n South African Journal of Criminal Justice - A constitutional perspective of police powers of search and seizure : the legal dilemma of warrantless searches and seizures




The subject matter of this article is an evaluation of the powers granted to the police to conduct searches and seizures in the investigation and suppression of crime. This article will examine the extent and efficacy of those powers from a legal perspective, in the light of constraints imposed by the Constitution of the Republic of South Africa. A pervasive theme is the question of whether an appropriate balance can ever be achieved between the inherently conflicting interests of the public, who place a premium on crime control, and of the individual, whose focus is the protection of personal privacy and autonomy. In recent times police powers of search and seizure have been extensively questioned in South African courts. The inherent purpose of this article is to evaluate the legal provisions of the Constitution of the Republic of South Africa, the Criminal Procedure Act, and the South African Police Service Act in relation to search and seizure, as well as the question of whether searches and seizures without a warrant that are not incidental to arrest, are consistent with the spirit, object and purport of the South African Constitution. The legal consequences of obtaining evidence in violation of a right in the Bill of Rights will also be examined, and legal principles from other countries will be compared to the South African context. In this article I will also propose recommendations drawn from cases and legislation in South African law, and from foreign jurisdictions.


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