Minister of Police and Others v Grace Kunjana 2016 (9) BCLR 1237 (CC)

By Charné Dunn

In the case of Minister of Police and Others v Grace Kunjana 2016 (9) BCLR 1237 (CC) the Constitutional Court (CC) confirmed the Western Cape Division of the High Court’s declaration of constitutional invalidity of s 11(1)(a) and (g) of the Drugs and Drug Trafficking Act 140 of 1992 (the Drugs Act).

The constitutionality of s 11(1)(a) and (g) of the Drugs Act was assessed by weighing the reasonableness and justifiability of the limitation in terms of the limitation clause.

In order to understand why the respondent in this matter argued that the limitation of s 11(1)(a) and (g) of the Drugs Act infringes on their constitutional right to privacy, it is important to consider the nature and extent of the limitation.

The nature and extent of the limitation imposed by s 11(1) of the Drugs Act

At para 20 of the Kunjana case, the judge held that the primary purpose of s 11(1) of the Drugs Act seeks to prevent and prosecute any criminal offences under the Drugs Act.

As the South African Police Service (SAPS) is the primary custodian of executing such crime prevention strategy, the duty falls on it to ensure that all persons comply with the relevant legislation.

Section 11(1), therefore, gives SAPS officials a broad scope of powers to maintain law and order. This includes and condones warrantless searches and seizures of private property.

The shortfall of s 11(1), as lamented by Mhlantla J, is that it does not make provision for the ‘time, place nor manner in which the searches and seizures can be conducted’.

By contrast, a valid search warrant sets out the specific details pertaining to the scope of any search and seizure operation.

National Instruction 2/2002 of the SAPS regarding search and seizure

Section 3 of the National Instruction sets out as a general rule that ‘any article that is in some way connected to an offence, may be seized’.

Section 3(2) deals with the general exception to the rule, however, this is limited to documents, which are subject to legal privilege only.

The general rule is exceptionally broad and must be tempered by having consideration of the prevailing circumstances and context within which a search and seizure is conducted.

Section 5(1) of the National Instruction provides a better and more concise rule applicable to all search and seizure operations and states that:

‘Whenever it is practically possible, a search and seizure must only be conducted after a search warrant has been obtained. A member may only deviate from this rule when all the requirements laid down in legislation authorising a search without a warrant, have been complied with’ (my italics).

Section 5(2) lists the exceptions to the general rule and lists legislation, which empowers the SAPS to legally conduct warrantless searches. Of these exceptions, we will focus only on s 11(1) of the Drugs Act.

The relation between the limitation of the right to privacy and its purpose of the limiting provision

In the Kunjana case, the applicant submitted that a correlation does exist between the purpose of s 11(1)(a) and (g) of the Drugs Act and the limitation, which it imposes.

As previously stated, the purpose of the Act is to prevent and prosecute offences under the Drug Act.

The harmful effect of the use and dealing in drugs is far reaching and far encompassing as it often affects not only the individual, but the community at large.

In a recent Western Cape Division review judgment, the judge confirmed that the use of drugs should be seen as an illness as opposed to a form of criminal conduct (S v Frederick and Another 2018 (2) SACR 686 (WCC)). However, despite this, the possession of an undesirable controlled substance is still considered as a contravention of the Drugs Act and is duly treated as such.

The enforcement of s 11(1) of the Drugs Act read together with ss 20 to 22 of the Criminal Procedure Act 51 of 1977 (the CPA), falls largely to members of the SAPS.

Where the empowering provision is circumvented or, as in the Kunjana case, is declared constitutionally invalid, the SAPS has to address the shortfall in its National Instruction so as to continue with its purpose of serving and protecting the community.

The gap in literature: The shortfall of the SAPS’ National Instruction

As of the date of print of the National Instruction, no further instruction has been issued regarding search and seizure by the SAPS.

This dilemma needs urgent attention as the National Instruction is seen as the founding document regulating police conduct.

While s 22(a) and (b) of the CPA seeks to remedy the gap in literature between the constitutional ruling in the Kunjana case and the National Instruction, it still sets out requirements, which needs to be complied with.

Section 22 of the CPA provides two grounds on which a warrantless search and seizure may be conducted, namely –

• the person concerned consents to such a search and seizure; and
• where the SAPS member believes that a search warrant will be issued if applied for, but that the delay in obtaining the warrant would defeat the object of the search.

As submitted by Mhlantla J it is important to note that the refusal by a person to a warrantless search and seizure does not escalate it to being a reasonable ground to believe that the person is in the possession or control of a dependence-producing or other substance.

Practical application of the National Instruction

Section 29 of the CPA read with s 16 of National Instruction requires that a search be conducted in a decent and orderly manner.

Section 16(3) of National Instruction further requires that:

‘Due respect for the belongings of other persons must be shown at all times while a search is being conducted, and a member must –

(a) not cause unnecessary disorder or damage; and

(b) always treat the possessions of others like he or she wants others to treat his or her possessions.’

A recent look at the Western Cape Police Ombudsman 2017/18 Annual Report, indicates that there is a sure and steady rise in complaints against the SAPS for misconduct arising from members’ conduct during search and seizure operations. These complaints concern the damage caused by members of the SAPS during these operations and that no warrant was made available to the complainant.

Where it is found that the conduct of such members during the carrying out of such warrantless search and seizure operations is ultra vires, such conduct will lend itself to a civil claim being lodged against the Minister of Police.

Conclusion

In view of the above submissions, it is evident that the outdated literature of the SAPS’ National Instruction, which relates to warrantless search and seizure operations in terms of the Drugs Act, needs to be amended so as to comply with the current legal dispensation offered by the CC.

As is pointed out in the Kunjana case:

‘The fundamental problem in section 11 (1)(a) and (g) is that it allows police officials to escape the usual rigours of obtaining a warrant in all cases.’

In addressing the conduct of the SAPS, it is imperative that the upper echelons pay greater heed to updating its National Instructions in an effort to keep the SAPS conduct in line with this prevailing legislation.

Charné Dunn BA (Rhodes) LLB (UKZN) PG Dip Labour Law (UWC) is an Investigating Officer at the Western Cape Government: Department of Community Safety in Cape Town.

This article was first published in De Rebus in 2019 (JanFeb) DR 49.