Nadine Meintjes, Candidate Attorney; Abrie van der Merwe, Associate
On the 24th of December 2022, at approximately 06:15, a gas tanker got stuck under a bridge in Plantation, Boksburg, leading to a catastrophic explosion in which many people were injured and some sadly lost their lives.
Since then, the driver, who was in the hospital at the time, was arrested on the same day as the incident and subsequently released on the 27th of December 2022. The information was provided in a statement from the National Prosecuting Authority on 28 December 2022, which led to a public outcry and claims that the process was unjust.
BDK Attorneys has evaluated the statements in the media and can provide some information on the subject for our readers to form their own informed opinion.
The Process Of Detention And Prosecution Of Suspects:
Upon arrest, a suspect can be detained for 48 hours by the South African Police Services before the suspect must be taken to the relevant Magistrates Court for his first appearance, after which he has the right to apply for his release on bail. It is important to note the timeline of the driver’s arrest and that the 48 hours does not include weekends and public holidays. A suspect must be released from detention should he/she not be brought before a court for the first appearance within the relevant timeframes.
However, before a person appears in court, the National Prosecuting Authority has the discretion to consider the contents of the docket, which contains the evidentiary material, and decide whether to institute the prosecution or not. The decision not to proceed with the prosecution at this stage is colloquially referred to as “not enrolling the matter”. This merely means that the suspect will be released while the investigations continue. Upon completion of the investigations, and a decision to proceed with the prosecution, the State can have the suspect attend court in a variety of ways.
A formal judicial inquest can also be held in order to determine whether prosecution should be instituted. This will typically be instituted in circumstances where:
- A person died of unnatural causes; or
- There is no suspect or doubt regarding the suspect.
An inquest is not a replacement or a substitute for criminal proceedings and is aimed at determining whether or not the prosecution must be instituted and, secondly, whether such prosecution has a reasonable possibility of success.
It will not be surprising if the State first conclude their investigations and then decide to hold a judicial inquest before proceeding with the prosecution, if at all. In fact, this would be the most appropriate course of action in the long run as this will also prevent unreasonable delays in the investigations, which lead to matters being struck from the Courts’ rolls on a daily basis in terms of section 342A of the Criminal Procedure Act 51 of 1977. It is not unreasonable to expect this investigation to take a lengthy period, as it would require several and various experts to provide their reports.
Release Of The Driver:
Taking the aforesaid into account, it is not surprising that the State has elected not to institute prosecution against the driver at this juncture, as his lengthy detention would place an unnecessary sense of haste on the investigations and, most likely, lead to the matter being struck from the Court’s roll.
There are also various questions that will have to be answered, such as whether the driver’s negligence was unreasonable and amounts to a criminal offence, or whether the members of the public were negligent in staying too close to the truck when it caught fire, or various other questions that could have led to the incident or prevented it.
This decision is not an enviable responsibility and only time will tell what the outcome will be.
What are your thoughts in view of the above – was the decision to release the driver at this stage rational and the correct one taken by the National Prosecuting Authority?
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