Issue: Can a search and seizure warrant be declared invalid?
Here’s a question from Francois:
My business partner and I have been working together for about four years. After some initial struggles, things began to progress positively, almost too well, actually. We started making good money and expanding the business. However, everything turned for the worse when what initially seemed like a minor misunderstanding quickly escalated. Before I knew it, the authorities became involved.
One morning, I received a frantic call from my assistant, informing me that there was a small army of police officers at our office. They claimed to have a search and seizure warrant. Upon arriving at the office, they handed me the warrant and confiscated multiple documents and digital devices, such as laptops and hard drives.
I won’t sugarcoat it – I find myself in a bit of a pickle. So, I’ll be forthright about my situation. I need the items confiscated from my office to be excluded from my trial. My lawyer attempted to argue that the warrant was overly broad, but unfortunately, that effort failed. Consequently, I am exploring any alternative avenues available to me. That’s why I’ve sent you a copy of the search warrant, hoping you might identify something that could be used in my favour.
I’ve seen in movies how search warrants are dismissed in court due to technicalities, and I was hoping you could guide me in that direction.
From The Legal Desk:
Thank you for your message, Francois. When you mention “in the movies,” I assume you are referring to American films, right? Things operate a bit differently in South Africa. The courts here do not always let themselves be swayed by technicalities. In fact, in Polonyfis v The Minister of Police,1 the Supreme Court of Appeals (SCA) indicated that, unless there is an “abuse of power” or a “gross violation” of a person’s rights during a search, they are reluctant to deem a search warrant unlawful based solely on technical grounds. However, I noticed an outstanding item that may (or may not) provide you with your desired “technicality”. So, let’s take a look at the legals…
Firstly, examining the general requirements for a valid warrant would be prudent. Mogoeng J (as he was then), delivering the unanimous judgment in Minister of Safety and Security v Van der Merwe,2 stated that a valid warrant is one that, in a reasonably intelligible manner:
(a) states the statutory provision in terms of which it is issued;
(b) identifies the searcher;
(c) clearly mentions the authority it confers upon the searcher;
(d) identifies the person, container or premises to be searched;
(e) describes the article to be searched for and seized, with sufficient particularity; and (f) specifies the offence which triggered the criminal investigation and names the suspected offender.
In addition, Mogoeng J continues, the guidelines3 to be observed by a court considering the validity of the warrants include the following:
(a) the person issuing the warrant must have authority and jurisdiction;
(b) the person authorising the warrant must satisfy herself that the affidavit contains sufficient information on the existence of the jurisdictional facts;
(c) the terms of the warrant must be neither vague nor overbroad;
(d) a warrant must be reasonably intelligible to both the searcher and the searched person;
(e) the court must always consider the validity of the warrants with a jealous regard for the searched person’s constitutional rights; and
(f) the terms of the warrant must be construed with reasonable strictness.’
The very first requirement stated above is that the warrant must specify the statutory provision under which it is issued. This means that the legislation you allegedly violated must be clearly stated in the warrant.
From reviewing your warrant, I observed that the offence is listed simply as “corruption.” This does not align with the requirements of a valid warrant, as it fails to provide the Act’s name and number and the relevant section. Instead of merely stating “corruption,” the warrant should be specific and state something like “Section 4 of the Prevention and Combating of Corrupt Activities Act 12 of 2004.” This Act is legislation enacted to combat corruption.
In Thint, the Constitutional Court established the offence-specification requirement for the intelligibility of the National Prosecuting Authority (NPA) Act4 warrant. It did so in the following terms:
“A section 29 warrant should state at least the following, in a manner that is reasonably intelligible without recourse to external sources of information:
– the statutory provision in terms whereof it is issued;
– to whom it is addressed;
– the powers it confers upon the addressee;
– the suspected offences that are under investigation;
– the premises to be searched; and
– the classes of items that are reasonably suspected to be on or in that premises.”
The court in Thint imposed the offence-specification requirement as an integral part of the intelligibility principle, particularly in relation to the NPA Act. However, the same court in Van Der Merwe (par 50) held that this requirement also applies to the Criminal Procedure Act (CPA),5 which is the Act under which your warrant was issued. Van Der Merwe (par 52) also confirmed that a warrant cannot be reasonably intelligible if the empowering legislation and the offence are not clearly stated in it.
In Goqwana v Minister of Safety NO,6 Willis J highlights the following:
“[t]he warrant should pertinently refer to the specific statute and the section or subsection thereof in order to enable the person in charge of the premises to be searched (assisted, if needs be, by his or her lawyer) and also the police official authorised in terms of the search warrant to know precisely that for which the search has been authorised. The need for particularity in a warrant, especially where one is dealing with statutory offences, is salutary. This should present no difficulty in practice because search warrants are issued by magistrates who are trained and experienced in law.”
Naturally, I would need to review all the annexures that were part of your warrant and conduct a comprehensive inventory of the seized items to identify any additional issues that may not comply. However, based on the limited information you provided, you can pursue this specificity angle.
Central to your argument must be the submission that a search warrant constitutes a serious encroachment on your rights. Therefore, careful scrutiny by the courts is necessary. Madlanga J captured this sentiment well Ngqukumba v Minister of Safety and Security7 when he stated, “[i]n the face of the privacy right, as well as the right to dignity, which are closely linked, it is not overly restrictive to require the police to comply strictly with search warrant requirements.” All the best
Written by Theo Tembo
- [2011] ZASCA 26. ↩︎
- 2011 (5) 61 (CC) at par [55-56]. ↩︎
- Most of these guidelines were gleaned from both Powell NO and Others v Van der Merwe NO and Others 2005 (5) SA 62 (SCA); 2005 (1) SACR 371 (SCA) par 59 and Thint (Pty) Ltd v National Director of Public Prosecutions and Others, Zuma and Another v National Director of Public Prosecutions and Others (CCT 89/07, CCT 91/07) [2008] ZACC 13 at par [85-6] and [159]. ↩︎
- 32 of 1998. ↩︎
- 51 of 1977. ↩︎
- (20668/14) [2015] ZASCA 186 (30 November 2015) at par [29]. ↩︎
- [2014] ZACC 14. ↩︎
The Legal Desk 
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