South African motorists have seen an increased police presence on the country’s roads in recent weeks as part of the country’s level 4 lockdown restrictions.
The restrictions include a strict curfew and a ban on leisure travel for residents of Gauteng, with South African Police Service (SAPS) officers focusing on major provincial routes.
This, combined with recent looting and unrest in parts of the country, has again raised questions around the rights of motorists at roadblocks.
In most circumstances, the police should have a warrant issued before searching your car or home, say legal experts at DSC Attorneys.
However, under certain circumstances the Criminal Procedure Act, the Police Act and the Drugs and Drug Trafficking Act empower the police to search your car or home without first obtaining a warrant, it said.
The firm said that police can search your home or car without your permission and without first getting a warrant if an officer has a “reasonable suspicion” that you:
- Have committed a crime; or
- Are in possession of material used, or to be used, in a crime.
A police officer can’t simply search your home or car on a whim. He or she must have evidence to back up reasonable suspicion.
DSC Attorneys said that a warrant is needed in most circumstances for the police to legally carry out a search of your car or home, but there are exceptions.
You give permission
If a police officer asks for your permission, and you grant them that permission, it becomes a legal search.
The Police Act allows officers to set up roadblocks with the permission of the National or Provincial Police Commissioner. The Act allows a police officer to search any car stopped at a roadblock.
An officer can seize any item that’s reasonably believed to have been used in a crime or can be used as evidence in proving the commissioning of a crime.
“Clearly, this is open to abuse. A police officer at a roadblock can search your car when he or she has no reason to believe you have committed, or are planning to commit, a crime,” the firm said.
Police are legally allowed to search your home or car without your permission and without a warrant when the need to execute the search is so urgent that any delay caused by obtaining a warrant “would defeat the object of the search”.
This means the police can search your home or car to seize evidence they believe would be imminently moved or destroyed, DSC Attorneys said.
“There are restrictions on this power. The police officers involved must have reasonable grounds to believe a warrant would have been issued.
“If evidence is obtained when there was no real urgency or insufficient grounds for the search to take place, the evidence can’t be used in a trial against the accused.”
How to respond to a police search
It’s hard to know how to respond to a police search, especially after reading reports of nasty interactions with police officers, DSC Attorneys said.
“Remember to always remain calm, polite and cooperative. Firstly, ask for identification so that you know you’re dealing with a real police officer and ask to see a search warrant. Take notes of names, times and the location of the search.
If you’re stopped at a roadblock, remember that your car can be searched.
“You can’t refuse it. You can and must ask the police officer to show you ID and the written authorisation from the National or Provincial Police Commissioner for the setting up of the roadblock.”