The charges of “defeating or obstructing the course of justice” has been discussed in several forums lately – mostly with reference to a Twitter user called @PigSpotter and tweets relating to speed enforcement and road blocks. I do not wish to discuss the @Pigspotter scenario in detail – but rather focus on one specific aspect – the flashing of lights to approaching motorists once having passed a traffic officer.
In recent months there has been media reports of some provincial transport/ traffic authorities stating that motorists who are flashing lights should be arrested on the spot.
Having read law and lectured in criminal law I believe that this is not correct and it is important to share with both motorists and traffic officials the truth about our criminal law and the effect thereof on traffic enforcement on the roads.
2 Questions – Offence and Arrest
The above question requires that we answer 2 separate questions
A – Is it an offence to flash lights at motorists?
B – If this is found to be an offence – should the offender be arrested?
“The crime of defeating or obstructing the course of justice consists of unlawfully and intentionally engaging in conduct which defeats or obstructs the course or administration of justice.”
In answering question A – whether flashing lights is an offence – I would like to refer to the Criminal Law Text Book from Snyman. Snyman reveals that there are conflicting judgements:
“If a motorist warns other motorists of the presence of a speed trap by flashing his lights , he interferes with the due administration of justice, and according to the decision in Naidoo [1777 2 SA 123 (N)] commits an attempt to defeat the course of justice. However, in S v Perera [1978 3 SA 523 (T)] in which the facts were materially the same, it was held that the person committing the act will only be guilty if he has reason to believe that the vehicle approaching him is exceeding the speed limit, or that the driver of this vehicle has the intention of exceeding the speed limit. In as far as these two decisions are irreconcilable it is submitted that the latter should be followed. This type of conduct is in effect nothing more than a warning to others to obey the law”
It is important to reflect on the importance of this paragraph. If you flash lights at an oncoming vehicle and that vehicle is driving within the speed limit – such a driver is not facing any penalty nor committing any offence – and you could not be “defeating or obstructing the course of justice”
I would like to concur with Snyman that the burden will be on the prosecutor to prove that you were aware of the fact that the oncoming driver is exceeding the speed limit or is having the intention of doing so. I believe that this might well be impossible for the prosecutor.
Should an arrest be made?
If flashing of lights is an offence –should the offender be arrested? This 2nd question needs to be considered with caution by any arresting officer. The Constitution protects the rights of every individual – and law enforcement officials should take notice not only of Criminal Procedure Act – but also of applying their arresting powers in line with the Constitution.
Arrest at roadside will amount to arrest without a warrant. Recent judgements from our courts make it clear that any arresting officer should ask the question “Are there any milder means available to ensure the appearance of this person before the courts?”
Once a motorist has been stopped, and his vehicle registration and drivers’ license can be produced to confirm his identity and even residential address, he may be summoned to appear before the courts and there are most definitely “milder means” available to ensure that the person appears before the courts.
To demand the arrest of motorists who flash lights is somewhat irresponsible and not in line with the judgements from our highest courts.
Speeding is a contributing factor to many fatal road accidents –and car insurance claims on our roads. I would like to urge all motorists to maintain a safe speed and a speed which is within the legal speed limits. They should do so –not to avoid traffic fines – but to allow themselves and other road users a greater opportunity for safety!!
There are many reasons why people flash their lights at oncoming traffic. These could include:
– A reminder that it is time to turn the lights on at dark
– A warning of a blocked road at a dangerous spot ahead
– A vehicle accident ahead
– Animals crossing the road or other road obstructions
– Pedestrian activity or children next to the road presenting a danger
– Something hanging from beneath the oncoming vehicle
– And the presence of traffic officials ahead…
To demand the arrest of motorists flashing lights is not the right way to enhance road safety! This may only further strengthen the unfortunate belief amongst many that speed enforcement is only aimed at making money for local municipalities…
May we rather focus on road blocks and visible policing to address all the threats to road safety and create more awareness of the dangers of speeding, overloading, un-roadworthy vehicles etc!