The country’s police are required to serve as the guardians of law and order. However, you may have seen news reports of incidents in which people’s interactions with police officers during routine stops or searches turned nasty.
Because the police have wide authority and rights above those of ordinary citizens, it’s hard to know what your legal rights are when it comes to a police search or seizure. So what rights do you have, and how should you behave?
Ask for identification
The first thing you need to know is that the police are required to have identification visible. In other words, you should be able to see their names on their uniforms.
If this is not the case, you may ask to see identification, to confirm that you are actually dealing with an officer of the law.
The police are within their rights to pull you over if you’re driving, whether or not they can indicate a clear reason for doing so. However, they must have a valid reason to search your person or possessions, including your vehicle. Specifically, they must have reason to believe that you have been involved in some kind of illegal or criminal activity − sufficient to argue that a judge or magistrate would be willing to offer a search warrant in court.
Note that according to case law, an officer cannot search someone’s person, house or car simply because they believe the person is “suspicious”. This will not hold up in court. The police cannot arbitrarily search you or your home without being given specific legal authority to do so. You can therefore ask the officer what grounds they have to believe a search is necessary.
If you are feeling threatened or harassed, it’s wise to take note of as many details as possible. In addition to the time and place, and the officer’s name and station or branch, memorise the license plate number and look for the code printed on the side of the police vehicle. Letters represent the name of the station, while the digits are the squad car number.
Special rules for roadblocks
In the case of a roadblock, search and seizure is already sanctioned. You may not refuse the search. But you can ask to see the written authorisation for the roadblock, given by the National or Provincial Police Commissioner, before you submit to the search. If, for any reason, you are not convinced of the validity of a roadblock, or if you feel unsafe, you can request to be taken to the nearest police station.
Note that body searches can only ever be undertaken by officers of the same sex as the person being searched. For instance, if a woman is pulled over and there is no woman officer to do the search, no search can proceed until a female officer arrives.
Seizure and arrest
The police can arrest a citizen on the strength of a warrant of arrest, if they witness the person committing an offence or if they have probable cause to believe the person was involved in a crime.
The police have the power to arrest anyone who they have seem committing an offence in their presence; anyone they suspect of having committed a crime; anyone in possession of property they suspect has been stolen; anyone encountered at night in suspicious circumstances suggesting a crime has been, or is about to be, committed.
How to react if you’re arrested
If you are approached by a police officer wanting to detain you, remain calm and cooperate. Don’t try to flee, become aggressive or offer a bribe. If you try to resist arrest, the officer may use reasonable force to arrest you.
When being arrested, note that:
- you have the right to know the grounds for the arrest (the charges)
- you have the right to remain silent (you should be told as such, as well as be informed of the consequences of not remaining silent – for instance that anything you say to an officer may be used against you in court)
- you may not be forced into making a confession
- you may ask to be seen in court as soon as is possible (within 48 hours at most, depending on court days and day of arrest)
- you may not be pressed by police for personal information (such as organisations you are involved with) other than your home address.
Once detained, the police have the right to take your fingerprints and photograph. Your rights are as follows:
- you can only be searched with your consent, and you may ask that a same-sex officer conduct the search
- you must be told of your rights and the charges in a language you understand
- you have the right to see a lawyer/attorney of your choosing in private (or, at least, out of earshot). It you cannot afford one, the state must appoint you legal representation
- if you’re being questioned, you’re entitled to see an attorney; you have the right to refuse to say anything until you’ve met with your legal representative
- you have the right to be held in such a way that upholds your human dignity, with adequate accommodation, nutrition, exercise, reading material and, if relevant, medical treatment
- you may receive visitation and communicate with your spouse/partner, next of kin, religious counsellor, and medical practitioner
- you must be presumed innocent until proven guilty.
The police may release you with a warning or you may be granted police bail, provided an officer of sufficient rank is available to grant or deny it.
Intimidation and harassment
A police officer may not verbally or physically abuse or intimidate you. They may not threaten you with violence or assault you. If they do, remain calm. You can report it at any police station afterwards. Note that you do not need to report it at the station of the officer in question.
If you have been assaulted while being searched or detained, you may take action for civil damages against the police in question and the Minister of Safety and Security.
If you’re detained and injured as a result of assault, ask to be seen by a district surgeon, who should take note of any injuries. This is often the only evidence you can gather because your only witnesses may be the police themselves.