Arrest of 'speeding' attorney unlawful

The arrest and incarceration of Eastern Cape attorney Hymie Zilwa for speeding has been found to be unlawful, as this was not a schedule 1 offence which warrants such drastic action.

Although the offender in this case drove 188km/h in a 120 km/h zone, arresting a motorist for speeding without a warrant is not only unlawful, but unconstitutional, the Western Cape High Court found. It further held that exceeding the speed limit does not justify deprivation of liberty under the Criminal Procedure Act.

Zilwa, who claims he was unlawfully arrested and detained for seven hours by traffic officers, allegedly for speeding, turned to court to sue the Transport and Public Works MEC and the police minister.

He also claimed damages for malicious prosecution, although his criminal case was later dismissed. Zilwa claimed that his arrest by provincial traffic officers for allegedly exceeding the speed limit while driving near Laingsburg in the Karoo in 2019 was unlawful, as was his detention by the police from 5pm until 11pm before he was released.

In dealing with the matter, the court noted that the National Road Traffic Act does not authorise an arrest of a suspect under these circumstances. “Any act performed without a lawful source contravenes the rule of law and the supremacy of the constitution. An arrest is a drastic measure invading a personal liberty and must be justifiable,” the court said.

In declaring the arrest and detention unlawful, the court found that a traffic officer, in circumstances where there is no admission of guilt fine determined, cannot usurp the function of a court even in circumstances where the possibility exists that imprisonment without the option of a fine may be imposed.

Zilwa was travelling in convoy from Bloemfontein to Cape Town with some of his colleagues when his vehicle was flagged by a speeding detection device. According to the arresting official, the vehicle - a white Mercedes Benz - belonging to Zilwa, was travelling at 188 km/h in a 120 km/h zone.

Zilwa was told to follow the traffic officer to the police station, where he was arrested for speeding. He explained that he was not driving his car at the time of the alleged speeding, but that his driver was behind the wheel, but this explanation was ignored.

He was handcuffed by the traffic officers in the presence of police officers, other traffic officers, his friends, and members of the public. Inside the police station, he was processed and the handcuffs were replaced with leg chains. He remained in the holding cells until midnight. After making written representations to the prosecutor, the charge was later withdrawn against him.

According to the arresting officer, he showed the Plaintiff the photos of the vehicle on his handheld device. The Plaintiff did not say anything but held his head with both his hands. According to the arresting officer, Zilwa never told him someone else was driving the vehicle. He also maintained that he was within his rights to arrest him for speeding.

The court said ordinarily, a speeding offence under the National Road Traffic Act is not an offence listed in Schedule 1 and thus does not meet this jurisdictional threshold. “It follows that a peace officer, albeit a traffic officer or police officer, cannot arrest a suspect for driving at an excessive speed under the provisions of section 40(1)(b).”

Consequently, the court said, the arrest of the Plaintiff was unlawful on that ground alone. The court, however, dismissed his claim for malicious prosecution. The amount of damages will be determined at a later stage.

Cape Times