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Published:  2016-05-20 Views:  977
Author:  Fanie
Published in:  HartiesWatch
Inwoners Wat Verkeer Reguleer Gestop Deur Metro Polisie

20 Mei 2016:

Inwoners is emmosioneel nadat metro polisie gemeenskap vrywilligers gestop het wat begin het om punt diens te doen in Harties om te help om verkeer te reguleer. 

Terwyl dit 'n goeie gedagte is, lyk dit tog of mens die saak op die regte manier moet benader. Tog waardeer mens die mense wat die bal aan die rol sit op hierdie manier, sodat ons almal saam kan soek na die regte oplossing.

Een voorstel wat tans versprei word kan heelhartig ondersteun word, naamlik om 'n E Pos te rig aan senkaljo@gmail.com wat bereid is om die saak verder te dryf by Madibeng. Die versoek is dat Madibeng Stadsraad in die eerste plek ekstra verkeersligte sal plaas waar nodig en / of herstel waar buite werking. In die tussentyd moet hulle die nodige verkeerspersoneel beskikbaar stel om verkeer beter te reguleer of hulle moet die nodige opleiding / sertifisering beskikbaar maak vir gemeeskapslede om self verkeer te reguleer. Mens dink byvoorbeeld aan die Outsurance / 702 punt beamptes oral oor Gauteng wat dieselfde doen. 

Nou hoe gaan mens te werk en wat behels so iets?

Ons eie plaaslike botsingsdeskundige Stan Bezuidenhout werk oor die hele land saam met SAP oor pad ongeluk sake en word in hof sake as deskundige aangewend. Hy verskyn dan en wan op TV en radio besprekings wat handel oor botsings en verkeer kwessies. Hy is tans betrokke as deskundige by die hofsaak wat gaan oor die ongeluk waar die bekende Top Billing aanbieder, Simba Mhere, oorlede is. Ons kan gerus hande vat en spesialiste soos Stan nader trek in die oplossing om ons gemeenskap in staat te stel om die risiko vir ons mense te verminder waar ons self in wil spring om dinge gedoen te kry. Ons soek verdere inligting en leiding van Stan oor die spesifieke prosedures om geregistreer te word as 'n wettige punt beampte. 

Stan het die volgende kliniese ontleding gegee om te verduidelik hoekom die metro polisie opgetree het en wat die risiko's is in hierdie geval:

I have noted that the mail suggests that the Madibeng METRO Police has stopped efforts specifically by a local Neighbourhood Watch after they tried to alleviate traffic congestion by performing so-called “point duty” functions at congested intersections in Hartbeespoort.

I understand that people would immediately refer to the likes of the “Outsurance” guys who do this all over Gauteng in an effort to justify what is happening here - but they would be incorrect.

But first I need to remind readers of the very well known case known as "State vs. Blom." In that judgment, it was specifically found that “ignorance of the law is no excuse.” Essentially, it means that saying you did not know that what you did is illegal because you were not aware of the law that makes it illegal is simply not enough. You would still face the full consequences of your action as if you knew it was illegal.

You see - in order for a person (like a member of the general public) to “regulate traffic,” there needs to exist an emergency - such as a major disaster (sink-hole or flood), a road traffic collision (pedestrian lying in the road, etc). In these cases, the person would be “taking such reasonable steps necessary in the absence of official service efforts, to prevent harm, injury or death to others.”

That would be fine, as long as that person is doing so under those conditions. But not if he is simply starting to do it in an effort to get people to work quicker!

In order for anyone to regulate and direct traffic, in general (such as to alleviate congestion in busy areas), that person needs to be trained, skilled and qualified to perform such task - he needs to be a registered, qualified, trained and appointed TRAFFIC WARDEN - as the “Outsurance” guys are. They have all been enrolled, trained and qualified properly.

If a member of the public simply starts to regulate traffic - especially under the guise of a “Neighborhood Watch” several irregularities and even some criminal offences may prevail.

Firstly, a Traffic Warden is a duly appointed Traffic Officer. A “peace officer” contemplated in the Police Services Act and he or she then acts in terms of the Criminal Procedures Act.

By donning a reflective jacket, taking on the duties of a traffic warden and “giving instructions” that supersede road traffic signs and other (general driver duty) aspects of the Road Traffic Act, the person acting so without authority could potentially face criminal charges for "impersonating a police officer."

In addition to this, there is the issue of liability - personal or vicarious.

A traffic officer or a traffic warden act as representatives of the Municipality under which they are so registered and they are considered legally empowered, trained and skilled for the task. They are protected by their municipalities. If they make a mistake, the municipality is liable. They have deep pockets and public liability insurance.

If a member of the public now goes along and tries to regulate traffic - especially as a “neighbourhood watch member,” they are also exceeding the duties, functions, mandate and tasks assigned to neighbourhood watches, as contained in the Constitution, the Police Service Act and various national Police Instructions - since “traffic control” is most certainly not a neighbourhood watch function.

If you consider a worst-case scenario and consider what would happen if such a person - not being duly trained, skilled or qualified (and also acting illegally) - gives an instruction that is misunderstood or incorrectly given (wrong hand signal) and a collision occurs, additional doors of concern are opened.

Firstly, the individual could face criminal charges - for impersonating a traffic (police) officer.

Secondly, he could face civil claims for losses suffered (damages to vehicles) since he was acting without authority.

Lastly, he could face criminal charges if a death occurs (a child is run over or a collision is serious enough to cause death).

If he was acting as a “Neighbourhood Watch” at the time, the management of that entity could face vicarious liability claims on the grounds of their influence on the actions of their members.

Neighbourhood Watches also do not typically have an “employer/employee” relationship with their members and do not have public liability insurance for these very risks. This means that you are literally on your own, if anything goes wrong.

Since public liability claims can go into the hundreds of thousands or even millions of rands, we need to consider the legal aspects and advise people correctly so as to avoid the risk of bankruptcy and possible criminal charges. Remember - not knowing it is illegal is no excuse.

Lastly, there is another concern: Interpretation of powers and actions by others.

Imagine if one driver believes that the person is duly authorised or empowered to give an instruction and complies while another is aware that they are acting without authority and thus ignores the instruction given - as would be their legal right - and a collision occurs? Who would be liable? The person who acted illegally (giving the instruction), the person who acted illegally (ignoring the traffic sign) or the person who failed to obey the (illegal) instruction? And why would both motorists not claim from the person responsible for the loss (the guy who gave the signal)? If two vehicles, two sets of occupants and two “witnesses” are involved, your liability and risk is doubled!

My personal experience as a crash specialist, road traffic risk analyst and former police specialist leads me to suggest that untrained and unqualified members of the public should refrain from these actions - no matter the goodwill intended.

If you feel that your municipality is not performing, make use of your ward counsellors to place pressure on them to perform.

“Taking the law into your own hands” is not the right approach, it is dangerous and you are exposing yourself to liability or even criminal charges.

I also believe that the time has come for us to realise that - before we undertake actions -  we need to ensure that we are acting legally first. If we are not sure about anything - we need to seek proper advice.

Ignorance of law is no excuse.

 


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