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Cellphone: Use it, you'll lose it!

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INLSA

This sealed box is where errant drivers' cellphones will be stored for 24 hours. Picture: Henk Kruger

Cape Town drivers caught using their cellphones while driving will be arrested if they resist officers' attempts to confiscate their phones.

On Thursday, city traffic officers will take to Cape Town's busiest roads during peak hour for the city's pilot project on cellphone impoundment.

Offenders will have their phones confiscated and be fined R500.

Traffic services spokeswoman Maxine Jordaan said the operation would cover Nelson Mandela Boulevard until Hospital Bend.

“It will be an impoundment on the first offence, if people are talking or texting.”

Cape Town is the first South African city to conduct the operation.

This week traffic officers were briefed on the process.

Jordaan said officers would mount video cameras at certain spots and radio the information to officers along the freeway, while officers will also keep their eyes peeled for offenders.

The driver will be issued with a “communication device release form”, and must remove the SIM and memory cards before handing it over.

The form must have all the motorist's personal details and the officer's staff number, as well as the make, model, serial number, condition and colour of the phone.

Jordaan said officers had to be thorough and had to even note how many passengers were in the car.

The team is prepared for drivers who might not want to hand over their phones. In this case, metro police will be ready to arrest them for “disobeying a lawful instruction”.

“Officers are going to face challenges.”

“That's why it's better to explain the whole entire process,” Jordaan said, “and tell the driver it is just a fine. But if they are going to force officers, it will become a crime.”

Jordaan said each phone would be placed in a box which would have to be sealed in front of the motorist. Each box has a unique seal number, which is written on the form.

In future, motorists will have to wait 24 hours to collect their phone from the Gallow's Hill driving licence testing centre in Green Point. However, Jordaan explained that because it was the first operation, offending motorists would be able to get their phones back on Friday between 7am and 3:15pm at the centre.

Cellphones will not be able to be collected over weekends.

Drivers also have the right to dispute their fines in court. This means they will still be able to collect the phone, but will then have to challenge the fine in court.

The city has assured motorists their possessions will be safe and are confident no phones will be lost or stolen. And access to the safe where the phones are stored is highly restricted.

“We have taken all the necessary precautions,” Jordaan said. “The seal number is unique to the box. The cellphone is put into the box and sealed in front of the motorist.

“It goes into the safe and only one person has access to the safe.”

Phones not collected after three months will be auctioned.

Jordaan said the city had also considered the possibility of motorists starting to drive around with cheaper phones.

In that case, she said, officers would be able to challenge that if they saw the model of the phone was different to the one the motorist was trying to hand in.

However, officers will also use “discretion”.

For example, in the case of a doctor taking an emergency call.

“If the driver can prove on the spot that it's an emergency call, officers will warn them and let them go.”

Jordaan said the point was that all drivers should use their hands-free kits as soon as they started driving, to avoid having to manually answer the phone while behind the wheel.

Between October and December 2011, the city's traffic service recorded 1696 cellphone-related offences. This is even higher than the number of drunk drivers who were nabbed over the same time period.

Originally, the city planned to confiscated phones only after the third offence. However, in February, JP Smith, mayoral committee member for safety and security, said the city was considering amending this by-law to confiscate the phones after the first offence.

Jordaan said it was hoped that the operation would get everyone “into the habit” of using the hands-free kits.

There are no release fees, but with each offence the fine increases. The offender's details will be loaded onto an electronic database.

After the second offence, the fine goes up to R1000. After the third offence, it rises to R2000.

EXPERTS PICK APART CITY'S PLAN

Cape Town's plan to confiscate drivers' cellphones has been met with urgent legal warnings, with experts saying the city will face a range of likely challenges.

Drivers might be entitled to legitimately refuse to hand over their phones, they said on Tuesday.

A senior source in the National Prosecuting Authority said that if a driver denied talking or SMSing, they would be within their rights to refuse because they would be innocent until proven guilty. A traffic officer would have no right to confiscate the phone pre-verdict.

The source asked not to be named since he was not an official NPA spokesman.

The driver would be obliged to appear in court, but another top legal source said that instead they could pay the admission of guilt fine the following day, thus by-passing the law.

Defence attorney William Booth said there might be different levels of 'discretion' in different traffic officers, which would probably lead to the new law applied differently and unevenly.

“If a mother is stopped and tells the officer she is speaking to her child, who has called her crying, how will the officer respond? How will a different officer respond in the same situation? How will there be any consistency?

“Is there any guarantee that traffic officers will act reasonably?”

“My experience is that many police officers don't act reasonably at all”.

“Drivers who have genuine emergencies may find traffic officers telling them 'tough luck'... In such situations, drivers may well refuse point blank to hand over their phones, and rightly so.”

Cellphone experts point out that modern smartphones are very fragile, while insurance experts have warned that if confiscated phones are damaged by the traffic police or a municipal official, insurance companies may refuse to pay out.

Motorists may then claim from the city's insurers, a legal expert said.

Mayoral committee member for safety and security JP Smith said extensive use of video and camera evidence would ensure they had evidence of the offence before pulling anybody over.

“Furthermore, we will issue a notice in terms of the by-law without an admission of guilt fine, which will then compel a court appearance.”

Officers would not apply the rule in a discretionary manner.

“I have had quite a lot of experience with our Ghost Squad and they do not make themselves guilty of frivolous actions, and they behave reasonably. Failure to do so has disciplinary consequences.”

The box in which the cellphone would be placed was soft and impact-resistant. If a device was damaged, the city would deal with this as it did any insurance claim against it.

THIS IS WHAT WILL HAPPEN TO YOUR PHONE

Officers will have to follow strict processes when they confiscate motorists' cellphones later this week.

Once an officer spots the offender, the driver will be signalled to pull over.

The officer will then fill out a “communication release device form”.

This form is in triplicate, which means the original white form goes to the driver, the officer retains a pink copy and a yellow copy remains in the form book.

The form is detailed with all the motorist's personal information, and the make, model, colour and condition of the cellphone must be written down, along with its serial number and IMEI number.

The driver must remove the memory and SIM cards, switching the phone off before handing it to the officer.

The phone is then put into a box and must be sealed in front of the owner. On the receipt, a “seal number” must be filled in, corresponding with the tag that seals the box.

It is then stored in a safe at the Gallows Hill driving licence testing centre in Green Point. Only one officer will handle these retrievals and is the only one who has access to the safe.

There is no impoundment fee.

Motorists will be able to collect their phones at the centre during office hours. Phones cannot be collected over weekends. Phones not collected after three months will be auctioned.

At this stage, only Gallow's Hill will store confiscated phones. - Cape Argus

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