ROADBLOCKS – WHAT TO EXPECT OVER THE FESTIVE SEASON
The festive season is upon us and after a very turbulent two years of pandemics, lockdowns, international and interprovincial travel bans and all the economic difficulties to go with them, no one can be blamed for wanting to hit the open road and “let their hair down” at their favourite holiday destinations. This article serves as a warning to all those who are travelling in a more “festive mood” over the holidays than what our laws allow.
ROADBLOCKS – roadblocks when performed correctly are an effective way to pick out the lawbreakers from the law-abiders. The Constitution provides for supplementary restrictions on the legality of roadblocks (that fall under the wide definition of Search and Seizures). Our Constitution sets standards by which officials conducting roadblocks must abide by.
The Constitution specifically guards the right not to be searched or have your home searched unnecessarily, as this may result in the violation of an individual’s right to privacy.
Section 36 of our Constitution provides that your right to privacy may be limited for example in instances where limitations on your Constitutional rights are reasonable and the only way in which enforcement of the law can be attained. The Criminal Procedure Act for example has as its main purpose to combat crime.
Section 13(6) of the Police Service Act states that a police officer is allowed to search (without having to apply for a search warrant) any person, building, other types of property, vehicle, vessel or airplane or any container, and to lawfully seize and take possession of any item that is found. The reason for such a procedure is to enable and empower law enforcement officials to govern illegal movement of persons or property crossing the borders of South Africa.
The Police Service Act allows the National and / or Provincial Commissioner to sanction a police official in writing to conduct a roadblock(s) or checkpoint(s) on any public road in any area.
A police or law enforcement official who is authorized to set up such a roadblock or checkpoint, may conduct a search (without having to apply for a warrant) on any individual or motor vehicle that has been stopped or any container or attached items to such a motor vehicle and seize items found to be illegal, also without a warrant.
The law enforcement official conducting proceedings at such roadblock is compelled under law and on demand of any individual who feels their right had been compromised, to produce a copy of the above-mentioned written authorization. The process and fairness, in cases where individuals had been arrested at roadblocks, have been tested in South African courts (Sithonga v Minister of Safety and Security). The reason for a roadblock must always be reasonable.
“DON’T TALK TO ME, TALK TO MY LAWYER”
Many people make the mistake of thinking that “playing open cards” at a roadblock will solicit compassionate treatment from the respective law enforcement officials. This is not the case at all, as the law enforcement officer has a duty to and is compelled to enforce the law.
Rather keep quiet. The right to silence is guaranteed by the Constitution and gives arrested/detained persons the right not to be forced to make possibly self-incriminating admissions that could be used against them in court. It must be noted here that although arrested and detained individuals have the right to remain silent, they are legally required to provide their names and addresses.
My message in short would be to stay safe, be responsible, be educated and lastly be respectful to law enforcement over the festive season. Their hard work during these busy times saves countless lives and ensures public order and safety.
Article by Patrick Vosloo, Associate (LLB, LLM)
Nothing contained in this publication is to be considered as the rendering of legal advice for specific cases, and readers are responsible for obtaining such advice from their own legal counsel. This publication is intended for educational and informational purposes only.