Gauteng Community Safety missing the point
Punishment doesn't fit the crime, says JPSA.
The Gauteng Department of Community safety has been criticised heavily by Justice Project South Africa (JPSA) and South Africans Against Drunk Driving (SADD) for its recent tweets and facebook comments.
On Wednesday 16 October the Gauteng Department of Community Safety tweeted on twitter and posted a statement 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 and that members of the public drinking and walking under the influence of alcohol also are committing an arrestable offence (drunkenness).
Although JPSA and SADD agree that these crimes are a problem they do not agree with the punishment.
Howard Dembovsky had the following to say about the matter.
“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.”
Dembovsky went on to explain that “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 terms of 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, or 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, the then Gauteng Provincial Commissioner of Police, 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 their 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,” says Dembovsky.
Whilst the move by the Gauteng Department of Community Safety suddenly to start enforcing draconian and nonsensical ten-year-old legislation they have not enforced in the past will have a dramatic effect on improving their conviction rates, but also will have a negative effect on the public. Such businesses as the “party buses” hired to corporate companies also will have to cease operations lest their patrons get arrested for violating the Gauteng Liquor Act.
“Should the Gauteng Department of Community Safety insist on proceeding with their plans to arrest people for these offences, 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,” says Dembovsky.
