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 powerful investigative tool at the disposal of

the police. It inevitably interferes with the fundamental rights of

individuals affected by the search, most notably the right to dignity

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

Merwe2011 (2) SACR 301 (CC) at para [21] – hereafter Van der Merwe).

The Constitutional Court identied certain safeguards aimed at

mitigating the infringements brought about by the utilisation of search

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

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

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

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

party whose rights are affected by a search warrant may challenge the

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

Search warrants ought to be scrutinised with ‘technical rigour and

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

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

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

warrant to comply with the common law intelligibility principle.

The alleged non-compliance with a number of these requirements

formed the subject of Oosthuizen v the Magistrate, Hermanus 2021

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

court for the setting aside of a search warrant based on the alleged

non-compliance with a number of these validity requirements.

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

of 1977 based on information pertaining to drug-related offences.

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

which will subsequently be dealt with. In the course of the judgment

the court thoroughly dealt with the 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 the basis of

which the warrant could validly be issued’ (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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