The Constitutional Challenges of Warrantless Search and Seizure in South African Criminal Procedure: A Comparative Analysis
| Pages | 161-190 |
| Date | 01 June 2012 |
| Published date | 01 June 2012 |
| DOI | 10.3366/ajicl.2012.0030 |
In South Africa suffice to say that the Constitution
Constitution of the Republic of South Africa, 1996. Unless otherwise mentioned all references to ‘Constitution’ in this article refer to the said Act (108 of 1996), hereafter either the 1996 Constitution or the Constitution.
has eliminated the core notions and latter-day practices of its predecessors: parliamentary sovereignty, a dominant executive, indiscernible separation of powers, underdeveloped political accountability, no Bill of Rights and finally a racist base. The Constitution aims to effect 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 a perceived need for clear and certain rules within which police officials should operateAlthough it is preferable that searches should only be conducted on the authority of a search warrant issued by a judicial officer, it is quite conceivable that circumstances may arise where the delay in obtaining such a warrant would defeat the object of the search. Sections 20, 22, 23, 25(3) and 27 of the Criminal Procedure Act 1977
Hereafter the Criminal Procedure Act.
deal with warrantless searchesSection 22 of the Criminal Procedure Act, which provides for search without a warrant, can basically be divided into two parts: a search conducted with the consent of the person concerned, and a search undertaken on the reasonable belief that a warrant will be issued to the police official and that a further delay will defeat the object of the search. A search conducted with the consent of the person concerned places a police official in a much better position than a search without consent. It eliminates the procedural burden of proving the existence of reasonable grounds to the search.
Working out the appropriate balance of interests in warrantless search and seizure cases is not always easy, especially since the stakes for both individuals and the State tend to be high. As a result, warrantless search and seizure law is both intriguing and challenging.
In Canada, two major principles articulated in
[1984] 2 SCR 145.
were the requirements of prior authorisation by an impartial judicial officer and for reasonable and probable grounds as a constitutional standard for overriding individual privacy interests. Nevertheless, the court also indicated that some contexts might permit lower standards. In spite of the suggestion in[1988] 66 CR (3d) 297 (SCC) 146.
T. Quigley,
The development of warrantless search and seizure powers in the United States has been constrained by the reasonableness requirement of the Fourth Amendment.
Constitution of the United States (1789), Fourth Amendment (ratified 15 December 1971).
Viewed essentially as ‘exceptions’ to the normative warrant procedure,By prohibiting unreasonable searches and seizures, and through regulation of the warrant process the Constitution places important limits on the powers of police officials in the prevention and investigation of crime. In this article it is argued that warrantless searches and seizures are rather unpredictable and by their very nature unreasonable when viewed from a constitutional perspective, primarily because they violate constitutional rights and impose an unreasonable burden on those who endeavour to defend their individual privacy rights enshrined in the Constitution against such arbitrary intrusions founded on subjective discretionary powers. This article will address the provisions of the South African Criminal Procedure Act pertaining to warrantless search and seizure. Provisions of the South African Police Service Act
68 of 1995 (hereafter the Police Service Act).
relating to warrantless search and seizure will also be examined. Then the critical principles relating to consent, exigent circumstances, and search and seizure incidental to arrest, extracted from the mentioned acts, will be addressed. This article will further evaluate whether such warrantless searches and seizures conform to the democratic legal order prescribed by the South African Constitution or whether they are in conflict with it. Principles extracted from American, Canadian and foreign jurisdictions will be considered and applied where relevant. Finally, the conclusion will consider the impact and influence of warrantless searches and seizures on the South African ConstitutionAll constitutions concern themselves with the exercise of public power.
M. H. Cheadle, D. M. Davis and N. R. L. Haysom,
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.
M. L. Du Plessis and H. Corder,
the 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.
1995 2 SACR 761 (CC) paragraph 18.
the 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 … The past was pervaded with inequality, authoritarianism and repression. The aspiration of the future is based on what is ‘justifiable in an open and democratic society based on freedom and equality’. It is premised on a legal culture of accountability and transparency.
Infringement by the executive of the right to privacy of the individual is an everyday occurrence. The Criminal Procedure Act authorises the police service to search for and seize articles. On the one hand the Criminal Procedure Act authorises the police to infringe the privacy of the individual but on the other hand it guarantees the privacy of the individual. The provisions of the Criminal Procedure Act are qualified by the Constitution, specifically sections 35 and 36 of the Constitution.
In all systems it is recognised that the police exercise the powers of search of persons or premises, the power to seize property uncovered in such searches, and power to arrest persons whose possible guilt is indicated by the evidence discovered during the investigation. The right to search, seizure and arrest is not left entirely at 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: first, 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...
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