Consider the following scenario:- Its 3am in the morning and you have just got your two year old child asleep. You are exhausted. Just before closing your eyes, you hear a loud banging on your front door: it’s the police coming to search your premises for drugs. They barge in, and immediately begin searching your home for anything drug related. You, being an astute citizen, ask for a warrant, to which the response is “we don’t need one”. You are told to sit down and remain quiet. 3 hours later, the police eventually leave after not locating any drugs. You are frustrated, tired and most importantly feel violated. How can this be allowed? How can this be legal?
Well, consider the same scenario above, with the only difference being that drugs were actually found on the premises. Suddenly, the police officials go from zero to hero, but even so, can these officials simply barge into your home under the authority granted to them in terms of an Act which you could possibly not know of?
On 27 July 2016, the Constitutional Court handed down judgment in Minister of Police and Others v Kunjana  ZACC 21 regarding a declaration of invalidity of Section11 (1)(a) and (g) of the Drugs and Drug Trafficking Act 140 of 1992 (“the Act”), which sections read as follows:
Section 11 (1) 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 of in respect of any scheduled substance, drug or property, at any time –
(i) Enter or board and search any premises, vehicles, vessel or aircraft on or in which any 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
The Act grants police officials wide powers to conduct a warrantless search in any premises if there are reasonable grounds that an offence under the Act has, or is about to be committed, and the power to seize anything that would result in the infringement of the Act.
On 14 March 2011, members of SAPS received information that a large quantity of drugs was being kept at a two separate premises, both of which were leased by Ms Grace Kunjana (the Respondent).
Relying on section 11 of the Act, the police searched Ms Kunjana’s premises and discovered large amounts of Mandrax and ‘Tik’ on site and proceeded to arrest Ms Kunjana, charging her with being in possession of, and dealing in Mandrax and ‘Tik’.
Ms Kunjana approached the High Court for an order declaring that Section 11 of the Act was unconstitutional. The High Court granted an order that subsections (a) and (g) unduly infringed her right to privacy and accordingly declared them invalid. The court also held that such order shall have immediate effect as police officials had other remedies and investigating powers at their disposal.
The Minister of Police approached the Constitutional Court for confirmation of the High Court’s order of constitutional invalidity. The application was supported by Ms Kunjana.
In conducting a limitations clause analysis and ultimately confirming the declaration of invalidity, the Constitutional Court highlighted the following points:
- Section 11 of the Act is a violation of the right to privacy which is entrenched by section 14 of the Constitution.
- 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 distinguished a constitutional democracy from a police state.
- The purpose of the Act is to prevent and prosecute offences committed under the Act. These offences are conducted in a clandestine fashion, and the successful operation thereof mandates a limitation of the right to privacy. Dispensing with the requirement of a warrant allows police officers to conduct an efficient inspection by facilitating the quick discovery of evidence that would otherwise be lost or destroyed. The importance of this purpose diminishes the invasiveness of searches.
- A rational purpose must exist between the purpose of the law and the limitation it seeks to impose. The prevention of prosecution of offences under the Act, which concern illicit and harmful drugs that constitute a danger to public safety, mandate the operation of warrantless search and seizure operations.
- An issue with the section is that it does not prescribe the time, place, or manner in which the warrantless searches and seizures are to be conducted. These provisions are invasive and far-reaching, with section 11(g) allowing police officers to seize ‘anything’ connected with a contravention of a provision of the Act. This vests a fair degree of discretion with the official, which exposes the process to abuse, and therefore requires legislative guidance so as to avoid being unduly broad, and consequently, unjustifiably invasive of an individual’s right to privacy.
- A further problem with section 11(a) and (g) is that it empowers officials to avoid the usual process of obtaining a warrant in all cases, including those cases where urgent action is not required and where the delay occasioned in obtaining a warrant will not result in the items or evidence sought being lost or destroyed. The provisions also do no preclude the possibility of a greater limitation of the right to privacy than is necessitated, with the result that police officials may intrude in instances where an individual’s reasonable expectation of privacy is at its apex.
Based on the aforementioned, the Constitutional Court concluded that section 11(1)(a) and (g) of the Act constitutes an unjustifiable limitation on the right to privacy and dignity and is therefore constitutionally invalid and that, ultimately, less intrusive measures exist to achieve the purpose of the Act.
It was further held that the order of invalidity operate prospectively (i.e. moving forwards), as the retrospective effect of such an order may cause criminals who have contravened provisions of the Act to go free, which in turn, undermines the administration of justice.