There has been a proliferation of security guards, etc. manning entrances to business parks, residential estates, and other "private property" which has been developing over some time now and we are often asked whether is is "legal" or not for security guards to stop a person and demand that they present their driving licence for scanning, after scanning the licence disc on the windscreen.
In short, Justice Project South Africa's stance on this is that not only is this not legal, but it is extremely dangerous. Our view is shared by a number of people in State law enforcement agencies but sadly, the practice continues.
While it is not unreasonable for such entities to demand to know who is coming and going, as with everything, there are limitations and such entities have a duty to act within the framework of the law and not get carried away. They especially have a duty to refrain from exposing people to the risk of other crimes being perpetrated against them as a result of their actions.
There's a vast difference between private premises and public roads and it's extremely unfortunate that, despite the definition of a "public road" as is defined in the National Road Traffic Act, the term "private roads" is used so prolifically by those who wish to advance their view that they are allowed to act in ways which are not only unconstitutional, but further violate other legislation.
It is helpful to know and understand the definition of a "public road" and to further note that there exists no definition for a "private road" in the National Road Traffic Act. The definition of a "public road" reads as follows:
“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
(c) any other work or object forming part of or connected with or
belonging to such road, street or thoroughfare;
The definition is clear and is not subject to interpretation. You will also note that it makes no mention of who is physically responsible for the maintenance of those roads and in fact, all one has to do in order to understand this definition properly is to observe traffic officers who visit parking lots at shopping centres and malls and issue infringement notices for parked vehicles with expired licence discs. Not only is this action completely lawful, but it is widely practiced, despite the fact that Municipalities did not put the infrastructure in place and do not maintain the tarmac therein.
The National Road Traffic Act further defines whom may act in road traffic matters and Section 3K makes it an offence to impersonate authorised officer or peace officer. Security guards are not authorised officers or peace officers and homeowners associations, business park management, etc. are not local or provincial authorities.
While there is no legislation that specifically prohibits any person other than an authorised officer or peace officer to demand that you present your driving licence for inspection, there is legislation that defines that it is an offence to refuse to present it to an authorised officer or a peace officer and other legislation that prohibits the invasion of your privacy. The National Road Traffic Act defines an authorised officer as follows:
“authorised officer” means an inspector of licences, an examiner of vehicles, an examiner for driving licences, a traffic warden or a traffic officer, and also any other person declared by the Minister by regulation to be an authorised officer.
As yet, the Minister has not defined security guards, or whatever other term gated communities wish to call the persons who both, control access and regress and/or enforce their estate rules as "authorised officers". They are therefore neither empowered to demand to inspect your driving licence, nor are they authorised to enforce any of the provisions of the National Road Traffic Act and/or its Regulations by issuing fines payable to the homeowners association.
Furthermore, the Protection of Personal Information (POPI) Act prohibits the storing of your personal information without your explicit consent and even if you do give that consent, those who store them are compelled to do so in a secure manner.
The handheld scanning devices which are used to read the information from the encrypted barcode on your vehicle licence disc and your driving licence are later "docked" in order for the information they record to be downloaded from them and written into a database and it is here that the very real risk of identity theft and eNaTIS fraud presents itself. The details contained in your driving licence, combined with the information contained in your licence disc are more than sufficient to enable criminals to steal your identity, register and even transfer vehicles out of your name without your consent and/or knowledge.
Those who have fallen victim to such crimes rarely become aware of the fact that they have until they receive camera speeding fines for vehicles they have no knowledge of, or go to renew their vehicle licence disc only to be told that they no longer own the vehicle. Although these incidents cannot be described as prolific at this stage, they are on the rise and JPSA has dealt with several such complaints in the recent past.
When the information is downloaded/uploaded to these databases, it becomes accessible to whomever has access to that information - regardless of whether that access is authorised or not. Many such databases are stored "on the cloud", which is not immune to hacking, in fact, it can be safely said that the cloud is particularly vulnerable to hacking, regardless of what anyone tells you about how "safe" it is. This is of course assuming that the database itself is secured at all and in many cases, such databases are not secured at all. Wherever information exists that allows criminals to steal your identity, there is a very real risk that they will do so and it is extremely naïve of anyone to assume that when they do, they will make the entity who stores that data aware of the fact that they have hacked their databases and stolen information.
Why this practice of such explicit access control and unlawful enforcement of provisions contained in the National Road Traffic Act has proliferated is not difficult to understand. Those who own and manage premises, as well as those who occupy them, and to which they would like to control/restrict access insist that they have the "right to security" and the very last thing that JPSA would like to suggest is that their view is entirely incorrect. They do indeed have a right to check on who is coming and going, however they do not have a right to violate the law or expose people to potential criminal activities in doing so.
The problem with such measures is that, even though they may deter petty criminal activity, they do not even come close to deterring professional and/or organised criminals. Just like RICA and FICA, such measures usually affect ordinary, law abiding citizens and criminals get around them, seemingly with little or no difficulty. The added problem however comes in that when such measures are implemented, it is not usual for much regard to be paid to the security of the individuals whose personal particulars are gathered and stored.
The answer to whether you are compelled to present your driving licence to a security guard for scanning or any other purpose is therefore "no" and if you do, you should be aware of the significant risks you expose yourself to. It would be really nice if security companies and the management of the premises they guard would start to show some regard for the security of individuals upon whom they impose their demands. In the meantime however, you do have the right to refuse to present your driving licence and disallow them from scanning your licence disc.
If they then disallow you from signing a visitor's register instead and refuse you access, this would not be legal in the case of a housing estate, but it may be legal if it is a business premises or townhouse complex, both of which are in fact private property, as opposed to non-existent private roads.
On the practical side of things, in the case of private property, it would be for you to decide whether you then wish to comply with their demands and accept the associated risks, or to park your vehicle outside and proceed on foot. In the case of gated communities located on public roads, the operators thereof have no legal standing at all to insist that you comply with their demands or park outside. You may lodge a complaint with the Municipality within whose jurisdiction the estate is located and the Municipality is duty bound to act on that complaint.
It stands to reason that if a single complaint about the rumble strips and speed humps installed on a public road in a residential area close to a school should have been removed on the basis of a single complaint from a motorist, as happened in Bruma in 2014, the same must be true of the erection of access control boom gates on public roads.
It would be advisable for gated communities and their security providers to tread with caution and exercise a great deal more care about what they do demand from people, lest they find themselves being served with an order to dismantle their boom gates by their local Municipality, or the Municipality itself pitching up with bulldozers to demolish them.
No reasonable person should seek to have this happen, however equally so, no reasonable security company or homeowners association should be allowed to continue to think that they are entitled to establish "Mini Republics" within South Africa wherein the laws of the land are surpassed by their own "rules and regulations". The way in which some of these estates are acting presents a real and present danger that someone will exercise their right to complain about the lawfulness/unlawfulness of their installations and, no matter how good their legal teams are, the laws of the Republic of South Africa will prevail over their perceived right to self-determination.
JPSA advises persons whose driving licenses are demanded from them for purposes of scanning by any person other than an authorised person defined in the National Road Traffic Act to exercise extreme caution in doing so. If, knowing all of the facts, you then choose to do so, at least you will be aware of the associated risks. If you refuse to do so, this is your prerogative and it is one which is supported by legislation.