Legal Articles

The right to privacy is one of the fundamental rights that are protected in the Constitution of the Republic of South Africa Act 108 of 1996 (the Constitution). Indeed, privacy is one of the key issues that have been of much debate in the past two decades the world over. In the context of South Africa, we recently saw the coming into effect of the Protection of Personal Information Act 4 of 2013 in July 2020, although some of its sections had came into effect in 2014.

A person’s home or dwelling is usually where his/her privacy is assured, and violation of this privacy boils down to a violation of dignity as well. However, there have been numerous media reports in the past about how homes and dwellings have been used to perpetuate criminal activities, by storing either stolen goods or illegal substances. In some instances, private homes have been turned into mini-factories where illegal substances are manufactured.

We believe the legislature were awake to this fact when they promulgated the Criminal Procedure Act 51 of 1977 (CPA), particularly section 22 which provides that:

22            Circumstances in which article may be seized without search warrant

A police official may without a search warrant search any person or container or premises for the purpose of seizing any article referred to in section 20-

(a) if the person concerned consents to the search for and the seizure of the article in question, or if the person who may consent to the search of the container or premises consents to such search and the seizure of the article in question; or

(b) if he on reasonable grounds believes

(i) that a search warrant will be issued to him under paragraph (a) of section 21 (1) if he applies for such warrant; and

(ii) that the delay in obtaining such warrant would defeat the object of the search.

We believe the above provision of the CPA is self-explanatory, except to emphasise that law enforcement organs are not ‘law unto themselves,’ they remain bound to operate within the bounds of the enabling legislation such the South African Police Services Act 68 of 1995, the Criminal Procedure Act 51 of 1977 as well as the Constitution.

Someone might ask, how does the CPA’s section 22 provision supersede the provisions of section 14 of the Constitution, whereas the Constitution is the supreme law of the land?

The constitution remains the supreme law of the land, but that section 36 of the constitution provides that no right is absolute and may be limited where justifiable in an open and democratic society based on freedom, dignity and equality. This is exactly why the right to freedom for those alleged to have committed offences or convicted, is limited (by being detained or imprisoned).

In conclusion therefore, the police may search and seize without a warrant if there is reasonable suspicion that the goods, premises or people are involved in the commission of a crime, that obtaining a warrant would defeat the purpose and that it will be issued if applied for. That discretion however, needs to be exercised with prudence wary of the fact that the right to privacy must be promoted, whilst balancing it against the backdrop of its limitation. Searches at road blocks as well, must be authorised by the relevant commissioned office bearers in the police service.

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