n South African Journal of Criminal Justice - Constitutional application : recent cases
|Article Title||Constitutional application : recent cases|
|© Publisher:||Juta Law Publishing|
|Journal||South African Journal of Criminal Justice|
|Affiliations||1 University of KwaZulu-Natal|
|Publication Date||Jan 2012|
|Pages||164 - 179|
More than one hundred years ago, Innes CJ held in Hertzfelder v Attorney-General 1907 TS 403 that a search warrant issued in terms of s 45 of Ordinance 1 of 1903 (a forerunner to ss 20 and 21 the Criminal Procedure Act 51 of 1977) will only be intelligible and thus valid if the offence being investigated is specified in the warrant itself. Unfortunately, Innes CJ's decision was overturned some 22 years later by a majority in Pullen NO, Bartman NO and Orr NO v Waja 1929 TPD 838 on the narrow grounds that s 49 of the Criminal Procedure and Evidence Act 31 of 1917 (yet another forerunner to ss 20 and 21 of the Criminal Procedure Act) did not require the offence to be specified in the warrant. The question whether a search warrant issued in terms of ss 20 and 21 of the Criminal Procedure Act must specify the offence being investigated in order to be valid, therefore, has been a contentious one, that is until the Constitutional Court's judgment in Minister of Safety and Security v Van der Merwe 2011 (2) SACR 301 (CC).
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