Section 14 of the Constitution of the Republic of South Africa grants every person the right to privacy, however section 36 of the same Constitution deals with limitation of rights in certain instances.

In terms of our Criminal Procedure Act, law enforcement officers need a warrant to search and seize, this applies to the searching of people or their property. However, law enforcement officers are allowed to search without a warrant if he/she is of the opinion that in any specific instance he/she would be able to obtain a warrant, but because of the circumstances of that particular case, there will not be enough time to obtain one. With the above stated, it is clear that a warrant is not actually necessary whenever police officials deem it necessary to do what they deem best for the public. This position is confirmed by statute as section 21 of the Criminal Procedure Act states the following:

Article to be seized under search warrant

(1) Subject to the provisions of sections 22, 24 and 25, an article referred to in

section 20 shall be seized only by virtue of a search warrant issued-

(a) by a magistrate or justice, if it appears to such magistrate or justice from

information on oath that there are reasonable grounds for believing that

any such article is in the possession or under the control of or upon any

person or upon or at any premises within his area of jurisdiction; or

(b) by a judge or judicial officer presiding at criminal proceedings, if it appears

to such judge or judicial officer that any such article in the possession or

under the control of any person or upon or at any premises is required in

evidence at such proceedings.

(2) A search warrant issued under subsection (1) shall require a police official to

seize the article in question and shall to that end authorize such police official to search

any person identified in the warrant, or to enter and search any premises identified in

the warrant and to search any person found on or at such premises.

(3) (a) A search warrant shall be executed by day, unless the person issuing the

warrant in writing authorizes the execution thereof by night.

Section 22 of the Criminal Procedure Act further states the following:

Circumstances in which article may be seized without search warrant

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 the seizure of the

article in question, or if the person who may consent to the search of the

container or premises consents to such search and the seizure of the article

in question; or

(b) if he on reasonable grounds believes:

(i) that a search warrant will be issued to him under paragraph (a) of

section 21 (1) if he applies for such warrant; and

(ii) that the delay in obtaining such warrant would defeat the object of

the search.

The above sections clearly indicate that should there be a reasonable suspicion that property or certain people had just been involved in committing a crime or plotting to do so, police officials do have the right to search and seize such items from the perpetrators without any warrant to do so.   

In light of the above, a warrant to search is not always necessary in order for such conduct to take place by police officials.

Reference List:

Criminal Procedure Act 51 of 1977