Police Interactions

Learn how to interact with the South African police and understand your rights when being searched, arrested or applying for police bail.

General

South Africa has the presumption of innocence until proven guilty. This means that all members of the public (or, rather, those being accused of committing a crime) are presumed to be innocent of any charge(s) or allegation(s) against them, until proven otherwise beyond a reasonable doubt by a Court. 

When dealing with the police, members of the public ought to always be honest and pleasant. Members of the public ought to never become unruly or threatening toward the police no matter the circumstances; however, they should stand their ground and not be bullied too. 

Note: Although tensions and emotions might run high, a polite but firm resolution to a dispute is always more favourable and beneficial for all involved parties, including when interacting with the police.

Search

Search with a warrant: 

The police may search the vehicle of a member of the public or their person if they have a valid search warrant to do so. Members of the public may request to see a valid copy of the search warrant before allowing their vehicle to be searched. 

Note: A member of the public is entitled to only be searched by a police officer of the same sex as them and may refuse being searched if a police officer of the opposing sex tries to search them. 

Search without a warrant: 

The police are allowed to search a member of the public’s vehicle or their person if they have a reasonable suspicion that a criminal offence has been committed or is about to be committed by that member of the public. If there is no reasonable suspicion of criminal activity, the police are not allowed to search a member of the public’s vehicle or their person. 

If the police search a member of the public's vehicle or person without a warrant and it is found that the suspicion of their search was not based on reasonable grounds, any evidence found during the search will not be accepted in Court. 

Note: A member of the public is entitled to only be searched by a police officer of the same sex as them and may refuse being searched if a police officer of the opposing sex tries to search them. 

Search of someone's property or dwelling: 

To search a member of the public's property or dwelling, the police need a search warrant. However, the police can search a member of the public's property or dwelling if:

  • The police get permission to search the property from the owner of the property; or
  • The police can prove that they need to search the property urgently in order to prevent a suspect from destroying or removing any evidence.

Arrest

A person may be arrested with a warrant or if a police officer witnesses a person committing an offence or has probable cause to believe that a person was involved in the commission of a crime. Should the police attempt to arrest someone, the detainee ought to not, under any circumstances, try to escape, bribe or become aggressive towards the police. Should a detainee attempt any such action, the police may use force to effect the arrest, which might result in personal injury to the detainee, the police or any other persons. 

Arrest Warrant: 

The police may not arrest a member of the public without a valid arrest warrant. Members of the public may request to see a valid copy of the arrest warrant at any roadblock before being arrested. 

Arrest Without Warrant: 

The police are allowed to arrest or detain a member of the public without an arrest warrant if:

  1. That member of the public commits a criminal offence in front of the police; or
  2. The police have reasonable grounds to suspect that that member of the public has committed or will commit a criminal office.

When arresting a member of the public, the police have the duty to inform that member of the public of their rights, including their right to remain silent and the consequences of not remaining silent. If this is not done, the arrest is unlawful. 

Arrest for Outstanding Traffic Fines: 

The police are not allowed to arrest members of the public for outstanding traffic fines without a warrant of arrest to do so, which members of the public are entitled to see. However, the police can issue summons to people who have outstanding traffic fines to appear in Court for their outstanding traffic fines. The date of Court appearance must be at least 14 days from the date the summons was issued on (not counting the date of issue, Weekends or Public Holidays). 

Rights when being arrested: 

When being arrested, detainee's have the following rights:

  • To request the identification of the police officer(s) carrying out the arrest;
  • To know the grounds on which the arrest is being made;
  • To remain silent;
  • To not confession to a crime involuntarily;
  • To appear in court within 48 hours of their arrest; and
  • To answer any questions or divulge any information to the police.

Rights once arrested: 

Once detained, the police will require fingerprints and photographs from the detainee. In this regard, the detainee has the following rights:

  • To only be search upon their consent, a request may be made to have a same-sex officer conduct the search;
  • To have the rights and charges against the detainee in an official language that they understand;
  • To legal representation. If the detainee cannot afford a lawyer then they have the right to a state appointed attorney;
  • To refuse to speak until a legal representative is present; and
  • To receive visitation and communication with a spouse, next of kin, medical practitioner and/or religious counsellor.

Harassment and intimidation: 

A police officer may not verbally or physically abuse or intimidate a detainee. They may not make threats of violence or assault a detainee. If they do any such action, the detainee has the right to report the incident any police station. 

Note: One does not need to report it at the station of the officer in question. 

Note further: If the detainee has been assaulted while being searched or detained, an action for civil damages may be claimed against the police in question and the Minister of Safety and Security.

Bail

Bail is an amount of money that is paid by a detainee (or, rather, an accused) to the police or Court in exchange for the accused's temporary release or freedom and their promise to return to Court at a later date. It is, therefore, a deposit of sorts and is refunded later should the accused not violate the conditions of their bail. Paying bail does not mean the accused is guilty of the offence, nor is it a form of admission of guilt. 

An accused who has been arrested for an offence is entitled to a bail application and to be released on bail at any stage before the conviction. This is determined by either the police, the national prosecutor or the Court. The decision is ultimately based on whether it is in the interest of justice to allow the accused to be temporarily released or not. 

Court bail: 

The Court may release an accused on bail at any state before the conviction, provided that it is done in the interests of justice. In this regard, the Magistrate or Judge presiding over the matter will set the amount at which bail will stand and any further conditions thereto, such as limiting the ability of an accused to move in certain areas or travel out of the country. 

The bail amount is to be paid to the Clerk of the Court and the accused must be given a receipt at proof of payment. Once a bail application is granted, it allows the detainee to be released from detention but requires them to return on a set date to Court. If an accused, fails to appear in Court or does not comply with the terms of their bail or threatens a victim, then the bail amount that is paid will not be refunded. 

The Court will not release an accused on bail if:

  • The release of the accused will endanger the safety of the public;
  • The Court believes that the accused will avoid their trial;
  • The Court believes that the accused will attempt to influence and or intimidate witnesses or destroy evidence;
  • The Court believes that the accused will attempt to influence and or intimidate witnesses or destroy evidence;The Court believes that the accused will inhibit the functioning of the justice system;
  • The Court believes that the accused with disturb public peace and security; or
  • The Court believes that the accused is regarded as a flight risk because they might flee the country.

Police bail: 

Bail for minor offences can be granted by the police. Moreover, the police may release an accused (or detainee) on a warning. In the case of police bail the investigating officer will propose an amount for bail after negotiations with the accused or their legal representatives and consultation with the police officer charged with the investigation.. After payment of this amount, the detainee may be released. 

Note: Police bail may only be granted by a police officer above the rank of non-commissioned officer after consultation with the police officer charged with the investigation.

Police Brutality

If a member of the public has been the victim of police brutality, they should:

  • Get medical treatment as soon as possible;
  • Get video or photographs of their injuries or the violent act;
  • Get a doctor’s report;
  • Get the name and rank of the police officer(s) involved;
  • Go to their local police station to lay a criminal charge against the officer(s) involved or any other police station; and
  • Lodge a complaint with the Independent Police Investigative Directorate (IPID).

Note: A member of the public can sue the police for monetary compensation in a civil court for any injuries experienced from police brutality.

Filming The Police

Members of the public are allowed to film or photograph the police, as long as they do not disturb evidence or the exercise of the police’s powers and duties. The police are not allowed to seize or damage recording devices or force any member of the public to delete any footage or photograph. However, the police may request members of the public to move out of a cordoned off crime scene if such persons are intruding on the duties or functions of the police. Members of the public ought to respect the police and their wishes, including while photographing or filming them. 

Note: Evidence of inappropriate attempts to engage into arguments with a police officer can be used to incriminate the member of the public. 

The Right2Know campaign makes a convincing argument around SAPS standing order 156, which says that:

  • The police may not interfere with media recording situations.
  • Any citizen should qualify as a citizen journalist.
  • South African Privacy Laws allow for the recording of anything which is already in a public space, such as a scene taking place on a public road.
  • Private spaces are more limiting, for example trying to record within a home, however if you are already legally present within that home, for example if it is yours, then there is an argument to be made that you can record.

There are however some explicit restrictions to this:

  • If the situation involves a minor you may not record the minor involved in any legal proceeding.
  • Also, if the action has been deemed classified, however this situation is tricky to determine the exact legal position.

Drunk Driving

Drunk driving or under the influence of narcotics not only refers to driving a motor vehicle but also being seated in the driver's seat of a stationary vehicle while the engine of that vehicle is on. 

Breathalyser Test: 

The police may detain or arrest a member of the public if they fail a breathalyser test. 

A member of the public will fail the breathalyser test if their breath is an alcohol level of 0.24 mg per 1000 ml or greater. This is roughly the equivalent of someone drinking 1 shot of spirits, ¾ of a 330ml beer/cider or 75ml of wine. As a rule of thumb, members of the public should consume no more than one of the above-mentioned quantities per hour. 

Note: If a person weighs less than 68 kilograms, consumption of one of the above units may result in them failing the breathalyser test. 

Blood Test: 

The police may detain or arrest a member of the public if they fail a blood test. 

If the following procedures are not met, the blood test is legally invalid:

  1. Blood must be drawn within 2 hours of a member of the public being stopped by the police; and
  2. Blood must be drawn at a mobile unit, clinic or hospital by a duly qualified practitioner.

Members of the public have the right to refuse a blood test if they suspect the equipment is not sterile and clean. They are entitled to insist that all equipment used to draw their blood must be opened in front of them and to see the expiry date. Members of the public are entitled to refuse that expired equipment be used to draw their blood.