A legal interpretation of the spot fine ruling

A police officer is theoretically entitled to arrest any person who commits an offence in his presence

In light of Justice Francis Bere's comments on Monday, widely reported by the daily newspapers the following day, about the legality and/or illegality of the ZRP demanding payment of spot fines, we have asked a legal practitioner to write the following article for public consumption.

For professional reasons, the writer requests to remain anonymous.

Can police retain fine money?

All revenue received by the State, from whatever source, must be paid into the Consolidated Revenue Fund (CRF) unless otherwise provided for in an Act of Parliament. (See section 302 of the Constitution.)

There appears to be no legislation that allows revenue from fines to be used directly to fund the police. The Commissioner-General of Police has no legal power to divert fine revenues into the police coffers instead of into general revenue.

SEE HIGH COURT RULING ON HIGH COURT

Fines imposed by the normal courts are paid into the CRF. The Customary Law and Local Courts Act (Chapter 7:05) specifically provides in Section 27 that all fines paid to the person presiding over a local court or any officer of court are paid into the CRF.

This provision was, no doubt, inserted to clarify that those courts are public entities and that fines paid to their officials are monies paid to the State.

Why should "spot fines" be treated any differently?

Spot fine system

The way spot fines are imposed at roadblocks is not allowed for in the Criminal Procedure and Evidence Act (Chapter 9:07). No other legislation allows for deposit fines or spot fines and so the only legal way they can be imposed is in terms of the CP & EA.

The correct procedure is as follows:

Where a person is alleged to have committed an offence and a peace officer (which term includes certain officials other than police officers) on reasonable grounds believes that a magistrates' court would, if the offender were convicted, not impose a fine of more than level three, the peace officer hands the alleged offender a written notice, commonly referred to as a "ticket" (Section 141 of the CP & EA).

The ticket effectively doubles as a summon and gives the offender the option of (a) admitting his guilt and paying a fine or (b) appearing in court on a date stipulated on the ticket.

The ticket is usually handed to the accused immediately after the offence is observed.

The form of the ticket is laid down in the Criminal Procedure (Forms) Rules 1970 (RGN 196 of 1970). The form handed out at roadblocks nowadays does not comply with those rules.

Among other things, the ticket should also contain an endorsement to the effect that the alleged offender can, on or before a date specified on the ticket (usually earlier than the date on which the accused would be required to appear in court), admit his or her guilt and pay a fine, which is specified on the ticket, without having to appear in court.A copy of the ticket should be forwarded to the clerk of the court at which the offender is called upon to appear (Section 141.3).

It may well suit the offender to pay the fine on the spot and in principle there is nothing wrong with allowing him or her to do so.

If he or she elects to pay the fine (whether on the spot or later at a police station), the only legal procedure is that he or she signs an "admission of guilt" form and pays the assessed fine (CP & EA Section 356.1).

This separate document should also be forwarded to the clerk of the relevant court and becomes part of the records of the court. The document should then be laid before the court.

In practice, the magistrate would no doubt deal with these matters in chambers, not in open court.

The magistrate must then either (a) convict the offender of the offence charged and sentence him or her to a fine not exceeding level three or (b) endorse the document to the effect that he or she refuses to convict in terms of Section 356.

If the magistrate refuses to convict, the deposit fine must be refunded to the alleged offender.

Even if the magistrate does convict the offender, he or she may set aside the conviction later (Section 356.11).

For the purpose of deciding whether to convict the accused or determining the amount of the fine to be imposed, the court may have regard to statements relevant to the offence which have been given to the police by any person having knowledge of the offence (Section 356.9).

This clearly includes the offender. Consequently, if the offender wishes to place mitigatory or other facts before the magistrate, he should, when signing the admission of guilt and paying the deposit fine, hand to the police, for onward transmission to the magistrate, a written statement containing the facts he wishes the magistrate to consider.

This may not be practical at a roadblock, of course, but there is no reason why the offender should not later be entitled to write a letter to the magistrate (copied to the police).

The procedure being followed at roadblocks now does not provide for any judicial oversight at all, cursory though that judicial oversight may be.

A conviction by a magistrate in terms of Section 356 constitutes a previous conviction which may be taken into account if the offender is subsequently convicted of another offence: S v Gore 1999 (1) ZLR 177 (H).

This would not apply to the procedure currently followed at roadblocks: fines paid to the police do not constitute convictions, since a magistrate has not convicted the offender.

The police may say that they do not have the resources to track down, arrest and take defaulters to court. That is no justification for circumventing the clear provisions of the law.

Maximum allowable ''spot fine''

The maximum fine allowable under the CP & EA is level three (currently US$20).

In S v Babbage HB-157-12, Cheda J (Kamocha J concurring) held that the police could impose a fine of level five (US$200) on a person who was driving while using a mobile phone, in contravention of Section 16B(1) of the Road Traffic (Rules of the Road) Regulations 1974 (RGN 308 of 1974, as amended by SI 299 of 2002).

The court's reasoning was that the regulations did not authorise the police to refer persons contravening Section 16B(1) of the regulations to court for trial. Any practice that had been adopted to refer such cases to court was outside the powers conferred on the police and prosecuting authorities by statute or common law and was, therefore, ultra vires and unlawful.

The court held that where a motorist is caught using a mobile or cellular phone, he should be issued with a ticket to pay a fine as stipulated in level 5, the ticket should give the motorist a reasonable time within which to pay the fine unless the offender elects to pay the fine on the spot, and the police are, however, empowered to use their powers as they deem fit, depending on the motorist, for example, if he is a foreigner or if he has no acceptable identification which will make it difficult for him to be traced in the event of a default in paying the fine.

With respect, this decision is clearly erroneous. Invitations to pay deposit fines are lawful only under Section 141 of the CP & EA, which limits the maximum deposit fine to level three.

The procedure for payment of a deposit fine is set out in Section 356 of the Act, which also refers to a maximum deposit fine of level three.

It would follow, therefore, that a "ticket" may not be issued where a fine of over US$20 is warranted; the accused must go to court.

The police do not need any authority to refer an offender to court if they believe that a fine of over level three is warranted. Any payments to the police of fines higher than level three are unlawful.

Security roadblocks

Under Section 34 of the Public Order and Security Act (Chapter 11:17), searches may be carried out of motor vehicles if a police officer of or above the rank of inspector "considers it reasonably necessary in the interests of the public safety, public order or public health to exercise without warrant the powers referred to in subsection (1) in respect of vehicles, vessels and persons in or upon such vehicles or vessels anywhere in Zimbabwe".

Section 34(1) provides: "A police officer may stop and, without warrant — (a) search any person, vehicle or vessel entering or leaving Zimbabwe and any person in or upon such vehicle or vessel; and

"(b) seize any thing in circumstances where there are reasonable grounds for believing that the search or seizure is necessary in the interests of public safety, public order or public health or for the prevention, investigation or detection of a criminal offence."

So a security roadblock is lawful in those circumstances.

Whether it would stand legal scrutiny afterwards is another matter.

The police would have to show there are reasonable grounds for believing that the search is necessary for the reasons set out in Subsection 1.

There obviously are situations where the police are genuinely carrying out searches for one of the reasons listed in Section 34(1), but often the police just demand to search without any particular reason being given.

Checking for defects

Most roadblocks, though, do not purport to be security roadblocks.

Some are mounted by the Highway Patrol; others are erected by local police stations (in some cases, these appear to be well outside the particular police station's area of responsibility); and others are set up to mount speed traps.

Motorists, particularly commuter buses and commercial transporters, get routinely stopped and inspected for alleged defects.

These roadblocks are probably legally justified in terms of Section 72 of the Road Traffic Act (Chapter 13:11), which sets out the right of the police to stop vehicles and ask drivers for a form of identification, and to check the vehicle for defects, overloading and so on.

The right to demand to see driver's licence is set out in Section 74.

The sheer number of such roadblocks, however, would indicate that the bulk of them are not bona fide.

There can be no good reason to have a road-block every 15-20km, as sometimes occurs.

Search at roadblocks

Searches of vehicles are not permitted under the Road Traffic Act, except in terms of Section 72 (ie checking for defects).

However, searches of vehicles or any persons in or on them might be justifiable under the Criminal Procedure and Evidence Act (Chapter 9:07).

Broadly speaking, there must be a valid search warrant, or the searching officer must act in terms of Section 51 of the Act.

In this situation, the person concerned must consent to the search or the police officer must, on reasonable grounds, believe that a warrant would be issued to him if he applied for one; and that any delay in obtaining a warrant would prevent the seizure or defeat the object of the search. A general, non-specific warrant is not valid: the search must be for something specific or in relation to a specific suspected offence; so no police officer could say that he believes that a warrant would be issued for a general search in the hope of digging up something.

Arrest at roadblocks

Under Section 25 of the Criminal Procedure and Evidence Act (Chapter 9:07), a police officer would theoretically be entitled to arrest any person who commits an offence in his presence.

This would include driving a vehicle with a defect that is prohibited by the relevant legislation, even the most trivial.

This apparently wide power of arrest does not mean that arrest is something that should necessarily be resorted to.

The Supreme Court has made this abundantly clear on numerous occasions, and an unnecessary arrest could render the individual police officer, as well as the State, liable for delictual damages.

See, for example, Paradza v Minister of Justice S-46-03, where it was held that the lawmaker did not intend that the power given a peace officer to arrest is always, or even ordinarily, to be exercised.

He has a discretion as to whether or not to arrest the suspect.

Where there is no likelihood that the person would abscond, interfere with State witnesses, or commit further offences, the decision to arrest, detain and remand him would be unreasonable.

Incidentally, it might be relevant to mention the issue of whether, when you are stopped at a roadblock, you have been "arrested".

Irrespective of the fact that the police officer might write "arrested" on the form, and even if technically the police officer has the right to arrest you for the trivial offences that only merit a level three fine, merely being stopped at a roadblock does not constitute arrest.

Under Section 41(1) of the CP & EA, "In making an arrest, the peace officer or other person authorised to arrest shall actually touch or confine the body of the person to be arrested, unless there is a submission to the custody by word or action."

Seizure of vehicles at roadblocks

As well as threatening arrest, the police often, or so anecdotal evidence has it, resort to threats of detaining or seizing the driver's vehicle in order to coerce the driver into paying a spot fine rather than paying the fine later at a police station.

Under Section 49 of the Criminal Procedure and Evidence Act, "The State may, in accordance this part, seize any article - (a) which is concerned in or is on reasonable grounds believed to be concerned in, the commission or suspected commission of an offence, whether within Zimbabwe or elsewhere; or

"(b) which it is on reasonable grounds believed may afford evidence of the commission or suspected commission of an offence, whether within Zimbabwe or elsewhere; or (c) which is intended to be used or is on reasonable grounds believed to be intended to be used in the commission of an offence."

Seizure normally requires a warrant to have been issued in terms of Section 50 of the Act, but an article may be seized without warrant if the affected person consents to the seizure or if the police officer believes, on reasonable grounds, that a warrant would be issued to him if he applied for one; and that any delay in obtaining a warrant would prevent the seizure (Section 51).

It is hard to imagine how a police officer could entertain such a belief in respect of a motor vehicle at a roadblock, as no magistrate or justice, acting reasonably, would issue a warrant for the seizure of a motor vehicle in connection with a minor offence such as not having a reflector. Consequently, threats to seize the offender's vehicle would be unlawful.

Notice to discontinue use of vehicle

The police are entitled, under Section 73 of the Road Traffic Act, to issue a "notice to discontinue use" of a vehicle which does not comply with the requirements of the Act (and any regulations made thereunder).

Such a notice may allow the vehicle to continue: "(i) to reach any specified place or on a journey undertaken for the purpose of obtaining a certificate of roadworthiness; or (ii) for a specified period or subject to limitations relating to speed or route or otherwise."

This power does not seem to be used at all, clearly unroadworthy vehicles, with dangerous loads, generally seem to be allowed to continue after the driver has paid a spot fine at a roadblock.

Conclusion

All in all, it is difficult to avoid the impression that the roadblocks and spot fines are just a revenue-raising exercise for the police, and that scant concern is shown about real road safety issues, such as vehicles with poor or no lights being driven at night, heavy vehicles with insecure loads such as bricks (which routinely fall off onto the road, causing great danger to other road users), grossly overloaded vehicles, the non-use of seatbelts and so on.