Howard Dembovsky writes...
It is not unusual for reactionary, emotional and downright
illogical statements to arise from the Minister of Transport and the RTMC when
it becomes clear that no progress is being made in stemming the tide of road
carnage in South Africa, but the latest assertions emanating therefrom are
truly frightening and downright reckless.
When announcing the latest festive season road fatalities
which amounted to 42 immediate deaths per day arising out of the 1,755 total
deaths during the 2015/16 festive season, Ms Peters said “I have been deeply
concerned by those caught speeding and the seeming ease with which these
speedsters were granted bail”. She also said “The reclassification of all road
traffic offences to Schedule 5 of the Criminal Procedure Act will receive high
priority in our endeavour and quest for a mandatory minimum sentence for
drunken driving, for inconsiderate and reckless and negligent driving.”
RTMC Chairman, Zola Majavu went on to say they wanted “people
arrested for traffic offences to spend seven days in prison awaiting bail
applications, like other people facing serious offences”. He then went further
to cite DJ Black Coffee’s speeding matter in support of his argument.
It is interesting to note that neither Peters nor Majavu
seem to have a problem with the fact that former Transport Minister, S’bu
Ndebele is both, out on bail and out of the country in Australia while facing
serious charges of corruption involving more than R10 million, yet they choose
to cite the “relative ease” with which DJ Black Coffee was granted bail and
talk about him proceeding to a gig outside of the country.
Corruption involving an amount of R500,000 or more is a
Schedule 5 offence. Ndebele and his cohort, George Mahlalela are each accused
of receiving more than 20 times that amount.
My understanding is that neither Ndebele nor Mahlalela spent
any time whatsoever behind bars before being brought before Magistrates who
granted them bail whereas DJ Black Coffee spent several hours in police cells
while his matter was processed. Instead, I am told, that Ndebele and Mahlalela
presented themselves to investigators and were brought before the court
Furthermore, shortly after being granted bail, Ndebele was
allegedly involved in yet another speeding incident with his blue light brigade
ferrying him to a funeral before heading back to Australia to resume his duties
as the SA Ambassador to Australia.
Both, Dipuo Peters and Zola Majavu have been completely
silent on this matter and choose instead to hold that a person who exceeds the speed
limit, or commits any other road traffic offence for that matter should be
jailed for seven days before they can apply for bail and should then be forced
adduce evidence as to why it would be in the interests of justice for them to
be released from custody prior to the conclusion of their trial.
This constitutes hypocrisy and double standards of the very
highest order. So much for the equality before the law contained in Section 9
of the Bill of Rights neither of them appear to acknowledge exists.
There is another provision of the Constitution that neither
appear to acknowledge exists and that is the fact that an accused person is to
be presumed innocent until proven guilty in court, although I am pretty sure
they will cite this provision in their defence of their pals, Ndebele and Mahlalela.
Section 89 of the National Road Traffic Act deals with
offences and penalties and it is here where, if the Minister of Transport
wishes to prescribe minimum sentences, she may do so without rescheduling them
to constitute crimes under which bail regulated by Schedule 5 of the Criminal
Procedure Act. She doesn’t need the Minister of Justice and Correctional
Services to make any amendments to the Criminal Procedure Act in order to
achieve this but would have to include these amendments in a Bill to be put out
for public submissions before presenting it to Parliament.
I and JPSA would support minimum sentences for serious road
traffic offences. We have repeatedly questioned why it is that Section 35 of
the National Road Traffic Act which prescribes the mandatory suspension of
convicted persons’ driving licences for driving under the influence of alcohol
or drugs, excessive speeding, reckless or negligent driving and fleeing from
the scene of a crash is routinely ignored.
What we do not and cannot support is the incarceration of
accused persons for extended periods of time before they are convicted. With
the exception of fleeing from the scene of a crash, the detention periods
people face in accordance with SAPS Standard Operating Procedures more than
deal with mitigating the risks associated with those offences.
In accordance with these SOPs, persons accused alcohol
related offences (not just driving under the influence of alcohol) must be
detained for a minimum period of four hours. In reality, not only those accused
of alcohol related offences, but those charged with any road traffic offence
are detained for periods way in excess of several multiples of four hours and
it is rare for police to go out of their way to expedite their release on bail.
It’s what happens after people are released on bail that
should be the concern of Dipuo Peters and Zola Majavu, but it would appear that
they seek to punish people on the basis of an accusation, rather than upon
their conviction. What they are asserting is “if you can’t convict them, jail
them before they even go on trial”. This authoritarian and fascist stance
should be regarded as being very dangerous and simply cannot go unchallenged.
It is a fact that the conviction rate for driving under the
influence of alcohol in South Africa is so low that it simply cannot act as a
deterrent to would-be drunk drivers. Conviction rates for this serious road
traffic offence range from zero to 11%. Nationally, the average conviction rate
is reportedly 6%.
This clearly indicates that authorities are not dealing with
this offence properly and there is lots of empirical (not anecdotal) evidence
supporting this notion.
There are several causes which contribute to this low
conviction rate, not least of which is the inability of the Department of
Health to supply forensic blood sampling results within a reasonable timeframe.
However, there is also plenty of evidence to support the fact that many people
are arrested and charged with DUI by corrupt cops who do so solely because
people refuse to pay bribes to them and not necessarily because the people they
arrest are in fact under the influence of alcohol. It happened to ANC
spokesperson, Zizi Kodwa in 2011 and it’s happened to plenty of others.
Punishing a person up front is simply not acceptable because
South Africa is not yet a formal Police State, even though one could be
forgiven for believing that it is.
No person should be arrested for driving under the influence
of alcohol unless authorities are pretty close to convinced that they will be
found guilty of the offence. Yet there are so many examples of people being
arrested because poorly trained traffic cops are incapable of telling the
difference between a blood and breath alcohol reading.
The current blood alcohol level at which a person can be
successfully prosecuted is 0,05g/100ml of blood sampled while the breath
equivalent is 0,24mg/1000ml of breath sampled.
What happens frequently is that cops take a breath reading
and reach the conclusion that a person is over the limit because they measure more than 0,05mg/1000ml of breath
sampled. They then proceed to arrest such people and prosecution fails when the
blood alcohol serum report comes back. This could also be addressed by having a
single measuring standard for handheld breath screening devices, instead of
some measuring breath alcohol levels while others extrapolate these readings to
blood alcohol levels.
Whatever the reason for acquittals and permanent withdrawals
of charges for road traffic offences are, the fact remains that those who are
acquitted can and often do institute civil claims against authorities who
falsely accuse and detain them.
The implications of detaining such persons for extended
periods before allowing them to apply for bail are severe and the likelihood of
victims doing so are extremely high. The same goes for persons who are acquitted
for speeding or reckless driving, should the State fail to prove its case.
The compensation they claim from the State is largely
influenced by the period for which they were detained and it is arguable that
should this period be extended to seven days prior to being granted bail, both
the quantum of claims and the settlements awarded by the courts will soar if
Peters and Majavu get their way. It also follows that the less serious the
offence for which a person is arrested and detained, the higher the settlement
will be if “all road traffic offences” are rescheduled to Schedule 5.
There is another thing that puzzles me and that is the fact
that the Department of Transport is allegedly planning to roll out the
Administrative Adjudication of Road Traffic Offences (AARTO) Act from 1 April
this year. If they are going to do this, then the discussions surrounding
rescheduling “all road traffic offences” to Schedule 5 of the Criminal
Procedure Act is moot. AARTO replaces the Criminal Procedure Act in the
prosecution of all but the most serious road traffic offences, imposing
administrative as opposed to criminal consequences. If however all road traffic
offences, even the least serious of them are to be rescheduled to fall under
Schedule 5 of the Criminal Procedure Act, then the AARTO Act may as well be
With all due respect to both, Minister Peters and Zola Majavu, desperate
times do not call for desperate (and
reckless) measures. What they call for is level heads, a willingness to
acknowledge the root cause of the problems we face, professionalism and a commitment to addressing
As Redi Thlabi so
succinctly and wisely said in her article in a national newspaper this weekend,
“failure to acknowledge the truth automatically leads to failure to find
solutions”. If the people in power continue trying to treat the symptoms
instead of addressing the root cause of road carnage in South Africa, things
are going to continue to get worse.