Subject 6 Flashcards
How should search +seizure be conducted with children?
-Children must not be intimidated/humiliated+ must be treated and communicated to in a manner appropriate to their age and maturity
-Steps must be taken to protect privacy +dignity of child
Search and Seizure
Which articles may be seized ito sec 20?
Articles which are:
* concerned in or is on reasonable grounds believed to be concerned in the commission or suspected commission of an offence,
* which may afford evidence of the commission or suspected commission of an offence,
* intended to be used or is on reasonable grounds believed to be intended to be used in the commission of an offence
> Exception is privileged articles+ holder of the privilege has not provided their consent
Search with a warrant
What is the general rule regarding s+s?
-S+S take place with a warrant+ only empower police to conduct s+s
-if warrant is silent on when it can be executed it must always be executed during the day
Search with warrant
Who has the power to issue a search warrant ito sec 21?
Magistrate, justice of peace, judicial officer
-If it appears on reasonable grounds that the article is in possession/control of/at premises in his area of jurisdicton
-Warrant must direct police to seize article+authorize police to search anyone identified in warrant/enter any premises in warrant
Search with a warrant
What disrection does a judicial officer have to issue a warrant?
Exercise discretion in a reasonable+regular manner according to law+take relevant factors into account+ must be satis. that
article can be seized ito s20
-appear from affidavit that there are reasonable grounds to belive the article is present at identified place*
Search with a warrant
How can a judicial officers discretion be contested?
-Cannot be contested on merits and the decision to issue the search warrant can only be contested on administrative grounds
Search with a warrant
What are the requirements for a search warrant according to the Van der merwe case?
- Warrant must mention the statutory provision that it is authorized by
2.identify the searcher/premises to be serached
3.clearly describe the article to be s+s
4.mention the offence of the person being investigated
5.Mention name of person being investigated
Search with a warrant
What is the procedure regarding general search warrants ito sec 21?
A sec 20 article shall be seized only with a search warrant issued by:
(a) by a magistrate or justice
(b)require a police official to seize the article in and authorize police official to search any person identified in the warrant
(c)A search warrant may be issued on any day and shall be in force until it is executed or is cancelled by the person who issued it
Search with a warrant
How do sec 25 search warrants allow for the maintenance of internal peace+security?
(1) If it appears to a magis. from information on oath that there are reasonable grounds for believing-
(a) the internal security of the Republic is likely to be endangered by or in consequence of any meeting which is being held upon any premises within his area of jurisdiction
OR
(b) that an offence has been or is being or is likely to be committed within his area of jurisdiction,
-he may issue a warrant authorizing a police official to enter the premises for the purpose-
(i) of carrying out such investigations and of taking such steps as such police may consider necessary for the preservation of the internal security
(ii) searching premises for a sec 20 article
(iii)seizing such article
Search without a warrant
How may police conduct a search without a warrant ito sec 22?
Police may search any person/Premises for s+s of a sec 20 article where:
-Such Person consents to the s+s of the article OR
-Person who may consent to s+s of article/premises consents to the s+s
Search without a warrant
How may police conduct a s+s without a warrant to prevent delay ito sec 22?
Police can search any person/premises for purposes of seizing a sec 20 article if police believe on reasonable grounds:
a) a search warrant will be issued ito sec 21
b)delay in obtaining the warrant will defeat the object of the search
Search without a warrant
How do roadblocks authorize police to conduct s+s without a warrant?
Sec 13(8) of the SAPS ACT
-Allows national/provincial commisioner of SAPS to authorize a member under their command in writing to set up a roadblock on any public road OR
-Set up a checkpoint @ any public place
=Any member of SAPS is then authorized to search without a warrant any person @ roadblock/checkpoint + seize any article ito sec 20
Search without a warrant
What did the Kunjana case state regarding s+s without a warrant for drug offences?
HC held that sec 11 of Drugs+Drugs Trafficking Act provisions were too broad + court declared these provisions invalid
-Concourt held that sec 11 did not prescribe time, place +manner of search +seizures
-Concourt stated that constitutionally adequate safeguards exist to justify circumstances where legislation allows for warrantless searches + these safeguards are in sec 22 of CPA
=Concourt confirmed that sec 11 is invalid + warrantless s+s is not the norm of criminal procedure
Search without a warrant
What powers do occupiers of premises have to conduct s+s ito sec 24?
Sec 24-Any person who is lawfully in charge/occupies a premises can enter the premises (where police are not availa.) to conduct s+s on that premises where:
a)stolen stock/produce is on the premises
b)article has been placed on premises/in possession of any person in contravention of any law relating to:
* intoxicating liquor
* Drugs
* Arms+ammunition
* explosives
>where such stock is found it must be taken to police
Search without a warrant
How may police conduct s+s without a warrant for border control?
Sec 13(6) of SAPS Act
-Police can for border control search without a warrant any person, premises,vehicle at any place in SA with a 10km/resonable distance between SA+ a foreign state, airport+territorial waters + seize the article found
Search without a warrant
How may s+s be conducted by police without a warrant in a cordoned off area?
Sec 13(7) of SAPS Act- Nationl/Provincial police commisioner can in reasonable circumstances to restore public order+safety in a partic. area, authorise that area to be cordoned off for s+s
-A written authorisation set out purpose for cordoning off area+person executing search must provide a copy of the authoris. upon demand
How are searches for purposes of effecting an arrest conducted ito sec 48?
Any person who may lawfully arrest another in respect of any offence and who knows or reasonably suspects such other person to be on any premises, may:
1.if he first audibly demands entry into such premises and notifies the purpose for which he seeks entry and
2. fails to gain entry, break open, enter and search such premises for the purpose of affecting an arrest
How may the search of an arrested person be carried out ito sec 23?
Sec 23 provides:
(a) if the searcher is a peace officer, he may search the person arrested and seize any sec 20 article which is found in the possession of the person arrested + where such peace officer is not a police official, he shall deliver such article to a police official; or
(b) if he is not a peace officer, seize any sec 20 article which is in the possession of the person arrested and deliver such article to a police official.
How may force be used to conduct a search ito of sec 27?
Sec 27 use of force:
-Police who may lawfully search any person/premises may use force to overcome resistance against the search but police must 1st audibily demand entrance+state purpose for entry
No Knock clause in sec 27(2) is the exception
-doesn’t apply where police is on resonable grounds of the opinion that any article subject of the search may be destroyed/disposed if proviso is complied with
What is the sec 29 general requirement of propriety for searches?
A search of any person or premises shall be conducted with strict regard to decency and order, and a woman shall be searched by a woman only, and if no female police official is available, the search shall be made by any woman designated for that purpose by a police official
What are the consequences of unlawful searches ito sec 28?
Police official commits an offence+ is liable to a fine/imprisonment/both for a period not excee. 6 months:
-where search was contrary to authority of a search warrant ito sec 21
-without authorization searches a person/seizes any article
Disposal+Forfeiture
What happens once an article has been seized?
Sec 20 of CPA- The article will be kept in police custody+if required for crim proceedings be handed to clerk of MC/ registrar of HC
Disposal+Forefiture
How are seized articles disposed of?
Sec 34- conclusion of criminal proceedings the judicial officer makes an order for disposal of the article that it is either forfeited to the state/returned to owner
Sec 31-If no crim. proceedings take place then the article must be returned to person from whom it was seized if they are the lawful possesoor
-if no lawful possesor then art. is forfeited to the state
-lawful possesor must be notified+if they fail to take delivery within 30 days of receiving notice arti. is forfeited to the state
Case Law
What did the Dental council of SA case state regarding powers in s+s?
CC struck down provisions in legilstaion that gave inspectors sweeping powers to conduct s+s without a warrant
Case Law
What did the Hyundai Motors case state regarding search warrants under CH 2 of the CPA?
CH2 of CPA is constitutional
Case Law
What did the Madlavu case state regarding s+s at roadblocks?
Authorisation of roadblocks + checkpoints in sec 13(8) of SAPS Act was challenged for being vague+ lacking particularity
Case Law
What did the **BeheerMaatschapij **case state regarding the validity of search warrants?
Search warrants must be construed with regard to resonable strictness
