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Litigation: Warrantless raids of private homes outlawed

The Constitutional Court has confirmed a High Court order declaring section 13(7)(c) of the South African Police Service Act unconstitutional in a victory for residents of derelict buildings in inner Johannesburg who endured warrantless raids apparently aimed at flushing out illegal foreigners, says a Mail & Guardian report. The section authorizes warrantless searches of any person, home, vehicle or any receptacle or object of whatever nature in a cordoned-off area and gives the police wide power to seize objects in the possession of those searched. ‘This undoubtedly infringes on the right to privacy as elucidated in section 14(a), (b) and (c) of the Constitution,’ the court held, ordering that this part of the Act afforded the authorities powers that exceeded the aim of the public order mandate it envisioned and must be severed. The court concurred with a ruling in July last year, by a full Bench of the Gauteng High Court (Johannesburg) that declared warrantless searches of private homes and their inhabitants unconstitutional and gave Parliament two years to remedy section 13(7)(c).

Gauteng Judge President Dunstan Mlambo had, in an unanimous judgment, held that the section was over-broad and led to impermissible levels of invasion of a person’s inner sanctum, reports the M&G. ‘It is furthermore deficient in failing to guide police officers as to the way searches of private homes and those present in them should be conducted.’ The court found that the relevant section went well beyond the prescripts of the Criminal Procedure Act. It ordered that until Parliament corrects the law, the provisions of section 21 and 22 of the Criminal Procedure Act be read into the vacuum left by the severed part of section 13(7)(c) to allow the police to conduct searches within the scope of the first Act. Not doing so would rob the police of the power to conduct searches and seizures even where these may be necessary. After the High Court ruling, the Socio-Economic Rights Institute approached the Constitutional Court on behalf of some 2 852 people inhabiting 11 abandoned buildings in downtown Johannesburg. The raids took place while Herman Mashaba was the mayor of Johannesburg. Mashaba was the eighth respondent in the matter.

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