Cape Town - As we head into the Easter long weekend, many South African motorists will be taking to the long road to visit family or friends far, far away, while just about every law-enforcement officer in the country is on duty, trying to stop us killing ourselves and each other on the roads.
But cops are also human and, sadly, being in a position of authority brings out the worst in some of them, as highlighted by two well-documented recent cases of excessive force by law-enforcement officials which were caught on video.
In one incident a middle-aged man in Cape Town's southern suburbs, who'd already been detained and handcuffed, was thrown to the ground by metro police, while one of their colleagues tried to convince the relative who was recording the incident that it was "wrong" to film law-enforcement officials in the performance of their duty.
We asked Kirstie Haslam, a director at DSC Attorneys, whether it is in fact legal for private citizen to record a public servant, in uniform, in the course of their duties.
Recording without consent is unlawful, she replied, unless you fall under the exceptions listed in the Regulation of Interception of Communications & Provision of Communication-Related Information Act.
The act doesn’t distinguish between video and audio recordings but does refer to two different types of communication - direct and indirect.
Direct communication refers to an conversation between two people, while indirect communication is a much wider category, including interactions that are not face-to-face, such as data, speech and video-calls, eg Skype.
SAPS standing Order 156
RICA defines a party to a conversation as a person who is “participating in such direct communication or to whom such direct communication is directed” OR “in whose immediate presence such direct communication occurs and is audible to the person concerned, regardless of whether or not the direct communication is specifically directed to him or her”.
The law is slightly vague on the issue where those involved in an altercation may not have necessarily been informed that they were being filmed; however, it would probably still be a case of direct communication (because you are physically present and can hear and see what’s going on), in which case you could legally record the incident.
When in public spaces, you have the right to photograph anything in plain view, including SAPS members. SAPS may not stop you from photographing any person, although there are prohibitions on publishing (not taking) photos of certain people without permission (such as someone suspected of a criminal offence but who has not yet been charged, or a witness).
In short, police officers have no legal basis to stop citizens from photographing and filming police activities. SAPS standing Order 156 states that:
An officer cannot stop you from taking a photo or video.
An officer cannot seize/damage your equipment.
An officer cannot force you to delete footage.
You can get more detail on this issue at the Right2Know website.
‘Klapped by a cop’
In the second case, an Ekurhuleni metro police officer removed the disc from Diederick Stopforth's car at a roadblock and wouldn't return it. Since he was not wearing a name badge or any rank insignia, Stopforth recorded video footage of him on his cellphone while asking the official to state his name.
Without any warning the metro cop - looking straight into the camera - hit Stopforth hard enough to make him drop the cellphone. Stopforth, wisely we think, walked away, threatening legal action against the officer.
Which begs the question: What do you do when you've been assaulted by a police officer?
Try to get as much evidence as possible, advises Haslam.
You have the right to know and write down both the officer's badge number as well as the vehicle number, she said, and if necessary you can call 10111 to report the incident. You can also lodge a complaint at the nearest (or any other) police station.
But what if personnel at the police station refuse to open a case against one of their own, we asked - which, according to purely anecdotal reports, is becoming more prevalent?
If the officers at the charge office won’t help you, Haslam replied, you should approach the Station Commissioner, alternatively the Provincial Commissioner.
You can also approach the Independent Police Investigative Directorate, whose job it is monitor the police and metro cops.
“The Directorate is responsible for promoting proper police conduct in accordance with the principles of the Constitution,” she quoted; you can contact them by email at: [email protected] or via their website.
But while you’re on the road this weekend, follow Haslam’s advice on what do do if you get pulled over, and try not to provoke a confrontation.