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.