Recent Case: Criminal procedure

• Pages: 386-397
• DOI: https://doi.org/10.47348/SACJ/v34/i2a11
• Date: 17 November 2021
• Published date: 17 November 2021
• Author: du Toit, P.
• Citation: (2021) 34 SACJ 386

Criminal procedure

PIETER DU TOIT

North-West University

1 Search warrants

A search warrant is a powerfu l investigative tool at the disposal of

the police. It inevitably interferes with the fu ndamental rights of

individuals affected by the search, mos t notably the right to dignity

and the right to privacy (Minister for Safety and Security v Van der

Merwe 2011 (2) SACR 301 (CC) at para [21] – hereafter Van der Merwe).

The Constitutional Cour t identied certai n safeguards aimed at

mitigating the infr ingements brought about by the utilisation of search

warrants: judicial ofcers or just ices of the peace are vested with the

authority to issue warrants; speci c jurisdictional fact s must be placed

before the issuing ofcer before the warrant may be issued; t he terms

of a search warrant may not be vague or overbroad; and nally, a

party whose rights are a ffected by a search warrant may chal lenge the

validity of the warra nt in court (Van der Merwe supra at par as [36]–[41]).

Search warrants ought to be scr utinised with ‘tech nical rigour and

exactitude’ (Powell v Van der Merwe [2005] 1 Al l SA 149 (SCA) at

para [50]). In Van der Merwe (supra at paras [55]–[56]) Mogoeng CJ also

identied a number of requirements th at need to be met for a search

warrant to comply with the common law intelligibil ity principle.

The alleged non-compliance with a number of these req uirements

formed the subject of Oosthuizen v the Magistrate, Herm anus 2021

(1) SACR 278 (WCC). In Oosthuizen, the applicant applied to the high

court for the setting aside of a search war rant based on the alleged

non-compliance with a number of these validit y requirements.

The warrant was issued in ter ms of s21 of the Criminal Procedure Ac t 51

of 1977 based on information pertain ing to drug-related offences.

The validity of the war rant was challenged on various grounds, each of

which will subsequently be dealt with. I n the course of the judgment

the court thoroughly dealt with t he legal regime in respect of search

and seizure warrants.

1.1 The absence of objective jurisdictional facts

The applicants argued that the af davits in support of the application

for the search warrant ‘did not disclose information on t he basis of

which the warrant could validly be is sued’ (at para [40]). Norton AJ,

however, found that the af davits had indeed contained sufcient

https://doi.org/10.47348/SACJ/v34/i2a11

386

(2021) 34 SACJ 386

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