Recent Case: Criminal procedure

• Jurisdiction: South Africa
• Published date: 06 September 2019
• Pages: 368-381
• Citation: (2011) 24 SACJ 368
• Date: 06 September 2019
• Author: Managay Reddi

Criminal procedure

MaNaGaY reDDi

University of KwaZulu-Natal, Durban

Validity of search and seizure warrants

In terms of s 20 of the Criminal Procedure Act 51 of 1977 the state

may seize certain articles for the purpose of obtaining evidence for

the institution of a prosecution or deliberating whether to institute a

prosecution. Almost anything and everything may be seized in terms

of s 20, provided that the item seized falls into one of the following

three broad groups: (1) it is concerned with or reasonably suspected

to be concerned with the commission 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 criminal 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, Cape 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 the South African Revenue Service (SARS).

Three of the warrants had been issued simultaneously and authorised

the search for and seizure of documents from various premises in

Cape Town. The fourth warrant, issued by a different magistrate,

granted similar authority in relation to premises in Bellville. The High

Court set aside the Cape Town warrants but dismissed the application

in respect of the Bellville warrant.

Minister of Safety and Security v Van Der Merwe 2011 (1) SACR 211

(SCA) concerns the appeal by the Minister of Safety and Security and

the Commissioner of SARS against the orders relating to the Cape

Town warrants and the respondents’ cross-appeal against the order

relating to the Bellville warrant. The Supreme Court of Appeal (SCA)

thought it prudent to f‌irst brief‌ly restate some of the broad principles

relating to search and seizure warrants before considering the issues

in dispute in this case.

The Supreme Court of Appeal began its reaff‌irmation of the principles

by stating 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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