“Now, one of the most essential branches of liberty is the freedom of one’s house. A man’s house is his castle; and whilst he is quiet, he is as well guarded as a prince in his castle.” – James Ortis
South Africa experienced widespread riots and protests between the 9th and the 17th of July 2021. The riots were largely characterized by looting leading to disrupted supply chains and stifled logistical networks. The SANDF and the SAPs were deployed on a joint mission under Operation Prosper to recover the looted goods without search warrants in what appeared to be an illegal and unconstitutional abuse of power.
Section 14 of the Constitution provides that everyone has the right to privacy, which includes the right not to have their person or home searched, their property searched, their possessions seized, and the privacy of their communications infringed. However, the rights entrenched in the Bill of Rights are not without limitation. Section 36 of the Constitution provides that the rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors. Search and seizure will therefore be constitutional if conducted in accordance with a law of general application and this discussion will focus on the Criminal Procedure Act and the South African Police Services Act.
The terms search and seizure are not clearly defined in South African law. Search may be defined as any act whereby a person, container or premises is visually or physically examined with the object of establishing whether an article is in, on or upon such person, container or premises. In Minister of Safety and Security v Xaba the court accepted that examining a person by handling, removal of garments to ascertain whether any article, usually something stolen or contraband, is concealed in his clothing qualifies as search.
Section 21 of the Criminal Procedure Act (CPA) provides that search and seizure must only be inducted in terms of a search warrant. Such warrant must have been issued by a judicial officer who must be satisfied that there are reasonable grounds to believe that some object which is connected with the investigation is on the premises sought to be searched.
Section 20 of the CPA provides for seizure to enable the police to obtain possession of an article for investigative and prosecution purposes. In Ntoyakhe v Minister of Safety and Security, the court held that the word seize simultaneously encompasses taking possession and detention of the seized article. This does not however entail that the state has a right to indefinitely deprive the person of their lawful possession.
The state may seize anything that is concerned or on reasonable grounds believed to be concerned and may give evidence of and in the commission or suspected commission of an offence and is intended to be used or on reasonable grounds believed to be intended to be used in the commission of an offence. What the police official considers as necessary and reasonable permits a subjective discretion and not an objective standard. There should exist an objective set of factual guidelines in the absence which the reasonable grounds will be deemed as vague.
Section 22 of the CPA provides that a police official may without a search warrant search any person or container or premises for the purpose of seizing any article if the person concerned consents to the search for and seizure of the article in question and if there police official has reasonable grounds to believe that a search warrant will be issued under Section 21 of the CPA and that the delay in obtain the warrant would defeat the objects of the search.
Section 23 of the CPA provides that a police officer may search an arrested person and seize any article found in the arrestee’s possession, custody or control, which may afford evidence of the commission of an offence without a warrant. Police officers are also empowered to seize any articles found on the arrested person which may be used to injure the arrested person or others.
Section 24 of the CPA provides for the search of premises. Section 13(6) of the South African Police Service Act provides that a police official may search without a warrant any person, premises, other place, vehicle, vessel or aircraft or any receptacle, and seize any article that is found and may lawfully be seized
Section 25 of the CPA empowers a police official to enter premises in connection with state security. Section 13(7) of the South African Police Service Act provides for searches in an area cordoned off for purposes of public order or safety. The provisions are broadly stated and upset the balance between rights of citizens and law enforcement concerns.
Section 26 of the CPA provides for the entering of premises by police officials for the purposes of obtaining evidence provided that consent shall be obtained from the occupier thereof. Section 13(8) allows authorises the police services to set up roadblocks and checkpoints and to conduct searches without a warrant any person or vehicle that is stopped or any receptacle or object of whatever nature that is in the possession or in, on or attached to such a vehicle, and to seize any article referred to in section 20 of the Criminal Procedure Act, that is found in the possession of the person or in, on or attached to the receptacle or vehicle.
There is no legal duty on police officials to explain the reasons for the roadblock unless expressly requested to do so. This is in direct conflict with Section 12 of the Constitution, which entrenches the right to freedom of person, which includes the right not to be arbitrarily deprived of freedom without just cause, to be free from all forms of violence, and not to be treated in a cruel, inhuman or degrading way.
Can the police conduct search and seizure operations without a warrant? Yes!! The SAPS can search you personally or your car or house even when no search warrant was obtained and even when you did not give permission for such a search. However, such a type of search without a warrant can only be executed where there are reasonable grounds to believe that a search warrant will be issued to the relevant police official should he apply for it and that the delay in obtaining such warrant would defeat the object of the search.
Section 29 of the Criminal Procedure Act provides that the search of a person must be conducted with strict regard to decency and order. In the court held that he right to enter premises, search those premises and remove goods therefrom is a significant invasion of the rights of an individual and must therefore be exercised within certain clearly defined limits so as to interfere as little as possible with the rights and liberties of the person concerned.
Sources- Rajah v Chairperson: North West Gambling Board  3 All SA 172 (T) 394, Minister of Safety and Security v Xaba  1 All SA 596 (D), National Prosecuting Authority Act 32 of 1998, National Director Public Prosecutions v Mahomed 2008 (1) SACR 309 (SCA), Moses v Minister of Safety and Security 2000 (3) SA 106 (C), Ntoyakhe v Minister of Safety and Security 2000 (1) SA 257