What are the implications of search and seizure? The criminal procedure act explained

It is important to note that a police officer can indeed search your property without a warrant however certain requirements need to be met for such search to be lawful.

The Criminal Procedure Act clearly states what requirements need to be met which will be discussed below:

Can a Police Officer search you or your property without a search warrant? 

The answer is simple, yes, they can. In terms of Section 22 of the Criminal Procedure Act, it is stated that a police officer may without a search warrant search any person, premises, container or vehicle to seize any evidence in certain circumstances.

What makes a search and seizure without a search warrant lawful? 

The first and utmost importance is that you need to provide your consent for the search and seizure. The second requirement is if the police officer reasonably believes that obtaining a search warrant will delay and defeat the object of the search.

It is important to note that a person to be searched or whose premises or property are to be searched MUST be informed of the purpose of the search – a mere request to be searched is insufficient, this has been determined by case law, more particularly, Magobodi v Minister of Safety and Security and others.

However, it is important to remember that there are certain circumstances where a warrant is not necessary, no matter the crime involved. Under section 22 of the Criminal Procedure Act, a police officer may execute a search in two circumstances. The first is if the suspect or owner of the property consents to a search and seizure. This applies to any search of property, persons or containers.

The second circumstance is when the need to execute the search is so urgent that the delay caused by obtaining a warrant would ‘defeat the object of the search. This allows police to search and seize evidence if they believe the suspect is going to destroy it or remove it imminently. However, there are restrictions on this power that ensure that it will not be abused. The official concerned has to have reasonable grounds to believe that if he had applied for the warrant, it would have been issued.

If there was no real urgency or if there were insufficient grounds for the search to take place, the evidence will have been unconstitutionally obtained and cannot be used against the accused during his or her trial.

The person to be searched or whose premises are to be searched MUST be informed of their right to refuse such search.

Therefore, every police officer who elects NOT to apply for the required search warrant must ensure that the person who is being searched or who has control over the property to be searched is aware of:

  • The purpose of the search;
  • their right not to have such person and/or property searched and
  • be informed of their entitlement to refuse such consent.

What happens to my case if the search and seizure were unlawful? 

Your case will most likely be withdrawn as it goes against the Criminal Procedure Act as well as the Constitution of the Republic of South Africa. Your privacy has been infringed as well as your right to a fair trial.

Even in cases where there has been evidence of criminal conduct, our courts have not to shield away from upholding the constitutional rights to privacy. It should be further considered that such infringement results in unlawful conduct and it is not be condoned.

In terms of Section 28 of the Criminal Procedure Act, a police officer that acts contrary to the Act in terms of search warrants shall be guilty of an offence and liable on a conviction to a fine not exceeding R600.00 or to imprisonment for a period not exceeding six months.

What can be seized during a search? 

In terms of the Criminal Procedure Act, a police officer may seize any item on reasonable grounds which they believe such item is intended to be used in the commission of offence, or reasonably suspect such item could be used to commit an offence.

Can a police officer search my premises? 

Yes, in terms of Section 24 of the Criminal Procedure Act, anyone who is lawfully in charge or occupation of any premises and who reasonably suspects that stolen stock or illegal items which is on such person’s premises may enter such premises for the purpose of searching such premises and such police officer may take possession thereof.

Can any person other than a police officer search my premises? 

Yes, this is stipulated in Section 24 of the Criminal Procedure Act. Any person other than a police officer may such your property and take possession of the illegal item and deliver it to a police official.

Can you be searched at a roadblock? 

Yes, you can be searched at a roadblock without a search warrant however consent needs to be given in order for the search to be lawful.

Please take note of a K78 roadblock: These roadblocks are approved by the National Police Commissioner. Police officers are allowed to search your vehicle and your person without a warrant. These roadblocks are usually set up to find a specific criminal or vehicle already on their radar

There are two types of legal roadblocks in South Africa. So-called informal roadblocks are usually found on major highways and pop up randomly as a means to curb drunken driving and speeding, for example. At these stops, a uniformed officer is legally allowed to ask for your personal information (which includes your licence). However, South Africa’s Constitution forbids arbitrary search and seizure of your person, your property or possessions.

An officer must have a valid belief that you may have been involved in a crime and that a search warrant would be issued by a court if they wish to search you or your vehicle. On the other hand, a K78 roadblock is a nationally approved exercise and officials at these stops are entitled to search you and your vehicle without a warrant.  It is illegal for an official of the opposite sex to search you.

Can you withdraw your consent to a search? 

Yes, you can withdraw your consent to the search and the police officer needs to stop immediately. You need to be very clear that you are withdrawing such consent. However, you need to do this timeously. There are certain situations where you cannot withdraw your consent. More specifically, when evidence is found, airport screening and/or when you are visiting a prison.

It is important to note that you should never resist arrest nor be arrogant to a police official as they can press further charges against you. It is best to contact Burger Huyser criminal lawyers in Johannesburg in order to obtain proper advice.