search warrant
 

Question received

“The police came to my house and went through my things and looked under the carpet yesterday. I have nothing to hide so I let them come in but explain please how a police does get the right to come into my house? They found nothing and walked away.”

Reply

In order to fight and/ or prevent crime, South African Police Officers often need to invade our privacy. It is true that our Constitution enshrines our right to privacy (section 14) and human dignity (section 10).

However, we must remember that our Constitutional rights are not absolute in that it can be limited (section 36 of the Constitution) if, amongst a few other factors, the purpose of the limitation is important, reasonable and justifiable in an open and democratic society.

South African Police Officers have a duty to try and protect us. According to section 205 of our Constitution:

“The objects of the police service are to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law.”

The abovementioned goals of the Police would be difficult without the right to search for items that form part of, or are suspected of forming part of, a crime. Seeing as the penalty for committed crimes relies on the decision of a court based on evidence available, it is important that the Police conduct searches if they have reasonable grounds to believe that evidence may be hidden in a house. This is to ensure a safer community and life for all in our beautiful country.

However, the right to the State/ Police to search our homes is also not absolute. This right is regulated and limited in terms of the Criminal Procedure Act. What does the Criminal Procedure Act have to say about a Police Officer searching your home?

· The Police Officer should show you his/her search warrant that was issued by a magistrate or justice of peace;

· A magistrate, justice of peace or presiding officer at criminal proceedings will only grant a search warrant if there are reasonable grounds for believing that the item (connected to a suspected crime) is at a certain home;

· This search warrant allows a Police Officer to search a person, the home of a person and to take the item in question from the person;

· Police officers must search the person and / or the person’s home during the day and not at night, unless the search warrant explicitly gives the officer the right to search at night.

Only in a few circumstances may an officer search your house WITHOUT a warrant:

a) If you consent to the search and the officer removing the item;

b) If the officer has reasonable grounds to believe that a search warrant will be issued;

c) Or if the officer has reasonable grounds to believe that first obtaining a search warrant would cause a delay & lead to the item’s disappearance.

In your case you gave the Police Officers consent to enter your home, it was therefore not necessary for the Police to first obtain a search warrant. The Police must show you a search warrant if they have one but remember that the Police may also enter without one if it is urgent and in the interests of justice to not delay the search, as explained above.

When shown a search warrant, please take care to read it. The warrant may not be too general or vague but rather specific in what its aim is. This was repeatedly said in the case of Powel v Waja, which also highlighted the fact that one may challenge the validity of a search and/ or a search warrant in court. Remember that you can question the search by contacting the relevant Police Station and asking to speak to the Station Commander. It is therefore important that you request the full name and rank of the Police Officer/s searching your home.

We hope this clears matters up a bit.

Wishing you a great day,

Legal Hero.

www.legalhero.co.za