Commentary on: Roadblocks - Your Rights and Powers of the Police.

[Wanderin' Zero]

This thread refers:

http://www.gunsite.co.za/forums/show...-of-the-Police

It appears as if the entire authority to establish roadblocks and search vehicles is based upon the following legislation.

South African Police Service Act 68/1995
13. Members.

(8)(a) 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 authorize 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.

There is however potentially one ^{[not so small?]} problem with all of this. You will see that it refers to section 215 of the Constitution as the foundational authority for the legislation. Well, that apparently refers to the old constitution that has been repealed and is no longer law.

While I have not yet had an opportunity to look at it in any detail, it does raise the question as to whether all such roadblocks under the legislation quoted are now illegal and each search is now an illegal search. If so, you would be justified in refusing a search and if so and you were arrested, that the arrest would be unlawful. In that event you should in principle be able to sue not only the authorities but also each policeman involved in the activity.

[Skaaphaas]

Very interesting observation, but I do think it is covered by S 12(1) of the Interpretation Act, 33 of 1957:

12 Effect of repeal of a law

(1) Where a law repeals and re-enacts with or without modifications, any
provision of a former law, references in any other law to the provision so repealed shall,
unless the contrary intention appears, be construed as references to the provision so reenacted.

The reenacted provision would, I think, be S 205(3) of the 1996 Constitution.

[white_ræbbit]

See, this is where I would rather shut up and the let the legal experts comment... :-)

[Wanderin' Zero]

Very interesting observation, but I do think it is covered by S 12(1) of the Interpretation Act, 33 of 1957:



The reenacted provision would, I think, be S 205(3) of the 1996 Constitution.

That is probably right. But where does one end up in a situation where the empowering legislation refers to a constitutional provision that no longer exists? Does one infer a reference to the new constitutional provision? That is, I suppose a possibility. Yet another area for some homework for someone with the time and inclination! I may get around to it one day… :-)

I suppose one way of looking at it is this: If you have nothing to hide, let them look in the car if they want to. If you have something to hide (and you are caught!) then argue that the search was illegal and everything they found during the course of the search is not admissible in evidence! :-)

[Skaaphaas]

I suppose one way of looking at it is this: If you have nothing to hide, let them look in the car if they want to.

I was driving back from Amersfoort Mag court one day while still serving articles. Being slightly peeved with the judgment I got, I was not in the mood to go back to work, when I was stopped in a roadblock and they wanted to search the car. I flatly refused without seeing the roadblock authorisation. They were slightly dumbstruck, but eventually they had a skivvy drive it in from the station to show it to me (this was more than an hour later). When I saw it, I told them they can search the car, which being a company car, has nothing in it except for myself, my wallet, cellphone, office file and robe. They were pretty unhappy with me.

[Wanderin' Zero]

I was driving back from Amersfoort Mag court one day while still serving articles. Being slightly peeved with the judgment I got, I was not in the mood to go back to work, when I was stopped in a roadblock and they wanted to search the car. I flatly refused without seeing the roadblock authorisation. They were slightly dumbstruck, but eventually they had a skivvy drive it in from the station to show it to me (this was more than an hour later). When I saw it, I told them they can search the car, which being a company car, has nothing in it except for myself, my wallet, cellphone, office file and robe. They were pretty unhappy with me.

[white_ræbbit]

I was driving back from Amersfoort Mag court one day while still serving articles. Being slightly peeved with the judgment I got, I was not in the mood to go back to work, when I was stopped in a roadblock and they wanted to search the car. I flatly refused without seeing the roadblock authorisation. They were slightly dumbstruck, but eventually they had a skivvy drive it in from the station to show it to me (this was more than an hour later). When I saw it, I told them they can search the car, which being a company car, has nothing in it except for myself, my wallet, cellphone, office file and robe. They were pretty unhappy with me.

Well, the law is the law, and they should know it.

[Skaaphaas]

Well, the law is the law, and they should know it.

True. But I don't do stuff like this anymore. I don't have the time for such games, and if the wrong guys stop you, you might just get yourself arrested for that old fallback "obstructing the ends of justice". Now I just smile and wave.

[white_ræbbit]

That is the smarter thing to do. Whenever you decide to be smart-assed, you might just turn a pleasant situation into the opposite.

[Wanderin' Zero]

That is the smarter thing to do. Whenever you decide to be smart-assed, you might just turn a pleasant situation into the opposite.

True enough.