WARRANTLESS SEARCHES AND AWARDS FOR DAMAGES IN

LIGHT OF THE JUDGMENT IN

Shashape v The Minister of Police Case

1. Introduction
- Law of Crim Proc is double functional – not only dictates proper procedure for
execution of police functions, but also serves as ground of justification in substantive
law vs otherwise unlawful conduct
- Example of personal liberties being sacrificed in favour of pursuit of justice = search
and seizure of private spaces of individuals.
- S & S may be effected both w/ or w/out a warrant
- Regulated by Criminal Procedure Act
- Where police act outside legislative matrix – conduct not lawful – may not rely on
official capacity as ground of justification against unlawful search.
o Minister of police may be held vicariously liable in delict owing to unlawful
conduct of police officials. Such cases are relatively rare.
- Focus on specific aspects
o Search and seizure conducted without warrant
o Awards for damages based on unlawful, warrantless searches

2. Relevant Constitutional Principles

S10 Constitution - Right to dignity

o “[e]veryone has inherent dignity and the right to have their dignity respected and protected”

S14 Constitution – Right to privacy

o “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
o (d) the privacy of their communications infringed.”

3. Search and seizure under CPA

Legislative framework for warrantless searches under CPA
Guidelines for warrantless searches based on info provided by informers [incl unanimous
informers]

3.1) Relevant provisions dealing with warrantless searches

S20 CPA

S22 CPA

Warrantless search may take place if:

 Person who is authorised  consent

 Owner / tenant of building
 Consent must be of certain quality
 Must have been informed of the purpose for the search
 Police officer must ascertain whether person has authority to give
consent before issuing warrantless search.
 If police have reasonable grounds to believe that warrant would have
been granted – warrantless search may be effected.
 If police officer believe delay in obtaining search warrant would
obstruct the aims of the search

3.2) I heard it through the grapevine: Warrantless searches based on information

provided by informers

- Info must measure up to certain standard to comply with “reasonable grounds”

 - Must comply with standard of reasonableness
- Attempts to corroborate (confirm or give support to) info
- Info from informer treated with degree of circumspection (being wary and not taking
risks)

3.3) Overview: Previous cases dealing with damages for wrongful searches

Pillay
- unlawful search and seizure. House left chaotic. Subjected to body search. Diagnosed
with PTSD after event. Medication and counselling.
o Awarded damages for mental wellbeing
o Damages for repairs

Augustine
- search without lawful warrant at 02:00 in the morning
- insults, humiliation, intimidation
- insomnia, PTSD, reduced normal functioning, flashbacks, dysthymia, self-blaming etc
- damages were awarded

4. Shashape case

4.1) Pertinent facts

 Warrantless search and seizure, unlawful entry

 Effected without her consent
 Search not conducted in orderly manner
 Unlawful entrance, search of residence, violated right to dignity, privacy. Caused
plaintiff to suffer harm.

4.2) The court’s approach to the determination of the quantum

o Consider impact of wrongful search on

o General trend  community that once supported her  gossip and speculation
4.3) Discussion of Shashape judgment

 Original warrantless search & seizure was unlawful

 Court referred to consent as ground of justification
 Family did not consent to search, even if had, not had authority to do so.

 “that there is no explanation at all, let alone a reasonable account why the police decided to search the
plaintiff’s house”

5. Conclusion
 Shashape case – revisit principles relating to warrantless search and seizure
 Damages flowing from such unlawful conduct
 Execution of search and seizure involves delicate traverse of constitutional spectrum
 Protection of person’s right to privacy, dignity, freedom and security of the person,
property rights and the presumption of innocence
 Rights and values weighted against police’s constitutional duty to investigate crime
and protect the inhabitants of the country
 At time of execution of warrantless search , suspect is merely suspect.
 Regardless strength of evidence, all persons subjected to searches must be treated
with dignity and respect with due consideration of their right to privacy and
presumption of innocence
 Double functionality of the law of criminal procedure  police officials faced with
claim for damages against unlawful search cannot rely on execution of their duties as
ground of justification.