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Driving licence card production backlog remains a big problem

File photo: African News Agency (ANA)

JOHANNESBURG – KwaZulu-Natal’s Department of Transport has said it will fine motorists for driving with expired driving licence cards, even where the Driving Licence Card Authority (DLCA) has been unable to provide the driving licence card after a proper application was made by the motorist.

Justice Project South Africa has criticised this move. “The DLCA is currently backlogged with applications due to a strike,” said JPSA chair, Howard Dembovsky. “A spokesperson for the Department of Transport has stated that a directive has been issued to law enforcement authorities not to prosecute motorists whose driving licence cards have expired without the new card being received as a result of the backlog.”

However, the KZN Department of Transport’s stance is that such motorists must, at a cost of R100 each, obtain temporary driving permits, or face prosecution.

JPSA said it would be surprised if the  KwaZulu-Natal Department of Transport could convince a court to convict a motorist who has made reasonable efforts to comply with the provisions of the National Road Traffic Act (NRTA), but has been denied a renewed driving licence card due to the inability of the National Department of Transport to produce it within the three month extension period provided for in the NRTA.

“This announcement is also cynical, coming in the midst of the festive season travel period when testing centres are unlikely to be able to meet such a sudden demand for temporary licences, and with many motorists already on holiday away from their homes and without access to the supporting documentation needed for an application,” Dembovsky added.

He reminded motorists that a driving licence is valid indefinitely, until such time as it is suspended or cancelled. It is only the driving licence card which should be renewed every five and a professional driving permit (also on a driving licence card) which must be renewed every two years.

Although a court may take the view that it is the motorist’s duty not to drive in contravention of the law, it is the State’s duty to ensure compliance is possible. JPSA strongly recommends that anyone who is fined after making application for the renewal of their driving licence card or professional driving permit defends the matter on the basis that compliance is not reasonably possible at such short notice during the festive season, and that the direct cause of the non-compliance is the State’s failure to manage the DLCA effectively.

BEWARE! Bogus “advice” on warrants of arrest

JOHANNESBURG – Over the weekend, a document purporting to be offering the services of the Law Society of South Africa and urging motorists to know their rights has again been doing the rounds on social media.

Justice Project South Africa has been in contact with the Law Society of South Africa and has also unsuccessfully tried to contact the former Law Society of the Northern Provinces, which has been replaced by the Legal Practice Council, to alert them to this anomaly. The Law Society of South Africa has confirmed the bogus nature of this document and says that it has been intermittently doing the rounds for around nine years now.

The “advice” given in this document is not only completely incorrect but is extremely reckless and malicious.

Warrants of arrest in respect of road traffic infringements have not existed in the Cities of Tshwane and Johannesburg since 2008, due to the implementation of the AARTO Act which does not include a warrant of arrest.

Elsewhere in the country, where road traffic offences are still prosecuted using the Criminal Procedure Act (including Ekurhuleni and Mogale City which abut Johannesburg and Tshwane) warrants of arrest are issued by Magistrates in respect of motorists who fail to appear in court when summoned to do so.

This arises out of written notices to appear in court in terms of Section 56 of the Criminal Procedure Act and summonses issued and served in terms of Section 54 of the Criminal Procedure Act being ignored by some motorists.

Warrants of arrest may be executed by any peace officer, not just a traffic officer or policeman and resisting arrest will almost certainly land that person in even hotter water than they would have been had they simply cooperated. In addition, a peace officer is empowered to arrest any person who commits an offence in his or her presence.

No-one may be arrested for failing to carry their driving licence with them, however they can be issued with a fine for failing to do so.

JPSA has repeatedly refuted several similar bogus documents and will continue to do so. We advise motorists NOT TO follow ANY of the “advice” in this bogus document doing the rounds on social media.

It is particularly important for motorists to know their rights and responsibilities around this time of the year because the festive season is almost upon us and with it will come intensified roadblocks all over the country. For further details on your rights as a motorist, please visit https://www.arrivealive.co.za/Rights-and-Obligations-when-stopped-by-a-Traffic-Officer.

RTMC’s 7 days in jail before bail “proposal” absurd at best – JPSA

JOHANNESBURG – Since Sunday 4 November 2018, the media has been abuzz over the RTMC’s plans to introduce a “7-days’ in jail policy” before a person who stands accused of driving under the influence of alcohol, reckless or negligent driving, or speeding may apply for bail.

In the Sunday Times report which triggered the buzz, Advocate Makhosini Msibi is quoted as saying: “Above all, it must not be automatic, you must spend seven days [in jail] before you can bring the application for bail.”

So vociferous are Msibi’s absurd assertions that on page 5 of the RTMC’s “Revised Strategic Plan 2015 – 2020” (signed off by Dr Blade Nzimande), Msibi states that “One of the initiatives [of the RTMC] is to re-classify all road traffic offences to Schedule 5 of the Criminal Procedure Act (CPA)”. Simply put, this means that even a person who is arrested for parking their vehicle incorrectly should, in Msibi’s mind, be detained for seven days prior to being permitted to launch a bail application.

There is no provision whatsoever, in any South African law which authorises the South African Police Service to detain a person for seven days prior to bringing that person before a court. In fact, the Criminal Procedure Act expressly prescribes that every arrested person must be brought before a court within 48 hours of their arrest and the Constitution of the Republic of South Africa expressly forbids the apartheid era style of detention without trial that the RTMC clearly wishes to reintroduce into South African society.

This “proposal” is absurd at best and represents little more than a crude attempt by the RTMC to abuse the well-established and legally sound bail process in our criminal justice system. It should be treated with the contempt it deserves.

Listen into SAfm at 09:30 on Wednesday 7 November where Howard Dembovsky will be going head to head with the RTMC on this topic.

AARTO to face constitutional challenge

Numerous provisions of the Administrative Adjudication of Road Traffic Offences (AARTO) Act, as well as certain provisions of the National Road Traffic Act are unconstitutional and should be struck down. These are the fundamental assertions made in court papers filed in the North Gauteng High Court by Howard Dembovsky, chair of Justice Project South Africa last week.

Dembovsky has said that both sets of legislation simply presume guilt on the part of an accused person, circumvent key principles in criminal law and facilitate what he describes as being “grossly unjust measures to extract revenues, facilitated through the coercive practice of withholding licence discs and other documents from persons, regardless of whether they have been found guilty of an offence or not”.

“I am seeking to enforce of my individual constitutional rights,” said Dembovsky. “The fact that my rights and the rights of my fellow South Africans are shared through the Constitution, means that should I win this challenge, every single motorist in the country will also have their rights enforced”.

His affidavit, which can be viewed and downloaded at www.aarto.co.za lays bare how the AARTO Act was implemented almost solely to extract revenue from road users, with road safety hardly featuring in it at all. The AARTO pilot project, which was meant to last no more than 18 months, is currently in its tenth year of operation, and an Amendment Bill currently being processed by the National Council of Provinces seeks to further diminish the constitutional rights of motorists, even going so far as to altogether remove the right to a fair trial for traffic offences. Dembovsky hastens to add that he is not however challenging the AARTO Amendment Bill at this juncture, since it has not yet been signed into law. “That bridge will be crossed when, and indeed if we come to it,” he said.

When asked what he thought should replace the AARTO Act if he wins this court battle, he replied that government and the law enforcement community should simply obey the law and enforce laws within the prescripts of the law. “20 years ago, the Road Traffic Act was not much different to what the National Road Traffic Act is today, and it was successfully enforced using the Criminal Procedure Act,” he commented. “At that time, a South African’s risk of dying in a traffic crash was one-third what it is today. But as time has progressed and policing has become lazier and more revenue-centric, so too has a general breakdown in law and order, coupled with sharp rise in the fatalities on our roads followed,” he continued.

He said that there are ways that the application of the Criminal Procedure Act in relation to road traffic infringements could be improved, but that the fundamental issues of equality before the law, the right to a fair trial and the presumption of innocence were enshrined in the Constitution and justice system are still catered for in that legislation and therefore, the Criminal Procedure Act is and remains ideally suited to prosecuting road traffic offences and infringements. He described the AARTO Act as creating a parallel system that tries to operate completely outside of the framework of the rule of law, in the interests of expediency and not justice.

“It is time government sat down, breathed deeply, and asked the most important question: ‘How do we reduce road deaths?’” Dembovsky said. “Chasing revenue by enacting unconstitutional laws and abusing the provisions of others is not the answer. If government genuinely wants to implement a points-demerit system, then one can easily be incorporated into the National Road Traffic Act without the need to run roughshod over the constitutional rights of people,” he concluded.

He believes that he has an exceptionally strong case and “looks forward to arguing it before the court”.

The AARTO Amendment Bill, e-tolls and losing your driving licence

The recent media hype surrounding e-tolls and the AARTO Amendment Bill is somewhat misleading and needs to be clarified.

While it is true to say that under the current AARTO Regulations, drivers of operator-class motor vehicles could have their driving licences suspended for failing to pay e-tolls, if the points-demerit system was in force now, this is not true with respect to drivers of around 91% of the registered self-propelled vehicles in South Africa.

Please note: “RWC” means operator-class vehicles.

Even though it has not been promulgated yet, a 7 December 2015 draft amendment to the AARTO Regulations indicated the intention of the Department of Transport to dispose of the single demerit-point applicable to charge code 3821 in Schedule 3 of the AARTO Regulations.

Please note: “RWC” means operator-class vehicles.

It is little more than a play on words to say that “not paying your e-tolls is not a traffic infringement” and “instead counts as disobeying a road sign”.

The descriptive wording of charge codes 3820 and 3821 is “Failed to comply with the directions conveyed by a road traffic sign by using a toll road without paying the toll charge”. Therefore the underlying infringement is driving on a toll road without paying the toll charge. Whether that toll charge is payable at an ordinary toll plaza or arises from passing under an e-toll gantry is irrelevant since the SANRAL Act, which is road traffic legislation, contemplates both means of toll collection and creates a road traffic offence for not complying.

SANRAL has failed to issue even a single infringement notice and prosecute even a single person for failing to pay e-tolls since the inception of e-tolling in 2013. The singular conviction, by plea agreement, of Dr Stoyan Stoychev in 2015, for number plate fraud and evading e-tolls in the process, does not alter this fact.

Perhaps part of the reason for this phenomenon is that serving infringement notices in person or by registered mail is a costly affair. The AARTO Amendment Bill seeks to introduce “electronic service” which will save issuing authorities and the RTIA astronomical amounts of money. The Bill also seeks to remove the right of an alleged infringer to elect to be tried in court and in so doing, to be afforded their constitutional right to a fair trial. As a result, issuing authorities, including but not limited to SANRAL, would never have to prove their allegations, if the Bill is signed into law.

JPSA maintains that, despite the AARTO Amendment Bill reportedly having been scrutinised and certified by the State Law Advisors, it will fail to pass constitutional and other legal muster if it is signed into law. The e-tolls issue is a separate, but interlinked issue and is yet to be resolved.

AARTO Amendment Bill – Gauteng public hearings

JOHANNESBURG – The Gauteng Provincial Legislature is holding public hearings on the AARTO Amendment Bill, 2015 at three venues around Gauteng in the coming weeks. Apparently, a fourth hearing took place at Springs Civic Centre yesterday, but obviously it’s too late for anyone to attend that hearing.

The dates and venues are as follows and all public hearings commence at 16:00:

Date Venue Area
Thursday
22nd March 2018
Braamfontein Conference and Recreation Centre
Cnr Harrison and Smit Street, Braamfontein 
Johannesburg
Monday
26 March 2018
Vereeniging Community Hall
Cnr. Leslie and Beaconsfield Avenue, Vereeniging 
Sedibeng
Wednesday
28 March 2018
Stanza Bopape Community Centre, Mamelodi East
Rammapudu Street, Ext 5, Mamelodi East 1 
Tshwane

No email address has been provided for written submissions but since the chairperson of the Roads and Transport Portfolio Committee at the Gauteng Provincial Legislature is apparently Mr. M. Mgcina, we are assuming that written submissions may be addressed to him via the Committee’s coordinator, who appears to be Mr Sithembiso Mthiyane, and whose email address is SMthiyane@gpl.gov.za.

This is the very last opportunity for motorists in Gauteng to provide their inputs and express their concerns with the Bill which primarily seeks to migrate traffic fines completely out of the jurisdiction of the courts and into a purely administrative system where motorists are presumed to be guilty from the second a traffic fine is issued. A points-demerit system also forms a small part of the AARTO Act.

JPSA encourages anyone who holds a driving licence and/or is the registered owner of a motor vehicle to take the time to read the AARTO Amendment Bill and participate in the public hearings. A copy of the Bill and an easy to understand summary of its more salient points is available at www.aarto.co.za.

Have your say: AARTO Amendment Bill hearings – NCOP Western Cape

JOHANNESBURG – It has come to the attention of Justice Project South Africa that the Western Cape Provincial Parliament is to hold public hearings on the AARTO Amendment Bill in Cape Town, starting next Thursday, 15 February 2018. These hearings form part of the process before the National Council of Provinces votes on the Bill, and motorists are strongly encouraged to take the time to participate in this process.

At this stage, JPSA is not aware of any scheduled public hearings in the other eight provinces, but we will keep an eye on things and will notify the public if or when we are made aware of other events.

The AARTO Amendment Bill seeks to amend many of the current provisions of the AARTO Act, in preparation for the national implementation of the AARTO Act, whereafter the long awaited points-demerit system is expected to be introduced.

“This may sound like good news to law-abiding motorists who have grown tired of the lawlessness on our roads, but there are numerous provisions of the currently applicable AARTO Act which, along with the proposed amendments contained in the AARTO Amendment Bill will literally make your hair stand on end,” says JPSA’s chairperson, Howard Dembovsky.

“For example, the AARTO Act does not interest itself with whether you are guilty or innocent of the infringement with respect to which a traffic officer issues an infringement notice to you”.

Whereas motorists are currently permitted to elect to exercise their constitutional right to a fair trial if they believe that they are not guilty, the AARTO Amendment Bill removes this “option” and replaces it with a Tribunal which may only be approached if one makes an unsuccessful written representation. Upon such an approach, which must be made within 30 days of the adverse outcome of a representation, the fee prescribed by the Minister of Transport must be paid to the Tribunal, for it to review the decision of a representations officer.

This is by no means the sole provision in the AARTO Amendment Bill that rings the wrong kind of constitutional bells and the Bill and the existing AARTO Act are full of provisions that JPSA believes will fail to pass constitutional muster.

The public hearings in Cape Town are scheduled to be held as follows:

DATE

TIME VENUE AREA

Thursday
15 February 2018

17:00 Bellville Civic Centre
Voortrekker Road

Bellville

Monday
19 February 2018

17:00 New Hall
Solomon Tshuku Avenue
Site C

Khayelitsha

Tuesday
27 February 2018

17:00 Mossel Bay Town Hall
Marsh Street

Mossel Bay

Wednesday
28 February 2018

17:00 Moffat Hall
Dahlia Street
Mount Pleasant

Hermanus

Thursday
1 March 2018
17:00 Kathy Johnson Multipurpose Centre
Bloekom Avenue

Clanwilliam

 

Written submissions will also be accepted and must reach Ms Shareen Niekerk (sniekerk@wcpp.gov.za), Committee Coordinator, fourth floor, Provincial Legislature Building, 7 Wale Street, Cape Town, by no later than 12:00 on Friday 30 March 2018.

You may download the AARTO Amendment Bill, 2015 as well as the currently applicable AARTO Act from http://www.wcpp.gov.za/ncop-legislation.

Below is the invitation sent out by the Western Cape Provincial Parliament’s Standing Committee on Transport and Public Works:

 

First-time offenders and serious criminal road traffic offences

A recent question posted on the Facebook group, Legal Talk SA has again highlighted the fact that few people understand the practical implications of being convicted of a crime – more especially when that crime relates to a road traffic offence. For some bizarre reason, it appears that a great many people do not regard road traffic offences as constituting a crime, but the fact of the matter is that nothing could be further from the truth.

It’s very easy to give other people advice when the consequences which will befall the person asking for advice don’t have any effect on you. As a result, one often finds advice being dished out on social media, and whilst much of this advice may be well-intended,  some of it can have an adverse effect on the person who places their reliance in that advice.

Below is some competent practical advice which will put anyone who stands accused of a road traffic crime in a better position to understand how they should go about dealing with the matter. It must also be noted that as much as this advice applies to road traffic crimes, it also applies to most other crimes for which the offender is arrested and fingerprinted, particularly where those crimes are regarded as being “minor crimes”, like disturbing the peace, for example.

The question posed in the Facebook group was as follows:

“Need an urgent help, I know I messed up, I got arrested for driving 143km/h in 100km/h zone, was released on bail same day, problem is that I was arrested in Ngodwana however I stay in Johannesburg, have been given a court date to attend in Nelspruit which is very far from Johannesburg, what I’m interested in is that what will be the judge Vedict be, how much fine, should I bring the fine the same day or I can pay in installments?”

No-one can accurately predict what the verdict of a Court will be, nor can they accurately predict what penalty will be imposed by a judicial officer if the accused person is convicted. The sentence handed down by a judicial officer in Court and which could be a fine or imprisonment is only part of the story and part of the consequences which will befall you and therefore, one should not be too hasty in making a decision on how to approach such a matter.

The first thing that everyone needs to understand is that when you are arrested for a road traffic offence, regardless of what offence it may be, that offence constitutes a crime, and if and when you are convicted of it or pay an admission of guilt fine in relation to it, you will incur a criminal record which will reflect on the South African Police Service (SAPS) Criminal Records Centre (CRC) database. This will in turn adversely affect your employment prospects and could also result in the refusal of a travel visa.

It is a current policy requirement of the SAPS CRC that a docket number and the fingerprints of a convicted person must be submitted to it in order for such criminal record to be registered, and therefore, if you are arrested and your fingerprints have been taken, and you are then convicted or pay an admission of guilt fine for any crime, no matter how serious or minor that crime may be regarded to be, you will incur a criminal record. Such a criminal record will endure forever, unless you apply to have it expunged after ten years or successfully appeal the conviction at some time prior to that.

Obviously, the best way to avoid incurring a criminal record is to simply always obey the law, however if you do happen to break the law then you must be fully aware of the consequences which will befall you before you make any decision on how to handle the matter.

You should never forget though that it is the duty of the State to prove its allegations, not of the accused to prove his or her innocence and this principle is adequately articulated and catered for in Section 35(3) of the Constitution of the Republic of South Africa, 1996. Furthermore, the provisions of the Criminal Procedure Act, 1977 (Act 51 of 1977) apply.

Whilst judicial officers (Magistrates and Judges) do have the discretion to allow a convicted person to pay the monetary penalty (fine) by means of a deferred fine, meaning that the fine can be paid off in installments, whether the fine is paid immediately or in installments will have no effect on the fact that a criminal record will be registered and will prevail against your name.

There is an old adage that goes “a lawyer who represents himself has a fool for a client” and it must follow that if you are not a lawyer but still choose to represent yourself in a criminal matter, you are placing yourself at a severe disadvantage. As alluded to earlier, it is for the State to prove your guilt in a criminal trial and not for you to prove your innocence.

Not that long ago, both, Julius Malema and Zwelinzima Vavi proved that just because they were arrested for allegedly excessively high speeds, does not mean that the State could prove that they were guilty. It’s all well and good that some people have suggested that this arose out of the political nature of these individuals and/or out of legal technicalities”, but one must remember that the measurement of speed is a highly technical matter and therefore is subject to technical rules and issues.

Admittedly, not everyone has the money to splash out on expensive lawyers, but the decision of whether or not you wish to engage the services of a lawyer to represent you in a criminal matter cannot be made solely on your current ability to afford to engage a lawyer, but must also consider the financial impact which incurring a criminal record will have on you, if you are convicted.

But what if you know that you are guilty and want to minimise the time you need to appear in court?

Well, you may plead guilty immediately when you are asked to plead, and in so doing, save the prosecution the time and effort which would be spent on  proving its case, and in turn the Court’s time in hearing the matter. But as much as a judicial officer may appreciate you not wasting the Court’s time by attempting to “defend the indefensible”, and as a result, may reflect this appreciation by imposing a more lenient sentence, the fact still remains that a criminal conviction will have an adverse impact on your life, going forward.

If you are a first-time offender and are genuinely remorseful, the prosecution may well be willing to enter into a diversion programme agreement with you prior to the matter going to trial and in so doing, keep the matter outside of the Court. Although the National Prosecuting Authority (NPA) in the Free State is reluctant to enter into diversion agreements with persons accused of road traffic offences, the NPA in most of the other provinces is generally not averse to this concept in deserving cases.

A good diversion programme will contain a mix of community service, as well as remedial education, designed to correct the behavior of the offender, rather than punish him or her. Any accused person may approach the public prosecutor to enquire about his or her eligibility to be entered into a diversion agreement, but once again, it is advisable to have a lawyer make such an approach, to ensure that you don’t end up inadvertently admitting guilt and being prosecuted anyway, or have a diversion agreement go awry by being improperly handled.

Once you have entered into a diversion agreement, you will have to appear in court where the criminal charges against you will be provisionally withdrawn. Once all of the conditions of the diversion agreement have been met, the matter will be permanently withdrawn. For more information regarding diversion, please speak to NICRO.

JPSA strongly supports the concept of diversion programmes for first-time offenders, not because it is soft on crime or in any way believes that anyone should be allowed to act as they wish, but because it realises and acknowledges the severe impact that incurring a criminal record has on a person who may not necessarily have intended to embark on a career of criminality. The trouble with imposing a criminal record straight off the bat is that, in its practical implementation, it actively precludes people from employment and people who are precluded from employment will invariably have to either become self employed, sponge off relatives or become a career criminal in order to survive. This, in turn, is not in the interests of justice or society as a whole.

On the score of criminal record checks, it is JPSA’s view that employment agencies and others who, instead of going to the expense and effort of lawfully acquiring the criminal records of individuals through registered Automated Fingerprint Identification System (AFIS) service providers, choose to acquire this information through those who unlawfully check the ID number of the applicant against the SAPS Crime Administration System (CAS) should be shut down and prosecuted. The only legal way to check a criminal record is to do so based on the fingerprints of that person and all other methods are strictly unlawful and generally involve corruption of police officials.

Scareware roadblock “warnings”

JOHANNESBURG – So-called “warnings” regarding roadblocks to be instituted by unnamed traffic law enforcement authorities have again been doing the rounds on social media, the most recent of which reads:

“Road block dates Dec 16 , 23. 30. All Friday’s. And through to Sat mornings. No mercy. One beer is over the limit. Jail till hearing Monday’s. Car will be impounded. If arrested. Min R 2000.00 to retrieve car if car is in road worthy condition. No outstanding fines and license up to date. Pass the word”.

This so-called “warning” is remarkably similar to another viral falsehood which did the rounds on social media around this time last year, claiming to have been authored by a political party councillor, wherein similar outlandish claims were made.

The threats which have originated from entities like the Road Traffic Management Corporation regarding extended periods of detention before trail and so-called “rescheduling” of this offence to Schedule 5 of the Criminal Procedure Act merely serve to exacerbate this disinformation and have clearly had a limited effect in deterring “drunken driving”.

Quite aside from the truly appalling grammar employed in authoring this particular scareware, many of the claims in it are without substance and are apparently designed to scare would-be “drunken drivers” into not taking a chance on the days in question by spreading garbage. Whilst it most certainly does not constitute “defeating the ends of justice” as has been claimed by some social media commentators, it can only have a limited effect since people have become desensitised to threats which generally amount to nothing.

Everyone should know by now that driving under the influence of intoxicating substances (alcohol or drugs) is extremely dangerous and accounts for a high percentage of road traffic injuries and deaths. No-one should be more concerned about being caught and prosecuted than they should be over causing a collision in which they, someone they care about or any other person could be injured or killed, but the fact still remains that driving under the influence of alcohol or drugs is one of the most serious road traffic offences anyone can commit.

Particularly during the festive season, road traffic law enforcement authorities step up their efforts regarding driving under the influence of alcohol and in so doing seek to arrest and prosecute those who simply refuse to heed warnings and/or feel that the facts of human biology and toxicology do not apply to them.

Contrary to popular belief, alcohol enforcement roadblocks and other operations do not only take place over weekends and public holidays. In the Western Cape “Random Breath Testing” has been in operation since July 2017 and in Johannesburg, daily alcohol enforcement operations take place in roadside stops all over the City. Both happen on a 24/7/365 basis. Encouragingly, other traffic law enforcement authorities are adopting a similar approach.

The days, times and locations of such operations cannot be “leaked” since they are planned and executed on the fly and have the effect of not causing huge traffic jams which tend to cause motorists to take a different route when the locations of massive roadblocks make their way onto live social media platforms like Twitter or even onto GPS navigation applications and devices which employ “live traffic” information.

The take-home message for all motorists should be that driving under the influence of an intoxicating substance is not only against the law, but is extremely dangerous and it is not worth taking a chance and trying to beat the odds. If those who can’t resist the temptation to spread “warnings” on social media really want to have a positive effect, then perhaps they should consider spreading this message:

“Driving under the influence of alcohol or drugs is extremely dangerous and could easily lead to injury or death. Alcohol enforcement operations can and do take place anytime, anywhere and if you are caught, you will face prosecution which will earn you 10-year criminal record if you are convicted. Be sensible. Don’t do it!”

Example social media messages:

OPINION: “Defeating the ends of justice”? Bah humbug!

Howard Dembovsky writes:

Once again, the role of social media in revealing the locations of roadblocks set up by the Metro Police is in the spotlight, this time involving allegations that an entire list of planned weekend roadblock locations has been “leaked” on a WhatsApp group.

According to the Sunday Tribune, the Acting Chief of the Durban Metropolitan Police Department, Steve Middleton on Friday evening, instead of adopting a professional policing approach in investigating the alleged crime and handling it in accordance with internationally applicable policing protocols, taken to Facebook to level threats against the alleged perpetrator.

“Hand yourself over or risk arrest” he allegedly demanded of “P Pillay” in his Facebook post.

What’s truly terrifying about this matter however is how Middleton is quoted as saying “We will open a charge of defeating the ends of justice with the police” and then saying “We will then liaise with the state prosecutors to see exactly what information and what evidence will be necessary to get a conviction”.

Surely even the most junior junior policeman would or should, if he is unsure of what the elements of a crime are and what evidence is required in order to secure a conviction, ask a state prosecutor to clarify the matter before taking any action which could come back to bite him and/or the Metro later? Failure to do so can only be described as reckless behaviour and often results in law suits which are ultimately settled out of court by insurance companies the Metros engage to provide them with “professional indemnity insurance”.

The fact that a so-called “Metro Police Chief”, who is the most senior of all people in Metro Police structures can have the audacity to admit to a journalist that he has no idea of what the legal test for a charge of “defeating the ends of justice” is, bears testimony to the utter incompetence of the top brass in many Metro Police structures. And we then wonder why it is that the rank and file of Metro Police Departments similarly demonstrate gross incompetence and tend to suffer from “Rambo syndrome”?

As Mr Middleton will no doubt find out, the legal test for a charge of “defeating the ends of justice” is stringent and merely informing a group of individuals you may or may not know but have no knowledge of whether they are involved in a crime or not of the location of one or more roadblocks does not even come close to meeting that test.

After all, even Google Maps, which is freely accessible to anyone with a smartphone references “police activity” when used to navigate the route with the least delays to your destination. I use it frequently, even when I know exactly where I am going and especially at this time of year when ridiculously long delays are caused by the showy roadblocks established to demonstrate to us all just how much the authorities “care about our safety” over the festive season.

Since I am making this admission in public and am referencing Google Maps, are charges now going to be brought against me and Google Inc for “defeating the ends of justice”?

I don’t drive drunk, in fact, I don’t drink alcohol or use drugs at all but if I did I think that knowing that there are roadblocks around would sway my decision in favour of using a “take me home” service, Uber or a taxi instead of risking arrest. If just one person were to be so swayed by the “leaking” of roadblock locations, then it would have the effect of preventing a crime and possibly even preventing injury or death – in other words, it would have the exact opposite effect to “defeating the ends of justice”.

This is not to say that I find the concept of sharing legitimate and lawfully constituted roadblock locations on social media to be in the interests of public safety, more especially when those roadblocks are utilised to detect criminals transporting contraband and/or to establish vehicle and driver fitness, but from my observation relatively few roadblocks are established for this purpose.

You see, numerous, if not most roadblocks established by Metro Police and other traffic authorities have little or nothing to do with crime prevention, road safety and/or assessing vehicle and driver fitness and some actually constitute a danger to road safety because of how and where they are set up.

Allegedly, on Sunday 26 November 2017, the Ekurhuleni Metropolitan Police Department set up a roadblock on the R21 freeway in Kempton Park and this had the effect of causing what can only be described as ridiculous delays to motorists on that freeway.

The apparent sole purpose thereof was to execute warrants of arrest against motorists who had failed to appear in court and the operation could not have yielded more than a handful, if any such arrests. If it had, it would have been plastered all over the media by the EMPD as they have done in the past when they managed to execute a remarkable sixteen arrests over a period of two and a half hours, whilst simultaneously causing undue and unjustifiable delays to thousands of motorists heading to and from OR Tambo International Airport.

Allegedly, a woman driving with her young children in her car spent 100 minutes (almost two hours) reaching the front of the queue, only to be waved through without so much as a single, let alone second glance at her or her vehicle and apparently because her number plate did not trigger an alert with respect to a warrant.

She was, as I can only assume others were, extremely annoyed by this grossly unreasonable delay and given the fact that she was nothing more than an innocent party for whom the Metro Police have no regard caught up in this abusive practice, she tweeted the location of this roadblock. Apparently, the not-so infamous PigSpotter with more than 534,000 followers did the same.

A couple of years ago, the PigSpotter was regarded by the Johannesburg Metropolitan Police Department as being “public enemy number one” and people like Wayne Minnaar engaged in a slew of threats to track him down and prosecute him for “defeating the ends of justice” as well as for crimen injuria for calling Metro cops ugly names.

What became of that? Blow all, except for his astronomical rise to stardom, a phenomenal growth in his Twitter followers and the eventual registration of a company by the name of PigSpotter (Pty) Ltd through which Cliff Pinto gets to sell PigSpotter memorabilia.

The Durban Metro Police Department has apparently learned nothing from this phenomenon and what’s worse is that its so-called “Chief” apparently thinks that it’s clever to take to Facebook to vent his frustrations over his own glaringly obvious failure to implement sufficient internal controls to prevent the leaking of confidential information from within the very organisation he heads. He even goes so far as to publicly admit that this was “not the first time that information has been leaked”.

Just whose fault is that? After all, he is the so-called “Chief of Police” and is ultimately responsible for each and every action and incident arising from within the Metro Police Department.

If I were Middleton, I would have quietly investigated the origin of the leak, gathered the requisite evidence to convict the staff member responsible and made damn sure to plug the hole in the system. There’s also another option – to put out hordes of false information in order to deter would be “drunken drivers” and encourage them to use public transport as has been done by some Metros in the past, or to engage in “random roadside breath alcohol testing” as is currently being practiced in the Western Cape if your sole purpose is to catch “drunken drivers”.

The very last thing I would have done, if I did it at all, would have been to take to social media to throw a hissy fit and publicly identify and threaten a member of the public with arrest.

For as long as I can remember, KwaZulu-Natal has had a “zero tolerance” policy yet it has consistently managed to deliver the most catastrophic road death statistics in the country. Perhaps it’s time for it to consider adopting a less tolerant approach to incompetence within its law enforcement entities, or is this simply asking too much?

Howard Dembovsky is the Chairperson of Justice Project South Africa

See also: “Can you be arrested for flashing lights warning other motorists of speed traps?” by Advocate Johan Jonck here.