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[2020] ZAGPJHC 146
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Residents of Industry House, 5 Davies Street, New Doornfontein, Johannesburg and Others v Minister of Police and Others (18205/2018) [2020] ZAGPJHC 146; [2020] 3 All SA 902 (GJ); 2021 (1) SACR 66 (GJ); 2021 (2) SA 220 (GJ) (29 June 2020)
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HIGH COURT OF SOUTH
AFRICA
(GAUTENG DIVISION,
JOHANNESBURG)
Case
no: 18205/2018
In
the matter between:
THE RESIDENTS OF:
INDUSTRY
HOUSE, 5 DAVIES STREET,
NEW
DOORNFONTEIN,
JOHANNESBURG
First Applicants
ROSANA MODES, 32 AND 34
DAVIES STREET,
NEW
DOORNFONTEIN, JOHANNESBURG
Second Applicants
36
DAVIES STREET, DOORNFONTEIN, JOHANNESBURG
Third Applicants
39-41
DAVIES STREET, DOORNFONTEIN, JOHANNESBURG
Fourth Applicants
WELLINGTON COURT, 34
LEYDS STREET, JOUBERT PARK
JOHANNESBURG
Fifth Applicants
REMINGTON COURT, CNR
NUGGET AND JEPPE STREETS,
JOHANNESBURG
Sixth Applicants
WEMMER
SHELTER, TURFONTEIN, JOHANNESBURG
Seventh Applicants
ERVERN
87 AND 88, BEREA, JOHANNESBURG
Eighth Applicants
20
JANIE STREET, JEPPESTOWN, JOHANNESBURG
Ninth Applicants
50,
52 AND 54 SOPER ROAD, BEREA, JOHANNESBURG
Tenth Applicants
1
DELVERS STREET, MARSHALLTOWN, JOHANNESBURG
Eleventh Applicants
and
MINISTER
OF
POLICE
First Respondent
CITY
OF JOHANNESBURG METROPOLITAN MUNICIPALITY
Second Respondent
MINISTER
OF HOME
AFFAIRS
Third Respondent
DIRECTOR-GENERAL:
DEPARTMENT OF HOME AFFAIRS
Fourth Respondent
MEC:
ROADS AND TRANSPORT, GAUTENG
Fifth Respondent
LIEUTENANT-COLONEL
ERIC NKUNA N.O.
Sixth Respondent
LIEUTENANT-COLONEL
DELIWE SUZANDELANGE N.O.
Seventh Respondent
HERMAN
MASHABA
N.O.
Eighth Respondent
ALBERT
MATSAUNG
N.O.
Ninth Respondent
NATIONAL COMMISSIONER OF
THE SOUTH AFRICAN
POLICE
SERVICE
Tenth Respondent
LAWYERS
FOR HUMAN
RIGHTS
1
st
Amicus Curiae
LEGAL
AID SOUTH
AFRICA
2
nd
Amicus Curiae
Case
Summary
: Search and seizure - Without warrant - including private
homes in an area cordoned off on the authority of a national or
provincial
commissioner of police with the object of restoring public
order or to ensure the safety of the public in the particular area –
Provision infringing constitutionally entrenched right to privacy –
Section 13(7) (c) of the SAPS Act is overbroad and therefore
unconstitutional - Declaration of unconstitutionality suspended to
afford legislature time to cure invalidity – Reading-in
to
regulate interim situation - South Africa Police Services Act 68 of
1995 (the SAPS Act), s 13(7).
Review
- Promotion of Administrative Justice Act 2 of 2000 (PAJA) –
Decisions of the then acting provincial commissioner and
of the
former provincial commissioner to issue authorisations in terms of s
13(7) of the SAPS Act in respect of particular areas
in the inner
city of Johannesburg during the period 27 June 2017 to 3 May 2018,
reviewed and set aside under PAJA.
Ancillary
declaratory relief granted.
JUDGMENT
THE
COURT
INTRODUCTION
[1]
This application concerns the constitutional validity of s 13(7) of
the South Africa Police Services Act 68 of 1995, a
post-constitutional
enactment. This provision gives the police
extended and intrusive powers to restore public order or to ensure
the safety of the
public in a particular area. It provides that where
it is reasonable in particular circumstances, the national or
provincial commissioner
of the South African Police Services may, in
writing, authorise the cordoning off of any area as well as the
warrantless search
of any person, vehicle and premises in the
cordoned off area and the seizure of any article referred to in
section 20
of the
Criminal Procedure Act 51 of 1977
.
[2]
On the other hand, s 14 of the Constitution guarantees that everyone
has the right to privacy, including the right not to have
their
person or home searched, their property searched, their possessions
seized, or the privacy of their communications infringed.
[3]
This application involves the warrantless search of the person, home
and property of about three thousand occupants of eleven
buildings in
the inner city of Johannesburg between June 2017 and May 2018, by
police officers acting on the authority of authorisations
granted in
terms of s 13(7) of the South Africa Police Services Act 68 of 1995
(the SAPS Act).
[4]
Police intelligence during that period revealed inter alia that the
Hillbrow, Berea and Joubert Park sectors in Johannesburg
were areas
where extraordinarily high incidents of serious and violent crimes
occurred, such as murder, armed robbery, assault
with the intent to
do grievous bodily harm and so-called ‘smash and grabs’.
These crimes, in the inner city of Johannesburg,
were prevalent in
the immediate vicinity of dilapidated buildings that are occupied by
people without the consent of the owners,
and in certain instances
‘hijacked’ by people who unlawfully collect rent from
those who occupy the buildings. Those
who committed the serious and
violent crimes, according to police intelligence, use the buildings
as refuge and hide-outs for them.
Criminal activity, such as the
running of illegal shebeens and gambling places, also took place in
those buildings.
[5]
According to police intelligence reports, normal policing methods and
daily police interventions proved to have been insufficient
and
ineffective, as a result inter alia of over-population of the
affected areas and buildings concerned. The further difficulties
experienced by police officers were their inability, upon entering
these buildings, to find those suspected of having committed
the
serious and violent crimes in the high-rise densely populated and
poorly managed dilapated buildings. Extra- ordinary measures,
according to the police, were required to combat the criminal
activity in the affected areas, to restore public order and to ensure
the safety of people in those areas. Police station commanders within
the affected areas responded to the challenges faced by the
police
within the areas of jurisdiction of the police stations they command
by applying for authorisations in terms of s 13(7)
of the SAPS Act to
cordon off parts of the affected areas in order to conduct search and
seizure operations, and including some
of the dilapated buildings
within those parts of the inner city.
[6]
On 27 June 2017, the then acting provincial commissioner, Lt. Gen.
Nkuna, received an application in terms of s 13(7) of the
SAPS Act
from the station commander of the Hillbrow Police Station, Brigadier
AS Nevhuhulwi, to cordon off an area identified as
within sectors 4,
5 and 6 in Hillbrow, bordered by Louis Botha Avenue to the north, Joe
Slovo Road to the east, North Street to
the south and Hospital Street
to the west, between the hours of 14h00 and 22h00 on 30 June 2017,
which written authorisation he
granted on the same day.
[7]
The former provincial commissioner, Lt. Gen. de Lange, granted
similar applications received from the station commander of the
Hillbrow Police Station to cordon off the same area in Hillbrow
between the hours of 14h00 and 22h00 on 14 July 2017; an area
identified as within sectors 4, 5 and 6 in Hillbrow, bordered by
Willie and Clarendon Streets to the north, Joe Slovo Road to the
east, Hancock, Saratoga and Nugget Streets to the south and Twist
Street to the west, between the hours of 14h00 and 22h00 on 31
August
2017, between the hours of 12h00 and 16h00 on 21 September 2017,
between the hours of 12h00 and 18h00 on 16 November 2017,
between the
hours of 09h00 and 17h00 on 23 January 2018, and between the hours of
10h00 and 18h00 on 12 February 2018; an area
identified as ‘CAS
Block 5787 – Jeppestown’, bordered by Fawcus Street to
the north, Long Street to the east,
Jules Street to the south and
Berg Street to the west, between the hours of 10h00 and 16h00 on 2
November 2017; areas identified
as ‘Sector 2: CAS Block 5787 –
Jeppestown and Doornfontein CAS Block 5779’, bordered by
Albertina Sisulu and
Beit Streets to the north, John Page, Betty and
Sivewright Streets to the east, Durban Street to the south, and End
Street to the
west, between the hours of 09h00 and 18h00 on 21
November 2017; an area bordered by Rockey Street to the north,
Siemart Street
to the east, Albertina Sisulu Street to the south and
End Street to the west, between the hours of 10h00 and 18h00 on 23
January
2017; and an area that includes 5 Davies Street in New
Doornfontein between the hours of 08h00 and 20h00 on 3 May 2018.
[8]
The former provincial commissioner also granted similar applications
received from the acting station commander of the Johannesburg
Central Police Station to cordon off an area identified as ‘Sector
2: Remington Court – Johannesburg’, bordered
by Bree
Street to the north, End Street to the east, Jeppe Street to the
south, and Nugget Street to the west, between the hours
of 14h00 and
22h00 on 25 July 2017, and from the station commander of the Jeppe
Police Station to cordon off an area identified
as ‘Sector 3:
CAS Block 5779 – Doornfontein’, bordered by Saratoga
Avenue to the north, Angle Road to the east,
Albertina Sisulu Road to
the south and End Street to the west, between the hours of 10h00 and
18h00 on 24 August 2017.
[9]
Each application for authorisation in terms of s 13(7) of the SAPS
Act was supported by a letter from the station commander
concerned,
motivating the utilisation of s 13(7). Each application was
accompanied by an operational plan setting out how each
of the
searches will be conducted, statements from a crime intelligence
officer and from a visible policing (Vispol) commander,
a summary of
the affected area’s reported crime statistics, and a map
showing the area to be cordoned off. In each instance
the application
also required a recommendation from a legal services officer
stationed at the South African Police Service’s
Provincial
Office to the effect that the particular application was meritorious
for a s 13(7) authorisation to be granted. In terms
of each written
authorisation the acting provincial commissioner or provincial
commissioner, as the case may be, authorised the
relevant station
commander to cordon off the identified area, and without a warrant to
search any person, premises, vehicle, receptacle
or object in that
area to achieve the objectives of restoring public order and/or of
ensuring the safety of the public in that
area. They further directed
all the members acting in terms of the particular authorisation to
exercise any of the powers authorised
in terms thereof ‘with
due regard to the fundamental rights of every person and in such
manner that their actions can be
justified’.
[10]
The search and seizure operations were carried out by police
officers, assisted by officers of the Johannesburg Metropolitan
Police Department and officials of the Department of Home Affairs.
The occupiers and the units or rooms they occupy were subjected
to
warrantless searches by police officers. The search operations also
resulted in arrests of undocumented foreigners.
(Section 34(1)
of the
Immigration Act 13 of 2002
, permits an immigration officer, without
the need for a warrant, to arrest an illegal foreigner or cause him
or her to be arrested.)
[11]
The applicants, represented by the Socio-Economic Rights Institute
(SERI), are more than 2 000 occupiers of various buildings
in the
inner city of Johannesburg – Industry House, 5 Davies Street,
New Doornfontein; Rosano Modes, 32 and 34 Davies Street,
New
Doornfontein; 36 Davies Street, Doornfontein; 39-41 Davies Street,
Doornfontein; Wellington Court, 34 Leyds Street, Joubert
Park;
Remington Court, corner Nugget and Jeppe Streets; Erven 87-88, Berea;
20 Janie Street, Jeppestown; and 50, 52 and 54 Soper
Road, Berea -
that are situated within the areas that were cordoned off and also
searched pursuant to the
s 13(7)
written authorisations that were
granted between June 2017 and May 2018.
[12]
The applicants seek s 13(7) of the SAPS Act to be declared
constitutionally invalid. They further seek that all the decisions
authorising the searches to which they were subjected be reviewed and
set aside in terms of the Promotion of Administrative Justice
Act 2
of 2000 (PAJA) and that they be compensated for the infringement of
their constitutional rights to privacy and dignity which
the searches
entailed. They also seek an interdict restraining similar searches of
the units or rooms they occupy and of their
person in the future, a
declaration of unlawfulness of the searches they were subjected to
pursuant to the granting of the authorisations
as well as two other
searches to which those of them residing at the Wemmer Shelter,
Turfontein, Johannesburg were subjected on
20 October 2017 (the
seventh applicants) and those of them residing at 1 Delvers Street,
Marshalltown, Johannesburg were subjected
to on 9 November 2017 (the
eleventh applicants) without s 13(7) authorisations, and a
declaration that their rights to dignity
and privacy in terms of
sections 10 and 14 of the Constitution have been unjustifiably
infringed.
[13]
The first, sixth, seventh and tenth respondents are the Minister of
Police, the then acting provincial commissioner and former
provincial
commissioner of SAPS at the time, and the national commissioner of
SAPS (jointly referred to as the police). They oppose
the
application. The second and eighth respondents are the City of
Johannesburg and its executive mayor (jointly referred to as
the
City). They too oppose the application. The other respondents cited
as the third, fourth, fifth and ninth respondents are the
Minister of
Home Affairs, the director-general of the Department of Home Affairs
and the provincial head of the Gauteng Office
of the Department of
Home Affairs. Lawyers for Human Rights (LHR) and Legal Aid South
Africa (Legal Aid SA) were admitted as
amici curiae
.
CONSTITUTIONAL
VALIDITY OF SECTION 13(7) OF THE SAPS ACT 68 OF 1995
[14]
Section 205(3) of the Constitution states that ‘[t]he objects
of the police service are to prevent, combat and investigate
crime,
to maintain public order, to protect and secure the inhabitants of
the Republic and their property, and to uphold and enforce
the law’.
National legislation, in terms of s 205(2), ‘must establish the
powers and functions of the police service
and must enable the police
service to discharge its responsibilities effectively, taking into
account the requirements of the provinces’.
The SAPS Act was
enacted to provide for the establishment, powers and functions of the
South African Police Service.
[15]
Section 13(7) reads thus:
‘
(a)
The
National or Provincial Commissioner may, where it is reasonable in
the circumstances in order to restore public order or to
ensure the
safety of the public in a particular area, in writing authorise that
the particular area or any part thereof be cordoned
off.
(b)
The written
authorisation referred to in paragraph
(a)
shall specify the
period, which shall not exceed 24 hours, during which the said area
may be cordoned off, the area or part thereof
to be cordoned off and
the object of the proposed action.
(c)
Upon receipt
of the written authorisation referred to in paragraph
(a)
, any
member may cordon off the area concerned or part thereof, and may,
where it is reasonably necessary in order to achieve the
object
specified in the written authorisation, without warrant, search any
person, premises or vehicle, or any receptacle or object
of whatever
nature, in that area or part thereof and seize any article referred
to in section 20 of the Criminal Procedure Act,
1977 (Act 51 of
1977), found by him or her in the possession of such person or in
that area or part thereof: Provided that a member
executing a search
under this paragraph shall, upon demand of any person whose rights
are or have been affected by the search or
seizure, exhibit to him or
her a copy of the written authorisation.’
[16]
Section 13(7)(c) thus permits a warrantless search of any person,
premises or vehicle, or any receptacle or object found in
the
cordoned off area and the seizure of any article referred to in s 20
of the Criminal Procedure Act 51 of 1977 (CPA) found in
the
possession of such person or in that area where it is reasonably
necessary to achieve the object of restoring public order
or of
ensuring the safety of the public in the particular area. In
contrast, s 22 of the CPA permits a warrantless search of any
person,
container or premises by a police official for the purpose of seizing
any article referred to in section 20 only if the
person concerned
consents to the search for and the seizure of the article in
question, or if the person who may consent to the
search of the
container or premises consents to such search and the seizure of the
article in question, or if the police official
on reasonable grounds
believes that a search warrant will be issued to him under s 21(1)(a)
if he applied for such warrant and
that the delay in obtaining such
warrant would defeat the object of the search.
[17]
The applicants argue that s 13(7) in its entirety is constitutionally
invalid since it permits warrantless searches of a person,
a person’s
home and property and the seizure of his or her possessions, thus
infringing the right to privacy that is entrenched
in s 14 of the
Constitution. Section 13(7) is a law of general application and its
limitation of the right to privacy entrenched
in the Bill of Rights,
so they argue, is not ‘reasonable and justifiable’ as
contemplated in s 36(1) of the Constitution.
They argue that
warrantless searches of private homes and warrantless searches in the
course of investigating crime are generally
impermissible and that
time, manner and scope restrictions are an essential feature of
statutes that authorise such searches. Section
13(7), they argue,
does not meet those requirements: its reach is broad and permits
warrantless searches of private homes; the
provision is used to fight
high levels of crime; and it enables a police commissioner to suspend
the constitutional rights to privacy
and dignity in a cordoned off
area for up to 24 hours by subjecting the public within that
geographical area and time period to
the power of the state, often
exercised by its most junior police officers. Section 22 of the CPA,
they argue, provides adequately
for warrantless searches pending any
revision of the SAPS Act that Parliament may pursue in response to an
order declaring s 13(7)
invalid.
[18]
LHR argues that s 13(7) is also constitutionally invalid because it
unreasonably and unjustifiably limits the constitutionally
entrenched
rights of equality (s 9) and of access to court (s 34). It argues
that s 13(7) unjustifiably differentiates between
people on the basis
of geographical location (it permits the designation of a particular
area for cordoning off and any person
who happens to find themselves
within the area may be searched without a warrant), it enables the
targeting of non-nationals (officials
from the Department of Home
Affairs were involved in the searches in question and anyone found
not to be in possession of a South
African identity document or
passport, a foreign passport with a South African visa, or an asylum
seeker permit, was detained under
the
Immigration Act 13 of 2002
),
and it unlawfully undermines and avoids the safeguards of
s 22
of the
CPA and of
s 33
of the
Immigration Act relating
to warrantless
searches and seizures.
Section 13(7)
, it argues, is overbroad and
cannot be justified in terms of s 36 of the Constitution.
[19]
The police, to the contrary, argue that the limitation of the
fundamental right to privacy is reasonable and justifiable within
the
meaning of s 36 of the Constitution. The infringement authorised in
terms of s 13(7), so it argues, is not limitless. The section
only
permits a warrantless search of any person, premises, vehicle,
receptacle or object, within a specified time period and within
the
cordoned off area ‘where it is reasonably necessary in order to
achieve the object specified in the written authorization’,
which is the restoration of public order and/or ensuring the safety
of the public in that area. In all other instances, the provisions
of
sections 21 and 22 of the CPA relating to search and seizure find
application. Section 13(7) enables the police service to fulfil
its
constitutional mandate of maintaining public order and protecting and
securing the inhabitants of the Republic and their property,
effectively. Here, the authorisations were granted on the strength of
information provided to the acting provincial commissioner
in one
instance and to the former provincial commissioner in the other
instances where extraordinary measures were necessary to
combat the
high level of serious and violent crimes in the inner city of
Johannesburg that were directly or indirectly connected
to the
dilapidated and hijacked buildings within the areas in question.
[20]
The City also argues that the limitation of the right to privacy
introduced by s 13(7) is reasonable and justifiable, because
it
enables the police to discharge its responsibilities of restoring
public order and of ensuring the safety of the public inter
alia in
the inner city of Johannesburg. Legal Aid SA implores us to be
cautious in declaring s 13(7) constitutionally invalid since
extraordinary circumstances may arise in which the utilisation of s
13(7) could serve a legitimate and constitutionally valid purpose
of
maintaining public order and safeguarding the safety of the public in
a particular area. But, it argues, the section should
be
restrictively interpreted, and it should best be left to the
legislature to redefine its wording and limit its application.
[21]
It is convenient first to dispose of two unmeritorious points raised.
The first is that the applicants seek an order declaring
the whole of
s 13(7) constitutionally invalid on the basis that it infringes upon
s 14 of the Constitution. We consider the scope
of the relief sought
to be impermissibly broad. Section 13(7)(a) empowers the national or
provincial commissioner to authorise
that a particular area be
cordoned off in order to restore public order or to ensure the safety
of the public in that area. Section
13(7)(b) in turn provides that
such authorisation shall specify the period, which shall not exceed
24 hours, during which the particular
area may be cordoned off, and
the object of the proposed action. Neither of these provisions
infringes upon the right to privacy
in s 14 of the Constitution.
[22]
The power to cordon off an area as envisaged in s 13(7)(a) of the
SAPS Act is an important legislative mechanism that enables
the
police service to discharge its constitutional mandate effectively.
Although the power to carry out a warrantless search afforded
to a
police officer in terms of s 13(7)(c) is ancillary to the power to
cordon off an area as contemplated in subsections (7)(a)
and (b), it
is the section 13(7)(c) power to search any ‘premises’
without a warrant which is constitutionally offensive.
This is
because the term ‘any premises’ encompasses the power to
search people’s homes, their persons and property.
Although on
a purposive approach to interpretation, s 13(7)(a), (b) and (c) must
be read as a whole, we see no justifiable reason
to declare the
entire section to be constitutionally invalid, when only one of its
parts infringes upon a constitutional right.
Importantly, s 172(1)(a)
of the Constitution stipulates that any law or conduct that is
inconsistent with the Constitution must
be declared invalid ‘to
the extent of its inconsistency’. This means that if only a
part of a law is inconsistent with
the Constitution and the remainder
is not, then it is only the ‘inconsistent’ part that
should be declared invalid.
[23]
The second unmeritorious point is the argument advanced by LHR that s
13(7)(c) infringes upon the right to equality in s 9
of the
Constitution. Section 13(7)(c) cannot be said to be inconsistent with
the right of equality as it inter alia permits the
search of ‘any
person’ found in the cordoned off area and the seizure of any
article, referred to in s 20 of the CPA,
found in the possession of
such person, irrespective of that person’s race, gender, ethnic
or social origin, nationality
and the like.
[24]
We reiterate; the real focus of the applicants’ constitutional
challenge is the power given to police officers in terms
of s
13(7)(c) to search someone’s person, home and property and to
seize his or her possessions. That statutory power afforded
to police
officers indisputably constitutes a violation of the right to privacy
protected by s 14 of the Constitution. This right
flows from the
value placed on human dignity. (
Minister of Police and others v
Kunjana
2016 (2) SACR 473
(CC) para 14.)
[25]
We must, therefore, assess whether that statutory limitation of the
right to privacy is reasonable and justifiable in an open
and
democratic society based on human dignity, equality and freedom.
Section 36 of the Constitution enjoins a court to balance
five
relevant factors in deciding whether a right in the Bill of Rights
may be limited in terms of a law of general application,
such as the
SAPS Act, which are: (a) the nature of the right; (b) the importance
of the purpose of the limitation; (c) the nature
and extent of the
limitation; (d) the relation between the limitation and its purpose;
and
(e)
whether there are less restrictive means to achieve the purpose. The
limitation analysis involves proportionality, which calls
for the
balancing of different interests. There is no absolute standard for
determining reasonableness and justifiability. (See,
for example,
Magajane v Chairperson, North West Gambling Board and others
[2006] ZACC 8
;
2006
(5) SA 250
(CC) para 61.)
[26]
In
S v Mlungwana and others
2019 (1) SACR 429
(CC) para 57,
Petse AJ articulated the justification analysis thus:
‘
The
limitation of a right in the Bill of Rights needs to be justified
under s 36. This justification analysis “requires a
weighing-up
of the nature and importance of the right(s) that are limited
together with the extent of the limitation as against
the importance
and purpose of the limiting enactment”. This weighing-up must
give way to a “global judgment on [the]
proportionality”
of the limitation. It is also well settled that the onus is on the
respondents to demonstrate that the limitation
is justified.’
(Footnotes
omitted.)
[27]
First,
the nature of the right to privacy
that is limited in
terms of s 13(7)(c). This first factor, as Van der Westhuizen J said
in
Magajane
para 62-
‘
.
. . raises at the outset the importance of the right the state seeks
to limit. It focuses the court on the purpose of the right,
the
context that resulted in the right being enshrined in the
Constitution and the seriousness of limiting the right.’
[28]
In
Gaertner and others v Minister of Finance and others
2014
(1) SA 442
(CC) para 1, Madlanga J stated, in the context of
warrantless raids during apartheid that ‘to the apartheid state
the oppressed
majority had no privacy to be protected, and no dignity
to be respected’, and that ‘it is with this painful
history
in mind, that we consider the constitutional validity of
statutory provisions that authorise searches without warrants’.
Madlanga J also reminded us that-
‘
.
. . [m]ost certainly for effect, and possibly heightened indignity,
many of the egregious searches were conducted in the dead
of the
night: a time of relaxation, sleep, intimacy reckless abandon even,
and when some, if not most, would be flimsily dressed.
The sense of
violation and degradation that the victims must have experienced is
manifest. Even members of the then dominant race
who were viewed as
enemies of the state suffered this indignity.’
[29]
In
Mistry v Interim Medical and Dental Council of South Africa and
others
1998 (4) SA 1127
(CC) para 25, Sachs J described the
nature of the constitutionally protected right to privacy and the
means through which s 14
of the Constitution repudiates repugnant
past practices, thus:
‘
The
existence of safeguards to regulate the way in which State officials
may enter the private domains of ordinary citizens is one
of the
features that distinguish a constitutional democracy from a police
state. South African experience has been notoriously
mixed in this
regard. On the one hand there has been an admirable history of strong
statutory controls over the powers of the police
to search and seize.
On the other, when it came to racially discriminatory laws and
security legislation, vast and often unrestricted
discretionary
powers were conferred on officials and police. Generations of
systemised and egregious violations of personal privacy
established
norms of disrespect for citizens that seeped generally into the
public administration and promoted amongst a great
many officials
habits and practices inconsistent with the standards of conduct now
required by the Bill of Rights. Section 13 [of
the Interim
Constitution] accordingly requires us to repudiate the past practices
that were repugnant to the new constitutional
values, while at the
same time re-affirming and building on those that were consistent
with these values.’
(Footnotes
omitted.)
[30]
And, in respect of warrantless entry into private homes and rifling
through intimate possessions, Sachs J said this (para 23):
‘
.
. . What is clear, nevertheless, is that however the terms “search”
and “seizure” may be interpreted in
a particular case, to
the extent that a statute authorises warrantless entry into private
homes and rifling through intimate possessions,
such activities would
intrude on the “inner sanctum” of the persons in question
and the statutory authority would accordingly
breach the right to
personal privacy as protected by s 13.’
(Footnote
omitted.)
[31]
Privacy, however, like all rights, is not absolute. (
Kunjana
para
17.) In
Bernstein and others v Bester and others NNO
1996 (2)
751 (CC) para 67, Ackermann J, as was pointed out by Van der
Westhuizen J in
Magajane
para 42, ‘described what can be
seen as a series of concentric circles ranging from the core, most
protected realms of privacy
to the outer rings that would yield more
readily to the rights of other citizens and the public interest’,
as follows:
‘
.
. . The truism that no right is to be considered absolute implies
that from the outset of interpretation each right is already
limited
by every other right accruing to another citizen. In the context of
privacy this would mean that it is only the inner sanctum
of a
person, such as his/her family life, sexual preference and home
environment, which is shielded by erosion by conflicting rights
of
the community. This implies that community rights and the rights of
fellow members place a corresponding obligation on a citizen,
thereby
shaping the abstract notion of individualism towards identifying a
concrete member of civil society. Privacy is acknowledged
in the
truly personal realm, but as a person moves into communal relations
and activities such as business and social interaction,
the scope of
personal space shrinks accordingly.’
[32]
Also in
Gaertner
para 49, Madlanga J said this:
‘
Privacy,
like all other rights, is not absolute. As a person moves into
communal relations and activities such as business and social
interaction, the scope of personal space shrinks. This diminished
personal space does not mean that, once people are involved in
social
interactions or business, they no longer have a right to privacy.
What it means is that the right is attenuated, not obliterated.
And
the attenuation is more or less, depending how far and into what area
one has strayed from the inner sanctum of the home.’
(Footnote
omitted.)
[33]
And in
Kunjana
paras 27 and 20, Mhlantla J said:
‘
The
more a search intrudes into the ‘inner sanctum’ of a
person (such as their home) the more the search infringes their
privacy right.’
And
‘
How
closely one infringes on the ‘inner sanctum’ of the home
is a consideration that must be borne in mind when considering
the
extent to which a limitation of the right to privacy may be
justified.’
[34]
Our constitutional notion, therefore, is one of ‘concentric
circles of the privacy right’. (
Magajane
para 59.)
Section 13(7)(c) does not discriminate between the types of
‘premises’ that may be searched for the purposes
specified in s 13(7). There can be no doubt that the language used in
s 13(7)(c) is so sweeping as to also permit warrantless entry
by
police officers into private homes and rifling through intimate
possessions, which activities, in terms of our Constitutional
Court’s
jurisprudence, intrude on the most protected inner sanctum of the
person concerned. Section 13(7)(c) authorises an
invasion of the
‘relatively impervious sanctum of the home and personal life’
of a person and constitutes a direct
invasion of personal privacy.
[35]
Second,
the importance of the purpose for which the right to
privacy is limited
in terms of s 13(7). This factor, said Van der
Westhuizen J in
Magajane
para 65, ‘is crucial to the
analysis, as it is clear that the Constitution does not regard the
limitation of a constitutional
right as justified unless there is a
substantial state interest requiring the limitation’.
Manifestly the SAPS Act, including
its s 13(7), was put on the
statute book to enable the police service to effectively fulfil its
constitutional mandate ‘to
prevent, combat and investigate
crime, to maintain public order, to protect and secure the
inhabitants of the Republic and their
property, and to uphold and
enforce the law’. Restoring public order or ensuring the safety
of the public in a designated
crime ridden area through the exercise
of the more intrusive powers provided for in s 13(7) when the
national or provincial commissioner
considers such action reasonable
in the circumstances, enable the police service to fulfil its
constitutional mandate effectively.
Clearly, therefore, such police
action of necessity requires search and seizure operations of the
sort contemplated in s 13(7)(c).
[36]
The application of s 13(7), of course, is not limited to restoring
public order or ensuring the safety of the public in areas
ridden
with high levels of serious and violent crimes such as the instances
in question. An example of its other applications that
springs to
mind is for instance a bomb or other insurgent activity in an airport
building or sports stadium. This too is acknowledged
by the
applicants in their founding affidavit where they state:
‘
212
I accept that, in an emergency, it may be necessary for the police to
have extraordinary powers to search public places, business
premises
or persons who are in public places in order to deal with an
emergency threat to public safety, but such powers can never
constitutionally extend to warrantless searches of homes.
213
For that reason, I respectfully submit that it would be appropriate
to suspend the declaration of invalidity on condition that
section
13(7) may not be used to authorise a search of a person’s home
during the period of suspension. It may be that Parliament
is able to
fashion constitutionally appropriate legislation which permits the
police, in an emergency, to search specified public
places, business
premises, or persons who are in public places, in order to deal with
an emergent threat to public safety.’
[37]
As was said by Petse AJ in
Mlungwana
para 81, ‘[t]he
critical question always is how best to strike a balance between the
exercise of the entrenched rights and
ensuring a safe and secure
environment’. The importance and necessity of restoring public
order or ensuring the safety of
the public in a designated area
diminishes the invasiveness of warrantless searches under s 13(7)(c)
in the outer rings of privacy,
but not in its inner core without
there being reasonable grounds for believing that an article would be
found in a particular home
or in the possession of an occupant within
that home which is concerned in or is on reasonable grounds believed
to be concerned
in, or is intended to be used or is on reasonable
grounds believed to be intended to be used in, or which may afford
evidence of
the commission or suspected commission of an offence.
[38]
Third,
the nature and extent of the limitation
. Residents in
an area which is cordoned off and where searches and seizures are
conducted by the police in terms of s 13(7) to
restore public order
or to ensure the safety of the public in that area, are, in our view,
entitled to expect that the law will
respect and protect their right
to privacy insofar as the inner sanctum of their homes are concerned.
[39]
As was said by Kriegler J in
S v Dlamini; S v Dladla and others; S
v Joubert; S v Schietekat
[1999] ZACC 8
;
1999 (4) SA 623
(CC) para 68:
‘
Although
the level of criminal activity is clearly a relevant and important
factor in the limitations exercise undertaken in respect
of s 36, it
is not the only factor relevant to that exercise. One must be careful
to ensure that the alarming level of crime is
not used to justify
extensive and inappropriate invasions of individual rights. It is
well established that s 36 requires a court
to counterpoise the
purpose, effects and importance of infringing legislation on the one
hand against the nature and importance
of the right limited on the
other The question we need to answer is whether the extent of the
limitation is justified.’
[40]
Section 13(7)(c) has no predetermined safeguards to minimise the
extent of intrusions into the inner sanctum of a person’s
home
within the cordoned off area where the nature of the s 13(7) police
operations may make some invasion of privacy necessary,
but
technically gives members of the police
carte blanche
to enter
any home within that cordoned off area and then to search every
square inch of the home including the most private spheres
of those
living there. The extent of the limitation of the constitutional
right to privacy – the invasion of the inner sanctum
of a
person’s home - authorised by s 13(7)(c) as it stands, is
substantially disproportionate to its public purpose. The
provision
is clearly overbroad, first in its reach, and second in leaving
police officials without sufficient guidelines with which
to conduct
the searches within legal limits. (
Mistry
paras 28-30;
Magajane
para 71;
Kunjana
paras 22-24.)
[41]
Fourth,
the relation between the limitation and its purpose
.
In
Magajane
para 72, Van der Westhuizen J said:
‘
For
law that limits a right to be reasonable and justifiable, there must
be a causal connection between the purpose of the law,
and the
limitations imposed by it.’
Legislation
providing for the cordoning off of a particular area and for
warrantless searches and seizures to be conducted by police
officers
in that area with the object of restoring public order or of ensuring
the safety of the public in that area in the public
interest, must
have a strong relationship to the limitation of the privacy right,
because such police action aims at protecting
the public interest.
[42]
Equally apposite here is what Mhlantla J said in
Kunjana
para
25 regarding
ss 11(1)(a)
and (g) of the
Drugs and Drug Trafficking
Act 140 of 1992
, which allowed for warrantless searches and seizures
without circumscribing the time, place and manner of the searches:
‘
The
prevention and prosecution of offences under the Drugs Act, which
concern illicit and harmful drugs that constitute a serious
scourge
to public safety and wellbeing, require search- and-seizure
operations of the sort contemplated in the provisions. Intrinsic
to
such operations is an element of intrusion and the provisions must be
construed in that context.’
[43]
Fifth, are there
less restrictive means to achieve the purpose
?
This factor, says Van der Westhuizen J in
Magajane
para 73,
‘is important for the question whether the limitation of the
right to privacy caused by the [search] is proportionate
to the
purpose of the legislative provision.’ We accept that, apart
from warrantless searches of a private home and its occupants
without
there being reasonable grounds for believing that an article referred
to in s 20 of the CPA would be found in that particular
home or in
the possession of a person inside that home, s 13(7) could not have
achieved its purpose if it required a warrant prior
to searches being
conducted in cordoned off areas in order to restore public order or
to ensure the safety of the public in the
particular area. Section
13(7), beyond question, serves a beneficial and most important public
purpose.
[44]
But, the searches permitted by s 13(7)(c) also permit police
officials to reach well into a person’s inner sanctum, which
weighs strongly against the reasonableness and justifiability of that
part of the section. Its overbreadth creates an impermissible
threat
to the right to privacy. The section gives police officers no
guidance on how to lawfully and effectively carry out their
functions
when a private home is being searched. All is left to the discretion
of any member of the police service to also search
any or all homes
within the cordoned off area and the persons present in those homes.
The boundaries of a legally permissible search
of a person’s
home are not delineated. The fact that the SAPS Act, including its s
13(7)(c), is manifestly in the public
interest does not diminish the
need for the powers of search and seizure to be exercised according
to constitutionally valid criteria
and procedures.
[45]
Section 13(7) could have achieved its ends through other means less
damaging to the right to privacy. Once the s 13(7) police
operation
extends to private homes there would seem to be no reason why the
time-honoured requirement of a prior search warrant
being issued by a
magistrate or judge in terms of s 21 of the CPA should not be
respected, with exceptions similar to those provided
for in s 22 of
the CPA. Less restrictive measures, therefore, do exist to achieve
the purpose of s 13(7) (c) of the SAPS Act, insofar
as searches of
private homes and their occupants within a cordoned off area are
concerned, without emasculating the police operation.
As was said in
Kunjana
para 24, ‘[a] warrantless search procedure
implies the absence of a warrant providing guidance as to the time,
place and scope
of a search and it is therefore desirable that the
statutory provision authorising a warrantless search procedure be
crafted so
as to limit the possibility of a greater limitation of the
right to privacy than is necessitated by the circumstances, which the
warrant requirement would otherwise do.’ This is an important
consideration as it must be that the quest to insulate the
inner
sanctum of the privacy right should not be regardless of the
legitimate purpose of the police operation.
[46]
The jurisprudence of the Constitutional Court emphasises that
exceptions to the warrant requirement should not become the rule.
(
Mistry
para 29;
Magajane
paras 73-74;
Gaertner
paras 69-73;
Kunjana
paras 26-32.) In
Magajane
, for
example, this was said:
’
74.
A warrant is not a mere formality. It is the method tried and tested
in our criminal procedure to defend the individual against
the power
of the state, ensuring that police cannot invade private homes and
businesses on a whim, or to terrorise. Open democratic
societies
elsewhere in the world have fashioned the warrant as the mechanism to
balance the public interest in combating crime
with the individual’s
right to privacy. The warrant guarantees that the State must justify
and support intrusions upon individual’s
privacy under oath
before a neutral officer of the court prior to the intrusion. It
furthermore governs the time, place and scope
of the search, limiting
the privacy intrusion, guiding the State in the conduct of the
inspection and informing the subject of
the legality and limits of
the search. Our history provides much evidence for the need to adhere
strictly to the warrant requirement.
75.
Of course, the law recognises that there will be limited
circumstances in which the need for the State to protect the public
interest compels an exception to the warrant requirement.’
(Footnote
omitted.)
[47]
A balancing of these factors leads us to conclude that the extent of
the invasion of the innermost component of the personal
right to
privacy authorised by s 13(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. 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. Thus, taking into account all these
relevant factors, we conclude that the
limitation of the right to
privacy of a person’s inner sanctum, which is authorised by s
13(7)(c) of the SAPS Act, fails
the limitation test in s 36 of the
Constitution. Clearly s 13(7)(c) is overbroad and does not pass
constitutional muster.
[48]
We are of the view that the declaration of unconstitutionality should
be prospective as an order of full retrospective force
would render
unlawful all s 13(7) searches of private homes and their occupants
police officials undertook from 15 October 1995
when the SAPS Act
came into effect. As pointed out by Cameron J in
Estate Agency
Affairs Board v Auction Alliance (Pty) Ltd and others
2014 (3) SA
106
(CC) para 47- 48:
‘
.
. . post-constitutional enactments are invalid from the date they
came into effect. But this is subject to the court’s remedial
power, afforded by the Constitution, when declaring law or conduct
inconsistent with the Constitution invalid, to make any order
that is
just and equitable, including an order limiting the retrospective
effect of a declaration of invalidity.
.
. . In fact this court almost invariably exercises the power to limit
the effect of retrospective invalidity. Where good grounds
exist to
limit retrospectivity, the court will exercise its power to do so.’
(Footnotes
omitted.)
[49]
An order of full retrospective force could, as was held in
Mistry
and relied upon by Cameron J in
Auction Alliance
para 50,
also ‘create considerable uncertainty with regard to the
validity of proceedings which were conducted on the basis
of evidence
obtained as a result of such searches’ and ‘give rise to
delictual claims by persons subjected to searches
and seizures after
that date’, further burdening the state financially.
[50]
We are likewise of the view that in the light of the substantial
public interest considerations at issue, that the declaration
of
invalidity be suspended for 24 months to afford the legislature an
opportunity to cure the constitutional defect. According
to the
police’s answering affidavit, the legislature is in the process
of amending the SAPS Act including s 13(7) thereof.
Hence, the
suspension of the declaration of validity will give it the
opportunity to complete the process, mindful of the nature
and
importance of the right to privacy and its relationship to the values
embodied in our Constitution.
[51]
Suspension is not an exceptional remedy. In
Auction Alliance
para
55, Cameron J said this:
‘
.
. . It is an obvious use of this court’s remedial power under
the Constitution to ensure that just and equitable constitutional
relief is afforded to litigants, while ensuring that there is no
disruption of the regulatory aspects of the statutory provision
that
is invalidated. This was well explained in
J
[
J and another
v Director General, Department of Home Affairs and others
[2003] ZACC 3
;
2003
(5) SA 621
(CC) para 21]:
‘
The
suspension of an order is appropriate in cases where the striking
down of a statute would, in the absence of a suspension order,
leave
a lacuna. In such cases, the court must consider, on the one hand,
the interests of the successful litigant in obtaining
immediate
constitutional relief and, on the other, the potential disruption of
the administration of justice that would be caused
by the lacuna. If
the court is persuaded upon a consideration of these conflicting
concerns that it is appropriate to suspend the
order made, it will do
so in order to afford the legislature an opportunity to correct the
defect. It will also seek to tailor
relief in the interim to provide
temporary constitutional relief to successful litigants.’
[52]
Here, not to suspend the declaration of invalidity would
self-evidently hamper the police service in fulfilling its
constitutional
mandate
inter alia
of maintaining public order
and protecting and securing the inhabitants of the Republic and their
property. We do not know what
stage the projected amendments to the
SAPS Act have reached, and counsel were unable to advise us from the
bar. It seems advisable,
therefore, to grant the legislature a
24-month period of suspension. The interim relief that we propose to
grant shall apply to
the search of any private home and/or any person
inside such private home within the cordoned off area, and the
seizure of any
article referred to in s 20 of the CPA found in any
such private home or in the possession of any person inside such
private home,
and will, in our view, afford those subject to the
invalid statutory regime temporary constitutional relief. Such an
order seems
to us to be ‘the simplest and fairest solution’
and ‘one that minimally intrudes on the statute, while ensuring
that during the suspension unconstitutional searches cannot for the
most part take place’. (
Auction Alliance
para 65.)
[53]
We, therefore, consider that an appropriate interim remedy during the
period of suspension of the declaration of invalidity
would be for a
reading-into section 13(7) that s 21 of the CPA with the exceptions
provided for in s 22 of that act apply to the
search of private homes
and of the persons present in them, and the seizure of articles found
in such homes and in the possession
of persons inside them, within a
cordoned- off area authorised in terms of s 13(7)(a).
PAJA
REVIEW
[54]
In view of the prospective effect coupled with the suspension of the
declaration of invalidity of s 13(7)(c) of the SAPS Act,
it has
become necessary to determine whether the decision of the then acting
provincial commissioner and the decisions of the former
provincial
commissioner (the decision-makers) to issue the first and second to
thirteenth written authorisations respectively,
in terms of section
13(7) are lawful under PAJA. The applicants seek to have all the
raids declared unlawful on the basis that
the decisions to issue the
authorisations, on the authority of which the raids were carried out,
constitute unlawful administrative
action that falls to be set aside.
They also seek certain declaratory, interdictory and compensatory
relief consequent upon that
declaration.
Review
is not moot
[55]
Before we deal with the review under PAJA, we need to dispose of the
argument advanced, on behalf of the police, that the review
application is moot because the decisions to carry out the raids have
already been implemented and cannot be revisited in review
proceedings. Distilled to its essence, the police’s argument is
that once an injury to rights has taken place, it cannot
be
challenged because it has already happened. However, the question of
whether an organ of state has acted unlawfully is seldom
ever moot.
In
Buthelezi v Minister of Home Affairs
2013 (3) SA 325
(SCA),
the SCA held that the question of whether an authority has acted
unlawfully remains a live issue even where the unlawful
decision has
been implemented. It also held that the question of whether a
decision–maker can revisit the decision is only
one aspect of
whether a review would have a practical effect (at paras 3-4).
[56]
An important consideration in determining if a decision-maker can
revisit its decision is whether there is an assurance from
the
authority concerned, that its previous conduct is unlawful and would
not recur in the future. If there is no such assurance,
then the
issue of whether the decision-maker acted unlawfully remains a live
issue. There are no assurances provided by the police
and the City,
in the current matter, that the raids on the applicants were unlawful
and will not recur in the future. Indeed, they
do not seriously
dispute that the City had threatened to repeat and intensify the
raids on the applicants. The raids themselves
were a recurrence of an
earlier operation — known as ‘Operation Fiela-Reclaim’
that had the same objectives and
legal basis as the raids in
question. This is specifically referenced in the last application
from Jeppe Police Station, dated
22 January 2018, to cordon-off and
search inter alia Industry House, which is occupied by the first
applicants.
[57]
In the circumstances, we consider it to be essential that the
legality of the raids be determined. A declaratory order to the
effect that the decisions that authorised the raids are unlawful,
including any relief consequent upon that relief, will have a
practical effect on the parties. It follows that the question as to
whether the decisions to issue the authorisations are lawful
remains
a live issue, and the review application is not moot.
Administrative
Action
[58]
The decision-makers’ decisions to issue the s 13(7)
authorisations constitute administrative action in terms of s 1 of
PAJA. The decisions were taken in terms of legislation by public
officials exercising public power. They also had a direct and
external effect on the applicants' rights.
[59]
The decision-makers considered thirteen applications for s 13(7)
authorisations during the period 27 May 2017 to 2 May 2018.
The
former provincial commissioner considered seven applications from the
Hilbrow Police Station, one from Johannesburg Central
Police Station
and four from Jeppe Police Station. The then acting provincial
commissioner considered one application from Hilbrow
Station.
[60]
The former provincial commissioner deposed to the answering affidavit
on behalf of the police. By and large, she repeats the
contents of
the various applications and their supporting documents which she and
the then acting provincial commissioner received
from Hilbrow,
Johannesburg Central, and Jeppe Police Stations during June 2017 to
April 2018. She states with reference to all
the applications
considered, that the purpose of the raids was to fight high levels of
crime, including street robberies, business
robberies with firearms,
murder, assault with intent to do grievous bodily harm and so called
smash and grabs. She justifies their
decisions to grant the
authorisations on the basis that they were required by the police
because ‘normal’ policing
methods were not effective, due
to dilapidated and poorly managed high-rise buildings in the area.
[61]
She explains that in issuing the written authorisations, both she and
the then acting provincial commissioner complied with
the process set
out in s 13(7) of the SAPS Act. She attributes compliance with that
process, to the fact that the station- commanders
provided the
necessary information, including the purpose of the application and
the crime statistics for each police station’s
area of
jurisdiction. She says that ‘prima facie’ the crime
statistics provided in support of the applications were
indicative of
a breakdown in public order and the failure of the police to meet
their constitutional obligations under s 205(3)
of the Constitution.
Thus, extraordinary measures under s 13(7) were necessary to maintain
public order. She steadfastly maintains
that the decisions
authorising the cordoning and search of the areas specified in the
applications were not taken arbitrarily,
as police officials, who
were directly responsible for policing the affected areas, made
well-motivated applications. According
to her, the applications were
well considered by both herself and the then acting provincial
commissioner, as Legal Services of
the Provincial SAPS (Legal
Services) provided them with opinions on the legality of each of the
applications prior to issuing the
written authorisations.
[62]
The applicants’ primary challenge to the lawfulness of the
decisions to issue the authorisations is founded on s 6(2)(f)(ii)(cc)
of PAJA which provides that a court or tribunal has the power to
review an administrative action if the action itself is not
rationally
connected to inter alia the information before the
administrator. They contend that the decisions to issue the s 13(7)
authorisations
fall to be set aside because the decision-makers
failed to apply their minds to the material before them and evaluate
it rationally.
Nor were the decisions, so they contend, connected to
the information before the decision-makers at the time they were
taken. They,
therefore, urge upon the court to find that the
decisions to issue the authorisations were so unreasonable that no
reasonable decision-maker
could have taken them.
Decisions
contravene section 13(7) of the SAPS Act
[63]
Before dealing with the contentions raised by the applicants, we
would like to focus on a more fundamental anomaly in the decisions
to
issue the s 13(7) authorisations. In each of the thirteen
authorisations issued, the decision-makers authorised both a
cordoning
off of the area specified in the application, as well as a
blanket search of ‘any persons, premises, or vehicle, or any
receptacle
or object of whatever nature, in that area or part
thereof’. In doing so, they contravened s 13(7)(a) of the SAPS
Act which
only authorises a national or provincial police
commissioner ‘where it is reasonable in the circumstances in
order to restore
public order or to ensure the safety of the public
in a particular area, in writing to authorise that the particular
area or any
part thereof be cordoned off’. In other words, the
power which s 13(7) confers on a national or provincial police
commissioner,
is limited to authorising that a specified area be
cordoned off. It does not extend to authorising the police to carry
out warrantless
searches and seizures as contemplated by s 13(7)(c)
of the SAPS Act. However, as is apparent from items (b) and (c) of
the authorisations
issued (quoted below), they permit the police to
do exactly that:
‘
(b)
Without a warrant, search any person, premises, vehicle, receptacle
or object (of whatever nature) in the mentioned area (or
any part
thereof), and/or
(c)
Without a warrant, seize any article referred to in
section 20
of the
Criminal Procedure Act, Act
51 of 1977, found in the mentioned area
(or any part thereof).’
[64]
Each of the authorisations issued gives blanket permission to the
police to carry out warrantless searches in the area specified
in the
application. The purpose of a written authorisation, issued in terms
of s 13(7)(a) of the SAPS Act, is to authorise a member
of the police
to cordon-off a specified area in order to restore public order or to
ensure the safety of the public. In terms of
s 13(7)(c), receipt of
the authorisation affords a member of the police a discretion to do
three things. The first is to cordon-off
the area concerned. The
second is to carry out a warrantless search of any person, premises
or vehicle, or any receptacle or object
of whatever nature, where it
is reasonably necessary in order to achieve the object of the
operation specified in the written authorisation.
And the third is to
seize any article referred to in s 20 of the CPA found, by him or
her, in the possession of the person searched
or in the cordoned off
area.
[65]
Section 13(7) is an enabling provision. It enables a member of the
police to carry out search and seizure operations on cordoning
off an
area, where it is reasonably necessary to achieve the object of the
operation as specified in the written authorisation.
Providing the
police with a blanket authorisation to carry out search and seizure
operations regardless of the necessity to do
so, as contemplated in s
13(7)(c) of the SAPS Act, constitutes a fetter on the power of the
police member concerned to exercise
his or her discretionary power in
the manner envisaged in that section.
[66]
The blanket authorisations, in items (b) and (c) of the written
authorisations, to search and seize provide insight into why
the
police carried out indiscriminate raids on the applicants’
homes. By this we mean that the police searched the applicants’
homes, without a warrant, regardless of whether they were involved
in, or suspected of being involved in, any crimes, or were in
possession of, or suspected of being in possession of, items
contemplated in s 20 of the CPA. It bears emphasis that the
operational
plans, annexed to the four applications, made by Jeppe
Police Station expressly state that ‘doors and padlocks should
not
be broken unless there is positive information and/or reasonable
grounds to believe that a crime is being committed or illegal items
or substances being stored’. Thus, by providing the police with
blanket permission to carry out searches and seizures in
the written
authorisations issued, the decision-makers contravened s 13(7)(c) of
the SAPS Act. Their decisions, accordingly, fall
to be set aside in
terms of s 6(2)(f)(i) of PAJA as they contravened s 13(7)(c) of the
SAPS Act.
Ulterior
Purpose or Motive
[67]
The decisions to issue the authorisations fall foul of s 6 of PAJA
for yet another reason. All thirteen applications for the
s 13(7)(a)
authorisations reveal an ulterior motive for the cordoning off and
search operations carried out by the police (s 6(2)(e)(ii)
of PAJA.)
The eight applications emanating from Hilbrow Police Station state
that ‘
officials from the Department of Home Affairs, JMPD
and the City of Johannesburg indicated that they need such integrated
operations.
Cordon and search within the area will be the only
solution’
. Similarly, the operational plan of the Jeppe
Police Station which is annexed to all four of its applications lists
as one of its
aims, the “arrest of illegal immigrants’.
Under the heading “Execution” it reads: ‘Conduct
search
operations in terms of SA Police Service Act 68/1995 at
identified areas to recover unlicensed firearms, stolen and or
hijacked
vehicles, stolen property, narcotics substances and liquor
with members of Vispol, Detectives,
JMPD
, TRT, POP, EMS and
Home Affairs Officials
’(own emphasis). Similarly, the
single application made by Johannesburg Central Police Station states
that ‘JHB Central
and
other friendly forces will cordon off
and search
Remington Court, Jeppe Street Corner, Nugget Street
for illegal objects, possible stolen property, illegal drugs,
illegal
immigrants…
.’ The operational plan attached to the
application states that ‘
JMPD to conduct condoning off and
searching rooms and occupants and Home Affairs to interview and
arrest undocumented persons
’ (own emphasis).
[68]
These statements demonstrate that the decisions to issue the
authorisations to the three inner city police stations were taken
for
an ulterior purpose or motive, as the raids during which the searches
were conducted were intended in large part to achieve
objectives
other than ‘to restore public order or ensure the safety of the
public in a particular area’. The first
ulterior purpose was to
enable the Department of Home Affairs to search the applicants' homes
and to arrest those suspected to
be illegal immigrants without a
warrant. It is impermissible for immigration officials to carry out
random warrantless searches
under the guise of s 13(7) of the SAPS
Act. Section 13(7) is not intended for that purpose. Nor does it give
immigration officials
the authority to carry out warrantless
searches. Only members of the SAPS are empowered to do so, on receipt
of a s 13(7) authorisation,
where it is reasonably necessary in order
to achieve the object specified in the written authorisation.
Section
33(5)
of the
Immigration Act would
, in the ordinary course, require
immigration officials to obtain a warrant subject to
s 34(1)
thereof.
Section 34(1)
of the
Immigration Act empowers
immigration officials
to arrest and detain an illegal immigrant without a warrant for
deportation purposes, specifically. By sanctioning
the participation
of immigration officials in the
s 13(7)
operations they authorised,
the decision-makers effectively assisted the Department of Home
Affairs to circumvent the requirements
of the
Immigration Act.
[69
]
The second ulterior purpose was to enable the City to survey the
occupants of the buildings occupied by the applicants. The motivation
for the raids on the applicants' homes did not come from the Minister
of Police but rather from the City, in particular the office
of Mr
Herman Mashaba, its’ former Mayor. The City’s press
release on the first raid which was carried out on 30 June
2017 in
Hilbrow, declares that the raid was conducted by the City and was led
by the City’s Group Forensic and Investigation
Service Unit.
The purpose of the raid was to deal with “hijacked buildings”
which are described as a major problem
in our inner city, with our
people living in deplorable conditions and being abused by slumlords
who extort money from them’.
[70]
The deployment of raids under s 13(7) of the SAPS Act to enable the
City to conduct occupancy audits of the dilapidated buildings,
and
the Department of Home Affairs to detain undocumented immigrants
raises the spectre that the raids on the applicants' homes
were not
necessarily about the restoration of public order or of ensuring the
safety of the public in the areas concerned. They
appear to have been
targeted at communities that were evicted or were under threat of
eviction from inner city buildings, and had
claimed alternative
accommodation from the City. The raids were also conducted for the
ulterior purpose of permitting the City
to obtain information about
these communities without meaningfully engaging with them.
[71]
The former provincial commissioner explains, in the answering
affidavit of the police, that the decisions taken by herself
and the
then acting provincial commissioner were motivated by the
constitutional mandate in s 205(3) of the Constitution to prevent,
combat and investigate crime and to maintain public order. She seeks
to impress upon the court that the measures that were taken
to
involve the Department of Home Affairs, the JMPD and different
divisions of the police were not taken lightly. She points out
that
the only way that the police can protect the public and, in
particular victims of unresolved crime, is when the police take
decisive steps to combat crime by restoring and maintaining public
order.
[72]
The court is mindful that, in terms of s 205(3) of the Constitution,
‘the objects of the police service is to prevent,
combat and
investigate crime, to maintain public order, to protect and secure
the inhabitants of the Republic and their property,
and to uphold and
enforce the law’. However, this mandate does not give the
police carte blanche to use their extended and
intrusive powers under
s 13(7) of the SAPS Act for purposes other than those contemplated in
the section. Nor can that mandate
sanction the participation of state
actors, such as the Department of Home Affairs and the JMPD, in
cordoning-off and search and
seizure operations carried out by the
police under s 13(7) of the SAPS Act. To reiterate, neither the
Department of Home Affairs
nor the JMPD had authority under s 13(7)
of the SAPS Act to participate in the search and seizure operations
which were carried
out by the police during the period June 2017 to
May 2018. Counsel for the police conceded as much during argument.
Accordingly,
the decisions to issue the authorisations fall to be set
aside, in terms of sections 6(2)(e)(i) and (ii) of PAJA respectively,
as they were issued for (a) a reason not authorised by s 13(7) of the
SAPS Act and (b) for an ulterior purpose or motive.
Failure
to comply with a mandatory condition
[73]
Section 13(7)(b) of the SAPS Act specifically stipulates that the
written authorisation issued by the national or provincial
commissioner in terms of sub-section
(a)
‘shall specify the period, which shall not exceed 24 hours,
during which the said area may be cordoned off, the area or
part
thereof to be cordoned off and the object of the proposed action’.
This is a peremptory requirement. In each of the
thirteen
authorisations at issue, the decision-makers specified the object of
the proposed s 13(7) operation as being: ‘To
achieve the
following objective(s): restore public order in the mentioned area
(or any part thereof), and/or ensure the safety
of the public in the
mentioned area (or any part thereof).’ They merely repeat the
words appearing in sub- section (7)(a).
This is insufficient to
describe the objective of the proposed action, more particularly
where the particular application expresses
the objective of the
operation in different terms.
[74]
The phrase ‘to restore public order or ensure the safety of the
public’ are the jurisdictional requirements that
must be
present before the national or provincial commissioner may exercise
his or her discretion in favour of authorising that
a particular area
may be cordoned off by the police in terms of s 13(7)(c) of the SAPS
Act. These jurisdictional requirements do
not, in and of themselves,
constitute the objective of a proposed cordoning off and search
operation. The objective of the proposed
cordoning off operation must
be gleaned from the application itself.
[75]
Notably, all thirteen applications that were considered by the
decision-makers expressly specified the objectives of the proposed
cordoning off operations. For example, three of the applications made
by Jeppe Police Station described the objective as being:
‘to
cordon and search known hotspots within blocks, structures, shelters,
and shebeens in and around the cordoned area’.
The last
application made by Jeppe Police Station, on 22 January 2018,
described the objective of the operation as being: ‘to
cordon
and search all structures, rooms, shelters and people in and around
Industry House, through the deployment of relevant law-enforcement
officers;
2.1.
Focus will also be on offences committed in terms of the Liquor Act,
drug related crimes, possession of unlicensed firearms,
less-serious
offences and the tracing of wanted suspects; 2.2 The purpose will
further be to provide an integrated and multi- disciplinary
approach
to ensure that the incidents of priority crime are reduced and to
ensure sustainability in stabilising priority crimes
by way of
normal, day to day policing interventions; 2.3 Maximum arrests will
be aspired for.’
[76]
Equally, all eight applications made by Hilbrow Police Station
described the object of the proposed cordoning off operation
in
Sector 5 (Hilbrow) as being: ‘to conduct cordon and search at
Vanin Court cnr Quarts and Peter Street in order to prevent
crime and
arrest the perpetrators of crime in the vicinity around the area. To
conduct stop and search in the area limited to Hilbrow,
to prevent
illegal possession of fire-arms, drug usage and dealing, street
robberies, theft of motor vehicles, business robberies
and house
robberies with members of VISPOL/Flying Squad and K9’. All
eight applications also described the objectives of
the proposed
cordoning off operation in Sectors 6 (Berea) and Sector 4 (Joubert
Park). In so doing, they specifically identified
the buildings/houses
that the police intended to cordon-off and search. In respect of the
application from Johannesburg Central
Police Station, the ‘purpose
of the operation’ was to inter alia ‘achieve the
following goals’: ‘stop
and search structures, vehicles
and persons; door to door searches; recover stolen goods, illegal
firearms, drugs; tracing of illegal
immigrants; trace and arrest
wanted suspects; raiding of shebeens, taverns and recycling shops’.
[77]
A national or provincial commissioner is required to expressly state
the objective of the proposed s 13(7) operation in the
written
authorisation. This is a precondition because it has a direct bearing
on any search operation to be carried out in terms
of s 13(7)(c). As
indicated, a member of the police involved in a s 13(7) cordoning-off
operation may only conduct a warrantless
search envisaged in s (7)(c)
‘where it is reasonably necessary in order to achieve the
objective specified in the written
authorisation’. By way of
illustration, in the eight applications emanating from Hilbrow Police
Station, the station-commanders
requested written authorisations to
cordon-off the identified areas (in Sectors 4, 5 and 6) and search
the identified buildings.
In relation to these operations, the
operational plan identified the objective of the operations as being,
inter alia, the cordoning
off and search of: (a) Vanin Court on
corner of Quartz and Peterson Streets in Sector 4 Hilbrow (sector 5);
(b) Sandringham Court,
corner Olivia and Lily streets as well as
houses between Fife Street (North) and Joe Slovo (South), Barnato
Street (West) and Mitchell
Street (East) in Berea (Sector 6); and
Eastgate Building corner Bok and Twist Street in Joubert Park (Sector
4). The decision-makers,
however, ignored the objective of the s
13(7) operations, as described in the operational plan of Hilbrow
Police Station, and authorised
search and seizure operations to “all
premises” in the cordoned off area.
[78]
Thus, by failing to state the true objective of the proposed
cordoning operation in the written authorisations they issued,
the
decision-makers did not comply with a mandatory and material
procedure or condition prescribed by s 13(7) of the SAPS Act.
Their
decisions, accordingly, fall to be set aside in terms of s 6(2)(b) of
PAJA, as a mandatory condition prescribed by s 13(7)(b)
of the SAPS
Act was not complied with.
No
rational basis between the information before the decision-makers and
their
decisions
[79]
The applicants contend that there is no rational connection made in
any of the applications between the raids authorised and
the true
purpose of the section: ‘the restoration of public order or the
protection of public safety’. In applying
their minds to the
exercise of their statutory powers in terms of s 13(7) of the SAPS
Act, the decision- makers were enjoined to
consider whether the
jurisdictional requirements of s 13(7) had been engaged; that being
whether the information before them rendered
it reasonable, for
purposes of restoring public order or ensuring the safety of the
public in each area forming the subject-matter
of the application
concerned, to cordon-off the area specified in the application. In
other words, the decision-makers had to be
convinced of more than a
generally high level of crime in the area. What had to be established
was that the level of crime had
reached proportions that resulted in
a breakdown of public order or threatened the safety of the public.
[80]
The jurisdictional requirements in s 13(7)(a) of the SAPS Act are
disjunctive. This means that either one or the other has
to be
present for a national or provincial police commissioner to exercise
his or her discretion in favour of issuing a written
authorisation
for the cordoning off of a specified area. All the applications
essentially state that the high levels of crime in
the specified
areas, in particular, in and around the dilapidated, abandoned and
hijacked buildings are a threat to the safety
and security of the
public, and that cordoning-off and search operations were necessary
to ensure the safety and security of the
community. The former
provincial commissioner, on the other hand, alleges that it was
necessary to issue the s 13(7) authorisations
because the crime
statistics, provided in each of the applications, indicated a
breakdown of public order (in the areas specified)
that needed
restoring, and because the police were failing to meet their
constitutional responsibilities.
[81]
There is a dichotomy between her assertions in relation to the need
to restore public order in the areas specified in the applications,
and the motivation for the raids in the applications themselves. Not
a single application suggested that the proposed cordoning-off
operation was required to ‘restore public order’ in the
specified area/s. Although the applications that were considered
by
the decision-makers established that serious and violent crimes, such
as business robberies with firearms, murder, assault with
intent to
do grievous bodily harm, vehicle hijackings etc, had been committed
in the areas in which the applicants resided, there
was nothing in
those applications that indicated there was a breakdown of public
order.
[82]
What does the term ‘public order’ mean? The SAPS Act does
not offer a definition for the term. The Public Order
Police: Crowd
Regulation and Management during Public Gatherings and Demonstrations
(
The National Instruction 4 of 2014)
defines it as follows:
‘“
public
order” means the state of normality and security that is needed
in a society and that should be pursued by the state
in order to
exercise constitutional rights and to thus benefit a harmonious
development of society’.
The
National Municipal Policing Standard for Crowd Management during
Gatherings and Demonstrations [
GG
30882 (
GN
307) of 20
March 2008] defines public order units and the term ‘
maintain
public order
’ as follows:
‘
(o)
“Public Order Policing Unit” means a unit which has been
established by the Provincial Commissioner to
maintain public
order
which is the
managing and policing of events and
incidents of public collective action and behaviour
. This
includes managing pre-planned and spontaneous assemblies, gatherings
and demonstrations whether of a peaceful or unrest nature’.
[83]
In some jurisdictions, such as India for instance, the term ‘public
order’ is equated with public safety, peace
and tranquillity
(
Thappar v State of Madras,
1950 SCR 594:
AIR 1950 SC 124:
51
Cri LJ 1514.)
What we glean from these definitions is that ‘public
order’ refers to something more than the maintenance of law and
order but rather involves the peace, tranquillity and safety of the
public at large (Khan F. & Schreier (eds.) ‘
Refugee Law
in South Africa
’ (2014) at paras 81-83.) These three
conditions are necessary to achieve a ‘state of normality and
security’
in society, that is envisaged in the meaning of the
term ‘public order’ as defined in The National
Instruction 4 of
2014 (referred to above.) The
Collins English
Dictionary & Thesaurus
Third Edition 2006 at 206 ascribes the
meaning ‘of or concerning the people as a whole’ to the
adjective ‘public’
and the meaning of the noun ‘order’
to include ‘condition of a law-abiding society’. Public
order could
thus be affected by only such contraventions which affect
the community or public at large. How does one determine whether an
act
or event affects public order or law and order? The test espoused
requires a consideration of whether the act or event causes a
disturbance to the life of the community, or whether it merely
affects an individual whilst leaving the tranquillity of society
undisturbed ((Jayawickrama,
The Judicial Application of Human
Rights Law
466.)
[84]
Since “public order’ has a broader ‘public
collective’ connotation than simply maintenance of law and
order, what had to be demonstrated in each of the applications was
that the section 13(7) operations were necessary to restore
the
normality and security of the community in the areas specified in the
applications. In other words, there had to have been
a breakdown of
public order in the specified areas. No such motivation appeared in
any of the thirteen applications which the decision-makers
considered.
[85]
We are of the view that the former provincial commissioner’s
reliance on the crime statistics as demonstrating a breakdown
of
public order in specified areas is misplaced. This is best
illustrated by reference to the eight applications that were made
by
Hilbrow Police Station during the period 27 June 2017 to 2 May 2018.
On scrutiny of those applications, it is immediately apparent
that
the station-commanders adopted a template-based approach to their
compilation. For example, in respect of all but one of the
applications made by Hilbrow Police Station, the station commanders'
letters of support, supporting affidavits, operational plans
and
crime statistics are virtually identical, with only individual police
officer’s names changed from operation to operation.
In the
operational plans of seven of the raids conducted out of Hillbrow
Police Station from 30 March 2017 to 15 February 2018,
the crime
statistics for its area of jurisdiction remained the same. Each plan
repeatedly states that within a period of three
months ‘24
murders, 143 robberies and 43 business robberies’ were
committed in Hilbrow, Berea and Joubert Park.
[86]
These statistics are not verified by a crime intelligence officer.
Nor, for that matter, do they disclose which three months
of the year
are being referred to. If they related to the three months leading up
to each of the applications, then they cannot
be correct more than
once. There is simply no clarity in relation to how these statistics
related to the proposed s 13(7) operation
in the area specified in
each of the seven applications that emanated from Hilbrow Police
Station during the period 27 June 2017
to 12 February 2018.
[87]
These statistics suffer from a more fundamental deficiency as they
appear to bear no relationship to the inventory of reported
crimes
annexed to the operational plans of Hilbrow Police Station in all
seven applications referred to above. By way of example,
on
comparison of the crime statistics recorded in the 27 June 2017
application of Hilbrow Police Station, with the inventory of
reported
crimes for the period 1 April 2017 to 21 June 2017 (annexed to the
operational plan) there is simply no correlation between
the two
documents. This error is replicated in each of the six other
applications which the decision-makers received from Hilbrow
Police
Station during the period 27 June 2017 to 12 February 2018.
[88]
It was only in the final application made by Hilbrow Police Station,
on 2 May 2018, that the statistics changed to: ‘28
murders, 128
robberies with firearms and 21 trio crimes committed in [Hilbrow,
Berea and Joubert Park] within a period of two months’.
The
months and the year to which the statistics apply are not disclosed.
For obvious reasons, they could not have applied to the
inventory of
listed crimes attached to the operational plan, as those crimes were
purportedly committed during the period 1 April
to 29 April 2018. Yet
the former provincial commissioner makes a bare denial that ‘the
crime statistics provided never changed,
or were in any way
defective’.
[89]
The sole application from Johannesburg Central Police Station, dated
21 July 2017, suffers from a similar shortfall yet it
was granted on
24 July 2017. The crime statistics provided in that application
describe the crimes committed, where they were committed
and the days
on which they were committed, but neglect to state the date of
commission of the offence. The catalogue indicates
that four offences
were committed in Remington Court – the building where the
search was to be carried out − the first
and second were common
assaults which occurred on a Monday at 09h30 and on a Saturday at
03h30, respectively. The third offence
was an attempted common
robbery (at 18h40 on a Wednesday) and the fourth was an offence under
the
Drugs and Drug Trafficking Act (at
03h30 on a Saturday). The
dates on which these offences were purportedly committed are not
provided. In the circumstances, how
the appended catalogue of crimes
related to the proposed cordoning off and search operation at
Remington Court on 25 July 2017
is not discernible. We highlight
Remington Court because the application listed it as one of the
buildings that the police had
earmarked for a
s 13(7)
operation, as
crime was rife in and around the building. The application states:
‘according to information received “Remington
Court”
is being occupied by mainly foreign nationals manufacturing
narcotics. They also deal with drugs, illegal selling
of liquor and
possession of unlicensed fire-arms. There have been recoveries of
stolen and or hi-jacked vehicles in this area,
as well as recovered
stolen goods’.
[90]
This pattern of presenting deficient crime statistics is replicated
in the application made by Jeppe Police Station, on 16
August 2017,
to cordon off and search Sector 3: CAS BLOCK 5779, Doornfontein,
bordered by North Saratoga, East Angle Road, South
Albertina Sisulu
and West End Street. Once again, it is unknown on what date the
listed crimes were committed and, hence, how they
related to the
proposed cordoning off and search operation that was authorised to
take place on 24 August 2017 from 10h00-18h00.
[91]
There is no supporting documentation for the authorisation granted to
Jeppe Police Station on 17 November 2017 for the repeat
operation in
Sector 2 CAS Block 5787 and CAS Block 5779. So it is not clear what
statistics were used in support of that application.
The
authorisation granted for this search is annexure I9 to the
applicants’ founding affidavit. However, as is apparent from
the answering affidavit of the police, the former provincial
commissioner erroneously states that this application was made by
Hilbrow Police Station in November 2017. And although the application
and supporting documents do not form part of the record,
she says
that she evaluated that application in the same way as she did the
others. Although the error was pointed out in the applicants’
replying affidavit, the police elected not to apply for the filing of
a supplementary affidavit to correct the error.
[92]
Although the inventory of crimes and/or crime analysis provided in
the various applications establish high crime rates and
that serious
and violent crimes were committed in the areas of jurisdiction of the
three police stations, none of them made out
a case that the level of
crime had reached proportions that resulted in a breakdown of public
order such as to warrant the deployment
of a
section 13(7)
operation
in order to restore the public order.
[93]
Lastly, the former provincial commissioner repeats the refrain that
runs through all thirteen applications, which is that a
s 13(7)
operation was necessary in each instance because the normal policing
methods were ineffective to combat the high levels of crime
in the
inner city buildings which were hijacked, dilapidated and mis-
managed. Ineffectual policing methods and the failure of
the police
to combat crime in an area do not justify the engagement of
s 13(7)
operations. What must be established for the deployment of a
s 13(7)
operation is that it is reasonably necessary in order to restore
public order or ensure the safety of the public.
[94]
The template-based approach to the compilation of the
s 13(7)
applications alluded to above, is emulated in the written
recommendations which Legal Services provided to the decision-makers
in each of the thirteen applications. These recommendations are
virtually ‘word-for-word’ identical for each and every
application, right down to re-iterating that the measures to be
taken, in terms of the authorisation, will be particularly
‘intrusive’
and that ‘a written authorisation maybe
issued where it is reasonably necessary for the purpose of control
over illegal movement
of people and goods across borders’. This
statement incorrectly reflects the test for authorising an operation
in terms of
s 13(7) of the SAPS Act. Rather, it reflects the test for
a warrantless search under s 13(6) of the SAPS Act. Yet, the former
provincial
commissioner explains, in respect of some of the
authorisations she issued, that prior to granting them, she was
advised by Legal
Services. In relation to others, she says that she
‘received confirmation from Legal Services that the application
was compliant’.
[95]
Certain police stations made repeat applications to cordon off and
carry out search and seizure operations in the same area.
For
instance, in relation to the block identified as Willie, Joe Slovo,
Hancock, Saratoga and Twist Streets in Sector 4, 5 and
6 of Hilbrow,
the Station Commander of Hilbrow Police Station made five
applications on virtually identical facts and each of them
was
granted. Remarkably, Industry House, the building that the first
applicants occupy, was raided five times. Four times by members
of
Hilbrow Police Station: on 30 June 2017; 14 July 2017; 24 January
2018 and 3 May 2018, and once by members of Jeppe Police Station:
on
24 August 2017. Hilbrow Police Station also raided the eight
applicants’ homes in Kiribily Building thrice: on 16 November
2017, 24 January 2018 and 15 February 2018. The sixth applicants’
homes at Remington Place were also raided twice; first
by Jeppe
Police Station on 25 July 2017 and then, two months later, by Hilbrow
Police Station on 21 September 2017.
[96]
We find it peculiar that the former provincial commissioner asked no
questions. Why was it necessary to carry out the same
operations more
than once in the same area? What did previous search and seizure
raids in the same area reveal or yield? Why were
previous raids
ineffective? What new information had police intelligence gathered
that warranted a further raid of the same area?
Why was it reasonably
necessary to search the same buildings or homes again? What was the
objective of these further operations?
Regrettably, it appears from
the record before us that she took none of these relevant
considerations into account before issuing
authorisations for the
repeat raids (s 6(2)(e)(iii) of PAJA.)
[97]
All of this demonstrates that neither of the two decision-makers
applied their minds to the material before them before issuing
the
written authorisations. They simply rubber-stamped the applications
on the basis of the Legal Services’ recommendations
that were
made. Had they applied their minds to the material, the manifest
defects in the applications would have been apparent,
thus providing
the necessary impetus to either decline them, or at the very least
call for further and proper information. The
decision-makers, in our
view, did not undertake an independent evaluation of the contents of
the applications. We consequently
conclude that there is no rational
relationship between the information provided in the respective
applications for s 13(7) authorisations
and the decisions granting
such authorisations (s 6(2)(f)(cc) of PAJA.)
[98]
For all of these reasons, the authorisations issued by the
decision-makers in the period 27 June 2017 to 3 May 2018 fall to
be
reviewed and set aside. The applicants are, accordingly, entitled to
a declaratory order that the raids on their homes were
unlawful
because the authorisations on which they were based are also
unlawful.
DECLARATORY
RELIEF
[99]
The raids on the applicants’ homes were carried out in a manner
that was cruel, humiliating, degrading and invasive.
They were
ostensibly also directed at harassing and intimidating the applicants
into vacating the so-called ‘hijacked buildings’
on the
pretext that the buildings were bought by new owners. Members of the
police and the JMPD threatened some of the applicants
with eviction
and took photos of their water and electricity connections. The
applicants were instructed by members of the police
to leave their
rooms after which members of the police, accompanied in most cases by
JMPD members and/or officials from the Department
of Home Affairs,
routinely broke down locked doors and tore down internal partitions
in the applicants' homes. They also vandalised
and destroyed some of
their homes. Some of the applicants’ possessions including
money were stolen during the raids. None
of the applicants consented
to the search of their homes.
[100]
All of the properties occupied by the applicants are cited in
eviction proceedings before this court. Many of the arrests
that took
place were of people who had deposed to affidavits in opposition to
eviction applications instituted against them. An
elderly woman was
forced to undress in front of a JMPD officer, who refused to leave
the room in order to allow her to change out
of her nightdress. And a
community leader was frog-marched out of one of the buildings in his
underwear. Save for the arrest of
a handful of undocumented migrants,
police found no evidence of illegality at the applicants' homes. The
intelligence on which
the raids were based was obviously flawed. SAPS
and JMPD officers arbitrarily detained those of the applicants who
”looked
too dark” to be South African. Even a security
guard looking after one of the buildings was, for some unknown
reason, detained.'
As were two individuals who were visiting one of
the applicant families. None of the applicants was given copies of
the written
authorisations, on the authority of which the raids were
carried out. Moreover, the police simply refused to process
complaints
made about the manner in which the raids were carried out.
[101]
As described earlier in the judgment, some of the applicants' homes
were raided repeatedly throughout the period. The first
applicants’
homes were raided five times: Four times by members of the Hilbrow
Station and once by members of Jeppe Police
Station. Members of the
Hilbrow Police Station carried out the last raid on the first
applicants’ homes at 02h50 in the morning,
while they were
asleep. They were awoken and ordered to stand outside – young
children and old people included. Members of
the Hilbrow Police
Station also raided the eight applicants’ homes three times.
The third raid on the eighth applicants'
homes was used to disconnect
their electricity supply.
[102]
The raids on the seventh and eleventh applicants' homes took place on
20 October and 9 November 2017 without any apparent
legal authority
at all. They were not covered by authorisations issued in terms of s
13(7) of the SAPS Act. The seventh applicants
were simply arrested
en
masse
for being undocumented immigrants, and later released. As
already established, the true purpose of at least some of the raids
seemed
to have been to enable the City to take a survey of the
applicants, and for the Department of Home Affairs to arrest
undocumented
migrants without a warrant. None of these allegations
are disputed.
[103]
Despite the gravity of the allegations relating to the manner in
which the raids on the applicants’ homes were carried
out by
members of the police, the former provincial commissioner has simply
failed to name, or produce any affidavits from, any
of her officers
who participated in the raids of the applicants’ homes. There
is simply no positive version from the police
in respect of what
occurred at the raids. The net effect of this omission is that the
applicants' version stands undisputed.
[104]
The undisputed facts demonstrate an egregious abuse of, and
infringement of the applicants' constitutional rights to privacy
and
dignity. In the circumstances, we are disposed to the view that the
applicants are entitled to a declaratory order that the
searches,
seizures, fingerprinting and arrests conducted at the applicants'
homes during the period 30 June 2017 to 3 May 2018
unjustifiably
infringed their rights to dignity and privacy as protected by
sections 10 and 14 of the Constitution, respectively.
INTERDICTORY
RELIEF
[105]
The applicants sought, in their notice of motion, an interdict
restraining future warrantless searches of their homes by the
respondents, ‘save in so far as those searches are done on the
authority of an order of court or a warrant granted by a magistrate
or judge in terms of any applicable law’. In their replying
affidavit, the interdictory relief sought against the respondents
was
attenuated to ‘an interdict restraining warrantless searches in
terms of section 13(7) of the SAPS Act’. Counsel
for the
applicants also accepted, during argument, that members of the police
would be permitted to search the applicants' homes,
in the future,
provided they are able to establish the right to do so under section
22 of the CPA. They, accordingly, asked that
the interdict be
qualified to that extent.
[106]
The applicants premise the interdictory relief sought on the claim
that the City, which was instrumental in motivating for
the raids
under section 13(7) of the SAPS Act, has threatened to repeat the
raids on their homes in the future. Indeed, the frequency
and
regularity of the raids on the applicants' homes, over the period 30
June 2017 to 3 May 2018, demonstrate a manifest propensity
on the
part of the police, the City and the Department of Home Affairs to
engage in illegal raids at will. The applicants certainly
have a
clear right not to have their privacy, dignity and homes invaded by
warrantless searches. As already established, a sizeable
number of
applicants have already suffered the harm of such an invasion
multiple times. Neither the City nor the other respondents
have
denied the threat to repeat the raids on the applicants’ homes
in the future. The applicants have a reasonable apprehension
that the
raids will be repeated in future and there is no other effective
remedy opened to them.
[107]
Although the applicants have made out a case for the interdictory
relief sought, the Court exercises its discretion against
granting
them that relief. This is because the interim relief we propose to
grant during the 24-month period of the suspension
of the declaration
of invalidity of s 13(7)(c) of the SAPS Act, shall prohibit the
search by members of the police of any private
home and/or any person
inside such private home within the cordoned off area, and the
seizure of any article referred to in s 20
of the CPA found in any
such private home or in the possession of any person inside such
private home. This means that in the interim,
the police may only
carry out search and seizure operations in a specified area, pursuant
to an authorisation issued under s 13(7)(a)
and (b) of the SAPS Act,
in accordance with either sections 21 and 22 of the CPA.
[108]
The interim relief we propose will ensure that during the period of
suspension of the declaration of invalidity of s 13(7)(c)
of the SAPS
Act, unconstitutional searches of persons and homes that infringe
upon privacy rights are impermissible. The interim
relief we propose
will also protect the applicants’ homes from being searched by
the other respondents, under the guise of
s 13(7) of the SAPS Act, to
arrest illegal immigrants and carry out social-audits of the
inner-city residents occupying abandoned
or hijacked buildings.
COMPENSATORY
RELIEF
[109]
The applicants contend that they are entitled to appropriate relief
in the form of constitutional damages for the infringement
of their
rights to privacy and dignity as a result of the unlawful raids on
their homes. They seek, in their notice of motion,
a solatium of
R1000 to be paid by the Minister of Police to each of them, for every
unlawful search to which that particular applicant
was subjected, as
compensation under s 8(1)(c)(ii)(bb) of PAJA alternatively under s 38
of the Constitution for the breach of each
of their rights to privacy
and dignity, caused by each of the unlawful searches referred to in
paragraphs 4, 5 and 6 of the notice
of motion. The applicants seek
constitutional damages in the alternative in their notice of motion.
[110]
However, during argument the applicants only asked for constitutional
damages in terms of s 38 of the Constitution. The applicants
are
effectively seeking a blanket order of compensation to be paid to
approximately 3 000 individuals that form part of the applicant
communities in this matter. They bring their constitutional damages
claim in motion proceedings. The police contend that the applicants
must pursue damages for invasion of privacy, theft and unlawful
arrest in delict. In addition, they argue that they have a right
to
test the ‘allegations of theft, damage to property and unlawful
arrest’ through the leading of oral evidence and
cross-examination. They therefore argue that it is impermissible for
the applicants to bring their damages claim in motion proceedings.
In
retort, the applicants argue that that position is misconceived
because they do not seek damages for ‘invasion of privacy’
and ‘theft, damage to property and unlawful arrest’. They
merely seek damages for the breach of their constitutional
rights to
privacy and dignity caused by the unlawful raids to which each of
them was subjected. They seek constitutional damages
against the
first respondent (Minister of Police) only.
[111]
We are not persuaded by the respondents’ contention that the
applicants must bring their damages claim through a delictual
action.
The applicants seek constitutional damages for breach of their rights
to privacy and dignity arising out of the unlawful
raids on their
homes. This claim is not grounded in delict but rather on the
infringement of constitutional rights. Their remedy,
therefore, lies
in s 38 of the Constitution. As far back as in 2006, the SCA held in
MEC, Department of Welfare, Eastern Cape v Kate
[2006] ZASCA 49
;
2006 (4) SA
478
(SCA) para 22, that ‘a direct breach of a substantive
constitutional right’ can be remedied directly through an award
of constitutional damages, rather than indirectly through a delictual
action. That the applicants may also have a right under the
common
law to damages for a breach of their constitutional rights, does not
mean that they cannot bring a claim for constitutional
damages. The
real question for determination is whether relief in the form of
constitutional damages is appropriate on the facts
of a particular
case?
[112]
In
Fose v Minister of Safety and Security
[1997] ZACC 6
;
1997 (3) SA 786
(CC), the Constitutional Court held, in relation to what constitutes
‘appropriate relief’ that:
‘
It
is left to the courts to decide what would be appropriate relief in
any particular case. Appropriate relief will in essence be
relief
that is required to protect and enforce the Constitution. Depending
on the circumstances of each particular case the relief
may be a
declaration of rights, an interdict, a
mandamus
or such other
relief as may be required to ensure that the rights enshrined in the
Constitution are protected and enforced. If it
is necessary to do so,
the courts may even have to fashion new remedies to secure the
protection and enforcement of these all-important
rights.’
(paras 18-19.)
The
Constitutional Court held further (at para 69):
‘
[T]his
Court has a particular duty to ensure that, within the bounds of the
Constitution, effective relief be granted for the infringement
of any
of the rights entrenched in it… Particularly in a country
where so few have the means to enforce their rights through
the
courts, it is essential that on those occasions when the legal
process does establish that an infringement of an entrenched
right
has occurred, it be effectively vindicated. The courts have a
particular responsibility in this regard and are obliged to
“forge
new tools” and shape innovative remedies, if needs be, to
achieve that goal.’
The
Constitutional Court in
Fose
also held that “appropriate
relief” as envisaged in section 38 of the Constitution may
include an award of constitutional
damages where it is necessary to
protect and enforce constitutional rights’.
(Fose
at
para 60.)
[113]
The applicants’ submissions on the appropriateness of its claim
for constitutional damages are broadly this: the value
of each of
their individual claims for the breaches of dignity and privacy are
relatively small, and the facts on which damages
are claimed are
undisputed. The quantum claimed by each of them is very low. It is no
more than a solatium meant to acknowledge
the breach of their rights,
and to serve as a deterrent against future unlawful raids. It would,
therefore, be perverse to put
them through the motions of a civil
trial in which each of them — over 2 000 — would have to
take the stand to give
evidence of facts that are not in issue in
these proceedings. They contend that damages are perhaps the only way
of making them
whole again as the respondents cannot undo the raids.
Nor can they undo the humiliation that the raids entailed for them.
Hence,
constitutional damages are perhaps the only appropriate way of
acknowledging the wrong done to the applicants.
[114]
The essence of the applicants’ submissions is that the token
amounts sought by each of them can be granted in motion
proceedings
as the breach of their rights to privacy and dignity have been
established on the papers. They rely for support on
the decision of
Ngomane and Other v City of Johannesburg Metropolitan Municipality
and Others
[2019] 2 All SA 69
(SCA) paras 25- 27, where the SCA
held that the token amounts sought by the applicants in that matter
need not be pursued through
a delictual action. In
Ngomane
, a
local authority, during a health law clean-up exercise unlawfully
seized, removed and destroyed homeless peoples’ property
from a
public space. The SCA found that the confiscation and the destruction
of the applicants’ property was a patent deprivation
thereof
and a breach of their right to privacy enshrined in s 14 of the
Constitution ‘which includes the right not to have
their
possessions seized’. The SCA also held that the conduct of the
local authority’s personnel was not only a violation
of the
applicants’ property rights in their belonging, but also
disrespectful and demeaning. This, it held, obviously caused
them
distress and was a breach of their right to have their inherent
dignity respected and protected. In the circumstances, it
declared
the local authority’s conduct inconsistent with the
Constitution and therefore unlawful. It also held that this
finding
entitled the applicants to appropriate relief for the violation of
their fundamental rights as envisaged in s 38 of the
Constitution. In
awarding the applicants constitutional damages, it reasoned as
follows:
‘
The
applicants’ property (for e.g. mattress, groceries, clothes,
baby clothes, cell phone, books, blankets, medicine etc.)
was not
sufficiently described to enable the respondents to replace it with
similar goods, or place a reliable value on the property.
And it was
extremely difficult to place a commercial value on it. However, these
items were very valuable to their owners, and
all that they possessed
affording them the only bit of dignity which they enjoyed.’ The
SCA went onto hold that:
‘
In
light of these facts, I do not think that the applicants should be
left to pursue the ordinary remedy in the form of a damages
claim as
suggested by the court a quo. They lamented the practical
difficulties posed by this route, which were acknowledged by
the
court itself. Instituting a damages claim would involve them in
costly and time-consuming civil litigation in respect of property,
which although valuable to them, is otherwise mostly of trifling
commercial value. The undisputed evidence is that many of the
applicants’ daily search for work and collect recyclable
materials, which they sell in order to survive. They would be
hindered
in this if they were required to attend court proceedings.
They have no money for transport to attend court. And for the very
reason
that it would not be possible for them to prove the market
value of the property destroyed in the conventional way, an action
for
damages is not an appropriate remedy. Such an action is likely to
fail or result in a nominal award of damages.’
[115]
Since the applicants’ were willing to accept a standard,
nominal amount of R1 500 for each of them (39 in total) , as
compensation for the loss of their property and the wrong they had
suffered, the SCA held, that ‘the amount of R 1 500 for
each
applicant, R 40 500 in total, is not a large sum of money but that it
constituted appropriate relief in the specific circumstances
of that
case, as it would vindicate the Constitution and protect the
applicants and others similarly situated against violations
of their
rights to dignity and property in the manner envisaged in
Fose
’.
(paras 25-27.)
[116]
The applicants’ claim for constitutional damages is
distinguishable from that in
Ngomane.
Here we have
approximately 3 000 (and not 2 000 as suggested by counsel for the
applicants during the hearing and in their heads
of argument)
applicants that seek constitutional damages for breach of their
rights to privacy and dignity from the Minister of
Police. The
gravamen of the applicants’ complaint is the demeaning and
humiliating manner in which members of the police
and the JMPD
treated them. Unfortunately, there are insufficient primary facts in
the applicants’ founding affidavit to establish
this in respect
to each of the approximately 3 000 applicants. The allegations in the
founding affidavit in relation to the searches
of their homes, and
the manner in which they were treated during the searches, are
secondary facts or inferences for which no primary
facts are alleged
to support the applicants’ case for constitutional damages. Put
simply, even though the facts are largely
undisputed, there is no
primary evidence from each of the approximately 3 000 applicants in
relation to the search of their homes,
and the manner in which they
were treated by the police during the search. What we have on the
papers are secondary facts told
through the voice of one or two
members (at most three) of each of the eleven applicant communities,
who confirm that they were
present at all the raids in the concerned
building, and have personal knowledge of all the facts of the raids.
It is highly unlikely
for these applicants to have personal knowledge
of all of the searches, especially in the high-rise buildings such as
Industry
House or Remington House, which comprise several floors and
partitioned rooms, and house approximately 428 and 517 residents,
respectively.
[117]
In addition to that, we know that in respect of some buildings, only
one or two floors were searched, yet all the residents
that occupied
the building at the time are claiming constitutional damages from the
Minister of Police. One such building is 36
Davies Street, New
Doornfontein which is a disused factory known as ‘Lion
Leatherworks’. It is a three-story building
with 62 rooms. It
was occupied by the third applicants at the time of the raids on 14
July 2017 and 21 November 2017. During the
first search on 14 July
2017, only the first floor was searched by the police, the JMPD and
officials of the City. We are not told
which members of the third
applicants occupied the first floor, yet constitutional damages are
sought in respect to each of the
102 applicants who resided there at
the time of the searches. The seventh applicants, who form a
community of 102 persons, also
seek constitutional damages against
the Minister of Police, when the papers reveal that their homes were
not raided by the police,
but rather by the JMPD and officials from
the Department of Home Affairs.
[118]
For these reasons, we consider this case not to be an appropriate
one, on the facts, to grant the blanket order for constitutional
damages sought by the applicants. The applicants have succeeded in
making out a case for declaratory relief that their rights to
privacy
and dignity have been infringed. We are of the view that the grant of
that relief will effectively vindicate their constitutional
rights to
privacy and dignity. The applicants’ claims for constitutional
damages accordingly fail.
ORDER
[119]
In the result the following order is made:
(a) Section 13(7)(c) of
the South African Police Services Act 68 of 1995 (the SAPS Act) is
declared constitutionally invalid.
(b) The declaration of
invalidity is not retrospective.
(c) The declaration of
invalidity is suspended for 24 months to afford the legislature an
opportunity to cure the invalidity.
(d) Pending the
correction of the defect(s), or the expiration of the expiry of the
24- month period, whichever occurs first: s
13(7)(c) of the SAPS Act
is to be read as providing as follows:
‘
Upon
receipt of the written authorisation referred to in paragraph
(a)
,
any member may cordon off the area concerned or part thereof, and
may, where it is reasonably necessary in order to achieve the
object
specified in the written authorisation, without warrant, search any
person, premises
, except any private home and/or any person inside
such private home,
or vehicle, or any receptacle or object of
whatever nature, in that area or part thereof and seize any article
referred to in section
20 of the Criminal Procedure Act, 1977 (Act 51
of 1977), found by him or her in the possession of such person or in
that area or
part thereof: Provided that a member executing a search
under this paragraph shall, upon demand of any person whose rights
are
or have been affected by the search or seizure, exhibit to him or
her a copy of the written authorisation
; Provided further that the
provisions of section 21 with the exceptions provided for in
section
22
of the
Criminal Procedure Act 51 of 1977
shall apply to the search
in terms of this subsection of any private home and/or any person
inside such private home within the
cordoned off area, and the
seizure of any article contemplated in this subsection found in any
such private home or in the possession
of any person inside such
private home.’
(e) The decision of the
sixth respondent, taken on or about 9 June 2017, in terms of s 13(7)
of the SAPS Act, to issue a “written
authorisation for a
cordon-off” of the area identified as "sectors 4, 5, and 6
in Hillbrow bordered by North —
Louis Botha Street; East —
Joe Slovo Street; South — Noord Street; West — Hospital
Street", between the
hours of 14h00 and 22h00 on 30 June 2017,
is reviewed and set aside.
(f) The following
decisions of the seventh respondent taken in terms of s 13(7) of the
SAPS Act are reviewed and set aside —
(i)
The decision taken on or about 11 July 2017, to issue a ‘written
authorisation for a cordon-off’ of the area identified
as
‘sectors 4, 5, and 6 in Hillbrow, bordered by North —
Louis Botha Street; East - Joe Slovo Street; South —
Noord
Street; West — Hospital Street’ between the hours of
14h00 and 22h00 on 14 July 2017.
(ii)
The decision taken on or about 24 July 2017, to issue a ‘written
authorisation for a cordon-off’ of the area identified
as
‘Sector 2: Remington Court — Johannesburg, bordered by
North — Bree Street; East — End Street; South
–
Jeppe Street; West — Nugget Street’, between the hours of
14h00 and 22h00 on 25 July 2017.
(iii)
The decision taken on or about 21 August 2017, to issue a ‘written
authorisation for a cordon-off’ of the area
identified as
‘Sector 3: CAS Block 5779 - Doornfontein bordered by North —
Saratoga Avenue; East — Angle Road;
South- Albertina Sisulu
Road; West - End Street’, between the hours of 10h00 and 18h00
on 24 August 20.
(iv)
The decision taken on or about 30 August 2017, to issue a ‘written
authorisation for a cordon-off’ of the area
identified as
‘Sectors 4, 5 and 6 in Hillbrow, Johannesburg, bordered by
North — Willie and Clarendon Streets; East
—Joe Slovo
Road; South — Hancock Street, Saratoga and Nugget Streets; West
— Twist Street’, between the
hours of 14h00 and 22h00 on
31 August 2017.
(v)
The decision taken on or about 19 September 2017, to issue a ‘written
authorisation for a cordon-off’ of the area
identified as
‘Sectors 4, 5 and 6 in Hillbrow, Johannesburg bordered by North
— Willie and Clarendon Streets; East
— Joe Slovo Road;
South — Hancock Street, Saratoga and Nugget Streets; West -
Twist Street’, between the hours
of 12h00 and 16h00 on 21
September 2017.
(vi)
The decision taken on or about 30 October 2017, to issue a ‘written
authorisation for a cordon-off’ of the area
identified as ‘CAS
Block 5787 — Jeppestown bordered by North — Fawcus
Street; East — Long Street; South
— Jules Street; West —
Berg Street’, between the hours of 10h00 and 16h00 on 2
November 2017.
(vii)
The decision taken on or about 9 November 2017, to issue a ‘written
authorisation for a cordon-off’ of the area
identified as
‘Sectors 4, 5 and 6 in Hillbrow, Johannesburg bordered by North
— Willie and Clarendon Streets; East
—Joe Slovo Road;
South — Hancock Street, Saratoga and Nugget Streets; West -
Twist Street’, between the hours
of 12h00 and 18h00 on 16
November 2017.
(viii)
The decision taken on or about 17 November 2017, to issue a ‘written
authorisation for a cordon-off’ of the areas
identified as
‘Sector 2: CAS Block 5787 — Jeppestown and Doornfontein
CAS Block 5779 bordered by North – Albertina
Sisulu Street and
Beit Street; East — John Page Street, Betty Street and
Sivewright Street; South — Durban Street;
West — End
Street’, between the hours of 09h00 and 18h00 on 21 November
2017.
(ix)
The decision taken on or about 18 January 2018, to issue a ‘written
authorisation for a cordon-off’ of the area
identified as
‘Sector 4, 5, 6 bordered by North — Willie and Clarendon
Street; Easts — Joe Slovo Road; South
— Hancock Street,
Saratoga and Nugget Streets; West - Twist Street’, 17h00 on 23
January 2018.
(x)
The decision taken on or about 23 January 2018, to issue a "written
authorisation for a cordon-off’ of the
area identified as
‘bordered by North — Rockey Street; East - Siemart
Street; South — Albertina Sisulu Street;
West – End
Street’, between the hours of 10h00 and 18h00 on 23 January
2018.
(xi)
The decision taken on or about 12 February 2018, to issue a ‘written
authorisation for a cordon-off’ of the area
identified as
‘Sector 4, 5 and 6 in Hilbrow, bordered by North — Willie
and Clarendon Streets; East — Joe Slovo
Road; South —
Hancock Street, Saratoga and Nugget Streets; West – Twist
Street’, between the hours of 10h00 and
18h00 on 15 February
2018.
(xii)
The decision taken on or about 2 May 2018, to issue a ‘written
authorisation for a cordon-off’ of the area identified
as
‘Sector 4, 5, 6 in Hilbrow, bordered by North –Willie and
Clarendon Street; East − Joe Slovo Road; South –
Hancock
Street, Saratoga and Nugget Street; West – Twist Street’
which includes 5 Davies Street, New Doornfontein,
on 3 May 2018.
(g) It is declared that
the raids, searches, inspections, seizures, fingerprinting and
arrests undertaken on the authority of the
written authorisations set
out in paragraphs (e) and (f), were unlawful.
(h) It is declared that
the searches, seizures, fingerprinting and arrests conducted at the
eleventh applicants' homes at 1 Delvers
Street, Johannesburg on 9
November 2017 by or on behalf of the first, second, third and eighth
respondents, were unlawful.
(i) It is declared that
the searches, seizures, fingerprinting and arrests conducted at the
seventh applicants' homes at the Wemmer
Shelter, Turfontein,
Johannesburg on 20 October 2017 by or on behalf of the first, second,
third and eighth respondents, were unlawful.
(j) It is declared that
the searches, seizures, fingerprinting and arrests conducted at the
applicants' homes on the dates set out
in paragraphs (e), (f), (h)
and (i) above unjustifiably infringed the applicants' rights to
dignity and privacy contained in sections
10 and 14 of the
Constitution, 1996.
(k) The applicants’
claim for constitutional damages is dismissed.
(l) The first and second
respondents are to pay the applicants’ costs, jointly and
severally, the one paying the other to
be absolved, including those
of two counsel.
__________________________________________
MLAMBO JP
JUDGE PRESIDENT OF THE
GAUTENG DIVISION
OF
THE HIGH COURT
__________________________________________
MEYER
J
JUDGE
OF THE GAUTENG DIVISION
OF
THE HIGH COURT, JOHANNESBURG
_________________________________________
KATHREE-SETILOANE
J
JUDGE
OF THE GAUTENG DIVISION
OF
THE HIGH COURT, JOHANNESBURG
Date
of Hearing: 16 March 2020
Date
of Judgment: 29 June 2020
Appearances:
Applicants’
Counsel: Adv. S Wilson (with Adv. I de Vos and Adv. O Motlhasedi)
Instructed
by: SERI Law Clinic, Braamfontein, Johannesburg
1
st
,
6
th
, 7
th
and 10
th
Respondents’
Counsel: Adv. M Mphaga SC (with Adv. M Pompo)
Instructed
by: State Attorney, Johannesburg
2
nd
and 8
th
Respondents’
Counsel:
Adv. MC Makgato
Instructed
by: Phambane Mokone Inc., Randburg
Counsel
for 1
st
Amicus curiae
: Adv. J Bhima (with Adv. K
Harding)
Instructed
by: Lawyers for Human Rights
Counsel
for 2
nd
Amicus curiae
: Adv. HL Alberts (with Adv.
Skibi)
Instructed
by: Legal Aid South Africa, Braamfontein,
Johannesburg