• Janet O'Donoghue

STOP UNLAWFUL POLICE ACTION!


Part One – The Arrest: On Friday, 20th January 2017, in Killarney Valley, KZN, a young man, twenty years old, left his friend’s house on his bicycle at around 8pm.

At the end of the farm drive he saw some vehicles with blue lights on the road. He waited a few minutes to see if the vehicles were moving, and since they were not, turned into the road to go home.

As he turned onto the road, the vehicles (several police vans and a couple of unmarked vehicles) started moving fast, coming up close behind him and then driving right next to him as he peddled as fast as he could.

A senior officer yelled out his window and swore at him to pull over. He immediately did so and put his bike down in front of the van. The officer asked him to open his bag, and asked what he had in it.

The young man asked why and said he had clothes in the bag. On the officer’s aggressive insistence he opened his bag to show them and told them he lived and worked down the road. There were two policemen standing with him and several other officers standing at their vehicles.

The senior officer then put his hand into the bag to search it and found an impala horn pipe and a small amount of dried herb - Cannabis sativa, which later measured 0,006 grams.

The officer shouted furiously at him, gripped his jacket behind his neck and started jerking him as he yelled. The young man asked him to let go a little as he was choking. The officer then asked him where he got the Cannabis from, and he answered that he got it from an unnamed man from the location whom he would meet near the tree.

With his hand on the youngster’s neck the officer half dragged, half walked him to the back of the van where he let go and asked him if he had smoked, to which he replied “no”. The young lad was understandably shocked and frightened. The officer then asked the other policemen if he looked as if he was “stoned”. The other officers (about five of them) spoke in Zulu which the young man didn’t understand.

The officer then said they would have to take him in the van to Camperdown police station and lock him up. The first police van was damaged at the back and they could not put him in. They put him instead in the back of the second van which he noticed contained a lot of Cannabis plants, about half of the floor of the van was covered...

Part Two - The Interrogation

When they got to Camperdown station, the senior officer let the young chap out of the van. He was told to walk in front of them into the station. They showed him to the back of the station and told him to sit down. The station commander asked him if there was anyone to phone and the youngster gave him his dad’s number. They asked him about his personal details. Another officer then ordered him to stand when speaking to the Colonel, in classic police psych intimidation tactics.

After talking to him they took him down to the conference centre where he sat and they asked him for more personal information, and what he was doing in Killarney road. He repeated that he was visiting a friend and watching a movie, and that when he left to come home they pulled him over. They asked him again where he got the Cannabis from and he answered again that he got it from an unnamed man from the location that he would meet near the tree.

The officers were completing paperwork and while this was happening another man entered and asked him if he knew “Dawn”, a well-known local Cannabis activist, and if he “bought” from her. They spoke among themselves a lot. They also asked him if “Dawn was still growing”, to which he did not reply. They also stated in a derisive manner that doubtless he could not afford “Dawn’s Cannabis”.

While in the conference centre the young man spoke to the officers about how he used Cannabis instead of drinking, to relax, and told them they should be out there catching guys who are getting drunk and fighting and reckless driving, instead of bothering innocent people causing no damage, and no harm to anyone, just living their life. They just looked at him and carried on. He asked them why drinking is legal with all its problems and cannabis is illegal They had nothing to say.

They were all talking in the conference room, three men doing paperwork; another man came in and took photographs and fingerprints, and the Colonel was in and out. They then put a bunch of papers in front of him and told him to sign, which he did, not having been given the opportunity to read what he was signing. No-one informed him what the documents were.

No-one had informed him of ANY of his rights protected by the very Constitution that these officers are sworn to uphold.

On the one paper he saw the weight of the Cannabis was 0.006g. They gave him another paper which they described as “letting him off with a warning”, and one which was for him to appear in court on Monday. They said if he didn’t appear in court they would come find him and lock him up.

Then they said he could leave. He fetched his bicycle and went outside to wait for his dad. When his dad arrived, the Colonel and his dad spoke to him at length about how bad Cannabis is and what it does to people, not allowing him even opportunity to respond with a reasoned, logical response.

Part Three – The Synopsis: What makes this police action UNLAWFUL, UNCONSITUTIONAL AND IMMORAL?

Several police vans and unmarked cars going from stationary to bulleting down the dirt road, lights flashing after a single young man on a bicycle is clearly use of undue force and intimidation on the part of the police. The police MAY NOT use undue force unless someone’s life is threatened and even then they are strictly regulated. This is UNLAWFUL and IMMORAL.

The officer yelling and swearing at the boy to pull over and then physically manhandling him is not only undue force and intimidation, but totally inconsistent with his Constitutional right to dignity, a wholly protected right under the Constitution of South Africa. This is UNCONSTITUTIONAL.

The officers had absolutely NO probable cause to chase or pull this boy over which makes this police action UNLAWFUL right from the start. The police are obliged to have probable cause before they can even get a warrant, never mind take this kind of action.

Probable cause would be something like smelling Cannabis smoke or the person driving as if under the influence. Interestingly, the paperwork completed in the station very clearly declares that the “suspect was seemingly of sound mind and did not seem to be under the influence of liquor or any other intoxicating substance or in a state of shock”.

Then, the officer commanded the boy to open his bag under severe duress and reached his hand into it without a search warrant or even the boy’s willing consent. Last year the Supreme Court ruled against warrantless searches and tip offs in police searches which means police are OBLIGED to prove probable cause to a magistrate in order to obtain a properly constituted search warrant.

These officers had ZERO cause to stop, search or even question this boy riding home alone on his bicycle. This makes this search UNLAWFUL and UNCONSTTUITIONAL, and in direct violation of instructions from the Justice Department NOT to harass citizens for petty Cannabis possession offences, even if they are certain to find a small amount. These cases are a tremendous waste of State resources. This is simply one of many such recent actions.

Not informing the “suspect” of his rights is UNLAWFUL, UNCONSITUTIONAL AND IMMORAL and these are certainly NOT the kind of circumstances where any leeway could be given out of compassion for the police who have a really hard job most of the time – at least the genuine ones actually doing their jobs.

Asking several other officers if the “suspect” looked “stoned” is hardly a scientific, nor even an official way of establishing the criterion for arrest, even if the officers were mandated to make petty offence arrests for Cannabis. This is UNLAWFUL and IMMORAL as it is clearly an attempt to evade following the very laws they are supposed to be trying to enforce, and as a Colonel, there is no excuse here for misinterpretation or misunderstanding of the law in any way.

The undue force, the pysch tactics and the attempt to bully the young man into “snitching” on a much more juicy target, the Cannabis activist, and even the arrest itself, is UNCONSTITUTIONAL.

Each person has a Constitutionally protected right to “bodily and psychological integrity” and unless the State can prove harm, there is actually NOTHING they can do to stop anyone from using pure herbal Cannabis as a relaxant or stimulant, and they KNOW it.

They get away with giving innocent people life long criminal records by using dirty tactics such as fear, force, shame, guilt, manipulation and threats, even illegal incarceration, to intimidate people into signing Admissions of Guilt, which boost their arrest statistics and let them off the hook of doing their job properly.

There is MUCH, MUCH more in this simple story which clearly demonstrates UNLAWFUL, UNCONSITUTIONAL AND IMMORAL POLICE ACTION.

Not the least of which is a police force who is willing to punish a young lad for smoking a toke to relax rather than drinking himself silly, but who also are known to give out warnings to people STABBING each other in our neighbouring community.

The fact is, that as long as we let them get away with these bully boy tactics and comply with them, they will continue to use them against us – UNSANCTIONED by the courts as they are.

It is like the story of David and Goliath – when enough of us find our “stones” and are willing to stand up and put an end to this kind of nonsense, the Goliath will fall. Part Four – The Court Appearance will follow.

Part Four – The Court Appearance

Through a friend, the young man went to see Janet and Jason from SACCRA to get some advice and support since his father was working and he would be facing the court appearance alone, not having a clue, as this was the first time he was in trouble with the law.

After arriving at court they went to see the court manager to ask about procedure and were referred to the senior prosecutor who explained that the young man would be asked to plead and would be able to apply for a legal aid attorney. We informed him that he would be pleading “not guilty”.

Now, the fact that the young man did have Cannabis on him has nothing to do with this plea. The unlawful police action negates the validity of the charge firstly, and secondly there are several cases under review regarding the unconstitutionality of Cannabis laws at the moment.

This means that EVERY Cannabis “offender” has the right to plead “not guilty” in view of the unconstitutionality of Cannabis laws. An automatic stay of prosecution has to be given until such time as a ruling is made at High Court and then Constitutional Court.

When the young man was finally called into court, it was not even in session and a court clerk (an SAPS constable) informed him that he could go home. This is completely UNLAWFUL, as we had already been denied sight of the docket and we had no idea what he had signed under duress. So, we went a step further and asked the senior prosecutor – “Who decides what happens to this open docket now? And how will we know what has happened?” He, strangely, referred us back to the police.

However, another court official we asked told us we are entitled to a copy of the docket and duly gave it to us.

In these documents we discovered a whole lot of UNLAWFUL CONDUCT, including conning and bullying the young man into signing away ALL his rights and pleading guilty (before even being brought to court) to an “offense” that can result in him having a criminal record. It would take TEN YEARS before we could even apply to have the record expunged.

Conclusion: Complying with the police and signing an admission of guilt, or pleading guilty in court is supporting the current status quo under the law. Most people think that pleading “guilty” means that you are denying that you had Cannabis on you and are honest enough to admit to it. This is not actually true. Pleading “guilty” means that you are agreeing that Cannabis laws are valid and that you have committed an offence to society under the law.

Pleading “not guilty” does not negate the fact that you have acted outside the law, but that you see that this is not an OFFENSIVE act i.e. no one was harmed, including yourself, and that the law is misguided and unjust.

Part Five – Actions to take

Anyone who is arrested for a Cannabis only offence can plead not guilty and apply for legal aid, who is obliged to act under your instruction. Remember they are there to serve your best interest.

If you are willing to be responsible and stand accountable as a Cannabis lover, feel free to visit http://saccralobby.wixsite.com/saccra to find out more about us. You can contact a member of the Executive council to inquire as to how you can act under the guidance of S.A.C.C.RA. and our legal team to become a part of the challenge to remove Cannabis from the law entirely for personal use, and community based regulation for commercial use. Whether or not the arrest was unlawful.

SACCRA is willing to investigate every case for integrity and to take action in order to call the SAPS to accountability over unlawful, unconstitutional and immoral police action. It does require you to stand up, speak up and show up and will not cost you a fortune in legal fees, other than an initial interview fee which is to determine if your case is valid and can be included in the action.


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