Arrested Because of Your Accent, Language or Appearance? Understanding Discriminatory Policing

Imagine being stopped by the police because of how you speak, being questioned about your nationality because of your appearance, or being treated as suspicious simply because you speak a language associated with another country.

For some foreign nationals in South Africa, these experiences raise an important question: when does a legitimate police investigation become discriminatory policing?

Police officers have a responsibility to enforce the law and investigate suspected offences. However, their powers must be exercised lawfully. A person’s accent, language, nationality or physical appearance should not be used as a substitute for reasonable grounds to suspect wrongdoing.

South Africa’s Constitution protects everyone against unfair discrimination and arbitrary deprivation of freedom. These protections apply to foreign nationals as well as South African citizens.

1. Can Police Stop or Question You Because of Your Accent?

Police officers may ask questions when performing their lawful duties. They may also investigate information that gives them reasonable grounds to suspect that an offence has been committed.

However, speaking with a foreign accent does not establish that a person has committed an offence or is unlawfully present in South Africa.

For example, an officer may hear someone speaking a language associated with another country and ask about their nationality. A question alone does not necessarily amount to unlawful conduct. The concern arises when a person is unfairly targeted, subjected to intrusive treatment or deprived of their freedom without an adequate legal basis because of their accent or perceived nationality.

The circumstances matter. An officer must be able to justify the action taken under the applicable law, rather than treating a person’s manner of speaking as proof of wrongdoing.

2. What Does the Constitution Say About Discriminatory Policing?

Section 9 of the Constitution protects the right to equality. It prohibits unfair discrimination by the state and by other persons on specified grounds, including race, ethnic or social origin, colour and language.

Section 10 protects everyone’s inherent dignity. Section 12 protects everyone against arbitrary deprivation of freedom and other forms of unlawful treatment.

These rights are particularly important when a person is stopped, searched, questioned or arrested by a police officer.

An accent is not separately listed as a protected ground in section 9. However, treating someone unfairly because of their accent may raise concerns about discrimination based on language, ethnic origin or another protected ground, depending on the facts.

Likewise, appearance is not automatically proof of discrimination. The legal question is whether the person’s treatment was unfair and whether it was connected to a protected ground or otherwise unlawful.

Being a foreign national does not mean that you lose your constitutional rights.

3. Can Police Arrest You Because They Believe You Are a Foreign National?

No. A belief that someone is a foreign national is not, by itself, sufficient to justify a criminal arrest.

Section 40 of the Criminal Procedure Act 51 of 1977 sets out circumstances in which a peace officer may arrest a person without a warrant. Under section 40(1)(b), for example, an officer may arrest a person whom they reasonably suspect of having committed an offence listed in Schedule 1.

The requirements for a lawful arrest must be satisfied. The suspicion must have reasonable grounds, assessed objectively in light of the information available to the officer at the time.

An officer cannot simply assume that a person has committed an offence because they speak a particular language, look foreign or cannot immediately provide an explanation that satisfies the officer.

Immigration checks are governed by separate provisions of the Immigration Act 13 of 2002. Section 41 allows police officers and immigration officers to request identification and, where the statutory requirements are met, take a person into custody for verification of their immigration status.

However, the fact that an officer may conduct a lawful immigration check does not mean that every arrest or detention arising from that check is lawful.

4. What If Police Demand Your Passport or Immigration Documents?

Police officers and immigration officials may request identification and investigate immigration status within the powers granted to them by law.

Under section 41 of the Immigration Act, a person may be asked to identify themselves as a South African citizen, permanent resident or foreign national. Where an officer has reasonable grounds to be unsatisfied that the person is entitled to be in South Africa, the officer may question them about their identity or status and take the steps permitted by the Act.

However, a person should not automatically be treated as unlawfully present simply because they cannot produce a passport or visa immediately.

If you have your documents, provide accurate information and cooperate with lawful instructions. If your documents are not available, explain the situation calmly and provide details that may assist with verification.

If you believe that you are being targeted because of your language, accent or appearance rather than any genuine immigration concern, make a note of what happened when it is safe to do so. The context of the interaction may be important if the conduct is later challenged.

5. What If You Are Searched, Insulted or Threatened Because of Your Nationality?

Police officers must exercise their powers within the law and respect people’s constitutional rights.

A search must have a lawful basis. An officer’s suspicion that someone is foreign does not automatically authorise an unlawful search of their body, vehicle or belongings.

Similarly, insulting or threatening someone because of their perceived nationality, language or ethnic origin may raise concerns about discriminatory treatment, harassment or other unlawful conduct, depending on the circumstances.

If you experience such treatment, try to remain calm and avoid physical confrontation. Where possible, record the date, location, the officers’ identifying details and what was said or done. Preserve the names of witnesses and any available video footage or other evidence.

Do not put yourself in danger to collect evidence. If you have been assaulted or injured, seek medical attention and keep relevant medical records.

6. What Should You Do If You Are Arrested?

If police arrest you, ask calmly why you are being arrested. You should be informed of the reason for your arrest and of the relevant rights that apply.

Section 35 of the Constitution protects people who are arrested, detained or accused of offences. Depending on the circumstances, these protections include the right to remain silent, the right to consult a legal practitioner and the right to be brought before a court within the constitutionally prescribed period.

If immigration status is also being investigated, establish whether you are being held for a criminal matter, immigration verification or detention pending deportation. Different legal requirements apply to these processes.

Do not physically resist an arrest. If you believe the arrest is unlawful or discriminatory, seek legal assistance as soon as possible so that the circumstances can be properly assessed.

7. How Can You Challenge Discriminatory Policing?

If you believe that you were targeted because of your accent, language, appearance or perceived nationality, you may be able to pursue a complaint or legal remedy. The appropriate option depends on what happened and what evidence is available.

Consider taking the following steps:

* Write down the details. Record when and where the incident happened and what led to the police interaction.

* Preserve evidence. Keep any messages, photographs, videos, medical records or documents relevant to the incident.

* Identify witnesses. Record the contact details of anyone who saw or heard what happened.

* Seek legal advice. An attorney can assess whether the conduct may amount to unfair discrimination, unlawful search, assault, unlawful arrest or detention.

* Consider a formal complaint. Depending on the circumstances, a complaint may be made to the South African Police Service or the Independent Police Investigative Directorate (IPID), particularly where the conduct falls within IPID’s statutory mandate.

* Explore further legal remedies. Depending on the facts, a person may be able to approach a court or another appropriate institution for relief.

Not every unpleasant interaction will meet the legal test for unfair discrimination or unlawful arrest. A proper assessment must consider the conduct, the reason for it, the legal authority relied upon and the available evidence.

Conclusion

Police officers have an important role in protecting the public and enforcing South African law. However, law enforcement must be based on lawful grounds rather than stereotypes about how people speak, look or sound.

An accent is not proof of criminal conduct. Appearance alone does not establish immigration status. A person’s perceived nationality does not remove their right to dignity, equality and protection against arbitrary deprivation of freedom.

If you believe you were unfairly targeted, searched, arrested or detained because of your language, accent or appearance, document what happened and seek legal advice. The facts of the incident will determine whether the conduct was unlawful and what remedies may be available.