Now, now, kiddies! Mother knows best

The infantalisation of South African adults proceeds apace. The nanny state has already decreed how much exposure – precisely none – we are to be allowed to character sapping tobacco and booze advertising.

Now it is the turn of Cape Town, which revels in its casting as the ‘mother’ city, to embrace the heavy-handed exercise of parental control. It is not only going to dock our pocket money if we are naughty but it will also confiscate our toys until we learn to behave.

Errant motorists caught with a cellphone in their hands while they are driving will not only be fined but the instrument will be confiscated for 24 hours. If they object to handing it over, they will be arrested.

Mama Pat, the Democratic Alliance mayor, is giving her prefects free rein with the big stick. Who knows what’s next? Maybe second offenders could lose their phones AND have to write as punishment a thousands lines.

Repeat offenders could have their cellphones AND car keys confiscated. They might be gated for a month, except for every Saturday when they would have to make their pedestrian way to the nearest metro police centre, where they’d have to weed flowerbeds and empty dustbins.

While confiscation will ‘help people get the message’, Safety and Security mayoral committee member JP Smith declares officiously, ‘we’re hoping that we don’t have to confiscate any phones. We’re losing lots of money through the additional administrative tasks. It’s the officers’ time, the admin.’

Does anyone else hear in JP Smith’s words the echo of pompous insincerity of headmasters one had thought long forgotten? ‘Bend over and touch your toes, boy. It’s for your own good. This hurts me as much as it is going to hurt you…’

No one is arguing that it is not demonstrably dangerous to drive and be on a cellphone at the same time. Studies implicate cellphone use in six percent of accidents in the United States and driving and using a phone makes an accident four times more likely.

Fine offenders by all means. However, Cape Town is actually the one city where the road death toll has been decreasing steadily. So rather than road accident statistics justifying the new confiscation policy, as the DA claims, it is evidence that this school-prefect approach is an exercise in excessive civic zeal.

It is also likely unconstitutional. Advocate Andrew Pike believes the law, also being contemplated in KwaZulu-Natal, would fail a Constitutional Court challenge.

Pike cites the Constitution’s rights to ‘just administrative action’ and to access to the courts when accused, as well as the prohibition on ‘arbitrary deprivation of property’. On-the-spot seizure of a cellphone is a pre-emptive declaration of guilt and ‘imposes a punishment without a fair trial … Even if you then insist on a trial and then win, the punishment cannot be undone,’ says Pike.

Confiscation is also a bad law in other ways. It means that doctors, emergency workers, the vulnerable, and a vast array of one-man-and-a-cellphone businesses, among others, are going to be telephonically incommunicado for 24 hours on the say-so of a traffic cop who might just have a chip on his shoulder that is bigger than his brain.

There are lessons from the past about bureaucratic fiat that one might expect the supposedly liberal DA to be sensitive to. Do South Africans really want again a system of administrative justice where petty officials play the roles of both cop and judge? Seized cellphones are different only in scale, not in principle, from bureaucrats invalidating at the stroke of a pen residential permits or passports.

Arbitrary confiscation is over the top, probably illegal, and as arrogant in its indifference to rights as is, say, the blue-light convoys that ordinary citizens have to put up with but bitterly resent. But Mama knows best and never, never backs down.