BILL WATCH 38/2025

[7th December 2025]

Problems with Breathalysers

Veritas does not often comment on statutory instruments, but recently one was published in the Gazette which cries out for urgent correction.  It is the Road Traffic (Use of Breathlysers) Regulations, 2025 (SI 193 of 2025).

The instrument is very short and on the face of it almost incomprehensible.  Its opening words give notice that it was made by the Minister of Transport and Infrastructural Development in terms of section 76(9) of the Road Traffic Act.  Then follows section 1, giving its title.  Immediately after that there is a Schedule which, without any explanation, sets out ten serial numbers:

“1.  Serial Number AA 202 507 00000017

 2.  Serial Number AA 202 507 00000018”

and so on.

That is all.  There is nothing to suggest what these serial numbers are or what the Minister was trying to do in enacting the instrument.  The only clue lies in the opening words:  the Minister purports to have made it in terms of section 76(9) of the Road Traffic Act.

Section 76 of the Act empowers police officers to make drivers submit to a breath analysis in certain circumstances – for instance if the drivers do not seem to have proper control of their vehicles.  The breath analysis must be done by a “breath analysing instrument”, which is defined to mean “an apparatus approved in terms of subsection (9).  Subsection (9) goes on to say:

“(9) The President may, by notice published in the Gazette, approve for the purpose of this section an apparatus by means of which the concentration of alcohol in the blood of a person is indicated from an analysis of his breath.”

So there, it seems, we have it.  The statutory instrument apparently lists breathalysers which have been approved for use in terms of section 76 of the Road Traffic Act.  But:

·      There is a great deal wrong with the instrument (apart from the misspelling of “Breathalysers” in its title):

·      There is no statement that the “serial numbers” listed in the Schedule are breathalysers or that they have been approved for use in breath analysis.

·      More importantly, the instrument purports to have been made by the Minister of Transport, whereas it should have been made by the President.

Each of these would be enough in itself to invalidate the instrument;  together they render the instrument completely void.

This is very serious.  The festive season is approaching and increasing numbers of drunken drivers will be on the road.  The Police will be expected to keep as many of them as possible off our roads, and the most effective way of doing it is to test their blood-alcohol level with a breath analysis.  But under section 76 of the Act, the Police cannot compel a driver to take a breath analysis unless the instrument they use is a “breath analysing instrument” approved under subsection (9) of the section, and evidence of a driver’s blood-alcohol level is inadmissible in court unless the level has been recorded by an instrument approved under subsection (9).  And no instruments have been approved under the subsection.

Unless a new statutory instrument is issued by the President and published under section 76(9), the Police cannot legally test drivers’ blood-alcohol level – at least, not with any of the instruments listed in SI 193 of 2025.  If they do try to use those instruments, the evidence they obtain will be thrown out of court;  and if they try to force a driver to take a breath test with one of those instruments, they may be sued for assault.

We urge the Government to replace the statutory instrument as quickly as possible.