Yolandi Cloete SPR 400
SUBJECT 6: SEARCH AND SEIZURE
Chapter 9
INTRODUCTION:
o Search of home, person, vehicle with or without warrant depending on
the circumstances = violation of right to privacy
o Our courts determine whether state action (police conduct) constitutes
a violation of a complainant’s right to privacy or any other right by
applying two tests:
• Test 1:
✓ the courts must determine the scope of the right to privacy
and consider whether the police conduct breached the
complainant’s right to privacy; if not that would be the
end to the matter
✓ if police conduct breached the right to privacy= courts
would continue to the second test
• Test 2:
✓ determines whether the police conduct is justified
because they for example acted ito the provisions of the
Criminal Procedure Act
✓ limitations analysis under section 36 of the Constitution
✓ if the police conduct cannot be justified under s36=
complainant would have established that his/her right to
privacy was violated
o Search and seizure matters = Chapter 2 (section 19) of the Criminal
Procedure Act
1
, Yolandi Cloete SPR 400
Scope and content of the right to privacy
o seeks to protect the right not to have one’s person or home searched,
one’s property searched, one’s possessions seized or the privacy of
one’s communications infringed
o determined by the concept of a ‘legitimate expectation of privacy’
(Bernstein v Bester)
o our courts do not define the right to privacy instead they apply the
notion of a ‘spectrum’ of privacy protection, consisting of a small
circle, followed by a number of bigger circles surrounding the central
circle
o small circle/central core: intimate core of privacy i.e. what one does in
their bedroom
o wider circles: social interactions of a less private nature i.e. travelling in
public transport
o interferences with the central core may only be justified in exceptional
circumstances whereas the outer circle which are far removed from
the central = less demanding to defend (Minister of Police v Kunjana)
o i.e. the more search and seizure interferes with the central core of
privacy = the more challenging it will be to justify
o privacy= linked to human dignity (Investigating Directorate: Serious
Economic Offences v Hyundai Motor Distributors (Pty) Ltd)
Articles that are susceptible to seizure
o CPA= confers powers to search only where the object of the search is
to find a certain person to seize or an article which falls into one of
three classes of articles, including documents, which may be seized by
the state ito provisions of the CPA:
(1) articles which are concerned in or are on reasonable grounds
believed to be concerned in the commission or suspected
commission of an offence (in RSA or somewhere else) - s20(a)
(2) articles which may afford evidence of the commission or
suspected commission of an offence (in RSA or somewhere else) -
s20(b)
(3) articles which are intended to be used or are on reasonable
grounds believed to be intended to be used in the commission of
an offence -s20(c)
2
SUBJECT 6: SEARCH AND SEIZURE
Chapter 9
INTRODUCTION:
o Search of home, person, vehicle with or without warrant depending on
the circumstances = violation of right to privacy
o Our courts determine whether state action (police conduct) constitutes
a violation of a complainant’s right to privacy or any other right by
applying two tests:
• Test 1:
✓ the courts must determine the scope of the right to privacy
and consider whether the police conduct breached the
complainant’s right to privacy; if not that would be the
end to the matter
✓ if police conduct breached the right to privacy= courts
would continue to the second test
• Test 2:
✓ determines whether the police conduct is justified
because they for example acted ito the provisions of the
Criminal Procedure Act
✓ limitations analysis under section 36 of the Constitution
✓ if the police conduct cannot be justified under s36=
complainant would have established that his/her right to
privacy was violated
o Search and seizure matters = Chapter 2 (section 19) of the Criminal
Procedure Act
1
, Yolandi Cloete SPR 400
Scope and content of the right to privacy
o seeks to protect the right not to have one’s person or home searched,
one’s property searched, one’s possessions seized or the privacy of
one’s communications infringed
o determined by the concept of a ‘legitimate expectation of privacy’
(Bernstein v Bester)
o our courts do not define the right to privacy instead they apply the
notion of a ‘spectrum’ of privacy protection, consisting of a small
circle, followed by a number of bigger circles surrounding the central
circle
o small circle/central core: intimate core of privacy i.e. what one does in
their bedroom
o wider circles: social interactions of a less private nature i.e. travelling in
public transport
o interferences with the central core may only be justified in exceptional
circumstances whereas the outer circle which are far removed from
the central = less demanding to defend (Minister of Police v Kunjana)
o i.e. the more search and seizure interferes with the central core of
privacy = the more challenging it will be to justify
o privacy= linked to human dignity (Investigating Directorate: Serious
Economic Offences v Hyundai Motor Distributors (Pty) Ltd)
Articles that are susceptible to seizure
o CPA= confers powers to search only where the object of the search is
to find a certain person to seize or an article which falls into one of
three classes of articles, including documents, which may be seized by
the state ito provisions of the CPA:
(1) articles which are concerned in or are on reasonable grounds
believed to be concerned in the commission or suspected
commission of an offence (in RSA or somewhere else) - s20(a)
(2) articles which may afford evidence of the commission or
suspected commission of an offence (in RSA or somewhere else) -
s20(b)
(3) articles which are intended to be used or are on reasonable
grounds believed to be intended to be used in the commission of
an offence -s20(c)
2
