Policing Tools Declared Unconstitutional – What Now?

Lance Sergeants Otto and James hardly ever worked together. These were the days when even a couple of full Sergeants (what the military called a Staff Sergeant) on a shift was a rarity. Not that they were trouble, mind you. In fact the opposite. I preferred rather to post them with inexperienced Constables so some of their talent could rub off. And their talent was quite remarkable.

They weren’t so much able to recite the defence argument for the State vs Jameson and others (1972). But rather pull out the details – which others have forgotten – of aspects of the Criminal Procedure Act (55 of 1977) and other laws. This made them confident in their duty. And enabled them to succeed where others may have been less enthusiastic to make a call on the spot.

Policemen don’t have lawyers’ brains. But we also don’t have a heap of assistants to do research. Nor the luxury of time to pore over books and online material to prepare an argument. We pretty much have to know a lot about a lot, from fraud to child protection. And on the side of the road from the house with the wrong number, are a community of experts telling you what they think you should do.

Laws and Acts are Policing Tools

This was Otto and James’ playground. The suspect being led in by them at 1AM that morning was loudly protesting his innocence. He was supposedly just a fisherman (minus rod, reel, bait or even a slightly sharp fish hook on his person). What he did have was a nasty reputation of prior arrests. And an equally nasty large fixed-blade knife, which James now entered into the exhibit register.

The offense? Contravention if the Dangerous Weapons Act (then, Act 71 of 1968, more lately amended to Act 15 of 2013).

See, that was and still is a Policing Tool. A lawful mechanism to prevent crime in a community. Without breaking it too far down, since it isn’t the topic of this paper, it is a means to place someone under arrest (note, arrest is not punishment) who is reasonably suspected to have already committed a crime. Or reasonably suspected to be about to commit a crime using an item deemed to be a dangerous weapon.

No, it wasn’t made to disarm your granny of her pepper spray, or confiscate your Puma White Hunter. The law was written to give the police the discretionary power, under certain circumstances, to arrest someone who may well be about to do someone harm. If you took the time to read this particular Act, you will agree it is a marvelous idea in proactive policing. “Looking suspicious” is not a crime. And, thank goodness, neither is stupidity. But we still have an element of presumption in our law. The circumstances as observed, at that time and place, empowers a police official (or even you) to make an arrest and prevent a nasty crime.

Laws and Procedures are Double-Edged

How many of you have heard of Section 42 of the Criminal Procedure Act? We may colloquially call it “citizens arrest”. But as with all things, if you are going to dabble in this, arm yourself with the knowledge in how to properly conduct them. But here you have another Policing Tool!

I’m pretty sure everyone agrees that no law is perfect. Indeed we can view “the law” quite subjectively, depending on which side of it you stand. The same laws of arrest, detention and appearing in court apply to the guy who stole your lawnmower as to your friend’s sister picked-up for shoplifting. There is a general application. What appears way too lenient in one regard (how the hell can that ou get bail? ) seems unreasonable in another (why can’t she just get released on “warning”?). So as subjective as these things appear, so too can they appear prejudicial. Why me? What have I done?

The Tool, it needs to revealed, is an impersonal mechanism for the police to do their job. Without the Tools nor the power to use them, you can’t really expect the police to actually function effectively. The problem I frequently find is that if something isn’t working in your favour, it must be wrong. The same person shrieking “Why don’t you bloody arrest them!” after a housebreaking, is the same that will run to the station when their useless 21-year-old druggie son is picked up selling the stolen goods to a pawn shop. And who then demands to examine every line of every piece of paper, hoping to pick up some discrepancy to sue the pants off me or “have my job!” Different sides of the same coin.

Using Policing Tools Requires Adherence to Procedures

So now we come to the meat of the story.

So, about the recent judgment that sections of the Police Act (68 of 1995) are unconstitutional. First off I’m all for equal opportunity. I hate all politicians the same. So when I see a political agenda in a law enforcement ruling, I get sour fast. But that aside. Let’s look at the law. Section 13, the one in focus, deals with controlling a defined area and the free movement of people within that area for a specified time. Some examples: 13.6 deals with control of illegal movement of people and goods over our borders. 13.7 Cordon and search. 13.8 Roadblocks and checkpoints.

If one had to ask an arbitrary person how a roadblock is conducted, from beginning to end, they may have to pause and have a proper think. All that you as a citizen really sees of a road block, is the blue lights, reflective cones, and the stern-looking guy looking you in the eyes and asking what you’ve had to drink. The answer lies way, way before that. And begins with a crime threat analysis.

In our roadblock example it’s pretty easy. We know month-end Fridays people are paid and get dopped-up. Then they drive. So the police have to safeguard you and your family driving home sober from the Spur. We draw the operation up much along the lines of a business plan. Threat, assets, strategy, application, contingencies, and measurement of results. This goes to Provincial SAPS Legal Services who, under Section 13, give a written authority to proceed.

This authority is the thick document people insist you demand to see at a roadblock if you feel the cops have stepped on your rights. Poor thing. So this is how we lawfully restrict the natural flow of traffic in Road X during the times Y to Z to keep the drunk drivers in check. Until the clevers WhatsApp their buddies. The big heroes. We’ll discuss that another time.

Cordon-and-Search Comes With Due Process

So to a thing called a “Cordon-and-Search”. I receive information that there are drugs in a particular school. I go through the operational plan procedure, usually involving at least the principal, and then at the allotted time my team enters the school. We ensure nobody leaves a classroom, and then methodically – and with due respect for rights – search the kids, rooms and belongings.

Please consider that the search of a child is a massive issue in its own. You have to pretty much study the entire Child Justice Act and Children’s Act to even go there. The aim isn’t to scare your darling, but to act on reliable information as to a crime being committed. The information and its nature, along with the age group and gender of the kids, will play a huge factor. I proudly remember getting a written thank you for expressly asking for a Muslim paramedic after a pregnant Muslim woman was injured during a bank robbery. Just the aspect of cultural sensitivity plays a huge role when the police are involved or someone’s rights are limited.

To raid a nightclub or to cordon-and0search a school – or even conduct a roadblock – I have to ensure I have female police officials to search women. We must conduct any search in a decent and orderly manner, as dictated in Section 29 of the CPA. I can’t just grope you on the side of the road because I don’t like the look of you. However, I’m not going to set up curtains for a car full of suspects I’ve just chased for 10km from a house robbery.

Declaring Policing Tools Unconstitutional Hamstrings Effective Policing

Here comes the clincher.

The learned Judge who recently declared the section of the SAPS Act unconstitutional, was adamant that the police were unlawfully infringing people’s rights. Now that is quite a wide shotgun blast of a judgment based on some incidents committed by a city Metropolitan Police. In my tiny world that Judge has just cut the handles off some very important and valuable Tools in the country’s Polices. My SAPS colleagues’ ability to do their job in Cape Town is now trimmed by the reckless action of some Metro police in Johannesburg!

Now I won’t for a second defend officials who abuse their power or are led by, and I’ll say it, an agenda. But to prejudice the entire SAPS by declaring something unconstitutional that passed constitutional muster 25 years ago? Where has this Judge been all this time? Have they gladly read stories in the paper over an evening cigar and thought, “I wonder if this is unconstitutional?”

Now I don’t expect everyone to agree with me. And I don’t expect everyone to understand the far-reaching ramifications of this judgment. But here’s something for you to ponder: what happens the day when these things adversely affect you personally?

Does it Serve the Interests of Justice to Erode Policing Tools?

Everyone is big on their own rights, and not too concerned about the rights or powers of others. While you cheer this judgment, tell me how to enter KK Hostels in Kwadabeka, Durban, and find illegal guns? While you bay for the reinstatement of the death penalty, tell me what happens when your right to life no longer exists? And while we still have the privilege to own firearms for self-defence, tell me about the political drive to disarm you.

Why must the whole SAPS and all the municipal police services be hamstrung after 25 years of doing their job due to the actions of a handful of miscreants? The constitutional right to land ownership is on the chopping block right now. Be careful what you wish for. We have one of the most liberal democratic constitutions in the world. Be careful whose side you want to be on, and who you cheer for.

Because I assure you the same Judges who are eroding police’s rights and powers will be the same to erode yours.

Written by Harold F. Callahan*

*Harold F. Callahan is a police officer with many years of experience. And who will be gracing Paratus with hopefully regular and useful articles pertaining to SAPS-related information and issues.