It’s 18:00 on a Thursday and you find yourself heading home after a long day on campus. As you walk past Oom Gert’s you run into a friend. One thing leads to another and four hours later you are drinking tequila in Aandklas. Suddenly the tables become a dance floor and you firmly believe that your rendition of “Bohemian Rhapsody” would make Freddie Mercury jealous.
With renewed ambition, you decide to embark on the epic drive homeward (after stopping at some red-labelled fast food joint first, of course). As you turn into Jan Shoba Street, a steaming chicken drumstick in one hand and the steering wheel in the other, blue lights flicker in your rear-view mirror. It doesn’t take an advocate to deduce that there is no (legal) way out of this situation. Even for a sharp-witted student with the will to have a flawless criminal record and an extreme fear of what goes on in South African prisons and holding cells, there is no choice but to cooperate and eventually be prosecuted.
There are, however, cases where people involved in similar situations believe they were wronged by the police and that their constitutional rights were violated.
Lenny Stark* and two of his friends were pulled over by the police at around 20:00 early last year while on their way to a live music show. They were pulled over after trying to overtake a police vehicle which, they allege, was driving very slowly. “It was in South Street, near [UP Sport campus]. There was something going on at the residences. You could hear the music in the background. Just when we passed them, those authoritarian blue lights went off.”
According to Stark, a policeman stood a few metres from Stark’s car and yelled at them to exit the vehicle, while holding on to his firearm. Another policewoman also approached them, holstering an automatic rifle.
When one of Stark’s friends tried to take photos of the police with his cell phone for evidence, they yelled at him that he’s not allowed to take photos without their permission and that he has to delete the photos and show them that everything was wiped. The police then proceeded to search Stark, his friends and the vehicle. They claimed to be searching for weapons and only after an unsuccessful attempt at finding any, did they ask Stark for his driver’s licence.
According to Transparency International, South Africa has a Corruption Perception Index (CPI) of 42. To clarify, a CPI of 100 is as pure as the Virgin Mary and a CPI of 0 is as notorious as a Somali pirate (incidentally, Somalia is ranked as the most corrupt country in the world with a CPI of 8). In a country with a CPI of 42, it might be a good idea to know your constitutional rights.
In a blog written by Prof. Pierre de Vos, Claude Leon Foundation Chair in Constitutional Governance (who also teaches constitutional law at the University of Cape Town), he states that the Police Act 68 of 1995 allows any police member to search any vehicle or person at a roadblock. The police may also pull over anyone at places other than roadblocks, but in such an instance they may only search a car or person if they have reason to believe that the person is involved in a crime. Since the police had only pulled Stark and his friends over while on patrol, and considering the fact that neither Stark nor his friends acted suspiciously, the police did not have the right to search him, his friends or his vehicle.
Furthermore, “If one is stopped at a roadblock, one has a right to be shown a copy of the written authorisation given by the National or Provincial Police Commissioner for the setting up of the roadblock,” De Vos adds.
This is fair enough, but is it a good idea to challenge the police on their own territory?
“I don’t think so,” says Stark. “If you get a chance (to ask for their authorisation), they’ll probably shout at you to stop resisting arrest and you’ll probably end up spending the night in jail.” As a last piece of advice, Stark adds that, “If you see a police vehicle driving slowly in a residential area, don’t overtake them, no matter how slowly they’re driving.”
In recent reports, the police have made major busts at roadblocks thanks to the rights provided to them by the Police Act.
News24 reports that three men were arrested by the police at a roadblock on the N1 highway outside Beaufort West for having 140 kilograms of marijuana in their possession on 9 January. The vehicle was pulled over because it had no number plates, which, according to the above-mentioned Police Act, is a valid reason for stopping a vehicle.
In cases like these, it’s easy to understand why the police have the rights that they do, but there are constitutional human rights issues involved which also need to be considered.
Maybe you’re the type of student who returns home at midnight after a long day of studying in the library. Driving home alone at night is without a doubt something that can instil fear in you. However, one night, despite it being illegal, you decide to skip a red robot after ensuring that it doesn’t pose a risk to yourself or other drivers.
But, as you turn into Jan Shoba, you might just see those dreaded blue lights. What happens to you then? Remember that bribery and extortion is illegal and should be reported to the police as soon as possible.
*Name has been changed.
Illustration: Simon-Kai Garvie