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A routine stop or search can turn nasty. Have you thought of your rights and how you should handle a police search?
Because the police have wide authority and rights above those of ordinary citizens, it's hard to know what your legal rights are when it comes to a police search or seizure.

The first thing you need to know is that the police are required to have identification visible. In other words, you should be able to see their names on their uniforms.
If this is not the case, you may ask to see identification, to confirm that you are actually dealing with an officer of the law.

The police are within their rights to pull you over if you're driving, whether or not they can indicate a clear reason for doing so. However, they must have a valid reason to search your person or possessions, including your vehicle. Specifically, they must have reason to believe that you have been involved in some kind of illegal or criminal activity − sufficient to argue that a judge or magistrate would be willing to offer a search warrant in court.

Note that according to case law, an officer cannot search someone's person, house or car simply because they believe the person is "suspicious". This will not hold up in court. The police cannot arbitrarily search you or your home without being given specific legal authority to do so. You can therefore ask the officer what grounds they have to believe a search is necessary.

If you are feeling threatened or harassed, it's wise to take note of as many details as possible. In addition to the time and place, and the officer's name and station or branch, memorise the license plate number and look for the code printed on the side of the police vehicle. Letters represent the name of the station, while the digits are the squad car number

In the case of a roadblock, search and seizure is already sanctioned. You may not refuse the search. But you can ask to see the written authorisation for the roadblock, given by the National or Provincial Police Commissioner, before you submit to the search. If, for any reason, you are not convinced of the validity of a roadblock, or if you feel unsafe, you can request to be taken to the nearest police station.
Note that body searches can only ever be undertaken by officers of the same sex as the person being searched. For instance, if a woman is pulled over and there is no woman officer to do the search, no search can proceed until a female officer arrives.

The police can arrest a citizen on the strength of a warrant of arrest, if they witness the person committing an offence or if they have probable cause to believe the person was involved in a crime.
The police have the power to arrest anyone who they have seem committing an offence in their presence; anyone they suspect of having committed a crime; anyone in possession of property they suspect has been stolen; anyone encountered at night in suspicious circumstances suggesting a crime has been, or is about to be, committed.

If you are approached by a police officer wanting to detain you, remain calm and cooperate. Don't try to flee, become aggressive or offer a bribe. If you try to resist arrest, the officer may use reasonable force to arrest you.
When being arrested, note that:

• you have the right to know the grounds for the arrest (the charges)
• you have the right to remain silent (you should be told as such, as well as be informed of the consequences of not remaining silent - for instance that anything you say to an officer may be used against you in court)
• you may not be forced into making a confession
• you may ask to be seen in court as soon as is possible (within 48 hours at most, depending on court days and day of arrest)
• you may not be pressed by police for personal information (such as organisations you are involved with) other than your home address.

Once detained, the police have the right to take your fingerprints and photograph. Your rights are as follows:

• you can only be searched with your consent, and you may ask that a same-sex officer conduct the search
• you must be told of your rights and the charges in a language you understand
• you have the right to see a lawyer/attorney of your choosing in private (or, at least, out of earshot). It you cannot afford one, the state must appoint you legal representation
• if you're being questioned, you're entitled to see an attorney; you have the right to refuse to say anything until you've met with your legal representative
• you have the right to be held in such a way that upholds your human dignity, with adequate accommodation, nutrition, exercise, reading material and, if relevant, medical treatment
• you may receive visitation and communicate with your spouse/partner, next of kin, religious counsellor, and medical practitioner
• you must be presumed innocent until proven guilty.

The police may release you with a warning or you may be granted police bail, provided an officer of sufficient rank is available to grant or deny it.

A police officer may not verbally or physically abuse or intimidate you. They may not threaten you with violence or assault you. If they do, remain calm. You can report it at any police station afterwards. Note that you do not need to report it at the station of the officer in question.
If you have been assaulted while being searched or detained, you may take action for civil damages against the police in question and the Minister of Safety and Security.
If you're detained and injured as a result of assault, ask to be seen by a district surgeon, who should take note of any injuries. This is often the only evidence you can gather because your only witnesses may be the police themselves.

The decision to mediate, and when, can be a matter of strategic and fundamental importance in resolving a dispute and should be given full consideration in each situation. Even where mediation is prescribed, by court or contract, for example, a considerable amount of preparation, planning and strategy is required. This is where a legal representative who is fully versed in the mediation process can prove to be invaluable.

Unfortunately, in South Africa, and in many other countries around the world, the mediation process is often considered to be a ‘soft option’. This is quite untrue. Mediation requires a significant amount of hard work from participants and their representatives to achieve an outcome that is acceptable to both.

Your legal representative should properly understand the benefits of mediation, how it can be used to resolve a dispute, and should know when mediation is appropriate. Some legal representatives may even be able to guide you through the mediation process.

Some of the roles that legal representatives play in mediation are that they:

• prepare you as to what to expect from the process;
  
• coach you so that you can take full advantage of the mediation process;
  
• advise you of the possible arguments that the other side may make;
  
• advise you on the legal ramifications of certain decisions;
  
• advise you on the possible outcomes of the case if/when it goes to trial;
  
• advise you on the possible costs of litigation should the mediation fail;
  
• assist with the drafting and signature of a settlement agreement.

It is important that the mediator be given a chance to establish a relationship of trust with the parties directly. Attorneys can help by encouraging you to trust the mediator and to participate in the mediation process, while still protecting your interests.
The success of mediation depends, to a large extent, on strict confidentiality and on your willingness to participate in an active way.
It’s a good idea to involve your attorney, particularly if he or she is open to being collaborative and is also open to helping you to solve the issues at hand.

The questions arise in relation to the legal action launched by South African Revenue Service (Sars) commissioner Tom Moyane against author Jacques Pauw on the grounds that he unlawfully divulged information about the tax affairs of individuals including President Jacob Zuma.

A tax law academic - who did not want to be named - was emphatic that the act not only prohibited the disclosure of information about taxpayers by the tax authority, but also prohibited individuals from doing so when they came into possession of information about the tax affairs of others.
The secrecy provisions of the act were stringent and applied to Sars officials and all other individuals, he said.

If Sars wanted to report a crime to another authority, it would have to go through prescribed processes.

However, what makes the current situation tricky is that the whistle has been blown about lack of action by Sars over the tax obligations of the president.

Cannot answer questions
It might be that this information would have to be channelled through the tax ombud.

However, the office of the ombud says it cannot answer questions on the matter as it is before the court.

South African Federation of Trade Unions (Saftu) general secretary Zwelinzima Vavi said the law should not be used to hide a crime. If Pauw had contravened a clause of the act by revealing that crimes had been committed, then, said Vavi, the act must be urgently amended to bring it in line with the Constitution, which provided for freedom of expression.

"We are sure that this legal action is not just an attack on Pauw, but an attempt to intimidate the media and whistleblowers and is an assault on the constitutional right to freedom of speech," he said.

Clear and compelling public interest
"This action is a clear attempt to punish Pauw for publishing damning evidence including that president Zuma was paid a R1m a month salary by one of his cronies for at least four months after he became president in 2009," he said.

By bringing the legal action, Moyane had conceded that what Pauw had written in his book The President's Keeper was true, Vavi said. This meant that Zuma had broken the law.

Saftu agreed with the author's publishers that there was clear and compelling public interest in his book that revealed that Zuma had perverted SA's law enforcement agencies to hide the fact that he was not tax compliant and that he had received a salary from a business of his backer Roy Moodley while in office, Vavi said.

DA deputy finance spokesman Alf Lees said that in taking court action against Pauw, Moyane was trying to execute the messenger, instead of dealing with the substance of the disclosures in Pauw's book.

Intended to intimidate
"The Sars court application, under the hand of Tom Moyane, is clearly intended to intimidate any other South Africans from exposing matters of public interest," Lees said.

"There is nothing confidential about the massive R145.2m estimate of taxable fringe benefit that accrued to President Zuma when the state rebuilt his Nkandla residence," he said.

"Unless SARS deals with this revelation as well as the many other revelations publicly and transparently, the reputation of senior Sars executives and consequently SARS itself will not be restored.

"This reputational damage will continue to have a negative impact on taxpayer morality and the consequent resistance of taxpayers to pay taxes due," Lees said.

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