SEARCH FOR DRUGS WITHOUT WARRANT DECLARED INVALID

MINISTER OF POLICE AND OTHERS v KUNJANA 2016 (2) SACR 473 (CC)

Drugs — Search — Search without warrant in terms of s 11(1)(a) and (g) of Drugs and Drug Trafficking Act 140 of 1992 — Provisions infringing right to privacy in circumstances where less restrictive means available to achieve aims of legislation — High Court declaration of invalidity confirmed with prospective effect.

Constitutional practice — Costs — Confirmation of declaration of invalidity — Party (respondent in Constitutional Court) not entitled to costs of representation in circumstances where no novel or complex issues raised and applicants had not only conceded that legislation constitutionally invalid but had themselves brought the confirmation application.

The respondent’s premises were searched by police officials in terms of s 11(1)(a) and (g) of the Drugs and Drug Trafficking Act 140 of 1992 (the Act), which allowed for searches without a warrant and without circumscribing the time, place and manner of the search. She subsequently brought an application in the High Court declaring the whole of s 11 constitutionally invalid. The court declined to find the entire section invalid but declared that s 11(1)(a) and (g) were unconstitutional as they infringed the right to privacy enshrined in s 14 of the Constitution. The declaration was not to have retrospective effect. Although the applicants had initially opposed the application, they subsequently conceded, and, after the declaration of invalidity by the High Court was made, brought the present application seeking its confirmation.

Held, that the impugned provisions were broad and there were less restrictive measures, such as those in s 22 of the Criminal Procedure Act 51 of 1977, to achieve the purposes of the Act. There was no discernible reason for s 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 necessitated by the circumstances. The limitation of the respondent’s right to privacy and dignity by the subsections could not be justified in terms of s 36 of the Constitution and they were accordingly constitutionally invalid.

Held, further, as to whether the declaration had to be made retrospective or prospective, that without an earlier challenge of constitutional invalidity, the respondent, who had been searched in compliance with then binding legislation, could not aver that it would be unjust for the court to make a prospective order but one that still protected her interests. She was no doubt aware that legislation existed to prevent and combat drug-related offences, and her institution of the proceedings to challenge the legislation some two and a half years after the searches had been conducted did not entitle her to an exemption from their application. The offences prosecuted under the Act were serious. Retrospective application could cause criminals who had contravened the provisions of the Act to go free and undermine the administration of justice. It could also result in delictual claims by persons who had been subjected to searches and seizures. It was therefore appropriate that the declaration of constitutional invalidity be confirmed and its operation be prospective only.

Held, further, as to the respondent’s application for costs for representation in the Constitutional Court, that at the time of the hearing the court’s pronouncements in analogous cases were not only fresh but plain in their impact on the impugned provisions. Furthermore, not only had the applicants conceded the invalidity of the provisions but had also sought confirmation in the Constitutional Court. Although there might very well be instances where a respondent’s presence in confirmation proceedings was necessary to ensure that its interests were protected in the event of novel or complex issues arising during the hearing, in the circumstances of the present case, this contention could not be sustained. Her costs were accordingly limited to her costs up to the delivery of her notice that indicated her support for the confirmation application.

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