Home1 Introduction The search of one’s home, person or vehicle with or without a warrant may, depending on the circumstances, constitute a violation of the right to privacy. Our courts determine whether state action (police conduct) constitutes a violation of a complainant’s right to privacy or any other right by applying two tests. First, the courts must determine the scope of the right to privacy and consider whether the police conduct breached the complainant’s right to privacy; if not, that would be the end of the matter. However, if the police conduct did breach the complainant’s right to privacy, the courts would continue with the second test. The second test determines whether the police conduct is justified because they, for example, acted in terms of the provisions of the Criminal Procedure Act 51 of 1977 (as amended). This second test is referred to as the limitations analysis under s 36 of the Constitution. If the police conduct cannot be justified in terms of s 36 because the police officer, for example, exceeded the powers granted to him or her in terms of the Criminal Procedure Act, the complainant would have succeeded in establishing that his or her right to privacy has been violated. (Section 36 is included in the appendices at the end of this book.) Search, seizure, and matters related thereto are regulated by Chapter 2 (s 19 and sections that follow) of the Criminal Procedure Act. The Criminal Procedure Act embodies the general provisions with regard to searching; specific provisions are contained in many other acts. It is impossible to refer to all these acts. Section 19 of the Criminal Procedure Act states explicitly that Chapter 2 of the Act shall not derogate from any power conferred by any other Act to enter any premises or to search any person, container or premises or to seize any matter, to declare any matter forfeited or to dispose of any matter. 2 The scope and content of the right to privacy The right to privacy seeks to protect the right not to have one’s person or home searched, one’s property searched, one’s possessions seized, or the privacy of one’s communications infringed. The scope of the right to privacy is determined by the concept of a ‘legitimate expectation of privacy’ (Bernstein v Bester 1996 (2) SA 751 (CC) at [75]). Our courts do not define the right to privacy; instead, they apply the notion of a ‘spectrum’ of privacy protection, consisting of a small circle, followed by a number of bigger circles surrounding the central circle. The small central circle represents the intimate core of privacy, relating to, for example, what one does in one’s bedroom, and wider circles beyond this central core represent social interactions of a less private nature such as, for example, travelling in public transport. Interferences with the central core may only be justified in exceptional circumstances, whereas interferences with the outer circles, which are far removed from the centre of privacy, are less demanding to defend (Minister of Police v Kunjana 2016 (2) SACR 473 (CC) [2016] ZACC 21 at [17]). In other words, the more a search and seizure interferes with the central core of privacy, the more challenging it will be to justify such interference. Privacy is also intrinsically linked to human dignity, which constitutes one of the most significant values our constitution seeks to uphold (Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors Page 192 (Pty) Ltd 2001 (1) SA 545 (CC) at [18]; Thint (Pty) Ltd v National Director of Public Prosecutions 2008 (2) SACR 421 (CC) [2008] ZACC 13 at [77]). 3 Articles that are susceptible to seizure The Criminal Procedure Act confers powers to search only where the object of the search is to find a certain person or to seize an article which falls into one of three classes of articles, including documents, which may be seized by the state in terms of the provisions of the Criminal Procedure Act. These are— (1) articles which are concerned in or are on reasonable grounds believed to be concerned in the commission or suspected commission of an offence, whether within the Republic or elsewhere—s 20(a); (2) articles which may afford evidence of the commission or suspected commission of an offence, whether within the Republic or elsewhere—s 20(b); or (3) articles which are intended to be used or are on reasonable grounds believed to be intended to be used in the commission of an offence—s 20(c). Under normal circumstances an article or document falling into one of the abovementioned categories may be seized by the state. The only exceptions relate to documents which are privileged and in respect of which the holder of the privilege has not yet relinquished his or her privilege. An example of this would be where the document consists of a communication between an attorney and his or her client. Such a document is subject to legal professional privilege and may not be handed in to the court without the consent of the client. If the state had the power to seize such a document the whole object of the privilege would be defeated. In Prinsloo v Newman 1975 (1) SA 481 (A) at 493F–G and SASOL III (Edms) Bpk v Minister van Wet en Orde 1991 (3) SA 766 (T) it was accordingly held that such a document may not be seized. 4 Search in terms of a search warrant 4.1 General rule Searches and seizures should, whenever possible, be conducted only in terms of a search warrant, issued by a judicial officer such as a magistrate or judge—cf the wording of s 21(1). This will ensure that an independent judicial officer stands between the citizen and the law enforcement official (police official)—Park-Ross v Director: Office for Serious Economic Offences 1995 (2) SA 148 (C) at 172. For this reason the provisions governing the issue of search warrants require that the judicial officer must himself or herself decide whether or not there are ‘reasonable grounds’ for the search. 4.2 The discretion of a judicial officer to issue a warrant In deciding whether there are reasonable grounds for the search, the judicial officer exercises a discretion similar to the discretion he or she exercises in granting bail, remanding a case or sentencing an accused, and so forth. This discretion must be exercised in a judicial manner. This simply means that the judicial officer must exercise the discretion in a reasonable and regular manner, in accordance Page 193 with the law and while taking all relevant facts into account—Minister of Safety and Security v Van der Merwe 2011 (5) SA 61 (CC). Before issuing a search warrant the judicial officer must therefore decide whether the article that will be searched for is one which may be seized in terms of s 20 and whether it appears from the affidavit that there are reasonable grounds to believe that the article is present at a particular place (Minister of Safety and Security v Van der Merwe, above). As far as the concept of ‘reasonable grounds’ is concerned, see the discussion of the requirement of reasonableness in Chapter 6. Government action is required to be objectively and demonstrably reasonable. This laudable principle was unfortunately undermined by the decision in Divisional Commissioner of SA Police, Witwatersrand Area v SA Associated Newspapers 1966 (2) SA 503 (A), where it was held that the merits of the decision by a justice of the peace, that there are objective grounds upon which a warrant may be issued, may not be contested in court (contrary to where a search without a warrant is conducted by the police). The decision to issue a search warrant may, in terms of this decision, be set aside only on administrative grounds (such as mala fides on the part of the judicial officer) and not on the merits. This decision was quoted with approval in Cresto Machines v Die Afdeling-Speuroffisier SA Polisie, Noord-Transvaal 1972 (1) SA 376 (A) 396; cf further Cine Films (Pty) Ltd v Commissioner of Police 1971 (4) SA 574 (W) 581. Mogoeng CJ, in Minister of Safety and Security v Van der Merwe 2011 (5) SA 61 (CC), held (at [55]) that a judicial officer must ensure that the following prerequisites are complied with before authorising a warrant: (a) the warrant must mention the statutory provision in terms of which it is authorised; (b) it must identify the searcher; (c) it must clearly describe the scope of the powers granted to the searcher; (d) it must identify the person, container or premises to be searched; (e) it must clearly describe the article to be searched for and seized; (f) it must mention the offence being investigated; (g) it must state the name of the person being investigated. 4.3 General search warrants The procedure with regard to search warrants is governed by s 21. Subsection (1) provides that, subject to ss 22, 24 and 25 (see below), an article referred to in s 20 shall be seized only by virtue of a search warrant issued— (a) by a magistrate or justice, if it appears to such magistrate or justice from information on oath that there are reasonable grounds for believing that any such article is in the possession or under the control of any person, or upon or at any premises within his area of jurisdiction; or (b) by a judge or judicial officer presiding at criminal proceedings, if it appears to such judge or judicial officer that any such article in the possession or under the control of any person or upon or at any premises is required in evidence at such proceedings. Page 194 Section 21(2) stipulates that a warrant must direct a police official to seize the article in question and must to that end authorise such police official to search any person identified in the warrant, or to enter and search any premises identified in the warrant and to search any person found on or at such premises. See also Extra Dimension v Kruger NO 2004 (2) SACR 493 (T). In Minister of Safety and Security v Van der Merwe 2011 (5) SA 61 (CC) at [56] Mogoeng CJ set out the following guidelines that our courts must take into account when assessing the validity of search and seizure warrants. These are whether— (a) the person who authorised a warrant has authority to do so; (b) the person (mentioned in (a)) has jurisdiction to authorise a warrant; (c) the affidavit contains information regarding the existence of the jurisdictional facts (meaning a reasonable suspicion that a crime has been committed and reasonable grounds to believe that objects connected to crime may be found on the premises); (d) the scope (boundaries) of the search that must be conducted are clear and not overbroad or vague; (e) the searched person’s constitutional rights are not unnecessarily interfered with. Mogoeng CJ also mentioned that the terms of a warrant must be strictly interpreted, in order to protect the searched person against excessive interference by the state (Van der Merwe above at [56]; also Thint (Pty) Ltd v National Director of Public Prosecutions; Zuma v National Director of Public Prosecutions 2008 (2) SACR 421 (CC)). The decision in Goqwana v Minister of Safety and Security 2016 (1) SACR 384 (SCA) explained the importance of the prerequisites and guidelines mentioned in the Van der Merwe case above, by highlighting three important points: first, the reason why the identity of the searcher must be mentioned in a warrant is to ensure accountability in case the searcher abuses his or her power (at [25]; secondly, where the search is in connection with a statutory offence, as opposed to a common-law offence, the relevant statute and section must be mentioned, in order to enable both the searcher and the searched person to know exactly what the warrant has been authorised for (at [29]); and thirdly, the affidavit in support of the warrant should accompany the warrant and should be handed to the searched person in case he or she wants to challenge the validity of the warrant (at [31]). Even though s 21 does not require that the suspected offence be set out in the warrant, it is desirable to do so in order to facilitate the interpretation of the warrant— Minister of Safety and Security v Van der Merwe above at [56]. The powers conferred by s 21 constitute grave infringements of the privacy of the individual. To limit this infringement, s 21(3)(a) provides that a search warrant must be executed (ie acted upon) by day, unless the judicial officer who issues it gives written authorisation for it to be executed by night. A warrant may be issued and be executed on a Sunday, as on any other day, and remains in force until it is executed or is cancelled by the person who issued it or, if such person is not available, by a person with like authority—s 21(3)(b). Page 195 4.4 Warrants to maintain internal security and law and order 4.4.1 Background In Wolpe v Officer Commanding South African Police, Johannesburg 1955 (2) SA 87 (W) members of the police entered a hall in which a conference was being held by the ‘South African Congress of Democrats’ in co-operation with other organisations. The chairman requested the police to leave the meeting and explained that it was a private meeting. The police refused to do so. Members of the Congress of Democrats thereupon brought an urgent application to the court for an interdict prohibiting the police from attending the meeting. They argued that the police do not have greater powers than any other individual, except in so far as they are vested with wider powers by statute. The application was refused. Rumpff J held that the basic duties of the police are not confined to those mentioned in statutes. The basic duties of the police flow from the nature of the police as a civil force in the state. According to him it was not the intention of the legislature by s 7 of the (previous) Police Act to revoke the basic duties of the police and to supplant them with statutory duties. The judge dealt fully with the duties of the police and came to the conclusion that if there were a suspicion that as a result of the holding of a meeting, a disturbance of public order would occur on the same day, the police are entitled to attend the meeting in order to prevent a disturbance of order, even though the meeting was private. If the police had reasonable grounds for suspecting that seditious speeches would be made at such meeting, and that their presence would prevent them from being made, it would be a reasonable exercise of their duty for the police to attend the meeting, notwithstanding the fact that there would be no immediate disturbance of the peace. According to Rumpff J the liberty of the individual must in such circumstances give way to the interests of the state. He suggested, however, that the legislature should define the duties and powers of the police in connection with the combating of what the state from time to time considered to be dangerous. This eventually led to the inclusion of s 25 in the current Criminal Procedure Act. 4.4.2 Warrant in terms of s 25 Section 25(1) stipulates that if it appears to a magistrate or justice from information on oath that there are reasonable grounds for believing— (a) that the internal security of the Republic or the maintenance of law and order is likely to be endangered by or in consequence of any meeting which is being held or is to be held in or upon any premises within his area of jurisdiction; or (b) that an offence has been or is being or is likely to be committed or that preparations or arrangements for the commission of any offence are being or are likely to be made in or upon any premises within his area of jurisdiction, he may issue a warrant authorising a police official to enter the premises in question at any reasonable time for the purpose— (i) of carrying out such investigations and of taking such steps as such police official may consider necessary for the preservation of the internal security of Page 196 the Republic or for the maintenance of law and order or for the prevention of any offence; (ii) of searching the premises or any person in or upon the premises for any article referred to in s 20 and which such police official on reasonable grounds suspects to be in or upon or at the premises or upon such person; and (iii) of seizing any such article. A warrant under sub-s (1) may be issued on any day and shall remain in force until it is executed or is cancelled by the person who issued it or, if such person is not available, by a person with like authority—sub-s (2). A warrant issued in terms of s 25(1)(i) confers wide powers on the police. The fact that a police official who acts in terms thereof may take any steps that he or she ‘may consider necessary’ for the preservation of the internal security of the Republic or for the maintenance of law and order or for the prevention of any offence means that the police official’s discretion in this respect will have to be considered subjectively. The question will therefore not be whether the steps the police officer took were really necessary, but whether such officer subjectively thought that he or she had reason to believe that they were necessary. Moreover, this provision sets no legal boundaries within which such discretion powers may be exercised, thus leaving ample room for the abuse of power (see Minister of Police and Others v Kunjana 2016 (2) SACR 473 (CC)). 4.5 General information requirements with regard to warrants When law enforcement officials act in terms of a warrant, it is desirable that the subject involved has access to the document which authorises an infringement upon his or her private rights. The effective execution of legal remedies, such as an interdict, mandament van spolie, or even the institution of the rei vindicatio, is to a large extent dependent on this (see Tsegeya v Minister of Police (unreported, Mthatha High Court case no 2746/2018 21 August 2018). Section 21(4) therefore stipulates that a police official who executes a warrant in terms of ss 21 or 25 must, once the warrant has been executed and upon the request of any person whose rights are affected by the search or seizure of an object in terms of the warrant, provide such a person with a copy of the warrant (see Goqwana v Minister of Safety and Security, above, which goes even further by requiring that the supporting affidavit to the warrant be handed to the person whose property forms the subject of the search). We are of the opinion that two objections may be raised against this subsection, which is laudable in other respects. In the first place a copy of the warrant should, whenever possible (ie if the subject is present at the time of the execution of the warrant), be provided before the search and/or seizure. Secondly, the delivery of a copy of the warrant should not be dependent on the request of the subject. Many subjects, through lack of knowledge of the law, will not make such a request and thus act to their potential detriment. Page 197 5 Search without a warrant 5.1 Introduction Although it is preferable, as mentioned above, that searches should only be conducted on the authority of a search warrant issued by a judicial officer, it is quite conceivable that circumstances may arise where the delay in obtaining such warrant would defeat the object of the search. It is therefore necessary that provision be made for the power to conduct a search without a warrant. However, police officials intending to conduct a search and seizure should always be conscious of the cautionary remark made by Madlala J in Minister of Police v Kunjana 2016 (2) SACR 473 (CC) at [27]: It should not be forgotten that exceptions to the warrant requirement should not become the rule. While search warrants empower only police officials to conduct searches and to seize objects, both private persons and police officials are empowered to conduct searches or to seize objects without a warrant. 5.2 Powers of the police 5.2.1 Consent to search and/or to seize In terms of s 22(a) a police official may search any person, container or premises for the purpose of seizing any article referred to in s 20, if the person concerned consents to the search for and the seizure of the article in question, or if the person who may consent to the search of the container or premises consents to such search and the seizure of the article in question. 5.2.2 Search and seizure where a delay would defeat the object thereof In terms of s 22(a) a police official may search any person, container or premises for the purpose of seizing any article referred to in s 20, if the police official believes on reasonable grounds that— (1) a search warrant will be issued to him or her under s 21(1)(a) if he or she applies for such warrant; and (2) the delay in obtaining such warrant would defeat the object of the search. The belief of the police official must be objectively justified on the facts—NDPP v Starplex 47 CC [2008] 4 All SA 275 (C). Section 25(3) allows a police official to act without a warrant if he or she believes on reasonable grounds that— (1) a warrant will be issued to him or her under s 25(1)(a) or (b) if he applies for such warrant; and (2) the delay in obtaining such warrant would defeat the object thereof. A police official’s powers in terms of s 25(3) are the same as the powers he or she would have had by virtue of a warrant (cf (i) to (iii) above and NDPP v Starplex 47 CC above. In Starplex a search warrant was issued to search certain premises under s 33(5) of the Immigration Act, on the grounds that information had been received that a group of foreign nationals issued false documents and permits. During the search a significant amount of foreign currency was discovered and Page 198 consequently seized. The seizure of the money was challenged on the ground that the search warrant did not authorise its seizure. The court rejected this contention on the basis that suspects could quickly hide away the money from the authorities in order to prevent its seizure, and the money was reasonably suspected as being illegal foreign currency. Expecting the police to obtain a new warrant under those circumstances would defeat the object of the search. In the result, the court held that the money was lawfully seized in terms of s 22(2).) 5.2.3 Search and seizure for the purposes of border control Section 13(6) of the South African Police Service Act 68 of 1995 empowers a police official, for the purposes of border control or to control the import or export of any goods, to search without a warrant any person, premises, other place, vehicle, vessel, ship, aircraft or any receptacle of whatever nature, at any place in the Republic within ten kilometres or any reasonable distance from any border between the Republic and any foreign state, or from any airport or at any place in the territorial waters of the Republic or inside the Republic within ten kilometres from such territorial waters, and to seize anything found upon such person or upon or at or in such premises, other place, vehicle, vessel, ship, aircraft or receptacle which may lawfully be seized. 5.2.4 Search and seizure in a cordoned-off area The National or a Provincial Commissioner of the South African Police Service may, in terms of s 13(7) of the South African Police Service Act 68 of 1995, where it is reasonable in the circumstances in order to restore public order or to ensure the safety of the public in a particular area, authorise that the particular area or any part thereof be cordoned off. This is done by issuing a written authorisation which must also set out the purpose of the cordoning off. Any member of the Service may, in order to achieve the purpose set out in the authorisation, without a warrant, search any person, premises, vehicle or any receptacle or object of whatever nature in that area and seize any article referred to in s 20 of the Criminal Procedure Act found by him or her upon such person or in that area: provided that a member executing a search in terms of s 13(7) must, upon demand of any person whose rights are or have been affected by the search or seizure, exhibit to him or her a copy of the written authorisation by such commissioner. 5.2.5 Search and seizure at a roadblock or checkpoint The National or a Provincial Commissioner of the South African Police Service may, in terms of s 13(8) of the South African Police Service Act 68 of 1995, where it is reasonable in the circumstances in order to exercise a power or perform a function of the Service, in writing authorise a member under his or her command to set up a roadblock or roadblocks on any public road in a particular area or to set up a checkpoint or checkpoints at any public place in a particular area. Any member of the Service may, without a warrant, search any vehicle and any person in or on such vehicle at such a roadblock or checkpoint and seize any article referred to in s 20 of the Criminal Procedure Act found by him or her upon such person or in or on such vehicle. A member executing a search in terms of s 13(8) Page 199 must, upon demand by any person whose rights are or have been affected by the search or seizure, exhibit to him or her a copy of the written authorisation by such commissioner. Section 13(8)(d) authorises any member of the Service to set up a roadblock on a public road without a written authorisation in certain specified circumstances where the delay in obtaining a written authorisation would defeat the object of the setting up of the roadblock. 5.2.6 Search and seizure in terms of the Drugs and Drug Trafficking Act 140 of 1992 Search for and seizure of substances in terms of the Drug and Drug Trafficking Act was, until recently, controlled by s 11 of the Act. Prior to the declaration of constitutional invalidity in Minister of Police v Kunjana 2016 (2) SACR 473 (CC), s 11(1) of the Act read as follows: (1) A police official may— (a) if he has reasonable grounds to suspect that an offence under this Act has been or is about to be committed by means or in respect of any scheduled substance, drug or property, at any time— (i) enter or board and search any premises, vehicle, vessel or aircraft on or in which any such substance, drug or property is suspected to be found; (ii) search any container or other thing in which any such substance, drug or property is suspected to be found; (b) if he has reasonable grounds to suspect that any person has committed or is about to commit an offence under this Act by means or in respect of any scheduled substance, drug or property, search or cause to be searched any such person or anything in his possession or custody or under his control: Provided that a woman shall be searched by a woman only; (c) if he has reasonable grounds to suspect that any article which has been or is being transmitted through the post contains any scheduled substance, drug or property by means or in respect of which an offence under this Act has been committed, notwithstanding anything to the contrary in any law contained, intercept or cause to be intercepted either during transit or otherwise any such article, and open and examine it in the presence of any suitable person; (d) question any person who in his opinion may be capable of furnishing any information as to any offence or alleged offence under this Act; (e) subject to s 15 of the Regulation of Interception of Communications and Provision of Communication-related Information Act, 2002, require from any person who has in his or her possession or custody or under his or her control any register, record or other document which in the opinion of the police official may have a bearing on any offence or alleged offence under this Act, to deliver to him or her then and there, or to submit to him or her at such time and place as may be determined by the police official, any such register, record or document; (f) examine any such register, record or document or make an extract therefrom or a copy thereof, and require from any person an explanation of an entry in any such register, record or document; (g) seize anything which in his opinion is connected with, or may provide proof of, a contravention of a provision of this Act. The constitutional validity of the entire s 11 was challenged by the applicant in Kunjana v Minister of Police [2015] ZAWCHC 198 (High Court judgment). On consideration the High Court, per Veldhuizen J, concluded that the application directed at the entire s 11 was too broad and restricted the relief to s 11(1)(a) and (g). The High Court declared the provisions invalid and the matter was placed before Page 200 the Constitutional Court for confirmation of the order of invalidity (Minister of Police v Kunjana 2016 (2) SACR 473 (CC). The Constitutional Court applied the limitation clause to s 11(1)(a) and (g). On consideration of the nature and extent of the limitation the court remarked: The impugned provisions are broad. Section 11(1)(a) and (g) of the Drugs Act does not circumscribe the time, place nor manner in which the searches and seizures can be conducted. . . (at [21]). Further, section 11(1)(a) grants police officers the power to search warrantless at ‘any time’ ‘any premises, vehicle, vessel or aircraft’ and ‘any container’ in which substances or drugs are suspected to be found (at [22]). I agree with the applicants’ contention that the impugned provisions leave police officials without sufficient guidelines with which to conduct the inspection within legal limits (at [23]). The court next considered whether there are less restrictive means to achieve the purpose of s 11(1)(a) and (g) and reasoned that— [s]ection 11(1)(a) implies that warrantless searches of private homes may be conducted pursuant to it. The more a search intrudes into the ‘inner sanctum’ of a person (such as their home) the more the search infringes their privacy right. The provisions are also problematic as they do not preclude the possibility of a greater limitation of the right to privacy than is necessitated by the circumstances, with the result that police officials may intrude in instances where an individual’s reasonable expectation of privacy is at its apex. The court contended that constitutionally adequate safeguards must exist to justify circumstances in which legislation allows for warrantless searches. These safeguards are clearly provided by s 22 of the Criminal Procedure Act, which provides less restrictive means to restrict the right to privacy during search and seizure procedures. The Constitutional Court accordingly confirmed the constitutional invalidity of ss 11(1)(a) and (g). Warrantless search and seizure should not be a norm of criminal procedure, which is confirmed by the various court interventions in, for example, the Customs and Excise Act 91 of 1964, Estate Agency Affairs Act 112 of 1976 and Financial Intelligence Centre Act 38 of 2001, wherein the validity of warrantless search and seizure provisions were challenged (see also Estate Agency Affairs Board v Auction Alliance (Pty) Ltd 2014 (3) SA 106 (CC) and Gaertner v Minister of Finance 2014 (1) SA 442 (CC)). Search and seizure under the provisions of a warrant should form the basis of any such action because— [a] warrant is not a mere formality. It is a mechanism employed to balance an individual’s right to privacy with the public interest in compliance with and enforcement of regulatory provisions. A warrant guarantees that the State must be able, prior to an intrusion, to justify and support intrusions upon individuals’ privacy under oath before a judicial officer. Further, it governs the time, place and scope of the search. This softens the intrusion on the right to privacy, guides the conduct of the inspection, and informs the individual of the legality and limits of the search. Our history provides evidence of the need to adhere strictly to the warrant requirement unless there are clear and justifiable reasons for deviation (Gaertner at [69]). The above notwithstanding, there are instances where warrantless search and seizure is clearly indicated, but they must be conducted under the prescriptions of s 22 of the Criminal Procedure Act where there is a need for swift action. Page 201 5.3 Powers of the occupiers of premises In terms of s 24 of the Criminal Procedure Act any person who is lawfully in charge or occupation of any premises and who reasonably suspects that— (1) stolen stock or produce, as defined in any law relating to the theft of stock or produce, is on or in the premises concerned, or that (2) any article has been placed thereon or therein or is in the custody or possession of any person upon or in such premises in contravention of any law relating to— (a) intoxicating liquor, (b) dependence-producing drugs, (c) arms and ammunition, or (d) explosives, may at any time, if a police official is not readily available, enter such premises for the purpose of searching such premises and any person thereon or therein, and if any such stock, produce or article is found, he shall take possession thereof and forthwith deliver it to a police official. 5.4 Search for the purpose of effecting an arrest In the event of a search of premises in order to find and arrest a suspect, exactly the same powers are conferred on police officials and private persons. In terms of s 48, a peace officer or private person who is authorised by law to arrest another in respect of any offence and who knows or reasonably suspects such other person to be on any premises may, if he or she first audibly demands entry into such premises and states the purpose for which he or she seeks entry and fails to gain entry, break open and enter and search such premises for the purpose of effecting the arrest. A number of court decisions on the forerunner of s 48 still apply to s 48. These include the following: In Jackelson 1926 TPD 685 it was held that persons who had ejected a police official who had entered premises without first demanding and being refused admission could not be convicted of obstructing such police official in the execution of his duty. In Rudolf 1950 (2) SA 522 (C) a police official had seen a man drinking wine in a public place and wished to arrest him. The man ran into a house pursued by the constable and was arrested at the foot of the stairs. The two accused attempted to rescue the wine-drinker from the custody of the police official. It was contended, inter alia, that the wine-drinker had not been in ‘lawful custody’ because the police official had made an unlawful entry when he entered the premises without first demanding admission in terms of the predecessor to the present s 48. The court held, however, that the constable had been justified, in the circumstances of the case, in entering the house to arrest the wine-drinker and consequently the arrest was a lawful one. The court distinguished Jackelson mainly on the ground that the accused in Jackelson had ejected the constable before he had effected an arrest, while in Rudolf the arrest had been effected when the accused attempted to rescue the wine-drinker— cf also Andresen v Minister of Justice 1954 (2) SA 473 (W). Page 202 5.5 Review of the actions of the person conducting the search In cases where action is taken without a warrant, the actions of the person conducting the search may be reviewed by a court of law on the merits—cf eg LSD Ltd v Vachell 1918 WLD 127. 6 Search of an arrested person This matter is governed by s 23. That section provides that on the arrest of any person, the person making the arrest may, provided that he or she is a peace officer, search the person arrested and seize any article referred to in s 20 which is in the possession or under the control of the arrested person. If the person making the arrest is not a peace officer, he or she has no power to search the arrested person. The person making the arrest does, however, have the power to seize an article referred to in s 20 which is in the possession or under the control of the arrested person. Such a private person must forthwith hand the seized article to a police official. (This also applies to a peace officer who is not a police official). On the arrest of any person, the person effecting the arrest may place in safe custody any object found on the arrested person which may be used to cause bodily harm to himself or herself or to others—s 23(2). 7 The use of force in order to conduct a search The use of force is regulated by s 27 as far as this chapter is concerned. In terms of s 27(1), a police official who may lawfully search any person or any premises may use such force as may be reasonably necessary to overcome any resistance against such search or against entry of the premises, including the breaking of any door or window of such premises. In terms of a proviso to this subsection, such a police official shall first audibly demand admission to the premises and state the purpose for which he or she seeks to enter such premises. This proviso does not apply where the police official concerned is, on reasonable grounds, of the opinion that any article which is the subject of the search may be destroyed or disposed of if the proviso is first complied with—s 27(2). The latter is known as the ‘no-knock clause’ and is particularly helpful to the police where the search will be for small objects which may easily be swallowed or flushed down a toilet. 8 General requirement of propriety with regard to searching Section 29 stipulates that a search of any person or premises shall be conducted with strict regard to decency and order, and a woman shall be searched by a woman only, and if no female police official is available, the search shall be made by any woman designated for the purpose by a police official. In order to comply with the requirement of propriety in terms of s 29, it can certainly be assumed, in terms of the general principles of the interpretation of statutes, that a male person should be searched by a male only. We suggest that any divergence from these provisions would be unlawful and that ‘consent’ by Page 203 the person being searched by the opposite sex would be invalid as it would be contra bonos mores. 9 Unlawful search The provisions of the law of criminal procedure which regulate searching are ‘double- functional’: From a substantive law viewpoint they constitute grounds of justification, while in formal law they regulate the procedural steps whereby an eventual legal decision may validly be reached. In the latter case the principle of legality (cf Chapter 1) and the concept of ‘legal guilt’ are of paramount importance in that, unless a ‘factually guilty’ person can be brought to justice within the bounds of the provisions of the law of criminal procedure (ie in strict compliance with the prescribed rules and limitations), he or she must, according to law, go free—see Chapter 1. The question now arises as to what the effect is of unlawful action by the authorities with regard to these pre-trial procedural rules. As these provisions are double- functional, it is necessary to differentiate between the substantive and formal law consequences: 9.1 Formal-law consequences of unlawful action by the authorities In terms of s 35(5) of the Constitution, evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice. This so-called ‘exclusionary rule’ gives a clear signal to all state officials that it is futile to gather evidence in an unlawful manner, since evidence so obtained will not be taken into account by the court in reaching a verdict. (See Motloutsi 1996 (1) SA 584 (C) and Mayekiso 1996 (2) SACR 298 (C).) Evidence obtained in terms of an invalid search warrant may be excluded under s 35(5) of the Constitution. Heaney 2016 JDR 0806 (GP) is an appeal where the accused, in his capacity as a member of a close corporation, challenged the validity of a search warrant. This challenge was based on the grounds that the affidavit in support of the authorisation of the warrant was unsigned and not commissioned; it authorised the station commander (and not a specific police officer) to conduct the search (without mentioning a police station); and the offence and article which had to be seized was not clearly identified. On appeal, the court declared the warrant invalid. The court held that the execution of this invalid warrant violated the right to privacy of the accused. The right to privacy is a right guaranteed under s 14 of the Constitution and the evidence was accordingly obtained in a manner that violated a right guaranteed in the Bill of Rights. This, the court held, triggered s 35(5) of the Constitution, calling upon a court to determine whether the admission of the evidence obtained in this manner would render the trial unfair or otherwise be detrimental to the administration of justice. In the result, the evidence seized was excluded under s 35(5) and the appeal was upheld (see also Oforah 2013 JDR 1956 (GSJ). The admissibility of evidence under s 35(5) must, in general, be determined during a trial within a trial (Tandwa 2008 (1) SACR 613 (SCA). Page 204 The exclusionary rule is discussed in more detail in handbooks dealing with the law of evidence and was briefly dealt with in Chapter 1. 9.2 Substantive-law consequences of unlawful action by the authorities This aspect is governed partly by s 28. In terms of sub-s (1), a police official commits an offence and is liable on conviction to a fine or to imprisonment for a period not exceeding six months— (1) when he acts contrary to the authority of a search warrant issued under s 21 or a warrant issued under s 25(1); or (2) when he, without being authorised thereto, (a) searches any person or container or premises or seizes or detains any article; or (b) performs any act contemplated in s 25(1). Subsection (2) stipulates that where any person falsely gives information on oath for the purposes of ss 21(1) or 25(1) and a warrant is issued and executed on such information, and such person is in consequence of such false information convicted of perjury, the court convicting such person may, upon the application of any person who has suffered any damage in consequence of the unlawful entry, search or seizure, or upon the application of the prosecutor acting on the instructions of such a person, award compensation in respect of such damage, whereupon the provisions of s 300 shall mutatis mutando of ownership. The object is therefore no longer regarded as stolen property and may then be restored to the person from whom it was forfeited, if he or she bought it from another. The former person is then considered as ‘the person who may lawfully possess it’—Mdunge v Minister of Police 1988 (2) SA 809 (N); Datnis Motors (Midlands) (Pty) Ltd v Minister of Law and Order 1988 (1) SA 503 (N). After the conviction of an accused, the court has, in terms of s 35(1) and in certain circumstances, the power to forfeit to the state certain objects which were used in the commission of the particular crime. Section 36 deals with the circumstances under which, and the manner in which, articles may be delivered to the police of another country. There are also various other laws that make provision for search, seizure and the forfeiture of articles, eg s 29(5) of the National Prosecuting Authority Act 32 of 1998 (cf Thint (Pty) Ltd v National Director of Public Prosecutions; Zuma v National Director of Public Prosecutions 2008 (2) SACR 421 (CC)) and the Prevention of Organised Crime Act 121 of 1998, which provides for confiscation, preservation and forfeiture orders: A confiscation order (s 18) consists therein that a court, convicting an accused of an offence, may, on the application of the public prosecutor, enquire into any benefit which the accused may have derived from that offence (or any other offence of which the accused has been convicted at the same trial or any criminal activity sufficiently related to those offences) and may, in addition to any punishment which it may impose in respect of that offence, make an order against the accused for the payment to the state of any amount it considers appropriate. A preservation order (s 38) prohibits a person from dealing in any manner with any property which is an instrumentality of an offence—ie any property concerned Page 205 in the commission or suspected commission of an offence. Property only qualifies as an instrumentality if it is used to commit the offence and its use must be such that it plays a real and substantial part in the actual commission of the offence. The fact that a crime is committed at a certain place does not by itself make that place an instrumentality of the offence—Singh v National Director of Public Prosecutions 2007 (2) SACR 326 (SCA). A forfeiture order (s 48) is an order forfeiting to the state all or any of the property subject to a preservation of property order and is applied for by the national director of public prosecutions. An order of forfeiture may be made only if the deprivation in a particular case is proportionate to the ends at which the legislation is aimed, and distinctions between different classes of offence will feature heavily in that part of the enquiry. Although an order of forfeiture operates as both a penalty and a deterrent, its primary purpose is remedial. Forfeiture is likely to have its greatest remedial effect where crime has become a business. The Supreme Court of Appeal, accordingly, did not consider a motor vehicle driven whilst under the influence of alcohol ‘an instrumentality of an offence’ as contemplated under the Prevention of Organised Crime Act 121 of 1998—National Director of Public Prosecutions v Vermaak [2008] 1 All SA 448 (SCA). See also Shaik 2008 (1) SACR 1 (CC). Restitution should be distinguished from forfeiture. Restitution is dealt with in Chapter 19

1 Introduction The search of one’s home, person or vehicle with or without a warrant may, depending on the circumstances, constitute a violation of the right to privacy. Our courts determine whether state action (police conduct) constitutes a violation of a complainant’s right to privacy or any other right by applying two tests. First, the courts must determine the scope of the right to privacy and consider whether the police conduct breached the complainant’s right to privacy; if not, that would be the end of the matter. However, if the police conduct did breach the complainant’s right to privacy, the courts would continue with the second test. The second test determines whether the police conduct is justified because they, for example, acted in terms of the provisions of the Criminal Procedure Act 51 of 1977 (as amended). This second test is referred to as the limitations analysis under s 36 of the Constitution. If the police conduct cannot be justified in terms of s 36 because the police officer, for example, exceeded the powers granted to him or her in terms of the Criminal Procedure Act, the complainant would have succeeded in establishing that his or her right to privacy has been violated. (Section 36 is included in the appendices at the end of this book.) Search, seizure, and matters related thereto are regulated by Chapter 2 (s 19 and sections that follow) of the Criminal Procedure Act. The Criminal Procedure Act embodies the general provisions with regard to searching; specific provisions are contained in many other acts. It is impossible to refer to all these acts. Section 19 of the Criminal Procedure Act states explicitly that Chapter 2 of the Act shall not derogate from any power conferred by any other Act to enter any premises or to search any person, container or premises or to seize any matter, to declare any matter forfeited or to dispose of any matter. 2 The scope and content of the right to privacy The right to privacy seeks to protect the right not to have one’s person or home searched, one’s property searched, one’s possessions seized, or the privacy of one’s communications infringed. The scope of the right to privacy is determined by the concept of a ‘legitimate expectation of privacy’ (Bernstein v Bester 1996 (2) SA 751 (CC) at [75]). Our courts do not define the right to privacy; instead, they apply the notion of a ‘spectrum’ of privacy protection, consisting of a small circle, followed by a number of bigger circles surrounding the central circle. The small central circle represents the intimate core of privacy, relating to, for example, what one does in one’s bedroom, and wider circles beyond this central core represent social interactions of a less private nature such as, for example, travelling in public transport. Interferences with the central core may only be justified in exceptional circumstances, whereas interferences with the outer circles, which are far removed from the centre of privacy, are less demanding to defend (Minister of Police v Kunjana 2016 (2) SACR 473 (CC) [2016] ZACC 21 at [17]). In other words, the more a search and seizure interferes with the central core of privacy, the more challenging it will be to justify such interference. Privacy is also intrinsically linked to human dignity, which constitutes one of the most significant values our constitution seeks to uphold (Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors Page 192 (Pty) Ltd 2001 (1) SA 545 (CC) at [18]; Thint (Pty) Ltd v National Director of Public Prosecutions 2008 (2) SACR 421 (CC) [2008] ZACC 13 at [77]). 3 Articles that are susceptible to seizure The Criminal Procedure Act confers powers to search only where the object of the search is to find a certain person or to seize an article which falls into one of three classes of articles, including documents, which may be seized by the state in terms of the provisions of the Criminal Procedure Act. These are— (1) articles which are concerned in or are on reasonable grounds believed to be concerned in the commission or suspected commission of an offence, whether within the Republic or elsewhere—s 20(a); (2) articles which may afford evidence of the commission or suspected commission of an offence, whether within the Republic or elsewhere—s 20(b); or (3) articles which are intended to be used or are on reasonable grounds believed to be intended to be used in the commission of an offence—s 20(c). Under normal circumstances an article or document falling into one of the abovementioned categories may be seized by the state. The only exceptions relate to documents which are privileged and in respect of which the holder of the privilege has not yet relinquished his or her privilege. An example of this would be where the document consists of a communication between an attorney and his or her client. Such a document is subject to legal professional privilege and may not be handed in to the court without the consent of the client. If the state had the power to seize such a document the whole object of the privilege would be defeated. In Prinsloo v Newman 1975 (1) SA 481 (A) at 493F–G and SASOL III (Edms) Bpk v Minister van Wet en Orde 1991 (3) SA 766 (T) it was accordingly held that such a document may not be seized. 4 Search in terms of a search warrant 4.1 General rule Searches and seizures should, whenever possible, be conducted only in terms of a search warrant, issued by a judicial officer such as a magistrate or judge—cf the wording of s 21(1). This will ensure that an independent judicial officer stands between the citizen and the law enforcement official (police official)—Park-Ross v Director: Office for Serious Economic Offences 1995 (2) SA 148 (C) at 172. For this reason the provisions governing the issue of search warrants require that the judicial officer must himself or herself decide whether or not there are ‘reasonable grounds’ for the search. 4.2 The discretion of a judicial officer to issue a warrant In deciding whether there are reasonable grounds for the search, the judicial officer exercises a discretion similar to the discretion he or she exercises in granting bail, remanding a case or sentencing an accused, and so forth. This discretion must be exercised in a judicial manner. This simply means that the judicial officer must exercise the discretion in a reasonable and regular manner, in accordance Page 193 with the law and while taking all relevant facts into account—Minister of Safety and Security v Van der Merwe 2011 (5) SA 61 (CC). Before issuing a search warrant the judicial officer must therefore decide whether the article that will be searched for is one which may be seized in terms of s 20 and whether it appears from the affidavit that there are reasonable grounds to believe that the article is present at a particular place (Minister of Safety and Security v Van der Merwe, above). As far as the concept of ‘reasonable grounds’ is concerned, see the discussion of the requirement of reasonableness in Chapter 6. Government action is required to be objectively and demonstrably reasonable. This laudable principle was unfortunately undermined by the decision in Divisional Commissioner of SA Police, Witwatersrand Area v SA Associated Newspapers 1966 (2) SA 503 (A), where it was held that the merits of the decision by a justice of the peace, that there are objective grounds upon which a warrant may be issued, may not be contested in court (contrary to where a search without a warrant is conducted by the police). The decision to issue a search warrant may, in terms of this decision, be set aside only on administrative grounds (such as mala fides on the part of the judicial officer) and not on the merits. This decision was quoted with approval in Cresto Machines v Die Afdeling-Speuroffisier SA Polisie, Noord-Transvaal 1972 (1) SA 376 (A) 396; cf further Cine Films (Pty) Ltd v Commissioner of Police 1971 (4) SA 574 (W) 581. Mogoeng CJ, in Minister of Safety and Security v Van der Merwe 2011 (5) SA 61 (CC), held (at [55]) that a judicial officer must ensure that the following prerequisites are complied with before authorising a warrant: (a) the warrant must mention the statutory provision in terms of which it is authorised; (b) it must identify the searcher; (c) it must clearly describe the scope of the powers granted to the searcher; (d) it must identify the person, container or premises to be searched; (e) it must clearly describe the article to be searched for and seized; (f) it must mention the offence being investigated; (g) it must state the name of the person being investigated. 4.3 General search warrants The procedure with regard to search warrants is governed by s 21. Subsection (1) provides that, subject to ss 22, 24 and 25 (see below), an article referred to in s 20 shall be seized only by virtue of a search warrant issued— (a) by a magistrate or justice, if it appears to such magistrate or justice from information on oath that there are reasonable grounds for believing that any such article is in the possession or under the control of any person, or upon or at any premises within his area of jurisdiction; or (b) by a judge or judicial officer presiding at criminal proceedings, if it appears to such judge or judicial officer that any such article in the possession or under the control of any person or upon or at any premises is required in evidence at such proceedings. Page 194 Section 21(2) stipulates that a warrant must direct a police official to seize the article in question and must to that end authorise such police official to search any person identified in the warrant, or to enter and search any premises identified in the warrant and to search any person found on or at such premises. See also Extra Dimension v Kruger NO 2004 (2) SACR 493 (T). In Minister of Safety and Security v Van der Merwe 2011 (5) SA 61 (CC) at [56] Mogoeng CJ set out the following guidelines that our courts must take into account when assessing the validity of search and seizure warrants. These are whether— (a) the person who authorised a warrant has authority to do so; (b) the person (mentioned in (a)) has jurisdiction to authorise a warrant; (c) the affidavit contains information regarding the existence of the jurisdictional facts (meaning a reasonable suspicion that a crime has been committed and reasonable grounds to believe that objects connected to crime may be found on the premises); (d) the scope (boundaries) of the search that must be conducted are clear and not overbroad or vague; (e) the searched person’s constitutional rights are not unnecessarily interfered with. Mogoeng CJ also mentioned that the terms of a warrant must be strictly interpreted, in order to protect the searched person against excessive interference by the state (Van der Merwe above at [56]; also Thint (Pty) Ltd v National Director of Public Prosecutions; Zuma v National Director of Public Prosecutions 2008 (2) SACR 421 (CC)). The decision in Goqwana v Minister of Safety and Security 2016 (1) SACR 384 (SCA) explained the importance of the prerequisites and guidelines mentioned in the Van der Merwe case above, by highlighting three important points: first, the reason why the identity of the searcher must be mentioned in a warrant is to ensure accountability in case the searcher abuses his or her power (at [25]; secondly, where the search is in connection with a statutory offence, as opposed to a common-law offence, the relevant statute and section must be mentioned, in order to enable both the searcher and the searched person to know exactly what the warrant has been authorised for (at [29]); and thirdly, the affidavit in support of the warrant should accompany the warrant and should be handed to the searched person in case he or she wants to challenge the validity of the warrant (at [31]). Even though s 21 does not require that the suspected offence be set out in the warrant, it is desirable to do so in order to facilitate the interpretation of the warrant— Minister of Safety and Security v Van der Merwe above at [56]. The powers conferred by s 21 constitute grave infringements of the privacy of the individual. To limit this infringement, s 21(3)(a) provides that a search warrant must be executed (ie acted upon) by day, unless the judicial officer who issues it gives written authorisation for it to be executed by night. A warrant may be issued and be executed on a Sunday, as on any other day, and remains in force until it is executed or is cancelled by the person who issued it or, if such person is not available, by a person with like authority—s 21(3)(b). Page 195 4.4 Warrants to maintain internal security and law and order 4.4.1 Background In Wolpe v Officer Commanding South African Police, Johannesburg 1955 (2) SA 87 (W) members of the police entered a hall in which a conference was being held by the ‘South African Congress of Democrats’ in co-operation with other organisations. The chairman requested the police to leave the meeting and explained that it was a private meeting. The police refused to do so. Members of the Congress of Democrats thereupon brought an urgent application to the court for an interdict prohibiting the police from attending the meeting. They argued that the police do not have greater powers than any other individual, except in so far as they are vested with wider powers by statute. The application was refused. Rumpff J held that the basic duties of the police are not confined to those mentioned in statutes. The basic duties of the police flow from the nature of the police as a civil force in the state. According to him it was not the intention of the legislature by s 7 of the (previous) Police Act to revoke the basic duties of the police and to supplant them with statutory duties. The judge dealt fully with the duties of the police and came to the conclusion that if there were a suspicion that as a result of the holding of a meeting, a disturbance of public order would occur on the same day, the police are entitled to attend the meeting in order to prevent a disturbance of order, even though the meeting was private. If the police had reasonable grounds for suspecting that seditious speeches would be made at such meeting, and that their presence would prevent them from being made, it would be a reasonable exercise of their duty for the police to attend the meeting, notwithstanding the fact that there would be no immediate disturbance of the peace. According to Rumpff J the liberty of the individual must in such circumstances give way to the interests of the state. He suggested, however, that the legislature should define the duties and powers of the police in connection with the combating of what the state from time to time considered to be dangerous. This eventually led to the inclusion of s 25 in the current Criminal Procedure Act. 4.4.2 Warrant in terms of s 25 Section 25(1) stipulates that if it appears to a magistrate or justice from information on oath that there are reasonable grounds for believing— (a) that the internal security of the Republic or the maintenance of law and order is likely to be endangered by or in consequence of any meeting which is being held or is to be held in or upon any premises within his area of jurisdiction; or (b) that an offence has been or is being or is likely to be committed or that preparations or arrangements for the commission of any offence are being or are likely to be made in or upon any premises within his area of jurisdiction, he may issue a warrant authorising a police official to enter the premises in question at any reasonable time for the purpose— (i) of carrying out such investigations and of taking such steps as such police official may consider necessary for the preservation of the internal security of Page 196 the Republic or for the maintenance of law and order or for the prevention of any offence; (ii) of searching the premises or any person in or upon the premises for any article referred to in s 20 and which such police official on reasonable grounds suspects to be in or upon or at the premises or upon such person; and (iii) of seizing any such article. A warrant under sub-s (1) may be issued on any day and shall remain in force until it is executed or is cancelled by the person who issued it or, if such person is not available, by a person with like authority—sub-s (2). A warrant issued in terms of s 25(1)(i) confers wide powers on the police. The fact that a police official who acts in terms thereof may take any steps that he or she ‘may consider necessary’ for the preservation of the internal security of the Republic or for the maintenance of law and order or for the prevention of any offence means that the police official’s discretion in this respect will have to be considered subjectively. The question will therefore not be whether the steps the police officer took were really necessary, but whether such officer subjectively thought that he or she had reason to believe that they were necessary. Moreover, this provision sets no legal boundaries within which such discretion powers may be exercised, thus leaving ample room for the abuse of power (see Minister of Police and Others v Kunjana 2016 (2) SACR 473 (CC)). 4.5 General information requirements with regard to warrants When law enforcement officials act in terms of a warrant, it is desirable that the subject involved has access to the document which authorises an infringement upon his or her private rights. The effective execution of legal remedies, such as an interdict, mandament van spolie, or even the institution of the rei vindicatio, is to a large extent dependent on this (see Tsegeya v Minister of Police (unreported, Mthatha High Court case no 2746/2018 21 August 2018). Section 21(4) therefore stipulates that a police official who executes a warrant in terms of ss 21 or 25 must, once the warrant has been executed and upon the request of any person whose rights are affected by the search or seizure of an object in terms of the warrant, provide such a person with a copy of the warrant (see Goqwana v Minister of Safety and Security, above, which goes even further by requiring that the supporting affidavit to the warrant be handed to the person whose property forms the subject of the search). We are of the opinion that two objections may be raised against this subsection, which is laudable in other respects. In the first place a copy of the warrant should, whenever possible (ie if the subject is present at the time of the execution of the warrant), be provided before the search and/or seizure. Secondly, the delivery of a copy of the warrant should not be dependent on the request of the subject. Many subjects, through lack of knowledge of the law, will not make such a request and thus act to their potential detriment. Page 197 5 Search without a warrant 5.1 Introduction Although it is preferable, as mentioned above, that searches should only be conducted on the authority of a search warrant issued by a judicial officer, it is quite conceivable that circumstances may arise where the delay in obtaining such warrant would defeat the object of the search. It is therefore necessary that provision be made for the power to conduct a search without a warrant. However, police officials intending to conduct a search and seizure should always be conscious of the cautionary remark made by Madlala J in Minister of Police v Kunjana 2016 (2) SACR 473 (CC) at [27]: It should not be forgotten that exceptions to the warrant requirement should not become the rule. While search warrants empower only police officials to conduct searches and to seize objects, both private persons and police officials are empowered to conduct searches or to seize objects without a warrant. 5.2 Powers of the police 5.2.1 Consent to search and/or to seize In terms of s 22(a) a police official may search any person, container or premises for the purpose of seizing any article referred to in s 20, if the person concerned consents to the search for and the seizure of the article in question, or if the person who may consent to the search of the container or premises consents to such search and the seizure of the article in question. 5.2.2 Search and seizure where a delay would defeat the object thereof In terms of s 22(a) a police official may search any person, container or premises for the purpose of seizing any article referred to in s 20, if the police official believes on reasonable grounds that— (1) a search warrant will be issued to him or her under s 21(1)(a) if he or she applies for such warrant; and (2) the delay in obtaining such warrant would defeat the object of the search. The belief of the police official must be objectively justified on the facts—NDPP v Starplex 47 CC [2008] 4 All SA 275 (C). Section 25(3) allows a police official to act without a warrant if he or she believes on reasonable grounds that— (1) a warrant will be issued to him or her under s 25(1)(a) or (b) if he applies for such warrant; and (2) the delay in obtaining such warrant would defeat the object thereof. A police official’s powers in terms of s 25(3) are the same as the powers he or she would have had by virtue of a warrant (cf (i) to (iii) above and NDPP v Starplex 47 CC above. In Starplex a search warrant was issued to search certain premises under s 33(5) of the Immigration Act, on the grounds that information had been received that a group of foreign nationals issued false documents and permits. During the search a significant amount of foreign currency was discovered and Page 198 consequently seized. The seizure of the money was challenged on the ground that the search warrant did not authorise its seizure. The court rejected this contention on the basis that suspects could quickly hide away the money from the authorities in order to prevent its seizure, and the money was reasonably suspected as being illegal foreign currency. Expecting the police to obtain a new warrant under those circumstances would defeat the object of the search. In the result, the court held that the money was lawfully seized in terms of s 22(2).) 5.2.3 Search and seizure for the purposes of border control Section 13(6) of the South African Police Service Act 68 of 1995 empowers a police official, for the purposes of border control or to control the import or export of any goods, to search without a warrant any person, premises, other place, vehicle, vessel, ship, aircraft or any receptacle of whatever nature, at any place in the Republic within ten kilometres or any reasonable distance from any border between the Republic and any foreign state, or from any airport or at any place in the territorial waters of the Republic or inside the Republic within ten kilometres from such territorial waters, and to seize anything found upon such person or upon or at or in such premises, other place, vehicle, vessel, ship, aircraft or receptacle which may lawfully be seized. 5.2.4 Search and seizure in a cordoned-off area The National or a Provincial Commissioner of the South African Police Service may, in terms of s 13(7) of the South African Police Service Act 68 of 1995, where it is reasonable in the circumstances in order to restore public order or to ensure the safety of the public in a particular area, authorise that the particular area or any part thereof be cordoned off. This is done by issuing a written authorisation which must also set out the purpose of the cordoning off. Any member of the Service may, in order to achieve the purpose set out in the authorisation, without a warrant, search any person, premises, vehicle or any receptacle or object of whatever nature in that area and seize any article referred to in s 20 of the Criminal Procedure Act found by him or her upon such person or in that area: provided that a member executing a search in terms of s 13(7) must, upon demand of any person whose rights are or have been affected by the search or seizure, exhibit to him or her a copy of the written authorisation by such commissioner. 5.2.5 Search and seizure at a roadblock or checkpoint The National or a Provincial Commissioner of the South African Police Service may, in terms of s 13(8) of the South African Police Service Act 68 of 1995, where it is reasonable in the circumstances in order to exercise a power or perform a function of the Service, in writing authorise a member under his or her command to set up a roadblock or roadblocks on any public road in a particular area or to set up a checkpoint or checkpoints at any public place in a particular area. Any member of the Service may, without a warrant, search any vehicle and any person in or on such vehicle at such a roadblock or checkpoint and seize any article referred to in s 20 of the Criminal Procedure Act found by him or her upon such person or in or on such vehicle. A member executing a search in terms of s 13(8) Page 199 must, upon demand by any person whose rights are or have been affected by the search or seizure, exhibit to him or her a copy of the written authorisation by such commissioner. Section 13(8)(d) authorises any member of the Service to set up a roadblock on a public road without a written authorisation in certain specified circumstances where the delay in obtaining a written authorisation would defeat the object of the setting up of the roadblock. 5.2.6 Search and seizure in terms of the Drugs and Drug Trafficking Act 140 of 1992 Search for and seizure of substances in terms of the Drug and Drug Trafficking Act was, until recently, controlled by s 11 of the Act. Prior to the declaration of constitutional invalidity in Minister of Police v Kunjana 2016 (2) SACR 473 (CC), s 11(1) of the Act read as follows: (1) A police official may— (a) if he has reasonable grounds to suspect that an offence under this Act has been or is about to be committed by means or in respect of any scheduled substance, drug or property, at any time— (i) enter or board and search any premises, vehicle, vessel or aircraft on or in which any such substance, drug or property is suspected to be found; (ii) search any container or other thing in which any such substance, drug or property is suspected to be found; (b) if he has reasonable grounds to suspect that any person has committed or is about to commit an offence under this Act by means or in respect of any scheduled substance, drug or property, search or cause to be searched any such person or anything in his possession or custody or under his control: Provided that a woman shall be searched by a woman only; (c) if he has reasonable grounds to suspect that any article which has been or is being transmitted through the post contains any scheduled substance, drug or property by means or in respect of which an offence under this Act has been committed, notwithstanding anything to the contrary in any law contained, intercept or cause to be intercepted either during transit or otherwise any such article, and open and examine it in the presence of any suitable person; (d) question any person who in his opinion may be capable of furnishing any information as to any offence or alleged offence under this Act; (e) subject to s 15 of the Regulation of Interception of Communications and Provision of Communication-related Information Act, 2002, require from any person who has in his or her possession or custody or under his or her control any register, record or other document which in the opinion of the police official may have a bearing on any offence or alleged offence under this Act, to deliver to him or her then and there, or to submit to him or her at such time and place as may be determined by the police official, any such register, record or document; (f) examine any such register, record or document or make an extract therefrom or a copy thereof, and require from any person an explanation of an entry in any such register, record or document; (g) seize anything which in his opinion is connected with, or may provide proof of, a contravention of a provision of this Act. The constitutional validity of the entire s 11 was challenged by the applicant in Kunjana v Minister of Police [2015] ZAWCHC 198 (High Court judgment). On consideration the High Court, per Veldhuizen J, concluded that the application directed at the entire s 11 was too broad and restricted the relief to s 11(1)(a) and (g). The High Court declared the provisions invalid and the matter was placed before Page 200 the Constitutional Court for confirmation of the order of invalidity (Minister of Police v Kunjana 2016 (2) SACR 473 (CC). The Constitutional Court applied the limitation clause to s 11(1)(a) and (g). On consideration of the nature and extent of the limitation the court remarked: The impugned provisions are broad. Section 11(1)(a) and (g) of the Drugs Act does not circumscribe the time, place nor manner in which the searches and seizures can be conducted. . . (at [21]). Further, section 11(1)(a) grants police officers the power to search warrantless at ‘any time’ ‘any premises, vehicle, vessel or aircraft’ and ‘any container’ in which substances or drugs are suspected to be found (at [22]). I agree with the applicants’ contention that the impugned provisions leave police officials without sufficient guidelines with which to conduct the inspection within legal limits (at [23]). The court next considered whether there are less restrictive means to achieve the purpose of s 11(1)(a) and (g) and reasoned that— [s]ection 11(1)(a) implies that warrantless searches of private homes may be conducted pursuant to it. The more a search intrudes into the ‘inner sanctum’ of a person (such as their home) the more the search infringes their privacy right. The provisions are also problematic as they do not preclude the possibility of a greater limitation of the right to privacy than is necessitated by the circumstances, with the result that police officials may intrude in instances where an individual’s reasonable expectation of privacy is at its apex. The court contended that constitutionally adequate safeguards must exist to justify circumstances in which legislation allows for warrantless searches. These safeguards are clearly provided by s 22 of the Criminal Procedure Act, which provides less restrictive means to restrict the right to privacy during search and seizure procedures. The Constitutional Court accordingly confirmed the constitutional invalidity of ss 11(1)(a) and (g). Warrantless search and seizure should not be a norm of criminal procedure, which is confirmed by the various court interventions in, for example, the Customs and Excise Act 91 of 1964, Estate Agency Affairs Act 112 of 1976 and Financial Intelligence Centre Act 38 of 2001, wherein the validity of warrantless search and seizure provisions were challenged (see also Estate Agency Affairs Board v Auction Alliance (Pty) Ltd 2014 (3) SA 106 (CC) and Gaertner v Minister of Finance 2014 (1) SA 442 (CC)). Search and seizure under the provisions of a warrant should form the basis of any such action because— [a] warrant is not a mere formality. It is a mechanism employed to balance an individual’s right to privacy with the public interest in compliance with and enforcement of regulatory provisions. A warrant guarantees that the State must be able, prior to an intrusion, to justify and support intrusions upon individuals’ privacy under oath before a judicial officer. Further, it governs the time, place and scope of the search. This softens the intrusion on the right to privacy, guides the conduct of the inspection, and informs the individual of the legality and limits of the search. Our history provides evidence of the need to adhere strictly to the warrant requirement unless there are clear and justifiable reasons for deviation (Gaertner at [69]). The above notwithstanding, there are instances where warrantless search and seizure is clearly indicated, but they must be conducted under the prescriptions of s 22 of the Criminal Procedure Act where there is a need for swift action. Page 201 5.3 Powers of the occupiers of premises In terms of s 24 of the Criminal Procedure Act any person who is lawfully in charge or occupation of any premises and who reasonably suspects that— (1) stolen stock or produce, as defined in any law relating to the theft of stock or produce, is on or in the premises concerned, or that (2) any article has been placed thereon or therein or is in the custody or possession of any person upon or in such premises in contravention of any law relating to— (a) intoxicating liquor, (b) dependence-producing drugs, (c) arms and ammunition, or (d) explosives, may at any time, if a police official is not readily available, enter such premises for the purpose of searching such premises and any person thereon or therein, and if any such stock, produce or article is found, he shall take possession thereof and forthwith deliver it to a police official. 5.4 Search for the purpose of effecting an arrest In the event of a search of premises in order to find and arrest a suspect, exactly the same powers are conferred on police officials and private persons. In terms of s 48, a peace officer or private person who is authorised by law to arrest another in respect of any offence and who knows or reasonably suspects such other person to be on any premises may, if he or she first audibly demands entry into such premises and states the purpose for which he or she seeks entry and fails to gain entry, break open and enter and search such premises for the purpose of effecting the arrest. A number of court decisions on the forerunner of s 48 still apply to s 48. These include the following: In Jackelson 1926 TPD 685 it was held that persons who had ejected a police official who had entered premises without first demanding and being refused admission could not be convicted of obstructing such police official in the execution of his duty. In Rudolf 1950 (2) SA 522 (C) a police official had seen a man drinking wine in a public place and wished to arrest him. The man ran into a house pursued by the constable and was arrested at the foot of the stairs. The two accused attempted to rescue the wine-drinker from the custody of the police official. It was contended, inter alia, that the wine-drinker had not been in ‘lawful custody’ because the police official had made an unlawful entry when he entered the premises without first demanding admission in terms of the predecessor to the present s 48. The court held, however, that the constable had been justified, in the circumstances of the case, in entering the house to arrest the wine-drinker and consequently the arrest was a lawful one. The court distinguished Jackelson mainly on the ground that the accused in Jackelson had ejected the constable before he had effected an arrest, while in Rudolf the arrest had been effected when the accused attempted to rescue the wine-drinker— cf also Andresen v Minister of Justice 1954 (2) SA 473 (W). Page 202 5.5 Review of the actions of the person conducting the search In cases where action is taken without a warrant, the actions of the person conducting the search may be reviewed by a court of law on the merits—cf eg LSD Ltd v Vachell 1918 WLD 127. 6 Search of an arrested person This matter is governed by s 23. That section provides that on the arrest of any person, the person making the arrest may, provided that he or she is a peace officer, search the person arrested and seize any article referred to in s 20 which is in the possession or under the control of the arrested person. If the person making the arrest is not a peace officer, he or she has no power to search the arrested person. The person making the arrest does, however, have the power to seize an article referred to in s 20 which is in the possession or under the control of the arrested person. Such a private person must forthwith hand the seized article to a police official. (This also applies to a peace officer who is not a police official). On the arrest of any person, the person effecting the arrest may place in safe custody any object found on the arrested person which may be used to cause bodily harm to himself or herself or to others—s 23(2). 7 The use of force in order to conduct a search The use of force is regulated by s 27 as far as this chapter is concerned. In terms of s 27(1), a police official who may lawfully search any person or any premises may use such force as may be reasonably necessary to overcome any resistance against such search or against entry of the premises, including the breaking of any door or window of such premises. In terms of a proviso to this subsection, such a police official shall first audibly demand admission to the premises and state the purpose for which he or she seeks to enter such premises. This proviso does not apply where the police official concerned is, on reasonable grounds, of the opinion that any article which is the subject of the search may be destroyed or disposed of if the proviso is first complied with—s 27(2). The latter is known as the ‘no-knock clause’ and is particularly helpful to the police where the search will be for small objects which may easily be swallowed or flushed down a toilet. 8 General requirement of propriety with regard to searching Section 29 stipulates that a search of any person or premises shall be conducted with strict regard to decency and order, and a woman shall be searched by a woman only, and if no female police official is available, the search shall be made by any woman designated for the purpose by a police official. In order to comply with the requirement of propriety in terms of s 29, it can certainly be assumed, in terms of the general principles of the interpretation of statutes, that a male person should be searched by a male only. We suggest that any divergence from these provisions would be unlawful and that ‘consent’ by Page 203 the person being searched by the opposite sex would be invalid as it would be contra bonos mores. 9 Unlawful search The provisions of the law of criminal procedure which regulate searching are ‘double- functional’: From a substantive law viewpoint they constitute grounds of justification, while in formal law they regulate the procedural steps whereby an eventual legal decision may validly be reached. In the latter case the principle of legality (cf Chapter 1) and the concept of ‘legal guilt’ are of paramount importance in that, unless a ‘factually guilty’ person can be brought to justice within the bounds of the provisions of the law of criminal procedure (ie in strict compliance with the prescribed rules and limitations), he or she must, according to law, go free—see Chapter 1. The question now arises as to what the effect is of unlawful action by the authorities with regard to these pre-trial procedural rules. As these provisions are double- functional, it is necessary to differentiate between the substantive and formal law consequences: 9.1 Formal-law consequences of unlawful action by the authorities In terms of s 35(5) of the Constitution, evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice. This so-called ‘exclusionary rule’ gives a clear signal to all state officials that it is futile to gather evidence in an unlawful manner, since evidence so obtained will not be taken into account by the court in reaching a verdict. (See Motloutsi 1996 (1) SA 584 (C) and Mayekiso 1996 (2) SACR 298 (C).) Evidence obtained in terms of an invalid search warrant may be excluded under s 35(5) of the Constitution. Heaney 2016 JDR 0806 (GP) is an appeal where the accused, in his capacity as a member of a close corporation, challenged the validity of a search warrant. This challenge was based on the grounds that the affidavit in support of the authorisation of the warrant was unsigned and not commissioned; it authorised the station commander (and not a specific police officer) to conduct the search (without mentioning a police station); and the offence and article which had to be seized was not clearly identified. On appeal, the court declared the warrant invalid. The court held that the execution of this invalid warrant violated the right to privacy of the accused. The right to privacy is a right guaranteed under s 14 of the Constitution and the evidence was accordingly obtained in a manner that violated a right guaranteed in the Bill of Rights. This, the court held, triggered s 35(5) of the Constitution, calling upon a court to determine whether the admission of the evidence obtained in this manner would render the trial unfair or otherwise be detrimental to the administration of justice. In the result, the evidence seized was excluded under s 35(5) and the appeal was upheld (see also Oforah 2013 JDR 1956 (GSJ). The admissibility of evidence under s 35(5) must, in general, be determined during a trial within a trial (Tandwa 2008 (1) SACR 613 (SCA). Page 204 The exclusionary rule is discussed in more detail in handbooks dealing with the law of evidence and was briefly dealt with in Chapter 1. 9.2 Substantive-law consequences of unlawful action by the authorities This aspect is governed partly by s 28. In terms of sub-s (1), a police official commits an offence and is liable on conviction to a fine or to imprisonment for a period not exceeding six months— (1) when he acts contrary to the authority of a search warrant issued under s 21 or a warrant issued under s 25(1); or (2) when he, without being authorised thereto, (a) searches any person or container or premises or seizes or detains any article; or (b) performs any act contemplated in s 25(1). Subsection (2) stipulates that where any person falsely gives information on oath for the purposes of ss 21(1) or 25(1) and a warrant is issued and executed on such information, and such person is in consequence of such false information convicted of perjury, the court convicting such person may, upon the application of any person who has suffered any damage in consequence of the unlawful entry, search or seizure, or upon the application of the prosecutor acting on the instructions of such a person, award compensation in respect of such damage, whereupon the provisions of s 300 shall mutatis mutando of ownership. The object is therefore no longer regarded as stolen property and may then be restored to the person from whom it was forfeited, if he or she bought it from another. The former person is then considered as ‘the person who may lawfully possess it’—Mdunge v Minister of Police 1988 (2) SA 809 (N); Datnis Motors (Midlands) (Pty) Ltd v Minister of Law and Order 1988 (1) SA 503 (N). After the conviction of an accused, the court has, in terms of s 35(1) and in certain circumstances, the power to forfeit to the state certain objects which were used in the commission of the particular crime. Section 36 deals with the circumstances under which, and the manner in which, articles may be delivered to the police of another country. There are also various other laws that make provision for search, seizure and the forfeiture of articles, eg s 29(5) of the National Prosecuting Authority Act 32 of 1998 (cf Thint (Pty) Ltd v National Director of Public Prosecutions; Zuma v National Director of Public Prosecutions 2008 (2) SACR 421 (CC)) and the Prevention of Organised Crime Act 121 of 1998, which provides for confiscation, preservation and forfeiture orders: A confiscation order (s 18) consists therein that a court, convicting an accused of an offence, may, on the application of the public prosecutor, enquire into any benefit which the accused may have derived from that offence (or any other offence of which the accused has been convicted at the same trial or any criminal activity sufficiently related to those offences) and may, in addition to any punishment which it may impose in respect of that offence, make an order against the accused for the payment to the state of any amount it considers appropriate. A preservation order (s 38) prohibits a person from dealing in any manner with any property which is an instrumentality of an offence—ie any property concerned Page 205 in the commission or suspected commission of an offence. Property only qualifies as an instrumentality if it is used to commit the offence and its use must be such that it plays a real and substantial part in the actual commission of the offence. The fact that a crime is committed at a certain place does not by itself make that place an instrumentality of the offence—Singh v National Director of Public Prosecutions 2007 (2) SACR 326 (SCA). A forfeiture order (s 48) is an order forfeiting to the state all or any of the property subject to a preservation of property order and is applied for by the national director of public prosecutions. An order of forfeiture may be made only if the deprivation in a particular case is proportionate to the ends at which the legislation is aimed, and distinctions between different classes of offence will feature heavily in that part of the enquiry. Although an order of forfeiture operates as both a penalty and a deterrent, its primary purpose is remedial. Forfeiture is likely to have its greatest remedial effect where crime has become a business. The Supreme Court of Appeal, accordingly, did not consider a motor vehicle driven whilst under the influence of alcohol ‘an instrumentality of an offence’ as contemplated under the Prevention of Organised Crime Act 121 of 1998—National Director of Public Prosecutions v Vermaak [2008] 1 All SA 448 (SCA). See also Shaik 2008 (1) SACR 1 (CC). Restitution should be distinguished from forfeiture. Restitution is dealt with in Chapter 19

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15 Terms

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Right to privacy

The right to not have one's personal space, property, or communications searched or seized without just cause.

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Scope of the right to privacy

Determined by a 'legitimate expectation of privacy' that varies in intensity depending on the situation.

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Limitations analysis

A legal test to determine if a breach of rights, such as privacy, can be justified under specific circumstances.

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Criminal Procedure Act 51 of 1977

Legislation that governs search, seizure, and related actions in criminal law.

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Search warrant

A legal document issued by a judicial officer that authorizes police to conduct a search.

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Exception to warrant requirement

Situations where law enforcement may search without a warrant, typically due to immediate necessity.

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Consent search

A search conducted with the voluntary agreement of the person being searched.

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Legal professional privilege

Protection that prevents the disclosure of communications between an attorney and their client.

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Unlawful search

A search conducted without proper legal authority, potentially violating constitutional rights.

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Exclusionary rule

A legal principle that excludes evidence obtained in violation of a defendant's constitutional rights.

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Judicial discretion

The legal authority of a judge to make decisions based on their assessment of the circumstances.

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Tangible evidence

Physical objects collected or seized during an investigation that may serve as proof in court.

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Privacy intrusion

Any actions by law enforcement that interfere with an individual's reasonable expectation of privacy.

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Public interest

The welfare or well-being of the general public, often considered in legal contexts.

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Judicial officer

A magistrate or judge who is authorized to issue warrants and make determinations in legal matters.

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