KNOW YOUR RIGHTS – WHEN SPEEDING DOES NOT JUSTIFY HANDCUFFS

MOHAMED RAEES HUSSAIN | LEGAL ADVISOR

 

 

 

There are few moments more confronting than seeing blue lights in your rear-view mirror. Speeding is a criminal offence, one that places   lives at risk and carries serious legal consequences. No driver is above the law, and responsible road use remains a shared societal duty.

 

 

 

Yet equally, no authority is above the law either!!!

 

The Zilwa judgment (Hymie Zilwa v MEC for the Department of Transport and Public Works and Another (18320/2019) (9 January 2026), reminds us that constitutional protections do not disappear at the roadside. Arrest and detention are not tools of convenience and intimidation, but carefully limited powers that must be exercised lawfully, even when an offence has been committed. The Court reaffirmed a fundamental constitutional principle: while unlawful conduct must be addressed, enforcement itself must always remain lawful.

 

The message is balanced but clear, comply with the law, but also understand your rights, because enforcement authority is not unlimited.

 

The Case in Brief: Zilwa v MEC for Transport and Public Works

The matter arose from the arrest and detention of a motorist for allegedly exceeding the speed limit by a substantial margin. The plaintiff was stopped by a traffic officer after an automated average-speed-over-distance alert indicated excessive speed. Because no admission of guilt fine had been determined, the traffic officer proceeded to arrest the motorist without a warrant and handed him over to the South African Police Service, where he was detained for several hours before being released on warning. The charge was later withdrawn.

 

The central issue before the Court was whether a warrantless arrest and subsequent detention for speeding alone was lawful under the Criminal Procedure Act 51 of 1977 (CPA).

 

The Court’s finding was unequivocal:

Speeding is not a Schedule 1 offence under the CPA. Section 40(1)(b) permits warrantless arrests only for Schedule 1 offences. The absence of an admission of guilt fine does not create a power of arrest. Arresting the plaintiff was therefore unlawful, and because detention can only lawfully follow a lawful arrest, the detention was likewise unlawful.

 

While the claim for malicious prosecution failed on the facts, judgment was granted in favour of the plaintiff for unlawful arrest and detention.

 

What the Law Requires: Arrest Is the Exception, Not the Rule

The judgment is firmly rooted in settled criminal procedure and constitutional law.

 

Under section 40 of the CPA, a peace officer may arrest without a warrant only where there is a reasonable suspicion that a Schedule 1 offence has been committed. Ordinary speeding, even excessive speeding does not appear in Schedule 1. This alone is fatal to any attempt to justify a warrantless arrest for speeding.

 

Equally important is the Court’s rejection of the argument that internal enforcement manuals or offence code books issued under the National Road Traffic Act can expand arrest powers. They cannot. There is no statute in South African law that authorises arrest merely because no admission of guilt fine is available.

 

The Court reiterated that arrest is a drastic invasion of personal liberty, protected by section 12 of the Constitution, and must always be a measure of last resort. Less invasive mechanisms, such as summonses, written notices, or warnings remain the default methods of securing court attendance.

 

Traffic Officers and SAPS: A Key Difference

Although traffic officers and SAPS members are both regarded as “peace officers” in law, the Zilwa judgment makes it clear that they do not perform the same role. A traffic officer may only arrest without a warrant in limited circumstances, and only for serious offences listed in Schedule 1 of the Criminal Procedure Act. Speeding does not fall into that category.

 

Just as importantly, SAPS is not obliged to detain someone simply because a traffic officer has made an arrest. Detention requires an independent decision. If the arrest is unlawful, SAPS officers are required to refuse detention.

 

The judgment reinforces a simple principle: each authority must justify its own actions when a person’s liberty is at stake.

 

The Impact of the Judgment

The significance of Zilwa extends far beyond the facts of one motorist’s ordeal.

 

First, the judgment corrects a widespread enforcement misconception that arrest is an acceptable deterrent for traffic offences. It is not. Arrest exists to secure court attendance, not to punish, shame, or publicly display offenders.

 

Secondly, the Court delivered a clear institutional message: operational practice does not create legal authority. Public displays of handcuffed motorists, impounded vehicles, or celebratory enforcement posts on social media do not cure unlawful conduct.

 

Thirdly, the judgment reinforces that detention is never automatic. SAPS officers bear constitutional responsibility for any continued deprivation of liberty and may incur liability where detention follows an unlawful arrest without proper scrutiny.

 

Finally, for the public, the case affirms a powerful remedy. Any person unlawfully arrested or detained, even briefly for a traffic contravention may have a viable civil claim for damages.

 

Liberty Has No Speed Limit

Speeding is a criminal offence, dangerous, unlawful, and never to be excused. Every motorist has a duty to obey the rules of the road and to protect the lives of others.

But obedience to the law does not mean surrendering your rights.

 

As Zilwa makes clear, enforcement must remain lawful, even in the face of wrongdoing. Arrest and detention are not tools of convenience, but powers confined by law and the Constitution.

 

The principle is simple: accountability must be lawful on both sides.

Drive responsibly. Respect the law. But know where its limits lie, because your rights travel with you.

 

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