Subject 6 Flashcards
Search and Seizure
What factors must e taken into account when searching children?
(d) must not humiliate/intimidate child & must all times treat + communicate with child in manner that is appropriate to their age, maturity, stage of development of child
(e) take steps to protect privacy + dignity of child & must ensure that discussions with
child + parent/guardian
Articles susceptible to seizure
Which items can be searched and seized according to s20 of the CPA?
(a) Articles concerned in/ on reasonable grounds believed to be concerned in
commission/suspected commission of offence – not limited to only those in SA
(b) Articles which may afford evidence of commission/suspected commission of offence – not limited to only those in SA
(c) Articles which are intended to be used/are on reasonable grounds believed to be intended to be used in commission of offence
Articles susceptible to seizure
What is the exception to s20 of the CPA’s search and seizure?
= documents that are privileged & in respect of which holder of privilege has not given it up → so these documents cannot be seized + searched
Search in terms of search warrant
Who can issue a search warrant in terms of sec 21 of the CPA?
s21(1)=Magistrate,Justice of Peace,Judicial officer
s 21(2):= warrant must direct police official to seize article in question & thus must authorizesuch police official to search any person identified in warrant OR to enter any premises identified in warrant & to search any person found @ such premises
Discretion of Judicial Officer to issue warrant
What type of discretion must a judicial officer exercise?
-exercise discretion in reasonable + regular manner, in accordance with law & while taking all relevant facts into account
2 things judicial officer must be satisfied with before issuing search warrant –
a. Article to be searched can be seized in terms of s 20
b. Appears from affidavit that are reasonable grounds to believe article is
present @ particular place
Can the discretion of a judicial officer be contested?
Discretion of judicial officer cannot be contested based on merits → decision
to issue search warrant can only be set aside on administrative grounds (such
as male fides on part of judicial officer) but not on merits
Contents of search and seizure warrant
What are the requirements for a search warrant as laid down in the van der merwe case?
a. Warrant must mention statutory provision in terms of which it is authorized
b. Identify searcher
c. Clearly describe scope of powers granted to searcher
d. Identify person/premises to be searched
e. Clearly describe article to be searched for + seized
f. Mention offence of person being investigated
g. Mention name of person being investigated
Search and Seizure Without Warrant
What are the powers of the police ito search+seizure?
Private Persons +Police have power to conduct s+s without warrant
s 22(a) of CPA → police official may search any person/container/premises for
purpose of seizing article mentioned in s 20 where –
* Person consents to search for + seizure of article OR
* Person who may consent to search of container/premises consents to search
+ seizure of article
Search and Seizure Without Warrant
What is a S+S where a delay would defeat the object of it?
s 22(a) of CPA → police official can search any person/container/premises for
purpose of seizing any article referred to in s 20, if police official believes on
reasonable grounds that –
1. Search warrant will be issued to them in terms of s 21(1)
2. Delay in obtaining such warrant would defeat object of search
Search and Seizure without a warrant
How is a S+S on a roadblock conducted?
s 13(8) of SAPS Act → allows national/provincial commissioner of SAPS (where deemed reasonable) to authorize member under their command in writing to set up roadblock on any public road in particular area OR to set up checkpoint @ any public place
- Any member of SAPS is then authorized to search (without warrant) any
vehicle + any person in vehicle @ roadblock/checkpoint & seize any article
referred to in s 20 of CPA
What did the Madlavu case state regarding S+S at a roadblock?
= authorization of roadblocks + checkpoints in s 13(8) of SAPS Act was challenged for being vague, general + lacking particularity
Search and Seizure without a warrant
What are the powers of occupiers of a premises for S+S?
s24 of CPA → any person who is lawfully in charge of any premises can enter premises (where police are not available) for purpose of searching such premises + persons where –
a. Stolen stock/produce as defined in law relating to theft of stock/produce is on
premises concerned OR
b. Article has been placed on premises or is in custody/possession of any
person in such premises in contravention of any law relating to –
= intoxicating liquor
= dependence-producing drugs
= arms + ammunition
= explosives
Where stock is found it must be taken to police official
Search and Seizure
What is a s48 search for purposes of affecting an arrest?
s 48 of CPA → peace officer or private person who is authorized by law can arrest
another in respect of offence & who knows/reasonably suspects such person to be on premises where –
- Audibly demand entrance + state purpose for which entry is sought
- Where entry is denied: can break open + enter premises in order to search for
person to be arrested
Search and Seizure
How is the search of an arrested person carried out ito s23?
→ peace officer when making arrest may search person arrested & seize article referred to in s 20 which is in possession of arrested person
- Arrester who is not peace officer has no power to search arrested person →
but do have power to seize article in terms of s 20 which is in
possession/control of arrested person
Search and Seizure
How is the use of force to conduct an arrest regulated ito s27?
s 27(1) of CPA → police official who may lawfully search any person/premises may
use such force as reasonably necessary to overcome resistance against search or
entry of premises
- Police official must first audibly demand entrance + state purpose for which
seeks to enter premises
-s 27(2) = this principle does not apply where police official is on reasonable grounds of opinion that any article which is subject of search may be destroyed/disposed of if this proviso is complied with → known as “no-knock clause
