TO BRIBE OR NOT TO BRIBE?

Many drivers have been pulled over by a police officer only to face a fine or have a suggestion made to pay a bribe.  Some drivers prefer to pay the bribe and leave, without having to worry about possible harassment, detention or facing a hefty fine.  This behaviour no doubt undermines trust in the police.

 

In a survey conducted by  Afrobarometer ,which was aimed at discovering public’s perceptions of the police and which focused on corruption of police officials. It was found that 52% of the population believed that “almost all” of our officials were involved in corruption (Iris Wielders, Afrobarometer 2013). With numbers this high, one wonders if the public actually have faith in the police any longer.  

 

According to the Independent Police Investigative Directorate (IPID) Annual Report for 2013/14, of the 161 cases of corruption against police officials reported, 84 cases were completed.  Only 18 of the recommendations made to the National Prosecuting Authority by IPID were referred to the courts.  Of those referred, only 3 resulted in criminal convictions and 2 in disciplinary hearings. These conviction rates, no doubt, point to the shortcomings of the police in overcoming corruption in their own institution.  

 

Here, Van Der Westhuizen J stated at paragraph 221, that “a corruption-free society can only develop in the hearts and minds of its people – particularly the ones occupying positions of political and economic power”. “Thoroughly closing all perceived loopholes will guarantee little. The more procedures and processes we put in place to safeguard against corruption, the more plausible deniability we give to a corrupt actor if all the technical boxes have been ticked.” 

 

These statements demonstrate that even if institutions such as the Police have in place all the corruption fighting procedures, the individuals involved need to change their attitude toward corruption in order to have a corruption free society.

 

As  a citizen of South Africa, one needs to know of one’s right, if pulled over whilst driving. Section 334 (2) of the Criminal Procedure Act 51 of 1977, states: 
 

“ (a) No person who is a peace officer by virtue of a notice issued under subsection (1) shall exercise any power conferred upon him under that subsection unless he is at the time of exercising such power in possession of a certificate of appointment issued by his employer, which certificate shall be produced on demand.

(b) A power exercised contrary to the provisions of paragraph (a) shall have no legal force or effect.” 

 

What does this mean? It means that if one is approached by a police officer (which is a peace officer as defined in the Criminal Procedure Act 51 of 1977), one can ask the police officer to show you his or her appointment card.

 

Goverment Notice R210 in Government Gazette 23144 of 19 February 2002 stipulates that the following information must appear on the certificate of appointment for the official. Such information is the following:

 

• The full name of the official appointed;

• His/her identity number;

• His or her signature;

• Description of the capacity for which he or she was appointed;

• Name of the employer who made such appointment;

• The signature and official stamp of the employer or responsible person.

 

This regulation goes on to state further that no certificate of appointment referred to above shall be issued to any person, unless that appointment certificate is issued by an Officer of the South African Police Service. In this certificate it must be stated that in that officer’s opinion, such person is competent to exercise such powers, provided that the following considerations are taken into account:

 

• Previous criminal convictions 

• Declaration of unfitness to possess an arm or ammunition as defined in the Arms and Ammunitions Act 75 of 1969.

 

If a police officer refuses to identify him/herself you do not have to show your driver’s licence.  A male police officer is not allowed to search a woman, but he can ask you to empty your pockets and bag.  A police officer may not verbally abuse or intimidate you or anyone else. Get the details of any officer who has treated you unjustly, to enable you to report their behaviour to their superiors.  

 

If you don’t have your driver’s licence or ID, a police officer may detain you for 12 hours to ascertain your identity.

 

If you are pulled over for drunk driving, a police officer must take you to the police station to open a docket before you are taken to a clinic for a blood test. A blood test must be done within two hours of your arrest by a police officer.

 

You are not obliged to pay fines on the spot. However, if there is a warrant of arrest against you, then you can be detained until the fines are paid. 

 

In Johannesburg, if any abuses occur then the Johannesburg Metro Police Department (JMPD) have a 24 hour anti-corruption reporting line. They can be contacted on 0800-203712.

 

There are sections in the Criminal Procedure Act which are intended to assist citizens resist demands for bribes.  Knowing them and using them can curb the abuses by the police.  This is only on paper. As argued above, the rate of corruption is increasing amongst police officials and will continue to grow unless, as Van Der Westhuizen states in his judgment, the officials themselves have to change in order for the corruption rates to decrease, while at the same time remembering that it takes two parties for the bribe to be successfully concluded.

 

 

1. Criminal Procedure Act 51 of 1977.

2. http://www.corruptionwatch.org.za/sites/default/files/KNOWYOURRIGHTSFINAL.pdf

3. Government Notice R210 in GG 23144 of 19 February 2002.

4. http://www.enca.com/south-africa/watch-metro-officer-asks-bribe

5. Tackling Police Corruption in South Africa by Gareth Newham accessible on: http://www.csvr.org.za/old/wits/papers/papoli14.htm

6. http://irr.org.za/reports-and-publications/occasional-reports/files/broken-blue-line-2-february-2015.pdf

7. Iris Wielders, Afrobarometer Briefing Paper No. 110 Perceptions and Realities of Corruption in South Africa, January 2013.

8. Helen Suzman Foundation v President of the Republic of South Africa and Others; Glenister v President of the Republic of South Africa and Others [2014] ZACC 32.

 

Arvitha Doodnath

Legal researcher

Helen Suzman Foundation

arvitha@hsf.org.za