Premeditated murder, Creecy said, carried a mandatory minimum sentence of life imprisonment under the Criminal Law Amendment Act.
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If someone drinks, gets behind the wheel of a car and causes an accident in which people die, they should be charged with premeditated murder, said transport minister Barbara Creecy.
She said this during her address at the National Economic Development and Labour Council (NEDLAC) Organised Labour School at Kieviets Kroon, north of Pretoria, where the Motor Industry Staff Association (MISA) represented its affiliated federation, FEDUSA.
Premeditated murder, Creecy said, carried a mandatory minimum sentence of life imprisonment under the Criminal Law Amendment Act.
“It is a known fact that even a small amount of alcohol diminishes your ability to act. Health Minister Aaron Motsoaledi tells me that in the trauma units of hospitals, 85% of victims and offenders are over the legal blood alcohol limit."
Martlé Keyter, MISA’s CEO for Operations, said the union supported Creecy’s view as it was well known that drunk driving and speeding are the biggest contributors to fatal accidents on South Africa’s roads.
“One life lost is one too many. Despite all the increased law enforcement efforts on our roads under the leadership of Creecy, there are still too many drunk drivers. The prospect of life imprisonment just might serve as a proper deterrent,” Keyter said.
According to Creecy, awareness campaigns, increased roadblocks, and the visibility of law enforcement officers on South African roads have paid off, reducing road fatalities by 10% since January.
“However, the majority of fatal accidents still occur at night over weekends when most law enforcement officers are not on the roads. We need to consider a flexi-shift system to have them on the roads when we need them most,” she said.
The Transport Department is in full preparation for Easter Weekend, which is annually known for high traffic volumes due to several faith-based gatherings.
Creecy said increased education of road users was key.
Speaking to IOL, a criminal law expert from the School of Law at the University of KwaZulu-Natal, Dr Sandhya Maharaj, said proving that a killing was premeditated in cases involving drunk driving would be extremely difficult.
“The State would need to adduce evidence proving that the killing was planned and very much deliberate, even before the accused started driving. Ordinary consumption of alcohol before sitting behind the wheel does not suffice for a conviction of premeditated murder,” she said.
“The statement by the Minister of Transport indicates the attempt to treat recklessness, which is currently prosecuted as murder on the basis of dolus eventualis, as equivalent to the direct intent which is a feature in planned assassinations. South African law already allows for drunk drivers to be convicted of murder in fatal cases where the driver foresaw the possibility of death and reconciled themselves to that risk.
“Academic writers have long examined this exact distinction and argued that dolus eventualis already accommodated the vast majority of these fatalities under a charge of murder without stretching the concept of premeditation,” Maharaj said.
She said in cases where the accused was alleged to have been in an extreme state of inebriation, the defence could argue the accused could not form the required intent due to a lack of capacity.
“A charge of premeditated murder would still need to overcome this by proving that the accused possessed the capacity to plan the killing. No amendment to the common-law definition of murder is required, as drunk drivers who kill can already be charged with murder arising out of dolus eventualis. However, to make life imprisonment mandatory in drunk driving cases, Schedule 2 of the Criminal Law Amendment Act would need to be amended to list murder resulting from driving while under the influence as a separate offence."
Dr Maharaj said if the State pursued a charge of premeditated murder only and subsequently failed to prove the planning or premeditation element, there was no real risk of a total acquittal because section 258 of the Criminal Procedure Act made culpable homicide an automatic competent verdict on any murder charge. Even without alternative counts, the court could convict the accused of culpable homicide.
“While Minister Creecy’s proposal reflects legitimate public frustration with South Africa’s road-death toll, existing law already permits murder prosecutions in these cases on the basis of dolus eventualis. Reclassifying them as premeditated murder will not automatically result in life sentences unless actual prior planning can be proven, which is rare. A more effective legislative route would be to amend Schedule 2 of the Criminal Law Amendment Act directly,” Dr Maharaj added.