57 R v Dyment (1988) 45 CCC (3d) 244 (SCC). On the arrest of any person, the person making the arrest may: (a) if he is a peace officer, search the person arrested and seize any article referred to in section 20, which is found in the possession of or in the custody or under the control of the person arrested, and where such a peace officer is not a police official, he shall forthwith deliver any such article to a police official; or, (b) if he is not a peace officer, seize any article referred to in section 20 which is in the possession of or in the custody or under the control of the person arrested and shall forthwith deliver any such article to a police official.11. The latter approach to search is questionable. 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. This will involve searching bodies, property (ie bags) vehicles or even buildings. 42 S 22 Criminal Procedure Act. In considering the recording, the commissioner made reference to the fact that even the CCMA requires that such evidence be presented to the CCMA in accordance with the guidelines for admitting such evidence, and that the person seeking to rely and use this evidence must be able to show that: On the other hand, the polygraph test does not enjoy such carte blanche, even in labour-related matters. The digitalization of the world is easy yet risky. It’s a fact, for any organization, it is of foremost importance to keep safe data and details. Take a look. Since the enactment of the Constitution there have been additional constraints on search and seizure powers. Equally the term 'concerned' in section 20 is very wide. 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. 47 See objects of the police in s 205(3) of the Constitution. These instances include the following. 64 Thomson Newspapers Ltd v Canada (Director of Investigation and Research) (1990) 76 CR (3d) 129 (SCC). 3. 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. This power is granted in respect of searches within a corridor of 10 kilometres or any reasonable distance from any border with a foreign state, or in South African territorial waters, or inside the Republic within 10 kilometres or any reasonable distance from such territorial waters. Since a search may also infringe upon the rights to dignity19 and to bodily security, including the right against cruel, inhuman or degrading treatment,20 it must be conducted consonant with those rights. The Contractor Program Security Officer (CPSO) will be the company Security Manager/Facility Security Officer (FSO) and will oversee compliance with SAP security requirements. It should be noted that the Criminal Procedure Act does not differentiate between the search of a private dwelling and other premises. 66 Constitution of the Republic of South Africa 1996. Top life insurance companies in South Africa that you would love to know about. I submit that in view of the substantial state interest involved, such searches without reasonable grounds in places adjacent to foreign borders would be a reasonable limitation on the right to privacy.79 Such searches are aimed at exercising control over the illegal movement of people or goods across the borders of South Africa. Whether these measures impinge upon the employee's constitutional rights and whether they are permissible within the context of the employment relationship is the theme of this article. The Criminal Procedure Act1 had long provided the only legal basis for obtaining warrants to search and seize or to perform such actions without a warrant in certain circumstances. 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. South Africa’s current firearms regulatory framework consists of the Firearms Control Act (FCA) and its subsidiary legislation, which has been in place since 2004. The Criminal Procedure Act embodies the general provisions with regard to searching. 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. This article is based on a Masters dissertation submitted by the author for the completion of the Master of Laws at the University of South Africa, Pretoria. Currently we are the only company that offers Independent Security Risk Assessment in the country. A specified objective for the roadblock should be formulated, the objective of which can be assessed. ... Now that you know how to start a security company in South Africa, you can go ahead and make your move. 77 See s 20 and 27 Criminal Procedure Act. The types of measures companies are looking to implement in an effort to prevent the theft of company property include video surveillance cameras, audio equipment, security check points at which body and bag searches are carried out and the monitoring and interception of employee communications. The constition supersedes any other legislation withing our legal … A seizure also includes compelling a person to give up an item. (d) the delay that will be caused by obtaining the authorisation in terms of section 13(8)(a) (from the National or Provincial Commissioner) will defeat the purpose of the roadblock. (d) A police official may without a warrant enter any premises and search the premises or any person on the premises for any article listed in section 20 for the maintenance of law and order or the internal security of the Republic, which is likely to be threatened by a meeting or in consequence thereof.78 A police official who acts in terms hereof may take "such steps as such police official may consider necessary" for the preservation of the internal security of the Republic or prevention of crime (which can be a crime of a trivial nature). 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. With the promulgation of the Constitution of the Republic of South Africa, 1996, and in particular, the Bill of Rights, it would often appear that criminals in this country enjoy more rights than their victims. 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. Therefore any other law that confers powers of search and seizure co-exists with the Criminal Procedure Act and is not repealed by the Criminal Procedure Act. Of course, there are certain limitations within which the employer may make use of this measure - the employer does not enjoy carte blanche. If you resist the search, you … This authorisation empowers a police official "where it is reasonably necessary" to achieve the objective of the authorisation, to conduct a search without a warrant of any person, premises, vehicle or receptacle or any object of whatever nature, and seize any article that may afford evidence of the commission of an offence. 21 2000 (1) SA 257. Female security officers would be required to search female employees and vice versa. Historically the police have required legal authority for conducting searches and seizures. 3. In Parker-Ross v Director: Office for Serious Economic Offences 1995 (2) BCLR 198 (C) 339, Tebutt J declared unconstitutional a provision of the Investigation of Serious Economic Offences Act 117 of 1991, authorising searches to be conducted without prior judicial authorisation. The Centre currently has a three (3) year security contract, which will be ending on 31 August 2018. However, the commissioner did see fit to comment that, in the event of the company relying on this evidence, he would have allowed its admissibility provided it was presented not as hearsay, but supported by the relevant PI and his verbal evidence. The warrant may only be issued where the judicial officer has concluded that there is a reasonable suspicion that an offence has been committed, that there are reasonable grounds to believe that objects connected with an investigation into that suspected offence may be found on the relevant premises, and in the exercise of his or her discretion, the judicial officer considers it appropriate to issue a search warrant. 4.2.4. This allows security officers to arrest without warrant anyone who commits a schedule 1 offence in the presence of security officers (where security officers are deployed). In the light of the constitution's support for fundamental human rights it should be interpreted restrictively and an element of "necessity to prove an offence" should be attached to the provision. The following aspects of the Criminal Procedure Act pertaining to search and seizure are questionable from a constitutional perspective and should be addressed by parliament. As it happened, the company's case was not completely reliant upon the report of the PI. The latter creates a subjective standard. (a) Where a police official wishes to enter a private premises for the purpose of a search for and seizure of an article mentioned in section 20 he is generally required to have a search warrant. The aim of such a search is to exercise control over the illegal movement of people or goods across the borders of South Africa. In the United States the Fourth Amendment, like our Constitution (though the extent of the similarity is debatable) also protects a person's right to be free from unreasonable searches and seizures. 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. All the contents of this journal, except where otherwise noted, is licensed under a Creative Commons Attribution License, Potchefstroom Electronic Law Journal (PELJ). One may infer that for seizure of property on reasonable grounds to be justifiable there should exist an objective set of facts which causes the officer to have the required belief. The question that arises in this instance is whether or not an employer is entitled to take, implement and/or enforce those security measures it deems fit to protect and recover stolen company property. The Criminal Procedure Act has long provided the only legal basis for obtaining warrants to search and seize or for performing such actions without a warrant in some circumstances. FMHT’s will provide security inspections of the facility during daily rounds on each shift. Photo courtesy of Quinten Theron. The Regional Security Coordinators, with notification and approval from the Director, may issue procedures pertaining to individual campuses regarding daily activities. In another case, an employee was dismissed on grounds of false claims of ill-health which, he maintained, resulted in his incapacity for the job for which he had been employed. If there is no reasonable expectation of privacy then no search has occurred. SEPTEMBER 2016 . This approval may be obtained either verbally or in writing. This is an infringement of section 12 of the Constitution, which guarantees everybody the right to freedom of person, which includes the right not to be deprived of his or her freedom 'arbitrarily' or without 'just cause'; to be free from all forms of violence, and not to be treated in a cruel, inhuman or degrading way. This framework imposes strict substantive and procedural requirements for obtaining a competency certificate, license, permit, or authorization to possess a firearm, to deal in firearms, or to carry out other firearm-related activities, including running a firearms-training enterprise or a hunting business. The search may be conducted: (a) at any place in South Africa within 10 kilometres, or any reasonable distance from any border between South Africa and any foreign state; (b) in the territorial waters of South Africa; (c) inside South Africa within 10 kilometres of or any reasonable distance from such territorial waters; or, (d) at any airport or within any reasonable distance from such an airport.44. A trap was set for these employees in meeting with the PIs, who were obviously acting undercover, and video footage and audio footage was captured of the 'deal' as it went down. The State may in terms of section 20 of the Criminal Procedure Act seize anything that: (a) is concerned or on reasonable grounds believed to be concerned in the commission or suspected commission of an offence within the Republic or elsewhere; (b) may afford evidence of the commission or suspected commission of an offence in the Republic or elsewhere; or, (c) is intended to be used or on reasonable grounds believed to be intended to be used in the commission of an offence.23, 2.3.2 Article to be seized under search warrant, In terms of section 21 of the Criminal Procedure Act, unless the circumstances set out in section 22, 24 and 25 of the Criminal Procedure Act exist an article may be seized only in terms of a search warrant. One aspect of the job that all security guards will have to conduct at one time or another is a security search. In an attempt to facilitate the investigation of the theft of company property, companies seek to make use of polygraph testing and even entrapment. Terry v Ohio56 indicated that seizure of a person occurs when an official uses physical force or makes a show of authority that in some way restrains a person's liberty so that he is not free to leave. 18 S 26 Criminal Procedure Act. the Director of Security. Two such recordings were taken of this employee, and based upon this recording, the company terminated the services of the employee. 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. (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. The security officers shall, with the consent of the employee/person, search all luggage/bags, etc. There are insufficient reasons to depart from the principle that an independent and impartial person should be the final arbiter before such a drastic measure is taken. In view of South Africa's geography the ten kilometre corridor would mostly be applicable in sparsely populated areas, where it would be 'reasonably necessary' to conduct routine roadblocks and searches in order to determine the legality of persons and goods. 2.1 Search and seizure in terms of the Criminal Procedure Act, In the South African legal context, the terms search and seizure are not clearly defined.7 The question of what constitutes a search is left to common sense and is determined on a case by case basis. What to do when a police officer wants to search you: 1. In the ten kilometre areas along the coastline, which include major towns and cities, searches would be 'reasonably necessary' only when they are preceded by reasonable suspicion relating to the illegal movement of persons or goods. It is a necessary incident of constitutionalism that citizens must be protected from unjustified invasion of their privacy and property by agents of the state. However, that same evidence may be used by an employer and is admissible in the Commission for Conciliation, Mediation and Arbitration (CCMA) to prove that the dismissal of an employee for criminal activity in the workplace was fair. b. ... c. Searching of designated areas. Hereinafter referred to as the Criminal Procedure Act or Act. It provides that a warrant shall not be issued unless there is probable cause; the warrant must be supported by oath or affirmation and the place to be searched and the things to be searched must be particularly described. The police are thus legally empowered to intrude on individual rights. The standard for a preparatory investigation was lower than the standards encapsulated in s 20 of the Criminal Procedure Act. It is apparent that the Criminal Procedure Act does not require that the article about to be done away with should be material, important or significant evidence, and further that its destruction is imminent.77. Remain calm, polite and co-operative. In terms of section 25 a police official may take such steps as he "considers necessary" for the maintenance of law and order or the preservation of the internal security of the Republic or the prevention of crime. At the outset it should be pointed out that this article does not argue for the abolition of the search and seizure provisions contained in the Criminal Procedure Act and the South African Police Service Act. Crime investigation entails obtaining evidence through the searches and seizures of persons, places and things respectively. The Mandate of PSiRA derives from the Private Security Industry Regulation Act 56 of 2001. This could lead to the abuse of constitutional rights, and these provisions should therefore be reviewed. Comité paritaire de l'industrie v Potash 1994 168 NR (SCC). Further, section 21 provides for a warrant to be handed to a person whose rights have been affected thereby, "upon demand" of the person. However in the context of criminal justice a search for and seizure of articles can be considered legitimate for the following purposes: to be used as evidential material in a prosecution,68 to be confiscated because their possession is unlawful,69 to return them to their rightful owner,70 and to be forfeited to the state if they were used in the commission of a crime.71 The two main grounds to ensure the reasonableness of a search are the requirements of objective grounds for the search and prior judicial authorisation. 44 See South African Police Service AmendmentAct 41 of 1997. 6.2 The South African Police Service Act. 72 S 21(1) and s 25 Criminal Procedure Act. The benefits of these practical search procedures will soon become apparent, particularly as little time and cost is incurred. In South Africa as a general rule a search should also be authorised by a judicial officer. Provision should also be made for "information on affirmation" in the light of the observation of fundamental human rights. 72 However, this power is also extended to justices, 73 who include commissioned officers in the South African Police Services, National Defence Force, Correctional Services, directors of public prosecution and state advocates. In South Africa as a general rule a search should also be authorised by a judicial officer.72 However, this power is also extended to justices,73 who include commissioned officers in the South African Police Services, National Defence Force, Correctional Services, directors of public prosecution and state advocates. of all persons leaving the premises. Feb 2 • Security Guard • 27444 Views • No Comments on Security Guard Search Procedures. The Fourth Amendment of the United States Constitution provides as follows: The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, particularly describing the place to be searched, the person or things to be seized. for its enforcement. All guards should report to the Main Gate 10 minutes before the start of their shift; 2. 24 Toich v The Magistrate, Riversdale 2007 (2) SACR 235 (C). Otherwise, arbitrary state actions could severely affect the personal freedom and associated fundamental rights that are intended to be a predominant feature of democratic society. 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.". Source: Celeste Allan, Celeste Allan Incorporated. In 2013, R55 billion was spent on private security. 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. "The objective of s 20, read with s 31 (Criminal Procedure Act) is to enable the police to obtain possession of articles for the purpose of investigating crime and prosecuting suspected offenders.". The Supreme Court of Canada views the right to privacy as being "at the heart of liberty in a modern state".57 Founded on the bedrock value of the inherent dignity of the individual and his or her moral autonomy, the right to privacy gives the state no superior claim to prescribe how the identity of the individual is to be shaped. According to section 13(6) of the Police Service Act43 a police official may search without a warrant any person, premises, other place, vehicle, vessel or aircraft or any receptacle, and seize any article that is found and may lawfully be seized. Section 14(a) of the Constitution3 specifically protects the right not to have one's person or home searched. UNIVERSITY OF SOUTH AFRICA . Introduction This document constitutes the safety and security policy of St Andrew’s School as approved by the governing body on (27 February 2012). The security industry in South Africa is one of the biggest in the world. The Fourth Amendment, unlike section 14, deals not only with the seizure of possessions but with persons as well. Citizens' Arrest In South Africa Any South African citizen may execute an arrest for ... and THE CRIMINAL LAW AMENDMENT ACT OF 2007, Section 3 and 4. The US Constitution also describes the circumstances under which a warrant must be issued. Lecturer, College of Law, University of South Africa. Lawful Citizens' Arrest THE SOUTH AFRICAN CRIMINAL PROCEDURES ACT OF 1977, ACT 51, SECTION 42, says ... officer, detective, or national security officer. 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. Search and seizure will therefore be constitutional if it is authorised by a law of general application, such as the Criminal Procedure Act (which in itself contains reasonable requirements to be complied with before a search may be conducted and which indicates how it must be conducted). On the basis that the chairman of the hearing had also assisted in preparing the company's case against the employee, the employee won his case and the audio tape was admitted for purposes of evidence!
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