Fines 4 U wins landmark JMPD caseComment on this story
Johannesburg - A payfine company that took traffic authorities to court claiming that fines issued against a company they represent were illegal has won its case.
On Monday Acting Judge Andre Gautschi ordered that a proxy be allowed to represent a company in court over traffic infringements and that the Johannesburg metro police department and Johannesburg municipality pay for all the costs of the case.
Attorney Anton Burger said the judgment could mean anybody who had traffic infringement representations turned down before 22 December 2012 and subsequently paid the fines could be entitled to a refund, because Johannesburg metro police department officers were unlawfully acting on behalf of the Road Traffic Infringement Agency.
Fines 4U owner Cornelia van Niekerk took several authorities to court in November 2012, including the Johannesburg metro police department, the Road Traffic Infringement Agency and the City of Johannesburg.
In April last year, Van Niekerk claimed in court that the Johannesburg metro police department had illegally cancelled five of the fines her company was dealing with on behalf of customers as this could only be done by the Road Traffic Infringement Agency, in terms of the Aarto Act.
During the trial, the company’s advocate, JPV McNally, said the decision to cancel the fines was an attempt by the Johannesburg metro police department to “pull the foundation of the application from under Van Niekerk’s feet”.
“The fines were cancelled simply to get rid of the application.”
He also argued that the representation officers dealing with the five fines had not been properly appointed by the Road Traffic Infringement Agency and that a question of conflict of interest arose as they were also Johannesburg metro police department officers.
“The separation of powers is important.” he said.
Advocate Steven Budlender, for the Johannesburg metro police department and the City of Johannesburg, argued in court that because the fines were cancelled, Van Niekerk and her clients had not been prejudiced and the issue was therefore moot.
He also said the question around the Johannesburg metro police department officers also being representation officers was no longer an issue.
“Although they were employees of the Johannesburg metro police department, they were nevertheless representatives of the Road Traffic Infringement Agency ,” Budlender said.
“The issues which arise in this matter are of concern to others.”
The judgment said the essence of the application was aimed at coercing the Johannesburg metro police department and the municipality to perform their functions properly in the implementation of the Aarto Act.
Judge Gautschi said that in his view, ”dealing with the issues in this judgment will benefit others and achieve legal certainty in the interpretation and implementation of Aarto”.
The judge said the first issue was whether a proxy could make the election that a corporate body infringer be tried in court.
He agreed that a corporate body could elect to be tried in court or make representations through a proxy.
The third issue he looked at was the representation officers appointed.
“It is common cause that employees of the Johannesburg metro police department were appointed to fill the positions of representations officers at the agency,” the judge said.
“This is clearly in contravention of the minister of transport’s determination and the scheme of separation of powers inherent in Aarto.”