What is a roadblock, and what can the police require?

Being waved to the side of the road at night by several officers with a spike chain across the lane is intimidating, and most drivers respond by becoming extremely agreeable.

That is understandable and it is mostly sensible. It is also the reason a lot of people consent to things they did not have to, and never find out whether the roadblock itself was lawfully set up.

What makes it a roadblock

A roadblock is not simply a group of officers stopping cars.

Section 13(8) of the South African Police Service Act 68 of 1995 provides that the National or Provincial Commissioner may, where it is reasonable in the circumstances, authorise in writing that a roadblock be set up on a public road, or a checkpoint at a public place.

The written authorisation must specify:

• the date
• the approximate duration
• the place
• the object of the roadblock

There must also be proper signage, cones or barriers so that approaching drivers can see what is happening.

The object matters more than people realise. A roadblock authorised to look for stolen vehicles has a stated purpose, and the powers that follow are exercisable to achieve that object.

What the search power actually is

This is the part worth understanding, because it is a genuine exception to the ordinary rule that a search needs a warrant.

At a properly authorised roadblock, a police official may, without a warrant:

• search any person who is stopped
• search any vehicle that is stopped
• search any receptacle or object in the possession of that person, or in, on or attached to the vehicle
• seize any article that may afford evidence

That is broad. It covers the boot, the cubbyhole, bags, and the contents of the vehicle generally.

Two limits sit around it. The search must be reasonably necessary to achieve the object specified in the authorisation. And the power flows from the authorisation, so if the roadblock was not properly authorised, the ordinary rules about searches apply instead.

Ask to see the authorisation

Here is the entitlement almost nobody uses.

A police official who sets up a roadblock must, on demand of any person whose rights are affected by the search and seizure, exhibit a copy of the written authorisation.

So if your vehicle is being searched, you may ask to see it. Politely, once:

"May I see the written authorisation for this roadblock, please?"

What you do with the answer:

If it is produced, look at the date, the place and the object. Note them. That is the end of the matter and you have lost nothing but ten seconds.

If it is not produced, do not argue and do not resist. Note the time, the place, the officers' names and numbers if visible, the vehicle registrations, and the fact that you asked and it was not shown. Write it down as soon as you are away from the scene.

That note is what an attorney works with later if something was seized. Resisting at the roadside converts a search problem into an obstruction charge, and that is a much worse position.

What you must produce

Separate from the search power, there are ordinary obligations as a driver.

Your driving licence. You must be able to produce it. Driving without it on you is an offence.

The vehicle's documentation as required, including a valid licence disc displayed.

Your identity, where lawfully asked.

Two common questions.

A photograph of your licence is generally not accepted as the licence. Carry the card.

A foreign licence must meet the requirements for use in South Africa, and our guide on driving on a foreign licence sets out what those are.

Breath and blood testing

Where an officer suspects that you are driving under the influence, testing follows, and refusal is not a neutral choice.

Refusing a lawful request for a breath or blood specimen can lead to arrest, and the refusal itself is treated seriously. It is not a way of avoiding evidence.

Our guide on what happens if you are caught drinking and driving sets out the limits, the procedure and the consequences, including why this is one of the few traffic matters where getting an attorney immediately is proportionate.

What a roadblock does not authorise

Being clear about the edges is the useful part of this page.

It does not authorise a search of the contents of your phone. Seizing a device is one thing; reading the data on it is governed by its own framework, and the default there is a warrant. Our guide on whether police can search your phone sets out the position, and the short answer at a roadblock is that an officer asking to look through your phone is asking for your consent, which you may decline.

It does not authorise an arrest without a basis. Arrest requires its own grounds, and our guide on arrest without a warrant sets them out.

It does not authorise a demand for money. There is no lawful roadside fine payable in cash to an officer. A fine is issued on a notice, and it is paid to the issuing authority or the court. If you are asked for cash, that is a request for a bribe, and paying it is an offence by you as well.

It does not make an unlawful fine lawful. A notice handed to you at a roadblock is still governed by whichever fine system applies where you are, and our guide on which traffic fine system applies where you live works through it. The traffic fine checker identifies which system a notice belongs to.

It does not authorise the seizure of your vehicle without a basis. Where a vehicle is impounded, our guide on what to do if your car is impounded sets out the process and how to get it back.

How to handle it

Stop where directed, put the interior light on at night, and keep your hands visible. Officers are also nervous, and roadblocks are dangerous places for them.

Be civil. It costs nothing and it changes the interaction more than any legal argument will.

Produce your licence without being asked twice.

Do not consent to more than is required. There is a difference between complying with a search the officer is empowered to conduct and volunteering access to things they are not. "I do not consent, but I will not obstruct you" is a complete and lawful position.

Do not get out of the vehicle unless asked, and do not open the boot pre-emptively.

Never offer or pay money. If it is solicited, note everything and report it afterwards.

Do not argue the law at the roadside. You will not win, and the record you make afterwards is worth far more than the argument you have now.

Write it down the same day if anything went wrong: the time, the place, the names and numbers, what was said, what was searched, what was taken, and whether you were shown the authorisation.

If something was seized

Ask for a receipt or inventory of what was taken, and the case number and the investigating officer's details.

Seized articles are dealt with under the Criminal Procedure Act, which provides for how they are held and disposed of. Where an item is being held longer than the investigation requires, an application can be made for its return.

If you believe the search was unlawful, the consequence is not automatic. Section 35(5) of the Constitution requires evidence obtained in violation of a right to be excluded where admitting it would render a trial unfair or be detrimental to the administration of justice. That is a real argument and it depends entirely on the record you made at the time.

Worked example

This example is illustrative. A driver is stopped at a roadblock on a Friday night. An officer asks for his licence, which he produces, and then says he is going to search the vehicle.

The driver asks, once and politely, to see the written authorisation for the roadblock. It is produced. It is dated that day, names the stretch of road, and states the object as the recovery of stolen motor vehicles and firearms.

The boot and the cabin are searched. Nothing is found. The officer then asks to look through the driver's phone "just to check something".

That is a separate request, and it is a request for consent. The driver says he does not consent to a search of his phone. Nothing further happens and he drives away.

Now change one fact. The authorisation is not produced when asked for. The vehicle is searched anyway and a friend's bag in the boot, which the driver did not know the contents of, produces something incriminating.

He does not argue. He notes the time, the location, two officers' names from their name badges, the fact that he asked for the authorisation and was told there was not one to hand, and he writes it down within the hour.

Whether that search was lawful is now a live question with a contemporaneous record behind it, rather than a recollection he constructs eight months later against two officers who say the authorisation existed. The outcome may still go against him. The difference is that he has something to argue with, and it cost him one question and ten minutes of writing.