"...warrant-less searches were unlawful and inconsistent with the Constitution‚ and asked the high court to declare them invalid. The high court did and the Constitutional Court has now agreed."
All South Africans have a constitutional right to privacy and suspected drug traffickers are not exempt.
This according to the Constitutional Court‚ which on Wednesday removed the rights of police officers to conduct warrant-less drug busts.
A section of the Drugs and Drug Trafficking Act allows police officers to search for drugs on a tip-off‚ without a warrant. But the court has found this section to be constitutionally invalid‚ saying that it infringes on the rights to privacy and dignity of suspects.
The section was first found invalid by the Western Cape High Court in December 2015‚ in an application filed by Grace Kunjana.
The minister of police‚ director of public prosecutions in the Western Cape and minister of justice and correctional services referred the case to the Constitutional Court for confirmation.
Kunjana had taken the matter to the high court after police officers raided two Cape Town properties‚ leased by her‚ in March 2011 without search and seizure warrants.
The South African Police Service had received information that large quantities of drugs were being kept at Kunjana’s premises and would be moved on the day of the search.
The raid found the following:
– A total of 24‚719 Mandrax tablets‚ weighing more than 33kg‚ at Kunjana’s Kenilworth premises;
– A total of 262‚818 Mandrax tablets‚ weighing over 350kg and “Tik” weighing more than 2kg‚ at Kunjana’s Wynberg premises; and
– Cash in an amount of R1‚823‚200 at Kunjana’s Wynberg premises‚ with traces of Mandrax.
Kunjana was arrested and charged with being in possession of and dealing in illegal drugs. Her criminal trial is currently pending in the high court.
But Kunjana had argued that the two warrant-less searches were unlawful and inconsistent with the Constitution‚ and asked the high court to declare them invalid.
The high court did and the Constitutional Court has now agreed.
In the unanimous judgment‚ the Constitutional Court said that police officers have other remedies and investigating powers at their disposal to bring suspected drug dealers to book.
The declaration of invalidity is prospective‚ which means those who were busted with drugs in warrant-less searches before the court’s order cannot rely on it to escape their charges.
Kunjana may still challenge the validity of the searches on her leased properties during her trial‚ the court said.
Kunjana’s lawyer Francois Potgieter declined to comment. Attempts to reach Kunjana had been unsuccessful at the time of publication.
The minister of police‚ director of public prosecutions in the Western Cape and minister of justice and correctional services have been approached for comment.