Recent Case: Criminal procedure
| Jurisdiction | South Africa |
| Published date | 06 September 2019 |
| Pages | 368-381 |
| Date | 06 September 2019 |
| Author | Managay Reddi |
Criminal procedure
MaNaGaY reDDi
University of KwaZulu-Natal, Durban
Validity of search and seizure warrants
In ter ms of s 20 of the Cr iminal Procedure Act 51 of 1977 the state
may sei ze cer tain articles for the purpose of obtaining evidence for
the instit ution of a prosecution or deliberating whether to instit ute a
prosecution. Almost anything and everything m ay be seized in terms
of s 20, provided that the item seized falls i nto one of the following
three broad groups: (1) it is concerned with or reason ably suspected
to be concerned with t he commi ssion of an offence in South Africa
or elsewhere; (2) it may provide evidence of the commission of an
offence in South Africa or elsewhere; or (3) it is intended to be used or
is reasonably believed to be intended for use in the commission of an
offence. The broad ambit of s 20 is clearly intended to assist the police
in their investigations of crim inal cases.
However, subject to the provisions of ss 22, 24 and 25, any article
referred to in s 20 may only be seized in terms of a valid search warrant.
In Van Der Merwe v Additional Magistrate, Cap e Town 2010 (1) SACR
470 (C), the applicants had applied to the Cape High Court for orders,
amongst others, setting aside four search and seizure warrants that had
been issued under authority of s 21 at the instance of the police, upon
information provided by t he Sout h A frican Revenue Ser vice (SARS).
Three of the warrants had been is sued simultaneously and authorised
the search for and seizure of documents from var ious premises in
Cape Town. The fourth warrant, issued by a different magistrate,
granted similar authority in relation to premises in Bellvil le. The High
Court set aside the Cape Town warrants but dismissed the application
in respect of the Bellvil le warrant.
Minister of Safety and Secur ity v Van Der Merwe 2011 (1) SACR 211
(SCA) concerns the appeal by the Minister of Safety and Secu rity and
the Commissioner of SARS against the orders relating to the Cape
Town warrant s a nd t he respondent s’ cro ss-appeal against the order
relating to the Bellville war rant. The Supreme Court of Appeal (SCA)
thought it prudent to fir st briefly restate some of t he broad principles
relating to se arch and seiz ure warrant s before considering the issues
in dispute in this case.
The Supreme Court of Appeal began its reaffirmation of the principles
by stat ing that it was not concerned with the powers of search and
seizure that might have existed under the common law. Instead, its
368 SACJ . (2011) 3
(2011) 24 SACJ 368
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