On Wednesday 16 October 2013, the Gauteng Department of Community Safety tweeted on Twitter and posted on Facebook that:
- Passengers found to be drinking alcohol in a moving or stationary vehicle on a public road will be arrested as this is an illegal and arrestable offence.
- Public drinking and walking under the influence of alcohol is an illegal and arrestable offence (drunkenness).
Since JPSA chairperson, Howard Dembovsky has taken issue with point 1 of this post; we feel that it is important for Justice Project South Africa to clarify the reasoning behind this so that there is no confusion with our standpoint on the issue.
Firstly, whilst we completely agree that drinking alcohol in public and walking under the influence of alcohol is unacceptable and that it is a fact that intoxicated pedestrians account for a high proportion of persons killed and injured on our roads we do not agree that giving such people a criminal record necessarily archives anything other than assuring that people become unemployable.
Given the fact that most people who walk under the influence of alcohol usually originate from poorer communities, it is unfathomable that we should be seeking to completely preclude them from gaining employment due to having a criminal record against their names.
When it comes to passengers in motor vehicles who are found to be consuming alcohol; whilst passengers should be actively discouraged from consuming alcohol in a motor vehicle, again the same consequence of incurring a criminal record applies.
There are also other implications wherein we may be discouraging the use of designated drivers and “drive me home” services offered by numerous companies since their passengers could face even easier arrest, detention and conviction of a criminal offence, given the fact that there is NO REQUIREMENT for any breath or blood sample in order to gain a conviction for any of the offences in the Gauteng Liquor Act.
In response to Howard Dembovsky’s comments on Facebook, the Gauteng Department of Community referred to section 127(d) of the Police Act, Act 2 of 2003 which is not the correct name of the South African Police Service Act, Act 68 of 1995 which additionally contains only 73 sections. What they clearly meant to reference was Section 127(d) of the Gauteng Liquor Act, Act 2 of 2003.
The maximum penalty prescribed under this Act is a fine not exceeding R100,000,00 or to imprisonment for a period not exceeding ten (10) years or both such fine and imprisonment. However, the Admission of Guilt fine accepted by the South African Police Service for drinking or being intoxicated in public is a mere R300. Despite the FACT that a criminal record is additionally imposed the second someone pays such an admission of guilt fine in their desperation to be released from police detention, it is uncommon for people to be warned of this consequence at the time of paying.
On 12 February 2013, the then Gauteng Provincial Commissioner of Police at that time, Lieutenant General Mzwandile Petros issued a Provincial Instruction to cease arresting and detaining people for “B crimes”, which included drinking and/or being intoxicated in public places. This was in response to “a flood of indefensible civil claims against SAPS”.
Additionally, a Western Cape High Court reportable judgment by Justice J Dlodlo with Justice AJ Mantame dated 15 June 2012 (Review Case No. C2791423 | Magistrate’s Serial No. 21/2011 |High Court Ref. No. 111202) overturned a criminal conviction of Michelle Parsons who had incurred a criminal record through paying an admission of guilt fine for “disturbing the peace”.
This judgment holds that an accused person must be made aware of the fact that paying an admission of guilt fine after arrest or summons for a criminal offence of minor severity will result in them incurring a criminal record. Traffic authorities have been slow in adjusting their summons stationary, which bears further testimony to their lack of care about the consequences of their actions against citizens they prosecute.
Whilst the move by the Gauteng Department of Community Safety to suddenly start enforcing draconian and nonsensical legislation, ten year old legislation they have not enforced in the past will have a dramatic effect on improving their conviction rates but will also have a negative effect on the public. Such businesses as the “party buses” hired to corporates, etc. will also have to cease operations lest their patrons get arrested for violating the Gauteng Liquor Act.
South Africans Against Drunk Driving head, Caro Smit called this move “a silly and pointless exercise which does not address the real problem of driving under the influence of alcohol. Traffic police should be concentrating on screening and effectively prosecuting drivers for driving under the influence of alcohol and where pedestrians are found to be walking whilst intoxicated, taking them to a place of safety to sober up – not locking them up in police cells,” she said. “In addition SADD ask for all Traffic Police to have screening breathalyzers in their vehicles and to test both drivers at the scene of all crashes. If they are negative for alcohol they should be screened for other drugs, whenever death or severe injuries have occurred,” she concluded.
Lastly, despite us being more than half way through Transport Month, we note that the “name and shame” campaign of convicted drunk drivers previously successfully run in the Western Cape by Lead SA has still not been implemented on a wider (countrywide) basis as was indicated by the RTMC. This tool acts as a powerful deterrent to would-be drunk drivers and it is puzzling why it is not being utilized.
Should the Gauteng Department of Community Safety insist on proceeding with their plans to arrest people for the offences described in this release, it is quite conceivable that the Gauteng Provincial Government will attract a flood of civil claims for unlawful arrest their way, given the fact that it is unlikely that SAPS will choose to defy a Provincial Directive not to do so.
Arrest does not begin when a person is detained in a police cell; it begins when they are deprived of their civil liberty of free movement. We urge the Gauteng Department of Community Safety to rethink their strategy and come up with a solution that will further the objectives of road safety, not make them “look good” on paper by increasing their arrest statistics.
National Chairman – Justice Project South Africa (NPC)
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