Can police search you at a roadblock?

In light of the arrest of Atul Gupta, for allegedly refusing a search at a roadblock, as well as the police searching vehicles seemingly without warrants, one of my readers, Graham Bailey, asked if I could have a look at the powers of the authorities in these circumstances.

At the outset always bear in mind that there is a delicate balancing act which needs to be achieved: the public’s right to be protected from crime through measures such as searching people and property against the individual’s right to personal privacy and autonomy.

Sources

Your point of departure is the Constitution (Act 108 of 1996) and more specifically the Bill of Rights as read with the Criminal Procedure Act 51 of 1977 (Act 1) and South African Police Service Act 68 of 1995 (Act 2).

As always there is case law which explains and refines the meanings of the above.

Basic overview

Unfortunately due to time constraints I can only give a brief overview of my understanding of the current position. A detailed analysis will take far more time than I can dedicate to this exercise. In addition I would welcome input from any academics, advocates or attorneys — perhaps one or two have argued these matters recently.

Section 14 of Chapter 2 of the Bill of Rights says :

“14. Privacy
Everyone has the right to privacy, which includes the right not to have —
a. their person or home searched;
b. their property searched;
c. their possessions seized; or
d. the privacy of their communications infringed.”

Against this however Act 1 (Criminal Procedure) — also at chapter 2 — covers the following :

“SEARCH WARRANTS, ENTERING OF PREMISES, SEIZURE, FORFEITURE AND DISPOSAL OF PROPERTY CONNECTED WITH OFFENCES”

Specifically it covers Sections 19-36. This includes when, where, how and why a search is conducted, the offence if police do it wrong and all the other logistics involved. In respect of the query raised have regard to :

20. State may seize certain articles. — The State may, in accordance with the provisions of this
Chapter, seize anything (in this Chapter referred to as an article) —
(a) which is concerned in or is on reasonable grounds believed to be concerned in the
commission or suspected commission of an offence whether within the Republic or
elsewhere;
(b) which may afford evidence of the commission or suspected commission of an offence
whether within the Republic or elsewhere; or
(c) which is intended to be used or is on reasonable grounds believed to be intended to be used in the commission of an offence.

21. Article to be seized under search warrant. — (1) Subject to the provisions of sections 22,24 and 25, an article referred to in section 20 shall be seized only by virtue of a search warrant issued —
(a) by a magistrate or justice, if it appears to such magistrate or justice from information on oath that there are reasonable grounds for believing that any such article is in the possession or under the control of or upon any person or upon or at any premises within his area of jurisdiction; or
(b) by a judge or judicial officer presiding at criminal proceedings, if it appears to such judge or judicial officer that any such article in the possession or under the control of any person or upon or at any premises is required in evidence of such proceedings.
(2) A search warrant issued under subsection (1) shall require a police official to seize the article in question and shall to that end authorise such police official to search any person identified in the warrant, or to enter and search any premises identified in the warrant and to search any person found on or at such premises.
(3) (a) A search warrant shall be executed by day, unless the person issuing the warrant in writing authorises the execution thereof by night.
(b) A search warrant may be issued on any day and shall be of force until it is executed or is cancelled by the person who issued it or, if such person is not available, by a person with like authority.
(4) A police official executing a warrant under this section or section 25 shall, after such
execution, upon demand of any person whose rights in respect of any search or article seized under the warrant have been affected, hand to him a copy of the warrant.

22. Circumstances in which article may be seized without search warrant. — A police official may without a search warrant search any person or container or premises for the purpose of seizing any article referred to in section 20 —
(a) if the person concerned consents to the search for and the seizure of the article in question, or if the person who may consent to the search of the container or premises consents to such search and the seizure of the article in question; or
(b) if he on reasonable grounds believes —
(i) that a search warrant will be issued to him under paragraph (a) of section 21 (1) if he applies for such warrant; and
(ii) that the delay in obtaining such warrant would defeat the object of the search.

23. Search of arrested person and seizure of article. — (1) On the arrest of any person, the person making the arrest may —
(a) if he is a peace officer, search the person arrested and seize any article referred to in section 20 which is found in the possession of or in the custody or under the control of the person arrested, and where such peace officer is not a police official, he shall forthwith deliver any such article to a police official; or
(b) if he is not a peace officer, seize any article referred to in section 20 which is in the possession of or in the custody or under the control of the person arrested and shall forthwith deliver any such article to a police official.
(2) On the arrest of any person, the person making the arrest may place in safe custody any object found on the person arrested and which may be used to cause bodily harm to himself or others.

24. Search of premises. — Any person who is lawfully in charge or occupation of any premises and who reasonably suspects that stolen stock or produce, as defined in any law relating to the theft of stock or produce, is on or in the premises concerned, or that any article has been placed thereon or therein or is in the custody or possession of any person upon or in such premises in contravention of any law relating to intoxicating liquor, dependence-producing drugs, arms and ammunition or explosives, may at any time, if a police official is not readily available, enter such premises for the purpose of searching such premises and any person thereon or therein, and if any such stock, produce or article is found, he shall take possession thereof and forthwith deliver it to a police official.

Section 28 deals with wrongful search an offence, and award of damages.

Act 2 (Police Act):

Dealing with POWERS, DUTIES AND FUNCTIONS of Police :

Section 13(8)(a)-(h) covers the setting up of roadblocks in detail ; but have special regard to :

“(g) Any member may, without warrant —
(i) in the event of a roadblock or checkpoint that is set up in accordance with paragraph (c), search any person or vehicle stopped
at such roadblock or checkpoint and any receptacle or object of whatever nature in the possession of such person or in, on or
attached to such vehicle and seize any article referred to in section 20 of the Criminal Procedure Act, 1977, found by him or her
in the possession of such person or in, on or attached to such receptacle or vehicle: Provided that a member executing a search
under this subparagraph shall, upon demand of any person whose rights are or have been affected by the search or seizure, exhibit
to him or her a copy of the written authorisation by the Commissioner concerned; and
(ii) in the event of a roadblock that is set up in accordance with paragraph (d), search any person or vehicle stopped at such
roadblock and any receptacle or object of whatever nature in, on or attached to such vehicle and seize any article referred to in
section 20 of the Criminal Procedure Act, 1977, found by him or her in, on or attached to such receptacle or vehicle: provided that a member executing a search under this subparagraph shall, upon demand of any person whose rights are or have been affected by the search or seizure, inform him or her of the reason for the setting up of the roadblock.

(h) For the purposes of this subsection ‘checkpoint’ includes any barrier set up under an authorisation referred to in paragraph (a) in order to control the movement of persons.

(9) The provisions of sections 29 to 36 of the Criminal Procedure Act, 1977, shall apply mutatis mutandis in respect of a search conducted under subsections (6), (7) and (8) and any object seized during such a search.”

The above is not exhaustive but merely to assist readers in finding some of the relevant sections.

There are other Acts including inter alia the NPA Act, SARS and Customs which also provide for searches.

The above deal more with Graham’s question.

Balancing act

Many of you will now be confused by the contradictory nature of current legislation. The Bill of Rights says the police can’t search you but Act 1 and Act 2 say that not only can they do it but in certain instances without a warrant.

Remember public’s right to fight crime versus individual privacy.

In simple terms the police are entitled to act in accordance with the acts referred to above subject to constitutionalised standards by which such legal powers are to be measured. In other words the provisions of the Criminal Procedure Act are now qualified by the Constitution. If a search is carried out unlawfully the evidence obtained may be excluded and as seen from Act 1 the police sued.

All of this qualified as well by the rulings of our high courts.

In other words where attorneys feel that their client’s rights have been impinged they can take the matter to our high courts to test the principle upon which — for example — a search was conducted to see if it is unconstitutional.

Let’s use a famous case to demonstrate:

IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA

Thint (Pty) Ltd v National Director of Public Prosecutions, Investigating Director: Directorate of Special Operations and Johan du Plooy; Jacob Gedleyihlekisa Zuma and Michael Hulley v National Director of Public Prosecutions, Investigating Director: Directorate of Special Operations and Director of Public Prosecutions (Durban)
CCT 89/07; CCT 91/07

Medium Neutral Citation [2008] ZACC 13
Judgment Date: 31 July 2008

The attorneys for President Zuma launched two applications concerning the lawfulness of various search-and-seizure operations that were carried out on August 18 and September 8 2005 at the offices of Mr Hulley and Thint, and at the residences and former offices of Mr Zuma.

The search and seizures were executed on the basis of various warrants issued in terms of section 29 of the National Prosecuting Authority Act 32 of 1998 (the NPA Act) by Ngoepe JP in the Pretoria High Court on August 12 and 26 2005.

The Supreme Court of Appeal held by a 3-2 majority that, in both cases, the state had shown sufficient need for a search-and-seizure operation, the warrants were neither too vague nor too broad, and that Mr Zuma’s right to privilege had been sufficiently protected. The court ordered that the state could retain the seized documents.

This case was an appeal to the ConCourt against the decision by the SCA.

The ConCourt dismissed the appeals.

This means that even though you have Section 14 of the Bill of Rights the SCA and ConCourt have furnished an example of when the NPA can use section 29 of the NPA Act

Overview

While the Constitution is there to protect the rights of citizens it is not a get-out-of-jail free card.

It still needs to be weighed up against other legislation and case law.

Can police search you at a roadblock?

The answers is — in my opinion — yes provided they conduct the search on the basis and in the manner defined by our law.

Can you be arrested for refusing to comply — yes.

Can you sue them if they act outside their powers — yes.

I hope that helps,