Property Practitioners Act, 2019 (Act No. 22 of 2019)Chapter 5 : Compliance and Enforcement25. Powers of inspectors to enter, inspect, search and seize |
| (1) | An inspector may, at any reasonable time and without prior notice, conduct an inspection to determine whether the provisions of this Act are being or have been complied with, and for that purpose, may without a search warrant— |
| (a) | enter and inspect any business premises, except a private residence, of a property practitioner; |
| (b) | require the property practitioner, manager, employee or an agent of the property practitioner to— |
| (i) | produce to him or her the fidelity fund certificate of that property practitioner; |
| (ii) | produce to him or her any book, record or other document related to the inspection and in the possession or under the control of that property practitioner, manager, employee or agent; or |
| (iii) | furnish him or her with such information in respect of the fidelity fund certificate, book, record or other document at such a place and in such manner as the inspector may determine; and |
| (c) | examine or make extracts from, or copies of, any such fidelity fund certificate, book, record or other document. |
| (2) | Where a property practitioner conducts his or her business at his or her private residence, the inspector must notify the property practitioner in advance and in writing before conducting the inspection in terms of subsection (1), and set out the details of the inspection. |
| (3) | An inspector may, on authority of a search warrant— |
| (a) | enter and search any premises and any person on those premises if there are reasonable grounds for believing that there is an article or record therein that has a bearing on the inspection; |
| (b) | examine any such article or record that is in those premises; |
| (c) | request any person on the premises to unlock or otherwise provide unhindered access to any safe, storage facility or other receptacle on the premises, or to point out any other person on the premises who can do so; |
| (d) | request information about any article, document or record that has a bearing on the inspection; |
| (e) | take extracts from, or make copies of, any book, computer, document or record that is on or in the premises and that has a bearing on the inspection; |
| (f) | use any computer system on the premises that has a bearing on the inspection, or require assistance of any person on the premises to use that computer system, to— |
| (i) | search any data contained in or available on that computer system; or |
| (ii) | reproduce any record from that data; |
| (g) | seize any output from that computer for examination and copying; |
| (h) | attach and if necessary remove from the premises for examination and safekeeping anything that has a bearing on the inspection; and |
| (i) | seize and retain any such fidelity fund certificate, book, record or other document that may afford evidence of sanctionable conduct under this Act: Provided that the person from whom the fidelity fund certificate, book, record or other document was taken shall, at his or her request and at his or her expense, be allowed to make copies thereof or extracts therefrom, under the supervision of the inspector concerned. |
| (4) | The search warrant contemplated in subsection (3) may only be issued by a judge or a magistrate if it appears from the information given by the inspector under oath or affirmation that— |
| (a) | there are reasonable grounds for suspecting that a contravention of the Act has occurred or is occurring; |
| (b) | a search of the premises is likely to yield information pertaining to the alleged contravention; and |
| (c) | the search is reasonably necessary for the purposes of enforcing the Act. |
| (5) | The search warrant must identify the premises that may be entered and searched and specify the parameters within which the inspector may perform an entry, search or seizure. |
| (6) | The search warrant is valid only until— |
| (a) | the warrant is executed; |
| (b) | the warrant is cancelled by the person who issued it or, in that person’s absence, by a person with similar authority; |
| (c) | the purpose of issuing it has lapsed; or |
| (d) | the expiry of one month after the date it was issued, |
whichever occurs first.
| (7) | The warrant may be executed only during the hours of 08h00 and 17h00 of a day other than a Saturday, Sunday or public holiday, unless the judge or the magistrate who issued it authorises that it may be executed at any other time that is reasonable in the circumstances. |
| (8) | Immediately before commencing with the execution of a search warrant, the inspector executing that warrant must— |
| (a) | if the owner or person in control of the premises to be searched is present— |
| (i) | provide identification to that person and explain to that person the authority by which the warrant is being executed; and |
| (ii) | hand exact copies of the warrant and of this section to that person or to the person named in it; or |
| (b) | if no person is present, affix an exact copy of the search warrant at the entrance to the premises in a prominent and visible place. |
| (9) | The inspector authorised to conduct search entry and search in terms of a search warrant issued in terms of subsection (3), may be accompanied and assisted by one or more police officers. |
| (10) | The inspector and any police officer accompanying the inspector must, when entering and searching any premises in terms of a search warrant, conduct that entry and search with strict regard to decency and every person’s right to dignity, freedom, security and privacy. |
| (11) | During any search, only a female inspector or police officer may search a female person and only a male inspector or police officer may search a male person. |
| (12) | An inspector who removes anything from premises being searched must— |
| (a) | issue a written receipt for it to the owner of or person in control of the premises in sufficient detail to identify each specific thing so removed; and |
| (b) | return it as soon as practicable after achieving the purpose for which it was removed to the person from whose control it was taken, unless it is to be used as evidence in any subsequent proceedings, in which case the inspector must forthwith in writing inform the person from whose control it was taken of that fact. |
| (13) | During a search conducted under a search warrant, a person may refuse to permit the removal of an article, document or record on the grounds that it contains privileged or protected information, but that person may not cause such article, document or record to be amended, altered or destroyed until the inspector has been afforded a reasonable time to act under subsection (14). |
| (14) | If the owner or person in control of an article or document refuses to give the article, document or record to the inspector conducting the search, that inspector may in writing request the registrar or sheriff of the High Court that has jurisdiction to attach and remove the article, document or record for safe custody until a court determines whether or not the information is privileged or protected. |
| (15) | A police officer who is assisting the inspector in terms of this section may use as much force as is necessary, including breaking a door or window of the premises, or the breaking of any lock which prevents the search of any safe, storage facility or other receptacle on the premises, to overcome resistance by any person to the entry and search. |
| (16) | Before using force, a police officer must audibly demand admission or access and must announce the purpose of entry, unless it is reasonable to believe that doing so may induce someone to destroy, dispose of or conceal an article, document or record that forms part of the search or is otherwise relevant to the search. |
| (17) | A person who submits any information to an inspector or makes any statement to him or her may indicate to the inspector that he or she claims confidentiality in respect of any information or statement so provided, and the inspector must deal with such information in accordance with the relevant law. |