It’s Friday afternoon and you’ve just gotten home after a busy week with the prospect of a relaxing weekend ahead. Suddenly there’s a loud knock on the door. You open the door to find a police officer on your doorstep. The police officer greets you formally and informs you that he wants to search your property as the police have received a tip-off of stolen contraband being kept in your house - and that if you don’t provide consent, he will come back with a search warrant. What should you do?

Search warrants and any entering and seizing of property or premises, must comply with the Criminal Procedure Act, Act 51 of 1977 (“CPA”) and meet specific requirements. The CPA makes provision for searching where the objective of the search is to find a specific person or to seize an article which falls under the following categories (subject to certain exceptions such as privileged documents):

• An article which is related to (or on reasonable grounds believed to be related to) the commission or suspected commission of an offence;
• An article which may afford evidence of the commission or suspected commission of an offence;  or
• An article which is intended to be used or is on reasonable grounds believed to be intended to be used in the commission of an offence.

The CPA determines that the abovementioned articles may only be seized with a search warrant  issued (before a criminal trial) by a magistrate or justice of the peace, if there are reasonable grounds for the belief that such article is in the possession or under the control of a person or at any premises;  or (during a criminal trial) by a judge or judicial officer presiding at criminal proceedings, if it appears that such article is required as evidence in such proceedings. Such a properly issued search warrant authorises a police official to seize the article and search any person identified in the warrant, or enter or search any premises identified in the warrant and to search any person found on or at such premises.

A search warrant must be executed by day, unless the person issuing the warrant, in writing, authorizes the execution to be at night. A search warrant may be issued on any day and remains in force until executed or cancelled by the person who issued it, or if such person is not available, by someone with the same authority.

A copy of the search warrant must, after execution, upon demand be handed to any person whose rights in respect of any search or seizure of any article under the warrant are affected.

Any search conducted under a warrant must be done in an orderly and decent manner. Where the person to be searched is a woman, a female police official must conduct the search.

Without detracting from the above, circumstances may exist where a search may be conducted and an article seized without a search warrant. A police official may without a warrant, search any person or premises for the purpose of seizing any article if –

• The person concerned consents to the search and seizure of the article in question; or
• The police official believes on reasonable grounds that a search warrant will be issued if he applies for one and the delay in obtaining such warrant would defeat the object of the search; or
• Where a police official in the investigation of a crime suspects that a person who may provide information to such crime is on any premises, such a police official may without warrant enter such premises to interrogate and obtain a statement from the person, provided that such police official doesn’t enter any private dwelling without the occupier’s consent.

A police official who acts contrary to the authority of a search warrant issued, or who searches a person or premises or seizes an article without the authority to do so is guilty of an offence.

Accordingly, should you ever answer the door and be requested permission by police officials to search your property: request the police officials to properly identify themselves, state the reasons for wishing to enter and search the premises, identify whether they have a search warrant and request a copy thereof.

Written by Nicole Tarentaal
Candidate Attorney, Phatshoane Henney Attorneys
Litigation Department