Evidence in Open View Documents in Search & Seizure
Plain view doctrine: finding evidence in open view does not amount to search and seizure without warrant
Written by Morne Viljoen
The Constitution of the Republic of South Africa guarantees the right of all to privacy. This right to privacy includes the right of everyone not to have their person, home, or property searched, and not to have their possessions seized, or the privacy of their communications infringed.
In order to protect such right to privacy, the general rule in terms of the Criminal Procedure Act 51 of 1977, is that a search of a person or their property or home, and the seizure of a person’s property may only take place if a search and seizure warrant has been granted against such a person, property or premises by a court of law.
This matter was put under the spotlight, so to speak, in the case of Du Toit and Others v Provincial Minister of Environmental Affairs and Development Planning: Western Cape and Others.
The hunting of wild animals in the Western Cape, including species like kudu and steenbok, is regulated by the Nature Conservation Ordinance (“the Ordinance”). The hunting season for Kudu in 2014 was from the period 1 May 2014 to 31 August 2014 with a daily bag limit of one kudu. Night hunting, and in particular with the aid of a spotlight, was also prohibited at the time unless a hunter was issued with a Certificate of Adequate Enclosure (“CAE”).
In the early hours of the morning of 12 December 2014, officials of the Western Cape Nature Conservation Board, stopped the Applicants, traveling in two vehicles, on a public road. The officials used a torch to visually inspect the vehicles and to shine it through the windows of the vehicles. During the inspection the officials found two freshly hunted kudus, a car battery and spotlights “in public sight” on the back of the one vehicle and a steenbok in the back of the other. Hunting rifles were seen behind the seat inside the cabin of the second vehicle. It was open and clothed only in the darkness. The illumination of the torch light made it easily visible from outside the vehicle where officials were standing.
The Applicants contended in the Western Cape High Court that, by shining the torch through the windows of their cars, the officials had violated their right to privacy as, they contended, it amounted to unlawful searching of their vehicle.
The Court held that:
- • the officials were entitled in terms of s 21(1)(a) and (e) of the Ordinance, to be on the public road and were entitled to stop the Applicants;
- • since the items in the possession of the Applicants were in open view, there could have been no expectation of privacy on the part of the Applicants.
- • this approach was consistent with the “plain view doctrine” adopted by foreign Courts.