Quote of the week
Universal adult suffrage on a common voters roll is one of the foundational values of our entire constitutional order. The achievement of the franchise has historically been important both for the acquisition of the rights of full and effective citizenship by all South Africans regardless of race, and for the accomplishment of an all-embracing nationhood. The universality of the franchise is important not only for nationhood and democracy. The vote of each and every citizen is a badge of dignity and of personhood. Quite literally, it says that everybody counts. In a country of great disparities of wealth and power it declares that whoever we are, whether rich or poor, exalted or disgraced, we all belong to the same democratic South African nation; that our destinies are intertwined in a single interactive polity.
August and Another v Electoral Commission and Others (CCT8/99) [1999] ZACC 3
Why are cabinet ministers above the law?
News that the drivers of official vehicles of several cabinet ministers have been driving around at high speed, collecting hundreds of thousands of Rand in speeding fines in the process, does not come as a surprise. Neither does it come as a surprise that the Department of Justice and Constitutional Development announced yesterday that these fines do not have to be paid as it was perfectly legal for blue light cars of cabinet ministers to disobey the same legal rules which us mere mortals are required to obey.
Section 58 and 60 of the National Road Traffic Act of 1996 were specifically changed in 2008 to allow those who are driven around by VIP Protection Unit Members with blue lights blaring to ignore traffic signs and speed limits. The amended provisions do not require the existence of an emergency situation before the official driver could legally disregard the laws of the road.
The provisions do place some limits on this otherwise blanket authorisation to break the law.
First, the Act states that a driver of a blue light vehicle who disobey the rules of the road “shall drive the vehicle concerned with due regard to the safety of other traffic”. Reckless driving, pushing other cars from the road and speeding to such an extent that it endangers the lives of others are not authorised by the Act. Where the drivers of blue light cars drive dangerously, they are exceeding their legal powers and they 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, these drivers can only drive faster than the speed limit and disobey traffic signs if they are busy carrying out their official duties. They cannot speed or ignore other traffic rules when they are not actually driving around the VIP, the VVIP, or the VVVIP (I am tempted to keep on adding another “V” ad infinitum to illustrate the high importance of the esteemed cabinet ministers – at least in their own eyes). The statement by the Department is therefore not entirely correct as only those speeding fines incurred by drivers while doing their official duties would not be payable.
Apart from these requirements, there are no other limits placed on when the drivers of blue light cars can speed or ignore other traffic rules.
There are two problems with these amended provisions which specifically authorise those officials who drive around cabinet ministers and other Very Important People to disregard the ordinary traffic rules.
First, there is something completely unethical about these provisions. The amended provisions confirm that cabinet ministers and others authorised to make use of blue light cars, believe that they are so important that they should be treated differently from everybody else and that they are, in fact, for all intents and purposes above the law as far as traffic rules are concerned. In a country in which respect for the law is not high and in which corruption thrives, there is something deeply troubling about the message being sent out by these provisions. Surely, cabinet ministers more than anyone else, should send a signal that they do not see themselves as above the law and that they are respectful of the same laws that the rest of us are supposed to obey?
Second, I am far from sure that these provisions comply with the constitutional requirements for valid law associated with respect for the Rule of Law. Our courts have found that the Rule of Law is not only a founding value contained in section 1 of the Constitution. It also contains specific aspects against which all legal provisions can be tested to ascertain the constitutionality of those provisions.
Legal provisions have to be rational, amongst other things, in order to comply with the requirements of the Rule of Law This means that the provisions have to be aimed at achieving a legitimate government purpose and that there must be a rational relationship between the provisions and the legitimate purpose sought to be achieved by them.
Can one say that in an constitutional democracy, founded on egalitarian values and based on the notion that no one (not even a VVVVVVVVVIP) should ever be treated as if he or she is above the law, that it could ever be legitimate for a law to allow cabinet ministers to be driven around in vehicles who need not keep to the speed limit and can ignore all other traffic rules? Is it ever a legitimate purpose to exempt cabinet ministers from the law for the sole purpose of exempting them from the law?
As the provisions in the Act do not limit these exemptions to special situations (for example, where it might be necessary to drive above the speed limit to whisk a cabinet minister away from a dangerous situation where his or her life might have become endangered by an angry crowd demanding an end to corruption or demanding a speedy delivery of school textbooks), there can be no other purpose for these provisions than to allow cabinet ministers who are being driven around to be exempt from the ordinary traffic rules aimed at protecting the public at large. I would be surprised if a court would ever agree that it is a legitimate government purpose to treat cabinet ministers as largely being above the law as far as traffic rules are concerned.
But even if one invents a more narrow purpose for the law – for example, by arguing that the purpose of the law is to protect the safety of cabinet ministers – then there can be no rational relationship between the almost blanket exemption from the law contained in section 58 and 60 of the Act and the purposes sought to be achieved by these provisions. In fact, I would think it is irrational to argue that in order to protect the safety of cabinet ministers, one must allow their drivers to drive at high speed and to ignore all road traffic rules. Such rules might well expose the relevant minister to considerable risk of being killed in a car accident and cannot be said to be rationally related to their protection. In the absence of further qualifications in the Act which limits the situations where blue light cars can ignore all traffic rules, the law seems irrational.
But this is not really the most important point. The larger point is that in 2008 our government set out to change the law to allow the drivers of cabinet ministers to ignore almost all traffic rules. What does it say about the way in which members of our government view themselves and their relationship to the ordinary legal rules which bind the rest of us? Is it any wonder that so many cabinet ministers are caught up in allegations of corruption, if they seem to think that they should be above the law because they are cabinet ministers?
