The constitutional invalidity of warrantless drugs searches in South Africa
| Published date | 01 June 2018 |
| DOI | 10.1177/0032258X17692588 |
| Author | Neil Parpworth |
| Date | 01 June 2018 |
| Subject Matter | Articles |
Article
The constitutional invalidity
of warrantless drugs
searches in South Africa
Neil Parpworth
Leicester De Montfort Law School, De Montfort University, Leicester, UK
Abstract
In some jurisdictions, where individual privacy and property rights are afforded consti-
tutional protection, legal disputes regarding police powers of entry and search some-
times extend beyond the law of tort into public law, where the challenge is to the power
itself. The South African Constitutional Court has determined the constitutional validity
of warrantless powers of entry and search on a number of occasions. This article dis-
cusses the most recent addition to this body of case law, as well as several related
authorities from other jurisdictions. Where appropriate, reference to the position in
English law also forms part of the discussion.
Keywords
Drugs, entry, search and seizure, statutory power, warrantless, legal challenge, right to
privacy, constitutional invalidity
Introduction
It is an essential function of any recognisable police force to enforce the law, prevent
crime, and investigate the commission of criminal offences. To assist them in this task,
national legislatures often confer a range of statutory powers on police officers which are
to be used at the discretion of the individual officer. Some powers may be wide in scope
and general in nature. Others, however, may be more specific, such as s. 11(1)(a) and (g)
of South Africa’s Drugs and Drug Trafficking Act 140 of 1992. This provides for a
warrantless power of entry, search and seizure where there are reasonable grounds to
suspect that an offence contrary to the Act has been or is about to be committed.
Corresponding author:
Neil Parpworth, Lei cester De Montfort Law School, De Montfort U niversity, The Gateway, Leicester LE1
9BH, UK.
Email: njp@dmu.ac.uk
The Police Journal:
Theory, Practice and Principles
2018, Vol. 91(2) 123–138
ªThe Author(s) 2017
Reprints and permission:
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DOI: 10.1177/0032258X17692588
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Where there is a legal dispute as to what police powers authorise, it is important that
cases are heard by an independent judicial branch of government, and that the courts
interpret the relevant powers as narrowly as possible without d oing violence to the
language or intention of the legislature. Where it is alleged, however, that the relevant
statutory power is unconstitutional, a Supreme or Constitutional Court may possess the
authority to strike the power down, or at least declare it to be invalid. In the recent case of
Minister of Police and others vKunjana [2016] ZACC 21, the South African Constitu-
tional Court was called on to confirm a declaration of constitutional invalidity made by
the High Court in the Western Cape in respect of s. 11(1)(a) and (g) of the 1992 Act.
1
Its
decision merits consideration for a number of reasons, not least of which is the balance
which the court recognised needed to be struck between the necessity of police officers
having effective investigative powers on the one hand, and the constitutionally protected
privacy rights of the individual on the other. The need to achieve that same balance
between these two important competing public interests is of course highly relevant in
many other legal jurisdictions, including that of the UK (Cragg and Straw, 2014).
The Drugs and Drug Trafficking Act 140 of 1992
As its long title states, the 1992 Act provides for: ‘the prohibition of the use or possession
of, or the dealing in, drugs and of certain acts relating to the manufacture or supply of
certain substancesor the acquisition or the conversionof the proceeds of certaincrimes; for
the obligation to report certain information to the police; for the exercise ofthe powers of
entry, search, seizure and detention in specified circumstances; for the recovery of the
proceeds of drug trafficking; and for matters connected therewith’. For present purposes,
the key provision in the 1992 Act was s. 11, which confers a range of powers on South
African policeofficers to assist them ineither investigating offencescommitted contrary to
the 1992Act, or to prevent such offences fromoccurring. Thus, for example,the police have
the power to question any person whom they suspect may be capable of ‘furnishing any
information as to any offence or alleged offence under this Act’.
2
Additionally, an officer
may requirethat any vehicle, vessel or aircraft be stopped inorder that it may be searched.
3
In the proceedings before the High Court, the respondentin the present case had filed two
applications,one of which sought an order declaringthe whole of s. 11 to be contrary to the
South African Co nstitution and theref ore invalid. Although V eldhuizen J conside red such an
orderto be ‘clearly overbroad’ onaccount of the fact that s. 11 ‘containsprovisions that have
nothing to dowith the facts of the matter under consideration’,
4
he did make a more limited
declaration of constitutional invalidity in respect of s. 11(1)(a) and (g) of the 1992 Act. He
also stated that the declaration did not have retrospective effect.
The impugned provisions stated that:
A police official may –
(a) if he has reasonable grounds to suspect that an offence under this Act has been or
is about to be committed by means or in respect of any scheduled substance,
drug or property, at any time –
124 The Police Journal: Theory, Practice and Principles 91(2)
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