Gauteng chief magistrate Daniel Thulare will be referred to the Magistrates' Commission for saying drivers can drive without licences, the transport ministry said on Monday.

Transport department spokesperson Logan Maistry said Minister Sibusiso Ndebele said Thulare's comments were "disconcerting, misleading and totally unethical".

Thulare said in the Sowetan on Monday, drivers who could prove they had a learner's licence which had expired while the driver was trying to obtain a testing date for a driver's licence, would be able to legally drive on South African roads.

"Any conviction of a citizen for driving without a licence would therefore be unlawful if the state itself has failed to test that person," Thulare said.

However, Ndebele was quoted as saying in a statement: "Why is magistrate Thulare, who is supposed to be a custodian of our law, advocating lawlessness?

"The supremacy of our Constitution and the rule of law are foundational to the democracy established by the Constitution. Whilst we respect the independence of the judiciary, in all constitutional democracies the judiciary plays a pivotal role in shaping society.

"The judiciary therefore needs to engender trust, integrity and moral rectitude."

'Driver will be charged'

Ndebele said any person caught driving without a driver's licence on South African roads would be arrested.

"According to the National Road Traffic Act (Act 93 of 1996), any person who drives a motor vehicle on a public road must be in possession of a valid driving licence. Therefore, it is illegal to drive a motor vehicle without a valid driving licence," he said.

"In the event of a collision, the driver will be charged for being unlicensed and a civil claim for damages may also be instituted against an unlicensed driver."

Ndebele said an unlicensed driver not only posed a threat to his or her own safety but also to the safety of other road users.

The Johannesburg Metro Police Department had not received any amended legislation that allowed a person to drive without a licence, Inspector Edna Mamonyane said.

"Until we receive that, unlicensed drivers will be fined," she said. "We agree that the booking system is not working, but that does not mean you do not have to follow the law."

Ndebele said the department of transport was continuously working with provinces and municipalities on service delivery problems relating to testing stations.