Law enforcement and your rights
It can be intimidating when you interact with law enforcement officers, but it helps if you understand your rights in the situation. Whether it’s while driving, at a roadblock, in public or at home, it’s always good to be empowered with the knowledge of what your rights are.
When a law enforcement officer wants to search you or your house
Sections 10 and 14 of the Constitution state that you have the right to human dignity and the right to privacy, which include the right to have your dignity respected and protected and the right not to have:
- You or your home searched without a warrant.
- Your property searched.
- Your possessions seized.
- The privacy of your communications infringed.
The rights contained in sections 10 and 14 of the Constitution aren't absolute and may be limited in terms of section 36 of the Constitution, to the extent that the SAPS or other law enforcement officials are authorised to act in terms of the Criminal Procedure Act 51 of 1977 (the CPA), which permits them to prevent and investigate crime and conduct search and seizures.
A police official may search you or your property without a search warrant for the purposes of seizing an item connected to a crime, if the police official on reasonable grounds believes that a search warrant would be issued if it was applied for, but that the delay in obtaining the search warrant would defeat the purpose of the search.
A woman may only be searched by a female police official.
When a law enforcement officer wants to arrest you
Section 12 of the Constitution states that you have the right to freedom and security, which includes the right:
- To have your dignity respected and protected.
- Not to be deprived of freedom arbitrarily or without just cause.
- Not to be detained without trial.
- To be free from all forms of violence from either public or private sources.
- Not to be tortured in any way.
- Not to be treated or punished in a cruel, inhumane or degrading way.
In addition, section 35(1)(a) to (d) of the Constitution provides that everyone who’s been arrested, including those who’ve been stopped at a roadblock and arrested by the SAPS or other law enforcement agency, have the following rights:
- To remain silent (you should be informed of this right, as well as of the consequences if you don’t remain silent).
- Not to be forced into making a confession.
- To be heard in court as soon as possible (within 48 hours – where the 48 hours expire outside ordinary court hours or on a day that isn't an ordinary court day, you must be brought before a court on the first court day after the expiry of the 48 hours).
In addition to the above rights, the CPA provides that, if you're arrested:
- You must immediately be informed of the reason for the arrest.
- Police officials may take your fingerprints and photographs.
During a roadblock
The Road Traffic Act 29 of 1989 and the National Road Traffic Act 93 of 1996 empowers traffic officers to hold roadblocks. If you're stopped at a roadblock:
- You have the right to ask to see the officer’s certificate of appointment.
- The traffic offers may inspect your vehicle to see if it is roadworthy.
- You may be required to provide your name, address and other particulars that are necessary to identify you.
- If you’re suspected to be driving under the influence, you may be asked to take a breathalyser test.
- You have the right to film any incident at a roadblock.
- If you’re intentionally and unlawfully disrespecting an officer or fail to comply with a lawful request of an officer, they have the right to take you into custody.
- If you feel you’re being victimised, you can ask to be taken to the nearest police station.
The South African Police Services Act 68 of 1995 empowers the National or Provincial Police Commissioner to authorise roadblocks at which you and your vehicle may be searched. If you're stopped at such a roadblock you have the right to ask to see the written approval for the roadblock from the National or Provincial Police Commissioner.
How can I report misconduct by a law enforcement officer?
You can lodge your complaint with the Policing Complaints Centre or you can call the complaints line on 021 483 4332, or the Western Cape Police Ombudsman.
Make sure you’ve taken note of the following to assist you when reporting the incident:
- Place, time and date.
- Officer’s name.
- Details of what happened.
- Memorise the number plate of the police vehicle.
- Look for the code printed on the side of the police vehicle. The letters represent the name of the station and the numbers are the squad car number.
Code of ethics
The South African Police Services have a code of ethics, which underpins the way in which every member of the SAPS should behave. The key principles of the code of ethics are integrity, respect for diversity, obedience of the law, service excellence and public approval.
Your basic human rights
Everyone has basic human rights that are enshrined in the Bill of Rights, which can be found in Chapter 2 of the Constitution.
If you feel your human rights are being violated, you can contact the South African Human Rights Commission.
Disclaimer: The above information is provided for informational purposes only and not as legal advice. You should contact an attorney if you need legal advice about a particular incident or problem.