The standard for a preparatory investigation was lower than the standards encapsulated in s 20 of the Criminal Procedure Act. A private security vehicle in South Africa. 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. This type of seizure usually occurs in the regulatory field where documents are ordered to be produced,64 or where authorities are empowered to make copies of documents.65. 55 United States v Jacobsen 466 US SCt (1984). Politely ask why the officer wants to search you. (a) Where a police official wishes to enter a private premises for the purpose of a search for and seizure of an article mentioned in section 20 he is generally required to have a search warrant. "The objective of s 20, read with s 31 (Criminal Procedure Act) is to enable the police to obtain possession of articles for the purpose of investigating crime and prosecuting suspected offenders.". A specified objective for the roadblock should be formulated, the objective of which can be assessed. 31 Act 32 of 1998. It was further held that an authorisation in terms of the Act must describe the place where the checkpoint was to be set up with sufficient particularity. A police official may without a search warrant search any person or container or premises for the purpose of seizing any article referred to in section 20: (a) if the person concerned consents to the search for and seizure of the article in question; (b) if the police official on reasonable grounds believes that a search warrant will be issued to him under section 21 of the Criminal Procedure Act and that the delay in obtaining such a warrant would defeat the object of the search.42, 2.5 Provisions for warrantless searches and seizures in the South African Police Service Act 68 of 1995. 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 can be assumed that no consent is required. 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. It ought to be revised. A seizure also includes compelling a person to give up an item. It refers to any article. The Contractor Program Security Officer (CPSO) will be the company Security Manager/Facility Security Officer (FSO) and will oversee compliance with SAP security requirements. Comité paritaire de l'industrie v Potash 1994 168 NR (SCC). of all persons leaving the premises. 67 S v Scholtz 1996 (2) SACR 623 (C) 625. The birth of a supreme Constitution66 with an entrenched Bill of Rights can be viewed as the most important event in South African legal history. This section violates fundamental rights enshrined in the Constitution. 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 digitalization of the world is easy yet risky. All guards shall sign in and sign out in the Attendance Register. According to the South African Police Service Act unless a person expressly requests reasons for the setting up of a roadblock, there is no legal duty on a police official to inform such a person thereof. 24 Toich v The Magistrate, Riversdale 2007 (2) SACR 235 (C). In order for the search to be lawful, the premises to be searched must be clearly and properly identified in the warrant.24, Once a criminal trial has started, the judge or judicial officer presiding may issue a search warrant if it appears to such a judge or judicial officer that such an article is required in evidence before him.25, The search warrant requires a police officer or official to seize the article in question and authorises such an official to search any person identified in the warrant or to enter and search any premises identified in the warrant and search any person found on or at the premises.26, A search warrant must be executed by day unless the police official is specifically authorised therein to execute it by night.27, The safeguards against an unjustified interference with the right to privacy and other fundamental rights include prior judicial authorisation and an objective standard, that is whether there are reasonable grounds to believe based on information obtained under oath that an offence has been or is likely to be committed; that the articles sought or seized may provide evidence of the commission of the offence; and that the articles are likely to be on the premises to be searched.28. 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. 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. It is a necessary incident to democracy that citizens must be protected from unjustified intrusions of privacy and property by agents of the state. The meaning of search when viewed from a constitutional perspective should entail an element of physical intrusion, related to the level of privacy provided for in the Constitution. 44 See South African Police Service AmendmentAct 41 of 1997. 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. In 2013, R55 billion was spent on private security. However, that same evidence may be used by an employer and is admissible in the Commission for Conciliation, Mediation and Arbitration (CCMA) to prove that the dismissal of an employee for criminal activity in the workplace was fair. The Constitution of the Republic of South Africa, keeping in mind that none of the rights stipulated is absolute. There are insufficient reasons to depart from the principle that an independent and impartial person should be the final arbiter before such a drastic measure is taken. 3. This could lead to the abuse of constitutional rights, and these provisions should therefore be reviewed. In one matter which came before the CCMA, a company called upon the services of private investigators to ascertain the activity of some of its employees who were suspected of stealing and selling company property. 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 … 2. In terms of section 25 a police official may take such steps as he "considers necessary" for the maintenance of law and order or the preservation of the internal security of the Republic or the prevention of crime. Providing for the police official's opinion (that which he "considers necessary") permits a subjective discretion to be applied. The Bill of Rights confers certain rights on individuals but it also authorises the limitation of those rights in the limitation clause. 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. d. Patrol services. 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 Well, if so, then below are the tips and procedures that you need to follow to get started. The police are thus legally empowered to intrude on individual rights. 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. It is thus required to invite bidders of registered security companies to submit their bids for the forth coming three (3) year period to provide the required security services as specified to protect the public, staff, assets and property of MBCC. On this evidence, the employees in question were dismissed. The only legislation empowering PSOs to combat crime in South Africa is Section 42 of the Criminal Procedure Act. Seize illegal/forbidden items: While waiting for for your manager or supervisor to arrive, always … 2.3.1 The State may seize certain articles only. The growth in cybercrime has increased the demand for cyber security companies in South Africa. It is apparent that the Criminal Procedure Act does not require that the article about to be done away with should be material, important or significant evidence, and further that its destruction is imminent.77. In the light of the definition of 'justice' in the Criminal Procedure Act, it is submitted that too many officials are empowered to issue warrants, and this latitude could lead to warrants being issued without circumspection. the Director of Security. The navy has a small fleet consisting of frigates, submarines, minesweepers, small strike craft, and auxiliary vessels. 6.2  The South African Police Service Act. The South African Police Service Act 68 of 1995 makes provision for searches without a warrant. The constition supersedes any other legislation withing our legal … 1. Is it legal and can you refuse the search? It’s a fact, for any organization, it is of foremost importance to keep safe data and details. 60 Hunter v Southam supra, R v Collins supra. (b) a checkpoint(s) at any public place in a particular area. The National or a Provincial Commissioner may, "where it is reasonable in the circumstances to restore public order or to ensure the safety of the public in a particular area", authorise in writing that a particular area be cordoned off, specifying the period (which may not exceed 24 hours), the area and the object of the cordoning off. 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. It’s better to say you don’t consent, but you’re going to let them do it. 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. If the latter is not realised, arbitrary state actions could severely hamper and prejudice the individual's personal freedom and associated rights, that are intended to be a predominant feature of constitutionalism. Remain calm, polite and co-operative. The Constitutional validity of search and seizure powers in South African criminal procedure, Vinesh Basdeo. 34 Constitution of the Republic of South Africa 1996. 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. 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). UNIVERSITY OF SOUTH AFRICA . The union’s contract is ready to expire. Facility Searches: 1. 62 R v Evans (1996) 45 CR (4th) 210 (SCC). The South African Constitution* recognises that state authorities should not be permitted untrammelled access to search and seize. Welcome to PSiRA. I submit that in view of the substantial state interest involved, such searches without reasonable grounds in places adjacent to foreign borders would be a reasonable limitation on the right to privacy.79 Such searches are aimed at exercising control over the illegal movement of people or goods across the borders of South Africa. 6 Cited National Director Public Prosecutions v Mahomed 2008 (1) SACR 309 (SCA). Citizens' Arrest In South Africa Any South African citizen may execute an arrest for ... and THE CRIMINAL LAW AMENDMENT ACT OF 2007, Section 3 and 4. 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. 14 Steytler Constitutional Criminal Procedure 99. This allows security officers to arrest without warrant anyone who commits a schedule 1 offence in the presence of security officers (where security officers are deployed). "Everyone has the right to privacy, which includes the right not to have -, (d) the privacy of their communications infringed.". The aim of such a search is to exercise control over the illegal movement of people or goods across the borders of South Africa. Otherwise the right to seize would be rendered worthless.22 The court then went on to determine that the right of further detention of a seized article is not unlimited and thus does not confer upon the State the right to deprive a person of lawful possession of an article indefinitely. South Africa - South Africa - Security: South Africa has a large, well-equipped army, by far the largest contingent of the country’s armed forces. The United States Supreme Court defined 'search' to mean "a governmental invasion of a person's privacy".52 The power to search an arrestee's person without probable cause or a warrant appears to be constitutionally inoffensive.53, The "act of physically taking and removing tangible personal property" is generally a seizure.54 A seizure of property occurs when there is some meaningful interference with an individual's possessory interest in that property.55. In South Africa as a general rule a search should also be authorised by a judicial officer.72 However, this power is also extended to justices,73 who include commissioned officers in the South African Police Services, National Defence Force, Correctional Services, directors of public prosecution and state advocates. According to section 13(6) of the Police Service Act43 a police official may search without a warrant any person, premises, other place, vehicle, vessel or aircraft or any receptacle, and seize any article that is found and may lawfully be seized. On the arrest of any person, the person making the arrest may: (a) if he is a peace officer, search the person arrested and seize any article referred to in section 20, which is found in the possession of or in the custody or under the control of the person arrested, and where such a peace officer is not a police official, he shall forthwith deliver any such article to a police official; or, (b) if he is not a peace officer, seize any article referred to in section 20 which is in the possession of or in the custody or under the control of the person arrested and shall forthwith deliver any such article to a police official.11. 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.". 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. Photo courtesy of Quinten Theron. 64 Thomson Newspapers Ltd v Canada (Director of Investigation and Research) (1990) 76 CR (3d) 129 (SCC). 1 Act 51 of 1977. Section 14(a) of the Constitution3 specifically protects the right not to have one's person or home searched. This will involve searching bodies, property (ie bags) vehicles or even buildings. Section 22 can be divided into two parts: (1) firstly a search conducted with the consent of the person concerned and (2) secondly a search conducted in the reasonable belief that a warrant will be issued to a police official and that a delay in obtaining a warrant would defeat the object of the search. 5 Cheadle, Davis and Haysom South African Constitutional Law 51. 1.1.5 Upon becoming a resident in the estate, each owner will be required to complete a security data sheet Keywords: Criminal law, evidence, search, seizure, privacy, criminal procedure, SAPS, South African Police Service, enforcement measures, provisions. 10 National Instruction South African Police Service 1998. 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. Irrespective of the level of experience or the qualifications of the appointed polygraphist, the guidelines set down by the CCMA and supported by the Labour Court as regards polygraph test results, are quite simply that, evidence arising out of polygraph tests, which cannot be substantiated by some other form of evidence, physical or otherwise, is not sufficient to satisfy the CCMA or the Labour Court that the dismissed employee is indeed the guilty party. These measures may include measures implemented to prevent the theft of company property as well as those measures used in investigating the theft of company property. Section 13(8)(c) empowers a police official who is so authorised, to set up such a roadblock or checkpoint, as the case may be. The provisions deal with search and seizure. The latter approach to search is questionable. 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. 2. SEPTEMBER 2016 . Store exit bag checks is a local store policy where an employee or security guard will check customer purchases against their receipt at the door. Contrary to section 21 of the Criminal Procedure Act, section 14 of the Constitution protects the right not to have one's person or property searched. Detention in the Oxford dictionary is defined as: "the action of detaining or the state of being detained". This section permits the violation of fundamental human rights, does not meet the proportionality test and will not survive a constitutional challenge.