GENERAL

In all systems it is recognised that the Police exercise the powers of search of person or premises, the power to seize property uncovered in such searches, and the power to arrest persons whose possible guilt is indicated by the evidence discovered during the investigation.

The right to search, seize and arrest is however not left entirely in the discretion of the Police. These powers may be exercised only with the authorisation of a Magistrate. It is, however, universally recognised that there may be circumstances in which the Police may act without prior Magisterial authorisation.

SEARCH AND SEIZURE

Chapter 2 of the Criminal Procedure Act regulates Search and Seizure.

The standard view is one of reasonable belief that a particular article located on certain premises is connected with the commission of an offence. The test is objective. This means that the information justifying the suspicion should be placed before a Justice of the Peace, justifying him to issue a search warrant authorising search and seizure operations. Provision is also made for the conducting of search and seizure without a warrant in circumstances where a warrant would have been granted, but the delay in obtaining one would have defeated the object of the search.

Sections 14 of the Constitution states that everyone is entitled to the right to his or her personal privacy which shall include the right not to be subject to searches of his or her person, home or property, the seizure of private possession or the violation of private communications.

Chapter 2 of the Criminal Procedure Act above seems to be in conflict with this constitutional right.

However, the right to privacy must be read in conjunction with any permissible limitations on this right in terms of Section 36(1) of the Constitution. The latter provides that rights entrenched in the Constitution may be limited by law of general application, provided that such limitation is reasonable, justifiable in an open and democratic society based on freedom and equality, and does not negate the essential content of the basic right to privacy. This limitation recognises the basic right of search and seizure but it will have to be carefully weighed against the entrenched right to privacy.

It is universally accepted that if the Police did not have the power to search and seize, with or without a warrant, it would deprive the Police of an essential tool and technique in the criminal investigative process.

The Courts therefore have the duty to closely scrutinize search and seizure operations in order to ensure that it complies with both the standard of the Criminal Procedure Act as well as the Constitution.

ARREST AND DETENTION

Similarly, the Criminal Procedure Act makes provision for arrest of suspects with or without a warrant.

As in the case of search and seizure, the provisions of the Criminal Procedure Act in relation to arrest and detention have been interpreted in the light of the limitations provided in terms of Section 36 of the Constitution. This means that the right to freedom and security of person in terms of Section 12(1) may be limited provided such limitation is reasonable, justifiable in an open and democratic society based on freedom and equality, and does not negate the essential contents of the right.

Section 35(5) of the Final Constitution requires evidence obtained in violation of the Bill of Rights to be excluded if its admission would either render the trial unfair or otherwise be detrimental to the administration of justice. These two criteria differ in that the first focus is on the need for fairness in the particular trial, while the second protects the integrity of the administration of justice. South African Courts have been at pains to emphasise that the fairness required in Section 35(5) must turn on the facts of each case, regard has to be had to circumstances such as :

• Nature and extent of the illegality by which the evidence was obtained.
• Whether the illegality was committed intentionally or unintentionally.
• Whether the illegality was a result of an ad hoc decision or part of a settled or deliberate policy.
• Whether there was circumstances of urgency or emergency which provided some excuse for the illegality.
• The nature of the crime being investigated in the commission of the illegality.

RIGHTS OF ARRESTED PERSONS

An arrested person is a person detained for allegedly committing an offence. If, for example, you are detained at a roadblock and arrested for driving under the influence of alcohol, you would, amongst others, have the following rights :

• The right to silence and against self-incrimination. This means that apart from giving the official on duty your personal particulars such as full names, address, occupation, etc., you need not answer any further questions on whether you have been consuming alcohol or not.

• The right to your own legal representative. This, however, is not an unfettered right that all proceedings must stop until such time as your legal representative arrives. When a person is arrested for driving under the influence alcohol there is a two hour period in which the accused person’s blood must be drawn, in order for the State to comply with the requirements regarding the presumption of his blood alcohol level. If however, your legal representative is at the scene, or at the Police Station or Hospital, he has the right to consult with you and advise you.

• The right to your own medical practitioner. Once again, the same requirements and limitations as expressed in regard to the legal representative apply. An arrested person is taken to a District Surgeon, or other medical practitioner, to undergo the routine examination. In terms of your constitutional right, the medical practitioner has to warn you, that any questions that he may ask, need not be answered in terms of your right of silence. Furthermore, any examination that he conducts, must be conducted voluntarily as your actions could be constituted as an admission/confession. You are therefore quite within your rights, to refuse to answer any questions or to do anything in terms of a physical examination i.e. such as walking along a line or actively assisting in any tests that the Medical Practitioner might want to conduct.

• The right to be brought before a Court. This has to be as soon as reasonably possible, but not later than 48 hours after the arrest.

• The right to apply to be released on bail.