Brief Summary

Constitutional Law — Constitutional validity of legislation — Section 28(1) of the Medicines and Related Substances Control Act — Applicant, a registered medical practitioner, challenged the constitutionality of powers of entry, search, and seizure granted to inspectors under the Act, claiming violation of personal privacy rights under section 13 of the interim Constitution — High Court upheld some aspects of the application but refused to return certain seized items, leading to an appeal — Constitutional Court to decide on the constitutionality of the contested provisions and the validity of the High Court's refusal to order the return of the items.

Comprehensive Summary

Summary of Judgment

1. Introduction

These proceedings in the Constitutional Court concerned, first, a referral under section 102(1) of the Constitution of the Republic of South Africa Act 200 of 1993 (the interim Constitution) raising the constitutionality of section 28(1) of the Medicines and Related Substances Control Act 101 of 1965 (the Medicines Act), and, second, an appeal (with leave) against portions of an order of the Durban and Coast High Court (per McLaren J) relating to the return of certain items seized during a search of the applicant’s medical practice.

The applicant (in the court of first instance and in this Court) was Ashok Rama Mistry, a registered medical practitioner in private practice. The respondents included the Interim National Medical and Dental Council of South Africa (the Council), a senior legal adviser of the Council (J P Enslin), the Minister of Health, an inspector of medicines (Russell Kevin Coote), a private practitioner involved in the Council’s inspection (Dr D Moodliar), and functionaries of the Council (the Registrar and President).

The dispute arose from an inspection/search of the applicant’s surgery conducted by officials associated with the Council and by a medicines inspector. In the High Court, the applicant brought an urgent application for the return of items seized, interim interdictory relief, and, alternatively, referral of constitutional issues. McLaren J granted substantial relief against the Council-related respondents and ordered the return of items seized under the Medical Act; he also ordered the return of some, but not all, items seized by the medicines inspector. He further referred the constitutionality of section 28(1) of the Medicines Act to the Constitutional Court and granted a certificate supporting leave to appeal to this Court in relation to the remaining seized items.

The general subject-matter of the dispute was the compatibility of warrantless entry, inspection, search, and seizure powers conferred on medicines inspectors by section 28(1) with the interim Constitution’s guarantee of personal privacy in section 13, together with the consequences (if any) for the lawfulness of the particular inspection/search conducted at the applicant’s surgery and the applicant’s entitlement to the return of seized items.

2. Material Facts

A patient lodged a complaint with the Council alleging that the applicant had fraudulently claimed reimbursement from the patient’s medical aid fund for services allegedly not rendered. In response, the Council directed an inspection of the applicant’s premises by Mr Enslin (a senior legal adviser employed by the Council) and Dr Moodliar (a private practitioner), acting under the Medical, Dental and Supplementary Health Service Professions Act 56 of 1974 (the Medical Act).

Before carrying out the inspection, Mr Enslin informed the chief medicines control officer of the Department of Health and an inspector of medicines, Mr Coote, of the impending inspection. The three inspectors then went together to the applicant’s surgery and proceeded to search it in the applicant’s absence; the applicant arrived when the search was almost complete. During the visit, Mr Coote purchased a container of Persivate cream from the applicant’s receptionist and seized a number of items. Mr Enslin and Dr Moodliar also seized items, but these were later returned pursuant to the High Court’s order and were not directly in issue before the Constitutional Court.

The applicant brought urgent proceedings in the High Court seeking, among other things, the return of seized items (including documents and medicines-related items), interdictory relief against further searches, and, in the alternative, referral of constitutional issues to the Constitutional Court. McLaren J ordered the return of the items seized under the Medical Act, thereby removing the Medical Act’s validity from practical contention in the case before the Constitutional Court. As regards the items seized by Mr Coote under the Medicines Act, McLaren J ordered the return of some items but refused to order the return of others, which formed the subject of the appeal to the Constitutional Court.

To the extent that the court distinguished disputed from undisputed matters, it treated as disputed (but not determinative for the constitutional invalidity issue) the extent to which the inspection/search could have been carried out more sensitively. For purposes of the appeal, the Constitutional Court proceeded on assumptions favourable to the applicant, including that Mr Enslin breached the secrecy provision in section 41A(9)(a) of the Medical Act by informing Mr Coote of the complaint and intended investigation and by communicating during the inspection.

3. Legal Issues

The central legal questions were, first, whether section 28(1) of the Medicines Act—conferring broad powers of entry, inspection, and seizure on inspectors—was inconsistent with section 13 of the interim Constitution (the right to personal privacy), and if so, whether the limitation was nevertheless reasonable and justifiable under section 33 of the interim Constitution.

This primary issue was predominantly a question of law (the constitutionality of statutory powers), involving the application of constitutional standards to the scope and structure of the impugned provision, and entailed an evaluative proportionality assessment in terms of section 33.

Secondly, arising from the appeal, the Court had to determine whether (a) communications by Mr Enslin and Dr Moodliar to Mr Coote leading to the inspection/search, or (b) the manner in which the inspection/search was conducted, constituted a breach of the applicant’s constitutional right to privacy, and whether consequential relief (notably, return of certain seized items still held by Mr Coote and the Minister) should follow.

A further set of issues concerned remedial and interpretive choices: whether reading down could save section 28(1) (in terms of section 35(2) of the interim Constitution), whether the Court should grant a more limited declaration of invalidity or effectively sever portions of section 28(1), and whether the Court should suspend the order of invalidity under section 98(5) or make the declaration of invalidity retrospective under section 98(6).

In addition, Chaskalson P addressed a procedural issue of general importance: how High Courts should approach and motivate applications for certificates under Rule 18(e) of the Constitutional Court Rules in relation to leave to appeal to the Constitutional Court.

4. Court’s Reasoning

The right to privacy and the breadth of section 28(1)

Sachs J located the impugned powers within the regulatory scheme of the Medicines Act, accepting (with reference to appellate authority) that the Act pursued a beneficent public purpose: protecting the public by controlling the quality, distribution, and sale of medicines and scheduled substances. The Court accepted that effective enforcement requires inspectors with meaningful powers and that, in a regulatory context, expectations of privacy may be attenuated, particularly where enterprises are closely regulated.

However, the Court emphasised that section 13 protects personal privacy, including protection against searches of person, home, or property and seizure of private possessions. While the Court expressly refrained from defining precisely when an inspection becomes a “search”, it held that to the extent a statute authorises warrantless entry into private homes and inspection of intimate possessions, this intrudes on the “inner sanctum” protected by section 13. It found that the language of section 28(1) was sufficiently sweeping to permit such intrusion.

The Court then proceeded to justification under section 33, applying the proportionality approach articulated in S v Makwanyane and Another. It considered the nature and importance of privacy rights in a constitutional democracy, contrasting such safeguards with the dynamics of a police state, and noted South Africa’s historical experience of both strong and weak protections against official intrusion.

Although the Medicines Act’s purpose was accepted as important and legitimate, the Court considered the extent of the limitation imposed by section 28(1) to be unusually severe. The provision authorised inspectors to enter “any premises, place, vehicle, vessel or aircraft” whenever medicines were present or suspected to be present. Because “medicine” was defined broadly, the Court stressed that the section’s logic would extend to ordinary private homes where common medicines might be found. Once inside, inspectors could inspect “any book, record or document”, allowing access to highly personal and unrelated documents without any statutory safeguards.

In evaluating less restrictive means, the Court reasoned that it was difficult to see why achieving the Act’s objectives required inspectors to have the power “at will” to enter private homes and inspect private documents without independent prior authorisation. While the Court acknowledged that in certain regulatory inspections a warrant requirement might be impractical, it held that the failure to distinguish between contexts where warrantless inspections might be justified (for closely regulated professional premises) and contexts where greater privacy protections are expected (such as private dwellings) was a material defect. The Court concluded that section 28(1) gave inspectors “carte blanche” and was overbroad; the scope of intrusion it authorised was disproportionate to its public purpose, and it therefore failed the proportionality test under section 33.

Reading down, severance-like relief, and suspension

The respondents argued that section 28(1) could be read down using section 35(2) (and reinforced by section 35(3)) so that the inspectors’ powers would be confined to constitutionally acceptable regulatory activity. The Court accepted that such an argument might have merit if the provision were reasonably capable of that restricted construction. It held, however, that the explicit language and broader scheme of the Medicines Act contemplated inspector functions broader than the narrow monitoring of health professionals’ premises, and that narrowing the power in the manner proposed would amount to re-writing the statutory mandate and importing safeguards that the legislature had not enacted.

At the hearing, the respondents also sought relief that would, in substance, limit the invalidity to aspects of the section authorising entry into places other than those used or occupied by specified health professionals. The Court refused this approach as well, reasoning that the problem of overbreadth was not susceptible to a simple excision and that the reasonableness of inspection powers depends on an overall scheme of checks and balances, including where appropriate independent authorisation. The defect was therefore treated as undermining section 28(1) as a whole, rather than being capable of neat partial salvage.

On the question whether the Court should suspend invalidity under section 98(5) “in the interests of justice and good government”, the Court held that a party seeking such relief must place reliable information before the Court to justify it, including the negative consequences of immediate invalidity, why alternative measures are inadequate, what corrective legislation is contemplated, and how much time is needed for correction. No such substantiated basis was provided, and the Court declined to suspend invalidity.

Prospectivity, retrospective relief, and the applicant’s requested consequences

The applicant sought not only invalidation of section 28(1) but also an order declaring that the particular search and seizure conducted by Mr Coote were unlawful, which would have required departing from the general rule of prospectivity under section 98(6). The Court declined to make such an order, holding that it lacked sufficient information to justify a departure from the default approach, and it identified competing considerations. Retrospectivity could unsettle a range of regulatory actions undertaken in good faith under the statute and generate uncertainty and collateral consequences for administration and proceedings reliant on earlier inspections.

The Court also considered that tailoring retrospective relief solely to assist the applicant could raise concerns of equal protection and legal certainty, in circumstances where similarly situated persons would not automatically receive the same relief. It further observed that the applicant had obtained meaningful benefit through the suspension of the investigation and through the constitutional declaration itself, which would govern future conduct. It therefore remained unpersuaded that justice and good government required retrospective invalidation.

The appeal: informational privacy, secrecy breaches, and “tainting”

On the appeal, the applicant argued that the medicines inspection was prompted by information disclosed in breach of statutory secrecy obligations under the Medical Act, and that this infringed the applicant’s privacy and tainted the subsequent inspection and seizures. Sachs J approached these contentions on the basis of assumptions favourable to the applicant, including that informational privacy could fall within section 13, that Mr Enslin was performing state functions and bound by the Bill of Rights, and that Mr Enslin had breached section 41A(9)(a) by communicating the complaint and intended investigation to Mr Coote and communicating during the inspection.

Despite these assumptions, the Court held that any breach of the Medical Act secrecy provision was attributable to Mr Enslin, not to Mr Coote, and did not affect the jurisdictional basis for Mr Coote’s inspection under section 28(1) as it stood at the time. For section 28(1), it was sufficient that Mr Coote reasonably believed medicines would be present on the premises, and the Court considered that this requirement was met.

The Court acknowledged the theoretical possibility that a formally authorised search might be constitutionally vitiated by preceding or surrounding rights violations (a “tainting” notion), but held that the facts did not come close to establishing the egregious conduct that would be required. It stressed the limited nature of the information disclosed (a complaint and an intended inspection), that the information was not obtained intrusively but was volunteered by a member of the public, that it concerned the conduct of a medical practice rather than intimate personal life, and that it was disclosed only to a person with statutory regulatory responsibilities who was himself subject to confidentiality obligations. In these circumstances, the Court concluded that the applicant’s constitutional right to privacy was not breached by the communication, and that the discussions among inspectors during the search did not establish a constitutionally improper seizure of the disputed items.

Certificates and Rule 18(e)

In a separate concurring judgment, Chaskalson P addressed the proper handling of applications for certificates under Rule 18(e). He emphasised that, although subjective judicial attitudes can be difficult to exclude, constitutional adjudication must proceed on a principled basis. He explained that the High Court’s decision on a Rule 18 certificate is analogous to an application for leave to appeal and should generally be accompanied by reasons. The purpose of the certificate is to assist the Constitutional Court in deciding whether leave to appeal should be granted, and the High Court should consider the Rule 18(e) requirements and explain its conclusions, with the level of detail depending on whether the relevant issues were fully canvassed in the main judgment.

5. Outcome and Relief

The Constitutional Court declared section 28(1) of the Medicines and Related Substances Control Act 101 of 1965 to be inconsistent with section 13 of the interim Constitution and invalid.

The appeal was dismissed, with the result that the applicant did not obtain an order compelling the return of the remaining items seized and retained by Mr Coote and the Minister on the basis advanced in the Constitutional Court proceedings.

As to costs, the Court ordered that Mr Coote and the Minister of Health pay the costs of the proceedings in the Constitutional Court jointly and severally, including the costs of two counsel, taking into account that the applicant had been substantially successful on the referral even though unsuccessful on the appeal.

Cases Cited

Administrator, Cape v Raats Röntgen and Vermeulen (Pty) Ltd [1991] ZASCA 126; 1992 (1) SA 245 (A).

Bernstein and Others v Bester and Others NNO [1996] ZACC 2; 1996 (2) SA 751 (CC); 1996 (4) BCLR 449 (CC).

Brinegar v United States [1949] USSC 103; 338 US 160 (1949).

Camara v Municipal Court of the City and County of San Francisco [1967] USSC 144; 387 US 523 (1967).

Case and Another v Minister of Safety and Security and Others; Curtis v Minister of Safety and Security and Others [1996] ZACC 7; 1996 (3) SA 617 (CC); 1996 (5) BCLR 609 (CC).

De Wet and Others v Willers, NO and Another 1953 (4) SA 124 (T).

Donovan, Secretary of Labor v Dewey et al. [1981] USSC 149; 452 US 594 (1981).

Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others 1996 (1) SA 984 (CC); 1996 (4) BCLR 441 (CC).

Frank v Maryland [1959] USSC 104; 359 US 360 (1959).

Hunter et al. v Southam Inc. (1984) 9 CRR 355.

Katz v United States [1967] USSC 262; 389 US 347 (1967).

Key v Attorney-General, Cape Provincial Division, and Another [1996] ZACC 25; 1996 (4) SA 187 (CC); 1996 (6) BCLR 788 (CC).

Marshall, Secretary of Labor, et al. v Barlow’s, Inc. [1978] USSC 83; 436 US 307 (1978).

Member of the Executive Council for Development Planning and Local Government in the Provincial Government of Gauteng v The Democratic Party and Others, CCT 33/97, 29 May 1998 (Constitutional Court, unreported at the time).

National Media Ltd and Another v Jooste [1996] ZASCA 24; 1996 (3) SA 262 (A).

New York v Burger [1987] USSC 125; 482 US 691 (1987).

Regina v Bichel (1986) 33 DLR (4th) 254.

R v Kokesch (1990) 50 CRR 285.

S v Bhulwana; S v Gwadiso [1995] ZACC 11; 1996 (1) SA 388 (CC); 1995 (12) BCLR 1579 (CC).

S v Makwanyane and Another [1995] ZACC 3; 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC).

S v Zuma and Others [1995] ZACC 1; 1995 (2) SA 642 (CC); 1995 (4) BCLR 401 (CC).

See v City of Seattle [1967] USSC 151; 387 US 541 (1967).

Thomson Newspapers Ltd. v Canada (Director of Investigation and Research, Restrictive Trade Practices Commission) (1990) 47 CRR 1.

United States v Biswell 406 US 311 (1972).

Almeida-Sanchez v United States [1973] USSC 155; 413 US 266 (1973).

Legislation Cited

Constitution of the Republic of South Africa Act 200 of 1993 (interim Constitution), including sections 13, 33, 35(2), 35(3), 98(5), 98(6), and 102(1).

Medicines and Related Substances Control Act 101 of 1965, including sections 1(1), 2–17, 18, 19, 20, 22A, 26, 28(1), 30(1), and 34.

Medical, Dental and Supplementary Health Service Professions Act 56 of 1974, including section 41A and section 41A(9)(a).

Medicines and Related Substances Control Amendment Act 90 of 1997.

Criminal Procedure Act 51 of 1977.

Rules of Court Cited

Constitutional Court Rules, Rule 18(e).

Held

Section 28(1) of the Medicines and Related Substances Control Act 101 of 1965 conferred powers of entry, inspection, and seizure that were so broad and insufficiently safeguarded that they permitted warrantless intrusion into private homes and access to private documents, thereby limiting the right to personal privacy in section 13 of the interim Constitution in a manner that was not reasonable and justifiable under section 33. The provision was accordingly inconsistent with the interim Constitution and invalid.

The appeal concerning the alleged constitutional impropriety of the particular inspection/search and the applicant’s entitlement to the return of the remaining seized items was dismissed. Even on assumptions favourable to the applicant regarding statutory secrecy breaches and informational privacy, the circumstances did not establish a constitutional breach by Mr Coote’s conduct that warranted the relief sought in the appeal.

Costs in the Constitutional Court were awarded against Mr Coote and the Minister of Health, jointly and severally, including the costs of two counsel.

LEGAL PRINCIPLES

The right to personal privacy in section 13 of the interim Constitution protects an “inner sanctum” of private life, including strong protection against warrantless state intrusion into private homes and private possessions. Where legislation authorises entry and inspection in a manner that permits access to intimate personal spaces and documents without adequate safeguards, the legislation limits section 13 and must be justified under the limitations clause.

In applying section 33 of the interim Constitution, justification requires a proportionality assessment of the kind articulated in S v Makwanyane and Another, including consideration of the nature and importance of the right, the purpose of the limitation, the extent of the limitation, and whether the ends could be achieved through less restrictive means. Even where the statutory purpose is beneficent and regulatory inspections may be necessary for public welfare, powers that are materially overbroad and confer effectively uncontrolled discretion will fail proportionality.

The expectation of privacy may be attenuated in relation to closely regulated enterprises and professional premises, but that attenuation does not license indiscriminate or unlimited powers of entry and inspection across all places, including private dwellings, absent a coherent statutory scheme of safeguards and context-sensitive checks and balances.

Reading down under section 35(2) is permissible only where a statute is reasonably capable of a narrower construction consistent with constitutional limits; courts may not use reading down to re-write the legislature’s scheme, alter the basic statutory mandate, or import an elaborate structure of safeguards not supported by the text and context of the statute.

Where a party seeks suspension of invalidity under section 98(5) in the interests of justice and good government, it bears the onus of providing reliable and timeous information justifying such a remedy, including the consequences of immediate invalidity and the feasibility and timing of corrective legislation. Similarly, a departure from the default prospective effect of invalidity under section 98(6) requires adequate justification; selective retrospective relief aimed only at the successful litigant can raise concerns of equality and legal certainty.

Applications for certificates under Rule 18(e) should be approached in a manner analogous to conventional leave-to-appeal applications: the High Court should address the rule’s requirements and provide reasons sufficient to assist the Constitutional Court in deciding whether leave to appeal should be granted, with the level of detail depending on what was already covered in the main judgment.

Mistry v Interim National Medical and Dental Council and Others (CCT13/97) [1998] ZACC 10; 1998 (4) SA 1127; 1998 (7) BCLR 880 (29 May 1998)