A LOCAL attorney has provided legal input following a recent article in Berea Mail where an Umbilo woman was angered that police had searched her flat without a warrant.
The woman, Premie Pillay, approached the station commander of Umbilo SAPS, Col John Romer, following the incident, complaining that plain-clothes policemen, followed by officers from the Flying Squad, had entered her flat while her daughter was home alone.
At the time, police claimed they had received information that the family was harbouring a man by the name of Danny.
She was angered that the police officers had entered her flat without a warrant, refused to show identification, and that her daughter, a young woman, had been home alone at the time and was frightened by the incident.
Col Romer told Berea Mail that he did investigate the claim and had explained to Pillay that in terms of the Criminal Procedures Act, the police could search a premises without a warrant.
“I did apologise to Mrs Pillay for the incident, however the officers were acting on information and I could not reprimand them for doing so,” he said.
Commenting on the incident, Wesley Rogers, an admitted attorney of the High Court of South Africa who is a specialist in criminal and forensic litigation and a specialist in international criminal law, said the police were legally required, in terms of the South African Police Services Act and the Public Service Act, to carry their official appointment cards at all times while on duty, whether they are in plain clothes or uniform.
“They are required to properly identify themselves, by way of producing the appointment cards, and are not at liberty to legally decline to do so,” he said.
“Regarding the search of the premises, the police may enter and search a premises under two strict set of circumstances; the first is under the auspices of a properly obtained search warrant and the second is without a warrant. This is allowed when the owner of the property consents to the search. The requirements for consent are that the police properly identify themselves and explain the nature and purpose of the search to the owner, or if the police official concerned believes, on reasonable grounds, that they have reasonable cause to believe an offence has been committed on the property, or reasonable cause to believe that the property contains evidence, that a search warrant will be granted to him if applied for, and that the delay in obtaining a warrant will result in the loss of evidence or defeat the purpose of such a search,” he said.
Rogers said every person in South Africa has the constitutional right to privacy, which the SAPS may only infringe upon in the scenarios mentioned.
“Should the search of a premises be declared unlawful, whether on substantive or technical grounds of law, the evidence obtained shall be declared inadmissible in court, and thereby jeopardise the State’s chances of a conviction. The reason for this is that the Constitution guards citizens against over reach or abuse of process by State officials, and by extension prevents them from benefitting from their own unlawful actions. One cannot fight crime by breaking the law,” he said.
READ RELATED: Angry Umbilo mum confronts police after home search
Rogers said in terms of Section 28 of the Criminal Procedure Act, it is a criminal offence for a police official to conduct a search in contravention of Sections 21 and 22 of the Act.
“In respect of the facts of the article as reported, it is unclear whether evidence was seized from the property, or whether the fugitive from justice was housed therein. In this set of facts, one would expect the police not to produce a search warrant for the property, but a bench warrant for the person they were seeking. Far too often the police use the Courts as a scapegoat for their failures to obtain convictions. In our experiences, we cannot revert to a Police State, where the police are allowed to proverbially act above the ambit of the law and to benefit from activities which our law declares illegal. The law has set in place a set of standards for the police to uphold which are designed as a safeguard to both the police and society as a whole,” he said.
He said if the police were more careful in their actions to remain within the ambit of the law in the fight against crime, that would result in more correct convictions at Court, and far less civil claims against the Minister of Police.
“We are advised, this is sitting at a total value of over R14 billion for the years 2017/2018, according to the Minister. The public must be mindful that claims against the police are paid out by the Minister’s office, which de facto is taxpayers’ money,” said Rogers.
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