Is a law on warrantless searches constitutionally invalid?
THE minister of police has asked the Constitutional Court to confirm a court order which declared that a law providing for warrantless searches was constitutionally invalid.
The minister made this application following an order of the Western Cape High Court in December last year that sections 11(1)(a) and (g) of the Drugs and Drug Trafficking Act are invalid.
The minister approached the Constitutional Court as it is the only court which has a power to confirm the constitutional invalidity of any legislation.
The court has reserved judgment.
Grace Kunjana’s is a case in point. Her two homes in Cape Town were searched by police in 2011 after police received a tip-off that there were drugs on one of the premises.
Police seized drugs‚ including 380kg of mandrax tablets and R1.8m in cash‚ without obtaining a warrant from the court.
The state later obtained a court order whereby the cash and Ms Kunjana’s vehicle were declared forfeit to the state as proceeds of crime.
The woman is currently facing a number of charges‚ including illegal possession and dealing in mandrax. She challenged the legality of those subsections and the high court declared them invalid.
Andrew Breitenbach SC‚ for the ministers of police‚ justice and the prosecuting authority‚ told the court that the sections permitted searches without a warrant.
Mr Breitenbach said the Constitutional Court had held in previous judgments that the determination on whether grounds existed for the invasion of privacy from searches called for judicial intervention.
"We concede that the absence of a warrant requirement is a fundamental problem. We concede that the sections infringed the right to privacy‚" Mr Breitenbach said.
He said that the involvement of a judicial officer was a safeguard against searches which might unjustifiably violate rights, and also that the prerequisite of a warrant issued by a judicial officer meant the risk was reduced that evidence accumulated in a search would be challenged in subsequent civil or criminal proceedings.
However‚ Breitenbach requested that the court should limit the invalidity of those sections to future cases.
"These provisions have been used in good faith by SAPS for searches and seizures in countless investigations‚ some of which have resulted in finalised criminal proceedings or completed criminal cases‚" he said.
Counsel for Ms Kunjana‚ Anton Katz SC‚ said 20 years into democracy‚ the minister of justice had made no attempt to initiate a legislative programme to repeal the offending subsections which were constitutionally invalid. He said the executive had a duty to repeal or amend the offending provisions.
"Instead‚ they have effectively relied‚ impermissibly‚ and without justification‚ on the courts to rid the statute books of the impugned provisions‚" Mr Katz said.