Author: Gary Moore

Date: 4 October 2017

The National Road Traffic Act, 1996[1] contains provisions[2] concerning[3] the appointment of traffic officers[4] and the powers of traffic officers.[5]

The provisions[6] were inserted into the principal Act[7] by a provision of the National Road Traffic Amendment Act, 1999.[8]

That Amendment Act stated that it would come into operation on a date fixed by proclamation.[9] A proclamation[10] fixed a date[11] on which that inserting provision of the Amendment Act would come into operation. (This means that the provisions concerning the appointment and powers of traffic officers have been duly inserted into the principal Act.)

But the principal Act itself[12] also states that it will come into operation on a date fixed by proclamation,[13] and different dates may be fixed in respect of different provisions of the Act.[14] (This means that the principal Act’s provisions (including its new provisions inserted by the Amendment Act concerning the appointment and powers of traffic officers) also need to be brought into operation by proclamation.

A proclamation[15] did fix a date[16] for the coming into operation of the principal Act, but excluding[17] its provisions concerning[18] the appointment and powers of traffic officers.[19]

Although those provisions[20] were thus[21] excluded from the principal Act’s general commencement date,[22] it appears that the responsible government department[23] considers that those provisions[24] also came into force on 1 August 2000.[25] Presumably, the department considers that the proclamation[26] which brought into operation the Amendment Act’s provision[27] inserting into the principal Act the provisions concerning the appointment and powers of traffic officers,[28] also brought into operation those inserted provisions themselves.

Legal publishers are however of the contrary view,[29] and hold that those inserted provisions of the Act[30] have not yet been brought into operation.[31]

This uncertainty, about whether those provisions of the National Road Traffic Act have come into operation, violates the principle of the Rule of Law that the law should be accessible, and one should be able to find out what it is without undue difficulty.[32]

If a government authority concerned purports to appoint traffic officers to exercise powers conferred on traffic officers in terms of the Act, and if a traffic officer concerned purport to exercise those powers, those authorities and officers act currently ultra vires,[33] and in violation of the principle of the Rule of Law that public officers at all levels must exercise powers conferred on them without exceeding the limits of those powers.[34]

The Act’s provisions concerning the powers of traffic officers[35] state that[36] a traffic officer—

May at any time enter any motor vehicle of an “operator” (extensively defined[37]) and inspect such vehicle;[38] and

may at any time enter upon any premises on which he has reason to believe that a motor vehicle of an operator is kept or any record or other document required to be kept “in terms of this Act” is to be found, and inspect such vehicle and copy any such record or document which he finds there.[39]

The Act contains no criteria for the exercise by a traffic officer of these powers to enter an operator’s motor vehicle or to enter any premises on which he has reason to believe that an operator’s motor vehicle is kept. This violates the Rule of Law principle that questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion, and that a discretion should[40] be narrowly defined.[41]

These provisions, authorising a traffic officer to enter an operator’s motor vehicle at any time, and to enter at any time any premises on which he has reason to believe an operator’s motor vehicle is kept,[42] also violate the fundamental right to dignity[43] and the fundamental right to privacy.[44] The provisions violate the Rule of Law principle that the law should afford adequate protection of fundamental human rights.[45]

(The Act states that no person shall obstruct[46] a traffic officer[47] in the exercise of any power[48] in terms of the Act.[49] A person who fails to comply with[50] a requirement[51] under the Act is guilty of an offence[52] and is on conviction liable to a fine[53] or to imprisonment for a period not exceeding one year.[54])

These Rule of Law violations exist all the more in relation to the provision that a traffic officer may at any time enter any premises on which he has reason to believe any record or other document required to be kept “in terms of this Act”[55] is to be found.[56]

The Act provides[57] for the appointment of traffic officers.[58] The provisions state:

The chief executive officer[59] may[60] appoint as many[61] traffic officers as she may deem expedient;

the member of a province’s Executive Council who is responsible for road traffic matters[62] may[63] appoint for the province as many[64] traffic officers as she may deem expedient;

a local authority may[65] appoint for its area[66] as many persons as traffic officers[67] as may be reasonably necessary.[68]

And to repeat, a traffic officer may, at any time, enter—

any motor vehicle of an operator[69] and inspect such vehicle;[70] and

any premises on which he has reason to believe a motor vehicle of an operator is kept or any record or other document required to be kept “in terms of this Act” is to be found, and inspect such vehicle and copy any such record or document which he finds there.[71]

The Act states that it is a measure to provide for road traffic matters which shall “apply uniformly” throughout the Republic.[72] But it is unclear why Parliament deemed fit to enact provisions vesting provincial and local-authority traffic officers[73] with these powers.

The provisions[74] probably intervene in matters falling in functional areas of exclusive provincial legislative competence:[75] Areas of exclusive provincial competence include “provincial roads and traffic”[76] and the local-government matters “traffic and parking.”[77]

Parliament may intervene with regard to a matter falling within a functional area of exclusive provincial legislative competence, when it is necessary to[78] maintain “national security,” “economic unity” or “essential national standards.”[79] The courts have observed that the occasion for intervention by Parliament is likely to be limited.[80]

The Act’s provisions regarding the appointment of traffic officers with powers of entry of premises cannot be said to be necessary to maintain national security, economic unity or essential national standards.

The provisions violate the principle of the Rule of Law that a legislature should act within its powers, and keep out of territory marked out for other branches of government.[81]

It could be asked if the provisions are measures with regard to a listed area of concurrent national and provincial legislative competence,[82] such as “road traffic regulation” or “vehicle licensing.”[83]

Yet the provisions are not measures with regard to “road traffic regulation.”[84] They do not deal with regulation of road traffic, but with traffic officers’ powers of entry to premises.

Nor are the provisions measures with regard to “vehicle licensing.” The Act contains other provisions dealing with the powers of inspectors of licences regarding roadworthiness certification of vehicles and documents required in respect of motor vehicles,[85] and with the powers of examiners of vehicles to inspect or test vehicles for roadworthiness.[86] (The Act’s provisions authorising the appointment of traffic officers[87] also authorise the appointment at all three levels of government of inspectors of licences and examiners of vehicles.[88])

The better view is that the provisions are measures with regard to traffic matters other than road traffic regulation: One functional area cannot encompass another.[89] Functional areas allocated to different spheres of government are distinct from each other.[90]

[1] National Road Traffic Act 93 of 1996.

[2] The provisions are discussed more fully later below.

[3] Inter alia.

[4] Inter alios. National Road Traffic Act s 3A (Appointment of officers).

[5] National Road Traffic Act s 3I (Powers and duties of traffic officer).

[6] Concerning the appointment and powers of traffic officers. National Road Traffic Act ss 3A and 3I.

[7] I.e., into the National Road Traffic Act.

[8] National Road Traffic Amendment Act 21 of 1999 s 2 (providing for inter alia the insertion into the principal Act of ss 3A and 3I).

[9] By the President in the Gazette. National Road Traffic Amendment Act, 1999 s 47.

[10] Proc R48 of 2000.

[11] 1 August 2000.

[12] National Road Traffic Act.

[13] By the President in the Gazette. National Road Traffic Act s 94(1).

[14] National Road Traffic Act s 94(2); Interpretation Act 33 of 1957 s 13(3).

[15] Proc R46 of 2000.

[16] 1 August 2000.

(This is also the date that was fixed for bringing into operation the Amendment Act’s provisions inserting into the principal Act the provisions concerning the appointment and powers of traffic officers.)

[17] The proclamation expressly stated.

[18] Inter alia.

[19] National Road Traffic Act ss 3A and 3I.

[20] Concerning the appointment and powers of traffic officers: National Road Traffic Act ss 3A and 3I.

[21] Explicitly.

[22] Of 1 August 2000.

[23] The Department of Transport.

[24] National Road Traffic Act ss 3A and 3I, inter alia.

[25] South African Government. Newsroom, Media statements, 30 Nov 2010, “Road Traffic Legislation amendments” https://www.gov.za/road-traffic-legislation-amendments (accessed 25 Sep 2017).

[26] Proc R48 of 2000.

[27] National Road Traffic Amendment Act s 2.

[28] National Road Traffic Act ss 3A and 3I.

[29] With respect, correctly.

[30] National Road Traffic Act ss 3A and 3I, inter alia.

[31] See inter alios:

LexisNexis (sub nom National Road Traffic Act No. 93 of 1996, s 3A and s 3I, inter alia);

Univ. of Pretoria, Laws of South Africa, Consolidated Legislation “National Road Traffic Act 93 of 1996;”

Southern African Legal Information Institute, sub nom “National Road Traffic Act 1996” http://www2.saflii.org/za/legis/consol_act.DEL/nrta1996189/ (accessed 25 Sep 2017).

[32] Lord Bingham (then Senior Law Lord), “The Rule of Law” (Sixth Sir David Williams Lecture 2006, Centre for Public Law, Univ. of Cambridge), first sub-rule.

[33] Beyond their powers.

[34] Nothing ordinarily authorises the executive to act otherwise than in strict accordance with laws. Bingham, “The Rule of Law” (supra), sixth sub-rule.

[35] National Road Traffic Act s 3I. As discussed above, the better view is that the section is not yet in force.

[36] Inter alia.

[37] The owner of a vehicle of a class prescribed by regulation under the Act. National Road Traffic Act s 1(1) svv “operator,” “prescribe” and “regulation,” read with Ch VI (Operator fitness) s 45(1) (registration of operator).

The regulations stipulate that an operator must be registered in respect of a goods vehicle the gross vehicle mass of which exceeds 3,500 kilograms; a breakdown vehicle; a motor vehicle in or on which dangerous goods are transported; a bus; a midibus; a mini-bus the gross vehicle mass of which exceeds 3,500 kg or which is designed or adapted for the conveyance of twelve or more persons including the driver; and a motor vehicle used for the conveyance of persons for reward. National Road Traffic Regulations, 2000, Govt Notice R225 of 17 Mar 2000 as amended, reg 265(1)(a)–(g).

[38] National Road Traffic Act s 3I(l).

[39] National Road Traffic Act s 3I(m).

[40] Ordinarily.

[41] And its exercise capable of reasoned justification. Bingham, “The Rule of Law” (supra), second sub-rule.

[42] National Road Traffic Act s 3I(l) and (m).

[43] Everyone has inherent dignity and the right to have their dignity respected and protected. Constitution s 10.

[44] Everyone has the right to privacy, including the right not to have their home or property searched. Constitution s 14(a) and (b).

[45] The rule of law must surely require legal protection of such human rights as are seen as fundamental. Bingham, “The Rule of Law” (supra), fourth sub-rule.

[46] Or hinder or interfere with.

[47] Inter alios.

[48] Or the performance of any duty.

[49] National Road Traffic Act s 3J(1)(a). These provisions likewise are not yet in force.

[50] Or contravenes.

[51] Or direction, condition, demand, determination, term or request.

[52] National Road Traffic Act s 89(1).

[53] Not exceeding an amount of R40,000.00 currently. Adjustment of Fines Act 101 of 1991 s 1(1)(a) read with Magistrates’ Courts Act 32 of 1944 s 92(1)(a) and (b) and Govt Notice 217 of 27 Mar 2014.

[54] National Road Traffic Act s 89(6).

[55] This power of entry is not stated to be limited to premises on which he has reason to believe that any record or other document “relating to an operator or to any motor vehicle of an operator” is to be found.

[56] And copy any such record or document which he finds there. National Road Traffic Act s 3I(m).

[57] As mentioned.

[58] Inter alios. National Road Traffic Act s 3A (Appointment of officers).

[59] Of the Road Traffic Management Corporation. National Road Traffic Act s 1(1) svv “chief executive officer,” “Corporation.”

[60] On such conditions as he or she may determine.

[61] Inter alios.

[62] Or any person authorised by him to exercise or perform any power, duty or function which he is empowered or obliged to exercise or perform in terms of the Act. National Road Traffic Act s 1(1) sv “MEC.”

[63] On the conditions set by the chief executive officer.

[64] Inter alios.

[65] On the conditions set by the chief executive officer.

[66] Or two or more local authorities jointly for their areas, as the case may be.

[67] Or reserve traffic officers.

[68] National Road Traffic Act s 3A(1)(a)(iv), (b)(iv) and (d).

[69] The owner of a vehicle of a class prescribed by regulation under the Act. National Road Traffic Act s 1(1) svv “operator,” “prescribe” and “regulation,” read with Ch VI (Operator fitness) s 45(1) (registration of operator).

The regulations stipulate that an operator must be registered in respect of a goods vehicle the gross vehicle mass of which exceeds 3 500 kilograms; a breakdown vehicle; a motor vehicle in or on which dangerous goods are transported; a bus; a midibus; a mini-bus the gross vehicle mass of which exceeds 3,500 kg or which is designed or adapted for the conveyance of twelve or more persons including the driver; and a motor vehicle used for the conveyance of persons for reward. National Road Traffic Regulations, 2000, Govt Notice R225 of 17 Mar 2000 as amended, reg 265(1)(a)–(g).

[70] National Road Traffic Act s 3I(l).

[71] National Road Traffic Act s 3I(m).

[72] And for matters connected therewith. National Road Traffic Act, Long title.

[73] Let alone traffic officers appointed at national level.

[74] National Road Traffic Act ss 3A and 3I.

[75] The legislative authority of a province confers on its legislature the power to pass legislation for its province regarding matters within functional areas listed in two schedules of the Constitution. Constitution, 1996 s 104(1)(b)(i) and (ii), read with Sched 4 (areas of concurrent national and provincial legislative competence) and Sched 5 (areas of exclusive provincial legislative competence).

[76] Constitution, Sched 5 part A svv “Provincial roads and traffic.”

[77] Constitution, Sched 5 part B svv “Traffic and parking.”

Municipalities have the right to administer listed local-government matters and make and administer by-laws for the effective administration thereof, and have executive authority in respect thereof. Constitution s 156(2) read with s 156(1)(a).

Provincial governments have the legislative and executive authority to see to the effective performance by municipalities of their functions in respect of those matters, by regulating the exercise by municipalities of their executive authority. Constitution s 155(7).

[78] Inter alia.

[79] Constitution s 44(2)(a), (b) and (c) read with Sched 5.

The other grounds for Parliamentary intervention with regard to a matter falling within a functional area of exclusive provincial competence are when it is necessary: to establish minimum standards required for the rendering of services, or to prevent unreasonable action taken by a province which is prejudicial to the interests of another province or to the country as a whole. Constitution s 44(2)(d) and (e) read with Sched 5.

[80] See Ex parte President, In re: Constitutionality of the Liquor Bill 2000 (1) BCLR 1 (CC) par [50].

[81] See “Courts and the Rule of Law,” Murray Gleeson (Chief Justice of Australia), The Rule of Law Series,

Melbourne University, 7 Nov 2001:

Where the central legislature is equipped with limited powers, the duty is cast on the courts to determine whether a law which that legislature thinks is necessary is within the scope of its powers. Australian Communist Party v Commonwealth of Australia (1951) 83 CLR 1 (High Court of Australia) at 271 per Kitto J.

[82] The national legislative authority vested in Parliament confers on the National Assembly and National Council of Provinces power to pass legislation with regard to any matter, including matters within areas of concurrent national and provincial competence. Constitution s 44(1)(a)(ii) and (b)(ii) read with Sched 4.

[83] The list of areas of concurrent national and provincial competence include road-traffic regulation and vehicle licensing. Constitution, Sched 4 svv “Road traffic regulation” and “Vehicle licensing.”

And, legislation with regard to a matter that is reasonably necessary for, or incidental to, the effective exercise of a power concerning any such listed matter is, for all purposes, legislation with regard to such a matter. Constitution s 44(3) read with Sched 4.

[84] Nor are they measures with regard to matters reasonably necessary for or incidental to the effective exercise of a power to make laws with regard to road traffic regulation.

[85] And regarding registration of driving instructors, professional driving permits, and driving licences. National Road Traffic Act s 3F (Powers and duties of inspector of licences).

These provisions also state that an inspector of licences may, at any reasonable time, having regard to the circumstances of the case, without prior notice, and in the exercise of any power or the performance of any duty which he or she is in terms of this Act or any other law authorised or required to exercise or perform, enter any premises on which he or she has reason to believe that any vehicle is kept. Road Traffic Act s 3F(k).

These powers of an inspector of licences, while somewhat narrower in scope than those of a traffic officer, are open to similar objections from the point of view of the Rule of Law.

[86] National Road Traffic Act s 3G (Powers and duties of examiner of vehicles).

[87] National Road Traffic Act s 3A (Appointment of officers).

[88] National Road Traffic Act s 3A(1)(a)(i) and (ii), (b)(i) and (ii) and (c)(i) and (ii).

[89] Joubert et al, Law of South Africa vol 5(3) 2 ed repl vol,  “Constitutional Law: Structures of Government” (Freedman, D W) par 156.

[90] Thus “provincial roads” does not include “municipal roads.” Each sphere of government is allocated (albeit not in hermetically sealed compartments) separate distinct powers, which it alone (barring areas of concurrent competence) is entitled to exercise. City of Johannesburg Metro Municipality v Gauteng Development Tribunal and others (KZN MEC for Local Govt & Traditional Affairs and others intervening; SA Property Owners Assoc and another amici curiae) 2010 (9) BCLR 859 (CC) pars [55], [56].                                           G. Moore, Oct. 2017

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Gary Moore

Gary Moore BA LL.B. (Witwatersrand) LL.M. (UC London) is a South African lawyer and Senior Researcher at the Free Market Foundation.

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