A constitutional perspective of police powers of search and seizure: The legal dilemma of warrantless searches and seizures

• Jurisdiction: South Africa
• Author: Vinesh Basdeo
• Pages: 403-418
• Date: 16 August 2019
• Citation: (2009) 22 SACJ 403
• Published date: 16 August 2019

A constitutional perspective of

police powers of search and seizure:

The legal dilemma of warrantless

searches and seizures

VINESH BASDEO*

ABSTRACT

The subject matter of this article is an evaluation of the powers granted to

the police to conduct searches and seizures in the investigation and sup-

pression of crime. This article will examine the extent and eff‌icacy of those

powers from a legal perspective, in the light of constraints imposed by the

Constitution of the Republic of South Africa. A pervasive theme is the ques-

tion of whether an appropriate balance can ever be achieved between the

inherently conf‌licting interests of the public, who place a premium on crime

control, and of the individual, whose focus is the protection of personal

privacy and autonomy. In recent times police powers of search and seizure

have been extensively questioned in South African courts.1 The inherent

purpose of this article is to evaluate the legal provisions of the Constitution

of the Republic of South Africa,2 the Criminal Procedure Act,3 and the South

African Police Service Act4 in relation to search and seizure, as well as the

question of whether searches and seizures without a warrant that are not

incidental to arrest, are consistent with the spirit, object and purport of the

South African Constitution. The legal consequences of obtaining evidence in

violation of a right in the Bill of Rights will also be examined, and legal prin-

ciples from other countries will be compared to the South African context.

In this article I will also propose recommendations drawn from cases and

legislation in South African law, and from foreign jurisdictions.

1. Introduction

The Constitution and the Bill of Rights entrenched therein have intro-

duced a new element relating to searches and seizures because they

call into question the constitutionality of laws pertaining to search and

seizure. The primary function of the Bill of Rights is to protect indi-

* Nat Dip Policing (Tech SA); BA (Unisa); Hons Police Science (Unisa); LLB (Unisa);

Lecturer and researcher College of Law, School of Criminal Justice, UNISA.

1 See for example National Director of Public Prosecutions v Mahomed 2008 (1) All SA

181 (SCA); Zuma v National Director Public Prosecutions 2006 (1) SACR 468 (D).

2 Constitution of the Republic of South Africa, 1996.

3 Criminal Procedure Act 51 of 1977.

4 South African Police Service Act 68 of 1995.

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(2009) 22 SACJ 403

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viduals when they come into contact with organs of the state, including

the police. The Bill of Rights imposes constraints on police powers,

thereby making the enforcement of criminal law more onerous than

before. Section 7(2) of the Constitution maintains that the state must

respect, protect, promote and fulf‌il the rights in the Bill of Rights, a

duty which must be performed diligently and without delay, in order

to improve the quality of life of all citizens and release the potential of

each person. At this turning point in the history of South Africa, when

a constitutional democracy based on the rule of law has to take root,

rampant crime is one of the greatest concerns of society.

It is an internationally accepted principle, and a standard adopted

by the Criminal Procedure Act5 that, save in exceptional circumstances,

prior authorisation must be obtained for search and seizure. The author-

ity issuing the warrant should also be independent and impartial. The

unreasonable and unjustif‌iable violation of a person’s right to privacy,

freedom, dignity, property and security has serious consequences not

only for the police but also for the administration of justice. The Bill of

Rights will not necessarily cause the letter of the statutes which makes

provision for search and seizure to change, but rather will affect the

circumstances under which search and seizure takes place, and how

it is carried out. It would be a hollow victory for the constitutional en-

terprise if, by offering accused persons the highest level of protection

against the police, society was delivered to the tyranny of crime.

By the same token, if constitutional guarantees are forsaken in the

misguided belief that untrammelled powers of law enforcement are the

answer to crime, then in the words of Judge Cameron,6 ‘we abandon

all hope that a civilised and mutually respected society will emerge in

our country’.

2. Dening the concepts ‘search’ and ‘seizure’

In the United States the Supreme Court def‌ined ‘search’ as meaning ‘a

governmental invasion of a person’s privacy’.7 In Silverman v United

States8 it was held that searches may be def‌ined as a government off‌i-

cial’s physical touching of a person, or the physical entry into a private

area, or the physical handling of papers and effects. In Canada a search

is said to be any intrusion other than arrest upon an individual’s person,

property or privacy for the purpose of seizing individuals or things or

obtaining information by inspection or surveillance.9

5 Section 21(1) Criminal Procedure Act 51 of 1977.

6 E Cameron ‘Rights, constitutionalism and the rule of law’ (1997) 114 SALJ 504.

7 Rakas v Illinois 1978 439 US 128.

8 Silverman v United States 81 S Ct 679 365 US 505, (1961) 509-10.

9 R v Dyment 1988 45 CCC (3d) 244 (SCC).

404 SACJ . (2009) 3

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