Vital Concourt judgment on warrantless searches

Illustration: Lisa Nelson

• The Constitutional Court has struck down a section of the police act which allows for warrantless searches in cordoned off areas.
• The case arises after police conducted “cruel, degrading and invasive” raids on people living in 15 high-rise blocks in downtown Johannesburg.
• The police seemed to think that because people were not citizens their rights could be violated at any hour of the day or night, the court said.

A section of the South African Police Service Act that permitted officials to conduct “cruel, degrading and invasive” raids on “poor and vulnerable” people living in 15 high-rise blocks in downtown Johannesburg has been scrapped from the statute book.

The Constitutional Court has ruled that section 13(7)(c) that permits search and seizures in cordoned off areas without warrants does not pass constitutional muster.

The apex court confirmed a previous, similar ruling handed down in the Pretoria High Court, which heard argument by lawyers from the Socio Economic Rights Institute (SERI), representing about 2,800 people who experienced raids during 2017 and 2018. The court found that the “true purpose” of the raids was to seek out and arrest undocumented immigrants and frighten and harass the residents into leaving their homes.

Judge Nonkosi Mhlantla, writing for the majority, said: “A home is more than bricks and mortar. It is often a place of comfort and safety and the keystone of a functional society. The background to this application illuminates in living colour and grim reality, the lived experiences of the applicants.”

“They were forced out into the street, fingerprinted and had to show their ID documents and passports. Anyone not in possession of valid papers was detained in terms of the Immigration Act,” said Judge Mhlantla.

The police then entered the buildings, broke down doors and searched their possessions. This was done without any warrant.

The High Court deemed the section to be so sweeping that it permitted warrantless searches into private homes and rifling through intimate possessions. It gave the police carte blanche to enter any home within the cordoned off area and to search every square inch.

Sections (a) and (b) of the Act allow for the cordoning off of areas, where necessary to restore public order, with the requisite authority and that authorisation may not exceed 24 hours.

While the applicants argued that this too was unconstitutional, the Constitutional Court disagreed.

The majority noted that authorisation was required, so there were some safeguards and that ensuring and restoring public order and safety was one of the main responsibilities of the state.

However, section (c) was “too broad”. “It specifically allows for any person, vehicle or premises to be searched … including, for example, their handbags. There are no safeguards, which is why the officials did indeed behave in a despicable manner,” Judge Mhlantla said.

“They are not required to have reasonable suspicion and can search anything or anyone in the cordoned off area.

“It is permitted even where threat to public order or safety is not urgent or pressing or where obtaining a warrant would not defeat the purpose of the search.

“Warrants soften the intrusion on the right to privacy and guide the conduct of the inspection and inform the official of the legality and limits of the search.

“There are less restrictive means. They can obtain a search warrant, and they may of course conduct warrantless searches if they have a reasonable belief that the delay in obtaining a warrant would eviscerate [remove] the object of the search.”

The court granted some of the applicants final interdicts against the Johannesburg Metro Police Department and the Department of Home Affairs, which participated in the raids and, the court ruled, had not even attempted to comply with the legal provision for search and seizures as per the Immigration Act.

While the applicants asked the court to order that they each be paid R1,000 in “constitutional damages”, it ruled that they had an alternative remedy – a claim for damages, even if this might be onerous to prove.

“Given the many pressing demands on the fiscus, it is not appropriate to use scarce resources to pay damages to individuals where there are other effective methods. These resources would be better spent addressing the structural and systematic deprivation and deplorable conditions under which the majority of people continue to live 27 years into the democratic order,” the judge wrote.

“The rights to privacy and dignity attach to everyone, not just citizens. Human dignity has no nationality. It appears to me that the respondents were under the impression that because the applicants were largely suspected to be non-citizens or undocumented, they could repeatedly over many months, at any hour of the day or night, violate their rights without consequence. This cannot be so.”

In a separate judgment, Judge Chris Jafta, while agreeing with the majority, spelt out more reasons why constitutional damages should not be awarded in this case.

In a third judgment, Acting Judge Margaret Victor said she would have declared the entire section unconstitutional, arguing that allowing the police to cordon off areas, still left them with undefined and wide powers.

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