Consensual Search in South African Law: Need for Clarity Regarding the Rights of the Search Subjects?

Abstract

The Criminal Procedure Act 51 of 1977 provides for search and seizure, which may be conducted with a warrant or without a warrant. A search based on a warrant is carried out after a warrant has been issued by a magistrate or justice. Warrantless searches may take place in situations of urgency or where the subject of the search consents to the search and seizure. This article focuses on warrantless searches based on the consent of the subject of the search. It discusses two main issues, namely whether police officials are required to inform the subject of a consensual search of the option of withholding such consent and whether a consensual search should be based on reasonable grounds. The courts have expressed different or even opposing views on these issues, with the result that there appears to be a lack of clarity. The discussion starts by providing contextual background and the legal framework applicable to search and seizure. This is followed by a discussion of selected cases that focused on whether it is required of police officials to inform the subject of a consensual search about the option of withholding consent. After referring to the cases for and against such a requirement, the discussion turns to whether consensual search should be based on reasonable grounds or whether it is sufficient that such consent has been requested and granted. The conclusion is that the courts are sending mixed messages regarding these key attributes of consensual search and this lack of clarity needs to be attended to. The submission is that the approach that requires that consensual search be based on reasonable grounds and that the subject of the consensual search must be informed of the option of withholding the consent is justifiable and legally sound. For this reason, it is recommended that it be a requirement for consensual search that the request for consent be based on reasonable grounds and the consent be an informed one, including the duty to inform the subject of the search about the option to withhold consent.