Parole for Maarohanye and Tshabalala sends ‘unfortunate’ road safety message

JOHANNESBURG – The release of Molemo 'Jub Jub' Maarohanye and Themba Tshabalala on parole today, after serving four years and one month of their respective eight year sentences for killing four schoolchildren and injuring a further two in 2010 sends a rather “unfortunate” message with respect to road safety.

Albeit that two of the three families of the victims reportedly said they would accept Maarohanye’s and Tshabalala’s parole if they apologised to them first, which forgiveness it is only their place to give; it must never be forgotten that enormous human suffering was inflicted by these two individuals and that this matter highlights the extreme danger posed by driving under the influence of alcohol and drugs (DUI).

There are relatively few examples where offenders who drive whilst intoxicated kill others are convicted in our courts and subsequently receive the publicity associated with this particular case. The fact that these men were originally convicted of murder, which conviction was subsequently overturned, must also be taken into account since the combined events surrounding this matter weigh into people’s perceptions of Justice and in particular, the “deterrent factor” of sentencing.

It is suggested that the fact these men were “first-time offenders” is only applicable to the culpable homicide which resulted from this tragic event. Very few people who end up crashing and injuring and/or killing others are in fact first-time offenders when it comes to driving under the influence of alcohol or drugs.

Justice Project South Africa (JPSA), along with organisations such as South Africans Against Drunk Driving is of the view that a far greater emphasis and higher degrees of professionalism needs to be placed in the proactive detection and prosecution of intoxicated driving before anyone is injured or killed. While it is encouraging to see that a dramatically escalated volume of arrests for DUI took place over the “festive season”, if convictions do not result therefrom, these efforts would have been in vain.

It is a sad fact that relatively few DUI arrests result in convictions and this is largely due to prolonged and unjustifiable delays in evidential blood alcohol test results from the Department of Health. Rightly so; courts cannot and will not convict accused persons in the absence of reliable and scientifically provable evidence in “technical offences” where specific “tolerances” are prescribed.

“The proposed reintroduction of evidential breath alcohol testing (EBAT) in prosecution of driving under the influence of alcohol mooted by Western Cape authorities, after a moratorium thereon since 2012 cannot come soon enough,” says JPSA’s chairperson, Howard Dembovsky. “While lengthy terms of imprisonment after killing and/or maiming may serve as a ‘deterrent’ to a few people, for as long as intoxicated drivers think that the chances of it happening to them, and/or of being caught and convicted before it does is low, the scourge of intoxicated driving will continue,” he concluded.

Spate of excessively high speed and DUI offences is of major concern

JOHANNESBURG – Justice Project South Africa (JPSA) has noted the prevailing trend of motorists being arrested for allegedly driving at excessively high speeds reported by the Road Traffic Management Corporation. It has been reported that a 24-year-old motorist is due in court in Scottburgh, KwaZulu-Natal today (3 January 2017) for allegedly driving at 224km/h on the N2 highway on Monday. On Friday 30 December 2016, it was reported that a motorist had been arrested for driving at a whopping 293km/h on the Mabobane Highway in Tshwane.

There are several issues that are of major concern to JPSA, not least of which is the fact that there can be no valid justification for people to drive at such excessively high speeds on public roads, particularly in light of the high probability of crashes occurring.

It recently become law in terms of Regulation 215(1A) that all minibuses, midibuses, buses and goods vehicles with a GVM of more than 3,500kg registered on or after 1 December 2016 must be fitted with a speed governor limiting them to a maximum speed of 100km/h. The question must be asked: “if the maximum general speed limit applicable in South Africa is 120km/h, then why is it that all motor vehicles should not be speed-governed?”

Instead, it would appear that the RTMC is calling upon judicial officers to violate the provisions of Section 35 of the National Road Traffic Act by stating that Magistrates should cancel, instead of suspend the driving licenses of persons convicted of high-speed offences.

Section 35 of the National Road Traffic Act prescribed that courts must, upon first conviction, suspend the driving licence of any person convicted of driving where “a speed in excess of 30 kilometres per hour over the prescribed general speed limit in an urban area was recorded or a speed in excess of 40 kilometres per hour over the prescribed general speed limit outside an urban area or on a freeway was recorded”.

This is not a discretionary provision and judicial officers are required, in terms of this peremptory requirement to suspend the convicted person’s driving licence unless extraordinary mitigating circumstances relating to the commission of the offence. The minimum prescribed suspension periods are six months upon first conviction, five years upon second conviction and ten years on third and subsequent convictions. The same suspension periods exist for convictions for failing to stop at, or  fleeing from the scene of a crash where another person is injured or killed, or serious damage to property including a vehicle or animal occurs, reckless or negligent driving and driving under the influence of alcohol or drugs.

In December 2016, a KwaZulu-Natal Magistrate attracted the wrath and criticism of the RTMC when he imposed a R40,000 fine and suspended the driving licence of a man convicted for driving at 223km/h. What the RTMC doesn’t appear to realise, alternatively deliberately ignores is that judicial officers are compelled to act within the framework of the law. If the RTMC wants the driving licenses of convicted persons cancelled instead, then it should be petitioning the Minister and Department of Transport to amend the law, not criticising judicial officers for applying it properly.

It is also notable that the levels of arrests for driving under the influence of alcohol have spiked dramatically during the festive season. This offence is arguably amongst the most dangerous road crimes which can be committed by anyone, yet it remains a huge problem in South Africa. Sadly however, it is highly unlikely that we will hear of many convictions arising out of these arrests, due to the ongoing dysfunctionality which prevails in the Department of Health’s evidential blood testing facilities.

This, quite simply cannot be blamed on the courts, and the sooner proper and legally sound evidential breath alcohol testing is reintroduced, the better. The answer however does not lie in accusing the courts of being “soft on road crimes” and/or detaining accused persons for extended periods of time prior to them even seeing the inside of a court, as has repeatedly been suggested and threatened by the Minister of Transport and the RTMC.

Festive season carnage is of grave concern

JOHANNESBURG – Justice Project South Africa (JPSA) has noted with sadness the current festive season road carnage statistics quoted by the Minister of Transport yesterday.

The fact that 845 people have lost their lives on our roads in road crashes between 1 and 19 December 2016 and represents an immediate 17% increase over the same period last year is indeed cause for grave concern, particularly in light of the fact that a great many of the persons who were seriously injured in these crashes will pass away within the 30 day post-crash monitoring period. Typically, fatalities rise by around 30% within this time-frame. This means that an average of 58 people would have been killed daily on our roads in this 19 day period and this represents the highest level since record-keeping of road fatality statistics began in South Africa.

Whilst inclement weather conditions could be viewed as being a contributory factor, the fact still remains that competent drivers would adjust their driving to the prevailing conditions and therefore, driver incompetence is and remains the leading contributing factor in these crashes. Drivers’ aggression, over-confidence in their own and their vehicles’ abilities, risk-taking and blatant disregard for the rules of the road and indeed, safe driving practices is a learned behaviour and cannot be over-emphasised.

What is of concern to JPSA however is the fact that the Minister of Transport and others seem to be of the opinion that greater degrees of road safety can come about by continuing to ignore the root cause of road crashes and carnage in South Africa – the improper and inconsistent traffic law enforcement which takes place for the greatest proportion of the year.

Last year both, the CEO of the Road Traffic Management Corporation (RTMC) and the Minister of Transport threatened motorists with extended detention periods in police custody for committing serious road traffic offences, stating that the Department of Transport was in discussions with the Department of Justice to reschedule such offences to Schedule 5 offences under the Criminal Procedure Act. A full twelve months have elapsed since then and the Minister is again asserting that her department is currently speaking with the Department of Justice and is again levelling threats which threats are clearly being ignored by delinquent motorists.

It is apparent that in light of the abysmally low conviction rate for offences such as driving under the influence of alcohol has prompted authorities and the Minister to assert that persons accused of this offence and others should be punished ahead of even seeing the inside of a court and not only is this belief unconstitutional, but it is also terribly misguided.

JPSA fully agrees that persons convicted of serious road crimes should face the full might of the law and be exposed to “harsh” sentences. Where it differs dramatically with the Minister and her cohorts is the juncture at which offenders should be punished. There have been and continue to be numerous examples of people who are arrested for serious road crimes who end up being acquitted or having charges withdrawn against them – not because of so-called “technicalities”, but because no proper evidence exists against them. In some cases, these arrests arise due to incompetence on the part of law enforcement officials and sometimes, they arise quite simply because the alleged offender refuses to pay a bribe. Punishing such persons up front, as the Minister asserts should be done invites retribution and litigation.

The sad fact of traffic law enforcement in South Africa is that it is not practiced properly, ethically and consistently throughout the year and “stepping up” law enforcement efforts over the festive season and decreeing that “People must behave on the road, finish and klaar!” cannot reasonably be expected to address the issue. Drivers who are allowed to drive as badly and dangerously as they wish for the greatest proportion of the year, provided they do so within the speed limit quite simply cannot reasonably be expected to behave themselves when the Minister decrees that they should – over the festive season.

Instead of blaming “chauvinistic male” drivers, going further to classify them by race and continuing to level threats, JPSA advises the Minister to do some introspection and start holding those responsible for ensuring safety on our roads to account. A complete overhaul of traffic law enforcement, evidence handling and prosecution is required, as is the urgent and effective, proactive eradication of corruption in driver licensing and traffic policing. The introduction of the long-overdue driving licence points-demerit system also could not hurt, but only if law enforcement is overhauled first.

We also advise motorists to take responsibility for their own behaviour, exercise extreme caution on our roads and remain within the confines of the law and safe driving practices at all times.