Recording police in South Africa: legal rights and limitations explained

AMID rising concerns over police misconduct and accountability, recent discussions have ignited a crucial debate on the rights of civilians to question and record law enforcement officers while they perform their duties. 

Following a judgment in the Johannesburg High Court that affirms this right, stakeholders, such as legal experts, have weighed in. 

- Arvina Harricharan, an attorney, said the police were entrusted with the responsibility of protecting the public. She said some officers, however, engaged in illegal activities such as bribery and corruption. 

“It is essential that law enforcement personnel uphold the highest standards of conduct. Ensuring accountability through transparent oversight and strict consequences are vital steps toward restoring public trust and integrity in the justice system.”

Harricharan said there were advantages and disadvantages with regards to civilians being allowed to record police officers. 

“On the positive side, it enhances the ability to hold officers accountable for their actions and could contribute significantly to rebuilding public trust in law enforcement. However, there are notable drawbacks as well. Recording may become a distraction during high-pressure situations, potentially putting officers’ lives at risk when their full attention is critical. 

“In addition, it raises concerns about the privacy of police personnel, many of whom are not engaged in misconduct and may be recorded even when off duty, simply because their job is that of a police official.” 

Harricharan said each situation should be carefully evaluated before being recorded, rather than recording “simply for the sake of it”. 

“Not all footage should be deemed appropriate or admissible for use, as doing so indiscriminately could lead to a climate of fear among police officers, ultimately discouraging them from performing their duties effectively.”

- Lasanthan Pillay, an attorney, said from a legal standpoint, civilians were within their rights to record police officers in public spaces, provided they do not obstruct their operations or violate privacy laws. 

“The Constitution guarantees both freedom of expression and access to information. These rights extend to documenting public conduct by law enforcement, particularly where accountability is at stake.

“Importantly, the Regulation of Interception of Communications and Provision of Communication-Related Information Act (RICA) supports this right. South Africa follows a one-party consent rule, meaning that if a person is part of the interaction such as being stopped or questioned by police, they may legally record the encounter without needing the officer’s consent. This applies to both video and audio recordings in public settings.”

Pillay said in his professional experience, video evidence had been pivotal in challenging unlawful detentions and securing damages.

“It shifts the burden from ‘he said, she said’ to verifiable fact. I have encountered cases where individuals were arrested or assaulted for filming police. In several instances, video footage was instrumental in challenging the legality of the arrest and securing damages. These cases reinforce the importance of public awareness and legal clarity.

“Ultimately, the act of recording police is not antagonistic, it is protective. It is a lawful tool that promotes transparency and accountability in policing. Officers must be trained to respect this right, and civilians must be informed of how to exercise it responsibly.”

- Yolanda Akram, an attorney, said recording police officers in the execution of their public duties was not unlawful in South Africa, provided it does not interfere with their operations. 

“The right to record is rooted in the constitutional rights to freedom of expression, access to information, and the promotion of transparency in public service. South Africans should absolutely be allowed to record law enforcement officers during public interactions such as roadblocks, stop and searches, or arrests, especially when done from a safe distance and without obstructing the process. 

“These recordings often serve as vital evidence in cases involving alleged misconduct, unlawful arrest, assault, or abuse of power. I have seen cases where footage from civilians was the only evidence available to challenge false narratives or expose brutality.

“That said, context is important. Recording should not occur in a way that jeopardises an ongoing investigation, exposes undercover officers, or violates the privacy rights of third parties, particularly in sensitive environments like police stations or courtrooms without prior consent.”

- Advocate Tseliso Thipanyane, a member of the Active Citizens Movement, said the civil society organisation supported the judgment as it affirmed the right of citizens to film and question the police. 

“It will go a long way in advancing accountability in the conduct of the police and help to combat costly civil claims against the South African Police Service. South Africans are entitled to record police officers as long as it is done in a non-obstructive manner and does not interfere with their lawful duties. This supports the public’s ability to hold police officers accountable, including through recording.”

- Gareth Newham, head of the Justice and Violence Prevention Programme at the Institute for Security Studies, said: “Given that police members are public officials, exercising public powers in the interest of the public, that they should expect and accept that they may be recorded while doing their duties. If they are acting within the law and adhering to their standing orders, they will have little to fear.”

He said there were a number of benefits to recording police officers, including that it enhanced police accountability. 

“It can also prevent police abuses such as brutality or corruption, and can enhance police legitimacy if such videos show police acting professionally. However, there are limitations such as when recording obstructs a police member from exercising their duties or at times that it would be inappropriate such as when they are off-duty, on lunch break, injured, or when the recording may be detrimental to a vulnerable person whom the police may be assisting, such as a child or an injured person. It would also be inappropriate for example to try and record police in a way that deliberately tries to make them look bad, or as part of a practical joke at the expense of the police.”

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