Cape Town, South Africa

• Stay calm. It is not a good idea to run. Speak carefully and clearly. Anything you say can be used against you in a court of law.
• It is not a good idea to touch the officers. Keep your hands where the police can see them.
• It is not a good idea to resist, even if you’re innocent or if you think the police are acting unfairly or unlawfully. 

a. Can the police arrest you for refusing to answer questions?

ANSWER: 

 No. The police cannot arrest you for refusing to answer questions, as you have the right to remain silent.

If the police officer suspects that you have committed a crime or that you are able to give evidence about a crime/suspected crime, the officer may ask you to give your full name and address. It is important that you do not refuse to give your name and address, as this may result in the police officer arresting you.

In addition, do not give the police officer an incorrect name and address details, as this would give the officer a basis  to arrest you and you may be found guilty of a criminal offence.

If the police officer attempts to arrest you, it is better to allow the arrest to happen without resisting or running away. If you do not allow the arrest, the police will be able to use force to arrest you.

b. What if the officers do not identify themselves?

ANSWER: 

You have the right to ask the official to identify him or herself by showing their appointment card, which must be carried by each and every police official, even the personnel appointed under the Public Service Act in the South African Police Service carry distinct appointment cards which are issued to them. If the official refuses to identify him or herself by showing their appointment card, you can demand that you wish to speak or be approached by the official's supervisor or commander.

If the police officer isn’t easily identifiable (for example, he or she is wearing plain clothes or driving an unmarked car), you have the right to ask for an identity document showing his or her name and photograph. If he or she refuses, you have the right to request to speak or to be approached by the police officer's supervisor or commander.

Do not run away, as this may cause the officer to attempt an arrest. 

c. What if an officer just begins speaking to me but does not order me to do anything?

ANSWER: 

When an officer approaches you, it is a good idea to remain calm and not to run away. If you feel that you are in trouble, you can ask the police officer if you are in trouble or if you are suspected of doing anything wrong. If the officer informs you that you are a suspect, or that you are under arrest, remain calm and ask the police officer what are the allegations brought against you.  Remember that you have the right to remain silent and you do not have to try and explain yourself to the officer. 

d. What if the officer is not in uniform or identified as an officer but I think it is one?

ANSWER:

You may ask the officer/officers to identify themselves. If they do not identify themselves, you can demand to speak or be approached by the police official's supervisor or commander. However, if you attempt to resist the arrest, the police officer may use force. It is therefore very important to remain calm and to ask the police officer in a calm but firm manner to identify themselves before you allow them to arrest you. If you are arrested without the police officer providing their identity and affording you a reason for your arrest, you will later have be able to begin legal proceedings against the police officer for wrongful arrest.

e. Can I tell police I do not want to speak without a lawyer?

ANSWER:

Yes. If the police ask to speak to you about an investigation, it is a good idea to request to speak to your lawyer and have your parents, guardian or an appropriate adult present.

If you cannot afford a lawyer, you are entitled to have a lawyer arranged for  you by the government at its expense. You may also get in touch with Legal Aid South Africa, their offices are available at your nearest magistrate's court, who may provide you with legal advice and representation for free. However, as a minor, you should at least request to have your parents present.

If you are at the police station voluntarily for a crime that has been committed, you still  have the right to consult with a legal practitioner and to be promptly informed of this right. You have the right to a lawyer from the time you are regarded by the police as a suspect in a criminal investigation. 

f. If I sit down, am I resisting?

ANSWER:

It is an offence to interfere with or obstruct a police officer in the performance of their duties. It may be argued that sitting down when a police officer is attempting to arrest you (rather than cooperating), is resisting arrest. In circumstances where you are deemed to be resisting arrest, the officer becomes entitled to use force in effecting the arrest.

A police officer should only attempt to arrest you as a last resort. Accordingly, they should rather secure your attendance at court by providing you with a written notice or summons (court order) to appear at court on a set date.

g. If I am stopped in a group, and some kids run, can I run?

ANSWER:

No, it is best to cooperate. By running, you may create the impression that you have committed an offence, and this may give the police officer reasonable suspicion to arrest you.

If you run and the police have asked you to stop or informed you that you are under arrest, the police are allowed to use reasonable force to bring you under arrest, as you may be deemed to be resisting.

It is a good idea to remain calm. 

h. Can I tell others (siblings, for example) to run?

ANSWER: 

No. If the police officers are attempting to question you, your friends or your siblings, do not tell them to run. If you do this, you may be regarded as interfering with or obstructing the police officer from performing their duties. You could be arrested and charged for this offence.

If you are concerned about the safety of your siblings or others, and you know your rights, remember what you have learnt in this document and try to assist your friends by explaining their rights, or asking the police officer your rights.

i. If the officer's language is not my first language, can I tell them without waiving my rights?

ANSWER:

Yes. In fact, you have the right to communicate in a language that you understand (this includes the 11 official South African languages and other internationally recognised languages) and a right to request an interpreter if needed.

You have the right to remain silent. Just because you have a right to speak your language of choice does not mean you are expected to give the police information that might be held against you or that accidentally incriminates you. It also important that you do not let police officers fool you into making admissions once you are afforded an interpreter or are spoken to in your language of choice.

The Constitution also provides that whenever an accused, arrested or detained person is entitled to information in terms of section 35, that information must be given in a language that the person understands.

j. If I did not do anything, can they stop me?

ANSWER:

Yes. There are various reasons police may stop you. They may be performing lawful search for a person or object, or may be looking for the perpetrator or a reported crime. It is a good idea to remain calm. The police officer may simply want to ask you if you have seen anything suspicious, or if you have seen someone of a particular description. This is why it is important first to stay calm and to cooperate. The police may not arrest for no reason, but they may stop you and in some cases search you if they have reasonable suspicion. As a youth, however, your best interests are protected by the Constitution, including the right to be treated in a manner that is appropriate for your age.

However, the law allows officers to call upon a person to provide their names and address, where:

• the officer has the power to arrest that person;
• that person is reasonably suspected of having committed or of having attempted to commit an offence;
• in the opinion of the officer, the person may be able to give evidence in regard to the commission or suspected commission of any offence. An officer is any person with law enforcement powers.

Furthermore, a police officer has the power to arrest a person, without a warrant, if he reasonably suspects that person of having committed certain offences.

It follows that the police may in certain circumstances stop you or even arrest you if you have not done anything wrong. However, they cannot do either without a warrant or a reasonable suspicion. Sometimes, an officer might reasonably suspect you even if you have not done anything wrong, for example if you meet at a specific description. In these instances, it is important to remain calm. Remember to ask if you are suspected of an offence, and if you need to, ask what your rights are as a suspect.

NOTES

The Constitution of the Republic of South Africa, 1996 ("Constitution") provides  arrested, detained and accused persons various rights, including:

• the right to remain silent;
• the right to be informed promptly of their right to remain silent and the consequences of not remaining silent;
• the right not to be compelled to make any confession or admission that could be used in evidence against that person; and
• the right to be brought before a court as soon as reasonably possible, but not later than 48 hours after the arrest; or the end of the first court day after the expiry of the 48 hours, if the 48 hours expire outside ordinary court hours or on a day which is not an ordinary court day.

In addition, Section 12 of the Constitution states that you have the right to freedom and security of the person, which includes the right:

• to have your dignity respected and protected. 
• not to be deprived of freedom arbitrarily or without just cause.
• not to be detained without trial.
• to be free from all forms of violence from either public or private sources.
• not to be tortured in any way.
• not to be treated or punished in a cruel, inhumane or degrading way.

The Constitution is accessible here:

[https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng.pdf ]

Your rights when under arrest are further detailed under section 50 of the Criminal Procedure Act, 51 of 1977 (as amended from time to time), which sets out the procedure to be undertaken by the police after arresting a person. Section 41 of the Criminal Procedure Act empowers officers to call upon a person to provide their names and address, where:

• the officer has the power to arrest that person;
• that person is reasonably suspected of having committed or of having attempted to commit an offence;
• in the opinion of the peace officer, the person may be able to give evidence in regard to the commission or suspected commission of any offence. A peace officer is any person with law enforcement powers.

Source: https://www.saps.gov.za/faqdetail.php?fid=2

Source: https://www.saps.gov.za/faqdetail.php?fid=8

Legal Aid: https://legal-aid.co.za/how-it-works/

An arrest is the most invasive manner of securing the attendance of an accused person (youth) in court.

Section 4(2) of the Child Justice Act, 75 of 2008 ("Child Justice Act") prescribes the manner in which criminal matters implicating children (youth) should be managed. Further, section 17 of the Child Justice Act states that:

The methods of securing the attendance of a child at a preliminary inquiry are:

1. a written notice, as provided for in section 18;
2. a summons, as provided for in section 19; or
3. arrest, as provided for in section 20.

Further, where the circumstances permit, a police official should obtain guidance from the Director of Public Prosecutions or a prosecutor on whether or not the child is required to attend a preliminary inquiry and, if so, the manner in which the child’s attendance should be secured.

Raduvha and Minister of Safety and Security CC (2016)

As held by the Constitutional Court in this matter, the police should always consider the circumstances of the youth threatened with arrest or detainment and make a well-informed decision of whether the youth's detention is a measure of last resort otherwise "the detention would be a flagrant violation of section 28(1)(g) and therefore unlawful."

In this regard, see https://www.saps.gov.za/faqdetail.php?fid=8.

Section 3 (d) of the Child Justice Act

“3. Guiding principles (d) every child should be addressed in a manner appropriate to his or her age and intellectual development and should be spoken to and be allowed to speak in his or her language of choice, through an interpreter, if necessary.”

Section 28(2) of the Constitution states that a child's best interests are of paramount importance in every matter concerning the child.

We note that a child (youth) in local laws means a person under the age of 18 years.

Therefore, even in the arrest and detention the best interest of the child (youth) should be thoroughly considered and balanced against the conduct of arresting or detaining the child.

This is further supported by section 28(1)(g) of the Constitution which provides specific instances and the manner in which a child (youth) may be arrested and detained. Accordingly, section 28(1)(g) of the Constitution states that:

"every child has the right not to be detained except as a measure of last resort, in which case, in addition to the rights a child enjoys under sections 12 and 35, the child may be detained only for the shortest appropriate period of time, and has the right to be:

1. kept separately from detained persons over the age of 18 years; and
2. treated in a manner, and kept in conditions, that take account of the child's age"

Sections 12 of the Constitution echoes the rights provided in section 28(1)(g) above in that it provides that:

"Everyone has the right to freedom and security of the person, which includes the right to not be deprived of freedom arbitrarily or without just cause"

Therefore, the right to freedom is applied uniformly to all citizens in South Africa and is only limited in instances where it the last resort for the youth.

Raduvha and Minister of Safety and Security CC (2016)

The Constitutional Court in this matter highlights the argument that the best interests of the child must be taken into consideration, even in circumstances where the child is suspected of committing a crime. However, such consideration does not preclude children from being arrested for crimes that they have committed. It is further emphasised by Justice Bosielo where he stated that:

"Similar to the discussion on arrest, does the constitutional injunction to safeguard children's rights mean that children will never be detained? The answer is also no. The need to detain a child is necessarily a fact based inquiry that requires a balancing of interests"

• You have the right to say no to searches of your person.
• You have the right to say no to searches of your car, house or other surroundings.
• You cannot be arrested for refusing to consent to a search without a warrant.
• A warrant is a court order so you have no choice but to consent.

a. What if a police officer wants to search my phone?

ANSWER: 

You have the right not to have your body or home searched. The police are, however, entitled to search and take  any object/article in your possession if that object or article is connected to a particular crime, may provide evidence regarding a particular crime, or if the object/article is intended to be used or is on reasonable grounds believed to be intended to be used in the commission of a crime.

When a police officer wants to search you or your surroundings (where you privately own those surroundings), he or she must present a valid warrant authorising the search.

The search warrant must identify the person that must be searched or the place that must be searched by the police. The search must also be done during the day, unless the search warrant expressly authorises the police officer to undertake the search by night. The person being searched or owner of the premises being searched is entitled to be handed a copy of the search warrant.

A police officer is also allowed to search you or your place without a search warrant, if he or she believes that a search warrant will be issued to him if he applies for it and that delaying the search in order to obtain the search warrant will defeat the object of the search.

If a police officer simply stops you in the street, it is unlikely that a police officer will hold a belief that a warrant to search you would be issued, and accordingly you will be entitled to refuse a search of your phone. If an officer, however, witnesses you filming the commission of a crime, that officer may have reasonable grounds to believe that he would be granted a warrant if he were to seek one and that actually going to obtain the warrant will prevent the purpose of searching your phone. In such circumstances, consider whether the police officer could have a reason to want to search your phone for evidence. 

b. What if a police officer asks me for my password to my phone?

ANSWER: 

If a police officer has asked to search your phone and you have consented, you may give the officer your password. However, you are not required to consent to a search, and you do not need to hand your phone over to the police if they do not possess a search warrant.

Furthermore, you have a right to privacy, which is protected in terms of the Constitution. This includes the right not to have your property searched. Giving an officer your password allows the officer to search your property. This right is protected under the Constitution and the police officer must consider less restrictive manners to obtain evidence, if that is the purpose of requesting your phone password.

Unless those special circumstances exist, or the police have a warrant, you do not need to give the police access to your phone or passwords. 

Remember, the police are not allowed to use evidence against you if they have obtained it wrongfully. They cannot threaten or force you to give them your details. If they do, they will not be allowed to use the evidence in court.

c. What if they tell me to give them my password or other access to my phone?

ANSWER:

Your right to privacy includes the right to privacy of your property. You do not need to give police access to your personal property, including your phone or password, unless a police officer holds a warrant for that information. 

d. Do I have to give them my device password if they demand it from me if I am not under arrest? What if they just ask for it?

ANSWER:

You only have to give the police your property to be searched if they hold a warrant. Your right to privacy is protected by the Constitution.

However, you can consent to hand over your information or to a search. Be very careful when consenting to hand over your information. If you consent to hand over your password, make sure you know the reason the police officer is asking for it, and rather unlock your phone for the police officer if he or she needs it. Perhaps the police officer might want to make a call from your phone in an emergency. In this case it would be acceptable, but it is not required and you cannot be expected to hand over your password or unlock your phone for the police.

Remember, the police are not allowed to use evidence against you if they have obtained it wrongfully. They cannot coerce, threaten or force you to give them your details. If they do, they will not be allowed to use the evidence in court. 

e. What tools can police use to search me? What technology? (Facial recognition, hidden cameras, finger print searches, etc.)

ANSWER:

As we have indicated, search of your person or property requires a search warrant, unless special circumstances exist. It is unlikely that a police officer will be able to search you in the street with advanced technology.

If a police officer intends to record you with video or audio technology, that police officer will be required to have a warrant authorising him or her to do so. If they do not have this authorization, they need to get your consent. If you are concerned that a police officer may be recording you, ask the officer if you are being recorded.

However, the police are allowed to use certain measures to determine your identity or bodily features in certain circumstances.

If you are arrested by the police, the police are required to take your fingerprint. Remember the grounds on which they can arrest you. They cannot simply arrest you for no reason, and accordingly remember not to run from police.

Police may take fingerprints of a person if they suspect that a person is guilty of an offence, or if they believe doing so will help them with an investigation. They do not need a warrant to do so if they believe you are guilty of an offence. If a policeman indicates that he wants to take your fingerprints, ask him why. If he says he believes you are guilty of an offence and you are a suspect, you will need to comply with the officer, as refusing to do so allows the police officer to use force.

The police cannot store your fingerprints in the criminal records database if you are not convicted of the crime in question. It is therefore best to cooperate with the officer and not to try and run away. If you are found guilty of an offence, the Child Justice Act provides that children guilty of minor offence may have their record expunged in terms of section 87(1)(a) of the Child Justice Act. Either the child, their parents or an appropriate adult or guardian may apply to have your record removed.

When your record is removed, your data (i.e. your fingerprints or DNA) must be removed from the database of criminal records.

Other samples may be taken on your arrest in order to obtain your DNA, however samples other than fingerprints must be taken by someone authorised to do so. This is usually a registered nurse or doctor.

f. Can they search my backpack or other item I am carrying?

ANSWER: 

As we have discussed, the police may only search your person or property if they have a warrant, or if they reasonably suspect you of being guilty of an offence.

They can therefore search your bag if they have a warrant or reasonably suspect that you may be carrying stolen or illegal goods.

Their belief must be reasonable, and must entail that they believe a magistrate would have authorised the search if a warrant were requested. 

g. Can they take my picture or record me?

ANSWER: 

Yes, a police officer is allowed to take your pictures after you have arrested. 

h. Can they ask me where I am going and why?

ANSWER:

The police are empowered to question anyone without arresting them. They are indeed allowed to ask you where you are going and why. This line of questioning usually arises in a roadblock, however if a police officer stops at random in the street, he may ask you these questions. You are not obliged to tell the police, although you are obliged to tell them your name and address.  

NOTES:

Section 14 of the provides the right to privacy. It says:

"Everyone has the right to privacy, which includes the right not to have -

1. their person or home searched;
2. their property searched;
3. their possessions seized;
4. the privacy of their communications infringed."

In terms of section 21 of the Criminal Procedure Act, a police officer with a search warrant may search any person identified in the warrant, or enter and search any premises identified in the warrant. The police may also search any person found on or at such premises.

A search warrant must be executed by day, unless the person issuing the warrant in writing authorises the execution thereof by night, and may be issued on any day and shall be of force until it is executed or is cancelled by the person who issued it (usually a magistrate) or, if such person is not available, by a person with like authority.

A police official executing a warrant must, after such execution, upon demand of any person whose rights in respect of any search or article seized under the warrant have been affected, hand to him a copy of the warrant.

Where the police officer does not have a warrant, he or she may search any person or container or premises if the person concerned consents to the search for and permits the officer to seize any item found or if he on reasonable grounds believes that a search warrant will be issued to him if he applies for such warrant that the delay in obtaining such warrant would defeat the object of the search.

In the case of Gumede v The State (800/2015) [2016] ZASCA 148 (30 September 2016), it was held that Evidence obtained as a result of an unlawful search in violation of right to privacy. If the police obtain evidence from you by coercing you to give it to them, they have done so improperly, and this evidence is detrimental to the administration of justice and is inadmissible in terms of s 35(5) of the Constitution

Any limitation on a constitutional right must be justifiable in terms of section 36 of the Constitution. As we have shown above, there are some circumstances in which the police are justified in limiting your right to privacy by searching your person or property.

Section 36B of the Criminal Procedure Act:

A police official must take the fingerprints or must cause such prints to be taken of any—

1. person arrested upon any charge related to an offence referred to in Schedule 1;
2. person released on bail if such person’s fingerprints were not taken upon arrest;
3. person upon whom a summons has been served in respect of any offence referred to in Schedule 1;
4. person convicted by a court and sentenced to a term of imprisonment without the option of a fine, whether suspended or not, if the fingerprints were not taken upon arrest;
5. person convicted by a court in respect of any offence, which the Minister has by notice in the Gazette declared to be an offence for the purposes of this subsection.

[…]

Importantly, The National Commissioner must destroy the fingerprints of a child upon receipt of a Certificate of Expungement in terms of section 87 (4) of the Child Justice Act.

Section 36C of the Criminal ,Procedure Act:

Any police official may without warrant take fingerprints or body-prints of a person or a group of persons, if there are reasonable grounds to—

1. suspect that the person or that one or more of the persons in that group has committed an offence referred to in Schedule 1; and
2. believe that the prints or the results of an examination thereof, will be of value in the investigation by excluding or including one or more of those persons as possible perpetrators of the offence.

Under this section

Fingerprints "must, upon conviction of a child be retained on a database referred to in Chapter 5A of the South African Police Service Act, subject to the provisions relating to the expungement of a conviction and sentence of a child, as provided for in section 87 of the Child Justice Act"; and any fingerprints taken must be destroyed if no prosecution or conviction is made.

Under the Criminal Law (Forensic Procedures) Amendment Act, 2013 (Act no 37 of 2013):

• Buccal samples may be taken from arrested and charged persons. An authorised person - trained police official - will take the buccal sample or it may be taken under the direct supervision of an authorised person.
• Buccal samples may be taken from a person who has not been arrested and charged for investigative purposes, provided consent was given or by court order.
• An authorised person must take the buccal sample immediately after the fingerprints of the person have been taken.
• Any office or place that is private, out of sight and hearing of other persons, may be used as a place where a buccal sample may be taken.
• The buccal sample must be taken in the presence of a witness who must countersign the collection form.
• The victim of a sexual offence must be taken to a registered medical practitioner or registered nurse for the medico-legal examination.
• Only a registered medical practitioner or registered nurse may take intimate samples from any person.

A person may request the authorised officer in writing to confirm whether his or her forensic DNA profile is contained in the National Forensic DNA Database of SA (NFDD), provided that the person must first apply for a police clearance certificate. Read more The criminal record, if any, must be attached to the application.

DNA reference samples and buccal samples must be destroyed within 30 days after obtaining a forensic DNA profile or after the sample has been processed by the SAPS’s Forensic Science Laboratory. Buccal samples must be disposed of in medical waste containers, and must be incinerated.

A person who wishes to have his or her forensic DNA profile removed from the NFDD, must apply for a police clearance certificate to confirm that he or she has no criminal record.  The police clearance certificate that indicates that the person has no criminal record, must be attached to the written application for the removal of the forensic DNA profile.

The application must indicate the -

• complete details of the applicant
• reason why the buccal sample was originally obtained from the person
• relevant station and CAS/ICDMS number of a forensic DNA profile that was derived from a buccal sample that was taken in respect of the investigation
• reason why the applicant wants the forensic DNA profile removed from the NFDD.

Lodging of complaints to the National Forensic Oversight and Ethical Board

A complaint may be lodged by a person who -

• has knowledge, or becomes aware, of any violation relating to the manner in which a DNA sample or forensic DNA profile is or has been handled
• is affected, or likely to be affected, by the action, omission or decision of the NFDD relating to the manner in which a DNA sample or forensic DNA sample is or has been handled
• has knowledge, or becomes aware, of any breach of security relating to -

(i) the safe transportation or storage of a DNA sample
(ii) the safe transportation or storage of a forensic DNA profile
(iii) the physical security of the NFDD
(iv) any other matter that breaches, prejudices or compromises the proper management of DNA samples, forensic DNA profiles or the integrity of the NFDD

• has knowledge of unethical conduct by an employee in the exercise of any function of the NFDD, or is affected by unethical conduct
• has knowledge of unethical conduct by an independent provider in the provision of services in terms of an arrangement with the NFDD.

A complaint may be made by a person acting on behalf of a person mentioned above who -

• is a child
• is unable to make the complaint himself or herself because of physical disability
• has requested a representative to act on his/her behalf.

[source: https://www.saps.gov.za/faqdetail.php?fid=58]

The Regulations Under the South African Police Services Act provide some additional directions as to the requirements for taking samples from people, including children. [see: http://www.policesecretariat.gov.za/downloads/acts/DNA%20Regulations.pdf] 

Section 37(1)(d) of the Criminal Procedure Act

(1)  Any police official may—

(d) take a photographic image or may cause a photographic image to be taken of a person referred to in paragraph (a) (i) or (ii) or paragraph (a) or (b) of section 36B (1). (people arrested on any charge or released on bail)

a. What if I did not do anything illegal, must I speak with the police and answer questions?

ANSWER: 

The police can ask you certain questions, such as your name and address. Other than that, you are not required to answer questions, given your right to remain silent. Importantly, if the police speak to you, you should address them. Do not run away, as this may give them cause to arrest you.

If you know something about what they are asking for or want to help the police, first make sure you know what they are asking about. If they arrest you, you should avoid saying anything further as the police will be entitled to use your words against you. 

b. What if they tell me something they are investigating that is wrong? Must I correct them?

ANSWER:

You have a right not to lay the blame on yourself and a right to remain silent. If you know they are wrong about an investigation, you may be aware of what is being investigated. By telling them they are wrong, you may lay the blame on yourself. In such a case it is best to remain silent. However, if you were a witness to the crime, you may offer to make a statement for the police. Be careful in these circumstances and rather seek the advice of your parent or guardian before doing so. If you are taken in for questioning, request to contact your parent or a lawyer. 

c. What if an officer just begins speaking to me but does not order me to do anything?

ANSWER:

In this instance, listen to the police officer and do not try to escape or run. This may give them cause to arrest you. You are entitled to ask them why they are speaking to you and if they are investigating. As we have said, if you would like to be of assistance, you may. It is however sometimes risky to do so. You do not need to assist them in their investigation of a crime. 

d. What is the legal difference between talking to them if they do not tell me I am under arrest, versus after they inform me that I am under arrest?

ANSWER:

As soon as you are placed under arrest, anything you tell the police may be held against you. You therefore have the right to remain silent. If a police officer tells you that you are under arrest, it is best to remain silent and only give them your name and address.

Be careful, however, as your words before an arrest may give the police a reason to arrest you. All you are required to tell the police is your name and address if you are asked. In some cases, such as when the police have a warrant (for example in a roadblock), you may be required to answer certain questions. In these circumstances, you should ask to read the warrant so you know exactly what they are entitled to ask.

If you are unsure about anything, inform the police that you are a minor and that you would like to be assisted by your parent or guardian before answering any questions.

NOTES:

The Constitution of the Republic of South Africa, 1996 ("Constitution") guarantees arrested, detained and accused persons various rights, including:

• the right to remain silent;
• the right to be informed promptly of their right to remain silent and the consequences of not remaining silent;
• the right not to be compelled to make any confession or admission that could be used in evidence against that person; and
• the right to be brought before a court as soon as reasonably possible, but not later than 48 hours after the arrest; or the end of the first court day after the expiry of the 48 hours, if the 48 hours expire outside ordinary court hours or on a day which is not an ordinary court day.

a. What is the difference between the police deciding to search me or my belongings (phone, person, backpack) and me agreeing to the search?

ANSWER:

If you agree to a search, the search becomes lawful and any evidence collected on during the search will likely be admissible in court, provided it is relevant. 

If the police do not have a warrant and they search you without your permission, the police need to show that they had the correct reasons to search you without a warrant before anything found on your person can be used as evidence against you.

Ask what the police are looking for if they ask to search you. If you know you do not have that on you, you may consent. This is sometimes a good idea as it avoids you being harassed or arrested by police. Be very careful however. If you are carrying a phone, wallet or anything they could suspect is a stolen item or something that may be evidence, rather do not consent to the search. 

b. What if they tell me to give them information versus them asking and me providing answers voluntarily?

ANSWER: 

The police cannot force you to give answers. They cannot intimidate, threaten or scare you into giving answers. Doing so will make the answers you give inadmissible in court. If you decide to give the police officer answers, for example in an investigation, make sure you know that you are not under arrest. It is also best to get a legal representative or parent to assist you in answering questions, whether you are arrested or not.

a. If I did not do anything, can they stop me?

ANSWER: In some cases, if you have not done anything, but a police officer reasonably suspects you of having committed a crime, the officer may stop you. In such cases, it is best to comply with the police officer, to remain calm, and not to resist or try to flee. 

b. Can I ask for the reason they stopped me?

ANSWER: Yes, you are entitled to ask why you have been stopped. If the police attempt to arrest you, they must provide a reason for the arrest.

c. Can I advocate for another young person stopped by police if we are stopped together?

ANSWER:

Yes. However, you should be cautious when doing so. Sometimes police officers do not like to be challenged. It will be helpful however if you speak to the other young person and explain their rights to them, and make sure the police have answered as to why that person has been stopped. It is also important to tell the other young person that they do not have to answer to any questions other than what their name and address is. 

d. If I think the stop is unjustified, what can I do?

ANSWER:

It is a good idea to remain calm and do not attempt to flee. Ask why you have been stopped and let the police know that you are a minor. If the police attempt to arrest you, do not resist. However, be sure to ask for reasons for your arrest if that do not give them to you.

You may also report police official who stopped you if you feel the stop was unjustified or discriminatory. In this regard, see our advice on complaints below.

e. Can I get the officer's identifying information for a future complaint?

ANSWER:

Where an arrest is made, the arresting officer will be required to make an arrest report. You will be able to call for these records at a later stage. In some cases, an officer may give you their name and rank upon request, however where an officer is not forthcoming in this regard, it will be best to approach your local police station or the station in the area where the offence took place, in order to obtain the details of the officer in question to the extent possible. 

In order to see if a police official is wearing a name tag you have to be close to him or her which means that you are in a one to one situation with the official. If he or she is not wearing a name tag you cannot just ignore them but you have the right to ask the official to identify him or herself by showing their appointment card, which must be carried by each and every police official, even the personnel appointed under the Public Service Act in the South African Police Service carries distinct appointment cards which are issued to them. If the official refuse to identify him or herself by showing their appointment card you can demand that you wish to speak or be approached by the official's supervisor or commander.

Furthermore you must remember that if you feel unsafe for instance when followed and instructed by an apparent police official whilst driving, you can drive to the nearest police station in order to make sure that it is a bona fide police official that instructed you to pull over.

Remember that police officials attached to the detectives in the South African Police Service are working in normal private clothes and do not wear name tags. If you are approached by an official claiming to be a detective it is a good idea to ask him or her to identify themselves by presenting his or her appointment card.

Source: https://www.saps.gov.za/faqdetail.php?fid=2