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IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
CASE NO. CCT 253/15
In the matter between:
THE MINISTER OF POLICE First Applicant
THE DIRECTOR OF PUBLIC PROSECUTIONS:
WESTERN CAPE Second Applicant
THE MINISTER OF JUSTICE AND
CONSTITUTIONAL DEVELOPMENT Third Applicant
and
GRACE NOMAZIZI KUNJANA Respondent
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APPLICANTS’ PRACTICE NOTE
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2 THE NATURE OF THE PROCEEDINGS
1. An application in terms of section 172(2)(d) of the Constitution of the Republic of South Africa, 1996 (‘the Constitution’) for confirmation of the following orders made by the Western Cape Division of the High Court, Cape Town (per Veldhuizen J) on 3 December 2015:
1.1 an order in terms of section 172(1)(a) of the Constitution declaring that section 11(1)(a) and (g) of the Drugs and Drug Trafficking Act 140 of 1992 (‘section 11(1)(a) and (g)’ and ‘the Drugs Act’) is unconstitutional and invalid; and
1.2 an order in terms of section 172(1)(b)(i) of the Constitution that the declaration of invalidity is not retrospective.
ISSUES THAT WILL BE ARGUED
2. The correctness of the declaration of unconstitutionality and invalidity of section 11(1)(a) and (g).
3. The correctness of the order that the declaration of invalidity be purely prospective.
4. The Respondent’s claim that the Third Applicant pay her costs in this Court.
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PORTIONS OF THE RECORD THAT ARE RELEVANT
5. Only the following portions of the record need be read:
The notice of motion (vol 1 p 2)
The present Respondent’s founding affidavit (vol 1 pp 7-32)
The present First Applicant’s answering affidavit (vol 1 pp 44-74)
The present Second Applicant’s answering affidavit (vol 2 pp 133- 145)
The present Third Applicant’s answering affidavit (vol 2 pp 176- 178)
The present Respondent’s replying affidavit (vol 2 pp 146-175)
The judgment and order of the Court a quo (vol 2 pp 179-185).
ESTIMATED DURATION OF THE ARGUMENT
6. The case can be fully argued within 2 hours. To the best of our knowledge, save for the issue of costs, there will be no opposition from the Respondent or anyone else.
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SUMMARY OF THE APPLICANTS’ ARGUMENT
7. The order of unconstitutionality and invalidity should be confirmed mainly because section 11(1)(a) and (g) authorise warrantless searches even in cases where there is no urgency in that the delay occasioned by applying for a warrant will not result in the items or evidence which is sought being lost or destroyed.
8. The order of invalidity should operate purely prospectively, i.e. have no effect on searches and seizures undertaken prior to the date of the order of invalidity, even if any proceedings in relation to them are not yet finalised, for reasons similar to those set out by this Court in Estate Agency Affairs Board v Auction Alliance (Pty) Ltd and Others 2014 (3 SA 106 (CC) at paras 45-51 for the order it made at para 73.2.
9. The Third Applicant should pay the Respondent’s costs up to date of delivery of her notice dated 13 January 2016 stating she supported the present application for confirmation of the orders of constitutional invalidity. As the Applicants applied for confirmation of the orders made by the Court a quo, the Respondent was not obliged to come to this Court.
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AUTHORITIES ON WHICH THE APPLICANTS WILL PLACE PARTICULAR RELIANCE
10. The Applicants will refer in particular to:
Magajane v Chairperson, North West Gambling Board and Others 2006 (5) SA 250 (CC)
Gaertner and Others v Minister of Finance and Others 2014 (1) SA 442 (CC)
Estate Agency Affairs Board (Estate Agency Affairs Board v Auction Alliance (Pty) Ltd and Others 2014 (3 SA 106 (CC).
A M BREITENBACH SC
NAMHLA PAKADE Applicants’ counsel Chambers
Cape Town 29 March 2016
