NEGLIGENCE “IN THE AIR” OR ON THE ROAD? Ndlela v S 2013 (unreported, KZP) Case no AR 630/2012

In certain circumstances, certain drivers are authorised to drive with a blue light and siren flashing on a public road. Thus, in terms of regulation 308(1)(h) of the Regulations issued under the National Road Traffic Act 93 of 1996  any person driving or having a vehicle on a public road is required to “give an immediate and absolute right of way to a vehicle sounding a device or bell or displaying an identification lamp in terms of section 58(3) or 60 or regulation 176”. Section 58(3) permits the driver of emergency vehicles, a traffic officer, and duly authorised drivers, as well as, particularly pertinent to the discussion which follows, a “person appointed in terms of the South African Police Service Act … who drives a vehicle in the carrying out of his or her duties” to disregard the directions of a road traffic sign displayed in the prescribed manner. There are two provisos: that such driver must drive the vehicle concerned “with due regard to the safety of other traffic”; and that such vehicle is fitted with a device capable of prescribed sound and a prescribed identification lamp, both of which must be in operation during such driving. Section 60 mirrors the provision in section 58(3), allowing for certain drivers to exceed the speed limit, subject to the same provisos. Regulation 176 authorises a member of the South African Police Service (along with a member of a municipal police service, a traffic officer, and a member of the South African Defence Force performing police functions) to utilise a lamp emitting a blue light in the exercise of his or her duties.The permission granted to certain drivers to use such equipment has, however, not been without controversy. The excesses of the VIP Protection Unit, or “blue-light brigade”, on South Africa’s public roads have been the subject of extensive criticism and condemnation. The proliferation of road accidents and other incidents arising from the driving of those with such blue-light privileges has given rise to a media statement by the South African Human Rights Commission, which expressed the need for urgent action to be taken in this regard, failing which the provision of blue-light usage would be seen as “disregarding safety and traffic regulations and basic human rights”.  The ongoing challenge posed by blue-light driving is reflected in the recent conviction and sentencing for reckless driving of Joseph Semitjie, the driver of then Gauteng housing MEC Humphrey Mmemezi, after he skipped a red light and collided with young motorcyclist Thomas Ferreira, causing serious head injuries. In addition, both the President and the Deputy President have recently been associated with blue-light collisions.The case which will be discussed below is yet another example of blue-light driving which exceeded the parameters of lawfulness: Ndlela v S (KZP, unreported, AR 630/2012, 5 September 2013), an appeal from a conviction in the regional court, Pietermaritzburg, on a count of negligent driving (contravention of s 63 of the Act), leading to a sentence of a fine of R3000 or two years’ imprisonment, with a further period of two years’ imprisonment suspended for five years on condition that the accused was not convicted on a charge of negligent driving during the period of suspension