The SAPS act of 1995 is widely rumoured to grant protection to criminals from being photographed, and from the publication of their likeness. This rumour is based on lawyers lying about the law. Imagine. The horror.
Analysis of South African Police Act 68 of 1995, section 69
Here is the relevant section of the Act, with my commentary. I am not a lawyer, which means I’m just going to tell you what it says, and not lie about it.
Firstly: Police can tell you not to take photos, sometimes
We start with a heading: this is about not having photos taken of some people:
69 Prohibition on making of sketches or taking of photographs of certain persons and publication thereof
And some definitions that say when we mean photograph or publish or take, we mean doing something like that, no matter how you do it
69. (1) For the purposes of this section-
“photograph” includes any picture, visually perceptible image, depiction or any other similar representation of the person concerned;
“publish”, in relation to a photograph, includes to exhibit; show, televise, represent or reproduce; and
“take”, in relation to a photograph, includes the performance of any act which by itself or as part of a process or as one of a sequence of acts renders possible the production of a photograph.
And now, the first group of people you cannot photograph: someone the cops have nabbed, that is going to go to court, but the policeman knows that taking a photo is going to prejudice the case. But it’s not enough for him to just know that there’s going to be a problem: he has to prohibit the taking of the photo. And then you had better listen, or he’s gonna let the criminal go and lock you up instead:
(2) (a) A member who has reason to believe that the taking of a photograph or the making of a sketch of any person who is, in relation to criminal proceedings, detained in custody, will prejudicially affect an ongoing investigation into an offence or alleged offence, may prohibit any person from taking such photograph or making such sketch.
(b) Any person who takes a photograph or makes a sketch in contravention of a prohibition under paragraph (a), shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding 12 months.
Second: There’s a general prohibition on publishing photos of people nabbed by the police
Okay, next: some guy seems to have done something, and he’s been nabbed or he’s run off: for this guy you can take the photo, but you can’t publish it. If he’s hanging around innocently at the scene of the crime as if there’s nothing wrong, then presumably you can publish his photo, with the usual risks for slander if you say something that’s not true:
(3)( a) No person may, without the written permission of the National or Provincial Commissioner, publish a photograph or sketch of a person-
(i) who is suspected of having committed an offence and who is-
(aa) fleeing;
(bb) in custody pending a decision to institute criminal proceedings against him or her; or
( cc) in custody pending the completion of criminal proceedings in which such person is an accused; or
(ii) who is or may reasonably be expected to be a witness in criminal proceedings and who is in custody pending such proceedings.
(b) Any person who publishes a photograph or sketch in contravention of paragraph
(a), shall be guilty of an offence and liable on conviction to a fine or to imprisonment fora period not exceeding 12 months.
The protected classes of people are:
- (3)(i)(a)(aa) A suspect fleeing: the guy is running away
- (3)(i)(a)(bb) A suspect in custody: nabbed by the police: this is the guy that is trussed up with the policeman’s boot on his neck, or he’s in the police van, or in the police cells.
- (3)(i)(a)(cc) A suspect in custody waiting: he’s in jail, and on trial
- (3)(ii) He’s a witness that’s going to appear in court
The single word “fleeing” might appear to provide broad protection to criminals fleeing the scene of a crime, but its grouping together with the other provisions of the same paragraph indicate that this is someone who is about to be apprehended by the police.
The proper use of this law
While the law does not set out the reasons for its provisions, it appears that the prohibitions on photography have the following goals:
- Expedience: It is easier to stop prejudicial photography at the crime scene than to deal with the courts later. Criminal lawyers will make vain claims that the photographs contain evidence, and the courts will accept these vacuous claims, provided they use the right magic or masonic words, and criminalising the photograph is easier than instructing judges to judge justly.
- False witnesses and memory: if a witness sees a photograph of the criminal suspects, it is possible that their testimony about those faces may be based on the photograph and not on their actual observations.
In short: they don’t want you to say “this is the guy”, when the police already caught him.
Woe unto you, lawyers
Now that we have heard the secular law, have a listen to a lawyer’s commentary on the same. You will notice that it’s not quite the same.
SAPS News, Cape Town: Legal specialist in all police matters, Advocate Melville Cloete from the provincial police, recently spoke about the legislation surrounding this topic at a talk at Gene Louw Traffic College in Brackenfell. He addressed members of local neighbourhood watches, warning them of the dangers linked to posting such photos on social media. “You are not allowed to publish a picture identifying an alleged suspect in a crime on WhatsApp or on Facebook before this person had appeared before a court of law,” he stressed. The South African Police Service Act strictly forbids this.
This advocate is not just an avocate. No, he is a specialist. He is a specialist in all police matters. He must have read this law. Strangely, he says things that are not stated by the law. He ignores the provisions of the suspect being in custody or fleeing, and just says “no photos”. Give them a fingernail, and they take the whole car.
The same applies to pictures of anybody who might be a witness in a criminal case.
That’s almost right. But the “might” is deceptive: it is not the possibility of being a witness (5% will do), but the reasonable expectation of being a witness (85% will do). I do not reasonably expect a criminal case to occur at all, much less that witnesses will be called to testify.
And then this gem of doublespeak:
“Members of neighbourhood watches often take pictures of suspects at crime scenes, which you can do, but the moment you send the picture to someone else or post it to a social media platform, it is considered published,” he said. Posting photos could lead to vigilantism.
Actually, police are empowered to prohibit the taking of pictures, and criminally punish those that take the pictures. However, if they fail to do so, that’s their problem. If suspects are at a crime scene, but not fleeing, and not in the custody of the police, then such suspects can be freely photographed and published. The notion that the publisher of a photo is responsible for vigilantism is not found in the police act.
A hefty fine, 12 months imprisonment or a massive civil suit could await you, should you post a picture of any perceived “criminal” on a social media platform.
Could await you. Indeed. Could. But this expert really isn’t explaining anything, but mixing up two unrelated things:
- Photos prohibited by the police act: sure, the act prohibits photos of people the police are nabbing.
- Defamation by false statements about an innocent person: if you say something false, well, you deserve whatever you get.
And now, behold, lies:
According to Cloete, the only exception applies when the investigating officer on the scene gives his permission for the picture to be published. In addition to the Police Act, section 35 of the Constitution affords every citizen the right to a fair trial.
The permission of the National or Provincial Commissioner is suddenly not required, because expert lawyer thinks that it’s enough for the investigating officer to say his thing. However, this is not the only exception: the suspect being neither in police custody nor fleeing is the clear exception. The failure of all police to anticipate prejudice at trial and prohibit suspect photographs at a particular crime scene is also an exception.
The learned advocate continues, advocating for making it up as you go:
“The publication of a photo identifying the alleged perpetrator could thus render the trial unfair and it might result in the suspect being acquitted. The same applies if the perpetrator is identified in public before an ID parade has taken place,” said Cloete The publication of such a photo could furthermore defeat the ends of justice, by hampering a pending investigation.
Let’s move away from the police act, and make the public responsible for police operations such as the identity parade (pray tell, how may have happened in the last year, nation wide?) Let’s just wildly accuse them of defeating the ends of justice, because as you know, the ends of justice are served by nobody ever seeing or knowing anything about a crime until a few years hence. Pity the poor judges of the courts, who cannot provide a fair trial in the face of evidence, and who cannot weigh witness testimony where witnesses have seen some of the evidence. It is not the public’s fault if the learned judges of our courts are unable to do a fair trial.
And, our final piece of legal advice:
“It can also lead to vigilante action in cases where the person are responsible.”
Count the weasel words:
- can also – maybe
- lead to – some chain of events perhaps
- in cases where – in a limited
- are responsible – bad grammar – because you can’t be sure
When there’s that much weasel, you know it’s taking a leap. The government is responsible for vigilante action, because the government is refusing their task.
Tell me how you really feel
This is bad law: these provisions take the government’s task of preserving evidence, and make it everyone’s problem. This is not how law should be done. Law should punish evil workers, and leave everyone else alone. The police have an almost impossible task of convincing the intransigent courts to do justice. The fact that the courts have made up all sorts of reasons to exclude good evidence and testimony should not be the police’s problem, and neither should it be the public’s problem.
This law has aged badly: These provisions were written before the courts shut down all pretence of swift justice in favour of continual postponement. The prospect that the witnesses will be able to identify a criminal after he has aged five to ten years to appear in court is ridiculous. The police should make every effort to speedily preserve evidence and witness statements, because it will be needed when the last witnesses are dead and the case finally comes to trial.
This law is stupid: Digital photography should not be treated as an problem that prevents the proper conclusion of cases, but a source of good evidence. The distribution of the photographs of persons not in custody should be encouraged, so the public can know who the dangerous people in society are.
This law is being abused to say things it does not say: The police advocate’s explanation of the law and his expansion from its actual provisions to a blanket “no photos” policy strongly suggests that the police do not want crime and criminals to be in the public eye: no photographs, no information, no problem.
The advocate’s statement says the police are losing the battle: The advocate concludes with a warning against vigilantism. Think about that: he is so sure that the case will not be finalised, and the result published in any reasonable time frame, that he has to warn the public against doing the job of justice that the government is unwilling to do: to be the revenger to execute wrath upon him that does evil.
