This article was first published by Daily Friend on 10 October 2024
For many decades, South Africa has enjoyed taking rules from relatively safe countries and applying them uncritically to one of the most homicidal and criminal societies in the world. This has served only to make South Africa even more dangerous for the most vulnerable.
We cling on to these rules, of course, because with them comes a high degree of false, though no less satisfying, security. “The rules will protect me” is a notion that many carry with them unconsciously, and perhaps this helps get many of us through the day without succumbing to debilitating fear.
Most of these rules, ranked in no particular order, make perfect sense when abstracted out of South Africa’s peculiar reality. I am therefore not disputing the rules themselves as a matter of sound legal principle, but I do wonder whether they are applicable, given the context of South Africa’s crisis of violence.
You have to pull over when “the police” flag you down
When a police or traffic officer signals to a motorist to pull over, the National Road Traffic Act states that the motorist must do so.
But the police are not a neutral force in South Africa. Many criminals now have access to police uniforms and vehicles, and real, actual police officers are themselves also frequently complicit in violent crime. This places South African motorists in a difficult position, particularly when driving alone at night.
There was once a notion that if one felt unsure about being pulled over, one could simply drive to the nearest public place or police station and have the police officer follow you there. This was the “blue light protocol” that the Justice Project developed alongside the authorities, but the former has long ago withdrawn its endorsement due to non-observance by the police.
There should be a clear legal rule – preferably in the form of a provision in an Act of Parliament – that gives any South African a clear and unambiguous right to refuse to pull over, and rather be allowed to proceed, slowly, to a police station. Any police officer insisting on an immediate stop should be strictly liable for termination from the force, and if the pursuer engages in any manoeuvre that attempts to bring the motorist to a stop, the motorist must be allowed to assume the pursuer is not an officer of the law, and engage in evasive driving.
This does not, however, solve the problem of roadblocks. For these, a rule should likely be introduced that forbids roadblocks between certain hours. Between those hours, South Africans should be allowed to keep driving when someone from the roadside who is or appears to be a police officer attempts to have them stop.
You have to allow certain private individuals and state employees onto your property
This is very much related to the previous one.
The Electronic Communications Act allows employees of the Independent Communications Authority (ICASA) to enter onto private property to “inspect” radio transmission equipment.
And the Mineral and Petroleum Resources Development Act not only allows employees of the Department of Mineral and Petroleum Resources to enter private property to “investigate” the “occurrence, nature, and extent of mineral resources,” but also allows mining firms to enter private property that relates to their mining “rights.”
In South Africa mineral and land rights are separate, meaning that even if a landholder objects to mining on their property, the state may grant a third party such a right, and that third party may then enter the landholder’s premises.
These are but two among many examples. The more recent phenomenon of municipal officials demanding access to private homes to install prepaid electricity meters also serves as a case in point.
Since these are not matters falling within the purview of criminal law, there is no question of warrants. These are simply legal authorisations, in civil affairs, given to the state and its staff to enter onto private property to serve some public purpose.
Given our violently criminal society, authorisations of this nature act as an incentive for criminals to pose as government employees and insist on being let into people’s homes and businesses.
Only an unfolding law-enforcement emergency or a warrant signed by a judicial officer (magistrate or judge) should be capable of nullifying an owner’s right to absolutely control entry and exit on their property. Any legal provisions that weaken this right should be repealed.
Municipalities own kerbsides and sidewalks
It is a well-known tragedy in South Africa that our hopelessly corrupt, insolvent, and incompetent municipalities own (most) of the roads in cities and towns and about two metres of the space between the road and the boundary of the adjacent private property.
This prevents owners and neighbourhoods from securing the areas immediately outside the places where they work or sleep, and gives criminals a perfect staging ground from which to monitor their targets and plan their crimes.
Communities may form special ratings areas and construct fences and booms in certain parts of the country, but even then, they are prohibited from closing them off entirely. Entry must be granted to anyone who requests it, in the name of a perverse understanding of “freedom of movement”.
Freedom of movement is an indispensable liberty, but it cannot rightly be removed from the legal tradition from which it was cultivated. This tradition recognises the right of owners to secure their property, and also recognises the interest that communities have in maintaining order within their areas, including prohibiting loitering.
Something must be done about this state of affairs.
My preference would be, at least in residential areas, for all roads and sidewalks to be transferred, in ownership, to the adjacent property owners.
However, if this is an unsaleable proposition, local communities should be legally empowered to incorporate a juristic person that may take over ownership of kerbsides and sidewalks. This would allow those who need to drive through a neighbourhood to do so undisturbed. But, at the same time, the rule that pedestrians may not walk in the road must be fiercely enforced to ensure the new arrangement is not circumvented.
You have to stop and wait at a red traffic light
This is a globally known and understood rule. Where there is a traffic light, red means stop, and stopping is (all else being equal) mandatory.
In South Africa, we have at the very least developed a nighttime exception, stating that if it is clearly safe one may cross a red light.
This is, however, cold comfort for those who are forced to stop among wrongdoers in broad daylight. We have all experienced or at least witnessed drunken vagrants threatening motorists or damaging cars as they sit waiting – pleading – for the light to turn green.
The sensible thing to do when one is being harassed by someone outside one’s window who has no business being in the street, is to leave. To drive away. But to drive away from one’s tormentor – even when it is safe – would be illegal, because the light is red.
In South Africa, there should be no “stop dead” rule anywhere in the country at any time of day, except “stop dead when you see you are about to cause a collision”. This might seem like an absurd proposition, but this is how billions of people in China, India, Thailand, and Nigeria (and the rest of Africa) operate daily. There is no question of stopping dead. You move, but move carefully.
South Africa is truly an exception on the continent for having Western traffic rules for African societies and roads. In the West, where these rules make sense, it is unfathomable for a bunch of people to gather in the street accosting motorists as they wait, patiently, for permission to drive.
While motorists on South African roads are not known for their discernment and sense of responsibility, life is a series of trade-offs, and in my view we have to allow drivers to skip reds. If they do so recklessly – as many will – they should be henceforth uninsurable and liable for severe criminal punishment.
Communities and private security may not neutralise continuous threats
If someone is attacking another, neighbours and private security may stop the attack, but then must hand the wrongdoer over to the police to process them through the criminal justice system.
This is, in the abstract, a perfectly defensible legal position.
The problem is that, in South Africa, the police might drop the wrongdoer off a block away, or let him out of the jail cell the next morning, or the prosecutor might decline to prosecute, or the prison system might parole the wrongdoer after a month. The wrongdoer can then show up and attack the same victim again, and the process repeats – potentially ad infinitum.
This happens every day. There are hundreds or thousands of WhatsApp groups around South Africa where locals complain about the same person the security company had to remove or hand over to the police last week, being back this week.
The reality is that the people who work in our so-called justice system do not have the same incentive to keep specific communities safe as those specific communities themselves do.
Elsewhere in the world, criminal justice systems take problems like this seriously. But because South Africa has no criminal justice system (only a pretence of one), peaceful people find themselves in a dilemma.
The long-term solution is that South Africa requires better police officers, more and better prosecutors, and more prisons and better parole processes. Perhaps in this context above all, the police officers who police a given neighbourhood, must (all else equal) live in that neighbourhood themselves. Outsider-cops should at least be the exception, not the rule.
But in the short term, there should be a mechanism of relief that organised communities in particular, potentially in consultation with their local policing forums, should be able to rely on to protect their areas. This might take the form of a special restraining order that is relatively easily obtainable and for which non-compliance might be answered with disproportionate force.
These orders must of course be legally disputable by bona fide parties.
Better to have a judge, not a criminal, determine your fate
These and many other superficially sensible legal rules help keep South Africans unsafe. But any legal rule is only as powerful as the compliance with it. The victimised portion of South African society is preoccupied with being “law-abiding,” which means that sometimes – often – we obey the law even when our vital interests are at perilous risk.
In the context of keeping yourself, your family, and your community safe, rather place your fate in the hands of a judge instead of the people who might seek to do you malicious harm.