| (1) | If an inspector suspects that an offence in terms of this Act has been committed, is being or is likely to be committed or that preparations or arrangements for the commission of an offence in terms of this Act are being or are likely to be made on or in any premises (in this section referred to as the 'alleged offence'), he or she may, on the authority of a warrant issued under subsection (3)- |
| (a) | enter the premises and search the premises or the person referred to in the warrant or the owner or person in control of the premises, and there make, subject to subsection (2), the enquiries he or she considers necessary; |
| (b) | examine any document or thing found on or in the premises, and make copies of or make extracts from that document; |
| (c) | subject to subsection (2), request the owner or person in control of the premises or any person in whose possession or control that document or thing is, or who may reasonably be expected to have the necessary information, to furnish information regarding that document or thing; |
| (d) | seize for further examination or safe custody any document or thing on or in the premises which has a bearing on the alleged offence; |
| (e) | seal or otherwise safeguard any premises on or in which any document or thing which has a bearing on an alleged offence is found; |
| (f) | take the steps that he or she considers necessary to terminate or prevent the commission of an offence in terms of this Act. |
| (2) | An inspector requesting information from a person in terms of subsection (1) (a) or (c) or (4) (a) shall, before so requesting information, inform the person in a language that the person understands of- |
| (a) | the right to remain silent; and |
| (b) | the consequences of not remaining silent. |
(3)
| (a) | A warrant referred to in subsection (1) shall be issued by a magistrate or a judge of a High Court, if it appears to the magistrate or judge from information on oath or affirmation that there are reasonable grounds for believing that a document or thing that has a bearing on the alleged offence- |
| (i) | is or will be in the possession or under the control of any person or on or in any premises within the area of jurisdiction of that magistrate or judge; and |
| (ii) | cannot reasonably be obtained otherwise. |
| (b) | The warrant shall specify which of the acts contemplated in subsection (1) (a) to (f) may be performed thereunder by the inspector to whom it is issued. |
| (c) | The warrant may be issued on any day and shall be of force until- |
| (ii) | it is cancelled by the person who issued it or, if such person is not available, by any person with similar authority; |
| (iii) | the expiry of three months from the day of its issue; or |
| (iv) | the purpose for which the warrant was issued no longer exists, |
whichever may occur first.
| (d) | An inspector shall, immediately before commencing the execution of the warrant- |
| (i) | identify himself or herself to the person referred to in the warrant or the owner or person in control of the premises, if such person is present; |
| (ii) | hand to such person a copy of the warrant or, if the person is not present, affix that copy to a prominent place on the premises; |
| (iii) | supply such person at his or her request with particulars regarding his or her authority to execute the warrant. |
(4)
| (a) | Subject to paragraph (b) of this subsection and subsections (2) and (5) to (10), any inspector may, without a warrant- |
| (i) | enter any premises, if the person who is competent to do so consents to that entry, and perform such of the acts contemplated in subsection (1) (a) to (f) which the person who is competent to do so consents to; or |
| (ii) | enter any premises other than a private dwelling and perform any of the acts contemplated in subsection (1) (a) to (f), except the search of any person, if there are reasonable grounds for believing that- |
| (aa) | a warrant would be issued to the inspector under subsection (3) if the inspector were to apply for that warrant; and |
| (bb) | the delay in obtaining that warrant would defeat the purpose of the entry. |
| (b) | An inspector shall, immediately before entering premises in accordance with paragraph (a), identify himself or herself. |
| (c) | Any acts performed by an inspector by virtue of paragraph (a) (ii) will cease to have any legal effect unless a magistrate or a judge of a High Court having jurisdiction in the area where the acts were performed, confirms those acts on the application of an inspector brought within 10 days of the day on which those acts had been performed. |
| (5) | An entry, search and seizure under this section shall be- |
| (a) | conducted with strict regard to decency and order, including the protection of a person's right to dignity, to freedom and security and to privacy; and |
| (b) | executed by day unless the execution thereof by night is justifiable and necessary. |
| (6) | The seizure of a document or thing under this section shall be effected by removing it from the premises concerned or, if that removal is not reasonably practicable, by sealing or otherwise safeguarding it on or in the premises. |
| (7) | An inspector who may under this section enter and search any premises- |
| (a) | shall, immediately before the entry, audibly demand admission to the premises and make known the purpose of the entry and search, unless there are reasonable grounds for believing that a document or thing in respect of which the search occurs, may be destroyed, disposed of or tampered with if that admission is first demanded and that purpose is made known; |
| (b) | may use the force that is reasonably necessary to overcome resistance to the entry or search or the seizure of a document or thing under this section; |
| (c) | may utilize or request the assistance of any person to identify any document or thing which has a bearing on the alleged offence or to otherwise conduct the entry or search or the seizure of any document or thing under this section. |
| (8) | A person from whose possession or control a document has been removed under this section may, at his or her own expense and under the supervision of an inspector, make copies thereof or excerpts therefrom. |
| (a) | An inspector who removes a document or thing from any premises under this section shall issue a receipt to the person who is the owner or in possession or in control thereof or, if that person is not present, affix it to a prominent place on the premises. |
| (b) | If an inspector who is not a member of the South African Police Service removes a document or thing under this section, he or she shall forthwith hand it over to any member of that Police Service. |
| (a) | If, during the conduct of a search under this section, a person claims that a document or thing found on or in the premises contains privileged information and refuses the examination or removal of the document or thing, the inspector conducting the search shall, if he or she is of the opinion that the document or thing contains information which has a bearing on the alleged offence, request the registrar of the High Court which has jurisdiction or his or her delegate, to seize the document or thing for safe custody until a court of law has made a ruling on the question whether the information is privileged or not. |
| (b) | If that information is held not to be privileged, the document or thing concerned shall be available for inspection and testing or analysis under subsection (12). |
| (11) | Subject to subsections (12) to (15), any document or thing seized under this section shall be disposed of in accordance with the applicable provisions of the Criminal Procedure Act, 1977 (Act 51 of 1977), as if it has been seized in terms of that Act. |
| (12) | Subject to subsection (10), a document or thing seized under this section shall- |
| (a) | be open for inspection by any interested person during normal office hours; |
| (b) | on request of any interested person, be made available for testing or analysis, if the person in whose custody the document or thing is kept or any inspector is satisfied, after taking into account the nature of the document or thing and of the testing or analysis, the purpose of the testing or analysis and the suitability of the person by whom the testing or analysis is to be conducted, that the request is reasonable. |
| (a) | If criminal proceedings are not instituted in connection with a document or thing seized under this section within a reasonable time after the seizure or, if it appears that the document or thing is not required in criminal proceedings for the purposes of evidence or an order of court, it shall- |
| (i) | subject to paragraph (b), be returned to the person from whom it was seized or, if that person may not lawfully possess it, to the person who may lawfully possess it; or |
| (ii) | be released from the safeguarding on or in the relevant premises, as the case may be. |
| (b) | The person in whose custody the document or thing is kept, shall 72 hours before the return notify every complainant (if any) in respect of the alleged offence to which the document or thing relates of the intended return of the document or thing. |
| (14) | In criminal proceedings in connection with a document or thing seized under this section, the court concerned may, without limiting any other powers of the court, order that- |
| (a) | if the document or thing is the subject of an offence in terms of this Act, it be destroyed; |
| (b) | the document or thing be released to a specified person. |
| (15) | When a court holds that imported goods which are destined for exportation and were seized under this section are the subject of an offence in terms of this Act, the court shall not allow the exportation of those goods in an unaltered state, except if it, after due regard to the circumstances regarding the offence, thinks it fit to allow that exportation. |
[Section 4 substituted by section 4 of Act 38 of 1997.]
