n Acta Criminologica: Southern African Journal of Criminology - A critical analysis of police powers of search and seizure : a constitutional challenge

Volume 22, Issue 2
  • ISSN : 1012-8093



The primary function of the Bill of Rights, which is contained in Chapter 2 of the Constitution or the Republic of South Africa of 1996, is to protect individuals when they come into contact with organs of the state, including the police. It places constraints on police powers, thereby making the enforcement of criminal law more onerous than before. At the same time, the Bill of Rights imposes a positive duty on the police to protect the interests of the country's inhabitants. Section 7(2) of the Constitution of the Republic of South Africa of 1996 emphasises that the state must respect, protect, promote and fulfil the rights in the Bill of Rights, a duty which must be performed diligently and without delay, in order to improve the quality of life of all citizens and free the potential of each person. At this turning point in the history of South Africa, when a constitutional democracy based on the rule of law must be embedded, rampant crime is one of the greatest concerns of society. It is an internationally accepted principle and standard, which the 1996 Constitution has adopted, namely that save in exceptional circumstances, prior authorisation should be obtained for search and seizure. In recent times, police powers of search and seizure have been extensively questioned in South African court, as for instance, in National Director of Public Prosecutions v Mahomed 2008 1 All 181 (SCA) and Zuma and Another v National Director of Public Prosecutions and Others 2006 (1) SACR 468 (D). The South African media recently also highlighted irregularities pertaining to warrants related to suspended and controversial National Police Commissioner, Jackie Selebi. This article will refer to the Constitution of the Republic of South Africa of 1996, the Criminal Procedure Act 51 of 1977 and the South African Police Service Act 68 of 1995 ( hereafter referred to as the Constitution, the Criminal Procedure Act and the South African Police Service Act respectively) in relation to search and seizure, as well as the question of whether warrantless searches and seizures that are not incidental to arrest are consistent with the spirit, object and purport of the South African Constitution. It is with this in mind that this article seeks to promote effective decision-making by police officials pertaining to search and seizure. The consequences of obtaining evidence in violation of a right in the Bill of Rights will also be examined.

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