- Douglasdale PS under fire after video leaked to social media went viral.
- Blood brutally and forcibly drawn from screaming woman.
- JMPD Spokesperson and MMC of Public Safety claim legal right to draw blood forcibly under NRT Act .
- JMPD PO posts video on social media calling for all JMPD to stand together reinforcing the right of POs to draw blood forcibly.
- Top attorney, Tasso Anestidis, tells why it was unlawful to draw blood forcibly from the detained woman.
Since the June 8 weekend incident that took place at Douglasdale PS, involving the forceful drawing of blood from a detained woman (read full article here), there has been a thunderous roar, nation wide, concerning the alleged gross human rights violation evidenced in the video. However, not all have been empathetic with the detained woman’s distress. Many professionals from law and law enforcement have declared their disapproval of the detained woman’s hysteria and defended the POs as well as the “nurse’s” actions, at all costs. That includes leaving out a very important clause in the National Road Traffic Act No 93 of 1996 (linked) which stipulates the penalty for refusing blood or breathalyzer tests. The penalty is not that it is taken forcibly. The question is, are these professionals poorly trained or are they deliberately omitting information in a bid to justify their condemnable actions? As follows are statements and comments from five professionals in law and law enforcement regarding the legalities of the forceable blood draw.
The MMC of Public Safety, Michael Sun, authored a media release on 8 July in which he stated:
“It is critical to note that the law does permit a police officer to physically restrain a person who refuses to provide a blood sample for law enforcement purposes. ”Michael Sun, MMC Public Safety
Jacaranda FM’s, Martin Bester, interviewed their legal expert, Megan Harrington Johnson, live on his show, Breakfast with Martin Bester, on 9 July. Megan Harrington Johnson, too, states that the forceful extraction as well as the manner in which it was done is within the PO’s legal rights:
“I’ve seen the video and to be honest with you Martin, and the only concern that I really have concerning the video is that the nurse, if it is a registered nurse, does not appear to be wearing gloves. Aside from that I don’t actually foresee the victim, in inverted commas, succeeding in actual events. I think the police were within their rights to draw blood in the manner that they did in terms of the law.”Megan Harrington Johnson, HJW Attorneys
One unidentified JMPD PO took to social media in a video in which he asks why, if one is a responsible person, they would drink and drive. He then proceeds to inform the audience of an incident in which two JMPD officers who were killed in a DUI and states that there was no outcry from the public to arrest the driver and no attention. He then continues to state that the detained woman had allegedly failed a breathalyzer, for which there is evidence, and then refused to allow blood to be drawn. Further, he states the following:
“The CPA (linked) allows us to use minimum force. The attention here is drawn to female and male. The female and male is only applicable when searching is conducted. There was no searching an arrest was being affected there.”https://www.facebook.com/blackivorymagazinesa/videos/480663792733889/ originally obtained from SA Uncut
JMPD Spokesperson, James Minnaar is quoted by the SABC as saying:
“Section 37 of the CPA is clear to be able to restrain an individual for the drawing of a blood sample or a breath sample in the case of drunken driving. There will be an investigation to determine the level of force used, we don’t know what was the circumstances are. The resistance of the drawing of blood is not something new. It just so happens that this particular incident was captured on video.”JMPD Spokesperson, James Minnaar
However, SA top attorney, Tasso Anestides disagrees:
“In terms of section 65(9) of the National Road Traffic Act No 93 of 1996, no person shall refuse that a specimen of blood, or a specimen of breath, be taken of him or her. However, this does not give the SAPS the right to brutally violate a person’s constitutional rights and physically assault them in order for blood to be drawn from their bodies. The video is extremely concerning and depicts rather unsavory events which, I am certain, our legislature did not envisage or encourage when drafting section 65(9) of the Act.
Section 89 of the said Act prescribes that it is an offence to contravene or fail to comply with any provisions of the Act. As such, should the female civilian have refused to be subjected to blood tests, the SAPS should have advised her that such conduct constitutes an offence in terms of the Act and that she could be convicted of such an offence.
Finally, the manner in which the blood was drawn by the female “official” in the video is also of extreme concern. Quite clearly, the environment, procedure and apparatus used was unsanitary and this posed a significant health risk to the female civilian. As such, the shocking and appalling manner in which the blood was drawn from the female civilian was unlawful and this fact alone will jeopardise any possible case which the State had against the female civilian.”Tasso Anestidis, Senior Associate, Eversheds Sutherland
In short, the reason that the forcible blood drawing was unlawful and is not allowed for, by law, in cases of drinking and driving is that the NRTA states the penalty for refusing such blood tests. This means that Section 37 of CPA cannot be affected in drunk driving arrests as clause 89 of the NRTA states that the suspect will be found guilty of the offence automatically should the blood or breathalyzer test be refused. That is the penalty.
It is truly disturbing that South African laws of criminal procedure, especially in terms of Section 37, are being twisted and used to excuse the unlawful actions of JMPD during the incident in question. The statements made by our law enforcement officials, as well as so called legal experts, have painted a picture in which the law is being used against citizens instead of protecting them. The resultant perversion by omission is that it has been used to excuse the atrocities suffered by a South African citizen at the hands of the very people our tax money pays to protect us. All this whilst failing to communicate that there is a step beyond test refusal, as stipulated by law. That is a pretty important fact here. Why was that not communicated?
It is prudent that we are all aware of and familiariased with the ins and outs of the law as well as our rights in the face of so much disinformation, which it would seem, is propagated to disempower us, the citizens, in a country that is rife with corruption on every level.
The fact that the CPA has been quoted and used as permission to violently and mentally abuse a South African citizen could be deemed miscarriage of information and abuse of authority. Should one take the time to read the document, one would quickly ascertain that the section in question, although permitting in any arrest and for any crime, details crimes surrounding such procedures. Drunk driving is not listed. Neither are any other road violations and crimes. The crimes that are listed, however, includes murder, rape, human trafficking and crimes against children. That is because the NRTA specifies the procedures for road violations and crimes. The NRTA is the law of road violations and crimes. The CPA cannot override or cancel out the NRTA in this case.
It is extremely worrying that a woman, who has committed an alleged road offence, for which the entire procedure is outlined in the NRTA, is being treated with the same force that one would expect of a child rapist, as outline in the CPA.
The big question now surrounds the competency of our law enforcers and legal experts to carry out justice when their understanding of the law is clearly questionable. Or was that a deliberate omission of section 89?