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

One year since the announcement of the new National Rolling Enforcement Plan (NREP) by Transport Minister Sibusiso Ndebele on 10 September 2010, more than 18,000 drunk drivers have been arrested and 50,000 un-roadworthy vehicles removed from the country’s roads.

On 11 September, a driver was arrested for gross overloading on the N4 Bakwena Platinum Highway outside Brits in the North West Province. The motorist was driving a Toyota Hilux single cab bakkie that was pulling a trailer when he was directed to Bapong weighbridge by traffic officers. The vehicle with six occupants, four adult males, two of whom were with the heavy laden goods on the trailer and two children aged 10 and 2 was unsafe to be on a public road. Upon being weighed, the driving axle of the bakkie which is allowed 1,670kg was found to be overloaded by 231,7% - it weighed 5,540kg. Its Gross Combination Mass which is allowed 3,360kg was found to be overloaded by 6,100kg - it weighed 9,460kg. It practically had no steering: the undermass on its steering was 280,6kg under as it weighed 760kg instead of the permissible 1,040,6kg. Its home-built trailer also had no brakes and its tyres were deflating under its heavy load, even as the vehicle was being weighed at the weighbridge. The 38 year-old motorist, Andrew Ndlovu, was arrested on the spot. Ndlovu was granted R1000 bail at the Marikana Police Station, and is expected to appear in court on 10 October.

On 9 September, 15 people, the majority of whom were teachers from Mafikeng, were killed in a road crash involving a mini-bus taxi between Zeerust and Groot Marico in the North West.

On 7 September, 10 people were killed when a midi-bus collided with an articulated truck on the R545 in Ogies in the Mpumalanga province.

On 31 August, Minister Ndebele instructed law enforcement officers to stop and check every bus and taxi on South Africa's roads, following the deaths of at least 76 people last month (August 2011) in eight separate crashes involving public transport vehicles (buses and mini-bus taxis) in KwaZulu-Natal, Free State, Mpumalanga, Western Cape, Gauteng and Eastern Cape.