Monthly Archives: October 2016

Traffic Officer confiscates my cell phone: What you should know!

Summary

Since 2011 the City of Cape Town: Traffic By-Law, 2011 has made it possible for an authorised officer to confiscate your cellular device if you are caught using it in your car while driving. If you end up getting caught red-handed, these are a few things you should know to make sure that all the correct procedures are followed when your cellular device gets confiscated.

Article

The City of Cape Town: Traffic By-Law, 2011 (hereinafter “the By-Law”) prohibits driving a motor vehicle on a public road, firstly, while holding a cellular or mobile telephone or any communications device with any part of the body and, secondly, while using or operating a cellular or mobile telephone or other communication device unless it is affixed to the vehicle (like a handsfree kit).[1]

According to the By-Law an authorised officer may, in the interest of public safety, confiscate a handheld communication device if he informs the owner of such device of the reasons for doing so. He must issue a receipt to the owner, stating the place at which such device may be claimed, and he must follow all procedures contained in any policy of the city dealing with the confiscation and impoundment of property.[2] The policy applicable in the City of Cape Town is called the Standard Operating Procedure on the Impoundment of Goods and Animals, 2012.

An authorised official exercising authority in terms of any By-Law of the City to impound goods, shall issue to the offending party a receipt for any property removed and impounded. This receipt must indicate:

  1. A list of the property to be removed and impounded;
  2. the physical condition of the goods (to ensure that they are returned in the same physical condition that they were in when impounded);
  3. the address where the impounded goods will be kept;
  4. the hours during which the goods may be collected;
  5. the maximum period for storage of goods before they are disposed of;
  6. the conditions for the release of the impounded goods;
  7. the name and office number of a council official to whom any representation regarding the impoundment may be made;
  8. the date and time by when representation must be made;
  9. the terms and conditions relating to the sale of unclaimed goods, by public auction, where no claim (and/or representation) is received.[3]

The City may sell any cellular device that hasn’t been claimed within ninety days after the date of impoundment through public auction which shall be advertised in local newspapers. Municipal officials and councillors, their spouses, relatives and acquaintances are prohibited from purchasing any of these impounded goods. Fees may be levied for the storage of the cellular device and any other expense incurred by the Council during impoundment. Said fees shall be determined by Council and may be adjusted from time to time. Fees and fines shall be paid at the Council cash office between the hours of 08:00 and 16:00 on Mondays to Fridays.[4]

Goods may be returned to the owner, or his or her representative, upon presentation of proof of payment of all fees related to the impounding and storage of the goods and any fines imposed prior to and/or during impoundment. Owners or their representatives can collect their goods during the hours and at the venue indicated in the impoundment notice served on the offender.[5]

Officials of the City must take reasonable steps to prevent any damage to impounded goods; however, it will not be responsible for any damage caused to goods where a reasonable duty of care was exercised. Digital photographs shall be taken of all impounded goods.[6]

A person who contravenes a provision of this By-Law commits an offence and a person who commits such an offence is, on conviction, liable for a fine or a term of imprisonment not exceeding 3 years, or both.[7]

Reference List:

  • The Standard Operating Procedure on the Impoundment of Goods and Animals, 2012
  • The City of Cape Town: Traffic By-Law, 2011
  • [1] S 38(1) of the City of Cape Town: Traffic By-Law.
  • [2] S 38(4) of the City of Cape Town: Traffic By-Law.
  • [3] S 8, S 9 of the Standard Operating Procedure on the Impoundment of Goods and Animals, 2012.
  • [4] S 10, S 11 of the Standard Operating Procedure on the Impoundment of Goods and Animals.
  • [5] S 12 of the Standard Operating Procedure on the Impoundment of Goods and Animals.
  • [6] S 16 of the Standard Operating Procedure on the Impoundment of Goods and Animals.
  • [7] S 39 of the City of Cape Town: Traffic By-Law.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).

My dog just attacked someone

a1Due to circumstances beyond your control your dog bites someone. There is blood, an injury, and a shocked and angry victim. Luckily it is a small wound, but before you can mouth an apology, the traumatised person storms off with the words: “You’ll pay for this; see you in court!”

Are you liable for the damage caused by your dog?

Well, you could be, depending on the circumstances. Damages caused by a pet can be claimed from the owner through the Actio de Pauperie. You will be liable for damages if the complainant is successful in proving:

  1. that you were the owner of the animal at the time of infliction of the injury;
  2. that the animal is domesticated;
  3. that the animal acted contrary to the nature of a domesticated animal; and
  4. that the conduct of the animal caused the plaintiff’s damage.

How can you defend your dog?

The onus will be on you, as owner of the dog, to prove a valid defence. You will not be liable for the complainant’s damages if you can successfully prove:

  1. that your poor dog was provoked by the culpable conduct of the complainant;
  2. that someone else was in charge of your dog when the injury was inflicted, in other words a third party had control over the animal and the damage occurred due to that person’s negligence;
  3. the unlawful presence of the plaintiff on the premises, in other words that the injured person had no legal right to be there;
  4. that the plaintiff knew of the risk and voluntarily accepted the risk; and
  5. that the owner is not responsible for damages caused by his animal in terms of an existing indemnity agreement between the parties.

The circumstances and actions of the injured person will determine what happens. If someone came onto your property uninvited and got attacked by your dog, then it’s not your fault. However, if you were walking your dog in the park and they randomly attacked someone, without being provoked, then you are liable.

Owning a dog can be a very rewarding experience and a boundless source of unconditional love, but at the same time it also brings great responsibility. If you own a dog, you also have a responsibility to prevent it from causing harm to anyone or their property.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).