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
Blue light bullies: often illegal
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.
