Below is the exact contents of today's COSATU media release. Go on, join in. You know you want to!

COSATU rolling mass action on E-tolling and Labour Brokers

The Congress of South African Trade Unions is mobilizing its two million members for the mother of all protests against  the act of highway robbery set to be committed from 30 April 2012 - the Gauteng e-tolls!

The federation filed a Section 77 notice on 16 April 2012 which will enable workers to engage in protected protest action in the form of a national stay-away on the 30 April 2012.

As part of the mobilisation programme against the veiled privatisation and commodification of our roads through the e-tolling system, COSATU will be embarking on marches, pickets, rallies, sit-ins and freeway blockades across most of our provinces.

COSATU will also be undertaking various protest actions in different provinces as part of advancing our demand for the banning of labour brokers.

Details of the Protest Activities

Gauteng

·         Night vigil at the Tshwane Department of Roads and Transport on 25 April 2012

·         Picket at the SANRAL offices on 25 April 2012 from 12h00-14h00

·         Pickets at the Tshwane Department of Roads and Transport on 26 April 2012 from 15h00

·         Freeway/Toll Road Action on  30 April 2012.

North West

·         Night Vigil at the Swartruggens toll gate on the 20 and 21 April 2012

Eastern Cape

·         Provincial marches on 21 April 2012 in East London, Port Elizabeth, Mthatha and Lusikisiki

·         Workplace lunch hour demonstrations and pickets from 26-30 April 2012

Free State

·         Joint local Shop Stewards council on 21 April 2012, Bloemfontein

·         Workplace lunch hour pickets and demonstrations from 23-24 April 2012

Western Cape

·         Occupation/Siyalalala/Sit-in at the Provincial Department of Labour offices on 23 April 2012

·         Workplace lunch time pickets and demonstrations 24^th April 2012 at Epping Bofor Circle - Montague Gardens and Woolworths distribution centre in Montague Drive

COSATU is confident that that the 30^th April actions we will be joined by thousands of angry residents and motorists who support our demand for the scrapping of the e-tolling system.

COSATU strongly believes that the pressure of the masses is crucial to forcing government to back down on this blatant extortion. Our aim is to make the tolls uncollectible and force the government and SANRAL to find more equitable ways to pay for road improvements.

We urge all members of the public, across different parts of South Africa, to pledge support for the campaign by joining the protest actions and by defying the call to purchase e-tags.

Phindile Kunene (Shopsteward Magazine Editor)

Congress of South African Trade Unions

P.O.Box 1019

Johannesburg

2000

South Africa

Tel: +27 11 339-4911/24

Fax: +27 11 339-5080 / 6940

Mobile: +27 79 167 9544 or 82  494 2409

JOHANNESBURG – The recent spate of outrageously high fine amounts (100 times the original penalty amount) on AARTO 09 results of representations originating from the JMPD when they summarily reject AARTO 08 representations has caused widespread panic and disbelief in the hearts of affected parties.

The explanation that has been offered by the JMPD through the RTIA’s deputy registrar, Mr Sherman Amos on the Midday Report on talk Radio 702 was that that this was caused by a “software upgrade” which has now caused the JMPD’s finances to be represented in cents. This explanation differs from the one given to the Times Newspaper which said that it was caused by the dropping of a decimal point. 

The example below is from an AARTO 09 received by someone in January 2012 and as can be clearly seen, there is no decimal or cents value on it.

The latest AARTO 09 documents have two extra zeros on them:

The question that must be asked is what possible reason could the JMPD or their contractors have had to change their accounting records and the references in these documents to cents, with a Rand symbol in front?  It is far more likely that this “error” was deliberate on the part of the JMPD and/or their contractors in order to scare people into going into their offices to query these things, rather than elect to be tried in court because the JMPD is now starting to haemorrhage money due to people wising up to the unlawfulness of the JMPD’s actions.  The RTIA should also not be making excuses for the JMPD if they are not prepared to compel them to obey the law and are going to allow them to appoint unqualified representation officers.

Additionally, a simple comment to the Beeld Newspaper stating that “motorists should not panic if they found themselves confronted with fines of, for example, R50,000 or R300,000” and a radio interview here and there is not good enough.  Of course people will panic!  It has taken almost two years for people to begin to wise up to the fact that sending AARTO 03 infringement notices by ordinary mail is contrary to the Act and a simple, small press article in one newspaper is simply not going to cut it.  The JMPD and RTIA should be forced to at the very least run full page adverts in all newspapers apologising to and reassuring motorists that this was an “error” if that is what it was.

The amount of affected parties – reportedly 50,000 in one batch is also cause for concern, given the fact that this would appear to represent a single month’s worth of representations rejected by the JMPD.  JPSA has also been told that people who are trying to hand in AARTO 10 election to be tried in court documents are being refused and told that they must pay “as these fines are not going to go away”.  If this is true, then the JMPD is violating people’s right under the Constitution to be tried in a competent court.

The JMPD is very good at making up excuses and pretending that they are blameless and a legitimate entity.  They seem to be under the impression that they can make up provisions as and when they wish to do so, and can discard the provisions of the AARTO Act to suit themselves.  From 1 June 2010 the JMPD began sending out infringement notices that they previously sent by registered mail in accordance with the Act by ordinary mail, thus negating the entire AARTO process.

The JMPD’s explanation for this has been that the AARTO Act does not specifically prohibit sending infringement notices by ordinary mail, however what they have neglected to note is that the Act says that they must be served by registered mail.  A complaint was lodged with the Public Protector by JPSA on 17 June 2011, after all other avenues to get the JMPD to act lawfully failed.  This has still not resulted in the resolution of this anomaly.

In December 2011, the JMPD suddenly contracted a large number of individuals to summarily reject representations and advise people to either pay the fines or elect to be tried in court.  We have been informed that elections to be tried in court are not

being accepted by the JMPD and they are informing people that they have to pay the fines as a court will not listen to them.  This is a violation of the Constitution of the Republic of South Africa and the right of every accused person to:

• Be presumed innocent until proven guilty by a court, and
• Be subjected to administrative justice which is “administrative action that is lawful, reasonable and procedurally fair” which is most certainly not the case with respect to how the JMPD is acting as police, judge, jury and executioner.

The JMPD is clearly under the impression that they:

• May presume that people they accuse are guilty until they prove themselves innocent, and
• The JMPD is not obliged to comply with the prescripts of legislation passed into law in South Africa.

JPSA advises all motorists who make representations and have them rejected to immediately exercise their rights under the constitution and elect to be tried in a competent court, which don’t employ administration clerks who know nothing of the law to do their dirty work for them.  If the JMPD attempts to refuse you this right, then insist that they accept your election and do not take no for an answer.

Howard Dembovsky may be contacted for further comment.

JOHANNESBURG – Justice Project South Africa has responded with amazement to the fact that SANRAL has claimed in its media statement that the essence of the “South African National Roads Agency Limited and National Roads Act Regulations Draft” is not intended to compel motorists to buy eTags and register with SANRAL.  With the exception of the first paragraph, their release (below ours) reads like an advertisement for eTags and nothing more!

The core essence and purpose of the draft legislation, whilst not directly stating that motorists will actually be forced to have SANRAL’s modern-day, electronic dompas in their vehicles is quite clearly intended to provide for just that.

The draft legislation deals almost solely with the appointment of enforcement officers under section 54 of the SANRAL Act which wasn’t previously defined in the SANRAL Act and now seeks to legislate that “an employee in full or partial uniform” may “at any time enter any motor vehicle and inspect such vehicle and any electronic device installed therein for the purpose of toll collection.”

If indeed there is no requirement for motorists to have an electronic tag, then why would it be deemed necessary to write 3(1)(g) (amongst others) into this legislation?  Why also does the Department of Transport feel that it is necessary or justified to grant the SANRAL Gestapo-like powers which surpass those grated to real law enforcement agencies like the South African Police Services with respect to search and seizure of people’s vehicles and driving licences and other licensing documents? 

So rushed was this draft legislation that the “(1)” part of 3(1)(g) was in fact left out in the document published for comment.  The legislation drafters were also quite clearly ignorant of the existence of two other little pieces of legislation – the Criminal Procedure Act and the Constitution of the Republic of South Africa; which enshrines the right of every person not to have their person, home or property (which includes a motor vehicle) searched without warrant.

Had the Department of Transport and SANRAL have not adopted the arrogant attitude and grossly incompetent lack of attention to detail they have with respect to this entire eTolling debacle, they would not have had to rush to draft poorly thought out legislation or waste people’s time commenting, within very tight timelines, to draft legislation which violates the Constitution and therefore cannot constitutionally be passed into law by Parliament – unless of course, the Constitution is discarded and changed in its entirety as has been mooted recently, prior to enacting this atrociously ridiculous draft legislation.

Howard Dembovsky may be contacted for further comment.

From: Felix Sebata [mailto:felix@magna-carta.co.za]
Sent: 03 April 2012 11:41 AM
Subject: Media release: SANRAL response: Road users not obligated to buy an e-tag

Dear News Editor,

NEWS RELEASE
3 April 2012

Road users not obligated to buy an e-tag

The South African Roads National Agency SOC Limited (SANRAL) would like to clarify to road users that it is not compulsory for road users to buy an e-tag for Gauteng e-tolling. Registering with an e-tag is optional. Road users are therefore not forced to buy an e-tag but are encouraged to obtain one to enjoy the cost saving benefits available to e-tag users.

The registration procedure communicated by SANRAL and stipulated on the SANRAL website states that the road users can register for Gauteng e-tolling with a South African ID or passport number, physical and postal addresses, contact details (cell phone, landline, fax number and/or email address), account payment details (either cash or bank account or credit card details for those who choose the debit order option), vehicle licence plate number, and make and model of vehicle. Users are also not required to provide their banking details. There are many payment options including cash or electronic funds transfer (EFT) from which the user may choose to set up the e-toll account.

Having an e-tag linked to the e-toll account is an option that is chosen by the road user. The e-tag qualifies road users to the e-tag related discounts. These include the 48 percent e-tag discount and frequent user discounts that are available only to e-tag users. The e-toll tariffs have also been capped at R550 per month for motorcycles and light motor vehicles that are registered with an e-tag.

The e-tag also offers road users protection against licence plate cloning as the e-tag cannot be cloned. The e-tag is linked to one specific vehicle and can only be used with that vehicle.
ENDS

Issued by the South African National Roads Agency SOC Limited
Email: pressoffice@nra.co.za

JOHANNESBURG - Several weeks after announcing "The South African National Roads Agency SOC Limited (SANRAL) would like to unequivocally state that no staff from either SANRAL or its toll operator, ETC, have conducted any roadblocks as described in the emails and social network postings that allege this" on the SANRAL website and in media releases sent out to the press, SANRAL has commissioned auditing firm Deloitte & Touche to conduct a "forensic investigation" into the matter.  This has come after Howard Dembovsky of Justice Project SA sent an email to several parties at SANRAL, including but not limited to its CEO Nazir Alli enquiring why it was that such a claim had been made without him so much as being contacted to shed any light on the matter.

The word "unequivocally" means "leaving no doubt and/or unambiguous" and one has to ask why SANRAL chose to put the cart before the horse in issuing such a definitive statement and only initiating an investigation several weeks after doing so. But putting the cart before the horse seems to be the manner in which SANRAL operates and this is evident by the entire saga that has surrounded the Open Road Tolling (eTolling) issue of the Johannesburg and Pretoria freeways.

"I can confirm that I have met with Advocate Tommy Prins of Deloitte & Touche and have furnished him with information that has come into my possession" said Dembovsky. "I can also confirm that I have visited the Linksfield Road onramp to the N3 South freeway during the course of this week and have filmed the entire stretch of the onramp where it was claimed by SANRAL that their staff were doing road markings and there are no new markings, and indeed no markings associated with tolling on that onramp" he said.

Several people have claimed that they were stopped in the roadblock that took place on Sunday 22 January and one has even stated that she was told that if she did not register there and then, she would be given a "spot fine" of R4,500, which she would have to pay immediately. Because these people wish to remain anonymous and not risk reprisals or intimidation, SANRAL has chosen to label their statements as "rumours".

It is not at all uncommon for people to feel threatened and worried that if they come forward with information they will be targeted and thereby put themselves and their families at risk. To the contrary, this fear is a very real one and little or nothing has been done to allay these fears.

However, this having been said, JPSA would like to appeal to anyone who was affected by this or any other "roadblock" to contact Advocate Prins directly - or if they would be more comfortable doing so, to approach JPSA who will keep their personal details strictly confidential if they do not wish to be named.

It is interesting to note that, despite commissioning this "independent forensic investigation" on 7 February 2012 , SANRAL seems to have chosen to keep this fact quite and it has been left to JPSA to call for members of the public to come forward with information. Surely if SANRAL really wants to get to the bottom of this, one would think that they would have shouted from the rooftops that they have commissioned this investigation? It is difficult to imagine how an investigation into this matter can succeed if no witness statements are sought and 11 days after the investigation has been launched.

Anyone who is prepared to provide information on this mysterious event is urged to contact any one of the following people urgently:

Deloitte & Touche

Advocate Tommy Prins (SC)

Tel: 011 806 5484 or 012 482 0262
Direct Fax: 011 388 5005

Cell: 082 824 2815

Email: tprins@deloitte.co.za

Justice Project South Africa

Please see details here and ask for Howard Dembovsky.

JOHANNESBURG – It was with surprise that JPSA and the Automobile Association of South Africa read an article which appeared in the Beeld Newspaper of Tuesday 1 February 2012 entitled “Dok op of gaan na hof” (cough up or go to court), referring to the service of AARTO infringement notices sent by ordinary mail by the JMPD.  We have subsequently obtained the additional letters referred to in this article and they have reference.

As has been widely reported, JPSA laid an official complaint with the office of the Public Protector in Pretoria (complaint reference: 40832/11) in June 2011, after numerous attempts to address the matter through the JMPD, RTMC and RTIA failed, despite the then acting Registrar of the RTIA repeatedly stating in the media, in radio interviews and in writing that the service of AARTO 03 infringement notices by ordinary mail was NOT lawful.

On 11 January 2011, the then Acting and now fully appointed Registrar of the Road Traffic Infringement Agency (RTIA), Mr Japh Chuwe wrote to the JMPD “requesting” that they cease sending out infringement notices by ordinary mail in contravention of Section 30(1) of the AARTO Amendment Act. This “request” was summarily ignored – as happens when requests are made.

In the same letter, Mr Japh Chuwe also instructed as follows: “You are furthermore advised that in cases where representation applications are received in respect of infringement notices served by ordinary mail, those infringement notices must be withdrawn and such representations made successful. In relation to those infringement notices referring to juristic persons, the owners of those vehicles in question cannot be requested to identify or nominate drivers as the initial notices were not properly served as prescribed by the Act.”

In his letter to van der Westhuizen Attorneys dated 31 January 2012, Mr Chuwe stated “My letter as referenced by you to the Chief of the JMPD dated 11 January 2011 was and is not intended for public consumption…” and “…the individual infringers de facto received the relevant infringement notices albeit through ordinary mail (caused to be served) and through representations made by them as provided for in the Act, acknowledged receipt thereof and are therefore liable.”

These statements openly display the fact that Mr Chuwe has acknowledged that he was the author of the letter to the JMPD – which he further intended to keep secret, as well as proving beyond any reasonable doubt that he has actively engaged in an act of entrapment by repeatedly and publicly stating that alleged infringers may “make representation on an AARTO 08 form if they receive infringement notices by ordinary mail.”   This “advice” was also offered by him in writing in September 2010 in his response letter to JPSA’s complaint!

It therefore appears that Mr Chuwe has now made a complete turn-around on what he has previously said and put in writing, including but not limited to his letter to JPSA and subsequent letter to the JMPD; seemingly in active support and defence of the unlawfulness of the JMPD’s patently obvious unlawful actions.  Both the AA and JPSA view his latest action as patently dishonest and contrary to his mandate to ensure that AARTO is applied in a fair and equitable manner and JPSA hereby calls for his immediate sanction for engaging in such blatantly dishonourable practices.

JPSA has furthermore been informed that the meeting that was scheduled to take place between the Public Protector and the JMPD, RTMC and RTIA on Friday 27 January 2012 was summarily cancelled by the City of Johannesburg on Thursday 26 January and that a commitment to respond in writing by Monday 6 February was made.

Whilst JPSA understands that the office of the Public Protector has to remain reasonable in accepting “alternative offers” by the respondents in this matter with respect to meeting dates etc., and we are not in the least bit surprised that the JMPD has shown gross disrespect for the seriousness of this matter by cancelling a meeting a mere 24 hours before it was scheduled to take place – when this meeting was scheduled nearly two weeks prior to that date; we believe that this action simply goes to further display the total lack of respect that the JMPD has for anyone or anything other than themselves.

Over the past week and a half, JPSA has been inundated with queries from members of the public who, after previously receiving successful results on representations citing Section 30(1) of the AARTO Amendment Act have now received AARTO 09 results rejecting their representation and advising them to elect to be tried in court.  As stated in our release of Friday 20 January 2012, entitled “JMPD – ISSUER, JUDGE, JURY & EXECUTIONER”, JPSA was aware that this would probably happen due to an instruction given by Director Gerrie Gerneke in late December 2011.

JPSA and the AA wish to advise motorists who receive such responses to exercise their legal right to subsequently elect to be tried in court and not to succumb to this blatant attempt to defeat the ends of administrative justice, which is clearly designed to get them to pay unlawfully served AARTO 03 infringement notices.  We sincerely doubt that any Public Prosecutor would risk rebuke by a Magistrate by placing any such matter on the court role when they are well aware that a Magistrate will have to act within the framework of the law and find in the favour of the alleged infringer, or risk judicial review.

It is also doubtful whether it would ever come to the alleged infringer even being issued and served with a summons to appear in court prior to the Public Protector making a final finding on this matter, given the fact that our complaint is now more than seven months old and we remain hopeful that the Public Protector will wrap this matter up without further undue delay.

JPSA, the AA and multiple other parties have continuously and repeatedly warned of the dangers of allowing an issuing authority to be issuer, judge, jury and executioner by appointing and employing adjudication officers under AARTO, especially in light of the fact that adjudication is supposed to be a fair and unbiased function of Administrative Justice, just as it would be in a conventional court.  It is now obvious that this travesty of justice has been extended to the JMPD additionally replacing parliament in making up its own provisions of legislation – now in full support and cooperation by the RTIA conspiring with them to justify their action.

The following individuals may be contacted for further information and further comment:
Gary Ronald – AA South Africa – 083 386 6954 – email gronald@aasa.co.za
Howard Dembovsky – 082 418 6210

Collateral available by downloading this zip file (860KB).

• Letter from Japh Chuwe to JPSA dated 1 September 2010. NOTE HIGHLIGHTED SECTION
• Letter from Japh Chuwe to the JMPD dated 11 January 2011. NOTE HIGHLIGHTED SECTIONS
• Letters from HJ van der Westhuizen Attorneys to RTIA dated 23 and 30 January 2012.
• Letter from Japh Chuwe to HJ van der Westhuizen Attorneys dated 31 January 2012, signed by the deputy registrar of the RTIA, Mr Sherman Amos. NOTE HIGHLIGHTED SECTIONS

Khulubuse Zuma, the nephew of President Jacob Zuma and Aurora Empowerment Systems boss, has been arrested and tried for speeding in Ballito after his silver, convertible Maserati, was clocked at 181km/h.

Zuma, who is also chairman of the embattled gold mining company Aurora Empowerment Systems, was apprehended by Road Traffic Inspectorate officials in Ballito, on the KZN North Coast on January 9.

He was believed to have been in the company of his mother at the time.

He was arrested and taken to the Umhlali police station on January 9. The following day he appeared in the Umhlali Magistrate’s Court where he pleaded guilty and was handed a R3 000 fine.

According to police and RTI sources the vehicle was registered to Viglietti Motors in Cape Town. Manager Gareth Crossley said he could not confirm if the car had been loaned to Zuma or if he was a client.

“I cannot say anything. If we loaned him the car or if he is a prospective buyer is confidential,” said Crossley.

KZN police spokesman Captain Thulani Zwane confirmed the case. – IOL Staff Reporter

JPSA Responds

During December 2011, Transport Minister Sibusiso Ndebele stated that "all motorists arrested for traffic offences must have their driving licenses seized and suspended/cancelled." Collins Letsoalo, acting CEO of the RTMC was very quick to jump on the bandwagon, stating that section 25(1)(b) of the National Road Traffic Act gives him the power to do this. Several reports citing tens of thousands of driving licence suspensions/cancellations then also followed.

Now it emerges that Khulubuse Zuma has pleaded guilty to driving at 181km/h in an undefined speed limit zone. At best, he would have been 61km/h over the speed limit -at worst 141km/h since Ballito has speed limits of 40km/h. Either way, since 20 November 2010, it has been law that anyone exceeding the speed limit in an urban area by more than 30km/h and outside an urban area by more than 40km/h must have their driving licence suspended by the court unless mitigating circumstances of considerable proportion are found.

So here we have a man who, by merely bearing a favourable surname is sentenced to a R3000 fine and has no other consequences imposed on him when other motorists have had fines of five times that imposed on them and have had their driving licenses suspended. This incident happened on 9 January 2012 and once again, Sibusiso Ndebele, despite launching his tirades about how lawlessness on our roads has said absolutely nothing about this. No doubt he will once again say that people like us are "distracting public attention from the real road safety issues" when we say that making fish of one and fowl of the other sends the wrong message.

I personally, and many others like me, am sick to death of the Minister and his sidekick, Collins Letsoalo blowing smoke up everyone's behinds. In their opinions, "speed kills", but only if it is not their or their friends' vehicles involved!

Why it is that we as South Africans accept this kind of bull is completely beyond me. We must band together and demand that Ndebele and Letsoalo step down and that our Constitution is adhered to by giving every person equal treatment under the law. These two individuals are not Magistrates but they do have the power to ensure that the laws Ndebele enacts are adhered to by all involved. They simply don't seem to care, but that doesn't mean that we shouldn't, now does it?

With effect from 20 November 2010, the National Road Traffic Act demands that on conviction of certain offences, the driving licence of any person convicted of these offences shall be suspended for minimum periods. Amongst these offences are hit and run crashes, reckless or negligent driving, driving under the influence of alcohol and excessive speeding.  Since it came into play tens of thousands of driving licenses have been suspended and/or cancelled (according to the Department of Transport) but there have also been numerous cases where "high-profile" individuals have not suffered this fate. Consistency in application of the law is very important, however it is quite clear that the law in South Africa is being applied on a basis of who you are, not what you have done.

Below is Section 35 of the National Road Traffic Act and I certainly don't see any reference to exemptions under it - do you?

Authored and commented by Howard Dembovsky

JOHANNESBURG – Following the complaint lodged with the Public Protector on 16 June 2011 by JPSA and the ongoing saga surrounding the JMPD’s unlawful issue of AARTO 03 infringement notices since 1 June 2010, it has recently come to light that a new tactic is being employed by the JMPD to get people to pay unlawful fines.

On 11 January 2011, the then Acting and now fully appointed Registrar of the Road Traffic Infringement Agency (RTIA), Mr Japh Chuwe wrote to the JMPD “requesting” that they cease sending out infringement notices by ordinary mail in contravention of Section 30(1) of the AARTO Amendment Act. This “request” was summarily ignored – as happens when requests are made.

In the same letter, Mr Japh Chuwe also instructed as follows: “You are furthermore advised that in cases where representation applications are received in respect of infringement notices served by ordinary mail, those infringement notices must be withdrawn and such representations made successful. In relation to those infringement notices referring to juristic persons, the owners of those vehicles in question cannot be requested to identify or nominate drivers as the initial notices were not properly served as prescribed by the Act.”

It has emerged that not only has the JMPD defied the “request” to cease acting unlawfully with respect to service, but that the AARTO Representations office at the JMPD’s offices in Village Road, Selby is turning people away and telling them that they must either pay these fines  or elect to be tried in court.  This is a gross violation of not only the AARTO Act, but also of the Promotion of Administrative Justice Act and the Constitution as the JMPD is now denying people access to administrative justice.

We were informed that this practice was ordered by Director Gerneke in late December 2011, but were unable to verify its implementation until Wednesday 18 January, when JPSA’s National Secretary was subjected to this treatment.  She stood her ground and insisted that they take the representation forms she was submitting – neither of which related to her – and JPSA would like to encourage all members of the public to do the same as the JMPD has no right or legal standing to refuse to accept AARTO 08 representation forms.  If they subsequently defy the instruction of the Registrar of the RTIA and reject such representations, the JMPD will furthermore be guilty of disobeying a lawful instruction.

A further complaint has been lodged with the Public Protector by JPSA in this regard and we are informed that the Public Protector is scheduled to meet with the JMPD and the RTIA/RTMC on Friday 27 January 2012.

JPSA has continuously and repeatedly warned of the dangers of having an issuing authority being allowed to be issuer, judge, jury and executioner by appointing and employing adjudication officers under AARTO, especially in light of the fact that adjudication is supposed to be a fair and unbiased function of Administrative Justice just as it would be in a conventional court.

JOHANNESBURG – Justice Project South Africa (JPSA) was horrified to learn this morning that the JMPD failed to have blood samples taken from Sibusiso Langa, the accused in the Midrand tragedy that took the lives of 5 “joggers” within the prescribed two hours. Ref here. Jurisdiction has absolutely nothing to do with it, given that SAPS have jurisdiction over the entire nation of South Africa and cases can be transferred between stations if necessary. That is simply an excuse that is not going to wash!

Immediately on learning about the crash on Saturday 22 October 2011, JPSA contacted Superintendent Edna Mamonyane of the JMPD and offered to pay for the blood samples taken from the accused in this case to be analysed by a private laboratory, so as to expedite the matter and bring it to a swift conclusion. We were never taken up on that offer and now we know why.

We can only hope that the rest of the investigation was done properly and that a competent and suitably qualified forensic crash investigator was called in to investigate the crash. At the time of the crash, JPSA also secured the services of IBF Investigations crash investigator, Stan Bezuidenhout, who has over 30 years’ experience in forensic crash investigation – also for free, but did not manage to offer this to the JMPD due to their ignoring our requests for cooperation on the blood tests issue.

At the time of making these offers and soliciting these services, JPSA urged that the accused be charged with the appropriate crimes of driving under the influence of alcohol, reckless or negligent driving and five counts of culpable homicide, but that plea was overridden by the Minister of Transport calling for charges of murder to be brought and the NPA obliged.

A motorist convicted of driving under the influence of alcohol can be imprisoned for up to 6 years (on a first offence), 6 years for reckless or negligent driving and 3 years per count of culpable homicide. That comes to 27 years and would send the right message if it were to be imposed.

Driving under the influence of intoxicating substances is the Number 1 killer on our roads and JPSA has recently put a comprehensive proposal to a number of stakeholders to tackle this scourge effectively. People need to come to the realisation that driving under the influence of intoxicating substances has dire consequences and cannot and will not be tolerated any longer. However, this problem must be effectively tackled before people are killed and/or injured as prevention is better than cure – always!

JPSA again extends its sincere condolences to the families of those affected by this horrific incident.

The allegedly drunk driver, Sibusiso Langa, who mowed down 6 runners training for the Soweto Marathon last Saturday morning was on Friday 22 October 2011, granted R80,000 bail in the Pretoria Magistrates Court. His driving licence has also been suspended as part of his bail conditions.

Following this, the RTMC's Ashref Ismail lauded this action, saying: "We welcome both the R80 000 bail and the suspension of his driver's license... we want this condition to be upheld for all cases of drunken driving." So too does Justice Project South Africa as a much more clear message must be sent to people who think it is clever to drink and then drive.

Some people are however outraged by the fact that Langa has been granted bail at all, given the fact that he has been charged with 5 counts of murder, one of attempted murder and one of driving under the influence of alcohol. The "murder" charges are what have given rise to this outrage and I would like to add a little perspective to this so that we all understand my and JPSA's standpoint on this matter.

Firstly, denying bail to him as a drunk driver who killed 5 people would not stand up in court. He did not take a gun and go on a shooting spree, he got hammered and then lost control of his vehicle, causing the deaths of those poor people. The court has forbidden him from driving until his case has been finalised, thereby effectivly "disarming" him.

You may remember that immediately after hearing about this incident last Saturday, we did a number of things. We contacted the authorities and offered to have the blood samples taken form Langa analysed by a private lab to speed things up. We also appealed to the NPA and all concerned to stick to the appropriate charges of driving under the influence of alcohol, reckless or negligent driving and culpable homicide and urged them to resist the temptation to charge him with murder. At that stage, we didn't even know who he was, just that a drunk driver had killed 5 people. We even organised a well respected forensic crash investigator with more than 30 years experience to investigate the circumstances of the crash for free.

Fat lot of good all that did since we have not been given any of the information or cooperation on the part of the authorities to get the blood tests done for them! In fact, we have been blindly ignored in totality. As for the murder charge, the ever emotional Minister of Transport came out on Sunday demanding that murder charges be brought against Langa. I was not surprised, but I was disappointed - after all, what the hell do I know about prosecuting people, given the fact that my prosecution success rate when I was a policeman was a mere 100%?

So, on Monday 24 October, the accused stood before the Pretoria Magistrates Court for his bail hearing, charged with 5 counts of murder, one of attempted murder and one of driving under the influence of alcohol. No surprise there since the Minister has way more influence than I will ever have. His bail hearing was then remanded to Friday 28 October and bail set at R80 000 with a suspension of his driving licence. In the meantime it emerged that one of his victims was the wife of a senior prosecutor at the Pretoria Magistrates Court.

This should have started the alarm bells ringing, but apparently that was not the case in this matter. At his first appearance regional magistrate Maryke de la Rey explained to Langa that if he is found guilty of murder, the law on minimum sentences stipulates that a first-time offender must get 15 years' imprisonment.

All of that sounds impressive too, but what is really mind-boggling is this is that this case could already have been laid down for trial by now if the prosecution just stuck to the book. The jail sentence allowable for driving under the influence of alcohol is 6 years. For reckless or negligent driving is also 6 years. And the jail sentence allowable for culpable homicide is a further 3 years per count. Cumulatively, that makes 27 years behind bars and I can say without any fear of contradiction that very few murder convictions in South Africa have ever got that long in prison.

Why then is this chap being charged with murder? What he did is despicable beyond description, but is it really murder? Not the way that I see it, no matter how the legal eagles try and argue dolus eventualis with me. The emotional outcries and demands for revenge to be exacted are quite understandable on an emotional level, but they unfortunately have no place in the criminal justice system.

This is a clear case of drunk driving gone wrong and in America, a charge of "vehicular manslaughter" exists and would be brought. But it is not so in South Africa and therefore the deficiencies of the law leads to people trying to bring a greater charge than is really catered for by the circumstances. There are only two charges available and those are murder and culpable homicide - with nothing in-between. Langa's case is neither premeditated murder nor culpable homicide as there is an element of recklessness but not intent in its most clinical definition.

Sure, Langa should have realised that if he was going to get hammered and then drive, then he could have been involved in what people like to call an "accident" - which is a word that by its very meaning negates the argument of premeditated murder. But I ask you this: Just how many people go out with the intention to get blind drunk to then kill people? Yes, muderers sometimes do, but then they usually use guns, knives and the like to commit the crime. They don't generally use motor vehicles - particularly not motor vehicles that cost nearly R1 million to buy!

Langa's case is entirely different to that of the taxi driver who ran over and dragged Kim McCusker for 700 metres six weeks ago - where we were the first to call for attempted murder charges. It is also significantly different to the taxi driver in Pretoria who was in fact convicted of murder for following and mowing down a scooter rider in 2009. In both of those cases, the driver made the decision to attack their victims with their vehicles.

In this case, like the JubJub case, the death and injury of the victims was as a result of a crash where the driver lost control of his vehicle. They did not point their vehicles at groups of people and say to themselves "now I am going to kill you." If they did, then murder is a no-brainer and will not be difficult to prove. The JubJub case is now 19 months old and still the case has not been concluded. Family of the children slaughtered by him have not seen justice - all they have seen is more clever legal defence being presented. But the NPA says that the case is going just fine, so we will have to wait and see what results from it.

Langa will not, I assure you, be looking for a legal aid attorney to defend him. He can afford and will get the best that money can buy and I would not be at all surprised if his case takes two or more years to wrap up; and I will be even less surprised if he is acquitted of the charges of murder. The families of the victims will have to endure a painful and lengthy process that could in fact be considerably shortened and still achieve the desired result of putting this man behind bars if things were not complicated by emotional decisions on the part of the prosecution.

I feel nothing for him and only wish that there was such a charge as vehicular manslaughter in this country, but there isn't and I again reiterate that premeditated murder and culpable homicide are two distinctly different things. The burden of proof in any criminal case lays on the State and it is going to be up to them to establish intent, which I really, really doubt that they will be able to do in a truly impartial court. But that is just it - is the Pretoria Magistrates Court at all impartial, given that one of its own's loved one was killed by Langa?

Even if he is found guilty, what makes anyone believe that he will not take the matter to appeal? If he does that, then the process will be further delayed and in 5 years' time he will still be walking around a free man. Fortunately, he will literally have to walk or be chauffeured around as he is forbidden from driving but let's be honest and ask ourselves just what chance he stands of being caught even if he does violate his bail conditions and drive. For that matter, if he again drives drunk and doesn't crash, what chance is there of him being caught and prosecuted, given that corruption is so rife at the moment and very few legitimate roadblocks are set up?

If the traffic authorities were doing their jobs more effectively, then maybe, just maybe, he would be facing drunk driving charges only and 5 lives would not have been lost and another demolished by his thoughtless actions. But ask yourself when last you were asked to blow in a beathalyser and I guarantee that most people will not be able to remember when last it was - if ever. Then ask those who have been asked to do so what happened if they were over the limit?

Some 20,000 people have been arrested for drunk driving in 11 months, but that is simply a drop in the ocean and what is more important is that some 3% of them have in fact been convicted. This should be ringing the warning bells loud and clear and telling us that we have to change the way we do things if we want to see any change coming about.

Prevention is way better than cure and I really don't think that charging people with murder is the solution. We need to make the idea of drunk driving a social no-no and make those who do it to be seen as the scum of the earth and social outcasts. But we need to do that by catching them before they kill anyone. Punishing one or two in the most severe way possible is a great theory, but in practice it achieves little as it does not create a strong impression that it can easily happen to you. The other big danger here is that if murder is going to be the charge for culpable homicide that results from drunk driving, then what is to stop the State from simply disposing of "driving under the influence of alcohol" and making that "attempted murder" straight off the bat? We need to tackle this sensibly and make amendments to intoxicated driving laws - not try and squeeze cases into other charges that were not designed for this purpose.

Pretoria - Transport Minister Sibusiso Ndebele has called for the driver of the vehicle that mowed down six joggers, killing five of them, in Johannesburg on Saturday to be charged with murder.

According to reports, the driver of a Mercedes-Benz ML500 rammed into the runners preparing for next month's Soweto Marathon at about 6am on the corner of Olifantsfontein and Lever roads in Midrand, Johannesburg.

Witnesses claim he was so drunk that he had to be reminded that he had driven into the group of joggers.

"We want to convey condolences to the families and colleagues of the group of joggers who were killed in this horrific road crash. Our thoughts and prayers are with them all during these difficult moments," Ndebele said.

"Following allegations that the driver of the vehicle was drunk, the driver should be charged with murder. We are calling upon the investigation team and Directorate of Public Prosecutions to ensure that, should there be evidence to suggest that the driver intentionally violated road traffic rules and drove in a reckless manner resulting in death, murder charges be brought against the driver," the Minister said.

Ndebele reiterated that road users who disobey the rules of the road would face the consequences of their actions.

"We have already commenced with our December festive season law enforcement operations, and we want to warn road users that no mercy will be shown to any person who commits any traffic violation," he said, adding that during this Decade of Action for Road Safety 2011 to 2020 campaign, traffic law enforcement will be intensified without compromise in order to make our roads safe.

Yesterday 57 drunk drivers were arrested in Buffalo City in the Eastern Cape, and 29 drunk drivers were arrested in the Western Cape on Friday and Saturday.

At least 20 000 drunk drivers have been arrested across South Africa over the past eleven months.
From October 2010 to September 2011, 19 780 drunk drivers have been arrested.

In the Western Cape alone, almost 50 drivers have been sentenced to jail for drunk driving in the past year. Since 1 October 2010, 664 drivers have been sentenced in the province for drunk-driving offences, 47 of whom were sent directly to jail without the option of paying fines or serving another type of sentence.

One was jailed for four years, six for three years and the remaining 40 for between six months and two-and-a-half years. A further 12 had their licences cancelled.

As part of the new National Rolling Enforcement Plan (NREP) announced by Ndebele in September last year, from October 2010 to September 2011, 14 017 190 vehicles and drivers were checked, 5 978 981 fines issued for various traffic offences, 19 780 drunk drivers arrested and 53 341 un-roadworthy vehicles (the majority of which are buses and taxis) discontinued from use.

Meanwhile on Friday, a man was arrested for transporting 176 passengers in his bus in Mooinooi outside Brits, in the North West. He had overloaded the bus by 42 people. He was charged with gross overloading and would appear in the Brits Magistrate's court tomorrow.

During the past week as part of the pre-December holiday clean-up operation, more than 200 buses were removed from service in a clampdown on unroadworthy vehicles in Gauteng and the North West by the National Traffic Police (NTP).

Most common defects included brakes, tyres, windscreens, severe oil leaks and faded chevrons and contour markings.
On Thursday, Minister Ndebele and Gauteng MEC for Transport Ismail Vadi joined the NTP during an operation at the Putco Bus Depot in New Canada Road in Johannesburg.

Since 31 August 2011, more than 1 760 un-roadworthy buses and taxis have been taken off South Africa's roads, following Minister Ndebele's instruction that every bus and taxi must be stopped and checked.

From 31 August to 9 October 2011, 340 790 public transport vehicles were stopped and checked, 1 111 mini-buses, 653 buses and 355 trucks discontinued from use, 58 618 fines issued for various public transport offences, more than 1 478 public transport drivers arrested including 256 for drunk driving, 1,000 for overloading, 75 for excessive speed, 23 for reckless and/or negligent driving and 97 in connection with public transport permits.

Last month alone, more than 3 900 arrests were affected and 3,069 vehicles discontinued from use. From 1 to 30 September 2011, 1 033 070 vehicles and drivers were checked and 438 706 fines issued for various traffic offences. - BuaNews

JPSA holds a differenent view

Yesterday, JPSA sent out a media release appealing that the State refrain from calling for murder charges against people where drunk driving and culpable homicide charges can easily be made to stick and the accused can be jailed for significant periods of time. It appears that the Minister of Transport, who clearly has not been watching what happens when these criminals are charged inappropriately, is of a different view.

Yesterday, we wrote:

Justice Project South Africa (JPSA) wishes to extend its heartfelt and sincere condolences to the families of the 5 joggers killed by an allegedly drunk driver in Midrand this morning.

We have been in contact with Superintendent Edna Mamonyane of the JMPD as well as the National Director of Public Prosecutions, Mr Menzi Simelane from the NPA and we have offered to pay for the blood samples taken from the accused in this case to be analysed by a private laboratory so as to expedite the matter and bring it to a swift conclusion.

We have also urged that the accused be charged with the appropriate charges of driving under the influence of alcohol as well as the alternate charges applicable to drink driving and with 5 counts of culpable homicide so as to increase the chances of successful prosecution resulting in as swift a manner as possible. If the proper procedures have been followed in this instance, there is no reason why this cannot be achieved.

Whilst it has become fashionable to try to create sensation by charging people accused of similar crimes with murder, we feel that the State is being forced into an unenviable predicament of trying to prove intent of murder and this is neither necessary nor productive as it wastes valuable time and has not as yet yielded the desired results in similar cases. In fact, all it has done is to have delayed justice and wasted valuable court time.

A motorist convicted of driving under the influence of alcohol can be imprisoned for up to 6 years (on a first offence) on the drink driving charge and 3 years per count of culpable homicide and JPSA will be pushing for the maximum sentence to be imposed in this instance.

Driving under the influence of intoxicating substances is the Number 1 killer on our roads and JPSA has recently put a comprehensive proposal to a number of stakeholders to tackle this scourge effectively. People need to come to the realisation that driving under the influence of intoxicating substances has dire consequences and cannot and will not be tolerated any longer.

Please let's consider our actions

Please understand that the comments I have made do not result from some misguided, liberal view of how the criminal justice system should work. To the contrary, they come from extensive law enforcement experience and seeing what works and what doesn't.

The enormous waste of time and effort in the JubJub case for example has resulted in his case not having been finalised yet, where if the State had simply stuck to the charges of "driving under the influence of alcohol or drugs having a narcotic effect", as well as four counts of culpable homicide, he could already have been sentenced to 18 years in prison. People actually convicted of murder have been given way less harsh sentences in the past and it is really important to ensure that justice is swift and not delayed due to wanting to create sensation. We have no doubt that eventually one of these murder charges will in fact be proven, based on dolus eventualis (foreseeing that an action could result in a consequence) but that is going to take some doing on the part of a very skilled prosecutor. Just remember that there has been so little education of members of the public with respect to how their vehicles can kill people and how alcohol aggrivates this that it is not going to be easy to argue that an accused could have foreseen his or her actions leading to the death of another at the time they started drinking. The same thing goes for a person who overtakes in the face of oncoming traffic. They can simply argue that they had a reasonable expectation that they could make it.

Citing the example of Taxi Driver convicted for murder in 2009 for mowing down a lady riding a scooter is nowhere near the same thing as a drunk driver ploughing into six runners. Until such time as prosecutors are willing, and more importantly able to pursue convictions with the same vigour as defence attorneys try to get their clients acquitted, we will not have a successful prosecution for "road murder" resulting from reckless or negligent driving or drunk driving - unless the accused cannot afford a competent defence attorney. Sad, I know but I am afraid that it is the blatant truth.

In the meantime, alcohol producers must be compelled to pay a tax to be used exclusively for tackling drink driving by mounting roadblocks at all times of the day and night - as well as launching impactful anti-drinking advertising. This money must not go to government coffers to be squandered on parties (R7 million for SADC Decade of Action launch) or travel expenses (R50 million for DoT plus R35 million credit card expenses), it must come to those who give a damn about road safety and can make a difference if we are only given the money and the chance to do so!

But what the hell do I know anyway?

Howard Dembovsky