Plans to change the law to have drunk drivers spend seven days behind bars before being eligible for bail are unlikely to succeed and could face considerable legal backlash if implemented.
The Justice Project South Africa (JPSA) said if the proposal submitted to the department of justice by the Road Traffic Management Corporation (RTMC) was approved, it would “fight it tooth and nail”.
The RTMC demanded that driving under the influence (DUI), speeding and reckless or negligent driving be reclassified in the Criminal Procedure Act.
It argued that drunk and negligent driving accounted for the most arrests made by the JMPD monthly and proposed the offences be upgraded from schedule 2 to schedule 5 offences.
This would see drunk drivers being treated in the same way as those accused of serious crimes, such as rape, murder, theft and fraud.
The RTMC also proposed that offenders be detained for up to seven days before they could be considered for bail.
Current law allows for detainees to be granted bail in a matter of hours after arrest.
Although the RTMC proposal was delivered to the department a few years ago, discussions on the proposal have only recently gained traction.
“That proposal dates back to when Dipuo Peters was minister… Recently there was a meeting to revive the discussion about this proposal and take it forward – that is how far it is at this stage,” said Justice Minister Michael Masutha’s spokesperson, Mukoni Ratshitanga.
JPSA national chairperson Howard Dembovsky said there was no provision in South African law for the South African Police Service to detain anyone for seven days before being brought before a court.
He said there was a remote chance the proposal would be approved, but the JPSA would “fight it tooth and nail” because they are not ready to have the RTMC turn the country into a fascist state.
He said: “No one is saying they shouldn’t deal with crashes linked to drunk and negligent driving, or that they should not deal with drunk driving at all.
“However, you cannot adopt the mentality of not proving someone is guilty before detaining them.
“If that’s the case, we should just shut down all the courts and save money. It’s unconstitutional!”
Legal expert Andrew Boerner echoed Dembovsky’s sentiments, saying it was unlikely the proposal would be accepted because it violated the constitution. A process was needed to deal with drunk and reckless driving, but changing the schedules would not help.
“It is more of a social issue. A more effective [solution would be to] create a new court dedicated to dealing with drunk and negligent driving. This would help with the backlog and deal with the cases quicker and more efficiently, [which would] deter people from drinking,” said Boerner.
Dembovsky said: “I respect [RTMC chief executive Adv Makhosini] Msibi but I don’t understand how an advocate can misunderstand the justice and criminal system and say things like this…
“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.”