| SOUTH AFRICA

When can the police search your home?

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The Constitutional Court has given us the answer

Photo of police searching a stall
Police search vendor stalls as part of Operation Fiela at Cape Town station last year. Photo courtesy of SAPS
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On 14 March 2011, drugs with a street value of R13 million were found during a raid that took place in two residential properties being leased by Grace Kunjana. The police did not have a warrant to search the properties but had received a tip-off from a confidential informant. Kunjana was subsequently arrested. She was charged with possession of and dealing in drugs.

In 2014, while the criminal case was still pending, Kunjana filed an application in the Western Cape High Court, challenging the constitutionality of the sections of the Drugs and Drug Trafficking Act which allowed the police to search her properties without needing to obtain a warrant.

Last year, the high court declared sections 11(1)(a) and (g) of the Drugs Act, invalid. The high court’s order of invalidity then had to be confirmed by the Constitutional Court.

The Constitutional Court has now offered clarity on the legal status of warrant-less searches under the Drugs and Drug Trafficking Act and found that these searches infringe on the right to privacy to a degree that cannot be justified and is unconstitutional.

When the application was brought, the Minister of Police and other parties had conceded that the searches under sub-section 11(1)(a) did infringe on the Constitutional right to privacy and the issue to be decided by the court was whether the infringement was justifiable.

Under the Constitution, certain rights may be infringed if the infringement can be justified in an open and democratic society. Whether an infringement can be justified is dependant on a number of factors including whether the purpose of the infringement is important enough to warrant a limitation on constitutional rights and whether there are less restrictive means to achieve the purpose. The latter question was particularly important in this case because searches with warrants also infringe the right to privacy but in a justifiable way.

The challenged sections of the Drugs Act read as follows:

Section 11(1): “A police official may—

  1. 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—

    1. 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;

    2. search any container or other thing in which any such substance, drug or property is suspected to be found;

  2. seize anything which in his opinion is connected with, or may provide proof of, a contravention of a provision of this Act.”

This allows the police to search a suspect’s property (including vehicles or ‘other things’) provided they have reasonable grounds to suspect that a crime involving drugs has been or is going to be committed. This section grants the police a broad power, which does not require a warrant or even information from an informant.

In fact, in order for a search to take place, the police officer need only have a ‘reasonable suspicion’ that a crime has or might be committed. There are no specific requirements relating to urgency or evidence that need to be met before the search takes place.

The requirements to obtain a search warrant in order to execute a search not relating to drug crimes are similarly vague and require only a ‘reasonable suspicion’ of a crime having been or going to be committed.

The key distinction, however, is the requirement to obtain a warrant before the search occurs. The point of this is that the suspect’s right to privacy is not compromised more than necessary. This is because the official asking for the warrant must convince a judicial officer that sufficient grounds exist and the warrant will specify the time, place and limit the scope of the search it authorises.

Search warrants are a meaningful way to protect constitutional rights. Searches without warrants can only be justified in limited circumstances. In the case of the Drugs Act, this was not the case and going forward searches, irrespective of whether they relate to suspected contraventions of the Drugs Act or other crimes now, generally, require warrants.

However, it is important to remember that there are certain circumstances where a warrant is not necessary, no matter the crime involved. Under section 22 of the Criminal Procedure Act, a police official may execute a search in two circumstances. The first is if the suspect or owner of the property consents to a search and seizure. This applies to any search of property, persons or containers.

The second circumstance is when the need to execute the search is so urgent that the delay caused by obtaining a warrant would ‘defeat the object of the search’. Plainly speaking, this allows police to search and seize evidence if they believe the suspect is going to destroy it or remove it imminently. However, there are restrictions on this power which ensure that it will not be abused. The official concerned has to have reasonable grounds to believe that if he had applied for the warrant, it would have been issued.

In the event that there was no real urgency or if there were insufficient grounds for the search to take place, the evidence will have been unconstitutionally obtained and cannot be used against the accused during his or her trial.

Interestingly, the order of invalidity will not actually have any impact on Kunjana’s case, which will now resume, since the Constitutional Court’s order of invalidity will only apply to cases going forward. So, for the time being, accused people facing drug charges cannot rely on the court’s decision to have evidence against them declared inadmissible.

However, if the police come knocking at your door in the future, don’t forget to ask them for the warrant.

Correction: The original article numbered the quote from the Constitution incorrectly. This was an error introduced during typesetting. Our apologies.

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TOPICS:  Court Human Rights

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Write a letter in response to this article

Letters

Dear Editor

If they have searched your house twice before and found nothing, and they find a matchbox and a few seedlings the third time is that justifiable?

Dear Editor

If the court found that a warrantless search and seizure was unconstitutional then how can they rule it not to impact on previous cases?

The Constitution has not changed.

How can it be an unconstitutional today and in future, but ok if it happened before the court's ruling?

GroundUp Editor's Response

Dear Aubrey

Thank you for this question because it raises a very good point.

You are correct in your understanding that when the warrantless search and seizure was found unconstitutional, it means that all the previous warrantless search and seizures were technically unconstitutional. In this case the Drugs and Drug Trafficking Act dates back to 1992 and the court faces the difficulty of fourteen years of searches taking place under the Act without warrants.

Police officers who executed these searches may have had grounds to apply for a warrant but didn’t do that because they didn’t know they had to. Often there have been many actions taken under an invalid Act which, for practical reasons, cannot be invalidated without huge inconvenience and prejudice to other people.

There is a principal that new law and decisions should not generally apply retrospectively or to past actions, only to future actions and decisions. When the Constitutional Court invalidates an act, it usually suspends the order of invalidity to give Parliament time to pass new legislation which means that the unconstitutional legislation continues to apply (remember the Glenister case challenging the creation of the Hawks). However, in this case, there was other legislation which allowed searches to happen constitutionally so Parliament would not need to pass new legislation.

In certain, exceptional, circumstances the court can choose to have an order of invalidity apply retrospectively but that would most likely cause great difficulties in prosecuting any drug crimes for the next few years.

Ultimately when the order of invalidity should be effective from is a value judgment.

GroundUp Editor's Response

Dear Tamas

Each search needs to be considered individually. If we assume that the last two searches took place before the Kunjana judgement, it doesn’t matter that there were no warrants. However, it is still possible to challenge the validity of the search.

In terms of the Drugs and Drug Trafficking Act, the police need to have reasonable grounds to suspect that a contravention of the Act has and might still take place. Reasonableness is an objective standard which means the court can review whether the grounds the search is based on are reasonable.

If the police officer who executed the search failed to meet the reasonable grounds requirement, the evidence obtained in the search will become inadmissible.

Please do note that possession of any of the substances listed in the Act as well as any plant or part thereof is a contravention of the Act and is a criminal offence under South African law.

Dear Editor

I am a school teacher in a government school. Police came to our school to search the school kids for any illegal stuff. I was later on called by one of the police and I was issued with a search warrant for my house. The allegation was that I am selling drugs. They searched and found nothing. Later on I saw my house photos on social media circulated by the police. Can I sue for this?

Dear Editor

I'm a officer in the SAPS. While watching TV one day, the gang unit banged on my door. I went to the door and found two constables in uniform with balaclavas on. I asked if I can help? One of them just said 'we have a search warrant' and pushed the door and myself into the flat.

They didn't give any reason or say who they were before they started searching. I was pushed around while demanding their search warrant, to no avail. They found out that I'm an officer and left the scene without any explanation.

What is my rights?