When the enforcement of irrational laws oppress the rights of the vulnerable

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Bottles of bootleg liquor, also known as hooch in India. File photo: dpa

Police regularly arrest people for the supposed offence of “dronk op straat”. The procedure following the arrest involves the detention of the suspected drunk person in police holding cells for a minimum of four hours before release. All too often, these suspected drunk people are released late at night or in the early, pre-dawn, hours of the morning. Thereafter many are left to walk long distances to their homes.

The only reasonable conclusion one can reach, for the practice is to lock suspected drunk people up, to sober up. Whether this practice has a legitimate function in law, is in question?  

Section 154 (1) (c) (i) of the Liquor Act, Act No. 27 of 1989, (the Liquor Act  of 1989) provides that it is an offence if a person is: “… drunk in or on or near any road, street, lane, thoroughfare, square, park or market”. No penalty is prescribed for the said offence. However, the glaring flaw is that the Liquor Act of 1989 does not define the term “drunk”. A definition of the word “drunk” according to Landsdown’s South African Liquor Law 5th edition at page 476 is as follows: “A man is drunk who, by reason of the alcohol which he has consumed, has lost control of his mental or physical faculties, or both, to such an extent as to render him incapable of comporting himself, or of performing any act in which he is engaged, with safety to himself or with that regard to the rights of others which the law demands.”

Lansdown goes further in stating that the only absolutely infallible test of drunkenness is a positive reaction for the presence of alcohol in the cerebro-spinal fluid, a test which is of course well-nigh impossible to secure in practice. In the absence of a legal and uniform definition of drunk, what is drunk is open to interpretation and there is a real risk that different police officers can act inconsistent from one another in making this determination.

This begs the question as to what informs the arresting officer of a person’s state of intoxication. Anecdotally, it is understood that a police official, after noticing a person in public, subjectively concludes that the person is drunk and then goes on to stop and arrest such people. What is glaringly absent from the arresting police official, is the ability to conduct a reasonable, objective enquiry into a person’s drunkenness.  What is not taken into consideration, is whether a person could suffer from another condition, not related to drunkenness such as epilepsy, depression or some other mental illness.

When compared to the arrest of a person for driving under the influence of alcohol; there exists a specific procedure for such an arrest. In these cases, the person suspected of drunken driving, after being arrested, must be taken to a district surgeon within 6 hours of being arrested for a blood test to measure whether the blood-alcohol level exceeds the legally allowed level. Upon receiving the results of such a test, the matter proceeds to trial.

On the other hand, when a person is arrested for being drunk on the street, the person is simply locked up in police holding cells. No blood tests are conducted to determine the level of intoxication of the arrested person. The person is detained for 4 hours, in some instances for longer periods, to sober up and then released. In most cases the prosecutors decline to prosecute due to lack of evidence. Furthermore, the statements by SAPS officials often fail to mention what offence had been committed. To this end, similarly situated persons are treated in a substantially different way, which raises serious questions related to equal treatment under law and equality generally.

In the absence of an objective test to determine intoxication, the arrest of a person without a warrant for being drunk on the street, can be construed as being arbitrary and open to abuse by police officials. This suspicion is confirmed by anecdotal accounts from senior police officials who explain that police officials with higher arrest numbers are eligible for better performance bonuses.

In summary, the ultimate flaw with the practice of arresting persons suspected of drunkenness in public, is that there is no definition of what “drunk” is and secondly there is no objective evidence collected to prove that the person is drunk. In light of the absence of an objective test for determining the intoxication of a person arrested on the streets for intoxication, there is no objective and convincing basis to expect a conviction within a criminal court beyond a reasonable doubt. It should therefore be argued that the human rights of the affected persons; more specifically their rights to dignity, freedom and security of the person and the right to just administrative action are violated. To exacerbate this violation of rights in the name of law enforcement, is the fact that these laws tend to be disproportionally applied against poor, black and vulnerable people, people who usually have little to no legal representation.

The preamble of the Liquor Act of 1989, aims to provide a control over the sale of liquor and for matters connected therewith. The means employed by the police in arresting a person for being drunk on the street is disproportionate to achieve the objective to control the sale of liquor. There is no rational link between the purpose of the act and the means employed. Moreover, there is no conclusive proof that this legislated offence in any way impacts or controls the sale of liquor.

In its current form, the Liquor Act of 1989 and its use for arresting people supposedly drunk on the street, lends it to being used as a  tool of a demeaning and racist system which is obnoxious and not befitting a democratic society based on human dignity, equality and freedom. It infringes on and ignores the rights of vulnerable and poor people and sees imprisonment without trial and punishment without any judicial process being implemented as a norm.

To remedy the defects identified and in the spirit of protecting the innate human dignity of all people, along with their equality and freedom under our Constitution, lawmakers need to insert a definition of “drunk” in the Liquor Act of 1989, along with the various provincial Liquor Acts. This definition would assist the police to make informed decisions when arresting a person for the said offence.

To ensure procedural fairness, provision must be made within the South African Police Service (SAPS) Standing Orders, that upon the arrest of a person for being drunk on the street, a blood test must be conducted to collect evidence that such a person was indeed intoxicated. The requirement for detaining of a person for 4 hours has no justification in law and is a violation of the person’s rights.

Chantelle Williams is the Northern Cape Provincial Manager at the South African Human Rights Commission.