THE BEGINNING OF FIRST AMENDEMENT AUDITS: Jacobs v Minister of Police and Others (2021/6576) [2025] ZAGPJHC 722
- chrisdikane
- Aug 24, 2025
- 4 min read
Given the rise in police shootings and the outright brutalisation of citizens by law enforcement in America, I recently came across a type of content known as “First Amendment Audits.” This trend originated in the United States, where citizens record their interactions with law enforcement — particularly the police — to document how officers exercise their powers.
The idea is that they “audit” police conduct by pointing out the correct processes and procedures officers are legally required to follow in performing their duties. It is striking — and at times alarming — to realise that the very individuals tasked with serving, protecting, and upholding the law often lack a clear understanding of that law, or of how to enforce it without violating individual rights.
Americans have increasingly embraced these audits, exposing misconduct and holding police publicly accountable. I believe that, following the recent judgment in Jacobs v Minister of Police, South African citizens may begin adopting a similar approach with our metro police.
This blog post focuses on the Jacobs v Minister of Police decision and explores how it could mark the start of greater accountability for law enforcement in South Africa, particularly through the public recording of police exercising their powers.
As with my previous case discussions, this judgment will be unpacked using the IRAC method. If you know, you know — and if you don’t, feel free to email me for more information.
Facts of the Case
On 1 March 2019 Shaun Jacobs returned home around 20H00 to find a metro police roadblock directly outside his driveway.
He approached the officers to request relocation of the roadblock and was ignored, then went inside to fetch his cellphone and video the scene for a complaint with authorities.
When Jacobs began recording, the third defendant officer arrested him without explanation, handcuffed him tightly and transported him to Edenvale police station.
He remained detained for approximately 26 hours in overcrowded, unsanitary cells before being released on R1 000 bail the next day.
The charges of crimen injuria (insulting dignity) and interfering with police duties were withdrawn by the prosecutor after Jacobs submitted his video recording and representations.
3. Key Legal Issues
Whether Jacobs’s videotaping constituted wilful obstruction of a peace officer under section 40 of the Criminal Procedure Act.
Whether his warrantless arrest complied with procedural fairness and substantive justification requirements.
Whether detention flowing from an unlawful arrest was itself lawful.
Whether laying charges for crimen injuria and obstruction amounted to defamation (the wrongful and intentional publication of a statement harming one’s reputation).
5. Analysis of How the Court Applied the Law to the Facts
The court held that Jacobs’s conduct in recording the roadblock did not constitute interference or obstruction, as questioning officers and gathering evidence is a lawful exercise of rights.
Because no offence was committed in the officer’s presence, the arrest without warrant failed the substantive‐justification and procedural‐fairness tests under section 40 and was therefore unlawful.
Detention for some 26 hours in deplorable conditions, following an unlawful arrest, breached Jacobs’s constitutional right to freedom and security of the person under section 12.
On defamation, statements to the police station aimed at initiating an investigation were held to be privileged communications, not defamatory publications to a wider audience, leading to dismissal of that claim.
6. Conclusion Reached by the Court
The Minister of Police (first defendant) was ordered to pay Jacobs R100 000 and the Ekurhuleni Metropolitan Municipality (second defendant) R150 000 as solatium for unlawful arrest and detention.
The first and second defendants were jointly and severally liable for costs, including counsel on scale C.
Jacobs’s claims against the third and fourth defendants, including defamation, were dismissed with costs.
7. Potential for “First Amendment”-Style Audits in South Africa
This judgment not only vindicates the right to record law-enforcement officers in public spaces but also lays the groundwork for a South African equivalent of the “First Amendment audits” familiar from the United States. By affirming that:
filming police at a lawful roadblock is a protected exercise of constitutional rights (sections 16 and 12 of the Bill of Rights);
questions and recordings do not, in themselves, constitute obstruction under section 40 of the Criminal Procedure Act; and
an unlawful arrest for mere videorecording attracts substantial solatium,
the High Court has signalled that citizens may confidently use their cameras as tools of accountability.
Key ways this judgment can spur citizen audits:
Legal Precedent for Public Recording – Individuals can rely on Jacobs v Minister of Police when challenged or arrested for filming officers in public, reinforcing that recording is a lawful, non-obstructive activity.
Encouragement of Structured Oversight – Civil-society organisations and human-rights groups can organise training on how to conduct respectful, non-confrontational audits of public policing, mirroring American audit principles but within South African statutory and constitutional parameters.
Deterrent Effect on Misconduct – Widespread, visible use of cameras may deter arbitrary arrests and poor treatment, knowing that unlawful conduct may now expose authorities to five- or six-figure solatium awards.
Policy and Protocol Revisions – Police services may be prompted to revise standard operating procedures to instruct officers on how to interact lawfully with members of the public who record them, reducing friction and potential litigation.
Judicial Refinement – Future cases can further clarify the fine line between inquiry/recording and obstruction, creating a body of jurisprudence that defines best practices for both citizens and police.
In sum, Jacobs v Minister of Police can serve as the legal cornerstone for a home-grown audit movement. By turning smartphones into instruments of constitutional enforcement, South African citizens can promote transparency, check power, and reinforce the primacy of fundamental freedoms—just as American auditors do under the First Amendment
DISCLAIMEER: THIS IS MERELY AN INFORMAL LEGAL OPPION REGARDING A WRITTEN CASE JUDGGMENT. THIS IS NOT AUTHORTY FOR HOW THE APPLICATION OF THE RELEVENT LEGAL PRICNIPLES AND STATUTES ARE APPLIED. THESE TOPICS ARE A PRODUCT OF IDEAS GENERATED IN MY MIND WHICH ARE FORMULATED BY CURIOSITY OR INTEREST IN THE THEMES OF THE CASE. THIS DOES NOT SERVE AS LEGAL ADVISE.
Judgment written by TWALA J in the High Court of South Africa, Gauteng Division
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