Recent Case: Criminal procedure

• DOI: https://doi.org/10.47348/SACJ/v33/i3a13
• Date: 04 March 2021
• Published date: 04 March 2021
• Pages: 761-770
• Citation: (2020) 33 SACJ 761
• Author: Watney, M.

Criminal procedure

MURDOCH WATNEY

University of Johannesburg

1 Search and seizure

In Buthelezi v Minister of Police 2020 (2) SACR 21 (GJ) the appellant

appealed the dismissal by a magis trate of his claim for damages against

the respondent. His claim was based on the alleged unlawful entr y

into and subsequent illegal search of his house without a warrant by

members of the South Afr ican Police Services. On appeal the high court

gave consideration to the requirements that have to be complied with

for a lawful search and seizure wit hout a warrant in terms of s 25(3)

of the Criminal Procedure Act 51 of 1977. Of particular importance in

this matter is the question whether a warrantless search may be lawf ul

on grounds other than those stipulated in s 25, especially when the

interests of a child intersect s the inquiry.

It appears that an angry crowd of people pointed out places to the

police where a missing child had last been seen and that the house

of the appellant was also pointed out. The appellant operated a

spaza shop and a liquor store from the house. Members of the crowd

threatened to burn buildings and attack anyone who refused to have

their houses searched. The police in formed the appellant that the

crowd demanded that his premises be searched as well and on that

basis the appellant allowed the police to conduct the search without a

warrant. The child was not in the house, but the police found liquor on

the premises. As a result, a police ofcial responsible for investigating

liquor license matters was called to the house. He entered the prem ises

and requested the appellant’s liquor license which he then produced

(paras [7], [30]).

In alleging that members of the police un lawfully entered his house

and conducted an illegal search without a warrant, the appellant

claimed that his privacy was i nfringed and claimed damages (para [1]).

The respondent indicated that there was an angr y crowd present who

wanted to harm the appellant and his proper ty and that the process

involved to obtain a warrant would have defeated the object of the

search (para [2]). The magistrate dismissed the claim and found that

the search was lawful in t hat the interests of the missing child weighed

more heavily than those of the appellant. The appellant appealed to

the high court.

The high court found that the circumstances under which the search

took place did not meet the requirements of s 25 of the Criminal

Recent cases 761

https://doi.org/10.47348/SACJ/v33/i3a13

(2020) 33 SACJ 761

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