CONSTITUTIONAL COURT OF SOUTH AFRICA
The Residents of Industry House, 5 Davies Street New Doornfontein, Johannesburg and Others v Minister of Police and Others
CCT 136/20 Date of hearing: 24 November 2020 ________________________________________________________________________
MEDIA SUMMARY
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The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On Tuesday, 24 November 2020 at 10h00, the Constitutional Court will hear two applications. The first is for the confirmation of an order of invalidity issued by the High Court of South Africa, Gauteng Local Division, Johannesburg (High Court), that section 13(7)(c) of the South African Police Services Act 68 of 1995 (SAPS Act) is unconstitutional and thus invalid. The second is for leave to appeal directly to this Court against that part of the High Court’s order dismissing the constitutional challenge against sections 13(7)(a) and (b) of the SAPS Act; the applicants’ claim for constitutional damages;
and an application for a final interdict against future warrantless searches.
Between 2017 and 2018, the applicants, who are residents of various buildings in the inner city of Johannesburg, were subjected to a series of raids and searches of their homes and possessions by SAPS officials, who were often accompanied by officials of the Johannesburg Metropolitan Police Department and/or immigration officials from the Department of Home Affairs. All but one of the searches were conducted in terms of section 13(7) of the SAPS Act. While their homes were searched, the applicants were told to go outside and were searched, fingerprinted, and requested to present their identity documentation.
The applicants launched an application in the High Court for an order declaring section 13(7) constitutionally invalid because it permits warrantless searches of a person, a person’s home, property and the seizure of their possessions, and that this infringed on the right to privacy in section 14 of the Constitution.
The High Court disagreed that the entirety of section 13(7) was unconstitutional. It reasoned that section 13(7)(a) and (b) passed constitutional muster and were an important legislative mechanism which enabled the police to discharge their constitutional mandate effectively. However, the High Court found that the language and import of section 13(7) (c), by permitting warrantless searches of private homes, intruded on the most protected inner sanctum of the person. The High Court conducted a limitations analysis in terms of section 36 of Constitution and found that section 13(7)(c), while connected to the purpose it was meant to serve, was overbroad as it had no predetermined safeguards to minimise the intrusion on the right to privacy; and the purpose could be achieved through less restrictive means. It, therefore, held that the impugned provision was disproportionate to its public purpose, which is to restore public order and safety in areas with high crime rates and also in instances such as bomb threats or insurgent activity.
The Court thus held that section 13(7)(c) was constitutionally invalid. The declaration of invalidity was prospective and suspended for 24 months to allow the Legislature to remedy the defect. The High Court ordered an interim reading- in of the section which has the effect of excluding warrantless searches in any private home and/or of any person inside such private home from the ambit of section 13(7)(c) unless the warrantless search complies with section 22 of the Criminal Procedure Act 51 of 1977.
Turning to the decisions to issue the written authorisations under section 13(7), the High Court held that these constituted administrative action in terms of the Promotion of Administrative Justice Act 3 of 2000 (PAJA). It held that the written authorisations contravened section 13(7) as they did not comply with the requirement that such authorisations must be granted only “where it is reasonable to restore public order or to ensure the safety of the public in a particular area”. The High Court also held that the decisions to issue written authorisations were taken for an ulterior purpose, namely to arrest
‘illegal immigrants’ and survey the occupants in the so-called ‘hijacked buildings’, this, the High Court held, fell foul of section 6(2)(e)(ii) of PAJA. The High Court thus set aside the written authorisations.
Although the High Court concluded that there were sufficient grounds to grant a final interdict, it refused to grant the final interdict restraining all future warrantless searches of the applicants' homes. It held that the interim relief was sufficient to protect the applicants from further unconstitutional searches. Regarding the claim for constitutional damages, the Court held that there was insufficient primary evidence to make a blanket order granting that claim.
The applicants have now approached the Constitutional Court for the confirmation of the declaration of invalidity and also seek leave to appeal. Before this Court, the applicants submit that section 13(7) is unconstitutional in its entirety; the residents are entitled to a final interdict restraining future warrantless searches; and that they are entitled to constitutional damages. As to the interpretation of section 13(7), they submit that the purpose of the powers contained in sections 13(7)(a) and b) is to provide a framework for the warrantless searches provided for in section 13(7)(c) and that if section 13(7)(c) is unconstitutional so too are sections 13(7)(a) and (b).
Relying on the jurisprudence of this Court, they assert that the infringement on the right to privacy caused by section 13(7)(c) is unreasonable and unjustifiable. They assert that the High Court failed to consider the right to privacy to its fullest extent and that it extends beyond a private home. The applicants also submit that it is more appropriate to declare the entire section unconstitutional and afford the Legislature the opportunity to limit its scope to extreme circumstances (such as bomb threats) which may be more constitutionally permissible.
The applicants further submit that the High Court erred in not granting a final interdict on the grounds that its interim relief would be sufficient. They argue that once the requirements for a final interdict had been met, the High Court did not have a discretion to refuse to grant it. They further submit that some of the applicants are entitled to constitutional damages of R1000 each, for the breach of their rights to privacy and dignity.
The first, sixth, seventh and tenth respondents (the respondents) did not oppose the application or file answering papers, but have filed written submissions. The respondents do not oppose the application for confirmation but oppose the application for leave to appeal. They submit that it is not in the interests of justice to grant leave to appeal directly to this Court. They state that the applicants abandoned an application for leave to appeal to the Supreme Court of Appeal.
The respondents submit that section 13(7) serves a broader purpose than just authorising warrantless searches of private homes but also applies to other spaces within buildings and land. A declaration of invalidity would therefore eviscerate its purpose. Further, the section must be read in light of section 13(1) and (3) of the SAPS Act which requires that due regard must be given to fundamental rights when officers are exercising their powers.
They further submit that the limitation of the rights is reasonable and justifiable and that the High Court was correct in limiting its order of constitutional invalidity to section 13(7)(c).
The respondents submit that the written authorisations were not arbitrary and were only issued after due consideration was given to the applications received from the various station commanders of the City of Johannesburg. These reflected high crime rates;
buildings being hijacked; and the running of illegal shebeens and gambling networks which necessitated these searches. Further, they assert that the notices contained sufficient safeguards such as the injunction towards due regard to fundamental rights; that the powers had to be exercised justifiably; and that the geographical bounds set out in the authorisations had to be observed.
In respect of the interdict, they submit that the High Court was correct in refusing to grant a final interdict as that order would handicap the police from executing their constitutional mandate and that there is no reasonable apprehension of harm. They argue that the application for a final interdict is now moot as the High Court’s interim relief effectively serves the same purpose. Lastly, the respondents argue that the evidence does not lean towards the granting of constitutional damages. In this regard, the High Court was correct in dismissing the claim as it could not have been expected to exercise its discretion to grant
a blanket order of compensation in circumstances where the applicants had the right to bring a delictual action against the police.
