Recent Case: Criminal procedure

• Jurisdiction: South Africa
• Date: 11 September 2019
• Pages: 233-245
• Author: Pieter du Toit
• Published date: 11 September 2019

Criminal procedure

PIETER DU TOIT

North-West University

1 Search and seizure

1.1 The plain-view doctrine and warrantless searches

The Constitutional Cour t characterised the right to pr ivacy as lying

on a continuum, indicating that the more a person inter-relates w ith

the world, the more the right to privacy attenuates (Investigating

Directorate: Seriou s Economic Offences v Hyundai Motor Distributors

(Pty) Ltd; In re Hyundai Motor Distributors (Pty) Ltd v Smit 2001 (1) SA

545 (CC) at para [15] with reference to Bernstein v Bester 1996 (2) SA

751 (CC)). The right to privacy, however, continues to exist outside the

inner sanctum of the per son and the home. In this regard the court i n

Hyundai Motor Distributors supra held (at para [16]):

‘Thus, when people are in their ofces, in their cars or on mobile telephones,

they still retain a right to be left alone by the State unless certain conditions

are satised. Wherever a person has the ability to decide what he or she

wishes to disclose to the public and the expectation that such a decision will

be respected is reasonable, the right to privacy will come into play.’

Thus, the lawfulness of a se arch and seizure operation will depend on

the citizen’s reasonable expectation of privacy.

Du Toit v Provincial Minister of Environmental Affairs and

Development Planning, Western Cap e 2019 (1) SACR 311 (WCC) dealt

with pre-trial l itigation regarding the validity of the search of two motor

vehicles. As a result of information received regarding il legal hunting

activities, nature conser vation ofcials had introduced night patrols

in a certain di strict. One evening, whilst their vehicle was parked at a

crossing in a public road, two ofcials ‘observed a spotl ight that moved

repeatedly back and forth across the veld in the dist ance’; an indication

of hunting activities (at paras [16] and [17]). The ofcials stopped the

applicants who were driving in two separate vehicles on the public

road. The vehicles were approaching from the same direction where

they had observed the spotlight earlier. The two ofcia ls made use of a

torchlight to assist in illumi nating the night-time darkness. One of the

ofcials, whilst sta nding close to the driver’s side of the rst vehicle

RECENT CASES

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(2019) 32 SACJ 233

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