21 July 2020 by Dispute Resolution Alert

The fundamental importance of aligning legislation and criminal sanctions with the norms and everyday life of society

It is essential for the stability of our society, and respect for the rule of the law, that Parliament should pass laws and promulgate legislation, which will bear scrutiny when evaluated against the norms of our society, the expectations of the everyday life of South Africans, and the values enshrined in our Constitution.

A critical aspect of our social fabric is that laws and regulations must be capable of being enforced and must in fact be enforced. There is no purpose in promulgating laws and regulations merely for the sake of it. That would serve to detract from the respect which the general public ought to have for the laws of the country.

It is equally important that our Parliament should not seek to criminalise what most South Africans might regard as normal or acceptable behaviour. Part of the reason why criminal sanctions serve (as they of course should) as a deterrent to criminal conduct, is because society shuns criminal behaviour. People therefore attempt to conduct themselves in a manner which will avoid criminal consequences, and the blemish which a criminal record ought to have on a person’s reputation.

If laws and regulations are promulgated, however, which tend to make criminals of all of us, then something will have gone wrong. If everyone is a criminal, then there is little, if anything, reprehensible in receiving a criminal conviction. One of the most important deterrents, discouraging people from criminal conduct, will have been laid to waste.

We have seen what happened in South Africa when overzealous politicians sought to enforce aspects of a lockdown, in the face of the COVID-19 pandemic, which resulted in public opinion turning full circle against what society had initially regarded as a sensible and necessary process. Popular support for the lockdown turned into dismay, ridicule, and eventually an outright disregard for many of the measures sought to be implemented. This is what happens when a government seeks to enforce laws and regulations which the public at large regard as inappropriate or applies an overreach of the measures which ought properly to be adopted, for purposes of achieving an appropriate goal. 

One now reads of proposed amendments to legislation, aimed at curbing road deaths caused by drunken driving. So far so good. No one is seriously going to argue that proper steps should not be taken to address the problem of motor accidents and deaths caused by drunken driving. If, however, one introduces measures which, on a common-sense basis amount to overreach, then one runs the risk that no one will respect these measures. If all and sundry are potentially to become criminals for conducting themselves in a manner which society does not regard as wrong or reprehensible, then the state is inviting disobedience from its citizens.

It is often helpful to use a silly example to illustrate a good point. So, if one wished to eradicate deaths on the road, then government might consider banning motor vehicles and making it a criminal offence to drive any vehicle. If there are no cars on the road, there will be no accidents.

Self-evidently, this would be ridiculous.

Why, one is then driven to ask, does our government sense that it might be commendable to introduce legislation which places an absolute prohibition on driving any vehicle whilst having any (even the minutest amount) alcohol in one’s system? The problem on our roads, after all, is accidents caused by drunken drivers. The problem is not accidents caused by people who are driving after one drink, or within the existing alcohol limits. Why then does the government seek to impose criminal sanction on those who are not at the heart of the problem?

The proposed legislation threatens to make a criminal of the following examples of everyday people, going about a normal life, in a manner which society, at least until now, has regarded as responsible and normal:

  • Enjoying a bottle of wine with three friends over a lunch or dinner (i.e not much more than a glass each).
  • Enjoying a beer after a game of golf.
  • Visiting a wine farm and enjoying a wine tasting (even if you are liberally using the spittoon).
  • Enjoying just one drink at a work gathering.

The ostensible reason for the proposed Draconian legislation is that existing legislation is not curbing road deaths. The assumption seems to be that a change in the permitted alcohol limit will miraculously change the habits of the real drunk drivers (i.e. those who are driving at twice the legal limit or more). If the people who are happy to drive after having six or eight beers, or four double brandy and coke’s, are presently happily driving around drunk, then why would those same offenders choose to change their behaviour, simply because government now legislates against those who drink responsibly? Self-evidently, the premise motivating the new legislation is misguided.

Why do we then have so many road deaths and accidents caused by drunken driving? It seems to me that it is far more likely that the answer lies in the way the criminal justice system is functioning (or not functioning). The stories of people escaping arrest by paying bribes to willing police officers or traffic officials, are legend. If that is not bad enough, others are paid to make dockets go missing. That is the rot which must be eliminated. All that the new legislation is likely to do, is to expose a greater number of the public to accusations that they are “driving under the influence” and that, unless they accompany the officer to the nearest ATM machine (to pay over a bribe), they will simply have to spend the night in jail, until a court has dealt with their bail application in the morning (or God forbid, on Monday after a weekend). This, after all, is the common experience or threat faced by the average South African.

What our politicians and state officials need to do is to fix the underlying problem - i.e. eliminate the rot of bribery, dishonesty and corruption within the law enforcement agencies, and restore the efficiency of the prosecutorial system.

What we don’t need is ill-conceived legislation which threatens to exacerbate existing problems and, worse still, is likely to lead to a deterioration in the respect which the general public has for the credibility and legitimacy of our laws. That has the potential to detract from the social fabric of our society. Put differently, promulgating overzealous legislation against the background of a poorly functioning criminal justice system, is likely to instigate, by way of response from the public, a general disregard for the law, to the detriment of the well-being of an orderly society.

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