Most of us prefer not to be pulled over by a traffic officer, whether guilty or not. And with all the corruption and crime you are rather scared, but do you know what your rights are should a traffic officer pull you over?
• A police officer of traffic officer wearing a uniform has the right to pull over any vehicle at any time.
• If this happens, you are compelled to provide your name and address if so requested, as well as any other information regarding your identity.
• You are entitled to ask the person in uniform for proof of identity, appointment certificate or official documentation to identify himself. Should he refuse, he is transgressing the Criminal Procedures Act and any action he takes against you will be regarded as illegal.
• According to the Road Traffic Act, a traffic officer has the right to ask to see your driver’s license.
• You are supposed to have it with you all the time, or in your car.
• Traffic officers are entitled to remove a license disc from the vehicle and declare the vehicle not roadworthy. The vehicle could also be removed from the road.
• Traffic officers may under no circumstances arrest you for unpaid road traffic fines, unless a warrant for your arrest has been issued. They may
• Also not force you to pay the fine there and then. Traffic officers always give the impression that you have no right but to settle fines on the spot; sometimes even threatening an arrest. A traffic officer cannot arrest you for not paying any traffic fines, without a ‘warrant of arrest’.
• They may not detain you for an outstanding fine for which a warrant has not been issued.
• A male traffic officer may not search a woman and the same rule applies vice versa.
• Searching and confiscating your vehicle by officers may not take place without motivation.
Officers must have a strong suspicion that you have been involved in a crime and a warrant must already have been issued by a magistrate for your vehicle to be searched and even to be confiscated.
This does not apply to official roadblocks where searches are conducted and the necessary warrants have already been obtained.
• When you are arrested by an officer, he/she must immediately read you your rights and you have to be taken to a police station immediately. You also have the right to see a copy of the warrant of arrest.
• Never resist arrest.
• Roadblocks are regulated by Section 13(8) of the South African Police Service Act, No. 68 of 1955.
Section 13(8)(a) provides:
“The National or Provincial Commissioner may, where it is reasonable in the circumstances in order to exercise a power or perform a function referred to in section 215 of the Constitution, in writing authorise a member under his or her command, to set up a roadblock or roadblocks on any public road in a particular area or to set up a checkpoint or checkpoints at any public place in a particular area.”
Important points of section 13(8)(a) are summarised below:
- The written authorisation must specify the date, approximate duration, place and object of the proposed action.
- Proper signage, traffic cones, barriers, etc. must be placed near and at the roadblock.
- Failure to stop for a roadblock is a criminal offence.
- Search and seizure without a warrant is authorised. You must cooperate and submit to such search and seizure. Evidence may be summarily seized.
- Anyone whose constitutional rights and/or rights in terms of the Criminal Procedure Act, No. 51 of 1977 are affected by a roadblock may demand to see the written authorisation for it. Any law enforcement official must immediately produce and present that authorisation. In practice, such people comprise anyone caught up in a roadblock.
Rights & Responsibilities in roadblocks
Notwithstanding the above, a roadblock may, however, be set up and search and seize property or persons without obtaining prior authorisation, if there are reasonable grounds to suspect that:
• a person who has committed an offence in terms of Schedule 1 to the Criminal Procedure Act who has been involved in the commission thereof is, or is about to be, travelling in a motor vehicle in a particular area;
• a person who is a witness to such an offence is absconding and is, or is about to be, travelling in a motor vehicle in a particular area and that a warrant for his or her arrest has been issued 1977, or that such a warrant will be issued if the information at the disposal of the law enforcement official is brought to the attention of the magistrate, regional magistrate or judge referred to in that section, but that the delay in obtaining such warrant will defeat the object of the roadblock;
• a person who is reasonably suspected of intending to commit an offence and who may be prevented from committing such an offence by the setting up of a roadblock is, or is about to be, travelling in a motor vehicle in a particular area;
• a person who is a fugitive, after having escaped from lawful custody is, or is about to be, travelling in a motor vehicle in a particular area;
• any object which –
o is concerned in;
o may afford evidence of; or
o is intended to be used in the commission of an offence and which is, or is about to be, transported in a motor vehicle in a particular area and that a search warrant will be issued by a Court and that any delay in obtaining one will lead to the loss of the opportunity to take action.
“Roadside checks”
So-called “roadside checks” differ considerably from roadblocks in that at such operations the road is not blocked. Instead, traffic officers park at the side of the road and pull random vehicles off to check vehicle and driver fitness. They do not actively impede the flow of traffic.
Amongst other things, Section 3(I) of the National Road Traffic Act, No. 93 of 1996 provides:
“a traffic officer may, subject to the provisions of this Act or any other law – … (b) when in uniform, require the driver of any vehicle to stop such vehicle…”
It is important to note that, together with traffic officers employed by local and provincial authorities, SAPS members and Metro Police are, by legal definition, “traffic officers”.
Section 3I of the National Road Traffic Act does not authorise search and seizure without a warrant, however, this does not mean that search and seizure is strictly forbidden:
• traffic officers are authorised to demand that you produce any document in terms of road traffic and transport legislation and such document/s may be seized if they are defective or fraudulent;
What may and may not be done at roadblocks and “roadside checks”
• Law enforcement officials may:
o search your person and/or property without a warrant at a properly authorised roadblock;
o search your person and/or property at a “roadside check” without a warrant if you consent to a search or they have reasonable grounds to do so;
o seize any “contraband” or evidence without a warrant at a roadblock or a “roadside check”
o issue an infringement notice (“fine” in terms of the Criminal Procedure Act or the AARTO Act, as applicable) in respect of vehicle or driver fitness, together with passengers’ compliance with provisions of law;
o issue a notice to discontinue use of a motor vehicle if it is suspected of being unroadworthy, or impound it if it is clearly unroadworthy;
o arrest any person who has been, or they reasonably suspect has been involved in, or is about to commit an offence contemplated in Schedule 1 of the Criminal Procedure Act, without obtaining a warrant of arrest;
o arrest any person in respect of whom a warrant of arrest has been issued by a Court;
o arrest any person who commits any offence in his or her presence;
o drive or ride any class of vehicle if they consider it necessary to do so, even if he or she only possesses a code B driving licence; and
o inform you of your outstanding traffic fines.
• Law enforcement officials may not:
o physically or verbally abuse you or damage your property;
o search your person or property without a warrant except at a roadblock or where reasonable grounds to do so exist, or you consent to a search;
o merely threaten to arrest you;
o solicit a bribe;
o force you to pay traffic fines at the roadside, even if a facility such as a bus is there for you to do so;
o withhold the prompt return of your driving licence in order to coerce you into paying outstanding traffic fines where no warrant of arrest exists or your driving licence card is not fraudulent; or
o discontinue or impound your vehicle without reasonable grounds.
• You may:
o demand to have sight of his or her certificate of appointment (a card authorising him or her to act as a peace officer);
o demand that any law enforcement official shows you written authorisation as is contemplated in Section 13(8) of the SAPS Act at a roadblock;
o demand to see proof of a warrant of arrest if one is claimed to exist;
• You may not:
o physically or verbally abuse them or damage their property;
o refuse to provide a breath alcohol or blood sample;
o resist arrest; or
o offer or pay a bribe.
o you are not prohibited by law from taking photographs or videos in public places, including at roadblocks or “roadside checks”;
o however, you should be sensible and refrain from shoving cell phones at law enforcement officials because they tend to become irate;
o if you don’t take photographs or videos, write things down as soon as possible since human memory tends to diminish and/or become clouded over time.
Remember that where your constitutional rights are infringed, you may well have recourse through civil litigation. Consult with your attorney if you feel that any of your constitutional rights have been infringed.
Always seek legal advise when it comes to these types of matters.