Understanding your rights when interacting with the South African Police (SAPS) is important to ensuring fair and lawful treatment. Gazette’s sister publication, the Paarl Post reached out to the Western Cape Police Ombudsman to clarify some common questions about what the public is entitled to in their dealings with the police.
Below are the answers to some of these crucial questions.
1. Firstly, the newspaper asked what are the key rights every citizen should know when interacting with the police.
According to the Ombudsman, this answer can be found in Chapter 2 of the Bill of Rights of the Constitution of the Republic of South Africa, 1996 (Act 108 of 1996).
This section in the Bill of Rights outlines the rights and freedoms guaranteed to all citizens of South Africa. It is a cornerstone of South Africa’s democracy and human rights framework, ensuring that every individual is entitled to specific rights, such as the right to life, dignity, equality, freedom of expression, and access to justice, among others.
Some key takeaways in this bill include:
• Section nine states that every person (race, gender, ethnicity, religion, or any other factor) is equal before the law and has the right to equal protection and benefit from the law.
• Section 12 of chapter two states that no one may be arrested or detained without just cause, nor subjected to excessive force by the police or any other source of violence.
• Under section 17 citizens have the right to peaceful protest and cannot be arrested or assaulted by the police for lawful demonstrations.
2. What are an individual’s rights regarding search and questioning if they are stopped by a police officer in a public place or at a roadblock?
The Western Cape Police Ombudsman states that police must have reasonable suspicion of an offence or unlawful possession before conducting a search. In the case of a roadblock, proper authorisation under Section 13(8) of the Police Act is required. According to a BusinessTech article from 29 March 2024, drivers have the right to ask officers the reason for the search and to request a valid search warrant. If the officer cannot provide one, the driver may refuse the search. However, excessive questioning could lead to accusations of obstructing justice and potential arrest. To avoid conflict, it is advisable to remain calm. Drivers also have the right to record the interaction without the officer’s consent, although some may attempt to misuse obstruction laws to prevent filming.
3. Are citizens legally required to provide identification to the police on demand?
According to the Western Cape Police Ombudsman, the answer is “yes”. Under the Immigration Act, Police Act, and Criminal Procedure Act, individuals must provide identification when requested. If they do not have it, they must be given a chance to retrieve it. Failing to present an identification document, including a driver’s licence when driving, is a criminal offence.
4. How can a member of the public verify if a police officer, is indeed a police officer?
“Every police officer is issued with an appointment certificate/card which indicates that such person is a police officer. A police officer must carry this on their person and produce it before conducting any search of arrest, even if the police officer is wearing a uniform,” according to the ombudsman.
5. What are the rights of citizens when opening a case at a police station?
A citizen has the right to open a case at any police station and cannot be turned away or referred elsewhere. The police will only open a criminal case if the necessary elements of a crime are present.
Civil matters will not be accepted and fall under the jurisdiction of civil courts. Should an officer refuse to open a criminal case, the complainant should record the date, time and officer’s rank and name (reflected on the name badge if the officer is in uniform) and report the matter to the officer’s supervisor on duty or station commander. If the complainant is still not assisted they can lodge a complaint with the Western Cape police ombudsman.
6. What are the public’s rights regarding photographing or recording police officers in public and within police precincts?
Under section 16 in Chapter 2 of the Bill of Rights of the Constitution of the Republic of South Africa, 1996 (Act 108 of 1996), people have the right to record police officers in public, provided they do not interfere with police duties. Relating to the media, the SAPS Standing Order 156 states that in public spaces, media representatives have the right to photograph anything in plain view, including SAPS members. Filming inside police premises or cells can only be authorised by senior SAPS leadership. Section 10(3)(a) of the Standing Order 156 clarifies that media representatives are not prohibited from taking photographs or visual recordings, including of police officers, despite Section 69 restrictions.
Section 10(3)(c) ensures media personnel are not subject to verbal or physical abuse, and their equipment cannot be seized unless legally required. Furthermore, no member of the SAPS may intentionally damage media equipment.
