During the 2019/2020 festive season, Pollex picked up the following in the media.
Bail to road traffic offenders
A person in authority was quoted as saying that road traffic-related offenders (especially drunken drivers and/or speedsters), should not be granted bail when arrested. Another issue that was raised in the media during January 2020 was when a speedster in Gauteng, who had allegedly clocked 308 km/h on a Gauteng highway, was released on (only) R1000 bail.
The current, legally correct position regarding this issue is, of course, that the granting of bail - as well as release on warning - is a right and not a privilege. Refer to section 35(1)(f) of our Constitution.
The issue of bail is, generally speaking, regulated by Chapter 9 (stretching from sections 58 to 70) of the Criminal Procedure Act 51 of 1977 (“the CPA”). Again, generally speaking, the State or prosecution must prove beyond reasonable doubt why a specific accused person must not be released on bail.
However, in respect of offences referred to in Schedule 5 or 6 of the CPA, the onus (Afrikaans: “bewyslas”) is on an accused person to prove on a balance of probabilities (Afrikaans: “op ‘n oorwig van waarskynlikhede”) that he or she be released on bail. Note that no road traffic-related offences (excluding common law culpable homicide resulting from a motor vehicle accident which may, under certain specified circumstances, be such an offence) are referred to in Schedules 5 or 6 of the CPA. See the discussion entitled “Bail proceedings in respect of Schedule 5 and 6 of the CPA offences” published in Ask Pollex in Servamus: November 2018.
Arrest without a warrant of road traffic offenders
Another person in authority was quoted as having said that all road traffic-related offenders must be forthwith arrested. The current, legally correct, position regarding this issue is that in terms of section 40 of the CPA (which is the general “arrest without a warrant provision” by peace officers), and in terms of section 42 of the CPA (which is the general “arrest without a warrant provision” by private persons), the arrestor concerned has a discretion whether or not to arrest (in respect of any offence whatsoever) and that such arrestor must use his or her own discretion and not that of someone else (such as a superior and/or a person in authority and/or a complainant). Refer to Ralekwa v Minister for Safety and Security 2004 (1) SACR 131 (TPD) (see Pollex in Servamus: September 2004), and Jacobs v Minister of Police and Another (18371/2014)  ZAGPPHC 803 (3 December 2015) (GP).
Use of force by the police
A third person in authority is quoted in the media as having said that the police must, so to speak, “answer or reply or counter force [Afrikaans: ‘geweld’] against them (the police), with force against the attacker and/or aggressor concerned”. To this quotation supra, Pollex adds the following: “… provided that where a [SAPS] member who performs official duty is authorised by law to use force, he or she may use only the minimum force which is reasonable in the circumstances. Refer to section 13(3)(b) of the South African Police Service Act 68 of 1995.”
Lesson(s) to be learnt: don't play for the crowd and/or the pavilion and/or the grand stand - play according to the law!
Abduction or kidnapping
Then there is the boy child that was allegedly snatched from a trolley in a shop within a shopping mall. According to the media, the alleged snatcher (suspect) was arrested on a charge of “abduction” (Afrikaans: “ontvoe-ring”). The latter offence (according to information at hand) should of course be “kidnapping” (Afrikaans: “menseroof”).
Lesson(s) to be learnt: use the legally correct words and/or expressions otherwise people will become confused.
Driving with your dog
There is the woman, driving around in her bakkie and apparently minding her own business, with her dog in or on the passenger seat of the bakkie and who is stopped by a traffic officer. The woman tells the officer that when she drives her bakkie, her dog is with her for her own safety (when necessary).
The traffic officer, however, issued the woman a “traffic ticket” (thankfully he did not arrest and detain her!) of which a copy - or part of it - is published in the media together with the relevant media item concerned. The ticket looks like either one issued in terms of section 341 of the CPA, or a J534 form issued in terms of section 56 of the CPA.
The “offence” on the ticket is a contravention of regulation 313(1) of the National Road Traffic Regulations, 2000, made under the National Road Traffic Act 93 of 1996, and the admission of guilt fine is stipulated as R1000.
The woman then paid the public prosecutor in Vanderbijlpark (where the incident took place), a visit who immediately cancelled the ticket.
A suggestion to our readers: Google the said regulation 313(1) to read what it is all about or, what it is not about!
Lesson(s) to be learnt: A “Draft National Road Traffic Law Enforcement Code” (which is, at the time of writing, not yet in operation) was published in Government Gazette No 37149 dated 10 January 2014.
In Chapter 7 - under the heading “Code of Ethics” - item NS 7.5 (p111 of the said Government Gazette) reads as follows:
“NS 7.5 DISCRETION
1. [Traffic] Officers must use the discretion vested in their positions responsibly and exercise it within the law.
2. In exercising discretion, a [traffic] officer must be guided by the principle of reasonableness and all surrounding circumstances must be utilised in determining whether any legal action must be taken.”
(Words in square brackets inserted by Pollex.)
Presidential remission of sentence
During December 2019, the President gave a (large) number of inmates a “special remission of sentence”. Pollex was asked by readers about three of these inmates, namely -
(1) The Aba Thembu King: to read what landed him in a correctional centre, refer to the verbatim (word for word) SCA judgment as reported as S v Dalindyebo 2016(1) SACR 329 (SCA);
(2) Ms Vicki Momberg: refer to the verbatim judgment of the Johannesburg High Court as reported as S v Momberg 2019 (2) SACR 505 (GJ); and
(3) Mr Kanya Cekeshe of “Fees Must Fall” fame: Pollex can find no verbatim court judgment on the Internet regarding his case.