Stopped by the cops? Know your rights

In South Africa, getting pulled over by the police can be an unnerving experience. While there are plenty of officers who are honest and trustworthy, the few bad seeds unfortunately give our SAPS a bad reputation, and if you have a run-in with one, it can be very unpleasant.

It is important to understand your rights with regard to being stopped, searched and arrested by the police, so that you know what is and isn’t within the law, and what you can and can’t do if you feel you are being unfairly or illegally treated.

Howard Dembovsky, the chairman of Justice Project South Africa, had the following pointers for people who are pulled over by the police.

What you should and shouldn’t do

The first thing Dembovsky says is that you should always cooperate with the police, no matter whether you think it’s unfair or unreasonable that you have been stopped.

“Remember that it is your constitutional right to be treated with dignity, however it is your responsibility to treat the police with the same dignity you expect from them,” he says. “Never, ever get rude or combative. It will not assist you and will most probably result in you getting abused.”

He adds that you should never attempt to “litigate” a matter at the roadside. “A police official is not a judicial and the roadside is not a court.”

Instead, cooperate politely, and if you truly feel that your rights have been infringed, follow the correct procedure later. Do not refuse to sign for a fine or written notice to appear in court. Dembovsky says that there is no advantage to doing so, and being obstructive will simply annoy the police .

You should also never resist arrest. “Doing so will not only lead to the police using force to restrain you, but will also lead to an additional charge of resisting arrest.”

However, he adds that you should never take legal advice from the police or prosecution. “You have the right to legal representation and if you cannot afford it, you may apply for legal aid from the State.”

He also advises against engaging the services of the attorneys who wait in the corridors of police stations or courts, as “chances are you will be hiring an incompetent or corrupt lawyer. A good lawyer does not need to tout for business.”

You may be pressured into paying an admission of guilt fine, but this has consequences. “If you pay an admission of guilt fine once your fingerprints have been taken, you will incur a criminal record.”

He advises reading and understanding Section 35(3) of the Constitution of the Republic of South Africa, which covers your rights in the unfortunate event that you are arrested, in more detail. “Don’t wait until you are arrested to read and understand the Constitution.”

It can be useful, if you have a personal security app such as MiBlackBox on your phone, to either record your conversation with the police official, to be immediately sent to your emergency contacts, or to take a photo of the officer for immediate upload to a secure server. However, remember to avoid being rude, combative or threatening. “Whatever you do, do not shove your phone in a police official’s face or make it obvious you are recording them,” Dembovsky added.

What the police should and shouldn’t do

Of course, while there are limitations and expectations to the way the public should behave in an encounter with the police, the police are also bound by the Constitution and the Criminal Procedure Act. Acting outside of this framework is unlawful.

Dembovsky highlights some of the important areas you need to be aware of:

  • Police officials may stop and search any person who they reasonably suspect is committing, has committed or is planning to commit a crime. Arbitrary searches without a warrant are not permitted.
  • Although a police official of any gender may arrest a person of any gender, body searches mustbe conducted by a person of the same gender as you.
  • A police official in uniform must display a name badge above his or her right breast pocket in a manner that it is completely visible and easily legible.
  • A police official must, on demand, produce his or her appointment certificate to anyone with a material interest in seeing it.

Knowing your rights and being aware of what you should and shouldn’t do when you are stopped by the police will go a long way to making your next encounter with them run more smoothly. Remember, avoid conflict, but take the necessary steps to protect yourself.