Caught Driving Above 160 Km/H- Now What?

For a driver, being stopped by traffic police for some traffic violation is enough to cause the stress levels to rise sharply. Being stopped and told you have been driving over 160km/h, then promptly arrested and detained at the police station for several hours thereafter, will likely take your stress levels way off the scales.

This is what happened to Hymie Zilwa an attorney who instituted an action for damages against the Department of Transport and Public Works as well the Minister of Police, for his unlawful and wrongful arrest, which happened on 28 March 2019. Judgement was delivered on 9 January 2026.

Zilwa claimed his arrest and subsequent detention by the SAPS were both unlawful. He also sued for malicious prosecution. Both defendants said they were justified in how they acted and denied their conduct was unlawful, with the Minister of Police saying that its arresting police officer was simply acting on the instructions of the Department of Transport.

The traffic officer said that since Zilwa was found to be driving above 160 km/h, he was obliged to arrest the driver as the Code Book does not allow for no admission of guilt for this speed. The court did not agree. It said that the Code Book only says that for an offence above 160 km/h there is no admission of guilt and stressed that no admission of guilt does not equate to allowing the traffic officer to make an arrest.

The court said that the Criminal Procedure Act allows a peace officer to make an arrest without a warrant only if the officer has reasonable cause to believe a person has committed a Schedule 1 offence. It said that a speeding offence under the National Road Traffic Act [NRTA] is not an offence listed in Schedule 1. Therefore the traffic officer or police officer cannot arrest a suspect for driving at an excessive speed.

The court highlighted that an arrest is a drastic measure that invades a personal liberty and it must be justifiable as set out in the Bill of Rights. The court restated that traffic officers do not have the powers to determine police bail and/or to release a person on warning saying that the traffic officer is simply required to bring the person to the police station to be dealt with further.

It said that NRTA does not confer powers to the traffic officers to make an arrest stating that the object of an arrest is to ensure a person's attendance in Court and for him or her to answer to the charge and not to "punish/intimidate" the person for an offence he has not been convicted.

There are a number of methods of securing an attendance at court, apart from arrest, which include summons, written notice, warning, and indictment as found in the Criminal Procedure Act.

Our constitutional court is replete with cases where it has held that a public official must the authorised to perform his or her duties and must do so rationally, lawfully and be procedurally fair. The court said that as Mr Zilwa's arrest was unlawful, his follow up detention was also unlawful.

The court however did not find evidence of malicious prosecution. It granted him damages for the unlawful arrest and detention, the amount of which could either be proved or agreed to amongst the parties.

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