Warrantless searches declared unconstitutional in win for inner-city residents — Parliament ordered to fix SAPS Act

3 Jul 2020

In a hard-hitting judgment, the Johannesburg High Court declared unconstitutional warrantless searches of private homes and the people inside — and gave Parliament two years to fix Section 13(7)(c) of the SAPS Act. Importantly, the ruling makes significant findings on how public officials exercise power.

It’s taken about two years to get here, and the legal journey is not yet over.

The Socio-Economic Rights Institute (SERI), which represented Johannesburg inner-city residents, has 15 days from the 29 June warrantless search judgment to approach the Constitutional Court for an order confirming the declaration of invalidity. The SAPS may yet decide to appeal as SAPS national spokesperson Brigadier Vish Naidoo indicated on Thursday:

“We have briefly studied this judgment and we are seriously considering opposing it.”

Until all these processes are completed, Monday’s declaration of invalidity by a full Bench of the Johannesburg High Court remains inactive.

But it’s a crucial legal win for almost 3,000 residents of 11 abandoned or hijacked inner-city buildings that had been targeted in 13 raids between 27 May 2017 to 2 May 2018 by the SAPS, Johannesburg Metro Police (JMPD), Home Affairs officials and the City under the DA mayorship of Herman Mashaba.

These raids — effectively cordon and search operations — were conducted under Section 13(7)(c) of the SAPS Act, which states that with written application and approval from provincial or national police commissioners “… any member may cordon off the area concerned or part thereof, and may, where it is reasonably necessary in order to achieve the object specified in the written authorisation, without warrant, search any person, premises or vehicle, or any receptacle or object of whatever nature…”

This provision was “overbroad and does not pass constitutional muster”, found Gauteng Judge President Dunston Mlambo, who wrote the unanimous judgment of the full Bench. “… [T]he extent of the invasion of the innermost component of the personal right to privacy authorised by S13(7)(c) of the SAPS Act is substantially disproportionate to its public purpose. The section is clearly overbroad in its reach insofar as it also permits warrantless, extensive and intrusive searches of private homes and persons inside them.

“It is furthermore deficient in failing to guide police officers as to the manner in which searches of private homes and those present in them should be conducted.”

The Johannesburg inner-city residents had argued these raids violated their rights to dignity — this fundamental right cannot be limited, according to the Constitution — and went beyond any rational limitation of the right to privacy. The court agreed.

Critically, the judgment found Section 13(7)(c) of the SAPS Act went beyond what the Criminal Procedure Act in Section 22 stipulates — that warrantless searches may be conducted only if the person concerned agrees, or if the police officer is confident of getting a warrant, but that this delay would defeat the purpose of the search.

As an interim measure pending Parliament fixing the law within 24 months, the Johannesburg High Court read into Section 13(7)(c) a new provision expressly excluding “any private home and/or any person inside such private home”, also with reference to Section 22 of the Criminal Procedure Act.

It wasn’t as much as the residents of the 11 inner-city buildings wanted — they had argued all of Section 13(7) should be declared invalid. The Johannesburg High Court did not agree, indicating the power to cordon off an area “to restore public order or to ensure the safety of the public” was a legitimate tool for police to achieve their constitutional mandate of ensuring safety and security.

But what was important was how public officials exercise public power.

Administrative justice means the exercise of public power by public officials is reviewable. Officials must apply their minds, show causality between the aim and exercise of public power and ensure people’s dignity is not impaired.

The SAPS was found not to have used the powers on cordon searches to restore public order and ensure public safety as the law allows, but to essentially bring police crime stats under control with the argument that normal policing methods were ineffective.

The court found the raids were conducted “in a manner that was cruel, humiliating, degrading and invasive. They were ostensibly also directed at harassing and intimidating the applicants into vacating the so-called ‘hijacked buildings’ on the pretext that the buildings were bought by new owners... Some of the applicants’ possessions including money were stolen during the raids”, the court found, adding later:

“An elderly woman was forced to undress in front of a JMPD officer, who refused to leave the room in order to allow her to change out of her nightdress. And a community leader was frog-marched out of one of the buildings in his underwear. Save for the arrest of a handful of undocumented migrants, police found no evidence of illegality at the applicants’ homes.”

Ulterior motives underlay the raids.

While Section 13(7) of the SAPS Act permits police action “to restore public order or ensure the safety of the public in a particular area”, the inclusion of Home Affairs officials to search homes and arrest suspected undocumented migrants does not align with that objective.

“By sanctioning the participation of immigration officials in the S13(7) operations they authorised, the decision-makers effectively assisted the Department of Home Affairs to circumvent the requirements of the Immigration Act,” the ruling found.

And the City of Johannesburg used these raids for “occupancy audits of the dilapidated buildings” as Mashaba publicly had identified hijacked buildings as problematic for the City.

“They (raids) appear to have been targeted at communities that were evicted or were under threat of eviction from inner-city buildings, and had claimed alternative accommodation from the City. The raids were also conducted for the ulterior purpose of permitting the City to obtain information about these communities without meaningfully engaging with them.”

The SAPS was found not to have used the powers on cordon searches to restore public order and ensure public safety as the law allows, but to essentially bring police crime stats under control with the argument that normal policing methods were ineffective.

“Ineffectual policing methods and the failure of the police to combat crime” in a particular area did not justify S13(7) operations, according to the full Bench of the Johannesburg High Court, which also found:

“We are of the view that the former provincial commissioner’s reliance on the crime statistics as demonstrating a breakdown of public order in specified areas is misplaced”.

The court said police decision-makers approved “blanket authorisations” for search and seizure operations that were divorced from any necessity for public order and safety.

“The courts continue to interpret the Constitution in a way that vindicates the rights of the poor. Because of this judgment, poor residents of the inner city can enjoy their homes without the fear of being raided by the police.”

The SAPS used templates to apply for the Section 13(7)(c) raids, using the same information although changing individual police officers’ names.

“In the operational plans of seven of the raids conducted out of Hillbrow Police Station from 30 March 2017 to 15 February 2018, the crime statistics for its area of jurisdiction remained the same. Each plan repeatedly states that within a period of three months ‘24 murders, 143 robberies and 43 business robberies’ were committed in Hillbrow, Berea and Joubert Park. These statistics are not verified by a crime intelligence officer…” said the judgment.

The SAPS provincial commissioners — public officials exercising public power — had failed to apply their minds, and instead “simply rubber-stamped” applications. Had they applied their minds, the applications from the Hillbrow, Central Johannesburg and Jeppe police stations would have been turned down — or at least told to provide further information.

Because there was no link between the application and the public purpose of restoring public order or ensuring public safety, all applications for the Section 13(7)(c) raids were declared unlawful and invalid — and set aside. All searches, inspections, arrests, fingerprints and seizures are therefore declared unlawful — and set aside.

SERI attorney for the residents, Khululiwe Bhengu, said in a statement after the 29 June judgment:

“The courts continue to interpret the Constitution in a way that vindicates the rights of the poor. Because of this judgment, poor residents of the inner city can enjoy their homes without the fear of being raided by the police.”

On Thursday, SERI Research and Advocacy Officer Edward Molopi said this case showed how police had used this particular section of the law to bypass the need to obtain a warrant to search people’s homes, disrespecting their privacy.

“What this judgment does, it outlaws warrantless searches… in particular in the context of a home.”

This is an important win for vulnerable communities. But the wait is now on to see if the police, or the City of Johannesburg, will appeal. DM

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