Unlawful Search And Seizure – Part 1

Rita Moodley – Candidate Attorney

An important part of a criminal investigation involves the obtaining of evidence by the search and seizure of people and things.  In a democracy like South Africa’s, a crucial act of balancing the interests between the agents of the State and protecting its citizens interest against interference of their privacy of the person and their property.

In the first part of this series, we introduce the contentious issue of search and seizure and how it impacts the constitutional right to privacy.  In following discussions, we aim to look into various situations that deal with the issue i.e roadlocks, residential premises and business premises.

What Is Privacy?

Every person has the right not to have his privacy or the privacy of his family, home or correspondence, unlawfully or arbitrarily interfered with. Every person also has the right not to have their possessions seized nor the privacy of their communications infringed.

Generally speaking, privacy is the right to be let alone and includes the freedom from interference or intrusion.  The right to privacy is legally protected.  Privacy includes any information that makes you personally identifiable as private.  The right to privacy includes bodily or personal healthcare, financial information, including privacy of communications, trade secret and domestic and workplace or public privacy.

Is Privacy Legally Protected?

The right to privacy is recognized as a fundamental human right in the Bill of Rights of the Constitution of the Republic of South Africa and is also protected in terms of the common law.

Section 14 of the Constitution provides that every person has the general right to privacy, including the right not to have one’s person, home or property searched nor one’s possessions seized or the privacy of one’s communications infringed.  When a person’s right to privacy is violated, it automatically means that the person’s right to dignity has been violated.  The Universal Declaration of Human Rights further provides that everyone has the right to privacy.

The unlawful breach of a person’s privacy constitutes an iniuria (to insult or wrong a person for which one can claim damages).  This occurs when there is an unlawful intrusion into someone’s personal privacy or there is an unlawful disclosure of their private and confidential information.

Can The Right To Privacy Be Limited And If So, Under What Circumstances?

South African law provides that a police official may, without a warrant, search an arrested person and seized any article found in the persons possession, custody or control, which may afford evidence in the commission of any offence.

This right to privacy is not absolute and may be limited where there are reasonable and justifiable grounds to do so.  Our law allows for certain boundaries or limitations to this right. In other words, the right to privacy may be restricted if there is a valuable, justifiable public purpose for example, when the law authorizes a police official to search a person who has been placed under arrest for committing a crime before taking him into custody.  So, the police official, acting in good faith, is authorized by law to invade certain rights.

Under these circumstances the arrested person’s right to privacy and freedom is restricted and or denied because the police official is exercising a lawful duty and acting with lawful authority and lawful capacity.

What Are A Person’s Rights When Their Home, Person, Vehicle Or Property Is Searched And Or When Their Property Is Seized?

The law authorizes two types of searches, namely a search with a warrant or a warrantless search.  This is briefly discussed as follows:

Search With A Warrant

The obtaining of a warrant to search and seize provides a safeguard against the abuse of public power and authority.  Generally, a police official entering a private premises is required to have a search warrant, but this is NOT an absolute requirement.

The person/police official who seeks a warrant must persuade the court beforehand, that the intrusion or limitation of the person’s right to privacy is justified.

He must produce objective evidence with information under oath, to support his suspicion which in turn will justify the issuing of a warrant (which in turn, is based on the discretion of the court).

In some instances, the conditions stated in the warrant may be unclear, vague or too wide.  Persons subjected to the search and seizure may demand a copy of the warrant and then later challenge the lawfulness of the warrant on various grounds.

This may be brought by way of claim for damages where the issue or execution of the warrant was wrongful.

Another important consequence is that the evidence or information obtained during the unlawful search, may be excluded by the trial court (Section 35 (5) of the Constitution.

Search Without A Warrant

There must be reasonable grounds based on objective facts to justify the police official’s belief that a search without a warrant is justified.

Despite the provisions of S21 (search with a warrant), S22 provides three exceptions which allows for a warrantless search to take place namely:

  1. The person who is authorized to do so, consents to the search;
  2. The police official can justify that due to demonstratable urgency, and his belief on reasonable grounds that:
    • If he applied for a search warrant one would be issued to him; and
    • The delay in obtaining a warrant would defeat the object or purpose of the search. This is where for example an article may be destroyed if the search is delayed.
  3. Regulatory inspections of commercial premises – this will not be dealt with in detail here but essentially, those regulated enterprises which call for periodic or regulatory administrative inspections may be subjected to warrantless inspections.

Warrantless searches place a significant burden on police officials and mere suspicion without evidence will not do.

What Constitutes An Abuse Of Authority During A Search And Seizure Operation?

Authorities are urged to strike a balance between a person’s constitutional rights as opposed to that of the statutory or legal requirements prescribed by the law.  A search or seizure that is carried out without just and reasonable cause may be abusive and malicious.

The abuse of public power and authority during search and seizure operations that are carried out in an insulting, or high-handed manner with reckless disregard for dignity and decency, should not be tolerated.  In certain instances and on a case by case basis, the court does not hesitate to order that the seized items are returned and may also award a punitive costs order against the offending party.

South African citizens are protected against unjustified intrusions on their privacy and property by agents of the state.

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