The constitutional court on Friday confirmed a high court order declaring section 13(7)(c) of the South African Police Service Act unconstitutional in a victory for residents of derelict buildings in inner Johannesburg who endured humiliating warrantless raids apparently aimed at flushing out illegal foreigners.
Section 13(7)(c) authorises warrantless searches of any person, home, vehicle or any receptacle or object of whatever nature in a cordoned-off area, and gives the police wide power to seize objects in the possession of those searched.
“This undoubtedly infringes on the right to privacy as elucidated in section 14(a), (b) and (c) of the Constitution,” the court held, ordering that this part of the Act afforded the authorities powers that exceeded the aim of the public order mandate it envisioned and must be severed.
The court hence concurred with a ruling In July last year, by a full bench of the high court in Johannesburg, that declared warrantless searches of private homes and their inhabitants unconstitutional and gave parliament two years to remedy section 13(7)(c).
Gauteng Judge President Dunstan Mlambo had, in a unanimous judgment, held that the section was overbroad and led to impermissible levels of invasion of a person’s inner sanctum.
“The extent of the invasion of the innermost component of the personal right to privacy authorised by S13(7)(c) of the SAPS Act is substantially disproportionate to its public purpose. The section is clearly overbroad in its reach insofar as it also permits warrantless, extensive and intrusive searches of private homes and persons inside them,” he said.
“It is furthermore deficient in failing to guide police officers as to the manner in which searches of private homes and those present in them should be conducted.”
The court found that the relevant section went well beyond the prescripts of the Criminal Procedure Act, which stipulates that warrantless searches were allowed where those concerned gave their consent, or the officers conducting such were confident that a court would have issued a warrant but that applying for one would have frustrated the purpose of the search.
The constitutional court ordered that until parliament corrects the law, the provisions of section 21 and 22 of the Criminal Procedure Act be read into the vacuum left by the severed part of section 13(7)(c) to allow the police to conduct searches within the scope of the first Act. Not doing so would rob the police of the power to conduct searches and seizures even where these may be necessary.
After last year’s high court ruling, the Socio-Economic Rights Institute (Seri) had 15 days to approach the constitutional court for an order confirming the invalidity of this section of the Act.
The organisation had approached the court on behalf of some 2 852 people inhabiting 11 abandoned buildings in downtown Johannesburg. These included Rosano Modes, Wellington Court, Remington Court, Erven 87 and 88 in Berea and four properties in Davies Street.
They had, between May 2017 and May 2018, endured more than a dozen raids by the police, the Johannesburg Metro Police and officials from the department of home affairs. The raids took place while Herman Mashaba was the mayor of Johannesburg and still with the Democratic Alliance.
As the leader of ActionSA, his campaign for the November 1 local government election has raised concern about its alleged xenophobic overtones. Mashaba was the eighth respondent in the matter.
The high court noted that section 13(7)(c) did not differentiate between the types of premises that may be searched, and its language was “so sweeping” that it permits warrantless searches by members of the police into private homes and rifling through intimate possessions.
Both the high court and the constitutional court held that the power of the police to cordon off an area to restore public order was relevant to their constitutional mandate to ensure safety and security.
But it was a question, Mlambo said, of how officials exercise this power and the way they went about it if the operations in question had violated the dignity of those involved.
As it happened, the searches were conducted in a manner that humiliated the inhabitants, and seemed designed to encourage them to vacate the premises. Doors were broken down, inhabitants were fingerprinted and those who could not produce documentation showing that they were lawfully resident in South Africa were arrested.
Seri asked the court to declare section 13(7) in its entirety invalid, but did not succeed in this regard. It begged leave of the constitutional court to appeal this part of the high court ruling, but the court on Friday held that sections 13(7) (a) and (b) were valid, in that they did not infringe on the right to privacy.
These extend the power to the police to cordon off areas for the purpose of maintaining public order, and the majority judgment held that this did not imply warrantless searches be carried, and therefore the section was not rendered inchoate by the removal of section 13(7)(c).
Specifically, section 13(7)(a) gives the police commissioner the power to provide written authorisation to cordon off an area where it is reasonable in the circumstances to restore public order or safety. Section 13(7)(b) specifies what must be included in the written authorisation.
“Neither of these two paragraphs limits or infringes any constitutional rights,” the constitutional court said.
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