Barry Botha Breytenbach

Being pulled over by the police is often an intimidating and frightening experience for many. In many situations, it’s an experience in which the police exploit motorists who do not know their rights and in other situations, it’s one in which drivers receive a go-to jail card for non-compliance with a police official’s instructions. It is therefore of utmost importance that all road users are aware of their rights and responsibilities when being pulled over by a police official.

According to the Arrive Alive guidelines, there is a distinction between a roadblock and a roadside check.

Roadblocks

A roadblock, as the name suggests, is when then the police or traffic officials cordon off a road in both directions, physically “blocking” the flow of traffic, so that the police can stop and inspect a vehicle for purposes of carrying out their constitutional mandate. Roadblocks are regulated in terms of the South African Police Service Act (hereinafter the SAPS Act). Section 13(8) of the SAPS Act provides that “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.” In summation, section 13(8) provides that:

  • written authorisation that specifies the date, approximate duration, place, and object of the roadblock must be issued;
  • proper signage, traffic cones, and barriers must be set up near the roadblock;
  • a search and seizure without a warrant is allowed in circumstances where it is reasonably necessary to achieve the object specified in the written authorisation; and
  • failure to stop at a roadblock is a criminal offence punishable by law.

It is important to note that the power to give written consent by the National or Provincial Police Commissioner is a power that has been delegated to relevant station commanders. A motorist being pulled over at a roadblock has the right to request a police officer to produce proof of the abovementioned written consent/authorisation and the police official will be obligated to produce such written authorisation. If the police official refuses to produce such authorisation, he/she must be reported to the station commander, provincial commissioner, or national commissioner.

Exceptions to the abovementioned roadblock rules

It is also important to note that there are certain circumstances that may warrant a deviation from the abovementioned rules. A roadblock may still be set up and a search and seizure may still be conducted without prior written authorisation if there are reasonable grounds to suspect that:

  • a person who has committed an offence in terms of Schedule 1 of the Criminal Procedure Act, 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, 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 is concerned in; may afford evidence of; or 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 act.

Roadside checks

A roadside check differs considerably form a roadblock in that it involves a traffic officer often stationed on the side of the road who then pulls drivers over at random, thus the flow of traffic is not completely blocked off or severely affected. Roadside checks are regulated in terms of the National Road Traffic Act (hereinafter referred to the NRTA).

The NRTA does not permit search and seizure without a warrant, but also does not forbid law enforcement officers from doing so.

At a roadside check, a traffic officer may do the following:

  • Demand to see any document in terms of road traffic and transport legislation.
  • Seize the document if it is fraudulent.
  • Search a person or property if they consent, or when there are reasonable grounds to do so.
  • Temporarily forbid a person to continue to drive or be in charge of a vehicle if they seem mentally or physically unfit to do so.
  • Require any person to furnish their name, address, and other particulars if the officer reasonably suspects the person of having committed an offence.
  • Ascertain the dimensions of the load on, or the mass, axle mass load, or axle unit mass load of, any vehicle, or the mass of any combination of vehicles, loaded or unloaded, and if necessary for the purpose of ascertaining such mass.

What motorists may do when being pulled over

As a motorist, you are entitled to demand to see an official’s certificate of appointment and you are also entitled to see the written authorisation for a roadblock. You are entitled to refuse to submit to a search at a roadside check unless there exists reasonable grounds for a search.

Conclusion

It is advisable to be compliant with officials at all reasonable times. Approach officers with respect and do not be arrogant with them. If you are of the opinion that your rights are being violated, do not put up a fight with the officers at the roadblock or roadside check; instead, report the officer to the station commander or provincial authorities or call your attorney.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)