With the holiday season upon us, so the police presence on the roads will increase. Know your rights if and when you are stopped either in a roadblock or by a police officer.
To start off we would like to say thanks to Anthony Whatmore for this great article and information.
Below are some articles giving advice on what to do when being pulled over. Understand that these articles are guides and do not replace the advice of your lawyer.
Most drivers are uncertain of what their rights are when stopped at roadblocks or confronted with suspicious police behaviour.
Be aware of these points when confronted by real or alleged police officers:
Note that under South African Law uniformed South African Police Service members (SAPS) have the same powers as uniformed traffic officers (JMPD) or other Metropolitan police forces.*
*The word police used in the body of this document refers to both of the above.
• Ask for the person’s police certificate of appointment which includes his picture, name, rank, force number and where stationed: Section 334 (2) (a) of the Criminal Procedure Act 51 of 1977
• If these details are not given, you can ask to see the roadblock commander or most senior officer on the scene
• If you have any doubt about the authenticity of the roadblock, you can ask to be taken to the closest police station
• If the roadblock is legal, you have the right to ask what its purpose is. Even so, the person is not compelled to tell you if the reason is classified. The number of vehicles being stopped may indicate the status of the roadblock
• You have the right to be treated with respect at all times and have the further right to get the details of any officer who has treated you unjustly
• You must co-operate with all reasonable instructions, but you can question your position should you feel that a violation of your constitutional rights or your rights under the Criminal Procedure Act, 51 of 1977 is occurring
• You must at all times treat any officer with respect and the dignity attached to his rank and office, although you may be firm in upholding your legal rights
• You must identify yourself as the driver of the vehicle and supply proof of your driving license.
The following are your legal rights in terms of the Constitution of the RSA, Act 108 of 1996.
Section 35 thereof deals with the rights of arrested, detained and accused persons:
• You have the right to remain silent: Sec.35(1)(a)
• To be informed promptly of
-The right to remain silent: Sec. 35(1)(b)(i)
-The consequences of not remaining silent: Sec. (35)(1)(b)(ii)
• You cannot be forced to make a confession or admission that can be used in evidence against you: Sec. (35)(c)
• To be brought before a court as soon as reasonably possible, but this must not be later than: – 48 hours after the arrest Sec. 35(1)(d)(i)
• Be informed of the reason for your continued detention: Sec. 35(1)(e), Sec. 35(2)(a)
• To be released subject to reasonable conditions: Sec. 35(1)(f)
• To choose and to consult with a lawyer of your choice and to be informed of this right: Sec. 35(2)(b)
• To have a lawyer appointed to defend you by the state if you cannot afford a lawyer and to be informed of this right: Sec. 35(2)(c).
The above is your most important rights at this stage. Be prepared by learning these basic citizen’s rights. Should a confrontation occur, you will exude confidence and legal awareness and should not constantly refer to this document during the incident?
Unpaid traffic fines
If at the roadblock it is alleged that you have outstanding or unpaid fines, the police have the right to detain you if they can show you a legitimate warrant of arrest or a valid copy.
If the police cannot show you a legitimate warrant or copy, you have the right not to be arrested. If the police persist with the arrest without a warrant, you have the right to immediately call your lawyer.
If the police ask you to pay any outstanding fine(s) and you do not have the money available, you might be detained until the fines are paid, if a warrant was issued. In these circumstances it’s best to contact your lawyer.
We suggest that you keep the receipts of paid fines in your car, so that you can immediately produce proof should a dispute arise about non-payment of fines and your possible arrest.
Keynote: Ensure that you have your lawyer’s cell phone number listed in your own cell phone.
Note that under no circumstances must you attempt to elicit a bribe, or you must immediately distance yourself from the
suggested bribe. The consequences of bribing a police officer, or attempting to do so, far outweigh those of the fine itself.
This act amounts to attempting to defeat the ends of justice, which holds a separate legal sanction and for which you can be prosecuted.
Practically speaking, by paying a bribe, you are just perpetuating a demand for corruption.
These materials are courtesy of the Stop Corruption campaign conceived by the Parkview Community Policing Forum
YOU’RE GUIDE TO STOPPING AT ROADBLOCKS – According to Fight against crime South Africa
Understand if it’s an official roadblock
There are two different types of roadblocks. The first are informal roadblocks set up at random by the police. The second are K78 roadblocks, which are approved by the provisional commissioner and possibly policed by the traffic police, the South African Police Service and even South African Revenue Services officials.
In a K78 roadblock, the police are entitled to search your vehicle and can even go to a full body search if they have reason to suspect that you are hiding something. “You can ask to see the authorisation proving that the roadblock is legitimate, but this does escalate the situation immediately, and our experience has shown that the situation can get nasty fast.”
Simply put, it is better to comply than to resist whether it is an unofficial or official roadblock.
Dealing with outstanding traffic fines
According to Dembrovsky, there is no provision in South African law that allows the police to set up roadblocks and demand that you pay your outstanding fines. “There is only a provision for a warrant to be issued for your arrest if you do not appear in court for a criminal summons, which can also be extended to the non-payment of traffic fines, but police at a roadblock would not have these warrants on their person.”
Regardless, the South African police persist in establishing illegal roadblocks that use license plate recognition to check whether you have any outstanding fines. While the process itself may be illegal, if the fine is legitimate, the best way to deal with this situation is simply to pay what’s owed.
Accept a Breathalyzer test
If a testing point for drunk driving has been set up, Dembrovsky says that you aren’t legally obliged to agree to a Breathalyzer, but that you should. This is because if you don’t comply, the police have grounds to arrest you and perform a blood test.
In South Africa, the legal limit for breath alcohol is 0.24mg per 1 000ml or a blood alcohol limit of 0.05g per 100ml. “The police will sometimes exchange one limit for another to persuade you that you are over the limit after you’ve been breathalysed,” says Dembrovsky.
For this reason, he advises all South Africans who intend to drive to avoid alcohol altogether. “In this way, there can be no dispute about whether or not you are over the limit,” he says.
WHAT ARE YOUR RIGHTS AT A ROADBLOCK – According to Rick Crouch, eThekwini Municipality, Ward 10
Authorities at a roadblock are required to follow correct legal procedures. Below are some guidelines about motorists’ rights and roadblock laws:
A warrant with the details of the outstanding traffic ticket must be provided before any motorist can be arrested at a traffic roadblock. An electronic warrant is acceptable, provided the information comes from an authorised official and includes adequate details.
You have the right to request a copy of the warrant at a roadblock, and if none is provided, an arrest would be illegal.
If you are arrested, you should be taken to a South African Police Services station as soon as possible.
It is illegal to hold arrested motorists in a police vehicle or similar detention area while the police officers at the roadblock continue with their duties.
You have the right to legal representation and a fair trial.
You have the right not to be compelled to make an admission of guilt.
A recent hoax email encouraged motorists to resist arrest at roadblocks, but the Law Society of SA advises drivers to instead pay their outstanding fines and then tackle the legal matters.
Any threats or request for a bribe from a police officer at a roadblock are illegal. Similarly, it is illegal for you to threaten an officer or offer them a bribe.
WHAT ARE MY RIGHTS WHEN STOPPED BY A TRAFFIC OFFICER? – According to the AA
A uniformed police officer has the right to stop any vehicle at any time. If you are stopped by the police, you are obliged to give your name and address, if required, and any other particulars concerning your identity. You are entitled, however, to ask such a person, whether in uniform or not, for proof of identity. You may demand to see their appointment certificate (identity card).
The Criminal Procedure Act is very clear in stating that an officer who cannot or will not provide an appointment certificate on demand is in violation of the Act and that any actions that he or she takes will be unlawful if such a certificate is not provided. In terms of the National Road Traffic Act, a traffic officer does have the authority to demand your driver’s license, which by law must be kept on the driver’s person or in the vehicle. In some cases, the license must be shown to a police officer at any police station within seven days. A police officer may order that the use of a vehicle considered un-roadworthy be discontinued immediately. They may, alternatively, specify that the vehicle may only be used for a limited period or to reach a specific destination. They are empowered to remove the clearance certificate (license disc) from the windscreen.
When stopped in a roadblock, traffic authorities regularly try to create the impression that you have no option but to settle your fines there and then under threat of arrest. The fact is that they cannot under any circumstances arrest or detain you (same thing) for an outstanding traffic fine for which there is no warrant of arrest.
They may serve you with a summons to appear in court, as long as the court date on that summons is at least 14 days in the future (Sundays and public holidays excluded) but they may not force you to pay there and then.
If a law enforcement official wants to arrest you, you have the responsibility not to resist arrest in any way.
A male officer may not physically search a female and vice versa
The Constitution forbids arbitrary search and seizure of your person, your property or possessions. If you are stopped by law enforcement officials they must have a valid belief that you may have been involved in the commission of a crime and that a search warrant would be issued by a Magistrate or Judge if they wish to search you or your vehicle and/or seize your possessions.
This applies to “random pull-overs” where you are singled out by law enforcement authorities.
It does not apply to properly constituted roadblocks where search and seizure are in fact authorised prior to the roadblock being set up.
If you are arrested, you must be informed of your rights immediately when you are arrested. If you are arrested, you must be taken directly to a police station. Driving around with you in the back of a vehicle for extended periods of time is not acceptable.
If you are detained, you have the right to be brought before a court within 48 hours of your detention.
In most cases, you will have the right to apply for and be granted bail at the police station. It is only in the case of serious crimes that your application for bail can only be heard by a court.
You will be informed on what date and in which court you are required to appear.
You will have to pay an amount as is set down to guarantee your appearance in court.
KNOW YOUR RIGHTS AT A ROADBLOCK – According to Bona
The festive season is here and while many of you are looking forward to the end of year parties, the police have also made it a priority to increase their presence on the roads.
Head of FNB’s Law on Call, Tertius Bossert says imperative that you know your rights should you be stopped at a roadblock.
Here 3 things you might not know.
- Getting stopped at a roadblock
“When you are stopped at a roadblock, the law enforcement officer will ask you for your personal details, of these you are obliged to give your name and address. Similarly, you are entitled to ask an officer for proof of identity,” says Bossert.
You may not be arrested for any outstanding traffic fines if there is no warrant of arrest for the fines. However, if you have given the officer cause to arrest you, it is not advisable to resist arrest.
- If you are arrested
“If the officer arrests you; he is required to read you your rights immediately, and he must take you directly to a police station, nowhere else,” explains Bossert.
Depending on what you are arrested for, you will have the right to apply for bail at the police station. If ‘after-hours’ bail is not granted to you, you have the right to be brought before a court within 48 hours of your arrest.
- Know the law
Bossert also suggests that you take some time to familiarise yourself with the laws of the country and the bylaws of your own city or town, especially regarding drinking and driving, unpaid speeding or traffic fines and even smaller matters like the use of fireworks in your community, and ensure that you enjoy yourself within the limits of these laws.
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