In the wake of a worldwide pandemic and increased reports of police brutality during these trying times, the question arises whether a member of public is permitted to film members of the South African Police Services or members of the Metropolitan Police Department in the execution of their duties, where the authority and powers granted to them are sometimes exceeded and severely abused?
Section 67 of the South African Police Service Act 1995, criminalises any act whereby any person wilfully hinders or obstructs police officers in the exercise of their powers or the performance of their duties and functions. A person who wilfully hinders or obstructs a police officer, shall be liable on conviction of this offence, to a fine or imprisonment not exceeding 12 months.
In terms of section 40(1)(j) of the Criminal Procedure Act 1977, a police officer may, without a warrant, arrest any person who wilfully obstructs a police officer in the execution of her duties. It is however trite that the obstruction must be a physical act, but it need not be a positive physical action.
We are of the view that the mere filming of a police officer whilst executing his duties is a passive act and in circumstances where a person does not wilfully hinder or obstruct a police officer, the mere filming does not constitute an offence. The filming of police officers is furthermore, not contrary to the provisions of section 4 of the Regulation of Interception of Communications and Provision of Communication-Related Information Act 2002. Although the filming might not be prohibited, in some circumstances the distribution of such video material might be unlawful, for instance, where the identity of minor children has to be protected.
Furthermore, a police officer is also prohibited from searching for and seizing any device which may have been used to film the police officer(s). In view of the fact that the filming of a police officer is not an offence, the police officer may not rely on the provisions of section 20 or 22 of the Criminal Procedure Act to search and seize any of your devices. This not only contrary to the provisions of the Criminal Procedure Act, but is also an unlawful limitation and infringement upon a person’s right to privacy as entrenched in the Constitution of the Republic of South Africa.
It is reasonably expected of all members of the South African Police Services (and for that matter the Metro Police Departments and the South African National Defence Force) to exercise their duties and functions in a lawful, reasonable and proper fashion. A police officer’s conduct must at all times be of an impeccable standard. Considering the standard to which any police officer should be held to, why would a police officer possibly be aggrieved if he/she is filmed when performing their duties in public or otherwise?