A Critique of Search and Seizure in Terms of a Search Warrant in South African Criminal Procedure: A Comparative Analysis
| Date | 01 November 2019 |
| Author | |
| Published date | 01 November 2019 |
| Pages | 497-521 |
| DOI | 10.3366/ajicl.2019.0288 |
The primary objective of this article is to determine whether the search and seizure measures employed in the South African criminal justice system are in need of any reform and/or augmentation in accordance with the ‘spirit, purport and object’ of the Constitution.
A search warrant judicially authorises and legitimises searches and seizures. In South Africa the eventual outcome of constitutionalism was that South African courts have now succeeded in imposing strict constraints upon the circumstances when a warrant may be issued and requires that the issuance itself should generally be a judicial act.
In the United States, as a due process safeguard, searches with a warrant are considered to be ‘good’ and searches without a warrant are ‘bad’.
The Constitution effects a fundamental balance between the interests of society in bringing offenders to justice and the rights and liberties of persons suspected of crime. There was an inherent need for clear and certain rules within which the state should operate. A person's right to be free from being searched and having his goods confiscated has its origin in common law in the context of eighteenth-century English society, where the notion of the sanctity of the home and the need of property owners to be free and secure from government intrusion was of cardinal importance.
[T]he poorest man may, in his cottage, bid defiance to all the force of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England may not enter; all his force dares [
The courts play a pivotal role in the development and application of a fair law of criminal procedure. The success of the Bill of Rights will not only depend on how the courts and the legal profession deal with it, but also how assertively and judiciously those whose rights are entrenched will invoke this instrument.
[T]he dominant theme of the Constitution … is to emphasise the ‘historic bridge’ which the Constitution provides between a past based on ‘conflict, untold suffering and injustice’ and a future which is stated to be founded on the recognition of human rights.
[T]he Constitution is not simply some kind of statutory codification of an acceptable or legitimate past. It constitutes a decisive break from a culture of apartheid and racism to a constitutionally protected culture of openness and democracy and universal human rights for South Africans of all ages, classes and colours.
In all systems it is recognised that the police exercise the powers of search of a person or of a premises, the power to seize property uncovered in such searches, and the power to arrest persons whose possible guilt is indicated by the evidence discovered during the investigation. The right to search, seize and arrest is not left entirely to the discretion of the police. In both the inquisitorial and adversarial systems these powers may be exercised only with the authorisation of a judicial officer. It is, however, universally recognised that the police may in certain circumstances act without prior authorisation.
Pre-trial procedures constitute an important consideration in the application of the Bill of Rights for two main reasons: firstly, while it is conceded that law enforcement officials may require special powers in order to conduct criminal investigations, such powers will inevitably constitute a violation of ordinary fundamental rights and freedoms of the individual:
The powers of search and seizure constitute also the first and most effective weapons in the arsenal of every arbitrary government. Human personality deteriorates and self-reliance disappears where homes, persons and possessions are subject at any hour to unheralded search and seizure by the police.
A search warrant should comply with strict requirements as to who may execute the warrant and where, how and when the warrant will become invalid. At this critical juncture in the history of South Africa, when a constitutional democracy based on the rule of law must take root, rampant crime is one of the greatest public concerns. In
The Constitution aims at advancing an ethical criminal justice system that is accountable to society. The Bill of Rights is a powerful instrument in the reconstruction and transformation of South African society. However, the Bill of Rights should not be regarded as a panacea for all ills. It should rather be understood and used within the structural context of the whole Constitution, from which it must draw its strength.
Today, law enforcement officials must be highly skilled in the use of investigative tools and extremely knowledgeable about the intricacies of the law. One error in judgment during initial contact with a suspect can, and often does impede the investigation and could affect the fairness of the trial. For example, an illegal search may so contaminate evidence obtained that it will not be admitted as evidence in court. In addition to losing evidence for prosecution purposes, failing to comply with constitutional mandates often leads to liability on the part of the law enforcement official.
In the United States the Supreme Court defined ‘search’ to mean ‘a governmental invasion of a person's privacy’.
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