Search of Persons and Premises (Zimbabwe)
For a search warrant to be valid it must satisfy the requirements set out in s 50(1) CPEA. A search warrant can be issued either by a judicial officer or by a justice of the peace. The premises or persons to be searched must be precisely described and the items to be searched for must be specifically stated. The warrant may only be issued if the person issuing it is satisfied that there are reasonable grounds for carrying out the search in that there is a reasonable basis for believing that the search will lead to the seizure of items used to commit a crime or provide evidence of the commission of a crime.
In the case of Elliott v Commissioner of Police 1986 (1) ZLR 228 (H) it was held that the search warrant was invalid because it was far too general and vague. It failed to identify any specific offence in connection with which the search was being carried out. No particular documents were identified as the documents to be searched for and no attempt was made to link these documents with a particular offence. The Court ordered the return of all the documents seized.
In Capital Radio (Pvt) Ltd v Minister of Information & Ors (2) 2000 (2) ZLR 265 (H), it (was held that the warrant issued by the magistrate was invalid as it contained two serious flaws. Firstly, the warrant purported to be applicable throughout the country, whereas a magistrate only has jurisdiction to issue a warrant in respect of his area of jurisdiction. Secondly, the warrant was far too broad and vague and was lacking in specific detail. The warrant did not specify the premises to be searched, nor did it state what the reason for the search was. Further, the courts must ensure that the power of search and seizure is not abused. The police cannot be allowed to exercise uncontrolled powers of search and seizure. Search warrants will be interpreted with reasonable strictness and, in cases of doubt, they will be interpreted so as to protect the liberty and privacy of the subject.
A search warrant can also be issued by a magistrate in terms of s 26 of the Serious Offences (Confiscation of Profits) Act [Chapter 9:17] to search for "tainted property", which includes property used in connection with serious offences and the proceeds of serious offences committed inside and outside Zimbabwe. The magistrate must be satisfied that there are reasonable grounds for issuing the warrant. The magistrate does not have to be told at the time that he issues the warrant what specific offence may have been committed. The police must, however, inform the magistrate of this detail within forty-eight hours of the application for a warrant. Although the kind of property to be seized must be specified in the warrant, the police nonetheless may seize property which they believe on reasonable grounds to be -
- tainted property in relation to the offence even if it is not specified in the warrant;
- tainted property in relation to another offence; and
The circumstances in which the police can lawfully carry out searches without warrant are set out in s 51 CPEA.
Before the police may lawfully search without warrant and seize items during that search two conditions must be satisfied, namely -
- the police officer seizing the items must believe on reasonable grounds that a warrant would be issued to him by the appropriate authority if he applied for one; and
- he must believe, on reasonable grounds, that delay in obtaining a warrant would prevent the seizure.
See Chizano v Commissioner of Police HH-392-88; Associated Newspapers of Zimbabwe (Pvt) Ltd v Madzingo NO & Anor HH-157-03.
The police also have powers to search without warrant under s 28 of the Serious Offences (Confiscation of Profits) Act [Chapter 9:17]. They may go onto land or into premises and search for and seize "tainted property" without warrant if they believe on reasonable grounds that this course is necessary to prevent the destruction or loss of the property and the circumstances are so serious and urgent as to require an immediate search.