Search warrants: What do the courts require?

May 1st, 2018

By Louis Radyn

The powers with regard to the entering and searching of a premises and the seizure and forfeiture of property are mainly dealt with in s 21 of the Criminal Procedure Act 51 of 1977 (the CPA), as well as the National Prosecuting Authority Act 32 of 1998 (the NPA).

Applying for a search warrant

If and when circumstances arise and law enforcement officers find themselves in the position where they have reasonable suspicion that a crime of substance was committed, they may apply, by way of an affidavit, to the Office of the Chief Magistrate of the district – where the crime was allegedly committed – for the issue of a search warrant. The affidavit has to be completed by the specific officer who suspects the crime to have been committed, and the application may be lodged to a magistrate (not a regional magistrate) in chambers. Policemen are normally the applicants who apply for search warrants, but other properly qualified officials, for example, certain environmental management inspectors may also apply for the issuing of search warrants. The application has to meet the requirements as set out below.

Applicant requirements

The citation of ‘regional magistrate’ needs clarification. Search warrants may in actual fact not be issued by a regional magistrate in chambers if the application is brought in terms of s 21(1)(a) of the CPA, because a ‘regional magistrate’ is not a ‘magistrate’ in terms of the Magistrates’ Courts Act 32 of 1944. However, a regional magistrate may issue a ‘Bench’ search warrant in terms of s 21(1)(b) of the CPA, because they are classified as a ‘judicial officer’. In practice the corollary is that a regional magistrate may not issue such warrant if it is applied for before court proceedings start, but the magistrate may issue it during the course of court proceedings.

Although the warrant is issued by a magistrate (as opposed to a court) in their chambers, it is in fact an ex parte court order issued with the same authority as an order made by the magistrate in court. The fact that it is an ex parte order, implicates that the very strict law principle of audi alteram partem is deviated from, and this has certain far reaching consequences, for example:

  • The affidavit in question has to be meticulously drawn up and has to meet all the necessary legal requirements. Moreover, the attestation of the said affidavit has to be done correctly.
  • The attesting officer should, ideally, not be actively involved in the investigation of the case.
  • Ex parte applications, such as an application for a search warrant, must be lodged in utmost good faith. All the material facts should be objectively and fully disclosed to the judicial officer concerned.

More than 95% of all search warrants are issued by magistrates in chambers. A judicial officer needs to exercise discretion on whether to authorise a search warrant or not. Accordingly judicial officers may have differing views. Refusal does not, however, warrant a ‘forum shopping’ expedition in support of an unsuccessful applicant. Judicial officers exercise their discretion judicially and their ruling should be acknowledged.

What powers are granted to an official applying for a search warrant?

This is to be understood in its ordinary dictionary connotation. A search warrant grants a properly identified person the power to execute the actions described in the said warrant.

Section 29 of the NPA reads as follows:

‘The Investigating Director or any person authorised thereto by him or her in writing may, subject to this section, for the purposes of an investigation at any reasonable time and without prior notice or with such notice as he or she may deem appropriate, enter any premises on or in which anything connected with that investigation is or is suspected to be, and may –

(a) inspect and search those premises, and there make such enquiries as he or she may deem necessary.’

The acquiring of a search warrant may be dispensed if the applicant is – on reasonable grounds – convinced that an object, book or document, which is the subject of the search, may be destroyed, tampered with or disposed of if a search warrant is first applied for.

Entry to the premises shall be executed during the day, unless execution at night is justifiable. The authorising judicial officer has to be satisfied that the resort to these extreme powers would be rational in all the circumstances.

Search warrants are intended to ensure that the privacy of the subject’s home is not invaded at unreasonable hours. This does not signify, however, that a search, which commenced during daytime, becomes unlawful at sunset. The fact that the applicant of the search warrant left the premises during daytime to fetch certain equipment required in the search, and only returns after nightfall, does not constitute a second or unauthorised search.

If the wording of the warrant is too broad, or if its terms go beyond those that the authorising statute permits, a court of appeal will set it aside. So called ‘catch-all’ paragraphs in a warrant that refer to anything that might have a bearing on the investigation will render the warrant invalid. A ‘one size fits all’ warrant is also not acceptable. A warrant should reflect the merit of each occasion, not simply be taken from a template. An overbroad warrant cannot be saved by saying that the individual subject to the search knew or ought to have known what was being looked for. The specific objects being searched for, should be itemised.

The specific applicant has to be identified by name in the search warrant. The search warrant cannot simply be issued to ‘the station commander’. This amounts to the same as ‘to whom it may concern’. More than one person may be named, but it is of paramount importance to note that a ‘team’ of persons – whose individual names are not mentioned on the search warrant – may not simply be sent into premises to do a search.

Conducting searches

Any person who acts on the authority of executing the search warrant ‘may use such force as may be reasonably necessary to overcome any resistance against such search or against entry of the premises, including the breaking of any door or window of such premises: Provided that such police official shall first audibly demand admission to the premises and notify the purpose for which he seeks to enter such premises.’

A executing searcher may dispense with the issue of a search warrant –

  • if the person who is competent to do so consents to the search and entry; or
  • if the searcher believes on reasonable grounds that the required warrant will be issued to them if they were to apply for such warrant (see s 29(4) of the NPA), and the delay caused by the obtaining of such warrant would defeat the object of the search.

A warrant stating that the subject of the search should know what was being looked for, will not be acceptable. The warrant must specify its object, and must do so intelligibly within the bounds of the empowering statute.

  • Conducting searches on individuals

Any person executing a search warrant must, before commencing with the execution thereof, identify themselves to the person in control of the premises, if such person is present and to hand over a copy of the search warrant. If such person is not present, affix a copy of the search warrant to a prominent place on the premises.

The court will examine search warrants with a jealous regard for the liberty of the subject and their rights to privacy. Resultantly the courts are inflexible in their approach that the privacy of the subject’s homes are not invaded at unreasonable hours.

The person executing the search warrant must supply the person in charge of premises – at their request – with particulars regarding their authority to execute a warrant.

Any person who obstructs the executing searcher in the performance of their functions, shall be guilty of an offence. In a similar vein the subject of a search who is asked for information relating to matters within their knowledge, and who refuses to co-operate, shall be guilty of an offence.

  • Conducting searches at locations

The executing searcher enumerated in the warrant must identify themselves at the request of the owner or the person in control of the premises. This may be a person other than the person subjected to the search.

A search warrant must convey intelligibly to both searcher and searched the ambit of the search. There should be no ambiguity or vagueness.

  • Conducting searches on vehicles

The executing searcher must satisfy the judicial officer with the necessary information that there is reasonable suspicion that, for example, the subject vehicle was used in the commission of an identifiable offence. For example, the vehicle, which was used to convey a person or persons to the place where an offence was subsequently committed, cannot necessarily be said to have been used in the commission of the offence. An example of where a vehicle was used in the commission of an offence would be when it is alleged that the vehicle itself was used to haul out an illegal gill net from the water.

Confiscating evidence

If someone claims that any item discovered contains privileged information and for that reason refuses the seizure of such item, the executing searcher must request the registrar of the High Court to seize and remove that item for safe custody until a court of law has made a ruling on the question whether the information concerned is privileged or not.

A judicial officer should not refuse to issue a warrant merely because they are of the view that such material is not necessary for the investigation of the matter.

A fortiori a magistrate cannot refuse an application for a search warrant, because they consider that the required evidence can be attained by invoking the less rigorous measures provided for in s 28 of the NPA, in terms of which, the investigating director may hold an inquiry on the matter in question.

Louis Radyn Dip Iuris (Unisa) BIuris is a retired senior magistrate and assessor at the KwaZulu-Natal Local Division of the High Court in Durban.

This article was first published in De Rebus in 2018 (May) DR 16.