Privacy at Risk: Search and Seizures

KAREL N GAEBIN SPITE OF the Namibian courts, in recent years, carefully scrutinising search and seizure warrants and declaring them inconsistent with the principle of legality and intelligibility, and ornately setting out the law in that respect, unfortunately individuals are still arbitrarily subjected to the widest and most unintelligible warrants, resulting in the violation of their rights.

Search and seizure provisions are found in various Namibian legislation, which gives powers to the competent authority(ies) to obtain evidence in relation to a violation of the legislation concerned, or commission of common law crimes, such as fraud. The nature of the search and seizure procedures varies from authority to authority.

The authorities generally are entrusted with the power to perform searches and seizures on persons and their belongings, and occasionally use reasonable force in their duty. But this power must be exercised with utmost caution, and within the boundaries of the law.

When the authorities exceed those boundaries, they jeopardise the admissibility of any evidence collected for prosecution, or may –– on a proper challenge as to the validity of such warrant –– lead to the warrant being set aside by reason of its non-compliance with the law.

As we all know, Namibia is a sovereign, secular and democratic state, founded on the principle of justice, the rule of law and justice for all, including those who may be facing criminal charges. Legislation where the privacy of a person may be interfered with can be found under Chapter 2 of the Criminal Procedure Act, (Act 51 of 1977) as amended (hereinafter ‘the CPA’), providing for search and seizure warrants, and under the Anti-Corruption Act, (Act No. 8 of 2003).

However, the Constitution under Article 13 prohibits interference with the privacy of people’s homes, correspondences and communications. A fortiori, Article 13(2) provides that searches of persons or the homes of individuals shall only be justified where they are authorised by a competent judicial officer.

There exists a significant fundamental requirement of the common law to be satisfied in relation to warrants issued in terms of any legislation that provides for such, namely that the warrant must be intelligible.

What this requirement commands is that for a warrant to qualify as valid and lawful, it must: indicate the statutory provision in terms of which it is issued; identify the searcher; clearly mention the authority it confers upon the searcher; identify the person, container or premises to be searched; describe the article to be searched for and seized, with sufficient particularity; and specify the offence(s) which triggered the criminal investigation, and name the suspected offender(s).

This requirement is part of our common law, and has been adopted in a long line of Namibian judgements, such as Cross-Border Vehicle Trade CC v The Magistrate of Walvis Bay, and recently in The State v Lameck and Others.

A judicial officer cannot on his/her own accord issue a warrant because the power to issue a warrant is dependent on it being demonstrated by ‘information on oath’ that it is alleged on rational grounds that an article (or articles) associated with a presumed offence is to be found on the premises.

For a warrant to be acceptable under such conditions, the information that is put before the judicial official must, in the first place, show a belief on reasonable grounds that a transgression has been carried out, and besides, that there are reasonable grounds to believe that an article associated with the supposed transgression is to be found upon the premises concerned.

So as to show the presence of those jurisdictional certainties, the ‘information on oath’ will fundamentally need to reveal the idea of the transgression that is alleged. A blatant assertion that a transgression has been committed is not sufficient; sufficient material facts must be placed before the judicial officer who is called upon to authorise the warrant.

Because such warrants are very invasive upon the right to privacy, the Namibian superior courts have always interpreted laws that permit the issuance of warrants stringently in favour of the least invasion of such rights.

The matter of Hailulu v Director Anti-Corruption Commission bears reference here as the High Court (judge president Damaseb) said:

”The exercise of those powers has far-reaching implications for a person’s liberty, dignity, reputation and even livelihood, and (they) must be exercised in good faith and for substantial reasons; certainly not in order to strengthen the hand of one person against another in their pursuit of civil, commercial or labour disputes against the person whose conduct is the subject of investigation and criminal prosecution by the law-enforcement agencies.”

Since time immemorial, our superior courts have delivered exceptionally commendable judgements with the aim of educating its citizens, particularly those involved in the administration of justice, but consequently, we are still faced with daily situations in which citizens’ rights are totally disregarded as far as their right to privacy is concerned.

There still exist instances in which warrants for search and seizure are being sought and issued in direct defiance of the trite law on search and seizure warrants. Whether such conduct is deliberate is unknown to me, but a reasonable lawyer would know and apply the requirements of the law stringently should a person’s constitutional rights be subject to invasion through the warrants.

The South African constitutional court in the matter of Goqwana, and in its wise wisdom, warned that a search warrant is not some kind of a mere ‘interdepartmental correspondence’ or ‘notice’. It went on to say that it is a substantive weapon in the arsenal of the state.

Furthermore, it embodies overwhelming powers, as well as devastating consequences. Therefore, warrants must be issued with due care, after cautious scrutiny by a judicial officer, and not mechanically upon a mere ‘checklist approach’.

• Karel N Gaeb is a candidate legal practitioner at Sisa Namandje & Co Inc, writing in his personal capacity.

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