Roadblocks and road checks – what are your rights?
Section 13(3)(a) of the South African Police Service Act 68 of 1955 regulates roadblocks and sets out the requirements that must be met.
The act defines a roadblock as being: “any block that minimizes the regular flow of traffic and which is authorised in writing by either the National -, Provincial Police Commissioner or the nearest Police Station Commander.”
The requirements for a lawful roadblock are:
- Must be authorised in writing by a competent person, such as the National-, Provincial Police Commissioner or a Police Station Commander.
- The written authorisation must contain the specific date, time, and place of the roadblock, as well as the proposed objective for which it is being erected.
- The proper signage, cones, barriers must be placed near or at the roadblock.
SAPS may search your vehicle and seize without a warrant at lawful roadblocks. Unfortunately, you must co-operate with law enforcement in this regard.
If you are of the opinion that the relevant officer abused his powers and that he/she has violated your procedural and constitutional rights at a roadblock, you must obtain:
- The officer’s badge number, name, and surname.
- Request a copy of the written authorisation required for the roadblock to be valid, which the officer must present immediately. If the officer cannot do this, the roadblock is unlawful and must be reported to the nearest station commander, alternatively the provincial office of SAPS.
- Remember, you have the right to contact your attorney to assist you with the report or institute legal action against SAPS.
However, it should be noted that your resistance at the roadblock can escalate rapidly, resulting in an arrest and possible detention.
There is no legal definition in legislation as to what constitutes a road check. Section 3(l) of the National Road Traffic Act 93 of 1996 authorises traffic officers, who include metro – and police officers, to while in uniform, have any vehicle stopped and demand any of the following documents:
- Driver’s license.
- Learners’ license.
- Operators permit/card.
- Professional driving permit.
The difference between road checks and roadblocks is as follows:
- Whereas roadblocks disrupt traffic flow and require written authorisation, road checks don’t require aforesaid.
- Roadblocks must be adequately identifiable with cones, lights, and signs, and contrast to road checks which don’t require these.
Section 3(l) of the National Road Traffic Act 93 of 1996 does not authorise the officers to conduct search and seizures on the vehicle or on yourself, save for the rules governing these actions in terms of the Criminal Procedure Act.
Where reasonable grounds exist to suspect that an object had been used in a crime or aided in a crime, then officers may search and seize the object.
General rules governing road checks:
- A traffic officer may only search your vehicle with your consent, or reasonable grounds exist for them to do so.
- Arrest any person who has an outstanding arrest warrant, commits a crime in their presence, or who is suspected on reasonable grounds to be on their way to commit a crime or has committed a crime.
- To inform the driver of any outstanding fines against them.
- Impound or issue a notice of discontinuing vehicles on the face of it, if not road worthy.
The officer may not:
- Physically or verbally abuse the driver or damage their property.
- Execute any search and seizure without a warrant, your consent, or reasonable grounds exist.
- Threaten to or withhold your license until any outstanding fines are paid.
- Force you to pay the unpaid fines there by the roadside, even if payment facilities are provided.
Your rights are:
- You can demand to see the officer’s appointment certificate, which will prove that they are an authorised peace officer.
- Demand to see their written authorisation as contemplated in terms of section 13(8) of the South African Police Service Act.
- Unless reasonable grounds exist, refuse to give consent to have your vehicle or person searched by the officer; and
- Where an arrest warrant is claimed to exist, demand to see it and immediately phone your criminal defense attorney.
Where these documents cannot be produced, the same procedure can be followed as with roadblocks.
- You always have the right to contact your attorneys for assistance and guidance. Always ensure that you have his number on your cellphone.
- You have the right to remain silent should you be accused of an offence, and anything you say will and can be used against your in a court of law by the officer.
Written by Heinrich Gonzales, Director of HFG Attorneys Inc.
The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.