41 Highstead Entertainment (Pty) Ltd t/a 'The Club' v Minister of Law and Order 1994 (1) SA 387 (C) 393A. A private security vehicle in South Africa. Searching Procedure It is essential that the Security Officer understanding the procedure and practices around searching a person, vehicle or searching clothing or bags. All the contents of this journal, except where otherwise noted, is licensed under a Creative Commons Attribution License, Potchefstroom Electronic Law Journal (PELJ). South Africa Law. 61 M Finkelstein and N Finkelstein Constitutional Rights in the Investigative Process 1991 89. 29 Mandela v Minister of Safety and Security 1995 (2) SACR 397 (W) 401b. These safeguards are inherent in South African law and are also profound in the jurisprudence of the United States and Canada. In South African law a peace officer may without a warrant search an arrested person and seize any article found in the arrestee's possession, custody or control, which may afford evidence of the commission of an offence.12 Further, the peace officer may place in safe custody any object found on the person of the arrestee, which the arrestee may use to cause bodily injury to the arrestee or others.13 Although the reasonableness of such a search is not constitutionally doubtful, the following principles should be observed when applying section 23 of the Criminal Procedure Act. The types of measures companies are looking to implement in an effort to prevent the theft of company property include video surveillance cameras, audio equipment, security check points at which body and bag searches are carried out and the monitoring and interception of employee communications. The Criminal Procedure Act has long provided the only legal basis for obtaining warrants to search and seize or for performing such actions without a warrant in some circumstances. What to do when a police officer wants to search you: 1. In an attempt to facilitate the investigation of the theft of company property, companies seek to make use of polygraph testing and even entrapment. Ins and outs of complex security: Trustees and bodies corporate that employ in-house security guards are taking a risk, and could end up on the wrong side of the law. The Criminal Procedure Act makes provisions for a number of instances, depending on the objective thereof, in which a search of premises may be conducted without a warrant. Search and seizure will therefore be constitutional if it is authorised by a law of general application, such as the Criminal Procedure Act (which in itself contains reasonable requirements to be complied with before a search may be conducted and which indicates how it must be conducted). This power is granted in respect of searches within a corridor of 10 kilometres or any reasonable distance from any border with a foreign state, or in South African territorial waters, or inside the Republic within 10 kilometres or any reasonable distance from such territorial waters. Section 22 empowers a police official who on reasonable grounds believes that a search warrant will be issued to him if he applies for a warrant and that the delay in obtaining a warrant would defeat the object of the search to search any person, container or premises without a warrant for any article referred to in section 20. This will involve searching bodies, property (ie bags) vehicles or even buildings. However, the commissioner did see fit to comment that, in the event of the company relying on this evidence, he would have allowed its admissibility provided it was presented not as hearsay, but supported by the relevant PI and his verbal evidence. In the absence of such facts, the reliance on reasonable grounds will be vague. It is recommended that there be a legal duty on a police official to inform a person thereof. Your Security Company may offer you an assessment claiming to identify the risks in your security but unfortunately all they are actually conducting is a Product Assessment. In capturing this footage, the camera and audio equipment were concealed in the 'moonbag' of the PI in question, who thereafter presented to the company the video and audio footage, together with his written report. It’s estimated that around a quarter of South Africa’s population — 12 million people — currently live in townships, or shanty towns, many of which lack basic utilities such as running water or sewerage systems.They are also often great distances from the hearts of major cities. South African law acknowledges that state authorities should not be permitted untrammelled access to search and seizure. The guidelines recommended in carrying out these searches for purposes of ensuring that employers do not find themselves facing damages suits, are as follows: On a more amusing (or perhaps concerning note), a referred labour dispute involved a case where an employee had, at the time of being subjected to disciplinary action, and without the knowledge or consent of his employer, tapped his employer's telephone and recorded a conversation between his employer and the employer's attorney, in which the attorney had assisted the employer in preparing the notice of hearing, and had then also acted as the chairman at the hearing. The commissioner was therefore not presented with the video and audio recordings. 44 See South African Police Service AmendmentAct 41 of 1997. "The second edition of the Oxford English Dictionary gives the following meaning to 'search' where the verb relates to a person: '3.a. This section permits the violation of fundamental human rights, does not meet the proportionality test and will not survive a constitutional challenge. The objectives and purpose of the search will not be defeated by obtaining prior judicial authorisation, since the decision to cordon off is not made instantaneously. The word of the police cannot be a substitute for the decision of the issuing authority.39 The essence of reasonable grounds is that they are objective40 and can be reviewed by a court.41. Terry v Ohio56 indicated that seizure of a person occurs when an official uses physical force or makes a show of authority that in some way restrains a person's liberty so that he is not free to leave. It is maintained that an element of physical intrusion concerning a person or property is necessary to establish a search.8 'Search' where it relates to a person must be given its ordinary meaning in its context.9 Search may also be regarded as –, any act whereby a person, container or premises is visually or physically examined with the object of establishing whether an article is in, on or upon such person, container or premises.10. With the promulgation of the Constitution of the Republic of South Africa, 1996, and in particular, the Bill of Rights, it would often appear that criminals in this country enjoy more rights than their victims. It is the investigative and enforcement measures provided for by these provisions, rather than the objectives, which are in issue here. 28.1. Providing for the police official's opinion (that which he "considers necessary") permits a subjective discretion to be applied. 3. Politely ask why the officer wants to search you. The warrant may only be issued where the judicial officer has concluded that there is a reasonable suspicion that an offence has been committed, that there are reasonable grounds to believe that objects connected with an investigation into that suspected offence may be found on the relevant premises, and in the exercise of his or her discretion, the judicial officer considers it appropriate to issue a search warrant. Photo courtesy of Quinten Theron. 6 Cited National Director Public Prosecutions v Mahomed 2008 (1) SACR 309 (SCA). 4 R v Silveira (1995) 97 CCC (3d) 450 (SCC). In terms of section 29 of the Criminal Procedure Act the search of a person must be conducted with strict regard to decency and order. In these circumstances a roadblock may be set up by such a police official on any public road or roads in that area in order to determine if a vehicle is in fact carrying such an object. 5 Cheadle, Davis and Haysom South African Constitutional Law 51. The provisions deal with search and seizure. S 14 provides as follows: "Everyone has the right to privacy, which includes the right not to have – (a) their person or home searched; (b) their property searched; (c) their possessions seized; or (d) the privacy of their communications infringed.". In the ten kilometre areas along the coastline, which include major towns and cities, searches would be 'reasonably necessary' only when they are preceded by reasonable suspicion relating to the illegal movement of persons or goods. A seizure also includes compelling a person to give up an item. Detention in the Oxford dictionary is defined as: "the action of detaining or the state of being detained". Specific provisions are contained in many other Acts.2 Section 19 of the Criminal Procedure Act states that Chapter 2 of the Act shall not derogate from any power conferred by any other Act to enter any premises or to search any person, container or premises or to seize any matter, to declare any matter forfeited or to dispose of any matter. It is insufficient merely to ask if the articles are possibly connected with an offence.29 The question arising is what criteria should be employed to determine the basis of such grounds. There are now constitutionalised standards by which such legal powers are measured. One may infer that for seizure of property on reasonable grounds to be justifiable there should exist an objective set of facts which causes the officer to have the required belief. 8.4 Security incident: a breach of security or non-compliance with the Policy or its associated procedures, or where the confidentiality, integrity or availability of a SAQA asset has been compromised 8.5 Serious security incident: one whereby, in the opinion of the Chief Executive Officer, SAQA could be … Since the enactment of the Constitution there have been additional constraints on search and seizure powers. The standard for a preparatory investigation was lower than the standards encapsulated in s 20 of the Criminal Procedure Act. The policy has been drafted in accordance with the applicable provisions of the Constitution of the Republic of South Africa, Act 108 of 1996; the 28 Cheadle, Davis and Haysom (n 5) 193. see also Rajah v Chairperson: North West Gambling Board [2006] 3 All SA 172 (T) 394 the court held that for a search and seizure to be valid in terms of s 21 of the Criminal Procedure Act, "a warrant may only be issued by a magistrate or judicial officer where it appears from information on oath that there are reasonable grounds for believing that an article is in possession or under the control of or at a premises within the area of jurisdiction of that particular officer… … The present court has a wide discretion to interfere with the magistrate's decision if he has not applied his or her mind to the matter.". At the CCMA hearing, the employees' representative objected to this footage and report being used, but the commissioner was prepared to allow the evidence of the report of the PI for purposes of identifying the employees concerned. If the person who is issuing the search warrant is part of the office of the executing officer it may be asked if that person can be regarded as neutral or detached. The Minister must, after consultation with the Council, prescribe a code of conduct for. At the outset it should be pointed out that this article does not argue for the abolition of the search and seizure provisions contained in the Criminal Procedure Act and the South African Police Service Act. Source: Celeste Allan, Celeste Allan Incorporated. 14 Steytler Constitutional Criminal Procedure 99. The reason for this, says the CCMA, is based upon the inherent unreliability of this evidence and the fact that this evidence is insufficient to discharge the onus of the employer in terms of section 192 of the Labour Relations Act, 66 of 1995, as amended. It can be assumed that no consent is required. Execution of the statement of work, contract, task orders and all other contractual obligations. If the person who is issuing the search warrant is part of the office of the executing officer … (In terms of the Article 21 of the Complaints Handling Procedures of the SAHRC) Introduction The South African Human Rights Commission (the Commission) is an institution 1.1. established in terms of Section 181 of the Constitution of the Republic of South Africa (the Constitution). The truism that no right is absolute perhaps applies more to privacy than any other right. 13 S 23(b) Criminal Procedure Act, that reads as follows: "On the arrest of any person, the person making the arrest may- (b) if he is not a peace officer, seize any article referred to in s 20 which is in the possession of or in the custody or under the control of the arrested person and shall forthwith deliver any such article to a police official.". B. The Regional Security Coordinators, with notification and approval from the Director, may issue procedures pertaining to individual campuses regarding daily activities. The constition supersedes any other legislation withing our legal … 72 S 21(1) and s 25 Criminal Procedure Act. Well, if so, then below are the tips and procedures that you need to follow to get started. Take a look. 2.1 Search and seizure in terms of the Criminal Procedure Act, In the South African legal context, the terms search and seizure are not clearly defined.7 The question of what constitutes a search is left to common sense and is determined on a case by case basis. This section violates fundamental rights enshrined in the Constitution. An important part of crime investigation is the obtaining of evidence through the search and seizure of persons and things. These procedures will be a result of a two way conversation between the security company and the Board of Directors and it will be expected that guards are trained on these procedures. According to section 36 of the Constitution, rights in the Bill of Rights may be limited by a law of general application, provided that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. Given this provision, together with the Interception and Monitoring Prohibitions Act of 1992, it is assumed by employers that searches (and indeed surveillance equipment) are not permissible. Comité paritaire de l'industrie v Potash 1994 168 NR (SCC). Section 13(8)(d) of the Police Service Act, provides that a police official may set up a roadblock for the purposes of seizing certain articles without written authorisation from the National or a Provincial Commissioner, if such a police official reasonably believes that: (a) there is an object which is concerned in, or may afford evidence of, or is intended to be used in the commission of an offence listed in Schedule 149 of the Criminal Procedure Act, and, (b) such an object is present in or is about to be transported in a motor vehicle in a particular area, and, (c) a search warrant will be issued to him or her under section 21(1)(a) of the Criminal Procedure Act if he or she has reason to believe that the object will be transported in a specific vehicle and he or she has applied for a search warrant, and. Whether these measures impinge upon the employee's constitutional rights and whether they are permissible within the context of the employment relationship is the theme of this article. The requirement that a Commissioner may exercise this power only where it is "reasonable in the circumstances" imposes an objective test.50 The purpose of the roadblock ought to be reasonable. It refers to any article. 6.2  The South African Police Service Act. The benefits of these practical search procedures will soon become apparent, particularly as little time and cost is incurred. Where it is reasonable in the circumstances in order to exercise a power or perform a function referred to in the Constitution,47 section 13(8)(a) of the Police Service Act provides that the National or Provincial Commissioner may authorise a police official in writing to set up: (a) a roadblock(s) on any public road in a particular area; or. ... c. Searching of designated areas. The Supreme Court of Canada views the right to privacy as being "at the heart of liberty in a modern state".57 Founded on the bedrock value of the inherent dignity of the individual and his or her moral autonomy, the right to privacy gives the state no superior claim to prescribe how the identity of the individual is to be shaped. SEPTEMBER 2016 . In this article I consider whether or not certain provisions contained in the Criminal Procedure Act 51 of 1977 and the South African Police Service Act 68 of 1995 (hereafter the Criminal Procedure Act and the South African Police Service Act respectively) are in conflict with the Constitution. The Constitutional Court in Investigating Directorate: Serious Economic Offence v Hyundai Motor Distributors (Pty) Ltd30 had to consider and pronounce upon the constitutionality of the provisions contained in the National Prosecuting Authority Act31 (NPA Act) that authorise the issuing of warrants of search and seizure for purposes of a "preparatory investigation".32 Langa DP held that section 29(5) of the NPA Act explicitly provides that prior to issuing a search warrant a judicial officer must be satisfied that there are reasonable grounds to believe that some object which is connected with the investigation is on the premises sought to be searched. In such instances, body and bag searches are permissible provided that it is advisable that these searches be carried out by persons of the same gender as the persons being searched. To examine (a person) by handling, removal of garments and the like, to ascertain whether any article (usually something stolen or contraband) is concealed in his clothing'.". The aim of such a search is to exercise control over the illegal movement of people or goods across the borders of South Africa. 32 S 28(13) makes provision for the investigating director to hold a preparatory investigation if he or she is uncertain if there are reasonable grounds to conduct an inquiry. Any employee without an ID card shall be treated as a visitor. This radical loss prevention tactic is usually used in high-ticket specialty stores who have experienced large inventory losses. SAFETY AND SECURITY POLICY 1. Of course, there are certain limitations within which the employer may make use of this measure - the employer does not enjoy carte blanche. 2 Eg, the Special Investigating Units and Special Tribunal Act 74 of 1996; the Customs and Excise Act 91 of 1964. This principle is not fully adhered to in South African law. 55 United States v Jacobsen 466 US SCt (1984). f. Guard services Specific functions will depend on local circumstances. In 2013, R55 billion was spent on private security. 34 Constitution of the Republic of South Africa 1996. Section 23 of the Criminal Procedure Act provides for the search of arrested persons and the seizure of articles. Hereinafter referred to as the Criminal Procedure Act or Act. Otherwise, arbitrary state actions could severely affect the personal freedom and associated fundamental rights that are intended to be a predominant feature of democratic society. The South African Constitution* recognises that state authorities should not be permitted untrammelled access to search and seize.

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