Under section 12 of the Constitution, everyone has the right to freedom and security of the person. This right includes the right-
- 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; and
- not to be treated or punished in a cruel, inhuman or degrading way.
The Constitutional Court has favoured a narrow approach to this right whereby the court will look at the circumstances of each case and decide whether the right is infringed. The narrow approach primarily concerns the right to physical freedom. The case of Bernstein v Bester explains that there are two aspects that are both protected by the right: substantive fairness (i.e. the reasons for deprivation must be acceptable and arbitrary deprivation is not allowed) and procedural fairness (the procedure whereby a person is deprived of their freedom must be fair and lawful). As such, deprivation of freedom is constitutionally acceptable if it is for a good reason and in accordance with fair procedures. In terms of determining whether there has been an infringement of this right, a two stage approach is followed.
Stage 1: Interpretation
- Part of this enquiry includes consideration of the following:
- Has there been deprivation of physical freedom?
- Is the reason for the deprivation of freedom acceptable?
- Is the manner of deprivation of freedom procedurally fair?
If stage 1 establishes that there is a limitation of this right, stage 2 ensues where the court must decide whether the limitation is justifiable by engaging in the constitutional s 36 limitations analysis.
But is this right actually respected in practice? Not in my personal experience. Which brings me to the police.
From an early age, we are taught that the police are there to help you. The truth is though, the police are human and sometimes simply want to watch people squirm. I have seen people thrown into the back of police vans simply for talking back to the police and reminding the officers that what they cannot do by law. But scare tactics have historically been used by those wielding state power, as the officers drove them around for hours in the dark and then just dumped them on the side of the road.
Everyone always says that you must report a violation of your rights to the police, but where do you go when the police are the ones causing the violation? We may have an Independent Police Investigative Directorate (IPID) but how comfortable are people reporting the police when they aren’t even comfortable reporting to the police? The simple answer: most people aren’t. Much like any other crime that is difficult to report, we must find the courage to stand up to those doing wrong, even when those people are the police. You have rights, do what you can to protect them and remember that although the police may enforce the law, they are not above the law.