Some people will defend the indefensible until they are literally blue in the face. Sadly our politicians seem to be particularly afflicted by the pathological inability to face facts and to admit that there is a problem – even when the problem is there for all to see. Instead they will argue that black is white and white is black and do so with all the conviction of Dick Cheney gloomily warning us that the supposed Weapons of Mass Destruction (WMD) in Iraq poses a grave threat to world peace.
No wonder then that KZN Transport MEC, Willies Mchunu, defended blue light bullies in the Provincial Legislature yesterday.
According to a report in The Witness he said allegations of a persistent abuse of power through the use of blue lights by ‘blue light bullies’ is false and misleading. He said provisions of the Road Traffic Act authorise police officials to exceed general speed limits and to disregard road traffic signs while acting in the execution of their duties.
The Act’s definitions, he said, are sufficiently broad to encompass police officers, provincial traffic officers and metro police officers. ‘… the point that needs to be made is that nowhere in the authorising legislation does it suggest that in order to disregard speed restrictions or road traffic signs, an emergency situation be in place as a precondition to exercising the authority by police officers.’
There are of course two problems with this kind of “reasoning”.
First, even if the Act allows traffic cops and members of the police to disregard the law at will, this would not make it acceptable. In a constitutional democracy based on the Rule of Law, we are all supposed to obey the law which should apply equally to all of us. Just because one happens to be an MEC or a Minister does not mean one is suddenly more important than the rest of us and thus entitled to break the law at will. If the law allows for this, the law is clearly wrong.
Arguing otherwise is like arguing that because it was legal in terms of the American Constitution to invade Iraq, it was fine for George W. Bush to order the invasion which led to the murder of hundreds of thousands of innocent Iraqi’s and the destruction of the homes of millions more. What is legal is not always right.
Second, while Mchunu is correct that the National Road Traffic Act of 1996 does not require the existence of an emergency situation before traffic cops and police officers can disregard the laws of the road, this does not mean that blue light bullies are legally entitled to drive at high speed and to ignore road signs (thus endangering the lives of other motorists) merely because some pathetic little politician with a Napoleon complex thinks he is better than the rest of us and is thus above the law.
The National Road Traffic Act of 1996 allows traffic cops and police officers to exceed the speed limit and to disobey road traffic signs while they are carrying out their duties. But the Act places important limits on traffic cops and police officers in this regard.
First, the Act states that a traffic cop or police officer who has to disobey the rules of the road to carry out their duties “shall drive the vehicle concerned with due regard to the safety of other traffic”. Where there is absolutely no emergency, blue light bullies therefore have no legal right to drive in such a way that it would endanger other road users. Where they do, they are exceeding their legal powers and should be arrested. If blue light bullies fail to have sufficient regard for the safety of other road users they are criminals and the politicians who condone this behaviour are complicit in the commissioning of a crime.
Second, traffic cops and police officers can only drive faster than the speed limit and disobey traffic signs if they are busy carrying out their duties. The provisions that authorise this kind of behaviour clearly subvert the principle of the Rule of Law, a founding value in the Constitution, because it attacks the notion that all of us are equal before the law. The provisions are therefore either unconstitutional or they will have to be given a restrictive meaning in order to bring them into conformity with the Constitution.
I would therefore argue that the impugned sections can only be valid if they are read to mean that traffic cops and police officers are allowed to disobey the speed limit and traffic signs if this is absolutely necessary for them to carry out their official tasks.
But neither the National Road Traffic Act, the South African Police Services Act or, as far as I am aware, any Act of Parliament confers a duty on traffic cops or police officers to drive around politicians from one meeting to the other. When traffic cops or police officers therefore drive politicians around in blue light convoys they would not usually be fulfilling a legal duty. The legal duty is not linked to the driving of the car as such - it is linked to the protection of the life of the VIP. The officer is therefore only allowed to break the rules of the road to protect the life and limb of the VIP – not merely to make sure he or she gets to a meeting on time.
While the law does confer on such officers the legal duty to protect VIP’s, they must stick to the rules of the road unless it is absolutely necessary to protect the life of a VIP (because the VIP is in grave danger of being assassinated, say). Driving an MEC from one meeting to another while that MEC’s life is not in danger, the police officer must stick to the rules of the road as there would be absolutely no need for the officer to break the law to protect the VIP. Merely driving around a VIP does not entitle anyone to break the rules of the road.
This means that most blue light convoys who charge down the highway at dangerous speeds are illegal. Those blue light bullies should all be arrested and thrown in jail as they have absolutely no legal authority to break the law, merely because they are driving around some self-important twit who happens to be a politician.
Sadly Mr Mchunu’s defense of blue light bullies suggests that he is a prime example of such a self-important twit. Although he will probably not be arrested for giving illegal instructions to his driver to break the law, he should. In the meantime we should all continue to mock and ridicule people like Mr Muchunu who is making up for a lack of self-respect by insisting that they are above the law.
OK, who is going to take this to court…
Congrats, Prof, on your newfound concern for the road safety of our citizens.
I recall a previous post where you said “respect, bru” to an ANC official arrested for drunken driving
Actually… Driving around from meeting to meeting, and not obeying the road rules, does put the VIP life in danger. No other road user has been informed of a danger, hence the blue light cars would be more in danger of causing an accident then if they were to follow the normal road rules, for example, bus lane wasn’t cleared for the blue light people.
Any how this is stupid… They are illegally speeding, high speed.. I’ve seen them here in cpt driving like mad on N2… i mean like really fast…
Pierre, if it’s true that bluelighting is already illegal (and I believe your claim that it is) what did Zille have in mind when she promised to outlow it in the Western Cape recently?
Freeboot, the use of blue lights are not always illegal. Where blue light brigades respects the safety of road users and make use of this only for purposes of safety and protection, it will be lawful. But the Act is sufficiently vague to create confusion, so Zille obviously felt she wanted to clarify. Having said that, I am not sure the Provincial Legislature has the constitutional power to adopt a law that bans blue light brigades in the Western Cape as this is probably not an exclusive provincial competence.
It looks like we can only change the constitution when Madam Zille says so, soon the President will become an MP .
http://www.timeslive.co.za/local/article403364.ece/New-committee-needed-to-oversee-Presidency–DA
Prof, you’re not making sense to me. You say that “blue light bullies … have absolutely no legal authority to break the law”. Why, then, should Provincial legislature not have “the constitutional power to adopt a law that bans blue light brigades in the Western Cape”?
If, according to you, these bullies break the law, then surely Province does not need special powers to adopt such a law?
Clara, the Provincial Legislature has limited powers and can only pass laws on issues set out in schedule 4 and 5 of the Constitution. Schedule 4 powers are shared powers (with national parliament) and include powers to make laws on “Road traffic regulation” while schedule 5 contains exclusive provincial powers which include
If a law is passed banning blue light brigades and there is a clash with the national law the national government would argue that the national law deals with policing and with security, something that the province cannot legislate on. They will probably win their case.
From what I’ve seen I think the blue light brigades are driving extremely reckless. Interesting what the High Court had to say in S v FOURIE 2001 (2) SACR 674 (C) about a regional magistrate exceeding the speed limit to get to court.
The judge set out the facts of this case:
“It so happened that, on the previous day (2 March 2000), he had given an undertaking to a State witness that, on the following day (3 March 2000), the court proceedings would commence promptly at 09h00 and that she would begin giving her testimony at that time, thus enabling her to return to her work on the same day and not forfeit her earnings for that day. Ordinarily, the respondent would leave home at 08h00 to undertake the 45 minute trip to Knysna. However, on the day in question, due to the said circumstances, he could only leave home at 08h30. He therefore found I himself compelled to drive faster than he would normally do so as to enable him to make up for the lost time and arrive at his destination on time. ”
The regional magistrate’s defence was that under the circumstances his action was not unlawful. Msimang J ruled that the act would be unlawful if it was shown not to be justified. He referred to case law where it was stated “‘In determining whether conduct is of such a nature as to be determined unlawful, the Court must carefully balance and evaluate the interests of the concerned parties, the relationship of the parties and the social consequences of the imposition of liability in that particular type of situation.”
Msimang AJ refers to the previous Road Traffic Act which was in force then and says: “the purpose of the Act is, inter alia , to regulate the traffic on public roads, the primary objective being, no doubt, to ensure safety for those who utilise such roads. The interest sought to be protected by the legislation, particularly by s 85(4) (b) thereof, is, therefore, ultimately the physical safety of the members of the public.”
The regional magistrate was convicted.
Clara, I’ll try and answer that, it is indeed to break the law no matter who you are, but there are certain things police are allowed to do when an emergency situation exists and only with the skills tought to him (in other words a rookie cannot try a technical menouvre with a weopon or a car if he is not absolutely sure that he wouldn’t harm anyone in the process). So no breaks the law ever, except peace officers in the line of duty when an emergency situation exist and this applies to very limited laws.
So youre right, Hellen was a bit paranoid, but she only tried to prevent the same sort of joke that seems to be at the order of the day at other provinces, but you’re right that she did not need to make it illegal as it already is, altough you can never be too carefull with the bullies.
It’s like saying to a bully, who wants to take your lunch money that you’re going to tell on him and then he punches your braces through your upper lips and then you say but why, why why.
Sorry for the bad grammar, I was on my phone
On more than one ocassion I have been reminded by members of this blog that it is a matter of law. On the whole I agree with the sentiment and intention of the article. However, as a matter of law, Prof., in terms of prtecting the VIP there are security protocols and training that is employed. You do not need a threat to a VIP’s life before following these protocols. I may not be a lawyer bu from your own argument, the MEC is correct as a matter of law. However, as a matter of politics and political philosophy, there is a case of a democracy based on the people like ours should have no room for politicians and their security applying the law to be above the people. That is the nub of your argument, but the MEC is correct in terms of the law.
alleman says:
April 14, 2010 at 13:14 pm
“Congrats, Prof, on your newfound concern for the road safety of our citizens.
I recall a previous post where you said “respect, bru” to an ANC official arrested for drunken driving”
You must have only read the last line in that comment.
As I recall Pierre suggested that it was a departure from the traditional response of high profile people who typically defended drunken driving and other anti-social or criminal behaviour.
Jackson Mthembu did what is rarely seen – he accepted that he had messed up, said so publicly and apologised with no excuses.
That, if I understood Pierre’s comment, was what Mthembu had earned respect for.
Not drunken driving!
Maybe this is a bit tactless, but I did wonder whether the recent death of the Deputy Health Minister might have been due to excessive speed and / or reckless driving…
Blue Light brigades are the least of their bullying. When one thinks of what could be, and what is, with respect to all the challenges of South Africa, either a tranquillizer or good glass of wine is required.
Pity, that which is not.
@Friend: “… and then he punches your braces through your upper lips and then you say but why, why why.”
Thanks, that was graphic enough. So that’s why so many of my fellow citizens have no front teeth … always be respectful to those bullies …
Donovan says:
April 14, 2010 at 17:20 pm
I can hardly imagine that if the apartheid ministers and even the president didn’t need a blue light brigade for their safety, the democraticly elected leaders need it. While PW Botha was president I often saw him on his way to the Union Buildings in the morning. There were two cars. An unmarked Nissan without a blue light or siren in front with just two men, a driver and one passenger. They drove at a reasonable speed and obeyed traffic signs.
Sec 60 says that a police officer driving in the execution of his duties does not have to obey the speed limit. So what does that mean? A policeman on his way to the filling station to get petrol for the police van may drive at 200km/h because he is on duty? Certainly not. It means that he may exceed the speed limit if he has to do it in order to enable him to perform his duties. His duty is to safeguard the mayor, Julius Malema or whoever, not see to it that they are in time for meeting, a soccer match, meeting a deadline to hand in a tender or wherever they want to be.
Talking of abuse …..is statements made by Mahlangu’s lawyer allowed by his fellow lawyers? Can blatant dirty tricks like this be allowed in our society? The damage this lawyer has done cannot be undone.
http://www.mg.co.za/article/2010-04-15-lawyer-backtracks-on-sex-claims-in-terreblanche-case
Initial reports indicated the killing had been sparked by a wage dispute. Police have since said they are also investigating the possibility that it was a sex crime, after Mahlangu’s lawyer said his client claimed that Terre’Blanche had tried to sodomise him.
But the lawyer, Puna Moroko, backtracked on that version of events on Wednesday, saying he no longer planned to pursue it as a defence.
“That one we have abandoned. That one, when I consulted with him [Mahlangu], it didn’t make sense to me,” he said after Wednesday’s hearing.
When I went for my exam, I was told to not tell the traffic cop to put on his safety belt, because he is “above the law”.
The law in this case clearly being gravity and other basic scientific laws.
So who cares about man-made laws, if you are an Only One?
Thanks for sharing this from a consitutional and legislation side!!
Well put Prof, as Orwell once pointed out that all South Africans are equal but some South Africans (think that they) are more equal than others.Driving a fat cat around does not entitle a police over or metro police to disregard traffic and road signs thereby unnecessarility putting our lives at risk!
We had very clear guidelines in this regard. An emergency situation (life and limb) or chasing a suspect and so on was not frowned on. In short the reasonable person test. Lay a charge with SAPS and see if they can disprove such a charge of reckless driving. They need to carry pocket books, vehicle registers, parade records, petrol slips … s205
Prof: perhaps you could comment on abidam says:
April 15, 2010 at 8:33 am
I was actually startled that the lawyer in question makes so many statements regarding his clients, seemingly off the cuff, which in my view are prejudicial against both clients and public. In what way are his comments protecting his clients? Is he attempting judgment by the public to influence the case? Is he grandstanding for personal advancement? Is this normal procedure in SA?
My western experience, and also hearing the oft stated quote in SA about ‘sub judice’ when politicians and ANC elite are being investigated, lends me to believe that he is totally out of line, and purposely so, possibly.
Also interesting that the ANC is paying for the defense, whether discretely or indiscreetly. Why?
Would you care to enlighten us on the matter?
Sirjay and abidam, the conduct of the lawyers in the Terreblanche case seem highly problematic. Confirming that it would use a defense of sexual attack only to drop this two days later seems unethical to me.
Pierre De Vos says:
April 16, 2010 at 9:08 am
“seems unethical to me”
Unethical behaviour from a legal professional???
That would be most unusual!
Maggs Naidu says:
April 16, 2010 at 9:12 am
I don’t want to say to much because I know this legal professional, but it I was wondering about the consequences for his client. It was blasted out to the world that this man has given different versions of what happened and whoever will precide when the trail starts has probably also heard it.
Chris says:
April 16, 2010 at 9:27 am
“I don’t want to say to much because I know this legal professional”
Hey Chris,
It’s interesting that politicians are expected to publicly engage their comrades for “unethical” actions.
Legal professionals, on the other hand, have to be “delicate”.
Like the Nedbank man used to ask “it makes you think, doesn’t it?”
Maggs Naidu says:
April 16, 2010 at 9:48 am
We must be very, very “delicate”.
Great information! I’ve been looking for something like this for a while now. Thanks!
Boloko.
Red neck literature