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What the police can and cannot do at a roadblock in South Africa

Being pulled over by a traffic officer in South Africa can be a stressful and sometimes frightening experience, even if you’ve done nothing wrong, so it’s worth being aware of your constitutional rights in this situation for the next time you are caught up in it.

In an interview on 702 Drive, legal expert Ulrich Roux delves into the rights and responsibilities of drivers who are pulled over at a roadblock or roadside check, which are treated as the same in the eyes of the law.

Reasonable suspicion is key

According to the Criminal Procedures Act (CPA) and Road Traffic Act (RTA), if the police have a reasonable suspicion that a crime has been committed – for instance, a person has been driving under the influence or may be in possession of equipment that is generally used for something like a house burglary – they have a right to search your person and your vehicle.

However, the crucial part that comes in is the element of reasonable suspicion.

“Strictly speaking, as a member of society you have the right to demand why [the traffic officers] are searching your vehicle, what is the reasonable suspicion, or to demand that they present you with a search and seizure warrant which has legally been obtained at court,” said Roux.

If they can’t present any of these, you may refuse them the opportunity to check your vehicle.

The expert cautions, however, that it remains a delicate situation as asking these questions could motivate the officer to claim that you are obstructing justice and subsequently threaten your arrest should you not permit them to search your belongings, a power that some officials may abuse, so it’s recommended to remain calm and not seem confrontational.

Furthermore, you may be tempted to call a family member or attorney when you are pulled over.

While you are not expressly forbidden from doing so, there is similarly no legislation that states an officer must wait for someone else to arrive before they can search your car.

“The CPA does not make provision for any member of society to be assisted by anyone else,” said Roux.

“What happens in practice is that a person gets pulled over and the first thing they do is phone their friend who is a lawyer or phone their lawyer to ask for advice.”

In this scenario, it is at the discretion of the policeman to decide whether they will allow the motorist to finish their call and wait until the lawyer arrives before conducting a search of the vehicle.

More often than not, however, they do not adhere to those requests and simply proceed with the search, said Roux.

Regardless of whether the traffic official wants to peruse your belongings or not, you have the right to record the entire interaction either through video or with a voice recording.

“The RICA Act makes it very clear that any person who is a party to a conversation or an incident taking place is within their right to either record it via camera or via voice recording,” said Roux.

“Unfortunately once again, and it pains me to say this, the police abuse the so-called crime of obstructing justice and you could very well be faced with a situation where the police then arrest you saying that you’re obstructing justice [and] they didn’t give permission to be filmed.”

Roux emphasises that you don’t need the officer’s permission to film and you are well within your rights to record the situation you are involved in.

Should you believe a search of your car was illegal, you may launch an application with the police to declare the action unlawful and invalid. Unfortunately, though, this can only be done after said search.

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