Search warrants are dealt with in terms of section 21 of the Criminal Procedure Act 51 of 1977 (hereinafter referred to as the CPA). Search warrants empower police officials to search premises, seize evidence, and investigate criminal activities. However, they need to be closely scrutinised to safeguard an individual’s rights in terms of the Constitution of the Republic of South Africa, 1996 (hereinafter referred to as the Constitution).
A search warrant may be issued by a magistrate or justice. Usually, a police officer who suspects that a crime has allegedly been committed, will approach the magistrate having jurisdiction, in chambers, and provide evidence under oath (in the form of an affidavit) setting out the grounds upon which they are applying for a search warrant. The affidavit must contain reasonable grounds for believing that any such article is in the possession or under the control of the person or upon any premises, where the search will be conducted.
Execution of search warrants
A valid search warrant allows the designated police officer to search any premises and seize any articles identified in the search warrant. The official named in the search warrant must identify themselves at the request of the owner or person in control of the premises.
Search warrants must be executed during the day unless execution at night is justifiable. This does not mean that a search that starts in the day, becomes unlawful at sunset. Furthermore, if a police officer left the premises in the day to fetch equipment needed for the search, and only returns after nightfall, this does not constitute an unlawful or second search.
A police officer who may lawfully search any premises may use any reasonably necessary force to carry out the search: provided that such police officer first audibly demand entrance to the premises and notify the reason/s for which he seeks to enter the premises (section 27 of the CPA)
Requirements for issuing search warrants.
A search warrant may be issued by a magistrate or justice. Usually, a police officer who suspects that a crime has allegedly been committed, will approach the magistrate having jurisdiction, in chambers, and provide evidence under oath (in the form of an affidavit) setting out the grounds upon which they are applying for a search warrant. The affidavit must contain reasonable grounds for believing that any such article is in the possession or under the control of the person or upon any premises, where the search will be conducted.
A search warrant may also be issued by a judge or a judicial officer during the course of the proceedings.
A search may also infringe upon the rights to dignity and bodily integrity. Section 29 of the CPA holds that a search of any person or premises must be carried out with strict regard to decency and order.
In the matter of Goqwana v Minister for Safety and Security NO and Others (2016) (1) SACR 384 (SCA) the court dealt with overbroad search warrants. The court held as follows:
(a) A search warrant cannot only be addressed to “The Station Commander”, the name of the police station must be mentioned in the search warrant.
(b) A search warrant must be addressed to a specifically named police officer. At least one police officer in charge of the search should pertinently be identified in the actual search warrant.
(c) Where the search relates to a statutory offence, the search warrant should refer to the specific statute, section and subsection applicable.
(d) It is important that the affidavit used in support of the warrant should accompany the warrant and be handed over with it. This is to ensure that the right of access to information, as entrenched in section 32 of the Constitution, is realised as every person should have access to information “that is held by another person and that is required for the exercise or protection of any rights”.
A search warrant needs to comply with certain requirements. The Constitutional Court in Minister of Safety and Security v Van der Merwe & Others 2011 (5) 61 (CC), held at paragraph 55 to 56 that “a valid search warrant is one that, in a reasonably intelligible manner:
(a) States the statutory provision in terms of which it is issued;
(b) Identifies the searcher;
(c) Clearly mentions the authority it confers upon the searcher;
(d) Describes the article to be searched for and seized, with sufficient particularity; and
(e) Specifies the offence which triggered the criminal investigation and names the suspected offender.
In addition, the guidelines to be observed by a court considering the validity of the warrants include the following:
(a) The person issuing the warrant must have authority and jurisdiction;
(b) The person authorising the warrant must satisfy herself that the affidavit contains sufficient information on the existence of the jurisdictional facts;
(c) The terms of the warrant must neither be vague or overbroad;
(d) A warrant must be reasonably intelligible to both the searcher and searched person;
(e) The court must always consider the validity of the warrants with a jealous regard for the searched person’s constitutional rights; and
(f) The terms of the warrant must be considered with reasonable strictness.”
It was held in S v Murphy & Others 2024 (1) SACR 138 (WCC) (12 July 2023) at para 215 that only police officers who are mentioned in the search warrant are authorised to conduct the search. It is therefore unlawful for a police officer not mentioned in the search warrant to search and seize, unless his or her actions can be justified in terms of Section 22 of the Criminal Procedure Act.
The Right to Privacy, Dignity and Bodily Integrity
Section 14 of the Constitution provides that: “Everyone has the right to privacy, which includes the right not to have
a. Their person or home searched; or
b. Their property searched;; or
c. Their possessions seized; or; and
d. The privacy of their communications infringed”.
Section 14 necessitates that any search warrant must be carefully scrutinised to balance the needs of law enforcement with the protection of individuals rights.
A search may also infringe upon the rights to dignity and bodily integrity. Section 29 of the CPA holds that a search of any person or premises must be carried out with strict regard to decency and order.
Recourse for violation of rights
Section 35(5) of the Constitution comes into play when a search is ruled to be unlawful, which state that “evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice”.
However, this directive only operates where the court concludes that the admission of the unconstitutionally obtained evidence would (a) render the trial unfair or (b) otherwise be detrimental to the administration of justice.
If a warrant is set aside, it is presumed that it never existed, and everything done pursuant thereto is unauthorized and unlawful.
Damages can be awarded to someone who suffered a wrongful and unlawful search.
When can a search be conducted without a search warrant
Police officers may search without a warrant (in terms of Section 22 of the CPA) when a person consents to the search or if a police officer reasonably believes that a search warrant would be authorised if he or she applied for it and a delay in attaining the warrant would obstruct the object of the search.
The consent to search should be of a certain quality. Prior to giving consent, a person should be made aware of the purpose of the proposed search as well as of their right to refuse the search.
CONCLUSION
In cases where a search warrant could have been obtained by a police officer, any subsequent warrantless search will consequently violate the right to privacy. Our courts must strictly scrutinise search warrants to ensure that they comply with the specified requirements.
Original Article Credit:
Author : Sam Botha
Date: June 10, 2024
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The contents of any article published by CTC Stander & Associates should not be construed as professional legal advice.