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[2006] ZACC 8
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Magajane v Chairperson, North West Gambling Board (CCT49/05) [2006] ZACC 8; 2006 (10) BCLR 1133 (CC) ; 2006 (5) SA 250 ; 2006 (2) SACR 447 (8 June 2006)

CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 49/05
ISAAC METSING MAGAJANE Applicant
versus
THE CHAIRPERSON, NORTH
WEST GAMBLING BOARD First Respondent
JACOBUS CONRADÉ
ERASMUS Second Respondent
MEC FOR FINANCE AND ECONOMIC
DEVELOPMENT,
NORTH WEST PROVINCE Third Respondent
Heard on : 23 February
2006
Decided on : 8 June 2006
JUDGMENT
VAN DER WESTHUIZEN J:
Introduction
[1]
The questions raised by this
case include whether, consistent with the constitutional right to privacy,
legislation may authorise
warrantless inspections of unlicensed premises for the
purpose of obtaining evidence for criminal prosecution. The North West Gambling
Act 2 of 2001 (the Act) governs the regulation of gambling activities in the
North West Province and establishes and empowers the
North West Gambling Board
(the Board). Section 65 of the Act lists the powers and functions of the
Board’s inspectors.
[1]
The
applicant in this case, who was the subject of an inspection conducted pursuant
to section 65, challenges the constitutionality
of a number of the provisions of
the section, alleging that they violate his rights to remain silent and to
privacy and that one
provision exceeds the constitutional competence of the
provincial legislature.
Background
[2]
Board inspector Jacobus
Conradé Erasmus, the second respondent, received a report from another
Board inspector that illegal
gambling was taking place at an establishment known
as Las Vegas Gold Lichtenburg (Las Vegas Gold). Four days later, on 30 August
2004, Mr Erasmus arranged for undercover agents to visit Las Vegas Gold and to
play on gambling machines using marked “trap”
money. Upon the
return and report of the undercover agents, Erasmus led a team of Board
inspectors and members of the South African
Police Service on a
“raid” of Las Vegas Gold.
[3]
Mr Erasmus and the others
did not seek a warrant to enter, search or seize property from Las Vegas Gold.
They conducted their activities
pursuant to section 65 of the
Act.
[4]
Section
65 of the Act, entitled “Powers and functions of inspectors”,
provides:
[2]
“(1) An inspector shall for the purpose of this
Act—
(a) enter upon any licensed or unlicensed premises which are occupied or being
used for the purposes of any gambling activities or
any other premises on which
it is
suspected—
(i) that a casino or any other gambling activity is being conducted without the
authority of a licence,
(ii) that persons are being allowed to play or participate in any gambling game
or other gambling activities or to play any gambling
machine, or
(iii) that any gambling machine or any equipment, device, object, book, record,
note, recording or other document used or capable
of being used in connection
with the conducting of gambling games or any other gambling activity may be
found,
and may, after having informed the person who is deemed or appears to be in
charge of the premises of the purpose of his or her visit,
make such
investigation or enquiry as he or she may think necessary;
(b) with regard to any premises referred to in paragraph
(a)—
(i) require the production of any licence or written permission or authorisation
to conduct gambling activities from the person who
is in control of such
premises,
(ii) question any person who is on or in such premises, and inspect any
activities in connection with the conduct of any gambling
activity,
(iii) examine or inspect any gambling machine, equipment, device, object, book,
record, note or other document referred to in paragraph
(a) found on those
premises and make a copy thereof or an extract therefrom,
(iv) inspect and examine all premises referred to in paragraph (a) or any
premises where gambling devices or equipment are manufactured,
sold,
distributed, or serviced, wherein any records of such activities are prepared or
maintained,
(v) inspect all equipment and supplies, in, about, upon or around such
premises,
(vi) seize summarily and remove from such premises and impound any such
equipment or supplies for the purposes of examination and
inspection,
(vii) examine, inspect and audit all books, records and documents pertaining to
licensed gambling operations,
(viii) seize, impound or assume physical control of any book, record, ledger,
game device, cash box and its contents, conducting
room or its equipment, or
gambling operations, and
(ix) inspect the person, and personal effects present in any gambling facility
licensed under this Act, of any holder of a licence
or registration issued
pursuant to this Act while that person is present in the licensed gambling
facility;
(c) require any person who is deemed or appears to be in charge of any premises
referred to in paragraph
(a)—
(i) to point out any equipment, device or object referred to in that paragraph
which is in his or her possession or custody or under
his or her control,
(ii) to produce for the purpose of examination or of making copies or extracts,
all books, records, note[s] or other documents referred
to in paragraph (a)
which are in his or her possession or custody or under his or her control,
(iii) to provide any information in connection with anything which has been
pointed out or produced in terms of subparagraph (i)
or (ii),
and
(d) seize and remove any gambling machine, equipment, device, object, book,
record, note or other document referred to in paragraph
(a) which in his or her
opinion may furnish proof of a contravention of any provision of this Act or
mark it for the purposes of
identification.
(2) When performing any function in terms of subsection (1), an inspector may be
accompanied by and avail himself or herself of the
services of an assistant,
interpreter or any police official.
(3) An inspector shall in respect of any provision of this Act or any
regulations promulgated thereunder be deemed to have been appointed
a peace
officer in accordance with section 334 of the Criminal Procedure Act 1977 (Act
No. 51 of 1977), as amended for the purposes
of section 40, 41, 44, 46, 47, 48,
49 and 50, of the said Act.
. . . .”
[5]
According to Mr
Erasmus’ affidavit in the High Court, he and his colleagues entered the
building. Erasmus introduced himself
to the applicant, Mr Isaac Metsing
Magajane, the manager of the Las Vegas Gold. Pursuant to section 65(1)(b)(i) of
the Act,
[3]
Erasmus asked Magajane to
produce a gambling licence or similar written authorisation. Magajane did not
produce any authorisation.
It is common cause that Las Vegas Gold was not
licensed or otherwise authorised to be a gambling establishment. Erasmus then
informed
Magajane that he possessed evidence of illegal gambling and that he
intended to search, inspect and seize gambling equipment, records
and other
items. He showed Magajane the relevant sections of the Act and handed him lists
of the raiding officials and of materials
that could be seized. Erasmus
searched the cash register, which contained the marked money spent by the
undercover agents. He seized
R 4 890 from the cash register and R 24 120 from a
safe. Erasmus and one of his colleagues photographed some of the gambling
machines
on the premises. An inventory list indicates that there were 60
machines. A police officer
[4]
then
arrested the applicant and three employees for conducting a casino without a
licence in violation of the Act.
[5]
Erasmus seized the gambling machines by locking the
premises.
The High Court
[6]
Mr Magajane launched an
urgent application in the High Court in Mmabatho against the chairperson of the
North West Gambling Board,
Mr Erasmus and the MEC for Finance and Economic
Development of the North West Province. The applicant sought a declarator that
the
entry, search and seizure violated section 65 of the Act or in the
alternative that provisions of section 65 were
unconstitutional.
[6]
He also sought
the return of the seized property.
[7]
The High Court dismissed the application with
costs.
[8]
[7]
As a preliminary matter, the
respondents objected to the failure of the applicant to join the Board itself as
a party. They contended
that joinder was necessary as the applicant sought a
declaration of invalidity for statutory provisions that the Board depends on
to
pursue its statutory function. The respondents claimed that this failure was
fatal to the application. The High Court overruled
this objection. Relying
upon section 23(1) of the Act, which provides that service on the chairperson of
the Board constitutes service
on the Board, the Court held that there existed no
need to cite both the chairperson and the Board as separate
parties.
[9]
[8]
The applicant asserted that
the second respondent had exceeded his powers under section 65 of the Act by (1)
utilising the section
to “raid” the premises rather than to inspect,
examine or investigate, (2) seizing money from a safe and (3) seizing
every
piece of equipment found on the premises. The High Court rejected each
assertion in turn, holding that: (1) the second respondent
was authorised by
section 65 to enter the premises without prior notification, to require the
production of a licence or other authorisation
to conduct gambling activities
and to seize objects used for gambling; (2) the statute permits the seizure of
cash and a cash box,
which would include a safe; and (3) the second respondent
did not seize and remove all the gambling machines and
equipment.
[9]
In the alternative, the
applicant raised three constitutional arguments. Firstly, he submitted that
section 65(1)(b)(ii) and (c)(iii)
violated his right to remain silent, as it
empowered Mr Erasmus to question him and to require him to provide certain
information.
He pointed to the absence of a proviso rendering information
obtained or gathered in this manner from being used against him in
an ensuing
criminal proceeding.
[10]
The High Court held that
section 65(1)(b)(ii) and (c)(iii) does not violate the right to remain silent.
The two subsections concern
the procurement of evidence or information, not the
admissibility of evidence. The issue of whether any information provided under
section 65 could be admitted in a criminal trial should be determined in each
case by the trial judge with reference to the right
to a fair
trial.
[11]
Secondly, the applicant
argued that section 65(1)(b) and (d) violated his constitutional right to
privacy in that these provisions
permitted Mr Erasmus to conduct a search and
seizure without a warrant.
[12]
The High Court found that
the applicant had failed to prove that his personal right to privacy, in the
sense of his inner sanctum,
was breached. Therefore, it was not necessary to
consider the constitutional challenge grounded on the breach of the
applicant’s
right to privacy. However, the Court proceeded to enquire
into whether the breach of the right to privacy would be justified in
terms of
section 36 of the Constitution and concluded that it would. The Court reasoned
that the regulatory inspections authorised
by the Act, including the powers to
search and seize, are necessary to promote the public purpose of regulating
gambling activities
and are bounded sufficiently by the
Act.
[13]
Thirdly, the applicant
challenged the constitutionality of section 65(3) of the Act, which provides
that “[a]n inspector shall
. . . be deemed to have been appointed a peace
officer in accordance with
section 334
of the
Criminal Procedure Act
1977
”. The applicant argued that the provincial legislature had no
authority to enact such a provision and consequently that Mr
Erasmus’
actions as a peace officer were invalid.
[14]
The High Court declined to
address the substance of this argument. The Court held that the issue was
irrelevant, because Mr Erasmus
did not arrest or attempt to arrest the
applicant. Rather, a police officer arrested the
applicant.
[15]
The High Court and the
Supreme Court of Appeal refused to grant the applicant leave to appeal. The
applicant now applies to this
Court for leave to appeal against the decision of
the High Court on the constitutional issues only. The respondents oppose the
application
and persist in their argument as to
joinder.
The Act
[16]
The
Act provides for “the strict regulation of all persons, premises,
practices, associations and activities relating to
gambling”.
[10]
Chapter 2 of
the Act establishes the Board to oversee gambling activities in the
province
[11]
and delineates the
powers, structures and proceedings of the
Board.
[12]
Chapters 3 to 10 set out
the rules and requirements relating to licensing and the registration of certain
personnel. Chapter 11
contains section 64, which governs the appointment of
inspectors, and section 65, the subject of this appeal, which details the powers
and functions of inspectors. The remainder of the Act sets out laws relating to
gambling machines and devices;
[13]
general restrictions relating to gambling, including section 82 which
establishes offences and
penalties;
[14]
rules concerning
gambling levies, fees, penalties and
interest;
[15]
and additional
provisions relating to the Board, including the issuance of regulations,
publication of information and review of
Board
decisions.
[16]
[17]
Section 65(1)(a) instructs
an inspector to enter any licensed or unlicensed premises occupied or used for
gambling activities, or
on which it is suspected that such activities are being
conducted or allowed, or on which any of numerous specified gambling related
items are present. The provision authorises the inspector to investigate or
inquire as he or she thinks necessary, provided that
the inspector first informs
the person in charge of the premises of the purpose of the
visit.
[18]
Section 65(1)(b) instructs
the inspector to perform a wide range of tasks on the premises referred to in
section 65(1)(a). This includes
requiring the person in control of the premises
to produce a licence, written permission or authorisation to conduct gambling
activities;
[17]
questioning any
person on the premises;
[18]
inspecting any activities, objects or records connected with the conduct of
gambling or located on or around the premises and any
person and personal
effects present on a licensed gambling
facility;
[19]
seizing, removing and
impounding any equipment or supplies for the purposes of examination and
inspection;
[20]
and seizing,
impounding or assuming physical control over any records, cash box, equipment or
gambling
operations.
[21]
[19]
Section 65(1)(c) states
that the inspector shall require a person who is deemed or appears to be in
charge to point out any item or
produce all records referred to in section
65(1)(a) that is in his or her possession, custody or control and to provide any
information
in connection with those items or
records.
[20]
Section 65(2) provides that
the inspector may be accompanied by other personnel, including any police
official. In addition section
65(3) provides that, for the purpose of the Act,
the inspector is deemed to have been appointed a peace officer in accordance
with
section 334
of the
Criminal Procedure Act 51 of
1977
.
[21]
The
remainder of the section governs administrative inspections for compliance with
the Act. Section 65(4) authorises administrative
inspections,
[22]
and section 65(5)
details the inspector’s powers and functions in conducting such
inspections. Section 65(6) provides that
the inspector “in accordance
with constitutional requirements” and “to effectuate the purpose of
this Act”
may obtain administrative warrants to inspect and seize property
during administrative inspections. Subsections (7) to (12) of section
65 govern
the procedure for obtaining and for employing the
warrant.
The issues
[22]
The applicant raises three
issues in this Court:
1. Does section 65(1)(b)(ii) and (c)(iii) of the Act, read with section 82,
violate the applicant’s right to remain silent
by requiring him to answer
questions that could be used against him in future criminal proceedings?
2. Does section 65(1)(b) and (d) violate his right to privacy by authorising
inspectors to search his commercial premises and to
seize items without a
warrant?
3. Does section 65(3) exceed the constitutional competence of the North West
provincial legislature by deeming an inspector to have
been appointed a peace
officer in accordance with
section 334
of the
Criminal Procedure
Act?
>Additionally, the respondents persist in their contention
that the applicant was required to join the Board. I deal with the issues
in
reverse order.
Joinder
[23]
The respondents’
contention that the application must fail because the applicant did not join the
Board as a party must be rejected.
There is no need to join the Board as well
as or instead of the chairperson of the
Board.
[23]
The Act indicates that
the chairperson can represent the interests of the Board. Section 23 of the Act
provides that in any legal
proceeding instituted against the Board, service on
the chairperson constitutes sufficient service on the Board. I might also
mention
that the respondents have not cross-appealed against the holding of the
High Court that the applicant was not required to join the
Board.
Inspector as peace officer
[24]
Section 65(3) of the Act
provides that an inspector shall be deemed to have been appointed a peace
officer in accordance with
section 334
of the
Criminal Procedure
Act.
[24
]
The applicant contends
that
section 65(3)
is unconstitutional as it exceeds the competence of the
provincial legislature. The High Court declined to address the
constitutionality
of
section 65(3)
, because it held that a police officer
arrested the applicant, not an inspector. The challenge to this provision
raises a number
of questions: (1) As a factual matter, did the second respondent
act as a peace officer? (2) If the second respondent did not act
as a peace
officer, may the applicant still challenge the provision? (3) Did the
provincial legislature unconstitutionally exceed
its competence in passing
section 65(3)?
[25]
The parties barely
addressed the factual issue, despite its forming the basis upon which the High
Court rejected the challenge to
section 65(3).
The applicant does not address
the factual issue in his written arguments. In his application for leave to
appeal and during oral
argument, however, the applicant argued that while a
police officer actually arrested him, the second respondent had declared an
intention to arrest him. The second respondent admitted this in his answering
affidavit in the High Court. In their papers, the
respondents simply reiterate
the conclusion of the High Court that the police officer arrested the applicant.
They did not address
the factual issue during oral argument. In view of the
conclusion that follows, it is not necessary to decide the factual issue
or the
consequences of a finding that the second respondent did not act as a peace
officer.
[26]
In his written argument,
the applicant contends that
section 65(3)
wrongly bases its authority on
section
334
of the
Criminal Procedure Act. Section
65(3) provides that an inspector
shall “be deemed to have been appointed a peace officer in accordance with
section 334
of the
Criminal Procedure Act&#8221
;. However,
section 334
of the
Criminal Procedure Act only
authorises the Minister of Justice and
Constitutional Development to declare a person a peace
officer.
[25]
The applicant concedes
that
section 65(3)
may have been sound had it authorised officials to act as
peace officers using the province’s own powers, without reference
to
national legislation. However, the applicant argues that the use of the term
“deemed in accordance with” in
section 65(3)
indicates that the
province improperly utilised the authority granted solely to the Minister by the
Criminal Procedure Act.
>
[27]
The applicant advanced a
broader position at the hearing. He argues that
section 65(3)
exceeded the
province’s competence and was also unnecessary. While gambling falls
within competences of both the national
and provincial governments, only the
national government is competent to name peace officers. For provinces to
appoint peace officers,
they would have to show that such appointments are
reasonably necessary to achieve a purpose in an area within the province’s
competence. In terms of the Act there is no need to appoint the inspectors as
peace officers, because police officers may accompany
the
inspectors.
[28]
The respondents did not
address the substantive issue in their papers. At the hearing they advanced a
creative interpretation of
section 65(3): The provision does “half the
job” of making an inspector a peace officer under the
Criminal Procedure
Act. Section
65(3) designates and certifies the inspector. It is left to the
Minister to specify the area and offences for which the inspector
is a peace
officer — as required by
section 334
of the
Criminal Procedure Act. The
respondents concede that their interpretation is strained, but argue that the
section cannot possibly establish inspectors as peace
officers.
[29]
Applications to this Court
for leave to appeal are governed by section 167(6) of the Constitution and rule
19 of the rules of this
Court. Section 167(6) provides for direct appeals from
another court “when it is in the interests of justice and with leave
of
the Constitutional Court”.
[26]
In terms of rule 19(6)(a) “[t]he Court shall decide whether or not to
grant the appellant leave to appeal.” It is well
settled that this Court
will employ its discretion to grant leave to appeal when the applicant raises a
constitutional issue and
when granting leave to appeal is in the interests of
justice.
[27]
This Court determines whether it is in the interests of justice to grant leave
to appeal through a careful and balanced weighing
up of all relevant
factors.
[28]
As noted in
Radio
Pretoria
,
[29]
“[t]he
considerations could be varied and are often case-specific but informed by the
broad requirement of whether by hearing
the case the interests of justice will
be advanced.”
[30]
The fact that this Court
would be the first court to consider the substance of the applicant’s
challenge to section 65(3) weighs
strongly against considering the issue. This
Court has often noted the disadvantages of considering complex constitutional
issues
without the benefit of another court’s judgment and
reasoning.
[30]
In
Bruce
[31]
the following was
stated:
“It is, moreover, not ordinarily in the interests of justice for a court
to sit as a court of first and last instance, in which
matters are decided
without there being any possibility of appealing against the decision given.
Experience shows that decisions
are more likely to be correct if more than one
court has been required to consider the issues raised. In such circumstances
the
losing party has an opportunity of challenging the reasoning on which the
first judgment is based, and of reconsidering and refining
arguments previously
raised in the light of such
judgment.”
[32]
While
the comments in
Bruce
were made in the context of an application for
direct access, they apply equally to this case in which the substantive
constitutional
issue was not considered by the High Court and the case was not
heard by the SCA.
[31]
The Court has also not had
the benefit of comprehensive argument from all concerned parties. While the
issue of provincial and national
competence is complex, the applicant did not
properly canvass the substantive issue in his written submissions and the
respondents
did not discuss it at all in theirs. During oral argument, the
parties advanced new arguments. Additionally, the applicant did
not join other
parties with an interest in this issue, such as the provincial and national
governments and the South African Police
Service.
[32]
My conclusion is that it is
not in the interests of justice for this Court to consider the challenge to
section 65(3) without the
benefit of judgments from the High Court or the
Supreme Court of Appeal, of extensive argument by the parties and of the
opinions
and reasoning of other interested
parties.
Right to privacy
[33]
The applicant challenges
the inspections of unlicensed premises and seizures of property authorised by
section 65(1)(b) and (d) as
violating the right to privacy guaranteed by section
14 of the Constitution.
[33]
This
issue requires an analysis of the application of section 14 to regulatory
inspections and searches of private commercial property.
I begin by summarising
the submissions presented on behalf of the parties. Then I discuss this
Court’s precedent on regulatory
inspections and the right to privacy,
followed by a consideration of American and Canadian jurisprudence on the issue.
I thereafter
apply section 14 to section 65, first evaluating the scope of the
privacy interest and whether the provisions infringe the right
to privacy and
then determining whether the infringement is reasonable and justifiable in an
open and democratic society in terms
of section 36 of the
Constitution.
[34]
The applicant argues that
the High Court erred in finding that there was no infringement of the right to
privacy because the search
did not take place in an inner sanctum. According to
the applicant, this ignores case law such as
Bernstein
,
[34]
which found that the right to privacy extends beyond the inner sanctum of a
person.
[35]
The respondents argue that
the provisions do not intrude upon the right to privacy, but for different
reasons than the High Court
employed. They contend that the applicant’s
failure to challenge entry under section 65(1)(a) directly represented an
admission
that entry was constitutional and thus precluded a challenge to the
search and seizure. This argument is not persuasive. The High
Court makes it
clear that the issue of the entry was before the
Court.
[36]
The respondents furthermore
note that section 65(1)(b) does not employ the term “search” and
therefore contend that the
subsection does not implicate the right to
privacy.
[35]
However, while section
65(1)(b) and (d) includes the words “inspect”, “examine”
and “audit”,
instead of “search”, the semantics cannot
obscure the substance. The threshold question of whether legislation authorises
a search in terms of section 14 of the Constitution cannot be answered by a
computer scan for the word “search”. A court
must evaluate the
nature and context of the power authorised by the legislation. I shall return
to the issue of whether inspections
in terms of section 65 constitute
searches.
[36]
[37]
As to the second stage of
the analysis, the applicant acknowledges the need for close regulation of the
gambling industry and that
a limitation of the right to privacy might well be
justified as an expected and necessary aspect of regulation. He argues,
however,
that the breadth of the search and seizure provisions makes them
unjustifiable on the principles stated in
Mistry
[37]
and that the legislation could achieve the same aim while requiring a
warrant.
[38]
The applicant points to two
phrases in section 65(1)(a), to which 65(1)(b) and (d) refer, as very broad.
Firstly, the inspector shall
“enter upon any licensed or unlicensed
premises which are occupied or being used for the purposes of any gambling
activities
or any other premises on which it is suspected
” that
gambling takes place.
[38]
The
applicant argues that the italicised phrase is particularly broad because it
employs a “suspected” standard rather
than “reasonable
suspicion”, and furthermore because the term “premises” is
defined as “any site, place
or location, regardless of whether it is or
forms part of any temporary or permanent structure, building, vessel, vehicle or
aircraft”.
Similar wording was deemed too broad in
Mistry
.
[39]
Secondly,
section 65(1)(a)(iii) refers to
“any gambling machine or any equipment, device, object, book, record,
note, recording or other document
used or capable of being used
in
connection with the conducting of gambling games or any other gambling
activity”.
[40]
The term “used or capable of being used” makes this
broad subsection even broader.
[39]
The respondents attempt to
show that the provisions are not broad. They recognise that “or any other
premises” in section
65(1)(a) seems to have no purpose, and attempt to
argue that it supplies the degree of proof required for a search. They also
concede
that section 65(1)(a)(iii) could include a person’s inner sanctum.
They argue, however, that the definition of licence makes
it clear that the Act
seeks to regulate certain activities and that the statute would not include
common games bet upon in homes,
such as sporting events or card
games.
[40]
The applicant argues that
the statute could achieve its purposes while requiring a warrant. He points to
the subsections in section
65 providing for a warrant to authorise
administrative inspections, which he defines as inspections for the purpose of
determining
compliance with a licence. He contrasts these provisions with the
provisions in section 65(1) relating to unlicensed premises.
Inspectors can
search unlicensed premises even in the absence of a reasonable
suspicion.
[41]
The respondents contend
that it is necessary to permit warrantless searches of unlicensed premises as
opposed to licensed premises,
because there is a fear of flight for unlicensed
operators, but not licensed ones. The respondents add that their position is
that
the statute authorises warrantless search and seizure, but does not permit
warrantless arrest. They also argue that the Act fits
into the standard for
permissible warrantless regulatory searches adopted by the United States Supreme
Court in
New York v
Burger
.
[41]
[42]
The applicant is correct
that the right to privacy extends beyond the inner sanctum of the home. This
principle was firmly established
by this Court in
Bernstein
.
[42]
Bernstein
was a follow-up to
Ferreira
[43]
challenging, in part, searches and seizures of people involved in the winding
down of a company. The Court stated that “the
scope of a person’s
privacy extends
a fortiori
only to those aspects in regard to which a
legitimate expectation of privacy can be
harboured.”
[44]
Ackermann J
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:
“The truism that no right is to be considered absolute implies that from
the outset of interpretation each right is always
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 from 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.”
[45]
[43]
The Court stated that
businesses have lower expectations of privacy as to the disclosure of relevant
information to the public and
authorities:
“The establishment of a company as a vehicle for conducting business on
the basis of limited liability is not a private matter.
It draws on a legal
framework endorsed by the community and operates through the mobilization of
funds belonging to members of that
community. Any person engaging in these
activities should expect that the benefits inherent in this creature of statute
will have
concomitant responsibilities. These include, amongst others, the
statutory obligations of proper disclosure and accountability to
shareholders.
It is clear that any information pertaining to participation in such a public
sphere cannot rightly be held to be
inhering in the person, and it cannot
consequently be said that in relation to such information a reasonable
expectation of privacy
exists. Nor would such an expectation be recognised by
society as objectively
reasonable.”
[46]
The
Court concluded that company officials voluntarily assumed a duty to assist in
investigations related to winding up. Accordingly,
there was no reasonable
expectation of privacy, and, thus, no right to
privacy.
[47]
[44]
This Court undertook its
most expansive consideration of the right to privacy in the context of
regulatory inspections in
Mistry
.
[48]
Responding to allegations of fraud in violation of the Medicines and Related
Substances Control Act 101 of 1965 (Medicines Act),
inspectors searched the
surgery of a registered medical practitioner and seized numerous items. The
Court considered whether a provision
of the Medicines Act that empowered
inspectors to enter, examine, search and seize property from any premises
reasonably suspected
to contain medicine or a scheduled substance violated the
right to privacy guaranteed by section 13 of the interim
Constitution.
[45]
The Court, per Sachs J,
explicitly refrained from determining when an inspection becomes a
“search”, because the breadth
of the statute made clear that it
infringed the right to privacy.
[49]
The statute permitted inspectors to search “any premises, place, vehicle,
vessel or aircraft” — reaching into
the inner sanctum of the home
— with only the limitation that there exist reasonable grounds to suspect
that any medicine or
scheduled substance was inside. The statute also
authorised inspection of any book, record or document found and then seizure if
the object appeared to provide evidence of contravention of the Medicines Act.
The Court noted that these provisions permitted warrantless
entry into private
homes and search of intimate possessions as long as there was a reasonable
suspicion of any medicine — including
non-prescription medication found in
all
homes.
[50]
[46]
The Court then proceeded to
the limitation analysis. After considering the nature of the privacy right and
the purpose of the limitation
by the Medicines Act, the Court analysed the
extent of the limitation. The Court reiterated that it had not been necessary
to determine
whether regulatory inspections should be regarded as searches and
seizures in terms of the right to privacy. However, the Court
noted that
whether a regulatory inspection constituted a search and seizure must be
determined on a case by case basis on an evaluation
of the invasiveness of the
inspection. The Court then applied
Bernstein
’s exposition of
privacy to regulatory inspections and stated that regulated businesses possess a
more attenuated right to privacy
the more the business is public, closely
regulated and potentially hazardous to the
public:
“The more public the undertaking and the more closely regulated, the more
attenuated would the right to privacy be and the
less intense any possible
invasion. In
Bernstein
. . . Ackermann J posited a continuum of privacy
rights which may be regarded as starting with a wholly inviolable inner self,
moving
to a relatively impervious sanctum of the home and personal life and
ending in a public realm where privacy would only remotely be
implicated. In
the case of any regulated enterprise, the proprietor's expectation of privacy
with respect to the premises, equipment,
materials and records must be
attenuated by the obligation to comply with reasonable regulations and to
tolerate the administrative
inspections that are an inseparable part of an
effective regime of regulation. The greater the potential hazards to the
public,
the less invasive the inspection. People involved in such undertakings
must be taken to know from the outset that their activities
will be monitored.
If they are licensed to function in a competitive environment, they accept as a
condition of their licence that
they will adhere to the same reasonable controls
as are applicable to their competitors. Members of professional bodies, for
example,
share an interest in seeing to it that the standards, reputation and
integrity of their professions are
maintained.”
[51]
[47]
Thus, periodic inspections
of health professionals’ business premises would have “entailed only
the most minimal and easily
justifiable invasions of privacy, if they had
qualified as invasions of privacy at
all.”
[52]
However, the
challenged provision was so broad and unrestricted in its reach as to authorise
inspectors to enter any person’s
home upon a reasonable suspicion that any
medicine was contained within.
[48]
The Court concluded that
the statute could have achieved its ends through other means less damaging to
the privacy right, namely the
requirement of a warrant. While a warrant
requirement might be nonsensical if the statute had provided only for periodic
regulatory
inspection of the premises of health professionals, as a prior
warrant could frustrate the objectives behind the search, there was
no reason
not to require a warrant for searches that could extend to a private home. The
Court emphasised that it would be incongruous
to require police officers, who
are trained to search homes, to obtain warrants, but not to require the same
from inspectors, who
are not so trained. Additionally, the statute does not
provide sufficient guidance to inspectors to know the precise framework to
carry
out their
functions.
[53]
[49]
Accordingly, the Court held
that the provision failed the constitutional limitation analysis. The Court
concluded that the provision
could not be read down and declared it
invalid.
[50]
In summary, therefore, the
threshold inquiry into whether the inspection infringes the right to privacy is
determined by reference
to the concentric circles, or, what Sachs J in
Mistry
(referring to
Bernstein
) called a continuum of privacy.
The limitation analysis in terms of section 36 involves a proportionality
review.
[54]
A court has to consider
an applicant’s expectation of privacy and the breadth of the legislation,
among other considerations.
The expectation of privacy will be more attenuated
the more the business is public, closely regulated and potentially hazardous
to
the public. Legislation may not be so broad as to have the real potential to
reach into private homes. In assessing whether
legislation could have achieved
its desired ends through less damaging means, a court will determine whether the
legislation could
have required a warrant, and a court will consider whether a
warrant requirement would frustrate the state’s regulatory objectives
and
whether in the absence of a warrant the legislation provides sufficient guidance
to inspectors as to the limits of the
inspections.
[51]
A careful consideration of
the constitutional standard for regulatory inspections of commercial premises
should include a review of
relevant foreign jurisprudence on the
issue.
[55]
The Supreme Courts of
the United States and Canada have given considerable attention to the issue of
regulatory inspections of commercial
premises, and cases from those
jurisdictions, along with others, have previously been cited by this
Court.
[56]
What follows is a
summary of the positions in the United States and
Canada.
[52]
The Fourth Amendment of the
United States Constitution protects against both unreasonable and warrantless
searches and seizures.
[57]
The
United States Supreme Court appears to take for granted that administrative
inspections constitute “searches” under
the Fourth Amendment. The
cases have focused on when to find an exception to the general rule requiring
warrants for inspections
of private commercial property. The Court has
fluctuated on the scope of the exception to the warrant requirement, with its
latest
jurisprudence creating a broad exception for regulatory
inspections.
[58]
[53]
The Court has held that
greater latitude is given for inspections of commercial property, because the
owners enjoy less of an expectation
of privacy than owners of private homes and
because the privacy interest of the commercial property owners may adequately be
protected
by the regulatory
schemes.
[59]
Whether the regulation
of an industry is pervasive and regular is the key determinant for whether there
is a reduced expectation
of privacy that would lessen the application of the
warrant and probable-cause requirements that fulfil the traditional Fourth
Amendment
reasonableness standard. The history of the regulation of an industry
is an important factor in determining pervasiveness, but is
not a necessary
condition.
[60]
[54]
Warrantless inspections
must be reasonable. The Court has articulated a three-pronged test for
reasonableness: (1) there must be
a substantial government interest, (2) the
absence of a warrant requirement must be necessary to further the regulatory
scheme and
(3) the statute must serve as a constitutionally adequate substitute
for a warrant. The latter part of the test requires that the
statute must alert
the subject of the search that the inspection is lawful and limited in scope.
Additionally, the inspection must
be limited in time, place and scope. Finally,
the administrative inspection may not serve as a pretext to avoid the warrant
requirements
for criminal searches. However, the inspections may have the same
ultimate purpose as parallel criminal statutes and inspectors
can discover
evidence of
crimes.
[61]
[55]
When the Court finds that a
warrant is required, it mandates a lower probable-cause standard for granting
the warrant. Probable cause
for a search warrant can be based on a showing that
the specific business was chosen for inspection from neutral sources as part
of
a reasonable legislative or administrative plan for conducting an area
inspection and that there existed a valid public interest
to support the general
plan.
[62]
[56]
As in South Africa, the
Canadian Charter of Rights and Freedoms mandates a two-stage inquiry into
challenges based on the right to
privacy. Section 8 of the Charter provides
that everyone has the right to be secure against unreasonable search or seizure.
Section
1 states that the Charter guarantees the rights and freedoms set out in
it subject only to such reasonable limits prescribed by law
as can be
demonstrably justified in a free and democratic society. In
Hunter v Southam
Inc
[63]
the Supreme Court of Canada articulated the nature of the interests protected by
section 8, the standard of reasonableness under
that section and the importance
of a warrant in the protection of privacy interests. Subsequent cases
considering regulatory inspections
and searches focus in large part on whether
the case invokes section 8 and whether the search constitutes an exception to
the
Hunter
standard. The Court considers administrative inspections
“searches” that invoke the protections of section 8 of the Charter,
deeming it undesirable to construct an arbitrary line between types of state
intrusions.
[64]
[57]
In the second stage of the
analysis, the Court scrutinises a search less stringently the further it moves
from traditional criminal
law. Where an administrative inspection approaches
the type of state intrusion associated with criminal or quasi-criminal searches,
the Court applies the
Hunter
standard of reasonableness, requiring a
warrant.
[65]
The Court deviates from the
Hunter
standard only when administrative
statutes authorise powers for compliance, not
enforcement.
[66]
[58]
In applying a lower
standard of reasonableness to administrative inspections, the Court places great
weight on the lower reasonable
expectation of privacy (with an emphasis on the
imperative of state regulation and the status of state regulation as a regular
and
predictable part of
business).
[67]
The Court also stresses the diminished degree of intrusion in administrative
inspections
[68]
and considers
whether the inspections are “sufficiently
circumscribed”.
[69]
The
interests of society in regulation are balanced against the rights of the
individual.
[70]
[59]
The
preceding analysis leads to a number of conclusions. In
Mistry
this
Court refrained from deciding when a regulatory inspection would constitute a
“search” in terms of the constitutional
right to
privacy.
[71]
Both the United States
and Canada consider all regulatory inspections “searches” for the
purpose of the threshold question
of whether the inspection falls within the
scope of the privacy interest. In my view this approach is sound. It
recognises that
“[d]espite its less invasive nature, inspection is
unquestionably an
‘intrusion’.”
[72]
The notion that an inspection constitutes an intrusion, albeit a less invasive
one, invoking the right to privacy is consistent
with our constitutional notion
of concentric circles of the privacy right. Additionally, it would be
undesirable to impose at the
threshold inquiry an arbitrary demarcation line
between degrees of intrusion that would invoke the constitutional right to
privacy.
Such line drawing would have the negative effect of placing certain
administrative inspections beyond the reach of judicial
review.
[73]
I therefore conclude
that section 65(1) limits the right to privacy entrenched in section 14 of the
Constitution. It is now necessary
to consider whether the limitation passes
constitutional muster.
[60]
Section
36 of the Constitution provides a structure for our analysis of administrative
inspections
[74]
and governs the
situations in which constitutional rights may be
limited:
“(1) The rights in the Bill of Rights may be limited only in terms of law
of general application to the extent that the limitation
is reasonable and
justifiable in an open and democratic society based on human dignity, equality
and freedom, taking into account
all relevant factors,
including—
(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)
less restrictive means to achieve the
purpose.
(2) Except as provided in subsection (1) or in any other provision of the
Constitution, no law may limit any right entrenched in
the Bill of
Rights.”
[61]
This Court held in
Makwanyane
[75]
that the limitation analysis involves proportionality and that there is no
absolute standard for determining reasonableness and justifiability.
The Court
held:
“Principles can be established, but the application of those principles to
particular circumstances can only be done on a case-by-case
basis. This is
inherent in the requirement of proportionality, which calls for the balancing of
different
interests.”
[76]
[62]
Thus, section 36 compels a
court to balance all relevant factors. The first factor, the nature of the
right, 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.
[63]
This
Court in
Mistry
described the essential nature of the right to privacy as
protected in section 14 of the Constitution and the means through which
section
14 repudiates repugnant past practices and re-affirms others consistent with the
new constitutional values:
“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
systematised 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
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.”
[77]
[64]
The Court in
Mistry
also quoted the words of Jackson J, referring to the Fourth Amendment of the
United States Constitution protecting against unreasonable
searches and
seizures, written not long after he acted as a prosecutor at
Nuremberg:
“These, I protest, are not mere second-class rights but belong in the
catalog of indispensable freedoms. Among deprivations
of rights, none is so
effective in cowing a population, crushing the spirit of the individual and
putting terror in every heart.
Uncontrolled search and seizure is one of the
first and most effective weapons in the arsenal of every arbitrary government.
And
one need only briefly to have dwelt and worked among a people possessed of
many admirable qualities but deprived of these rights
to know that the human
personality deteriorates and dignity and self-reliance disappear where homes,
persons and possessions are
subject at any hour to unheralded search and seizure
by the
police.”
[78]
[65]
The second factor, the
importance of the purpose of the limitation, 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. It is not surprising that this factor is crucial in
the United States, as the first necessary condition in the three-pronged
test,
and in Canada, as a key aspect of the balancing inquiry. Regulatory statutes
aim at protecting the public health, safety and
general welfare. The court must
carefully review the public interest served by the statutory provision and
determine the weight
that this purpose should carry in the proportionality
review.
[66]
The third factor is the
nature and extent of the limitation. In the context of a regulatory inspection
of commercial private property,
there are at least three issues that will have a
bearing on the nature and extent of the limitations, namely (1) the level of the
reasonable expectation of privacy, (2) the degree to which the statutory
provision resembles criminal law and (3) the breadth of
the
provision.
[67]
The commercial property
occupier’s lower expectation of privacy is an important consideration for
the extent of the limitation.
As recognised in
Bernstein
, as a
person’s privacy interest is more attenuated and as the individual has a
lower reasonable expectation of privacy, the
scope of that individual’s
personal space shrinks and the individual’s right to privacy may be
limited further by the
rights accruing to other
citizens.
[79]
The
individual’s expectation of privacy will vary, based on the particular
context of the statutory provision and the information
obtained and premises and
objects
searched.
[80]
[68]
Mistry
listed a
number of respects in which the proprietor of a business generally has a reduced
expectation of privacy. Reasonable regulations
and inspections are an
“inseparable part of an effective regime of regulation.”
[81]
The more a business creates
potential hazards to the public, the more important and less invasive the
inspection. People involved
in certain businesses must be taken to know that
their activities will be
monitored.
[82]
American cases
emphasise the importance of the awareness by people involved in pervasively
regulated industries, and especially
industries with long histories of
government regulation, that they will be subject to
inspections.
[83]
The Canadian case
of
Thomson Newspapers
[84]
adds that the owner of private commercial property has a lower expectation of
privacy, because the inspections will not intrude into
the individual’s
private life, regulations are imperative to ensure compliance, they protect
individuals against private power
and they are a regular and predictable part of
doing business.
[69]
Whether the inspection
involves a search for criminal evidence is an important measure of the extent of
the limitation. A warrantless
search aimed at criminal prosecution will
constitute a greater intrusion and an owner has a greater expectation of privacy
regarding
the risk of criminal prosecution, even in the context of commercial
private property.
[70]
Provisions that more
closely resemble traditional criminal law require closer
scrutiny.
[85]
Factors in assessing
each case include the nature of the conduct addressed by the provision, the
purpose for which it was designed
and the civil or criminal nature of the
sanctions for violating the
provision.
[86]
The more the purpose
of the provision and the intent of the inspectors is to obtain evidence for
criminal prosecution, the greater
the limitation of the right to privacy. The
distinction often will be between compliance and enforcement. Inspections aimed
at
compliance — characterised as “the random, overarching
supervision of an industry at large, with particular actors within
that industry
‘targeted’ without particular regard to any pre-existing objective
save the integrity of the scheme of
regulation in
general”
[87]
— are less
like criminal searches and impose lesser limitations on the right to privacy.
Searches aimed at enforcement —
characterised as “a focused
investigation of a particular actor under that regime, often with a view to
quasi-penal consequences”
[88]
— are more like criminal searches, especially if the sanctions under the
regulatory provision are essentially criminal or if
the target can be charged
under a criminal statute. Not every case will be amenable to such a clear
distinction between compliance
and enforcement and some cases involving
enforcement might not be characterised as those in which the inspectors intend
to obtain
evidence for criminal prosecution. The fact that an inspector
responded to a complaint, or found evidence of a criminal violation
during the
inspection, might not be conclusive of an inspection aimed at criminal
prosecution.
[89]
The assessment
must be made on the facts of each case.
[71]
Mistry
provides that
the breadth of the provision is an important determinant of the extent of the
limitation.
[90]
The provision must
be “sufficiently circumscribed” so as to limit the discretion of the
inspector as to the time, place
and scope of the
search.
[91]
Overbreadth may cause
at least three problems. An overbroad provision may fail to inform the occupier
of the limits of the inspection,
and may even leave the inspector without
sufficient guidelines with which to conduct the inspection within legal limits.
It also
permits greater privacy intrusions, extending beyond circumstances in
which the reasonable expectation of privacy is low, to situations
in which the
reasonable expectation of privacy is at its apex. Thus the Court in
Mistry
mentioned the “lack of qualification of the powers of entry
and inspection given to the
inspectors”.
[92]
The
provision in
Mistry
imposed no requirement other than that the
inspector’s powers be exercised at reasonable times; it permitted
inspections of
a wide range of property, potentially including private homes,
and it authorised entrance and inspection merely upon the reasonable
suspicion
that medicine or a scheduled substance was
present.
[93]
[72]
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
regulatory inspections in the public interest must have a strong relationship
to
the limitation of the privacy right, because the inspection aims at protecting
the public interest.
[73]
The final listed factor in
determining whether the limitation is reasonable and justifiable is whether
there exists a less restrictive
means to achieve the purpose. This factor is
important for the question whether the limitation of the right to privacy caused
by
the inspection is proportionate to the purpose of the legislative provision.
In most cases, a highly relevant question will be whether
the provision could
have achieved its purpose even if it required a warrant prior to the
search.
[94]
[74]
Exceptions to the warrant
requirement should not become the rule. 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 upon 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.
[95]
The warrant
guarantees that the state must justify and support intrusions upon
individuals’ 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 of the
state to protect the public interest
compels an exception to the warrant
requirement. In certain cases regulatory inspections aimed at protecting the
public health,
safety and general welfare will require such an
exception.
[76]
In the context of
regulatory searches aimed at criminal prosecution, the state will be
hard-pressed to show the need for provisions
authorising warrantless searches.
Searches aimed at criminal prosecution offer the greatest invocations of the
purposes of the warrant
requirement. The need for surprise is preserved through
warrants, which could be obtained on an ex parte
basis.
[96]
There may, however, be
instances where warrantless searches are justified, such as those provided for
in the
Criminal Procedure
Act.
[97
]
[77]
Legislation
authorising warrantless regulatory inspections must provide a constitutionally
adequate substitute for a warrant. This
would create certainty and regularity
in the application of the inspections sufficient to inform the commercial
property owner of
the legality and properly defined scope of the inspection and
to limit the discretion of the inspectors. The legislation should
be
sufficiently comprehensive and defined so that the property owner must be taken
to be aware that the property will be subject
to periodic inspections undertaken
for a specific purpose. The discretion of the inspectors should be limited as
to time, place
and
scope.
[98]
[78]
These
considerations must be applied to the impugned provisions in this case. It is
important to note that section 65 of the Act
governs two types of inspections.
It authorises inspections of licensed premises as well as unlicensed premises.
Section 65(1)
to (3) applies to both types of inspections. Section 65(4)
applies only to “administrative inspections to check for compliance”
by licensed and associated entities. The applicant limits his constitutional
challenge to inspections of unlicensed premises. Accordingly,
the issue of the
constitutionality of the section as to inspections of licensed premises is not
before the Court.
[79]
Following my earlier
finding that all regulatory inspections constitute “searches” for
the purposes of the threshold question
of whether the inspection infringes upon
the right to privacy, the inspection of Las Vegas Gold in accordance with
section 65 was
a search as referred to in section 14 of the Constitution. The
question therefore is whether the limitation of the right to privacy
by section
65 is reasonable and justifiable in an open and democratic society based on
human dignity, equality and freedom in terms
of section 36 of the
Constitution.
[80]
The essential
constitutional nature of the right to privacy and its connection to past
practices and present constitutional values
have been discussed by this Court in
Mistry
[99]
and need not be
repeated.
[81]
As to the importance of the
purpose of the limitation, section 65 obviously serves a beneficial public
purpose. The Preamble of the
Act makes clear that the Act aims to protect the
public confidence and trust and the health, safety, general welfare and good
order
of the inhabitants of the province through the strict regulation of
institutions and individuals involved in the gambling
industry.
[100]
The importance of
this general purpose is beyond question. An effective inspection scheme, as
intended by section 65, is crucial
to ensuring compliance with and enforcement
of the regulations prescribed by the Act. Section 65 plays a necessary role in
furthering
the important public purposes of the
Act.
[82]
As to the nature and extent
of the limitation, gambling is an activity that could pose a threat to
individuals’ psychological,
financial and even physical health, as well as
those of their families and communities. Regulation is essential to protect
participants
in the gambling industry and the general public. The gambling
industry is a pervasively regulated industry. Schedule 4 Part A of
the
Constitution lists gambling as a functional area of concurrent national and
provincial legislative competence, and the provisions
of the
National Gambling
Act 7 of 2004
and the North West Gambling Act show that both national and
provincial legislation regulate the industry. The preambles of both
statutes
proclaim the necessity of regulation to safeguard the
public.
[101]
In terms of the
North West Gambling Act participation in the gambling industry requires a
licence. Participants in licensed industries
must be taken to expect regular
inspections.
[102]
Casino
operators generally would have a low expectation as far as the protection of
privacy is concerned, as the inspection will
reach well outside their inner
sanctum. In this respect their position differs vastly from the residential
poker or bridge player.
[83]
The extent of the
limitation is heightened by the possible implications of provisions of the Act
for criminal proceedings. While
the Act aims at economic
regulation,
[103]
it also seeks to
prevent illegal gambling. Thus, the Preamble states in part: “AND WHEREAS
the Provincial Legislature has
recognized the need for such legislation in order
to prevent the conduct of illegal gambling activities in the Province”.
The statute provides for criminal sanctions. Section 82 lists offences for
violating the Act and provides that violators “shall
be guilty of an
offence and on conviction be liable to a fine or to imprisonment for a period
not exceeding 10 years or to both such
fine and
imprisonment.”
[84]
Section 65, to the extent
that it authorises searches of unlicensed premises, indicates a statutory
purpose of facilitating raids
aimed at collecting evidence for criminal
prosecution. The provision empowers inspectors to inspect any unlicensed
premises based
on suspicion that gambling is taking place therein or that
gambling objects are located within the
premises.
[104]
This constitutes
enforcement, not compliance, as the catalyst for the inspection is suspicion of
illegality.
[85]
The facts of this case
illustrate the provision’s aim of collecting evidence for criminal
prosecution through the inspection
of unlicensed premises. The inspectors
launched their raid following a report of unlicensed gambling activity and
evidence from
an undercover operation. Furthermore, the inspectors knew that
Las Vegas Gold was unlicensed. Mr Erasmus conceded in his affidavit
before the
High Court that –
“[h]ad such a licence ever been applied for or processed by the Board,
authorising Mr Magajane or anyone else to carry out
a gambling business at the
premises, I would have been aware of the application and
process.”
The applicant faced criminal prosecution
based on the evidence found during the search.
[86]
The aim of section 65 in
its provision for searches of unlicensed premises to collect evidence for
criminal prosecution weighs strongly
against the reasonableness and
justifiability of those aspects of the section. A search aimed at criminal
prosecution constitutes
a significantly greater intrusion than a regulatory
inspection aimed at compliance.
[87]
The provisions of section
65 relating to searches of unlicensed premises are broad. The section empowers
inspectors to enter and
search unlicensed premises which are occupied or being
used for the purposes of any gambling activities or any other premises on
which
it is suspected that gambling takes
place.
[105]
By authorising
searches based only on a suspicion, rather than a reasonable suspicion, that the
premises house gambling facilities
or activities the statute permits a vast
array of searches. This is compounded by the broad definition of
“premises”
as “any site, place or location, regardless of
whether it is or forms part of any temporary or permanent structure, building,
vessel, vehicle or
aircraft”.
[106]
The scope
of premises that can be searched is broadened even further by section
65(1)(a)(iii), which includes any premises in which
it is suspected
–
“that any gambling machine or any equipment, device, object, book, record,
note, recording or other document used or capable
of being used in connection
with the conducting of gambling games or any other gambling activity may be
found.”
The breadth of this subsection is increased by
the phrase “used or capable of being used”. Presumably, this
subsection
would include any notebook or any item of furniture that is
“capable of being used” for gambling, even though it never
has been
used for such purposes.
[88]
In the context of
warrantless searches aimed at obtaining evidence for criminal prosecution, the
overbreadth creates an impermissible
threat to the right to privacy. Section 65
does not narrowly target only those premises whose owners possess a low
reasonable expectation
of privacy; the statute permits inspectors to reach into
a person’s inner sanctum. The section fails to guide inspectors as
to how
to conduct searches within legal limits, and it leaves property owners unaware
of the proper limits to the invasion of their
privacy. The boundaries of a
permissible search of unlicensed premises could be delineated and protected by a
warrant, but section
65 permits warrantless searches of unlicensed
premises.
[89]
The applicant appears to
accept that section 65 does serve its purpose of achieving compliance with and
enforcement of the provisions
of the Act. The facts of this case illustrate
that the inspections may uncover gambling businesses operating without a
licence,
at least in some instances. The concern, however, is that the breadth
of section 65 makes enforcement searches less targeted. Presumably,
less
targeted inspections will be less effective in achieving the purposes of
enforcement inspections and will be more intrusive
to privacy
interests.
[90]
Are less restrictive means
to achieve the purpose available? The respondents have not shown why section 65
could not have achieved
its purpose while requiring that inspectors obtain a
warrant before searching unlicensed premises. As these searches aim to collect
evidence for criminal prosecution, subjects of the searches require the
protection of warrants as embodied in Chapter 2 of the
Criminal Procedure
Act.
>
[91]
It is startling that
section 65
provides for warrantless searches of unlicensed premises when it
requires administrative warrants for inspection of licensed premises.
The
statute expressly states that these administrative warrants, extensively
provided for in
section 65(6)
to (12), “shall be in accordance with the
Criminal Procedure Act,
1977
”.
[107]
There appears
to be no reason to believe that a warrant requirement would interfere with the
purpose of
section 65
for unlicensed premises, while it would not for licensed
premises. Indeed, it would seem that the occupiers of unlicensed premises
might
often have a greater privacy interest than those of licensed premises.
Inspections of unlicensed premises will aim at enforcement,
while inspections of
licensed premises can serve compliance or enforcement goals (or both).
Additionally, warrantless searches of
unlicensed premises carry greater risks of
error and abuse. While inspectors are certain that gambling takes place in
licensed premises,
inspectors might search unlicensed premises based on a
suspicion that the premises are being used for
gambling.
[108]
Inspections of
licensed premises thus will typically be more targeted and specific and
accordingly pose a lesser risk of infringing
upon an individual’s
reasonable expectation of
privacy.
[109]
[92]
The respondents have not
provided any support for their contention that warrantless searches of
unlicensed premises are necessary
to avoid flight. The only possibility would
be that evidence could disappear while a warrant is being sought. This is
unlikely
to happen where, for example, the premises contain sizable gambling
equipment. The inspectors in this case certainly did not have
this concern, as
they waited four days from when they received the report of illegal gambling
until they raided Las Vegas Gold.
Should inspectors legitimately fear flight,
they can avail themselves of the provisions covering such circumstances in the
Criminal Procedure
Act.
[110
]
[93]
It
is telling that a number of other provinces require warrants for inspections of
unlicensed premises.
Section 14
of the Western Cape Gambling and Racing Law 4
of 1996 contains separate provisions for inspections of licensed and unlicensed
premises.
Section 14(4)
permits warrantless searches of licensed premises.
Section 14(4A)
, however, authorises searches of unlicensed premises with a
warrant and based on a reasonable suspicion standard. Similarly, section
84 of
the KwaZulu-Natal Gambling Act 10 of 1996 and sections 76 and 78 of the Northern
Cape Gambling and Racing Act 5 of 1996 permit
warrantless searches of licensed
premises, but require warrants for searches of unlicensed premises (based on a
suspicion
standard).
[111]
[94]
Taking into account all
relevant factors, the provisions in section 65 governing searches of unlicensed
premises cannot be deemed
reasonable and justifiable. These provisions serve
the worthy goal of ensuring enforcement of the statute’s regulation of
the
gambling industry. However, while the owner or occupier of a gambling business
generally will have a low reasonable expectation
of privacy in the gambling
premises, the provisions relating to unlicensed premises aim at collecting
evidence for criminal prosecution
and thus constitute significant intrusions.
The breadth of the provisions extends the scope of permissible searches beyond
situations
in which the expectation of privacy is low, potentially reaching to
innocent activity in private homes. The breadth of the provisions
also gives
inspectors too much discretion in their searches, endangering the privacy of
property owners and occupiers who are not
adequately informed of the limits of
the inspection. Finally, section 65 could achieve its purpose of promoting
enforcement of the
Act, while more appropriately protecting the privacy rights
of the subjects of searches. Section 65 should require inspectors to
obtain
warrants before searching unlicensed premises. A warrant would mitigate to some
extent the effects of the statute’s
broad scope, as a neutral officer
would weigh the state’s justifications for the inspection and would
stipulate the time, place
and scope of the search. Inspectors and police
officers would not be prevented from conducting investigations by a warrant
requirement.
Like any member of the public, inspectors and police officers may
enter gambling premises and engage in gambling activities as part
of an
investigation. Such activity would not amount to a
search.
[95]
I repeat that this
conclusion is reached in the light of the fact that there is an absence of
proportionality between the extent of
the limitation of the right to privacy
occasioned by section 65(1) keeping in mind an understanding of the importance
of the right
to privacy in our democracy, on the one hand, and the purpose and
effect of section 65 on the other. In considering the purpose
and effect of
section 65(1), I have taken into account whether there are less restrictive
means available to the government to achieve
the purpose of the
section.
[112]
It is clear that
given that section 65, as it relates to unlicensed premises, aims at collecting
evidence for criminal prosecution,
considerable limitations on the right to
privacy may occur. On the other hand, the searches of homes or other premises
not involved
in the gambling industry, which could be authorised by the section,
is not closely related to the overall purpose of the Act which
is to regulate
gambling, particularly commercial gambling. Section 65(1) could achieve its
purpose through the requirement of a
prior warrant. The conclusion is bolstered
by the reasons which informed our judgment in
Mistry
. Given the
potential invasion of privacy permitted by section 65(1), the breadth of the
provision and the availability of a warrant
as a less restrictive means to
achieve the purposes of the section, section 65(1) is not reasonable and
justifiable in terms of section
36. I conclude, therefore, that it is
unconstitutional.
[96]
The applicant managed a
business operation apparently conducting unlicensed gambling activity in public.
That conduct is unacceptable.
However, the statutory provision with which we
are concerned in this case is not a neatly tailored provision allowing for
controlled
and circumscribed inspections of unlicensed premises in which
commercial gambling activity is conducted in public. It is not advisable
to
speculate on what the outcome of a constitutional investigation might have been
if the provision had in fact been so
tailored.
Remedy
[97]
If it would be possible to
sever the invalid provisions from section 65 and the remainder would give effect
to the purpose of the
law, then severance would be preferable to striking
down.
[113]
However, the structure
of section 65(1) and (2) compels the conclusion that the appropriate remedy is
to strike down the two subsections.
Section 65(1)(a) establishes the premises
which inspectors may enter. The provision intertwines licensed and unlicensed
premises
so that it would be difficult to unravel the authorisation to enter
licensed premises and unlicensed premises. The remaining provisions
of section
65(1) depend upon section 65(1)(a). Thus, section 65(1)(b) empowers the
inspector to perform a number of functions “with
regard to any premises
referred to in paragraph (a)”. Section 65(1)(c) provides that the
inspector shall require a number
of things from “any person who is deemed
or appears to be in charge of any premises referred to in paragraph (a)”.
While
section 65(1)(d) does not contain similar language, it must be taken as
authorising seizure and removal only from premises referred
to in section
65(1)(a). Section 65(1)(b) to (d) repeatedly references “other document
[or documents] referred to in paragraph
(a)”,
[114]
and section
65(1)(b)(iv) defines premises that inspectors can inspect and examine with
reference to section 65(1)(a).
[98]
The intertwining of
licensed and unlicensed premises in section 65(1)(a) and the references to the
parts of that paragraph relating
to unlicensed premises in the remainder of
section 65(1) make severance difficult and
undesirable.
[115]
Accordingly
section 65(1)(a) must be struck out in its entirety. The structure of section
65(1)(b) to (d) and the references to
section 65(1)(a) require that those
paragraphs also be struck out. It follows that section 65(2) must be struck out
as well, as
that provision applies only to inspectors “[w]hen performing
any function in terms of subsection (1)”. However, the
remainder of
section 65 stands on its own and is not
affected.
[116]
[99]
It is not in the interests
of justice to suspend the order of invalidity of section 65(1) and (2).
Inspectors and the police can
still enforce violations of the Act without
section 65(1) and (2). Inspectors can investigate alleged violations of the
Act, and
the police can use their powers under the
Criminal Procedure Act to
conduct searches with warrants. Inspectors can continue to conduct
administrative inspections of licensed premises to ascertain
compliance pursuant
to
section 65(4)
to (12).
The right
to remain silent
[100]
The applicant does not
point to any specific question, but rather raises a broad challenge to the
statute as violating his right to
remain silent. He refers to three provisions
of the Act. Section 65(1)(b)(ii) empowers an inspector to question any person
who
is on or in the targeted premises and to inspect any activities in
connection with the conduct of any gambling activity. Section
65(1)(c)(iii)
provides that an inspector can “require any person who is deemed or
appears to be in charge of” the premises
“to provide any information
in connection with anything which has been pointed out or produced in terms of
subparagraph (i)
or (ii)”. Section 82
provides:
“Any person who—
(a) contravenes or fails to comply with any provision of this Act . . .
. . . .
(e) hinders or obstructs any police officer or inspector in the performance of
his or her functions under this Act;
(f) gives an explanation or information to a police official or inspector which
is false or misleading, knowing it to be false or
misleading;
. . . .
shall be guilty of an offence and on conviction be liable to a fine or to
imprisonment for a period not exceeding 10 years or to
both such fine and
imprisonment.”
[101]
The applicant argues that
section 65(1)(b)(ii) and (c)(iii), read with section 82, requires him to provide
potentially self-incriminating
information in violation of the right to freedom
and security of the person (section 12(1) of the Constitution) and the right to
a fair trial (section 35 of the
Constitution).
[117]
While the
applicant acknowledges that section 82 — and particularly section 82(a)
— could be read so as not to create
an offence for the failure to answer
questions, he contends that the possibility that section 82(a) creates an
offence places the
questioned person in the impossible situation of checking
whether to risk self-incrimination or violate section 82(a). He asserts
that
the provisions at least should contain a proviso that information obtained is
not admissible in any ensuing criminal
proceeding.
[118]
[102]
There
may well be some merit in the concerns raised by the applicant. However, it is
not necessary for this Court to reach this issue.
The provisions of section
65(1) authorising an inspector to enter an unlicensed premises without a warrant
are unconstitutional
and invalid. The inspector, therefore, was not authorised
to question the applicant, a manager of an unlicensed business, in terms
of
section 65(1)(b)(ii) and (c)(iii). In view of the striking down of the bulk of
section 65, the provincial legislature may wish
to reflect carefully on its
purpose and the issues raised in connection with it, in deciding whether and how
to formulate a new provision
to replace
it.
Conclusion and costs
[103]
From the above it follows
that leave to appeal must be granted. Furthermore the appeal against the
judgment of the High Court must
be upheld. The High Court erred insofar as it
found that section 65(1) does not violate the right to privacy as protected in
section
14 of the Constitution. Section 65(1) and (2) is therefore
unconstitutional and invalid. The order of the High Court, including
the order
as to costs, has to be set aside. The applicant does not seek costs. No order
as to costs in this Court is therefore
made.
Order
[104]
It is ordered as
follows:
1. The application for leave to appeal is granted.
2. The appeal is upheld.
3. The order of the High Court, including the order regarding costs, is set
aside and replaced with the following:
“Section 65(1) and (2) of the North West Gambling Act 2 of 2001 is
inconsistent with the Constitution and is therefore
invalid.”
Langa CJ, Moseneke DCJ,
Madala J, Mokgoro J, Ngcobo J, Nkabinde J, O’Regan J, Sachs J, Skweyiya J
and Yacoob J concur in the
judgment of Van der Westhuizen J.
For the applicant: N Jagga instructed by Nienaber & Wissing
Attorneys
For the respondent: M Donen SC instructed by the State
Attorney, Mafikeng
[1]
The text of section 65 follows
below in para 4 and a description of the Act and section 65 follows below in
paras 16-21.
[2]
On 28 September 2005, one week
before the applicant filed his application to this Court, the North West
Gambling Amendment Act 5
of 2005 came into effect. See North West Extraordinary
Provincial Gazette 6216, 28 September 2005. This law amended the North West
Gambling Act in a variety of ways, such as prohibiting the possession of
gambling machines without a licence. The amendment made
no changes to section
65 and neither party contended that the amendment has any bearing on this
case.
[3]
Section 65(1)(b)(i) provides
that an inspector shall “require the production of any licence or written
permission or authorisation
to conduct gambling activities from the person who
is in control of such premises”.
[4]
Another inspector involved in
the raid confirmed in an affidavit to the High Court that the police officer
carried out the arrests.
[5]
The criminal charge against Mr
Magajane was withdrawn for want of prosecution.
[6]
The record contains an
affidavit by the owner of Las Vegas Gold, Mr Ioannis Apostolopoulos of Greece,
who declares his full support
for the application by Magajane.
[7]
The seized property remained
locked on the premises under the control of the Board, pursuant to an agreement
between the applicant
and the Board. The property was returned to the applicant
following the withdrawal of the criminal charge against him.
[8]
Isak Metsing Magajane v The
Chairperson of the North West Gambling Board and Others
case number 1008/04,
12 December 2004, unreported. The applicant spelled his name “Isak”
in the High Court, but spells
it “Isaac” in this Court.
[9]
The High Court also rejected
the respondents’ objection that the applicant had not shown that he was
the owner of the seized
property. The respondents do not persist in that
argument before this Court.
[10]
Preamble.
[11]
Sections 3 and 4.
[12]
Sections 4-23.
[13]
Chapter 12.
[14]
Chapter 13.
[15]
Chapter 15.
[16]
Chapters 14 and 16.
[17]
Section 65(1)(b)(i).
[18]
Section 65(1)(b)(ii).
[19]
Section 65(1)(b)(ii) –
(v), (vii) and (ix).
[20]
Section 65(1)(b)(vi).
[21]
Section 65(1)(b)(viii).
[22]
Section 65(4) provides:
“The inspectorate is authorized to make administrative inspections to
check for compliance by any applicant, licensee, registrant,
subsidiary company
or holding company with the provisions and regulations of this
Act.”
[23]
In
Safcor Forwarding (Johannesburg) (Pty) Ltd v National Transport
Commission
1982 (3) SA 654
(A), the facts of which are not entirely on all
fours with this case, the High Court dismissed a suit because the plaintiff
cited
only the National Transport Commission as a party and failed to cite the
chairperson. The Appellate Division reversed, holding at
672 that Rule 53(1) of
the Uniform Rules of Court “requires the notice of motion to be directed
and delivered to the chairman
of the board in his representative capacity for
and on behalf of the board. It does not require the separate citation of the
board
itself”. The Court reasoned as follows at 671E-G:
“I cannot think that this was ever the intention underlying the Rule.
Admittedly the Rule does introduce a change as far as
statutory boards are
concerned. Whereas before it was necessary to cite merely the board
eo
nomine
, now the Rule requires the citation of the chairman of the board. But
that is a far cry from interpreting the Rule as now requiring
the citation of
two separate parties in place of one. For I cannot see what purpose could
possibly be served by such a proliferation
of parties. Taking this case as being
illustrative of the general position, the chairman of the Commission has no
personal interest
in the matter: he is interested merely in his representative
capacity. And in that capacity he has no interest separate and distinct
from the
Commission
itself.”
[24]
Section 65(3) is quoted above at para 4. The
National Gambling Act 7 of 2004
contains a similar provision.
Section 76(3)
of the
National Gambling Act
provides
:
“For the purpose of this Act or any other national or provincial law in
respect of gambling and associated activities, an inspector
is deemed to have
been appointed a peace officer for the purposes of the relevant sections of the
Criminal Procedure Act, 1977 (Act
No. 51 of
1977).”
[25]
Section 334(1) provides:
“(a) The Minister may by notice in the
Gazette
declare that any
person who, by virtue of his office, falls within any category defined in the
notice, shall, within an area specified
in the notice, be a peace officer for
the purpose of exercising, with reference to any provision of this Act or any
offence or any
class of offences likewise specified, the powers defined in the
notice.
(b) The powers referred to in paragraph (a) may include any power which is not
conferred upon a peace officer by this
Act.”
[26]
Section 167(6) provides:
“National legislation or the rules of the Constitutional Court must allow
a person, when it is in the interests of justice
and with leave of the
Constitutional Court—
(a) to bring a matter directly to the
Constitutional Court; or
(b) to appeal directly to the Constitutional Court from any other
court.”
[27]
See
African Christian
Democratic Party v The Electoral Commission and Others
[2006] ZACC 1
;
2006 (5) BCLR 579
(CC) at paras 17-18;
Phillips and Others v National Director of Public
Prosecutions
[2005] ZACC 15
;
2006 (1) SA 505
(CC);
2006 (2) BCLR 274
(CC) at paras 29-30;
Radio Pretoria v Chairperson, Independent Communications Authority of South
Africa and Another
[2004] ZACC 24
;
2005 (4) SA 319
(CC);
2005 (3) BCLR 231
(CC) at para 19;
Khumalo and Others v Holomisa
[2002] ZACC 12
;
2002 (5) SA 401
(CC);
2002 (8) BCLR 771
(CC) at paras 6-8;
S v Bierman
[2002] ZACC 7
;
2002 (5) SA 243
(CC);
2002 (10) BCLR 1078
(CC) at paras 7-9;
S v Boesak
[2000] ZACC 25
;
2001 (1) SA 912
(CC);
2001 (1) BCLR 36
(CC)
at paras 10-12;
Brummer v Gorfil Brothers Investments (Pty) Ltd and
Others
[2000] ZACC 3
;
2000 (2) SA 837
(CC);
2000 (5) BCLR 465
(CC) at para 3;
Fraser v
Naude and Others
1999 (1) SA 1
(CC);
1998 (11) BCLR 1357
(CC) at para 7.
[28]
See
Radio Pretoria
above n
27
at para 19;
De Freitas and
Another v Society of Advocates of Natal (Natal Law Society Intervening)
1998
(11) BCLR 1345
(CC) at paras 17-20;
Member of the Executive Council for
Development Planning and Local Government, Gauteng v Democratic Party and
Others
[1998] ZACC 9
;
1998 (4) SA 1157
(CC);
1998 (7) BCLR 855
(CC) at para 32.
[29]
Radio Pretoria
above
n
27
at para 19.
[30]
See, for example,
Bierman
above n
27
at para 8;
Member of the Executive Council
above n
28
at para 32.
[31]
Bruce and Another v
Fleecytex Johannesburg CC and Others
[1998] ZACC 3
;
1998 (2) SA 1143
(CC);
1998 (4) BCLR
415
(CC).
[32]
Id at para 8.
[33]
Section 14 of the
Constitution provides:
“Everyone has the right to privacy, which includes the right not to
have—
(a) their person or home searched;
(b) their property searched;
(c) their possessions seized; or
(d) the privacy of their communications infringed.”
[34]
Bernstein and Others v
Bester and Others NNO
[1996] ZACC 2
;
1996 (2) SA 751
(CC);
1996 (4) BCLR 449
(CC).
[35]
It should be noted that the
respondents could not make a similar argument as to seizure. Section 65(1)(b)
and (d) repeatedly employs
the word “seize”.
[36]
Below at para 59.
[37]
Mistry v Interim Medical
and Dental Council of South Africa and Others
1998 (4) SA 1127
(CC) at paras
27-30
[1998] ZACC 10
; ;
1998 (7) BCLR 880
(CC) at paras 20-23.
[38]
Emphasis added.
[39]
Mistry
above n
37
at paras 21, 23 and 28 (SA) and paras
14, 16 and 21 (BCLR).
[40]
Emphasis added.
[41]
[1987] USSC 125
;
482 US 691
(1987) at
702-03.
[42]
Above n
34
.
[43]
Ferreira v Levin NO and
Others; Vryenhoek and Others v Powell NO and Others
1996 (1) SA 984
(CC);
1996 (1) BCLR 1
(CC).
[44]
Bernstein
above n
34
at para 75.
[45]
Id at para 67.
[46]
Id at para 85.
[47]
Id.
[48]
Above n
37
.
[49]
Id at para 23 (SA) and para
16 (BCLR).
[50]
Id at para 21 (SA) and para
14 (BCLR).
[51]
Id at para 27 (SA) and para
20 (BCLR) (footnotes omitted). See also
Investigating Directorate: Serious
Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others;
In re Hyundai Motor
Distributors (Pty) Ltd and Others v Smit NO and Others
[2000] ZACC 12
;
2001 (1) SA 545
(CC);
2000 (10) BCLR 1079
(CC) at para 15, in which the Court
cites
Mistry
and describes
Bernstein
as providing that “the
more a person inter-relates with the world, the more the right to privacy
becomes attenuated.”
The Court emphasised the continued existence of the
right to privacy outside the inner sanctum at para 16:
“The right, however, does not relate solely to the individual within his
or her intimate space. Ackermann J did not state
in the above passage that when
we move beyond this established ‘intimate core’, we no longer retain
a right to privacy
in the social capacities in which we act. Thus, when people
are in their offices, in their cars or on mobile telephones, they still
retain a
right to be left alone by the State unless certain conditions are satisfied.
Wherever a person has the ability to decide
what he or she wishes to disclose to
the public and the expectation that such a decision will be respected is
reasonable, the right
to privacy will come into
play.”
[52]
Mistry
above n
37
at para 28 (SA)
and para 21 (BCLR).
[53]
Id at para 29 (SA) and para
22 (BCLR).
[54]
This is discussed below in
paras 60 to 77.
[55]
Section 39(1)(c) of the
Constitution provides:
“(1) When interpreting the Bill of Rights, a court, tribunal or
forum—
. . .
(c) may consider foreign law.”
[56]
The Court in
Mistry
cited cases from the Supreme Courts of the United States and Canada on
regulatory inspections of commercial premises. Above n
37
at paras 27-29 (SA) and paras 20-22
(BCLR). In
Bernstein
the Court considered the approaches in Europe, the
United States, Canada and Germany to the scope of the right to privacy. Above
n
34
at paras 72-79.
[57]
The Fourth Amendment
provides:
“The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures,
shall not be violated,
and no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing
the place to be searched, and the
persons or things to be seized.”
The Fourth Amendment
originally applied only to the federal government, but it has been incorporated
through the Fourteenth Amendment
to apply to state governments as well.
[58]
In
Frank v Maryland
[1959] USSC 104
;
359 US 360
(1959), the Supreme Court held that a municipal housing code
provision permitting warrantless inspection touched only peripherally
on the
Fourth and Fourteenth Amendments’ protection because the search was not
for evidence of criminal activity. The Court
overturned
Frank
in the
companion cases of
Camara v Municipal Court
[1967] USSC 144
;
387 US 523
(1967) and
See
v City of Seattle
[1967] USSC 151
;
387 US 541
(1967), which expanded the warrant requirement
to all regulatory searches. The Court upheld regulatory statutes as exceptions
to
the warrant requirement in
Colonnade Corp v United States
397 US 72
(1970) and
United States v Biswell
406 US 311
(1972), but then refused to
uphold statutes authorising warrantless searches of commercial premises in
Almeida-Sanchez v United States
[1973] USSC 155
;
413 US 266
(1973) and
Marshall v
Barlow’s, Inc
[1978] USSC 83
;
436 US 307
(1978). Finally, the Court broadened the
exception to the warrant requirement in
Donovan v Dewey
[1981] USSC 149
;
452 US 594
(1981)
and
Burger
above n
41
.
[59]
Burger
above n
41
at 702;
Dewey
above n
58
at 598-99.
[60]
Burger
above n
41
at 702;
Dewey
above n
58
at 598-600, 605-06.
[61]
Burger
above n
41
at 702-13.
[62]
Marshall
above n
58
at 320-21;
Camara
above n
58
at 539-40.
[63]
[1984] 2 SCR 145.
[64]
In
Comité
paritaire de l’industrie de la chemise v Potash; Comité paritaire
de l’industrie de la chemise v
Sélection Milton
[1994] 2 SCR
406
at 416j-417b, La Forest J, writing for one of two majorities, quoted the
following distinction between inspections and searches based
respectively on
whether the intent is to determine compliance or to seek evidence as proof of an
offence from L Angers “À
la recherche d'une protection efficace
contre les inspections abusives de l'État: la Charte québecoise,
la Charte canadienne
et le Bill of Rights américain” (1986), 27 C
de D 723 at 727-28:
“An inspection is characterized by a visit to determine whether there is
compliance with a given statute. The basic intent
is not to uncover a breach of
the Act: the purpose is rather to protect the public. On the other hand, if the
inspector enters the
establishment because he has reasonable grounds to believe
that there has been a breach of the Act, this is no longer an inspection
but a
search, as the intent is then essentially to see if those reasonable grounds are
justified and to seize anything which may
serve as proof of the offence.”
(translation)
La Forest J then reasoned at 417g-418a that both
inspections and searches constitute “searches” in terms of section
8:
“Section 8 of the
Charter
, which guarantees protection against
unreasonable search and seizure, must be construed to carry out its purpose. In
Hunter
. . . this Court noted that the purpose of s. 8 was to
protect
the individual’s reasonable expectations of privacy from
unjustified state intrusion. Despite its less invasive nature, inspection
is
unquestionably an ‘intrusion’. An arbitrary demarcation line drawn
according to the degree of the intrusion, for
purposes of determining whether
the powers authorizing the state’s actions are within the scope of the
constitutional guarantee,
is not desirable at this stage. It would be a matter
of concern if the constitutional validity of an intrusion of the kind at issue
in this appeal were to be placed beyond the reach of judicial review. In the
circumstances, I am of the view that the inspection
powers set out in the second
paragraph of s. 22(e) of the Act may be assimilated to a search within the
meaning of s. 8 of the
Charter
. Naturally, the scope of the
constitutional guarantee may vary depending on whether a search or an inspection
is involved.”
See also L’Heureux-Dubé J
writing for the other majority at 440c-f.
[65]
Thomson Newspapers Ltd v
Canada (Director of Investigation and Research, Restrictive Trade Practices
Commission)
[1990] 1 SCR 425
at 505i-508d (La Forest J), 592h-j
(L’Heureux-Dubé J) and 495f-496c (Wilson J dissenting);
R v
McKinlay Transport Ltd
[1990] 1 SCR 627
at 644f-648a (Wilson J). In
Comité paritaire
above n
64
at 441a-e, L’Heureux-Dubé J
stated that while administrative inspections constituted section 8
“searches”
for purposes of the threshold question, administrative
inspections would be subject to a lower standard of reasonableness than criminal
matters:
“The fact that these powers of inspection might constitute a
‘search’ within the meaning of s. 8 of the
Charter
does not,
however, change their nature. They do not necessarily become powers of search
similar to those found in criminal law.
The term ‘search’ in s. 8
cannot be limited to searches of a criminal nature. It may encompass,
inter
alia
, various sorts of access, in the context of administrative law or in
criminal matters; this may, however, result in differences in
the scope of the
constitutional guarantee . . . . To conclude otherwise would amount to unduly
minimize the purpose of the guarantee
against ‘unreasonable search or
seizure’, which does not seem desirable. In short, although this is an
administrative
inspection, nonetheless the access to work premises conferred by
the
ACAD
is comparable to a ‘search’, and as such is subject
to s. 8 of the
Charter
. This conclusion does not, however, mean that the
standard of reasonableness will necessarily be as strict in a matter involving
the regulation of an industrial sector as it is in criminal
matters.”
[66]
See
Comité paritaire
above n
64
at 421a-422d (La Forest J) and 453f-454g
(L’Heureux-Dubé J). L’Heureux-Dubé J noted at 453f-g
that “[i]t
is of the very nature of an administrative inspection in a
regulated industry that it takes place
when there are no
reasonable
grounds to believe that a particular offence has been committed.” She
held, however, at 454a-b that an inspection
responding to a complaint can still
be a compliance exercise:
“In my opinion, a mere complaint is insufficient in itself to justify
inspectors being subject to the requirements of
Hunter v. Southam Inc.
There is an important distinction between having reasonable and probable grounds
to believe that an offence was committed and simply
having an information,
especially if the latter is given anonymously. An inspection will often be
necessary before it is even possible
to establish the existence of reasonable
grounds to believe that a breach of the law has
occurred.”
See also Hutchison et al
Search and Seizure
Law in Canada
(vol 1) (Thomson, Scarborough 2005) at 5-30.7 –
5-30.8:
“One of the most common problems presented in the context of
administrative or regulatory searches is the movement of regulatory
activity
between what is commonly called ‘compliance’ and
‘enforcement.’ The former is generally seen as
the random,
overarching supervision of an industry at large, with particular actors within
that industry ‘targeted’ without
particular regard to any
pre-existing objective save the integrity of the scheme of regulation in
general. Enforcement, however,
is generally used to describe the notion that,
at some point in the process, the focus moves from the integrity of the scheme
of
regulation in general to a focused investigation of a particular actor under
that regime, often with a view to quasi-penal consequences.
The trend in the cases had been towards a position that was more generous to
inspectors involved in compliance than it was to regulatory
investigators
involved in enforcement. The position looked to the need to ensure that
compliance was not hobbled by unnecessary
limits on the unavoidable randomness
of inspection
powers.”
[67]
Comité paritaire
above n
64
at 420g-421f (La Forest J) and 452e-f
(L’Heureux-Dubé J);
Thomson Newspapers
above n
65
at 506d-507h and 517f-518b (La Forest
J).
[68]
In
Comité
paritaire
above n
64
at 421c-d, La
Forest J noted:
“The exercise of powers of inspection does not carry with it the stigmas
normally associated with criminal investigations and
their consequences are less
draconian. While regulatory statutes incidentally provide for offences, they
are enacted primarily to
encourage
compliance.”
[69]
Id at 424b-g (La Forest J) and 444f-445f and 449i (L’Heureux-Dubé
J). In distinguishing the statute before the Court
from the statute in
Hunter
, L’Heureux-Dubé J emphasised that the statute in
Hunter
“was extremely broad in that the duly authorized inspectors
could ‘enter
any
premises’, ‘examine
any thing on
the premises
and . . . copy or take away for further examination or copying
any book, paper, record or other document
”.
[70]
Comité
paritaire
above n
64
at 422e-g (La
Forest J);
Thomson Newspapers
above n
65
at 592h and 596a-d
(L’Heureux-Dubé J);
McKinlay Transport
above n
65
at 649e-h (Wilson J). See also
Hutchison et al above n
66
at 5-30.9
– 5-30.10. They interpret the case law as creating a three-pronged
reasonableness analysis:
“There are three relevant areas for consideration in determining how a
search or search-like step will be treated under this
sort of flexible approach.
The first consideration is the nature of the legislative provision in question.
This involves a determination
of whether the impugned provision is criminal (or
quasi-criminal) or administrative (or regulatory). The second consideration is
the degree of privacy that can reasonably be expected in the situation. The
third, and final, consideration is the degree of intrusion
by the state. Once
the privacy interest and the ‘state intrusiveness’ have been
determined these factors must be weighed,
one against the other. Where there is
a balance, where the intrusion . . . does not outweigh the privacy interest, the
search is
reasonable.
. . . .
If the provision is criminal or quasi-criminal in nature, then the
Hunter
criteria will almost invariably apply. If the provision is regulatory, then the
extent and necessity of the state’s intrusion
must be weighed against the
individual’s expectation of privacy to determine whether the intrusion was
reasonable.”
[71]
Above n
37
at para 23 (SA) and para 16
(BCLR).
[72]
Comité paritaire
above n
64
at 417g-h (La Forest
J).
[73]
See id. The conclusion
might be different for other constitutional rights. For example, some rights in
the Constitution expressly
provide for line drawing at the threshold inquiry.
See, for example, the right to freedom and security of the person (section 12),
which includes the right not to be deprived of freedom arbitrarily or without
just cause, and the right to freedom of expression
(section 16), which does not
extend to propaganda for war, incitement of imminent violence or advocacy of
hatred that is based on
race, ethnicity, gender or religion, and that
constitutes incitement to cause harm.
[74]
Similarly, the focus by the
United States Supreme Court on the warrant requirement and on reasonableness
appears to stem from the
language of the Fourth Amendment and the focus of the
Canadian Supreme Court on reasonableness appears to stem from the language
of
sections 1 and 8 of the Charter.
[75]
S v Makwanyane and
Another
[1995] ZACC 3
;
1995 (3) SA 391
(CC);
1995 (6) BCLR 665
(CC) at para 104.
Makwanyane
dealt with the provisions of the interim Constitution. The
seminal case on the approach to section 36 of the 1996 Constitution is
S v
Manamela and Another (Director-General of Justice Intervening)
[2000] ZACC 5
;
2000 (3) SA 1
(CC);
2000 (5) BCLR 491
(CC) at paras 32-51 where the Court, amongst other
things, emphasised that section 36 requires the application of a proportionality
analysis.
[76]
Makwanyane
above n
75
at para 104.
[77]
Mistry
above n
37
at para 25 (SA) and para 18 (BCLR)
(footnotes omitted).
[78]
Id at para 25 (SA) and para
18 (BCLR) fn 38 quoting
Brinegar v United States
[1949] USSC 103
;
338 US 160
(1949) at
180-81 (Jackson J dissenting). I have included an additional sentence to the
portion quoted in
Mistry
.
[79]
Bernstein
above n
34
at para 67.
[80]
See
McKinlay
Transport
above n
65
at 645a-f.
[81]
Mistry
above n
37
at para 27 (SA) and para 20 (BCLR).
[82]
Id.
[83]
See
Burger
above n
41
at 705-06;
Dewey
above n
58
at 605-06. For the reasons stated in
Dewey
at 606, I agree that a long history of regulation of the industry
is only an important factor in determining whether an industry is
pervasively
regulated, so that owners of businesses in the industry must be taken to be
aware that the government will inspect their
property.
[84]
Above n
65
at 506g-507h (La Forest J).
[85]
See the Canadian cases above
n
65
in which the question of whether
the provision is criminal or quasi-criminal in nature is crucial for determining
the level of scrutiny
the provision will face. Indeed, the issue was the main
source of disagreement between La Forest and L’Heureux-Dubé
JJ and
Wilson J in
Thomson Newspapers
. In
Thomson Newspapers
above n
65
at 507i-508d La Forest J explained the
need for closer scrutiny of provisions that more closely resemble traditional
criminal law:
“The situation is, of course, quite different when the state seeks
information, not in the course of regulating a lawful social
or business
activity, but in the course of investigating a criminal offence. For reasons
that go to the very core of our legal tradition,
it is generally accepted that
the citizen has a very high expectation of privacy in respect of such
investigations. The suspicion
cast on persons who are made the subject of a
criminal investigation can seriously, and perhaps permanently, lower their
standing
in the community. This alone would entitle the citizen to expect that
his or her privacy would be invaded only when the state has
shown that it has
serious grounds to suspect guilt. This expectation is strengthened by virtue of
the central position of the presumption
of innocence in our criminal law. The
stigma inherent in a criminal investigation requires that those who are innocent
of wrongdoing
be protected against overzealous or reckless use of the powers of
search and seizure by those responsible for the enforcement of
the criminal law.
The requirement of a warrant, based on a showing of reasonable and probable
grounds to believe that an offence
has been committed and evidence relevant to
its investigation will be obtained, is designed to provide this
protection.”
[86]
See
Thomson Newspapers
above n
65
at 509g-j (La Forest J).
[87]
Hutchison et al above n
66
at 5-30.8; see also the statement of
L’Heureux-Dubé J
in
Comité paritaire
above n
64
at 453f-g quoted above at n
66
.
[88]
Hutchison et al above n
66
at 5-30.8; see also
Comité
paritaire
above n
64
at 416h-417b
(La Forest J).
[89]
See
Comité
paritaire
above n
64
at 454a-h
(L’Heureux-Dubé J);
Burger
above n
41
at 716.
[90]
Above n
37
at paras 28-30 (SA) and paras 21-23
(BCLR).
[91]
See
Comité
paritaire
above n
64
at 424b-g (La
Forest J) and 449i (L’Heureux-Dubé J);
Burger
above n
41
at 703 and 711-12;
Biswell
above
n
58
at 315.
[92]
Above n
37
at para 21 (SA) and para 14 (BCLR).
[93]
Id at paras 21 and 28 (SA)
and paras 14 and 21 (BCLR).
[94]
If the statute does provide
for some form of administrative warrant, the question will be whether the
warrant adequately protects
the property owner and guides the inspector. The
Supreme Court of the United States has given some thought to this issue. See
Marshall
above n
58
at 320-21 and
Camara
above n
58
at 539-40. We
need not decide this issue in the present case.
[95]
See
Hunter
above n
63
at 161j-162a, in which Dickson J
described the purpose of the warrant requirement:
“The purpose of a requirement of prior authorization is to provide an
opportunity, before the event, for the conflicting interests
of the state and
the individual to be assessed, so that the individual’s right to privacy
will be breached only where the appropriate
standard has been met, and the
interests of the state are thus demonstrably
superior.”
[96]
See
Burger
above n
41
at 722 fn 8
(Brennan J dissenting). See also
Omar v Government of the Republic of South
Africa and Others (Commission for Gender Equality, Amicus Curiae)
[2005] ZACC 17
;
2006 (2)
SA 289
(CC);
2006 (2) BCLR 253
(CC) at paras 37-38, stating that to require
notice to alleged perpetrators of domestic violence before issuing an interim
protection
order would defeat the object of protection for the complainant, who
could be placed in more serious danger.
[97]
See section 22 which
provides:
“A police official may without a search warrant search any person or
container or premises for the purpose of seizing any article
referred to in
section 20—
. . . .
(b) if he on reasonable grounds
believes—
(i) that a search warrant will be issued to him under paragraph (a) of section
21(1) if he applies for such warrant; and
(ii) that the delay in obtaining such warrant would defeat the object of the
search.”
[98]
See
Burger
above n
41
at 703;
Dewey
above n
58
at 603-05.
[99]
The discussion in
Mistry
is quoted above at para 63.
[100]
The Preamble of the North
West Gambling Act provides in part:
“AND WHEREAS it is recognized that the public confidence and trust and the
health, safety, general welfare and good order of
the inhabitants of the
Province are dependent upon the strict regulation of all persons, premises,
practices, associations and activities
relating to
gambling”.
Similarly, the Preamble of the
National Gambling
Act provides
in part:
“It is desirable to establish certain uniform norms and standards, which
will safeguard people participating in gambling and
their communities against
the adverse effect of gambling, applying generally throughout the Republic with
regard to casinos, racing,
gambling and wagering, so
that—
*
gambling
activities are effectively regulated, licenced, controlled and
policed;
*
members of the public who
participate in any licenced gambling activity are protected;
*
society and the economy are protected
against over-stimulation of the latent demand for gambling; and
*
the licensing of gambling activities is
transparent, fair and
equitable”.
[101]
Id.
[102]
In his papers, the
applicant argued that he had not accepted upon himself the government
regulations of gambling because (contrary
to the law) his business was not
licensed. To his credit, the applicant withdrew this submission at the hearing
before this Court.
[103]
See the Preamble, which
states in part:
“AND WHEREAS gambling matters are privileged activities which should
stimulate the creation of employment opportunities and
thereby promote the
improvement of the quality and standard of living of the people of the
Province,
AND WHEREAS gambling provides a significant source of public revenue for the
Province,
AND WHEREAS the levying of such taxes has to be dealt with in terms of the
Provincial
Legislation”.
[104]
Section 65(1)(a).
[105]
Section 65(1)(a).
[106]
Section 1.
This
definition is similar to the language deemed too broad in
Mistry
.
[107]
Section 65(7).
[108]
In this case, it is clear
that Magajane was operating a gambling operation without a licence, in violation
of the law. However,
in considering this factor of the limitation analysis, it
is important to note the potential that inspectors mistakenly will suspect
that
unlicensed premises are being used for gambling.
[109]
As noted above at para
78, this case does not raise the constitutionality of
section 65
as per licensed
premises. Accordingly, I take no position as to the constitutionality of
warrantless searches of licensed premises
in terms of
section 65
or in general.
I also take no position as to the constitutionality of searches of licensed
premises in terms of the administrative
warrant provisions of
section 65.
[110]
See above n
97
. The inspectors can avail themselves of
these provisions of the
Criminal Procedure Act when
they are accompanied by
police officers.
[111]
Section 14(4A)
of the
Western Cape Gambling and Racing Law requires that the inspector conducting a
search of an unlicensed premises be accompanied
by an officer of the South
African Police Service of the rank of Inspector or higher. Similarly, section
84(2) of the KwaZulu-Natal
Gambling Act requires that the inspector be
accompanied by a member of the
police.
[112]
See
Manamela
above n
75
at paras
32-33 of the judgment of the Court and at para 66 of the minority judgment.
[113]
See
Coetzee v
Government of the Republic of South Africa; Matiso and Others v Commanding
Officer, Port Elizabeth Prison, and Others
[1995] ZACC 7
;
1995 (4) SA 631
(CC);
1995 (10)
BCLR 1382
(CC) at para 16, in which Kriegler J articulated the general rule as
follows:
“Although severability in the context of constitutional law may often
require special treatment, in the present case the trite
test can properly be
applied: if the good is not dependent on the bad and can be separated from it,
one gives effect to the good
that remains after the separation if it still gives
effect to the main objective of the statute. The test has two parts: first,
is
it possible to sever the invalid provisions and second, if so, is what remains
giving effect to the purpose of the legislative
scheme?” (Footnote
omitted.)
[114]
Section 65(1)(b)(iii), (c)(ii) and (d).
[115]
See
S v Coetzee and
Others
[1997] ZACC 2
;
1997 (3) SA 527
(CC);
1997 (4) BCLR 437
(CC) at para 226 (Sachs J
concurring), in which it was stated:
“I believe the Constitution requires us to be creative in saving the
garment, or at least, a wearable part of it, if we can
do so in a manner
consistent with the purpose of the Legislature as expressed in the text. But,
too much reading down of too many
terms, coupled with too many excisions of the
text, leaves something so tattered and insecure, that it cannot be said that
effect
would be given to any of the principal objects of the
Legislature.”
[116]
The only provision in the remainder of section 65 that refers to section 65(1)
is section 65(5)(b). It can operate without section
65(1) as it applies to
“gambling operations or any premises referred to in sections 65(1)(a) and
65(1)(b)(iv)”.
[117]
In his amended notice of
motion in the High Court, the applicant did not challenge the constitutionality
of section 65(1)(c)(iii)
and challenged section 65(1)(b) broadly, without
specifying section 65(1)(b)(ii). However, the judgment of the High Court
indicates
that the applicant challenged these two subsections. The High Court
squarely dealt with the constitutionality of these provisions.
In his
application for leave to appeal to this Court, the applicant again raised the
constitutionality of section 65(1)(b)(ii) and
(c)(iii).
[118]
By way of comparison, the
applicant notes that the
National Gambling Act does
contain such a safeguard.
Section 80
provides:
“(1) A person questioned by an inspector in terms of this Act is not
obliged to answer any question if the answer is self-incriminating.
(2) No self-incriminating answer given or statement made to a person exercising
any power in terms of this Act is admissible as evidence
against the person who
gave the answer or made the statement in any criminal proceedings, except in
criminal proceedings for perjury
or in which that person is tried for an offence
contemplated in this section, and then only to the extent that the answer or
statement
is relevant to prove the offence
charged.”
Similarly, the Western Cape Gambling and Racing
Law protects against self-incrimination. As noted above at para 93, section
14(4)
and (4A) govern inspections of licensed and unlicensed premises. Section
14(5) provides:
“No evidence regarding any questions and answers contemplated in
subsection (4) shall be admissible in any subsequent criminal
proceedings
against a person from whom information in terms of that subsection is acquired
if the answer will incriminate him or
her, except in criminal proceedings where
the person concerned stands trial on a charge contemplated in subsection
(6).”
Section 14(6) provides:
“Any person who—
(a) obstructs or hinders a person referred to in subsection (2) [which lists the
individuals who may exercise the powers conferred
by section 14] in the
performance of his or her functions under this section;
(b) when asked by a person referred to in subsection (2) for an explanation or
information relating to a matter within his or her
knowledge, gives an
explanation or information which is false or misleading, knowing it to be false
or misleading, or
(c) falsely represents himself or herself to be a person referred to in
subsection (2),
shall be guilty of an offence.”