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[2016] ZACC 21
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Minister of Police and Others v Kunjana (CCT253/15) [2016] ZACC 21; 2016 (9) BCLR 1237 (CC); 2016 (2) SACR 473 (CC) (27 July 2016)
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Heads of arguments
CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT
253/15
In
the matter between:
MINISTER
OF
POLICE
First Applicant
DIRECTOR
OF PUBLIC PROSECUTIONS,
WESTERN
CAPE
Second Applicant
MINISTER
OF JUSTICE AND
CORRECTIONAL
SERVICES
Third Applicant
and
GRACE
NOMAZIZI
KUNJANA
Respondent
Neutral
citation:
Minister
of Police and Others v Kunjana
[2016]
ZACC 21
Coram:
Moseneke DCJ, Bosielo AJ, Cameron J, Froneman J,
Jafta J, Khampepe J, Madlanga J, Mhlantla J, Nkabinde J and Zondo J
Judgments:
Mhlantla J (unanimous)
Heard
on:
12 May 2016
Decided
on:
27 July 2016
Summary:
Confirmation proceedings — order
of invalidity in terms of section 172(2)(a) of the Constitution —
section 11(1)(a)
and (g) of the
Drugs and Drug Trafficking Act 140 of
1992
unconstitutional and invalid — declaration of invalidity
prospective
ORDER
Application
for confirmation of the order of the High Court of South Africa,
Western Cape Division, Cape Town:
1.
The declaration of constitutional
invalidity of
section 11(1)(a)
and (g) of the
Drugs and Drug
Trafficking Act 140 of 1992
, made by the High Court of South
Africa, Western Cape Division, Cape Town is confirmed.
2.
The declaration of invalidity will apply
from the date of this order.
3.
The first and third applicants are ordered,
jointly and severally, to pay the respondent’s costs, including
the costs of two
counsel, up to the date of delivery of her notice
dated 13 January 2016.
JUDGMENT
MHLANTLA J
(Moseneke DCJ, Bosielo AJ, Cameron J, Froneman J, Jafta J, Khampepe
J, Madlanga J, Nkabinde J and Zondo J concurring):
Introduction
[1]
Section
14 of the Constitution guarantees that everyone has the right to
privacy, including the right not to have their person or
home
searched, their property searched, their possessions seized or the
privacy of their communications infringed. This application
involves a warrantless search of an individual’s properties and
seizure of items by members of the South African Police Service
(SAPS). It comes before us as confirmation proceedings brought
by the Minister of Police (first applicant) in terms of section
172(2)(d) of the Constitution for an order confirming the declaration
of constitutional invalidity made by the High Court of South
Africa,
Western Cape Division, Cape Town
[1]
(High Court) relating to section 11(1)(a) and (g) of the Drugs
and Drug Trafficking Act
[2]
(Drugs Act).
Factual
Background
[2]
On 14 March 2011, members of SAPS received
information from an informant that a large quantity of illegal drugs,
particularly Mandrax
(which is a substance listed in Part III of
Schedule 2 to the Drugs Act) was kept at 2 Moor Street, Kenilworth,
Cape Town (Kenilworth
premises) and that these drugs would be moved
during the course of that day. It was also reported that
another large quantity
of drugs was stored at 6 Chartwell Place,
Robinson Street, Wynberg, Cape Town (Wynberg premises). Both
properties were
leased by the respondent, Ms Grace Nomazizi Kunjana
(respondent).
[3]
As a result, the police conducted search
and seizure operations at the Kenilworth premises and Wynberg
premises. Upon searching
these premises, the following was
found and seized by SAPS:
a.
a total of 24 719 Mandrax tablets
weighing 33.9586 kg at the Kenilworth premises;
b.
a total of 262 818 Mandrax tablets
weighing 350.923 kg and “Tik” weighing 2.1241 kg at the
Wynberg premises; and
c.
cash in an amount of R1 823 200
at the Wynberg premises with traces of Mandrax.
[4]
As a result, the respondent was arrested
and charged with being in possession of, and dealing in Mandrax and
“Tik”,
in contravention of the Drugs Act. The
criminal case against the respondent is pending in the High Court.
In conducting
the search and seizure operations, the police
relied on section 11(1)(a) and (g) which provides:
“
A
police official may—
(a)
if he has reasonable grounds to suspect that an offence under this
Act has been or
is about to be committed by means or in respect of
any scheduled substance, drug or property, at any time—
(i)
enter or board and search any premises, vehicle, vessel or aircraft
on or in
which any such substance, drug or property is suspected to
be found;
(ii)
search any container or other thing in which any such substance, drug
or property
is suspected to be found;
.
. .
(g)
seize anything which in his opinion is connected with, or may provide
proof of, a
contravention of a provision of this Act.”
[5]
Hence, section 11(1)(a) and (g) of the
Drugs Act grants police officials the power to conduct a warrantless
search in any premises
if there are reasonable grounds to suspect
that an offence under the Drugs Act has or is about to be committed,
and the power to
seize anything that would result in an infringement
of the Drugs Act.
Proceedings
in the High Court
[6]
The respondent filed two applications
before the High Court against the first applicant as well as the
Director of Public Prosecutions
in the Western Cape and the Minister
of Justice and Correctional Services (second and third applicants
respectively in the present
case). In the first application,
she sought a postponement of the trial pending the determination of
the second application,
where she sought an order declaring the
entire section 11 of the Drugs Act to be inconsistent with the
Constitution and invalid.
She maintained that the two
warrantless search and seizure operations, conducted pursuant to
section 11, were inconsistent
with the Constitution and unlawful.
The applicants opposed the application. However, they
later conceded that section
11(1)(a) and (g) infringed the right to
privacy in section 14 of the Constitution and that the infringement
was not justifiable
in terms of section 36 of the Constitution.
[7]
The
High Court (per Veldhuizen J) concluded that the order of invalidity
of the entire section 11 of the Drugs Act sought by the
respondent
was too broad.
[3]
Therefore, the learned Judge restricted the relief to
section 11(1)(a) and (g) of the Drugs Act.
[8]
After
analysing the constitutionality of section 11(1)(a) and (g) of the
Drugs Act, and relying on
Estate
Agency Affairs Board
[4]
and
Gaertner
,
[5]
the High Court concluded that section 11(1)(a) and (g) infringed
the right to privacy enshrined in section 14 of the Constitution
and
that these provisions were invalid. Regarding the effect of the
order, the High Court concluded that the order of invalidity
would
have immediate effect as police officials had other remedies and
investigating powers at their disposal. Furthermore,
the Court
concluded that the issue relating to the admissibility of the
evidence gathered pursuant to the search operations would
be
determined by the trial Court. As to the costs, the High Court
found that, although the respondent had approached the
Court in her
own interest, she should not be deprived of her costs as she was
obliged to bring the application to obtain the declaration
of
invalidity.
[6]
[9]
Accordingly, on 3 December 2015 the High
Court made the following order:
“
(a)
Section 11(1)(a)
and (g) of the
Drugs and
Drug Trafficking Act 140 of 1992
are declared invalid;
(b)
The declaration of invalidity is
not retrospective, and
(c)
The first and fourth respondents
are ordered to pay the costs of the application.”
[7]
[10]
Flowing from the High Court’s
declaration of constitutional invalidity, the applicants brought this
application for the confirmation
of the order of invalidity. The
respondent, in her notice dated 13 January 2016, supported the
application.
Parties’
submissions in this Court
[11]
In this Court, the applicants supported the
conclusion of the High Court and argued that the order declaring
section 11(1)(a) and
(g) of the Drugs Act constitutionally invalid
should be confirmed as it authorises warrantless searches even where
there is no
urgency. They also submitted that the order should
operate prospectively, i.e. that searches and seizures undertaken
prior
to the date of the order will be unaffected, even if
proceedings relating to them were yet to be finalised. In so
far as
costs are concerned, they contended that the respondent should
be entitled to costs until the date on which her notice was filed
in
this Court.
[12]
The
respondent relied on
Estate
Agency Affairs Board
and submitted that “this case requires no reinvention”.
[8]
She supported the finding of the High Court. As to costs, the
respondent submitted that the first applicant should
pay all her
costs, including the costs of two counsel. This was despite the
fact that the notice of support had been filed
on 13 January 2016.
The respondent contended that the applicants, as responsible
members of the Executive, had a duty to
embark on a legislative
process to repeal or amend the impugned provisions which were clearly
invalid and that this is an incident
of the rule of law and
separation of powers. Yet in this case, the first applicant
ignored the established principles stated
in
Magajane
,
[9]
Gaertner
and
Estate Agency
Affairs Board
,
so the respondent stated. Instead, the applicants effectively
relied, impermissibly, on the invalid provisions until the
High Court
declared them unconstitutional.
Issues
[13]
The issues for determination are:
a.
Whether section 11(1)(a) and (g) of the
Drugs Act is constitutionally invalid.
b.
If the section is unconstitutional and thus
invalid, whether the declaration of invalidity should be
retrospective or prospective.
c.
Should this Court grant a costs order?
Constitutionality
of section 11(1)(a) and (g)
[14]
The
power, as provided by
section
11(1)(a) and (g) of the Drugs Act,
for
police officers to search and seize someone’s property is a
violation of
the
right to privacy protected by section 14 of the Constitution.
[10]
As submitted by the applicants, relying on
Thint
,
[11]
the right to privacy flows from the value placed on human dignity.
[15]
Thus
it must be assessed whether the infringement of the rights to privacy
and dignity is reasonable and justifiable in an open
and democratic
society. Section 36 of the Constitution governs the situations
in which constitutional rights may be limited.
It enjoins a
court to balance five relevant factors, which are: the nature of the
right; the importance of the purpose of
the limitation; the nature
and extent of the limitation; the relation between the limitation and
its purpose; and whether there
are less restrictive means to achieve
the purpose.
[12]
I analyse each of these factors below.
The
nature of the right
[16]
Section
14 of the Constitution guarantees everyone the right to privacy,
including the right not to have their person or home searched,
their
property searched, their possessions seized, or the privacy of their
communications infringed. This Court has held
that an
individual’s right to privacy is bolstered by his or her right
to dignity in section 10 of the Constitution.
[13]
[17]
Privacy, like all rights, is not absolute.
In
Bernstein
this
Court held:
“
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.”
[14]
[18]
In
Mistry
,
this Court emphasised the sanctity of the right to privacy and said
that 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 distinguishes a constitutional democracy
from a
police state.
[15]
In
Gaertner
,
this
Court held that “
the
right to privacy embraces the right to be free from intrusions and
interference by the state and others in one’s personal
life”.
[16]
How closely one infringes on the “inner sanctum” of
the home is a consideration that must be borne in mind when
considering the extent to which a limitation of the right to privacy
may be justified.
The
importance of the purpose of the limitation
[19]
In
Magajane
,
Van der Westhuizen J stated:
“
[T]he
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.”
[17]
[20]
Section 11(1)(a) and (g) aims to
prevent and prosecute the commission of offences under the Drugs
Act. These offences,
like other unlawful activities, are
conducted in a clandestine fashion, successful prosecution of which
requires the limitation
of the right to privacy. The absence of
having to obtain a warrant allows police officers to conduct
efficient inspections
by facilitating the quick discovery of evidence
that would otherwise be lost or destroyed. Drug related
offences are commonplace
and their successful prosecution
necessitates that the integrity of evidentiary material is preserved;
which the impugned provisions
ostensibly purport to achieve.
The importance of this purpose diminishes the invasiveness of
searches under the impugned
provisions.
The
nature and extent of the limitation
[21]
The impugned
provisions
are broad. Section
11(1)(a) and (g)
of the Drugs Act does not circumscribe the time, place nor manner
in
which
the searches and seizures can be
conducted. Again, the words of Van der Westhuizen J in
Magajane
bear reference:
“
[The
warrant] 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.”
[18]
[22]
Further, section 11(1)(a) grants police
officers the power to search warrantless at “any time”
“any premises,
vehicle, vessel or aircraft” and “any
container” in which substances or drugs are suspected to be
found.
Hence, as contended by the applicants, the premises
which may be searched include private homes where the expectation of
privacy
is greater, being regarded as the “inner sanctum”
of a person. Section 11(1)(g) allows police officers to
seize “anything” connected with a contravention of a
provision of the Drugs Act. This power to seize without
a
warrant derives from the power of police officials to engage in a
warrantless search.
[23]
I agree with the applicants’
contention that the impugned provisions leave police officials
without sufficient guidelines
with which to conduct the inspection
within legal limits. A warrantless search procedure implies the
absence of a warrant
providing guidance as to the time, place and
scope of a search and it is therefore desirable that the statutory
provision authorising
a warrantless search procedure be crafted so as
to limit the possibility of a greater limitation of the right to
privacy than is
necessitated by the circumstances, which the warrant
requirement would otherwise do.
The
relation between the limitation and its purpose
[24]
A
rational connection must exist between the purpose of a law and the
limitation it imposes.
[19]
As was submitted by the applicants, a rational connection does exist
between the limitation of the respondent’s rights
and the
purpose of section 11(1)(a) and (g). The prevention and
prosecution of offences under the Drugs Act, which
concern
illicit and harmful drugs that constitute a serious scourge to public
safety and well-being, require search and seizure
operations of the
sort contemplated in the provisions. Intrinsic to such
operations is an element of intrusion and the provisions
must be
construed in such context.
Are
there less restrictive means to achieve the purpose?
[25]
The fundamental problem in section 11(1)(a)
and (g) is that it allows police officials to escape the usual
rigours of obtaining
a warrant in all cases, including those cases
where urgent action is not required and that the delay occasioned in
obtaining a
warrant will not result in the items or evidence sought
being lost or destroyed. Surely police officials can prevent
and
prosecute offences under the Drugs Act in a less restrictive
fashion than what is contemplated in this section.
[26]
Section
11(1)(a) implies that warrantless searches of private homes may be
conducted pursuant to it. The more a search intrudes
into the
“inner sanctum” of a person (such as their home) the more
the search infringes their privacy right.
[20]
The provisions are also problematic as they do not preclude the
possibility of a greater limitation of the right to privacy
than is
necessitated by the circumstances, with the result that police
officials may intrude in instances where an individual’s
reasonable expectation of privacy is at its apex.
[27]
It
should not be forgotten that exceptions to the warrant requirement
should not become the rule. In 2013, this Court found
provisions in the Customs and Excise Act
[21]
that provided for a warrantless search procedure to unjustifiably
conflict with the constitutionally guaranteed right to privacy.
Madlanga J stated:
“
A
warrant is not a mere formality. It is a mechanism employed to
balance an individual’s right to privacy with the public
interest in compliance with and enforcement of regulatory
provisions. A warrant guarantees that the State must be able,
prior to an intrusion, to justify and support intrusions upon
individuals’ privacy under oath before a judicial officer.
Further, it governs the time, place and scope of the search.
This softens the intrusion on the right to privacy, guides the
conduct of the inspection, and informs the individual of the legality
and limits of the search. Our history provides evidence
of the
need to adhere strictly to the warrant requirement unless there are
clear and justifiable reasons for deviation.”
[22]
[28]
In
2014, this Court again found provisions,
[23]
which allowed for a warrantless search and seizure procedure,
unconstitutional because of the limitation on the right to privacy.
Cameron J held:
“
The
conclusion is unavoidable that in their present form both provisions
fail to pass constitutional scrutiny. The fundamental
reason in
each case is their initiating premise: that all the searches they
authorise require no warrant. In this, they afford
no
differentiation as to the nature of the search or the nature of the
premises searched. The result is that they go too
far, in
authorising warrantless searches in circumstances where no
justification can exist for not requiring the Board to obtain
a
warrant.”
[24]
[29]
In the same year, this Court found in
Ngqukumba
that the retention of a motor vehicle by the police without having
obtained a search and seizure warrant, or having acted pursuant
to a
lawful warrantless search procedure, to be inconsistent with the
right to privacy and dignity. Madlanga J held:
“
In
the face of the privacy right as also the right to dignity, which are
closely linked, it is not overly restrictive to require
of police to
comply strictly with search-warrant requirements. Where there
is a need for swift action, the police can always
invoke section 22
of the Criminal Procedure Act. Strict compliance with the
Constitution and the law will not hamper police
efforts in stemming
the scourge of crime.”
[25]
[30]
Constitutionally
adequate safeguards must exist to justify circumstances where
legislation allows for warrantless searches.
[26]
Examples of such safeguards can be found in section 22 of the
Criminal Procedure Act 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–
(a)
if the person concerned consents to the search for and the seizure of
the article
in question, or if the person who may consent to the
search of the container or premises consents to such search and the
seizure
of the article in question; or
(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.”
[27]
[31]
Less restrictive measures therefore do
exist to achieve the purpose of the Drugs Act. There is no
readily discernible
reason for section 11(1)(a) and (g) not
contemplating such less restrictive means, which would prevent the
possibility of a greater
limitation of the right to privacy than is
necessitated by the circumstances. Furthermore, the provisions
do not contemplate
instances where evidence sought will be lost or
destroyed as a result of the delay occasioned when applying for a
warrant.
[32]
The balancing of these factors leads me to
conclude that the limitation of the respondent’s constitutional
rights to privacy
and dignity by section 11(1)(a) and (g) cannot be
justified in terms of section 36 of the Constitution. I
therefore conclude
that section 11(1)(a) and (g) of the Drugs Act
constitutes an impermissible violation of the rights to privacy and
dignity and
is accordingly constitutionally invalid.
Must
the declaration of invalidity be retrospective?
[33]
A
confirmation of constitutional invalidity will have retrospective
effect unless the court making the declaration orders otherwise
for
reasons pertaining to justice and equity.
[28]
In this regard, the applicants and the respondent support the finding
of the High Court that the effect of the declaration
of invalidity be
prospective. The applicants pointed out that the circumstances
in this matter were similar to those in
Gaertner
and
Estate
Agency Affairs Board
,
where this Court ordered that the declarations of invalidity operate
purely prospectively.
[29]
[34]
It is so that an order of prospective
invalidity would mean that the respondent may not gain any effective
relief during her trial.
However, during the hearing, both
parties supported the fact that an order of prospective invalidity
would, in this case, be the
most appropriate.
[35]
Another
factor that has to be taken into account is the reason why an order
of prospective invalidity is made. The case law
on this issue
is trite. In
S
v Zuma
[30]
this Court held that the ability to limit the retrospective effect of
orders of invalidity can be used “to avoid the dislocation
and
inconvenience of undoing transactions, decisions or actions taken
under [the invalidated] statute”.
[31]
The Court further held that “the interests of individuals
must be weighed against the interest of avoiding dislocation
to the
administration of justice and the desirability of a smooth transition
from the old to the new”.
[32]
[36]
In
Mistry
this Court rejected the idea of reaching back into the past to aid a
single litigant and deny the same benefits to others in similar
situations.
[33]
The Court held that its order would apply prospectively and refused
to cause the order to apply to the applicant who launched
the
constitutional litigation. Similarly, in this case, it would
not be appropriate to single out the respondent and not
give other
litigants who were in her position in the past the same benefit.
[37]
In
considering the respondent’s interests, I must note that the
warrantless searches of the respondent’s property occurred
on
14 March 2011. On that date neither this Court, nor lower
courts had pronounced on
Gaertner
,
Estate
Agency Affairs Board
and
Ngqukumba
.
[34]
The only judgment of this Court that provided jurisprudential clarity
on warrantless search and seizure procedures was
Magajane
which was decided in 2006. It is therefore difficult to
sustain the respondent’s contention that at that stage
the
impugned provisions were “clearly inconsistent [with] the
Constitution of South Africa, 1996 and invalid”.
Absent
an earlier challenge of constitutional invalidity it cannot be said
that the respondent, having been searched in compliance
with what was
then binding legislation, can aver that it would be unjust for this
Court to make a prospective order, but one that
still protects her
interests. The respondent was no doubt aware that
legislation existed to prevent and combat drug
related offences and
her institution of proceedings to challenge such legislation some two
and a half years after the searches
and seizures in question were
made do not entitle her to an exemption from their application.
In any event, the respondent
can challenge the validity of the
searches during her trial.
[38]
In conclusion, the offences prosecuted
under the Drugs Act are serious. Retrospective application may
cause criminals who
have contravened provisions of the Drugs Act to
go free and undermine the administration of justice. The
declaration may
result in delictual claims by persons subject to
searches and seizures, further burdening SAPS. I have found
this case to
be analogous to
Gaertner
and
Estate Agency Affairs Board
and I see no reason to depart from the approach adopted in these
decisions to make a declaration of invalidity that operates
prospectively.
[39]
Therefore, it is in the interests of
justice and equity that the High Court’s declaration of
constitutional invalidity be
confirmed and its operation be
prospective.
Should
the declaration of invalidity be suspended?
[40]
In the circumstances of this case, I see no
reason for this Court to suspend the declaration of invalidity.
A
lacuna
is avoided in that the offences contemplated by the Drugs Act are
already covered by section 22 of the Criminal Procedure Act,
which
provides for a constitutionally sound warrantless search procedure.
It follows that police officials seeking to prevent
and prosecute
offences contemplated by the Drugs Act may rely on section 22 of
the Criminal Procedure Act, should the need
for a warrantless search
and seizure procedure be occasioned.
Costs
[41]
Notwithstanding the respondent’s
support of the application – as evidenced in her notice filed
on 13 January 2016 –
and the concessions by her counsel before
us, her counsel insisted that this Court should (i) confirm the High
Court’s costs
order and (ii) order costs against the first
and third applicants for the respondent’s appearance before
this Court.
Costs
in the High Court
[42]
Counsel
for the respondent argued that in confirmation proceedings this Court
is required to confirm the High Court’s order
in its entirety,
including the costs order. This proposition was based on two
legs, the first was that if this Court declined
to confirm the High
Court’s order of invalidity, the High Court’s costs order
would be imperilled, and secondly, counsel
relied on
Dawood
[35]
to support the contention that confirmation of an order of invalidity
requires this Court to confirm all orders ancillary thereto,
including the High Court’s costs order. This proposition
is without merit.
[43]
Regarding
the first leg, the applicants did not appeal against the High Court’s
costs order. This left the costs order
safely in the
respondent’s pocket. In fact not only had the applicants’
right of appeal long become pre-empted,
but they had expressly
supported the confirmation of the High Court’s order of
invalidity. As for the second leg, section
172(2)(a) of the
Constitution makes it clear that confirmation proceedings are limited
to an “order of constitutional invalidity”.
It is
only the parts of the order that declare “an Act of Parliament,
a provincial Act or any conduct of the President”
unconstitutional that this Court is required to confirm in order to
give legal force to such invalidity. Costs, on the other
hand,
follow a different logic. The purpose of a costs order is to
indemnify the successful party
[36]
and to refund expenses actually incurred.
[37]
A costs order is not intended to compensate for the risk to which one
has been exposed.
[38]
Costs
in this Court
[44]
Counsel for the respondent asked for costs
in this Court on the basis that in recent years this Court has on
numerous occasions
been asked to confirm the constitutional
invalidity of warrantless search provisions in several
pre constitutional statutes
as they infringe the
constitutionally entrenched rights to dignity and privacy. He
contended that even though these cases
have been so analogous, that,
faced with another, this Court has held that such a case “requires
no reinvention”, the
respondent still required representation
in this Court. This is not an argument that can vindicate the
respondent’s
costs in this Court.
[45]
What is apparent is that at the time of the
hearing, this Court’s pronouncements in
Gaertner
,
Estate Agency Affairs Board
and
Ngqukumba
were not only fresh but plain in their impact on the impugned
provisions. Similarly not only had the applicants conceded
the
invalidity of the provisions, but themselves sought confirmation of
their invalidity in this Court. There may very well
be
instances where a respondent’s presence in confirmation
proceedings in this Court is necessary to ensure that its interests
are protected in the event of novel or complex issues arising during
the hearing, notwithstanding its agreement with the applicant’s
contentions. However, in the circumstances of this case it is
clear that this contention cannot be sustained.
[46]
Therefore, it follows that the respondent’s
entitlement to costs is limited to her costs up to the delivery of
her notice
dated 13 January 2016 which indicated her support for the
applicants’ confirmation application.
Order
[47]
In the result, the following order is made:
1.
The declaration of constitutional
invalidity of
section 11(1)(a)
and (g) of the
Drugs and Drug
Trafficking Act 140 of 1992
, made by the High Court of South
Africa, Western Cape Division, Cape Town is confirmed.
2.
The declaration of invalidity will apply
from the date of this order.
3.
The first and third applicants are ordered,
jointly and severally, to pay the respondent’s costs, including
the costs of two
counsel, up to the date of delivery of her notice
dated 13 January 2016.
For
the Applicants: AM Breitenbach SC and N Pakade instructed by the
State Attorney
For
the Respondent: A Katz SC and R Liddell instructed by Francois
Potgieter & Partners
[1]
Kunjana
v Minister of Police and Others
[2015] ZAWCHC 198
(High Court judgment).
[2]
140
of 1992.
[3]
High
Court judgment above n 1 at para 3.
[4]
Estate
Agency Affairs Board v Auction Alliance (Pty) Ltd and Others
[2014] ZACC 3; 2014 (3) SA 106 (CC); 2014 (4) BCLR 373 (CC).
[5]
Gaertner
and Others v Minister of Finance and Others
[2013] ZACC 38; 2014 (1) SA 442 (CC); 2014 (1) BCLR 38 (CC).
[6]
High
Court judgment above n 1 at para 11.
[7]
Id at
para 12.
[8]
Estate
Agency Affairs Board
above
n 4 at para 33.
[9]
Magajane
v Chairperson, North West Gambling Board
[2006] ZACC 8; 2006 (5) SA 250 (CC); 2006 (10) BCLR 1133 (CC).
[10]
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.”
[11]
Thint
(Pty) Ltd v National Director of Public Prosecutions and Others,
Zuma and Another v National Director of Public Prosecutions
and
Others
[2008] ZACC 13
;
2009 (1) SA 1
(CC);
2008 (12) BCLR 1197
(CC)
(
Thint
)
at paras 76-7. 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)
(
Hyundai
)
at para 18.
[12]
Section
36 of the Constitution provides:
“
(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.”
[13]
Hyundai
above n 11 at para 18;
Thint
above n 11 at para 77.
[14]
Bernstein
and Others v Bester NO and Others
[1996]
ZACC 2
;
1996 (2) SA 751
(CC);
1996 (4) BCLR 449
(CC) at para
67.
[15]
Mistry
v Interim National Medical and Dental Council of South Africa and
Others
[1998]
ZACC 10
;
1998 (4) SA 1127
(CC);
1998
(7) BCLR 880
(CC) at para 25.
[16]
Gaertner
above
n 5 at para 47.
[17]
Magajane
above
n 9 at para 65.
[18]
Id at
para 74.
[19]
Id at
paras 72-3 and
Gaertner
above n 5 at para 67.
[20]
See
Bernstein
above
n 14 at para 67 and
Magajane
above n 9 at para 82.
[21]
91 of
1964.
[22]
Gaertner
above n 5 at para 69.
[23]
Namely,
section 32A of the Estate Agency Affairs Act 112 of 1976 and
section
45B
of the
Financial Intelligence Centre Act 38 of 2001
.
[24]
Estate
Agency Affairs Board
above
n 4 at para 40.
[25]
Ngqukumba
v Minister of Safety and Security and Others
[2014]
ZACC 14
;
2014 (5) SA 112
(CC);
2014 (7) BCLR 788
(CC)
at
para 19.
[26]
Magajane
above n 9 at para 77 and
Gaertner
above n 5 at paras 71-2.
[27]
See
also
Ngqukumba
above
n 25 at para 19.
[28]
Section
172(1) of the Constitution provides:
“
When
deciding a constitutional matter within its power, a court—
(a)
must declare that any law or conduct that is inconsistent with the
Constitution is invalid to the extent of its inconsistency; and
(b)
may make any order that is just and equitable
, including—
(i)
an order limiting the retrospective effect of the declaration of
invalidity
; and
(ii)
an order suspending the declaration of invalidity for any period
and
on any conditions, to allow the competent authority to correct the
defect.”
See
also
Cross-Border Road Transport Agency v Central African Road
Services (Pty) Ltd
[2015] ZACC 12
;
2015 (5) SA 370
(CC);
2015
(7) BCLR 761
(CC) at paras 13-20.
[29]
See
Gaertner
above n 5 at paras 76 and 88 and
Estate
Agency Affairs Board
above n 4 at paras 49-51 and 73.
[30]
S
v Zuma
[1995] ZACC 1; 1995 (2) SA 642 (CC); 1995 (4) BCLR 401 (CC).
[31]
Id at
para 43.
[32]
Id.
[33]
Mistry
above n 15 at para 42.
[34]
This
Court pronounced in
Gaertner
in
2013 and
Estate
Agency Affairs Board
and
Ngqukumba
in 2014.
[35]
Dawood
and Another v Minister of Home Affairs and Others; Shalabi and
Another v Minister of Home Affairs and Others; Thomas and
Another v
Minister of Home Affairs and
Others
[2000] ZACC 8
;
2000 (3) SA 936
(CC);
2000 (8) BCLR 837
(CC) (
Dawood
)
at para 18.
[36]
Texas
Co (SA)
Ltd
v Cape Town Municipality
1926
AD 467
at 488.
[37]
Payen
Components South Africa Ltd v Bovic Gaskets CC
1999 (2) SA 409 (W) at 417D.
[38]
Id.