It is trite in our law that everybody has the right to privacy as enshrined in our Constitution. However, as with all other rights, the Bill of Rights limits these rights in certain instances too.
So what are the implications of search-and-seizure by the police?
A police officer does indeed have the right to search your property, but certain requirements have to be met. And this is what our community needs to be aware of.
It is indeed true some police officers do abuse their powers insofar entering and illegally searching premises and/or properties without a search warrant and in many instances not even with the consent of the owner of the property.
In terms of section 22 of the Criminal Procedure Act 51 of 1977 a police officer has the right to search without a warrant any person, premises, container or vehicle and may subsequently seize certain items/evidence in certain circumstances.
There are two instances where a police officer may enter your property without a search warrant. But most importantly, when you give them permission to do so and when police determine that obtaining a search warrant would delay and defeat the ends of justice.
It is also important to know that if and when the police want to search your property or premises they must inform you of the purpose of their search.
If the police officer refuses or is vague in explaining the reason for the search you need not give your consent for the search and request they obtain a search warrant and, further to that, they have to be of the reasonable opinion/belief that a warrant must be issued.
Therefore, if a police officer elects not to apply for a search warrant, he/she must ensure the premises or property is searched, that everything is explained to the owner or person. These are:
i. The purpose of the search;
ii. Their right not to have the property and/or persons searched;
iii. Be informed of their entitlement to refuse such consent.
If the police fail to explain the search and still continue with it, and they seize items and/or property during it, then it will be determined that such evidence was obtained unconstitutionally.
This could lead to your case likely being withdrawn, as the police action against the Criminal Procedure Act and Constitution of the Republic of South Africa, as your right to privacy has been infringed as well as your right to a fair trial.
