An important power given to the Police is that of search and entry of premises and the seizure of articles required for a trial.
All searches are prima facie unlawful and the onus is on the person conducting the search to justify it.
As indicated above, a peace officer or private person making an arrest may search the arrested person and, if he does so, must keep in safe custody all articles found as a result of the search. If the person making the arrest is not a police officer, he must deliver the articles to a police officer.
A police officer to whom articles are delivered must provide a full receipt for the articles; failure to do so entitles the owner of the articles to have them returned to him or her unless they are articles whose possession is intrinsically unlawful (e.g. dangerous drugs).
If a woman is searched, the search must be made by a medical practitioner or by a woman and must be made with strict regard to decency. So, indeed, must any search.
Like arrests, searches can be effected with or without a warrant. Unlike the case of arrests, however, the law encourages the police to conduct searches with a warrant rather than without.
What may be seized
Certain articles may be seized by virtue of a search warrant in terms of section 49 of the Criminal Procedure and Evidence Act. These articles are:
- articles concerned in or on reasonable grounds believed to be concerned in the commission or suspected commission of a crime in Zimbabwe or elsewhere;
- articles which it is on reasonable grounds believed may afford evidence of the commission of a crime in Zimbabwe or elsewhere;
- articles which are intended or on reasonable grounds are believed to be intended to be used in the commission of a crime.
Other statutes (in particular the Customs and Excise Act, the Dangerous Drugs Act, the Medicines and Allied Substances (Control) Act and the Precious Stones Trade Act) allow other articles to be seized.
Documents which are privileged, e.g. documents that record communications between a lawyer and his client, may not be seized. Such documents may not be handed over without the consent of the client. If the State were able to seize such documents the whole object of privilege would be defeated.
Issue of search warrant
A search warrant may be issued before trial by a magistrate or justice of the peace (other than a justice of the peace who is a police officer). A judge has no power to issue a search warrant, except during the course of a criminal trial. Information must be given on oath, and the information must give the magistrate or justice reasonable grounds for believing that an article which may be seized is in the possession of or under the control of a person, or on or in property, within the area of jurisdiction of the magistrate or justice. Note that, unlike a warrant of arrest, it is not enough for the applicant to say that he has reasonable grounds for such a belief: he must communicate that belief to the magistrate or justice.
A judge or magistrate may issue a search warrant during trial if he considers that an article that may be seized is required in evidence in the proceedings. There is no need for information to be given on oath before such a warrant is issued, nor need the article be within the magistrate’s area of jurisdiction.
Anyone may apply for a search warrant, though normally only police officers do so.
Form of and requirements for search warrant
A search warrant requires a police officer (not a peace officer) to seize the property named or identified in the warrant. The police officer has no discretion in the matter; he must execute the warrant. The warrant authorises the police officer to search any person identified in the warrant or to enter and search premises identified in the warrant or within an area identified in the warrant, and to search any person found there.
A search warrant must:
- state whether it is to be executed by night (if that is the intention);otherwise it may be executed only by day;
- describe precisely the premises or persons to be searched – though the premises can be described as being within an area identified in the warrant;
- specifically state the articles to be searched for.If the warrant is phrased only in general terms, it will be invalid.
Generally, a search warrant must be sufficiently precise as to lead to the correct identification of the property, persons and premises to be searched and to preclude the possibility of the wrong property being seized or the wrong person or premises being searched. It must be reasonably intelligible to both the searcher and the searched person. Warrants that are too vague or wide will be set aside wholly or in part.
Search warrants are to be interpreted reasonably strictly, to protect the individual against excessive interference by the State.
It is desirable, though not legally necessary, for a search warrant to have a preamble or recital setting out the reason why the warrant is being issued and the statutory provisions authorising its issue. A preamble:
“apprises the occupier whose premises are searched of the reason for the encroachment on his rights and thus may tend to allay resentment and prevent obstruction of the police.”
A preamble also, of course, apprises the police of the extent of their powers. If there is a preamble which sets out statutory provisions, it should follow the wording of the statute precisely.
A warrant should also specify the alleged crime that gives rise to its issue, and the alleged offender; failure to do so will invalidate it.
Execution of search warrant
A search warrant is “executed” when the search or seizure authorised by it is carried out. A warrant must be executed by day unless the person issuing it authorises in writing its execution by night.
If the person affected by the warrant so demands, the police officer executing the warrant must, either before or after it is executed, hand him a copy of it. Ideally, the warrant should be shown to the person before the search, to allow him to obtain an interdict if the search is unlawful; it should also be shown to the person whether or not he demands to see it. Many people are unaware of their right to see the warrant and will not ask to see it.
A police officer who seizes or removes articles under a search warrant must issue a receipt for them and give it to their owner or possessor; a police officer who fails to do so is guilty of a crime and liable to a fine of level 4 or up to three months’ imprisonment.
A police officer may use such force as is reasonably necessary in order to overcome any resistance against a search or entry of premises, and may break down a door or window to effect entry. Before doing so, however, he must audibly demand admission to the premises and state why he wants to enter them — unless he is reasonably of the opinion that to do so will lead to the destruction or disposal of the article that is being searched for. The use of force in such circumstances does not extend to the killing of persons who resist a search or entry of premises.
Wherever possible, searches should be conducted in terms of a warrant, because the procedure of obtaining a warrant serves to protect, to some extent, the rights of the individual. The law does, however, permit searches to be conducted without a warrant in certain circumstances.
A police officer (not a peace officer) may search a person, container or premises for the purpose of seizing an article referred to in section 49 of the Criminal Procedure and Evidence Act (see above):
- with the consent of the person concerned;
- if the police officer believes on reasonable grounds that a search warrant would be issued to him if he applied for one, and that delay in obtaining a warrant would prevent the seizure of the article or defeat the object of the search.
A police officer who conducts a search in the second of the above circumstances (i.e. without consent) must, if asked by anyone whose rights are affected by the search, inform that person of his or her name, rank and force number and of the reasons for carrying out the search without a warrant. If the police officer fails to do so, he or she will be guilty of a crime and liable to a fine of level 4 or up to three months’ imprisonment.
A private person may not normally search people except as part of an arrest, but an occupier of land may search any premises or person on the land if he reasonably suspects that stolen stock or produce, or illicit drink, drugs, firearms, ammunition or explosives are in the premises or under the control of the person concerned. He may do so, however, only if a police officer is not readily available.
Both police officers and private persons may search premises in order to find and arrest a suspect whom they are authorised to arrest, if they know or suspect the person to be in the premises.
And a police officer investigating a crime may enter premises without a warrant for two reasons. Firstly, to interrogate and take a statement from a person whom he reasonably suspects is on the premises and can give information about the crime. He may not, however, enter a dwelling for this purpose without the occupier’s consent. Secondly, a police officer of or above the rank of inspector may enter premises to inspect books, documents or records and may make copies of them. He may not, however, take possession of them without a warrant. A police officer who exercises these powers must, on demand by anyone whose rights are affected by the powers, inform the person of his or her name, rank and force number and the reasons for exercising the powers. An officer who fails to do so is guilty of a crime and liable to a fine of level 4 or imprisonment for up to three months.
A police officer who seizes or removes articles following a search without a warrant must issue a receipt for them and give it to their owner or possessor; a police officer who fails to do so is guilty of a crime and liable to a fine of level 4 or up to three months’ imprisonment.
Force may be used to effect a search without a warrant in the same circumstances and to the same extent as in the case of search with a warrant.
What has been said above is laid down in the Criminal Procedure and Evidence Act [Chapter 9:07]. Other statutes confer powers of search on particular officers, for example customs officers (the Customs and Excise Act), parks officers (the Parks and Wild Life Act) and drugs inspectors (the Dangerous Drugs Act). This last Act – the Dangerous Drugs Act – goes further and actually limits the power of police officers. Only police sergeants or more senior officers may search persons and premises for dangerous drugs; police constables may do so only if authorised to do so in writing by a more senior officer.
Evidence obtained as a result of an unlawful search is inadmissible if its admission would render the trial unfair or would otherwise be detrimental to the administration of justice or the public interest.
In South Africa, where there is a similar constitutional provision, the courts have held that where there has been a deliberate and conscious violation of constitutional rights by the State or its agents, evidence obtained by such a violation should in general be excluded, though there may be certain extraordinary excusing circumstances which may warrant its admission. In Zimbabwe, however, section 258A of the Criminal Procedure and Evidence Act [Chapter 9:07] seems to be an attempt to limit the application of section 70(3) of our Constitution. It says that when deciding whether to exclude illegally-obtained evidence a court must balance the rights of the accused and the need to protect the criminal justice system against serious or persistent breaches of the law, on the one hand, and the public interest in doing justice to victims and upholding public confidence in the effectiveness of the system, on the other. The section goes on to say that it is only serious or persistent breaches of substantive rather than procedural rights that will justify the interests of the accused prevailing over the public interest in doing justice to victims and upholding public confidence in the justice system; and similarly, only compelling reasons will justify the accused’s interests prevailing over the public interest. The section says further that if a court admits illegally-obtained evidence after balancing those considerations the trial must not be regarded as unfair. Even though the section can only apply where a court balances the considerations correctly, the section is still unconstitutional because it is not for Parliament to dictate whether or not a trial is unfair: that is for the courts to decide in each particular case.
It is not clear if a person is entitled to resist an unlawful search in the same way that he can forcibly resist a wrongful arrest. He probably can do so if he believes on reasonable grounds that the search is a violation of his right to privacy.
According to section 58 of the Criminal Procedure and Evidence Act [Chapter 9:07], a police officer who seizes articles, or who receives seized articles from someone other than a police officer who has seized them, must take them to a place of security under the control of a police officer and enter in an inventory their particulars and particulars of how they were seized. The articles must be kept safe in that secure place until criminal proceedings relating to the article have been concluded or abandoned or discontinued. If the accused person has not been convicted in those proceedings then the articles must be returned to their owner unless they are articles whose possession is intrinsically unlawful.
If articles whose possession is intrinsically unlawful have been seized by a police officer, he or she must as soon as possible notify the police officer in command of the police district where the articles are being held.
If an article is perishable or hazardous to health, the police officer may either return it to its owner or the person to whom a receipt was given, or dispose of it or destroy it in such manner as the circumstances may require after giving its owner or possessor at least 14 days’ notice of the disposal or destruction. If the owner or possessor objects, the police office must get a warrant of destruction or disposal from a magistrate or from a justice of the peace who is not a police officer.
If an article is stolen or suspected of being stolen, a police officer may, with the consent of the person from whom it was seized, deliver it to the person from whom the officer believes it was stolen, to be held pending the trial.
If no prosecution is initiated within 21 days after an article was seized, then the article must be returned to the place from which it was taken unless it is an article whose possession is intrinsically unlawful. If its return is impracticable, the person concerned must be notified that he or she can collect it from the police. If, however, within 72 hours before the 21-day period expires, the person is served with a notice of continued retention and either he or she does not object or his or her objections are rejected by a magistrate or justice of the peace (other than a police officer) then the police may continue to keep the article until criminal proceedings have been concluded, abandoned or discontinued.
Section 59 of the Criminal Procedure and Evidence Act says that if no criminal proceedings are instituted, or the seized article is not required at the trial, or the accused person admits guilt and pays a deposit fine, then the article must be returned to the person from whom it was seized (if he may lawfully possess it); or if he is not allowed to possess it, to the person who may; or if no one may lawfully possess it or the police officer knows of no one who may, then it is forfeited to the State. The police must send a registered letter notifying the person who may lawfully possess the article that he may collect it, and if he fails to do so within three months it is forfeited to the State.
At the conclusion of criminal proceedings, the judge or magistrate may order that any article seized under the above provisions be returned to the person from whom it was taken, if that person may lawfully possess it; or that it be returned to anyone else who is lawfully entitled to it, if that person may lawfully possess it; or if no one is entitled to possess it, that it should be forfeited to the State. The mere fact that the accused is acquitted does not mean that he is automatically entitled to have the article returned to him. And a complainant is not entitled to be awarded goods purchased with stolen money — the goods are the property of the accused.
Articles whose possession is intrinsically unlawful – for example, dangerous drugs – are destroyed or disposed of in terms of section 63A of the Criminal Procedure and Evidence Act [Chapter 9:07]. This is done in the presence of the Prosecutor-General or his or her representative, as well as representatives of any agency with statutory responsibility for the article (for example, in the case of rhino horns, the Parks and Wild Life Management Authority).
Where an article has been forfeited to the State under section 59, a person claiming that it was his property may apply to a magistrate, within three years, for its return. The magistrate may order the police to return the article or, if it has been disposed of, may order that the applicant be paid adequate compensation. The applicant may, however, be ordered to pay the police their costs incurred in keeping the article if the applicant was unduly dilatory or negligent in reclaiming it.
S v Pogrund 1974 (1) SA 244 (T) at 247.
Sections 41(2) and 49 of the Criminal Procedure and Evidence Act.
Section 52(1) of the Criminal Procedure and Evidence Act.
Section 52(2) of the Criminal Procedure and Evidence Act.
Section 41(4) of the Criminal Procedure and Evidence Act.
Section 57 of the Criminal Procedure and Evidence Act.
This term is defined widely in section 47 of the Criminal Procedure and Evidence Act as including documents and substances.
Section 49 of the Criminal Procedure and Evidence Act.
There is no requirement that the owner of the articles must be the perpetrator of the crime; he or she may be a victim.
Section 49(b) of the Criminal Procedure and Evidence Act.
The South African case of Andresen v Minister of Justice 1954 (2) SA 473 (W), which held that privileged documents could be seized, was probably wrongly decided. See Sasol III (Edms) Bpk v Minister van Wet en Orde & Anor 1991 (3) SA 766 (T) and Jeeva & Ors v Receiver of Revenue, Port Elizabeth, & Ors 1995 (2) SA 433 (SE) at 452 and the cases there cited.
Cf Prinsloo v Newman 1975 (1) SA 481 (A) at 493F-G.
Section 50(1) of the Criminal Procedure and Evidence Act.
See section 50 of the Criminal Procedure and Evidence Act.
Section 50(1)(b) of the Criminal Procedure and Evidence Act.
The Anti-Corruption Commission is given power by paragraph 2 of the Schedule to the Anti-Corruption Commission Act [Chapter 9:22] to obtain search warrants from magistrates or justices. It is submitted that this does not give the Commission or its officers power to execute search warrants (i.e. to search premises or persons in terms of these warrants); only police officers can do that.
Section 50(2) of the Criminal Procedure and Evidence Act.
Section 50(3)(b) of the Criminal Procedure and Evidence Act.
Section 50(2)(a) of the Criminal Procedure and Evidence Act.
Elliott v Commissioner of Police 1986 (1) ZLR 228 (H), where it was held that a warrant which authorised the seizure of “subversive documents” was too vague.
Minister of Safety & Security v van der Merwe & Ors 2011 (5) SA 61 (CC) and NUSAS v Divisional Commissioner, S.A. Police 1971 (2) SA 553 (C).
Minister of Justice & Ors v Desai NO 1948 (3) SA 395 (A) at 405.
Minister of Safety & Security v van der Merwe & Ors 2011 (5) SA 61 (CC). The Criminal Procedure and Evidence Act does not specifically require this, however.
Section 50(3)(b) of the Criminal Procedure and Evidence Act.
Section 50(4) of the Criminal Procedure and Evidence Act.
Section 49(2), (3) & (4) of the Criminal Procedure and Evidence Act.
Section 55 of the Criminal Procedure and Evidence Act.
See the earlier discussion of killing in order to effect an arrest.
Section 51(1) of the Criminal Procedure and Evidence Act.
Section 51(4) & (5) of the Criminal Procedure and Evidence Act.
Section 53 of the Criminal Procedure and Evidence Act.
Section 40 of the Criminal Procedure and Evidence Act.
Section 54(1) of the Criminal Procedure and Evidence Act.
Section 54(2) of the Criminal Procedure and Evidence Act.
Section 54(3) & (4) of the Criminal Procedure and Evidence Act.
Section 49(2), (3) & (4) of the Criminal Procedure and Evidence Act.
Section 14D of the Dangerous Drugs Act [Chapter 15:02].
Section 70(3) of the Constitution. Before the Constitution came into force such evidence was generally admissible: R v Mabuya 1927 CPD 181.
Section 35(5) of the Constitution of South Africa.
S v Motloutsi 1996 (1) SA 584 (C), following the Irish case of People (Attorney-General) v O’Brien  IR 142.
It is not all clear what the distinction between these rights is, or why the breach of “procedural rights” should never be allowed to justify a court refusing to admit illegally-obtained evidence.
Section 63A(1) of the Criminal Procedure and Evidence Act.
Section 58(3) of the Criminal Procedure and Evidence Act.
Section 58(5) of the Criminal Procedure and Evidence Act.
The person’s consent is necessary in case his rights are prejudiced by handing the property to the original owner.
Section 58(2) of the Criminal Procedure and Evidence Act.
i.e. if no summons is issued or statement of charge lodged or indictment served (section 58A(1) of the Criminal Procedure and Evidence Act).
Section 58A of the Criminal Procedure and Evidence Act.
Section 59(1) of the Criminal Procedure and Evidence Act.
Section 59(2) of the Criminal Procedure and Evidence Act.
Section 61(1) of the Criminal Procedure and Evidence Act.
Lansdown & Campbell S.A. Criminal Law & Procedure vol 5 p. 165 and the cases there cited.
R v Munene 1956 R & N 432 (SR).
Section 59(3) of the Criminal Procedure and Evidence Act.
Section 59(6) of the Criminal Procedure and Evidence Act.