Public Roads vs Private Roads and Traffic Enforcement
Introduction
Our road safety and traffic law expert Alta Swanepoel was requested to provide clarification on the situation concerning public roads and the possible intervention of traffic officers at the weighbridges operated by the mines.
On the Arrive Alive website, we have also included information on the debate about the legal aspects pertaining to roads in a gated estate/ gated communities - especially the concerns about the enforcement of speed limits in these areas. We believe that it is important to share the legal opinion from Alta with all our road users:
Discussion
The National Road Traffic Act, 1996 (NRTA) regulates what is considered a public road for operational purposes.
The issue of whether a motor vehicle is used on a public road is relevant for the law enforcement of most offences that can be committed with a motor vehicle, including the overloading of a motor vehicle. It is therefore important to understand what constitutes a public road for purposes of the legislation. The definitions of public road and operate on a public road applies.
“public road” means any road, street or thoroughfare or any other place (whether a thoroughfare or not) which is commonly used by the public or any section thereof or to which the public or any section thereof has a right of access, and includes—
(a)the verge of any such road, street or thoroughfare;
(b)any bridge, ferry or drift traversed by any such road, street or thoroughfare; and
(c)any other work or object forming part of or connected with or belonging to such road, street or thoroughfare;”
“operate on a public road” or any like expression, in relation to a vehicle, means to use or drive a vehicle or to permit a vehicle to be used or driven on a public road, or to have or to permit a vehicle to be on a public road;”
The definition of a public road is not linked to the “ownership” or maintenance of a road, parking area, etc. but to the common use or right of use by the public of a road.
It should not be confused with a private road for maintenance purposes.
A road may be considered “private” for purposes of road maintenance legislation (SANRAL Act and Provincial Road Acts or Ordinances, but if it is used by the public, it is considered a public road for purposes of the NRTA.
The various Acts have different definitions as to what is considered a public and what a private road as the purpose of the legislation is different.
Section 69 of the NRTA is also important, as it creates a presumption that every offence in terms of the NRTA is committed on a public road if it is stipulated as such in the charge sheet.
Sec 69.Presumptions regarding public road, freeway and public road in urban area
- Where in any prosecution in terms of this Act it is alleged that an offence was committed on a public road, the road concerned shall, in the absence of evidence to the contrary, be presumed to be a public road.
- Where in any prosecution in terms of this Act it is alleged that an offence was committed on a freeway, the road concerned shall, in the absence of evidence to the contrary, be deemed to be a freeway.
- Where in any prosecution in terms of this Act it is alleged that an offence was committed on a public road in an urban area, the road concerned shall, in the absence of evidence to the contrary, be presumed to be a public road in an urban area.
A person, who wants to argue that a road is private, to avoid prosecution or prohibit a traffic officer from enforcing the law on such road, would, therefore, have to prove that a road has access control or members of the public do not use such road. This is generally difficult to prove. In terms of decided cases, very few roads are considered private.
In a specific case, even the fact that a mine displayed a sign stating that a road is private and prohibiting the public from using it was not sufficient to regard the road as private, due to the fact that the mine did nothing to ensure the road was not used by the public.
Conclusion
As all the roads that are going to be affected by the move of the R555 weighbridge, will carry vehicles from different operators and will allow access to the public, it should not prove a problem to do law enforcement on the mine roads.
