don’t have it in your possession, then you are facing arrest. That is an incorrect interpretation of the regulation in this instance.

JEREMY MAGGS: In this particular case, would it also have been up to the officer’s discretion just to let that person go?

MONDE MKALIPI: Yes, it is quite important that they do use their discretion.

But at the same time, I think they should really stick to their role of enforcing the law, because if a person does not have the driving licence, and I think perhaps he should not have been stressed this much, because all that could have happened here was they could have just issued the gentleman with an infringement notice instead of threatening him to take him to the police station or with an arrest.

They could have just issued him with a 1710 charge fine and then he goes. Because we can say that, well, we do need to ensure that we engage people.

Read:

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Western Cape Aarto implementation suspended

But I think what you can also indicate, Jeremy, these regulations and these charges are still undergoing a review because Aarto, its expansion now is a relatively new phenomenon, as we have just indicated now a few weeks ago, that we’re expanding it to other municipalities.

So there is a process that is underway to review these regulations so that they are not open to misinterpretation.

They are also not open to abuse by anyone who is supposed to enforce them on the road.

JEREMY MAGGS: Do you think this particular incident was an isolated case, or have you heard of other similar experiences?

MONDE MKALIPI: Well, when we’re going through these regulations, I think there needs to be a few isolated incidences that we also need to look at.

That’s why we are saying there is a process of reviewing some of these regulations, so that they are not open to any form of misinterpretation by our colleagues, who are supposed to enforce them.

So it might not necessarily be an isolated incident. There could be a few of them popping up around, perhaps at the municipalities where Aarto is being implemented.

I think it’s a matter that we are looking at, as I’ve just said now, that we are reviewing some of these to ensure that there is an accurate interpretation and implementation of these charges by our officers on the road.

JEREMY MAGGS: Monde Mkalipi speaks for the Road Traffic Infringement Agency. Thank you very much indeed

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