Judgment permitting filming police in public key to accountability: legal expert
This is the comment by a director of law firm Fluxmans, Myron Mer, after a judgment by the Johannesburg high court in a case brought by attorney Shaun Jacobs who succeeded in his application for damages for unlawful arrest and detention.
In March 2019, Jacobs came home from work one evening to find a police roadblock set up outside his property in Kempton Park.
He went inside, put his things down, picked up his phone and walked back out, not onto the street but to the boundary of his garden and began recording what was going on.
He was not rude or aggressive towards the officers but when they saw he was recording a video of the scene, and especially their vehicle, one of the officers pounced on him and arrested him without explaining his rights and what he was arrested for.
He spent more than 24 hours in detention.
Jacobs took the matter to court, suing the minister of police and the Ekurhuleni metro police, arguing his arrest was unlawful and violated his constitutional rights.
Judge Mpostoli Twala agreed, finding the arrest and detention unlawful. The court awarded Jacobs R250,000 in damages, R100,000 for the unlawful detention and R150,000 for unlawful arrest.
Mer said the compensation was not the main takeaway in this judgment.
'The ruling sends a broader and significant message, namely ordinary South Africans, not just accredited journalists, have the right to question police conduct and to record it. However, and importantly, as long as they are not physically obstructing operations,' Mer said.
In his judgment Twala said citizens were entitled to ask questions and entitled to explanations from law enforcement officers in respect of their conduct.
'That cannot be regarded as interference with the execution of their lawful duties,' Twala said.
Mer said civil rights advocate Mukhethwa Dzhugudzha called it 'a vital safeguard for the public', pointing out that the right to record was part of a bigger picture, in particular freedom of expression under section 16 of the constitution.
The ruling came as public trust in law enforcement is strained.
'The Independent Police Investigative Directorate has received hundreds of complaints in recent years about excessive force, unlawful arrests and abuse of power.
'Against that backdrop, the judgment underlines the role of the public in holding police accountable and confirms that exercising that oversight is a lawful and constitutionally protected act,' Mer said.
However, the police can stop a member of the public if they physically block them from doing their job.
'But quietly recording from a safe and lawful position, that's not a crime.'
Mer said while the case brought personal vindication for Jacobs, for the rest of the country it was a reminder that rights do not vanish when confronted with a badge and a uniform.
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