police raids - constitutionality of section 13(7) of the SAPS Act - search without a warrant - South Gauteng High Court
SERI represents the residents of 11 buildings in inner-city Johannesburg who are challenging the lawfulness and constitutionality of over 20 police raids conducted at the behest of the Minister of Police and the Mayor of the City of Johannesburg, Herman Mashaba, between 30 June 2017 and 3 May 2018.
The majority of the 20 raids were authorised in terms of section 13(7) of the South African Police Services Act 68 of 1995, which empowers the police to “cordon-off” an area to “restore public order or ensure the safety of the public”, while two were conducted without any legal authorisation at all. The residents challenge the constitutionality of section 13(7) insofar as it allows for a person’s home to be searched without a warrant issued by a court. The residents also claim compensation for the breach of their rights to privacy and human dignity.
During the raids, which were jointly conducted by the South African Police Services (SAPS), the Johannesburg Metropolitan Police Department (JMPD), the Department of Home Affairs and the City of Johannesburg, officials forced residents out of the buildings and onto the streets (often in the middle of the night while residents were only partially clothed), where they were searched, finger-printed and commanded to produce copies of their identity documents, passports or asylum seekers’ permits. Anyone who was unable to produce their identity documents was detained.
Some South African citizens who could not produce their identity documents were arrested because, according to one official, they “looked too dark” to be South African. Most of those that were arrested were never charged and released after a day or two
Inside the buildings, the police often left the residents’ homes in disarray by breaking down doors and partitions, damaging furniture and even stealing valuable items and small amounts of cash.
The matter was heard before a full Bench of the South Gauteng High Court on 16 March 2020. On 29 June 2020, the full bench of the High Court in Johannesburg delivered a judgment declaring section 13 (7) (c) of the SAPS Act constitutionally invalid.
On 20 July 2020, SERI filed an application in the Constitutional Court to confirm the High Court order declaring the section 13 (7) (c) of the SAPS Act constitutionally invalid. SERI further filed an application for direct access to the Constitutional Court to appeal against the High Court judgment insofar as it declined to declare sections 13 (7) (a) and (b) of the SAPS Act unconstitutional; refused the residents’ claims for constitutional damages; refused the residents’ claim for an interdict restraining future unlawful searches of their homes.