A Constitutional and a Comparative Analysis of a Search Warrant in South African Criminal Procedure
Authors Vinesh M Basdeo
Affiliations: Professor, University of South Africa
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 3, p. 320 – 338
This article analyses ‘search and seizure’ in the South African criminal justice system as is made possible by Chapter 2 of the Criminal Procedure Act, [fn1] which provides for search warrants, the entering of premises, and the seizure, of property connected with offences. The primary objective of this article is to determine whether the search and seizure measures employed in the South African criminal justice system are in need of any reform and/or augmentation in accordance with the ‘spirit, purport and object’ of the Constitution. [fn2] It determines whether the required judicial scrutiny provides a real control upon the exercise of search and seizure powers. Relating to this, but a distinct issue in itself is the sufficiency of information provided by the applicant to the issuer of the warrant. Proof of reasonable grounds to believe not only that an offence has been committed, but also that there will be evidence of it on the premises to be searched may be necessary to comply with the derogation from the right to privacy contained in section 14 of the South African Constitution. Search and seizure legal principles extracted from United States criminal procedure will be analysed for comparative purposes. footnote 1: Chapter 2 of the Criminal Procedure Act 51 of 1977 (hereinafter the ‘Criminal Procedure Act’). footnote 2: Constitution of the Republic of South Africa, 1996 Act 108 of 1996.