What can I do after my house was searched by the police with no search warrant?

The long answer

W. Nortje in an article for scielo.org.za, reports that the courts have found that with police action, there are always two competing things which have to be balanced against each other: the constitutional rights of every individual to privacy and human dignity on the one hand, and the state’s constitutional responsibility to prosecute crime on the other. 

There is no doubt that a person’s privacy is violated when police conduct a search and seizure without a warrant, but in terms of section 22 of the Criminal Procedure Act, the police can search and seize without a warrant when they are reasonably sure that they would have been granted a warrant, and that the delay caused by getting the warrant would defeat the purpose of the search. But as Nortje says, what is "reasonable" is not clearly defined, and must be established on a case-by-case basis by the courts. And that the courts have so far not established a list of factors that would be regarded as reasonable grounds for executing a warrantless search.

He says that in Starplex, the Court held that if the authorities had left the premises to obtain a warrant, the money hidden on the premises would have disappeared in all likelihood. "This requirement stated in section 22(b)(ii) of the Criminal Procedure Act is crucial in advocating the constitutional validity of a warrantless search, in that it remains critical for the police to collect the necessary evidence at the crime scene and to prevent further crime. A delay by the police in order to obtain a warrant might be all that a criminal needs in order to be able to destroy or move the evidence."

But, says Nortje, the courts have increasingly been concerned about the violation of privacy entailed in warrantless searches. Nortje feels that the current legislation surrounding searches without a warrant should be reviewed “to protect the legitimacy of the police as well as the dignity and privacy of the citizens of South Africa.” In other words, there should be far stricter criteria to justify warrantless search and seizure by the police.

What the police are required to do if they conduct a warrantless search and seizure is to ask the person whose property is to be searched for their consent to the search, and must inform them of their right to refuse their consent to the search. The person must also be informed of the purpose of the search. If you refuse to give your consent, the police can still go ahead if they are "reasonably" convinced that the delay caused by getting a warrant would make the search pointless, as the evidence could well be removed or destroyed.

In your case, the police did not ask for your consent, inform you of your right to refuse or tell you what the purpose of the search was, which they are constitutionally required to do. 

The Criminal Procedure Act grants the power to the police to seize any article reasonably believed to have been used to commit a crime or that is reasonably believed to be evidence that could assist the state in proving that an offence was committed. This is why the police were able to seize the scale from your house. 

And, as Louis Radyn in a 2018 article for derebus.org.za says, any person who obstructs the executing searcher in the performance of their functions, shall be guilty of an offence. In a similar vein the subject of a search who is asked for information relating to matters within their knowledge, and who refuses to co-operate, shall be guilty of an offence.

Phoning your lawyer cannot be said to be obstructing the police from searching your house. Certainly, the police would not have the right to arrest you for phoning your lawyer.

Burgerhuyserattorneys.co.za says that “…if there was no real urgency or if there were insufficient grounds for the search to take place, the evidence will have been unconstitutionally obtained and cannot be used against the accused during his or her trial.”

In terms of an arrest, Louis Van Der Walt, in an article for Mondaq.com, says: “Police officers cannot arrest someone just because he/she feels like it or has a vague hunch that someone might be a criminal. Police officers have to be able to justify their arrest usually by showing some tangible evidence that led them to reasonable cause. As a general rule, the object of an arrest is to secure the attendance of such a person at his or her trial. A police officer may not arrest a person in order to punish, scare, or harass such person. It is a severe infringement of a person's fundamental Constitutional, rights such as Freedom and Human Dignity.”

Van Der Walt says that a policeman has to weigh up whether the suspect is likely to abscond or commit further crimes if they do not arrest them. He doubts or at least finds it debatable whether the South African Police Service provides sufficient guidelines and training to allow police officers to make the appropriate decision given each circumstance. He concludes by saying, ‘The purpose remains to ensure Justice, not retribution and destruction.’

It's not clear to me what an admission of guilt means regarding the scale. Are the police saying that it is a crime to possess a scale, or that they regard it as evidence of criminal activity on your part? 

Given all the above, it seems to me that the best advice is to consult with your lawyer before deciding whether to go to court to prove your innocence or pay an admission of guilt. 

Wishing you the best,
Athalie