Buthelezi v Minister of Police (A3040/19; 9313/2017) [2019] ZAGPJHC 453; 2020 (2) SACR 21 (GJ) (20 October 2019)

Buthelezi v Minister of Police (A3040/19; 9313/2017) [2019] ZAGPJHC 453; 2020 (2) SACR 21 (GJ) (20 October 2019)

The court found that the search of Mr Buthelezi's home was not lawful under sections 25 or 26 of the Criminal Procedure Act, as the requirements for a warrantless search were not met and consent was not freely given but coerced by the threat of violence from the crowd. However, the constitutional duty to protect the best interests of the child imposed a duty on both the police and Mr Buthelezi to assist in the search for the missing child. The intrusion into privacy was justified and not wrongful when conducted solely for the purpose of finding the child. The police's use of the occasion to investigate Mr Buthelezi's liquor license was an abuse of power, not covered by the constitutional...

Citation
[2019] ZAGPJHC 453
Parties
Appellant: Vusi Buthelezi; Respondent: Minister of Police
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
20 October 2019
Case Number
A3040/19; 9313/2017
Procedural Posture
Civil Appeal / Appeal From Magistrates' Court Judgment
Outcome
Appeal upheld in part; damages awarded for wrongful conduct by police during the search.
Judges
Unterhalter, Francis-Subbiah
Legal Topics
Unlawful Search and Seizure, Injuria, Best Interests of Child, Damages, Consent, Right to Privacy
Civil Procedure Constitutional Law Unlawful Search and Seizure Injuria Best Interests of Child Damages Consent Right to Privacy

Case Brief

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Parties

Vusi Buthelezi

Appellant

Minister of Police

Respondent

Procedural Posture

Civil Appeal / Appeal From Magistrates' Court Judgment

Legal Issues

  1. 1 Was the warrantless search of Mr Buthelezi's home by SAPS lawful under the Criminal Procedure Act?
  2. 2 Did Mr Buthelezi freely and voluntarily consent to the search?
  3. 3 Does the constitutional principle of the best interests of the child justify the search?

Ratio Decidendi

The court found that the search of Mr Buthelezi's home was not lawful under sections 25 or 26 of the Criminal Procedure Act, as the requirements for a warrantless search were not met and consent was not freely given but coerced by the threat of violence from the crowd. However, the constitutional duty to protect the best interests of the child imposed a duty on both the police and Mr Buthelezi to assist in the search for the missing child. The intrusion into privacy was justified and not wrongful when conducted solely for the purpose of finding the child. The police's use of the occasion to investigate Mr Buthelezi's liquor license was an abuse of power, not covered by the constitutional...

Court Disposition

Appeal upheld in part; damages awarded for wrongful conduct by police during the search.

Orders

  • The appeal is upheld.
  • The orders of Additional Magistrate Johannesburg, Ms R Lerm, are set aside.