Speed­ing rul­ing could open class action door

Weekend Argus (Saturday Edition) - - FRONT PAGE - BIANCA CAPAZORIO

A JO­HAN­NES­BURG court rul­ing that a speed­ing fine had been is­sued il­le­gally, could lay the coun­try’s law en­force­ment agen­cies open to a mas­sive class action law­suit.

Last Au­gust Jo­han­nes­burg driver An­thony O’Moore was charged with reck­less and neg­li­gent driv­ing af­ter be­ing pulled over at a mo­bile speed trap. He was held for 14 hours by metro po­lice who ig­nored his protests that he was di­a­betic and had been rush­ing to fetch an emer­gency in­sulin in­jec­tion for him­self when pulled over.

The Rand­burg Mag­is­trate’s Court this week ruled cor­rect pro­ce­dure had not been fol­lowed by the metro po­lice in set­ting up and test­ing the mo­bile units.

O’Moore’s at­tor­ney, An­ton Burger, said the rul­ing es­tab­lished an im­por­tant prece­dent, and meant the jus­tice sys­tem could face a ma­jor class action law­suit for peo­ple caught in sim­i­lar speed traps.

On the day of the O’Moore rul­ing, the State de­clined to pros­e­cute any fur­ther speed­ing charges at the Rand­burg court.

Burger said the O’Moore judg­ment was given on the ba­sis of an ear­lier rul­ing. “In the State ver­sus Sny­man in 2001 it was found that the prose­cu­tion guide­lines must be fol­lowed.” Fail­ure to do so could re­sult in ev­i­dence be­ing in­ad­mis­si­ble in court.

Among the stip­u­la­tions of the Tech­ni­cal Com­mit­tee of Stan­dards and Pro­ce­dures guide­lines en­dorsed in the Sny­man judg­ment stip­u­lates are:

A valid cal­i­bra­tion cer­tifi­cate must be avail­able on the site for each cam­era, along with the op­er­a­tor’s com­pe­tency cer­tifi­cate. The driver must be given the op­por­tu­nity to re­view both the speed read­ing and the cer­tifi­cates.

The cam­era must be mounted on a “firm and sta­ble sur­face” and, if mounted in or on a ve­hi­cle, that ve­hi­cle must be sta­bilised.

Test­ing of the in­stru­ment must be done be­fore and af­ter ev­ery shift, and ev­ery time the in­stru­ment is moved.

A per­mit to con­duct speed trap­ping in a spe­cific area must be ob­tained from the Na­tional Pros­e­cut­ing Au­thor­ity.

Burger said that in the O’Moore case there was no cer­tifi­cate avail­able to prove the cam­era had been prop­erly cal­i­brated within the pre­ced­ing six months; the mo­bile units had not been prop­erly tested prior to be­ing used; and the pho­to­graphs record­ing the al­leged speed­ing were not up to stan­dard.

He said: “The rul­ing will af­fect peo­ple in the en­tire coun­try. Th­ese peo­ple were ar­rested, they paid fines, in some cases in ex­cess of R5 000 or R6 000. Some of them spent the night in jail and had to pay bail. There is po­ten­tial for an enor­mous class action law­suit.”

Na­tional Trans­port Depart­ment spokesman Lo­gan Maistry said the depart­ment would “study the rul­ing to de­ter­mine whether or not the ac­quit­tal was based purely on the pro­vi­sions of the Tech­ni­cal Com­mit­tee’s guide­lines”.

Th­ese were “op­er­a­tional guide­lines only and non-com­pli­ance does not in­flu­ence the ac­cu­racy or reli­a­bil­ity of meas- ure­ment re­sults”.

He said it “does not au­to­mat­i­cally fol­low that all other sim­i­lar cases must be with­drawn” and if need be, af­ter con­sul­ta­tion with the Na­tional Pros­e­cut­ing Au­thor­ity and the Jus­tice Depart­ment, they would recharge all of­fend­ing mo­torists.

Den­nis Jack­son, as­sis­tant na­tional di­rec­tor of the Jus­tice Project of South Africa, which cam­paigns against the use of mo­bile speed cam­eras on the ba­sis of un­re­li­a­bil­ity, said the is­su­ing of speed­ing fines was a “money-mak­ing scheme”.

Jack­son said that while Jo­han­nes­burg was known for the “un­scrupu­lous is­su­ing of speed­ing tick­ets”, Cape Town was “just as bad.”

Jack­son worked in traf­fic con­trol for around 30 years.

Cape Town traf­fic spokes­woman Merle Lourens said that 124 000 traf­fic vi­o­la­tions were reg­is­tered in the city each month, of which 78 000, or around 60%, were speed­ing vi­o­la­tions. Speed­ing fines net the city an av­er­age of R8.2 mil­lion a month.

COVER-UP: A file pho­to­graph from 2004 shows this traf­fic of­fi­cer hid­ing un­der a tar­pau­lin on the West Coast road. He was so well hid­den that he left many mo­torists baf­fled. The pic­ture was taken by a mo­torist who tracked him down af­ter re­ceiv­ing sev­eral fines on the road.

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