Roadblocks: your rights and responsibilities

January 2018

#roadrules #roadchanges #2018

Philip Swanepoel (BA Law, LLB, LLM)

Being pulled over at a roadblock is a daunting prospect for any South African driver - and even more so when you belong to a vulnerable group of persons. It is therefor of critical importance to know what you can and cannot do when encountering a road block.

It is firstly important to note that there are two different categories of roadblocks in South Africa, namely informal roadblocks and K78 roadblocks. Police can conduct an informal roadblock at anytime and at any place (these will usually take place on major roads or off-ramps). The purpose of such roadblocks is normally to police speeding, unroadworthy motor vehicles and driving under the influence of alcohol. K78 roadblocks are, on the other hand, normally deployed in order to catch a specific car or person which has been involved in a known crime.

The powers of law enforcement officers when conducting roadblocks will depend on the type of roadblock deployed. These officers have limited powers during an informal roadblock. They can firstly check your driver's license and the license disk of the motor vehicle. They can also check the roadworthiness of your vehicle and they can check for any outstanding fines. It is important to note that you can not be requested to pay any outstanding fines on the spot, unless the police provide you with the warrant and summons relating to the outstanding fine. You can also only be arrested for an outstanding fine if the police have a valid copy of the warrant with them. Note here that you cannot be detained whilst the police fetch a copy of the warrant since this will constitute an illegal arrest – they must thus be in possession of the warrant at the exact time of the arrest. It is furthermore important to note that a law enforcement officer is not permitted to search your vehicle at an informal roadblock, unless there is a warrant permitting this of if there are reasonable grounds justifying it, as provided for in section 22(b) of the Criminal Procedure Act.

Law enforcement officers have more intrusive powers during K78 roadblocks. Police can, when conducting such a roadblock, search any vehicle or person without a warrant. Note here that your body may only be searched by an officer of the same sex. The police can furthermore seize any items found if they reasonably believe it to be linked to criminal activity. However, K78 roadblocks can only be conducted after being approved by the National or Provincial Police Commissioner, and you are allowed to ask for the certificate of authorisation which should state the date, the duration and the purpose of the roadblock.

It is important to know that you have rights when being pulled over during a roadblock. You can, for instance, film the event with your mobile phone if you are scared that your rights might be violated. The police can not order you to stop filming, to delete the already filmed content, or seize your filming equipment. You can remind the police officers at the scene of SAPS standing order 156 (http://www.r2k.org.za/2015/07/10/advisory-film-police/) which gives effect to the above if they are unfamiliar with your right to film them. You also have the right to ask the police officer for his or her certificate of appointment which they are required to show when requested to do so in terms of section 334(2)(a) of the Criminal Procedure Act and you can check the side of the law enforcement vehicle for a vehicle number. These details can be used later to report the officer if he or she acted inappropriately.

Finally, if you feel unsafe to stop at a roadblock (it might be located in a secluded area or there might only be unmarked police vehicles) you can potentially follow the Blue Light Protocol as advocated for by Howard Dembrovsky, the national chairperson of the Justice Project South Africa. You should, according to this protocol, slow down when approaching a roadblock and switch on your hazards, and indicate to the police that they should follow you. You should then proceed to the nearest police station or service station whilst not exceeding 40km/h. Read more about this protocol here (https://www.firstforwomen.co.za/blog-vault/advice-on-stopping-for-police-late-at-night/). Please note that Name & Shame has not been able to confirm the legality of this protocol.


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