Rescheduling road traffic offences to Schedule 5 offences is not the answer

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 immediately.

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 scrapped.

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 those issues.

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.