Search Warrants

Search warrants, entering of premises, seizure, forfeiture and disposal of property connected with offences.

1.         Chapter 2 of the Criminal Procedure Act, No 51 of 1977 (CPA) deals with search warrants, entering of premises, seizure, forfeiture and disposal of property connected with offences.

2.         In terms of the Criminal Procedure Act the State may seize any article –

(a)       which is concerned in or is on reasonable grounds believed to be concerned in the commission or suspected commission of an offence;

(b)       which may afford evidence of the commission or suspected commission of an offence;

(c)        which is intended to be used or is on reasonable grounds believed to be intended to be used in the commission of an offence.

3.         An article referred to above shall be seized only with a search warrant issued–

(a)       by a magistrate or justice if it appears to such magistrate or justice from information on oath that there are reasonable grounds for believing that any such article is in the possession or under the control of any person or at any premises;

(b)       by a judge or judicial officer presiding at criminal proceedings, if it appears to such judge or judicial officer that any such article in the possession or under the control of any person or upon or at any premises is required in evidence.

4.         A properly issued search warrant requires a police official to seize the article in question and to that end authorises the said official to search any person identified in the warrant, or to enter and search any premises identified in the warrant and to search any person found on or at such premises.

5.         A search warrant shall be executed by day, unless the person issuing the warrant in writing authorises the execution thereof by night.

6.         A search warrant may be issued on any day and shall be of force until it is executed or is cancelled by the person who issued it or, if such person is not available, by a person with like authority.

7.         A police official executing a warrant shall, after execution, upon demand of any person whose rights in respect of any search or article seized under the warrant have been effected, hand to him a copy of the warrant.

8.         There are also circumstances in which an article may be seized without a search warrant. These are –

(a)       if the person concerned consents to the search and seizure of the article in question; or

(b)       the police official believes on reasonable grounds that a search warrant will be issued if he applies for such warrant and the delay in obtaining it would defeat the object of the search.

9.         Furthermore a person making the arrest of any person may –

(a)       if he is a peace officer, search the person arrested and seize any article referred to above in paragraph 2; or

(b)       if he is not a peace officer, seize any article referred to above in paragraph 2. Such person may therefore not search the person arrested.

10.       A police official who acts contrary to the authority of a search warrant shall be guilty of an offence and liable on conviction to a fine or to imprisonment and shall in addition be subject to an award for compensation.

11.       The search of any person or premises shall be conducted with strict regard to decency and order. 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 the purpose by a police official.

12.       If an article was seized and no criminal proceedings are instituted in connection therewith or if it appears that it is not required at the trial the article shall be returned to the person from whom it was seized, if such person may lawfully possess it or if such person may not lawfully possess it to the person who may.

13.       An article referred to above in paragraph 2 and which was seized may, depending on the circumstances – :

(a)  be returned to the person from whom it was seized, if such person may lawfully possess such article;

(b)  if such person may not lawfully possess it, to the person who may lawfully possess it;

(c)  if no person is entitled to it or if no person may lawfully possess it or if the person who is entitled thereto cannot be traced or is unknown, be forfeited to the state.