security searching procedures south africa
Your Security Company may offer you an assessment claiming to identify the risks in your security but unfortunately all they are actually conducting is a Product Assessment. Section 24 of the Criminal Procedure Act provides for the search of premises. (b) a checkpoint(s) at any public place in a particular area. 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 Law. In these circumstances a roadblock may be set up by such a police official on any public road or roads in that area in order to determine if a vehicle is in fact carrying such an object. 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. Much of the framework for analysing section 8 can be derived from Hunter v Southam58 and R v Collins.59 The relevant principles formulated by these two cases are as follows: the purpose behind section 8 is to protect the privacy of individuals from unjustified state intrusions; this interest in privacy is, however, limited to a "reasonable expectation of privacy".60, A search is said to be any intrusion other than arrest upon an individual's person, property or privacy for the purpose of seizing individuals or things or obtaining information by inspection or surveillance.61 Only if a "form of examination" by government intrudes upon a reasonable expectation of privacy is it considered a search under the Canadian Constitution.62, Seizure was defined in R v Dyment63 as "the taking of a thing from a person by a public authority without that person's consent". In such instances, body and bag searches are permissible provided that it is advisable that these searches be carried out by persons of the same gender as the persons being searched. The booklet is intended for CIOs, their boards of directors and senior management of organisations, CA's new tool factors in the kinds of parameters that audit boards request when conducting SOX and similar audits, Those who are the best at compliance are the same companies that have the fewest data losses and the lowest number of disruptions in IT system downtime, Enterprise architecture creates a complete mapping of business mission, strategy, processes, organisation and IT strategy, By taking some practical, straightforward measures to combine compliance processes with performance management, regulated companies can gain tighter control of their compliance programmes and reduce programme costs significantly at the same time, Governance implies not only fiscal, but also legal, responsibility. Well, if so, then below are the tips and procedures that you need to follow to get started. 3. In 2013, R55 billion was spent on private security. 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. SUPERVISOR: DR O. J. KOLE . It’s estimated that around a quarter of South Africa’s population — 12 million people — currently live in townships, or shanty towns, many of which lack basic utilities such as running water or sewerage systems.They are also often great distances from the hearts of major cities. In South Africa as a general rule a search should also be authorised by a judicial officer. 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. In Sithonga v Minister of Safety and Security[48] the court maintained that it is common cause that section 13(8) restricted the setting up of checkpoints to public places. Photo courtesy of Quinten Theron. The truism that no right is absolute perhaps applies more to privacy than any other right. 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. 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. It can be assumed that no consent is required. The company suspected that these claims were false, and in an effort to investigate the matter, had the employee followed whilst he was allegedly on sick leave, and took a video recording of this sales employee assisting one of his friends to move heavy items. Basic functions are described in the following ... procedures in the security industry. What to do when a police officer wants to search you: 1. These safeguards are inherent in South African law and are also profound in the jurisprudence of the United States and Canada. 42 S 22 Criminal Procedure Act. The Bill of Rights confers certain rights on individuals but it also authorises the limitation of those rights in the limitation clause. The security officers shall, with the consent of the employee/person, search all luggage/bags, etc. 36 Van de Merwe v Minister of Justice 1995 (2) SACR 471 (SCC) 29. Criminal Procedures Act 51 of 1977. It ought to be revised. The primary objective of the Authority is to regulate the private security industry and to exercise effective control over the practice of the occupation of security service provider in the public and national interest and in the interest of the private security industry itself. In Ntoyakhe v Minister of Safety and Security21 the court held that the word 'seize' encompasses not only the act of taking possession of an article, but also the subsequent detention thereof. Providing for the police official's opinion (that which he "considers necessary") permits a subjective discretion to be applied. The aim of such a search is to exercise control over the illegal movement of people or goods across the borders of South Africa. 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.". 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. A general crime prevention roadblock grants police officers unstructured search powers which are open to abuse and arbitrary action, while a limited objective, such as the search for weapons, would focus and confine police actions.51. (b) seize any article referred to in section 20 of the Criminal Procedure Act, that is found in the possession of the person or in, on or attached to the receptacle or vehicle. There are now constitutionalised standards by which such legal powers are measured. 41 Highstead Entertainment (Pty) Ltd t/a 'The Club' v Minister of Law and Order 1994 (1) SA 387 (C) 393A. Security Procedures Consider this scenario, while keeping security procedures at your organization in the back of your mind. In the light of the Constitution it is submitted that this provision should provide that the police ought to provide a copy of the warrant to the person whose rights have been encroached upon, upon execution of the warrant. It would seem that this method is frequently adopted by employers in a bid to 'identify' culprits involved in theft rings, where the employer has sufficient evidence to show that the theft is being committed internally, but insufficient evidence to identify the guilty party or parties. However, the Act did not define what a public place was. Section 22 empowers a police official who on reasonable grounds believes that a search warrant will be issued to him if he applies for a warrant and that the delay in obtaining a warrant would defeat the object of the search to search any person, container or premises without a warrant for any article referred to in section 20. Historically the police have required legal authority for conducting searches and seizures. Get your South African law questions answered by Experts. 32 S 28(13) makes provision for the investigating director to hold a preparatory investigation if he or she is uncertain if there are reasonable grounds to conduct an inquiry. It should be noted that the Criminal Procedure Act does not differentiate between the search of a private dwelling and other premises. The provisions deal with search and seizure. A specified objective for the roadblock should be formulated, the objective of which can be assessed. 6 Cited National Director Public Prosecutions v Mahomed 2008 (1) SACR 309 (SCA). It is a necessary incident to democracy that citizens must be protected from unjustified intrusions of privacy and property by agents of the state. 2.3.1 The State may seize certain articles only. 6.2 The South African Police Service Act. Welcome to PSiRA. and security of the patients, staff, and facility. The term 'anything' in section 20 is very wide. 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 terms of the Article 21 of the Complaints Handling Procedures of the SAHRC) Introduction The South African Human Rights Commission (the Commission) is an institution 1.1. established in terms of Section 181 of the Constitution of the Republic of South Africa (the Constitution). One aspect of the job that all security guards will have to conduct at one time or another is a security search. 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. 77 See s 20 and 27 Criminal Procedure Act. 64 Thomson Newspapers Ltd v Canada (Director of Investigation and Research) (1990) 76 CR (3d) 129 (SCC). This onus relates to the requirement on the part of the employer to show that the dismissal was fair. Specific provisions are contained in many other Acts.2 Section 19 of the Criminal Procedure Act states that Chapter 2 of the Act shall not derogate from any power conferred by any other Act to enter any premises or to search any person, container or premises or to seize any matter, to declare any matter forfeited or to dispose of any matter. 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. This could lead to the abuse of constitutional rights, and these provisions should therefore be reviewed. As a general rule, to which there are of course exceptions, evidence of criminal activity obtained against a person through means of entrapment, carries certain restrictions in our criminal courts. The reason for this, says the CCMA, is based upon the inherent unreliability of this evidence and the fact that this evidence is insufficient to discharge the onus of the employer in terms of section 192 of the Labour Relations Act, 66 of 1995, as amended. 34 Constitution of the Republic of South Africa 1996. Any person who is lawfully in charge or occupation of any land and who reasonably suspects that stolen stock or produce, as defined in any law relating to the theft of stock or produce, is on any premises upon that land, or that any article has been placed on such premises or is in the custody or possession of any person upon such premises in contravention of any law relating to intoxicating liquor, dependence-producing drugs, arms and ammunition or explosives, may at any time, if a police official is not readily available, enter such premises with the purpose of searching such premises and any such person thereon, and if any such stock, produce or article is found, he shall take possession thereof and forthwith deliver it to a police official.16, 2.1.3 Power of the police to enter premises in connection with state security, Section 25 of the Criminal Procedure Act empowers a police official to enter premises in connection with state security. The Minister must, after consultation with the Council, prescribe a code of conduct for. 4 R v Silveira (1995) 97 CCC (3d) 450 (SCC). 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. 43 Act 68 of 1995 (hereafter Police Service Act). 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. Execution of the statement of work, contract, task orders and all other contractual obligations. Further, section 21 provides for a warrant to be handed to a person whose rights have been affected thereby, "upon demand" of the person. 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. This Act regulates and prsecribes arrest procedures, search procedures and defines the security officer's powers of arrest and search as well as the use of force when affecting an arrest. b. Lecturer, College of Law, University of South Africa. 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. Given the broad purpose of the search, there may be insufficient safeguards to achieve the necessary balance between the rights of citizens and law enforcement concerns.45 The requirement of reasonable grounds for the search of individual premises may be abandoned, but the cordoning off of a particular area should be based on reasonable grounds.46. An important difference between the Canadian Charter of Rights and Freedoms and the South African Constitution when compared with the Fourth Amendment is that the Fourth Amendment specifically requires a police official, before conducting a search, to obtain a search warrant based upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or things to be seized. The power to seize is limited to articles which are either involved in, used during, or may provide proof of the commission of an offence in the Republic or elsewhere, or provide proof of the fact that the commission of the offence was planned. 28 Cheadle, Davis and Haysom (n 5) 193. see also Rajah v Chairperson: North West Gambling Board [2006] 3 All SA 172 (T) 394 the court held that for a search and seizure to be valid in terms of s 21 of the Criminal Procedure Act, "a warrant may only be issued by a magistrate or judicial officer where it appears from information on oath that there are reasonable grounds for believing that an article is in possession or under the control of or at a premises within the area of jurisdiction of that particular officer
The present court has a wide discretion to interfere with the magistrate's decision if he has not applied his or her mind to the matter.". The South African Constitution* recognises that state authorities should not be permitted untrammelled access to search and seize. 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. 54 LaFave and Israel Criminal Procedure 99. Section 13(7)(a) of the South African Police Service Act provides that 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.