A critique of search and seizure in terms of a search warrant in South African criminal procedure

• Author: Vinesh Basdeo
• DOI: 10.10520/EJC197700
• Published date: 01 January 2015
• Date: 01 January 2015
• Pages: 153-175

A critique of search and seizure in terms of

a search warrant in South African criminal

procedure

Vinesh Basdeo*

Abstract

The requirements and safeguards for a valid search warrant in South African criminal procedure

are critically analysed in this article. The existence of safeguards to regulate the way in which

law enforcement officials may enter the private sphere of ordinary citizens is one of the features

that distinguish a constitutional democracy from a police state. South African experience has

been notoriously varied in this regard. Many generations of systemised and egregious violations

of personal privacy established norms for citizens that seeped generally into the public

administration and promoted amongst a great many officials habits and practices inconsistent

with the standard of conduct now required by the Bill of Rights. Today, law enforcement officials

must be highly skilled in the use of investigative tools and extremely knowledgeable about the

intricacies of the law. One error in judgment during initial contact with a suspect can, and often

does, impede the investigation and could affect the fairness of the trial. For example, an illegal

search may so contaminate evidence obtained that it will not be admitted as evidence in court.

In addition to losing evidence for prosecution purposes, failing to comply with constitutional

mandates often leads to liability on the part of the law enforcement official.

1 Introduction

The primary objective of this article is to determine whether the search and seizure

measures employed in the South African criminal justice system are in need of any

reform and/or augmentation in accordance with the ‘spirit, purport and obj ect’ of

the Constitution. This article analyses ‘search and seizure’ in the South African

1

BA (Hons) LLB LLM LLD, Associate Professor in the Department of Criminal and Procedural Law, Uni-

*

versity of South Africa. This article is based on an LLD degree completed at the University of South Africa.

A substantial part of this article was completed during a visiting scholarship at the University of Cape

Town. I remain indebted to the University of Cape Town for accommodating me and availing its facilities.

Constitution of the Republic of South Africa, 1996 (hereafter either the 1996 Constitution or the

1

Constitution). See also Minister of Safety and Security v Van der Merwe 2011 2 SACR 301 (CC). All

154 (2015) 30 SAPL

criminal justice system as is made possible by chapter 2 of the Criminal Procedure

Act 51 of 1977, which provides for search warrants, the entering of premises, and

2

the seizure of property connected with offences. It determines whether the required

judicial scrutiny provides a real control upon the exercise of search and seizure

powers. Relating to this, but a distinct issue, is the sufficiency of information provided

by the applicant to the issuer of the warrant. Proof of reasonable grounds to believe

not only that an offence has been committed, but also that there will be evidence of

it on the premises to be searched may be necessary to comply with the derogation

from the right to privacy contained in section 14 of the South African Constitution.

Search and seizure legal principles extracted from American criminal procedure will

also be analysed for comparative purposes.

A search warrant judicially authorises and legitimises searches and seizures.

In South Africa the eventual outcome of constitutionalism was that South African

courts have now succeeded in imposing strict constraints upon the circumstances

when a warrant may be issued and requires that the issuance itself should

generally be a judicial act. By prohibiting unreasonable searches and seizures,

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and through regulation of the warrant process the Constitution imposes important

limits on the powers of police and law enforcement officials in the prevention and

investigation of crime. Because of the fetters placed upon the granting of

4

warrants, the warrant procedure can now be viewed as a due process safeguard

rather than a coercive means of obtaining incriminating evidence through

exceptional intrusion into a person’s privacy.5

The Constitution affects a fundamental balance between the interests of society

in bringing offenders to justice and the rights and liberties of persons suspected of

crime. There was an inherent need for clear and certain rules within which the state

should operate. A person’s right to be free from being searched and having his goods

confiscated has its origin in common law in the context of eighteenth century English

law-abiding citizens of this country are deeply concerned about the scourge of crim e. In order to

address this problem effectively, every lawful means must be employed to enhance the capacity of

the police to root out crime or at least reduce it significantly. Warrants issued in terms of s 21 of the

Criminal Procedure Act 51of 1977 are im portant weapons designed to help the police to carry out

efficiently their constitutional mandate of, amongst others, preventing, com bating, and investigating

crime. In the course of employing this tool, they inevitably interfere with the equally important

constitutional rights of individuals who are targ eted by these warrants.

Hereafter the Criminal Procedure Act. Chapter 2 of the Criminal Procedure Act is entitled ‘Search

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Warrants, Entering of Premises, Seizure, Forfeiture and Disposal of Property Connected with Offences’.

In addition to s 19, it also accommodates the following provisions, dealing with search and seizure with

a warrant, which are detailed in this chapter: s 20 (the state may seize certain articles); s 21 (an article

to be seized under a search warrant); s 25 (power of the police to enter premises in connection with

state security or any offence); s 27 (resistance against entry and search); section 28 (wrongful search

an offence, and award of damages); s 29 (search to be conducted in a decent and orderly manner).

Zuma v National Director of Public Prosecutions 2006 1 SACR 468 (D).

3

Id 487.

4

Ibid.

5