TOPIC TWO: SEARCH AND SEIZURE
The issue of search and seizure is mainly a statutory matter and is dealt with in a variety of
statutes. Sections 19-36 of the CPA set out the generic provisions governing the issue but
other statutes such as the Prevention of Crime Act and the South African Police Services Act
also deal with specific instances of search and seizure. For example, s13(8) of the South
African Police Services Act authorises roadblocks and searches. Thus most of the case
authority in this topic deals with the constitutionality of searches and seizures.
What May Be Searched and Seized?
Sections 19-36 (Chapter 2) of the CPA deals with the issue of search warrants, entering
of premises, seizure, forfeiture and disposal of property connected with offences
It must be reiterated that Chapter 2 provides only generic provisions, therefore it does not
replace other search and seizure provisions in other laws (such as above)
According to s20 of the CPA, the State may generally seize anything:
o Concerned in, or on reasonable grounds believed to be concerned in, an
offence/suspected offence, whether
Beheermaatschappij Helling I in
NVthe RSA or elsewhere;
v Magistrate, Cape Town
o Which
The applicants, whomay
were,afford evidence
variously, Dutch andof South
an offence/suspected offence,
African nationals, sought ordersin the RSA or
declaring:
elsewhere;
o three search warrants issued for purposes of assisting in obtaining evidence for use against the
m
o applicants
Which isinintended/reasonably
the Netherlands, to bebelieved
unconstitutional and invalid;
to be intended to be used in the commission
er as
o theofexecution
an offenceof the searches by members of the SAPS to be unconstitutional and invalid;
Aso tothe actions of the police in allowing the Dutch authorities access to and copies of the of
material
co
what constitutes “reasonableness”, see the case of Mnyungula v Minister Safety
eH w
seized
and Security to be unconstitutional and invalid; and
o an order directing the return to the applicants of the original and/or copies of the material
o.
seized which were still in the possession or under the control of the respondents
Mnyungula v Minister of Safety and Security
The court made note of the following legal principles were applicable:
respondent, rs e
M sought an order for the return of his motor vehicle, which had been seized, without a warrant, by the third
o the terms of a search
a sergeant S warrant had to be construed with reasonable strictness and, ordinarily,
ou urc
literally;
He brought the application on the basis that the seizure had been unlawful, in that S had not had reasonable
o a warrant
grounds had to
for believing thatconvey, intelligibly,
the vehicle had been the ambitInoffact,
stolen. the his
search
beliefit was
authorised;
incorrect and the applicant had
o if thethe
purchased warrant
vehiclewere too general or if its terms went beyond those permitted by the authorising
lawfully
statute,
The seizure wasitpurportedly
was liable to be found
effected to beof
in terms invalid
ss 20 and 22 to be set CPA
of the aside; and
o
Theo court
it hadheldtothat, in interpreting
specify ss 20 and 22,
its object intelligibly andthe onusthe
within wasbounds
on the of police
the to prove, objectively
empowering statuteviewed, the
aC s
existence
Thus the courtof ample facts upon which they based their reasonable belief at the time when they acted without a
held that:
warrant
o the 'that the article
warrants placed wasno concerned
limit on in thethe commission
number or suspected
or nature commission
of the documents of antooffence'
liable be seized;
vi y re
Theo court
theyfurther
gave no held that S had
indication asknown,
to howatfar theback
timeinthat
timehethe
formed his alleged
searches could'reasonable
extend; belief', that the
information regarding the previous owner of the vehicle, as had been furnished to him by the applicant before
o the descriptions of certain of the documents liable to be seized were vague and extremely
S had formed his alleged belief, had not been checked and he had thus acted recklessly and in a most
wide; and
unreasonable manner
o as revealedviewed,
Thus, objectively by theSoff-site
had notsearches,
had, and mostcould ofnotthe
havematerial
formed,seized in execution
a 'reasonable belief'ofon
the thefirst
information
ed d
that hadwarrant
been at was notatauthorised
hand the time ofby the the warrants
seizure andseizure
and the most of ofitthe
was confidential
vehicle had thus been irregular
In The
respect
courtofnoted
the search
that theofexistence
the applicants'
of suchoffices, the search
a 'reasonable belief'warrant
could be authorised
rebutted by only
theaperson
searchwhosefor and article
ar stu
seizure
had beenof 'documentation'.
seized by showingConstruing the warrant
that the 'facts' withrelied
or 'grounds' reasonable
upon bystrictness and ininaccordance
the policeman, forming his with
itsreasonable
express wording,
belief, hadit did
notnot authorise
existed or hadthe beenseizure
false. of
In the
termsCPU's
of itsand other powers,
inherent equipment for storing
the Court could then set
electronic
aside theinformation
seizure in the from the premises.
interests of justice Nor and did
orderit authorise an offarticle
that the seized site search
be returned to the owner of such
article
Furthermore the off site search had not been necessary as the electronic data found by the police could
is
Thebeen
have court copied
also notedat thethatpremises
the evidencewithoutagainst the applicant
the necessity was very flimsy
of removing and and
it off site he would likely not be
thus disrupting the
successfully
applicants' prosecuted.
business The vehicle
for several days.should
It wastherefore
trite thatbe returned
search andto him unconditionally
seizure had to be carried out in the
Therefore theandseizure of M’s motor vehicle
The was sethadaside
noand the respondents ordered to return the vehicle
moreto
Th
least intrusive disruptive manner. police power to disrupt the applicants' business
Thethe General
applicant Rule
immediately
than was necessary. In the circumstances, the removal by the police of the bulk of the electronic
material from the applicants' offices was unlawful in that it was not authorised by the warrant
The The general
court also heldrulethatcontained in s21warrants
all three search of the CPA wereisfatally
that seizure
flawed bymay being only
both occur in terms
too vague and tooof a
search warrant
broad
sh
Search warrants
It followed can generally
that the issuing be issued
of the warrants, only
as well asbytheasearches
magistrate or a justice
themselves, wereof the peace
unlawful. In
However,
addition, if in theseized
the material course atof
the judicial proceedings
applicants' offices was thenotarticle is required
authorised in evidence
by the warrant. Thus at thesuch
proceedings,
warrants the judge/presiding
were declared invalid and the officer may were
respondents issuedirected
the warrantto return the material seized
It must be noted that search warrants are to be construed with reasonable strictness
This study source was downloaded by 100000826075669 from CourseHero.com on 05-23-2021 04:17:38 GMT -05:00 1
https://www.coursehero.com/file/80214303/2-Search-and-Seizuredoc/
, m
er as
co
eH w
o.
rs e
ou urc
o
Search By Police Official
aC s
According to s21(2) search warrants require a police official to effect the search
vi y re
Thus a warrant cannot authorise private persons to effect a search
Extra Dimension v Kruger
The second applicant was employed by Kogiso Khulani Supervision Services (KKS)
ed d
During March 2000, he wished to resign when it came to his attention that there were allegations of
ar stu
fraud against him, thus he withheld his resignation and only resigned in August 2001
During May 2002, he bought the membership interest in Extra Dimensions (the first applicant) after
which was requested by the investigating officer to go to him so that a warning statement could be
taken from him, but his attorney told him that there was no need
The second applicant's attorney thereafter telephoned the regional prosecutor and she was also of the
is
opinion that there wasn't sufficient evidence to initiate a criminal prosecution. She said that she would
withdraw the charges and send a motivated memorandum to the DPP
Th
Whilst she was under the impression that certain documentation had to be obtained, the second
respondent's officials got hold of the docket and obtained a search warrant
On 18 June 2002 members of the second respondent and the third respondent seized certain items on
the second applicant's premises in terms of the warrant, annexure to the papers. This happened in the
absence of the second applicant, who became aware of the seizure at 15h00 on the same day, when he
sh
arrived at his premises
The court held that a warrant authorising private individuals to search premises is clearly ultra vires ss
20 and 21 of the CPA as warrants must be executed by police officials
Search Normally By Day
According to s21(3) search warrants are to executed by day, unless the warrant clearly
states to the contrary
This study source was downloaded by 100000826075669 from CourseHero.com on 05-23-2021 04:17:38 GMT -05:00 2
https://www.coursehero.com/file/80214303/2-Search-and-Seizuredoc/
The issue of search and seizure is mainly a statutory matter and is dealt with in a variety of
statutes. Sections 19-36 of the CPA set out the generic provisions governing the issue but
other statutes such as the Prevention of Crime Act and the South African Police Services Act
also deal with specific instances of search and seizure. For example, s13(8) of the South
African Police Services Act authorises roadblocks and searches. Thus most of the case
authority in this topic deals with the constitutionality of searches and seizures.
What May Be Searched and Seized?
Sections 19-36 (Chapter 2) of the CPA deals with the issue of search warrants, entering
of premises, seizure, forfeiture and disposal of property connected with offences
It must be reiterated that Chapter 2 provides only generic provisions, therefore it does not
replace other search and seizure provisions in other laws (such as above)
According to s20 of the CPA, the State may generally seize anything:
o Concerned in, or on reasonable grounds believed to be concerned in, an
offence/suspected offence, whether
Beheermaatschappij Helling I in
NVthe RSA or elsewhere;
v Magistrate, Cape Town
o Which
The applicants, whomay
were,afford evidence
variously, Dutch andof South
an offence/suspected offence,
African nationals, sought ordersin the RSA or
declaring:
elsewhere;
o three search warrants issued for purposes of assisting in obtaining evidence for use against the
m
o applicants
Which isinintended/reasonably
the Netherlands, to bebelieved
unconstitutional and invalid;
to be intended to be used in the commission
er as
o theofexecution
an offenceof the searches by members of the SAPS to be unconstitutional and invalid;
Aso tothe actions of the police in allowing the Dutch authorities access to and copies of the of
material
co
what constitutes “reasonableness”, see the case of Mnyungula v Minister Safety
eH w
seized
and Security to be unconstitutional and invalid; and
o an order directing the return to the applicants of the original and/or copies of the material
o.
seized which were still in the possession or under the control of the respondents
Mnyungula v Minister of Safety and Security
The court made note of the following legal principles were applicable:
respondent, rs e
M sought an order for the return of his motor vehicle, which had been seized, without a warrant, by the third
o the terms of a search
a sergeant S warrant had to be construed with reasonable strictness and, ordinarily,
ou urc
literally;
He brought the application on the basis that the seizure had been unlawful, in that S had not had reasonable
o a warrant
grounds had to
for believing thatconvey, intelligibly,
the vehicle had been the ambitInoffact,
stolen. the his
search
beliefit was
authorised;
incorrect and the applicant had
o if thethe
purchased warrant
vehiclewere too general or if its terms went beyond those permitted by the authorising
lawfully
statute,
The seizure wasitpurportedly
was liable to be found
effected to beof
in terms invalid
ss 20 and 22 to be set CPA
of the aside; and
o
Theo court
it hadheldtothat, in interpreting
specify ss 20 and 22,
its object intelligibly andthe onusthe
within wasbounds
on the of police
the to prove, objectively
empowering statuteviewed, the
aC s
existence
Thus the courtof ample facts upon which they based their reasonable belief at the time when they acted without a
held that:
warrant
o the 'that the article
warrants placed wasno concerned
limit on in thethe commission
number or suspected
or nature commission
of the documents of antooffence'
liable be seized;
vi y re
Theo court
theyfurther
gave no held that S had
indication asknown,
to howatfar theback
timeinthat
timehethe
formed his alleged
searches could'reasonable
extend; belief', that the
information regarding the previous owner of the vehicle, as had been furnished to him by the applicant before
o the descriptions of certain of the documents liable to be seized were vague and extremely
S had formed his alleged belief, had not been checked and he had thus acted recklessly and in a most
wide; and
unreasonable manner
o as revealedviewed,
Thus, objectively by theSoff-site
had notsearches,
had, and mostcould ofnotthe
havematerial
formed,seized in execution
a 'reasonable belief'ofon
the thefirst
information
ed d
that hadwarrant
been at was notatauthorised
hand the time ofby the the warrants
seizure andseizure
and the most of ofitthe
was confidential
vehicle had thus been irregular
In The
respect
courtofnoted
the search
that theofexistence
the applicants'
of suchoffices, the search
a 'reasonable belief'warrant
could be authorised
rebutted by only
theaperson
searchwhosefor and article
ar stu
seizure
had beenof 'documentation'.
seized by showingConstruing the warrant
that the 'facts' withrelied
or 'grounds' reasonable
upon bystrictness and ininaccordance
the policeman, forming his with
itsreasonable
express wording,
belief, hadit did
notnot authorise
existed or hadthe beenseizure
false. of
In the
termsCPU's
of itsand other powers,
inherent equipment for storing
the Court could then set
electronic
aside theinformation
seizure in the from the premises.
interests of justice Nor and did
orderit authorise an offarticle
that the seized site search
be returned to the owner of such
article
Furthermore the off site search had not been necessary as the electronic data found by the police could
is
Thebeen
have court copied
also notedat thethatpremises
the evidencewithoutagainst the applicant
the necessity was very flimsy
of removing and and
it off site he would likely not be
thus disrupting the
successfully
applicants' prosecuted.
business The vehicle
for several days.should
It wastherefore
trite thatbe returned
search andto him unconditionally
seizure had to be carried out in the
Therefore theandseizure of M’s motor vehicle
The was sethadaside
noand the respondents ordered to return the vehicle
moreto
Th
least intrusive disruptive manner. police power to disrupt the applicants' business
Thethe General
applicant Rule
immediately
than was necessary. In the circumstances, the removal by the police of the bulk of the electronic
material from the applicants' offices was unlawful in that it was not authorised by the warrant
The The general
court also heldrulethatcontained in s21warrants
all three search of the CPA wereisfatally
that seizure
flawed bymay being only
both occur in terms
too vague and tooof a
search warrant
broad
sh
Search warrants
It followed can generally
that the issuing be issued
of the warrants, only
as well asbytheasearches
magistrate or a justice
themselves, wereof the peace
unlawful. In
However,
addition, if in theseized
the material course atof
the judicial proceedings
applicants' offices was thenotarticle is required
authorised in evidence
by the warrant. Thus at thesuch
proceedings,
warrants the judge/presiding
were declared invalid and the officer may were
respondents issuedirected
the warrantto return the material seized
It must be noted that search warrants are to be construed with reasonable strictness
This study source was downloaded by 100000826075669 from CourseHero.com on 05-23-2021 04:17:38 GMT -05:00 1
https://www.coursehero.com/file/80214303/2-Search-and-Seizuredoc/
, m
er as
co
eH w
o.
rs e
ou urc
o
Search By Police Official
aC s
According to s21(2) search warrants require a police official to effect the search
vi y re
Thus a warrant cannot authorise private persons to effect a search
Extra Dimension v Kruger
The second applicant was employed by Kogiso Khulani Supervision Services (KKS)
ed d
During March 2000, he wished to resign when it came to his attention that there were allegations of
ar stu
fraud against him, thus he withheld his resignation and only resigned in August 2001
During May 2002, he bought the membership interest in Extra Dimensions (the first applicant) after
which was requested by the investigating officer to go to him so that a warning statement could be
taken from him, but his attorney told him that there was no need
The second applicant's attorney thereafter telephoned the regional prosecutor and she was also of the
is
opinion that there wasn't sufficient evidence to initiate a criminal prosecution. She said that she would
withdraw the charges and send a motivated memorandum to the DPP
Th
Whilst she was under the impression that certain documentation had to be obtained, the second
respondent's officials got hold of the docket and obtained a search warrant
On 18 June 2002 members of the second respondent and the third respondent seized certain items on
the second applicant's premises in terms of the warrant, annexure to the papers. This happened in the
absence of the second applicant, who became aware of the seizure at 15h00 on the same day, when he
sh
arrived at his premises
The court held that a warrant authorising private individuals to search premises is clearly ultra vires ss
20 and 21 of the CPA as warrants must be executed by police officials
Search Normally By Day
According to s21(3) search warrants are to executed by day, unless the warrant clearly
states to the contrary
This study source was downloaded by 100000826075669 from CourseHero.com on 05-23-2021 04:17:38 GMT -05:00 2
https://www.coursehero.com/file/80214303/2-Search-and-Seizuredoc/
