Residents of Industry House, 5 Davies Street, New Doornfontein, Johannesburg and Others v Minister of Police and Others (CCT 136/20) [2021] ZACC 37; 2022 (1) BCLR 46 (CC); 2023 (1) SACR 14 (CC); 2023 (3) SA 329 (CC) (22 October 2021)

CONSTITUTIONAL COURT OF SOUTH AFRICA

Case CCT 136/20

In the matter between:

THE RESIDENTS OF INDUSTRY HOUSE,

5 DAVIES STREET, NEW DOORNFONTEIN,

JOHANNESBURG

First Applicant

THE RESIDENTS OF ROSANO MODES,

32 AND 34 DAVIES STREET,

NEW DOORNFONTEIN, JOHANNESBURG

Second Applicant

THE RESIDENTS OF 36 DAVIES STREET,

NEW DOORNFONTEIN, JOHANNESBURG

Third Applicant

THE RESIDENTS OF 39-41 DAVIES STREET,

NEW DOORNFONTEIN, JOHANNESBURG

Fourth Applicant

THE RESIDENTS OF WELLINGTON COURT,

34 LEYDS STREET, JOUBERT PARK,

JOHANNESBURG

Fifth Applicant

THE RESIDENTS OF REMINGTON COURT,

CNR NUGGET AND JEPPE STREETS,

JOHANNESBURG

Sixth Applicant

THE RESIDENTS OF WEMMER SHELTER,

TURFONTEIN, JOHANNESBURG

Seventh Applicant

THE RESIDENTS OF ERVERN 87 AND 88,

BEREA, JOHANNESBURG

Eighth Applicant

THE RESIDENTS OF 20 JANIE STREET,

JEPPESTOWN, JOHANNESBURG

Ninth Applicant

THE RESIDENTS OF 50, 52 AND 54 SOPER ROAD,

BEREA, JOHANNESBURG

Tenth Applicant

THE RESIDENTS OF 1 DELVERS STREET,

MARSHALLTOWN, JOHANNESBURG

Eleventh Applicant

and

MINISTER OF POLICE

First Respondent

CITY OF JOHANNESBURG METROPOLITAN

MUNICIPALITY

Second Respondent

MINISTER OF THE DEPARTMENT

OF HOME AFFAIRS

Third Respondent

DIRECTOR-GENERAL, DEPARTMENT

OF HOME AFFAIRS

Fourth Respondent

MEMBER OF THE EXECUTIVE COUNCIL, ROADS

AND TRANSPORT, GAUTENG

Fifth Respondent

MZAMANI ERIC NKUNA N.O.

Sixth Respondent

DELIWE SUZAN DE LANGE N.O.

Seventh Respondent

HERMAN MASHABA N.O.

Eight Respondent

ALBERT MATSAUNG N.O.

Ninth Respondent

NATIONAL COMMISSIONER OF THE

SOUTH AFRICAN POLICE SERVICES

Tenth Respondent

Neutral citation: Residents of Industry House, 5 Davies Street, New Doornfontein, Johannesburg and Others v Minister of Police and Others [2021] ZACC 37

Coram: Mogoeng CJ, Jafta J, Madlanga J, Mathopo AJ, Mhlantla J, Theron J, Tshiqi J and Victor AJ

Judgments: Mhlantla J (majority): [1] to [126]

Jafta J (concurring): [127] to [161]

Victor AJ (dissenting in part): [162] to [222]

Heard on: 24 November 2020

Decided on: This judgment was handed down electronically by circulation to the parties’ representatives by email, publication on the Constitutional Court website and release to SAFLII. The date and time for hand-down is deemed to be 12h00 on 22 October 2021

Summary: South African Police Service Act 68 of 1995 — constitutionality of section 13(7)(c) — order of constitutional invalidity confirmed — right to privacy — constitutional damages — interdict

ORDER

On appeal from, and in an application for confirmation of an order of constitutional invalidity of the High Court, Gauteng Local Division, Johannesburg:

1. The declaration of invalidity issued by the High Court in respect of section 13(7)(c) of the South African Police Service Act 68 of 1995 (SAPS Act) is confirmed but its order is varied in the terms set out in paragraph 2.

2. The portion of section 13(7)(c) that authorises warrantless searches is severed and the section is now deemed to read as follows, with the underlining denoting an insertion: “Upon receipt of the written authorisation referred to in paragraph (a), any member may cordon off the area concerned or part thereof, and may, where it is reasonably necessary in order to achieve the object specified in the written authorisation and within the cordoned-off area, search any person, premises or vehicle, or any receptacle or object of whatever nature in terms of sections 21 and 22 of the Criminal Procedure Act 51 of 1977 and seize any article referred to in section 20 of the Criminal Procedure Act 51 of 1977, found by him or her in the possession of such person or in that area or part thereof: Provided that a member executing a search under this paragraph shall, upon demand of any person whose rights are or have been affected by the search or seizure, exhibit to him or her a copy of the written authorisation.”

3. Leave to appeal directly against the orders of the High Court is granted.

4. The appeal against the order of the High Court dismissing a constitutional challenge against paragraphs (a) and (b) of section 13(7) of the SAPS Act is dismissed.

5. The appeal in respect of the claim for constitutional damages is dismissed.

6. The appeal in respect of the claim for a final interdict is upheld only in respect of the seventh and eleventh applicants.

7. The order of the High Court dismissing the claim for a final interdict in respect of the seventh and eleventh applicants is set aside.

8. The City of Johannesburg, the Minister of Home Affairs and the Director General of the Department of Home Affairs (second, third and fourth respondents) are interdicted and restrained from raiding, searching, inspecting, seizing any person or item, or otherwise interfering with the seventh and eleventh applicants’ peaceful and undisturbed possession of their homes, except on the authority of an order of court, a warrant granted by a Magistrate or Judge in terms of any applicable law, or in terms of section 22 of the Criminal Procedure Act.

JAFTA J (Mogoeng CJ, Madlanga J, Mathopo AJ, Mhlantla J and Tshiqi J concurring):

[127] I have had the benefit of reading the judgments by my colleagues Mhlantla J (first judgment) and Victor AJ (third judgment). I agree with the first judgment on all issues. I write separately to underscore the point that a claim for constitutional damages is not justified in this matter, for reasons set out below.

[128] Decisions of our courts are not coherent on the question when an award of constitutional damages should be approved by a court.

On the one hand there are decisions which hold that constitutional damages must be allowed where this remedy is the only appropriate

remedy.[139] In Modderklip (SCA) the Supreme Court of Appeal stated:

“What ‘effective relief’ entails will obviously differ from case to case. Where a trespasser invades an owner-occupied household, more immediate intervention will be required from the State than in the case of unoccupied or unutilised land. This is not to deny the fact of the breach of rights in the latter case. It is merely to assert that constitutional remedies will differ by circumstance. The only appropriate relief that, in the particular circumstances of the case, would appear to be justified is that of ‘constitutional’ damages, ie, damages due to the breach of a constitutionally entrenched right. No other remedy is apparent. Return of the land is not feasible. There is, in any event, no indication that the land, which was being used for cultivating hay, was otherwise occupied by the lessees or inhabited by anyone else. Ordering the State to pay damages to Modderklip has the advantage that the Gabon occupiers can remain where they are while Modderklip will be recompensed for that which it has lost and the State has gained by not having to provide alternative land. The State may, obviously, expropriate the land, in which event Modderklip will no longer suffer any loss and compensation will not be payable (except for the past use of the land). A declaratory order to this effect ought to do justice to the case. Modderklip will not receive more than what it has lost, the State has already received value for what it has to pay and the immediate social

problem is solved while the medium and long term problems can be solved as and when the State can afford it.”[140]

[129] This reasoning was in line with the position that was taken earlier by the same Court in Olitzki. There the Supreme Court of Appeal emphasised the availability of alternative remedies in an inquiry to determine whether constitutional damages should be allowed.[141] This was particularly so in a case where the objective was not to compensate the claimant for the loss he or she has suffered but the purpose was to vindicate the Constitution. Remedies that serve the purpose of enforcing the Constitution, by design, transcend the interests of litigants in a particular case. They should be equally available to all persons similarly situated.

[130] On the other hand, in Kate[142] the Supreme Court of Appeal adopted a position at variance with its earlier decisions in Olitzki and Modderklip (SCA). Without overturning Olitzki and Modderklip (SCA), in Kate the Court reasoned that constitutional damages are not “a remedy of last resort, to be looked to only when there is no alternative ­ and indirect ­ means of asserting and vindicating constitutional rights”.[143] This conclusion was grounded in two reasons. The first was that a direct breach of a constitutional right should be vindicated directly. And the second was that the endemic breach of rights justified and called out for the clear assertion of their independent existence.[144] In their contention that constitutional damages should be awarded here, the applicants relied heavily on Kate. Consequently, it is necessary to determine whether that decision entitles them to the damages claimed.

[131] The Supreme Court of Appeal incorrectly concluded that the constitutional damages compensated Ms Kate for her loss. This was in error because she was awarded back pay and interest that covered the entire period of the delay in processing her social assistance. She was put in the position she could have been in if the social assistance was paid to her timeously. Therefore, the constitutional damages that were awarded in addition to her full compensation were punitive for the breach of a right guaranteed by section 27 of the Constitution. The Court accepted that Ms Kate suffered no financial loss. Instead, the Court held that the denial of social assistance when it should have been given to her caused her “the physical discomfort of deprivation” which reduced her dignity.[145]

[132] Having identified the nature of the loss she had suffered, the Court proceeded to consider the quantum of damages she was entitled

to. It accepted that payment of those damages would come from the public purse and not from the official responsible for the delay in processing Ms Kate’s application for social assistance. The Court lamented the fact that there was no empirical monetary standard against which to measure the loss sustained by her. And as a result the Court settled for an amount equivalent to the interest payable in law where a litigant has unlawfully withheld payment of money. This meant that Ms Kate was paid double interest because the Department was ordered to pay interest on the amount she was entitled to. The entire process illustrates that the Court approached what was a breach of the Constitution through the lens of the common law.

[133] Before addressing the reasons in Kate in greater detail, I wish to point out that the Supreme Court of Appeal in that matter was not entitled to depart from its decisions in Olitzki and Modderklip (SCA) unless it was convinced that those decisions were clearly wrong.[146] In our law judicial precedent requires that a court should follow, not only decisions of the upper courts, but also its own decisions. What frees a court from this obligation is an opinion by it to the effect that its own decision was clearly wrong.

[134] But Kate failed to follow not only the decisions of the Supreme Court of Appeal but also some of this Court’s. In Fose[147] this Court made it plain that punitive constitutional damages are not appropriate where a claimant has been fully compensated for the loss suffered. Both the majority and minority in that matter agreed on this point. They agreed that where punitive damages are awarded against the government, it is the general public which bears liability. Writing for the majority, Ackermann J stated:

“I agree with the criticisms of punitive constitutional damages referred to in para [65] above. Nothing has been produced or referred to which leads me to conclude that the idea that punitive damages against the government will serve as a significant deterrent against individual or systemic repetition of the infringement in question is anything but an illusion. Nothing in our own recent history, where substantial awards for death and brutality in detention were awarded or agreed to, suggests that this had any preventative effect. To make nominal punitive awards will, if anything, trivialise the right involved.

For awards to have any conceivable deterrent effect against the government they will have to be very substantial and, the more substantial they are the greater the anomaly that a single plaintiff receives a windfall of such magnitude. And if more than one person has been assaulted in a particular police station, or if there has been a pattern of assaults, it is difficult to see on what principle, which did not offend against equality, any similarly placed victim could be denied comparable punitive damages. This would be the case even if, at the time the award is made, the individuals responsible for the assaults had been dismissed from the police force or other effective remedial steps taken.

In a country where there is a great demand generally on scarce resources, where the government has various constitutionally prescribed commitments which have substantial economic implications and where there are ‘multifarious demands on the public purse and the machinery of government that flow from the urgent need for economic and social reform’, it seems to me to be inappropriate to use these scarce resources to pay punitive constitutional damages to plaintiffs who are already fully compensated for the injuries done to them, with no real assurance that such payment will have any deterrent or preventative effect. It would seem that funds of this nature could be better employed in structural and systemic ways to eliminate or substantially reduce the causes of infringement.”[148]

[135] The minority said:

“I am not able to accept, however, that punitive damages are any better for this purpose. The problem here is a profound and a disturbing one. According to paragraph 16 torture is a widespread and persistent phenomenon at South African police stations. I cannot see that this form of harm is adequately repaired by the award of punitive damages to the appellant. The relief in this case would come from the public coffers and be directed towards the appellant. The policemen implicated in the appellant’s claim could not possibly be deterred by a payment of damages bearing no relation to their own finances. Nor do we vindicate the Constitution by enriching a particular claimant at the cost of the taxpayer – particularly when the problem is far larger than the claimant concerned. In other words, we do not adequately defend the Constitution by merely granting punitive damages in this case, or even in several cases. In this conclusion I am in agreement with some of the criticisms of punitive damages set out by Ackermann J in paragraph [65] of his judgment, in particular the objections in sub paragraphs (d), (f), (g) and (l).”[149]

[136] Both judgments emphasised the fact that where the violation of guaranteed rights is pervasive and systematic, punitive damages are

inappropriate for the purpose of vindicating the Constitution and deterring its further violation.[150] The underlying reason for this is that a breach of a constitutional right, unlike common law rights which are individualistic in nature, does not affect the claimant only but the entire public. It is in the interests of the general public that the Constitution be upheld but it plainly cannot be in the interests of the same public to bear liability for upholding the Constitution. An award to pay damages against the state imposes liability upon the public to pay those damages. In Fose it was stated:

“I would add that the harm caused by violating the Constitution is a harm to the society as a whole, even where the direct implications of the violation are highly parochial. The rights violator not only harms a particular person, but impedes the fuller realisation of our constitutional promise.”[151]

[137] Seen in this context, it is difficult to appreciate how awarding constitutional damages for a violation of a right that does not cause particular damage to a claimant, may vindicate that right. In other words, if the violation of a right affects the general

public and not specific members, it is difficult to see how an award of constitutional damages would be appropriate relief. I share the scepticism expressed by Ackermann J in Fose:

“I have considerable doubts whether, even in the case of the infringement of a right which does not cause damage to the plaintiff, an award of constitutional damages in order to vindicate the right would be appropriate for purposes of section 7(4). The sub section provides that a declaration of rights is included in the concept of appropriate relief and the Court may well conclude that a declaratory order combined with a suitable order as to costs would be a sufficiently appropriate remedy to vindicate a plaintiff’s right even in the absence of an award of damages.”[152]

[138] Without any meaningful motivation in Kate, the Supreme Court of Appeal held that constitutional damages were appropriate over and above the full compensation plus interest that was awarded to Ms Kate. It will be remembered that in that case the compensation served the purpose of vindicating her right. The object of the additional constitutional damages was to uphold the Constitution. That upholding of the Constitution was motivated by the endemic delays in processing applications for social assistance in the Eastern Cape. It was therefore a breach that affected the public at large. But the irony was that constitutional damages were awarded to an individual litigant who had already been fully compensated for the violation of her right. As observed in Fose, the anomaly is that only one person benefitted from a violation that affected the whole public. And since the award amounted to a small sum, it could not have had a deterrent effect.[153]

[139] All this illustrates is that Kate is not useful guidance in the inquiry at hand. In that matter the Court also failed to consider whether constitutional damages may be awarded for the breach of rights for which no damages have been awarded in the past. For example, administrative justice rights and fair trial rights on their own do not give rise to a claim for damages. There are many such rights in the Bill of Rights.[154] Happily, here we are concerned with rights to privacy and dignity which are ordinarily vindicated in delict by means of damages.

Therefore, we need not concern ourselves with the question whether constitutional damages may be awarded for a breach of rights which do not usually attract damages.

[140] What the Supreme Court of Appeal in Kate overlooked was that it was dealing with a socio-economic right to appropriate social assistance which is guaranteed by section 27(1)

of the Bill of Rights. And that section, as this Court held in Treatment Action Campaign (No 2), does not give rise to a self standing right enforceable with no regard to section 27(2).[155] This Court has emphatically rejected an interpretation of section 27 which suggests that the section entitles individuals to approach a court and claim social assistance immediately or access to water or healthcare.[156]

[141] In Mazibuko this Court held that it was inappropriate for any court to determine what a socio-economic right entailed and order the state to deliver it. The Court reasoned:

“[O]rdinarily it is institutionally inappropriate for a court to determine precisely what the achievement of any particular social and economic right entails and what steps government should take to ensure the progressive realisation of the right. This is a matter in the first place for the legislature and the executive, the institutions of government best placed to investigate social conditions in the light of available budgets and to determine what targets are achievable in relation to social and economic rights. Indeed, it is desirable as a matter of democratic accountability that they should do so, for it is their programmes and promises that are subject to democratic popular choice.”[157]

[142] On the authority of this Court in Grootboom,[158] Treatment Action Campaign (No2) and Mazibuko, the content of the rights conferred by section 26(1) read with 26(2) as well as section 27(1) read with 27(2) is the entitlement to demand that the state takes reasonable measures within available resources at any given time, to make those rights progressively

realisable. On this interpretation of the socio economic rights, the state’s failure to provide an individual with a house or social assistance on demand cannot give rise to damages. This is because that right is not breached by that failure alone. For there to be a breach, the combined requirements of subsections (1) and (2) of each section must have been violated. For example, if a house is not provided to an individual because there are no resources available to the state at the relevant time, there would be no breach of the right giving rise to damages.

[143] At best for the claimants, a breach would occur if the housing policy adopted does not cater for a certain group of individuals who are also in need of housing. Even so, the affected group will not be entitled to damages. Instead, they would be entitled to an order declaring the housing policy to be invalid and directing the state to cure the defect in the policy, as was done in Grootboom and approved in Mazibuko. Consequently, the Supreme Court of Appeal erred in Kate when it awarded damages for a failure to process an application for social assistance timeously. Such failure could not and did not give rise to harm to anybody.

[144] With regard to dignity and privacy, the common law has always protected these personality rights through an award of damages.

In Khumalo, the delictual claims to protect privacy and dignity were described in these terms:

“In the context of the actio injuriarum, our common law has separated the causes of action for claims for injuries to reputation (fama) and dignitas. Dignitas concerns the individual’s own sense of self-worth, but included in the concept are a variety of personal rights including, for example, privacy. In our new constitutional order, no sharp line can be drawn between these injuries to personality rights.

The value of human dignity in our Constitution is not only concerned with an individual’s sense of self-worth, but constitutes an affirmation of the worth of human beings in our society. It includes the intrinsic worth of human beings shared by all people as well as the individual reputation of each person built upon his or her own individual achievements. The value of human dignity in our Constitution therefore values both the personal sense of self-worth as well as the public’s estimation of the worth or value of an individual. It should also be noted that there is a close link between human dignity and privacy in our constitutional order. The right to privacy, entrenched in s 14 of the Constitution, recognises that human beings have a right to a sphere of intimacy and autonomy that should be protected from invasion. This right serves to foster human dignity.”[159]

[145] In a similar vein, this Court defined these claims in Dey:

“In short, if a reasonable observer would agree with Dr Dey that he had been humiliated, infringement of dignity has been established. But by the same token Dr Dey would have been humiliated in the eyes of a reasonable observer to whom the statement had been communicated, which means that defamation had been established as well. If, on the other hand, the reasonable observer did not find the picture humiliating of Dr Dey, defamation would not have been established, but neither would infringement of dignity. And so I believe that we land ourselves in the same never ending circle of logic.”[160]

[146] These claims have been considered by this Court to constitute appropriate and effective relief for vindicating personality rights

of privacy and dignity.[161] But the question we are confronted with here is not whether the applicants could have made these claims but whether they should have been granted constitutional damages, in addition to other remedies to which they were entitled. The determination of this question requires us to trace our steps back to the Constitution. Section 38 of the Constitution addresses enforcement of the rights in the Bill of Rights.[162] First and foremost, this provision deals with the issue of legal standing in proceedings which are launched in order to enforce rights in the Bill of Rights. Under it, standing is more expanded to allow many litigants to institute proceedings. But the provision is not restricted to the issue of standing. It also addresses possible remedies that may be granted by a court in those proceedings. The section explicitly states that the court may grant appropriate relief, including a declaration of rights.

[147] Having reviewed foreign jurisdictions, in Fose, this Court cautioned against adopting constitutional damages recognised in other jurisdictions on the basis that they differ from our own system, where some of the rights in the Bill of Rights are governed by private law and where many of those rights are adequately

protected by the common law.[163] Building on the reasoning in Fose, this Court held in Dikoko that where an award of damages is necessary to enforce rights in the Bill of Rights, it constitutes appropriate relief. It stated:

“[I]t seems to me that the same considerations apply to the ‘appropriate relief’ envisaged in s 38 of the Constitution when an award of damages is necessary to vindicate, that is to protect and enforce, rights which aside their common-law pedigree are also enshrined in the Bill of Rights. There appears to be no sound reason why common law remedies, which vindicate constitutionally entrenched rights, should not pass for appropriate relief within the reach of s 38.”[164]

[148] What emerges from the reasoning of this Court in both Fose and Dikoko is that an award of damages may not be made purely because it is asked for. The award must be necessary for purposes of enforcing the Bill of Rights. This draws a distinction between damages awarded for compensating the claimant for the loss he or she has suffered and damages awarded for enforcing the Constitution.

[149] In Fose, the minority advocated for constitutional damages not as a form of compensation but as a means to enforce the Bill of Rights. While acknowledging the discretion to choose between appropriate forms of relief, it called for a careful analysis of the matter.[165] However, because in that case a delictual claim would sufficiently compensate the plaintiff for his loss, this Court declined to recognise a claim for constitutional damages that was going to be additional to the delictual claim. The minority stated:

“I have argued that ‘appropriate relief’ vindicates the Constitution and deters further violations of it. I see no reason in principle why common-law and statutory remedies can never be suitable for this purpose. The appellant has not persuaded me to the contrary. Of course, there will be instances where these remedies are ill-suited. For example, a common-law remedy is unlikely to address a diffuse and systematic pattern of rights violations. Nevertheless, common-law remedies – particularly delictual remedies – have been designed to protect personality interests such as dignity which are central to chap 3. In cases where the harm arising from a rights violation is highly localised, a common-law remedy may well be appropriate, that is, it may effectively vindicate the Constitution and deter further violations of it. This is not to speak of the wide range of common-law administrative remedies which are readily harnessed to our constitutional needs.”[166]

[150] What emerges from a careful reading of this statement and the majority judgment is that if the common law or statutory law provides

adequate and effective protection of rights in the Bill of Rights, there is no need for allowing constitutional damages over and above those protections. The claimant must make use of those remedies. It is not permissible for him or her to eschew the remedies in question and prefer to ask for constitutional damages because they can conveniently be established. In order to discourage this, the Supreme Court of Appeal in Modderklip (SCA) and Olitzki held that constitutional damages ought to be permitted where there is no other appropriate remedy.

[151] However, in Modderklip (CC) this Court did not base the award of constitutional damages on the ground that such damages were the only effective remedy. The Court held that by its failure to enforce an eviction court order, the state had breached the landowner’s right to an effective relief entrenched in section 34 of the Constitution. The Court held that in the special circumstances of that case, constitutional damages were the most appropriate remedy that took account of the constitutional rights of the landowner and the right of unlawful occupiers to adequate housing. Langa ACJ said:

“In deciding that the type of compensation awarded to Modderklip was the most appropriate remedy in the circumstances, the Supreme Court of Appeal referred to a number of advantages which other forms of relief did not have. It compensates Modderklip for the unlawful occupation of its property in violation of its rights; it ensures the unlawful occupiers will continue to have accommodation until suitable alternatives are found and it relieves the State of the urgent task of having to find such alternatives. The difficulty of quantifying the compensation is met by resorting to the mechanism provided in s 12 of the Expropriation Act, thus obviating the need for Modderklip to institute new proceedings”.[167]

[152] A careful reading of the various decisions reveals that our courts do not grant constitutional damages in every case where there

has been a violation of the rights in the Bill of Rights. In some cases, those damages were awarded where they were the only

effective relief. In others they were granted on the basis that there were special circumstances which rendered such damages the most appropriate relief. And in respect of each instance, the computation of those damages was based on a clear and objective

formula.

[153] These requirements serve the purpose of establishing certainty in relation to circumstances under which constitutional damages may

be claimed. However, this applies to claims for the violation of rights which are also enforceable under the common law. The requirements do not apply to a breach of socio-economic rights as these require a different approach to enforce.

[154] While the present matter involves constitutional rights of the common law pedigree, it does not meet any of the requirements for

awarding constitutional damages. It follows that this claim must fail.

[155] But even if we were not to follow the principle that constitutional damages should be allowed where there are no alternative effective remedies, we would still not grant such damages for a number of reasons. For a claim of that nature to succeed, it is not enough for the claimants to show that there was a breach of a guaranteed right. In addition to this, they should establish

the nature of the harm or loss suffered and the causal link between the loss and the wrongful conduct that resulted in a breach.

Here, we are told that the applicants cannot provide such proof owing to the manner the unlawful searches were conducted. That does not relieve the applicants from the burden to prove their claims. They ought to know the nature and effect of the loss they have suffered. The fact that they were outside when the searches were conducted and that they did not know the identity of those who searched is not fatal to their case. Instead, what presents a difficulty in their case is the lack of knowledge on which homes were searched by members of the Johannesburg Metropolitan Police Department and which ones were searched by officials of the Department of Home Affairs. This is so because the Minister of Police cannot in law be held liable for wrongful acts by persons who are not employees in his department. But this does not mean that liability of a defendant in cases of this nature can never arise without the employment relationship.

[156] Moreover, there were a number of alternative remedies available to the applicants against members of the South African Police Service. The first judgment accepts that the presence of alternative remedies is a weighty consideration in determining whether to award constitutional damages.[168] As was observed in Fose, those remedies may be in the form of common law or statutory remedies.[169] The common law and statutory remedies may constitute “appropriate relief” envisaged in section 38 of the Constitution. Here, in conducting these unlawful searches, the police claimed to have acted in terms of the SAPS Act and the applicants were aware of this hence they challenged the validity of some of its provisions. This Act provides for accountability measures to be taken against members who breach the Constitution during the performance of their duties.

[157] The other alternative remedy that was available to the applicants was a delictual claim. The delictual claim did not cease to be an alternative remedy only because it may be onerous to prove it. The principle is not that the alternative remedy must

be easy to prove. Nor should it be convenient for the claimant to pursue it. It will be recalled that in Fose and Dikoko, this Court stressed the fact that constitutional damages may be allowed where it is necessary. It cannot be necessary to award them where there is an adequate alternative remedy that is not easy to prove.

[158] Another alternative remedy that was available to them and which they have asked for is the interdict. In Fose, this Court affirmed that an interdict is one of remedies which constitutes appropriate relief as envisaged in section 38:

“Appropriate relief will in essence be relief that is required to protect and enforce the Constitution. Depending on the circumstances of each particular case the relief may be a declaration of rights, an interdict, a mandamus or such other relief as may be required to ensure that the rights enshrined in the Constitution are protected and enforced. If it is necessary to do so, the courts may even have to fashion new remedies to secure the protection and enforcement of these all important rights.”[170]

[159] It is apparent from this statement that any form of relief may be appropriate relief envisaged in section 38 of the Constitution.

Depending on the exigencies of a particular case, an interdict alone may constitute appropriate relief.

[160] The fact that, in respect of some buildings, the raids were repetitive does not make constitutional damages appropriate. In

this regard, the Court stated in Fose:

“Nothing has been produced or referred to which leads me to conclude that the idea that punitive damages against the government will serve as a significant deterrent against individual or systemic repetition of the infringement in question is anything but an illusion. Nothing in our own recent history, where substantial awards for death and brutality in detention were awarded or agreed to, suggests that this had any preventative effect.”[171]

[161] It is for all these reasons and those articulated in the first judgment that I do not support the granting of constitutional damages

in this matter.

VICTOR AJ

“Ideas that poor black people represent a threat to the urban order persist in the current state’s treatment of certain populations.”[172]

Introduction

[162] This matter is a stark reminder that, even after celebrating more than 27 years of our democracy, the constitutional promise

of dignity and equality remains unfulfilled for some of the most indigent members of the South African society. It is incumbent

on courts, in matters such as this one, to vindicate the principle of transformative equality which sits at the heart of the transition

from the rule by law to the rule of law.[173] It is unfortunate that, for some segments of our society, the kind of indiscretions notoriously committed by the police during the apartheid era, characterised by the lack of regard for one’s humanity, remain a contemporary reality.

[163] I have had the benefit of reading the judgments of my colleagues Mhlantla J (the first judgment) and Jafta J (the second judgment). I agree that the appeal must be upheld but, unlike the first and second judgments, I am of the view that all three paragraphs of section 13(7) – that is paragraphs (a), (b), and (c) – of the SAPS Act are constitutionally problematic.

Background facts

[164] The facts in this matter illustrate the enormous transgressions on the lives of the poor, such as the applicants, and are a stain on our foundational constitutional values, including human dignity, equality and freedom. Our constitutional democracy demands that officials must be held accountable. The preamble of the SAPS Act directs members of the South African Police Service to uphold and safeguard the fundamental rights of every person as guaranteed in the Bill of Rights.[174] Similarly, under international law, General Recommendation XIII issued by the Committee on the Elimination of Racial Discrimination

(CERD Committee) recognises that the obligation to protect human rights “very much depends upon national law enforcement officials who exercise police powers, especially the powers of detention or arrest”.[175]

[165] The applicants complain of the repetitive raids by the police accompanied by other officials. In this case, much fanfare was

made by the former mayor of the city of Johannesburg (City) in the media that the purpose of the raids was to bring back the rule of law and “criminals must know that they might run but there is no place for them to hide”.[176] The High Court found that, save for a handful of undocumented immigrants, there was no evidence of illegalities at the applicants’

homes.

[166] The applicants point out that the raids were an occasion for state-sanctioned racism and xenophobia and the repeated humiliation

of the poorest and most vulnerable members of our society. The High Court also found that members of the police and Johannesburg

Metropolitan Police Department officers arbitrarily detained those applicants “who looked too dark”.[177] The last raid took place in the early hours of the morning and at that raid, women and children were made to stand on the street. An elderly woman was made to undress from her night clothes in front of a Johannesburg Metropolitan Police Department officer and a community leader was frogmarched out of the building in his underwear. All this misconduct by the police and others in the employ of the respondents is egregious and harks back to our pre democratic days.

[167] These raids took place over a 10-month period with some homes raided five times. These raids were part of some 39 other raids

in central Johannesburg. The applicants ask this Court to recognise the scale and depth of these violations and to declare

section 13(7) constitutionally invalid in its entirety so as to ensure that they do not happen again.[178]

[168] These violations illustrate the humiliation and disregard of persons who live in poor socio-economic circumstances. None of

these violations were carried out on residents who live in more affluent parts of the Johannesburg Metropolitan area and who seem to have been protected from these human rights violations. The authorities’ selection of which building to cordon off leads to the conclusion that this choice was informed by racial profiling. The CERD Committee defines racial profiling in General Recommendation No 36 in the following terms:

“Racial profiling is: (a) committed by law enforcement authorities; (b) is not motivated by objective criteria or reasonable justification; (c) is based on grounds of race, colour, descent, national or ethnic origin or their intersection with other relevant grounds, such as religion, sex or gender, sexual orientation and gender identity, disability and age, migration status, or work or other status; (d) is used in specific contexts, such as controlling immigration and combatting criminal activity, terrorism or other activities that allegedly violate or may result in the violation of the law.”[179]

[169] The Inter-American Commission on Human Rights has noted that racial profiling is often used as a tactic under the guise of public

safety and protection while, in reality, it is motivated by racial and other stereotypes rather than objective suspicions.[180] The CERD Committee has cautioned that racial profiling can result in, among other things, the “over criminalisation of certain categories of persons”, the “reinforcement of misleading stereotypical associations”, disproportionate imprisonment and increased vulnerability of certain categories of persons to abuse by law enforcement officials.[181] The CERD Committee specifically requires states to establish oversight measures in order to prevent and combat racial profiling by law enforcement officials.[182]

[170] The effect of the raids on women and children is manifest, having been put through these terrifying and repeated raids. Their rights to privacy and dignity have been fully referred to in the first judgment.

[171] The effect of intersectional discrimination in our constitutional jurisprudence has been recognised.[183] It means that there must be an acknowledgment that discrimination “may impact on an individual in a multiplicity of ways” because of their structural position in society.[184] The framework of intersectionality is relevant as these raids were directed as a “clean up” of areas consisting of poor and marginalised foreigners in South Africa.

[172] The intersectional impact on the lives of these applicants ought to be recognised. It is no coincidence that the applicants are Black and poor residents of an underprivileged neighbourhood in the City, whose race and social class make them vulnerable to this kind of ill-treatment. In addition, the power dynamic between them and the respondents compounds their vulnerability to discrimination and harassment. The applicants are people trying to eke out a living only to find themselves at the mercy of the police and other officials. All this illustrates an aggravation of the intersectional impact.

[173] Crenshaw’s theory on intersectionality urges that consideration should be given to race, gender and class elements in every case.[185] The infringements in this case are blatant and an intersectional analysis illustrates the context of the unequal power dynamic between the respondents and the applicants in light of the latter’s socio economic circumstances. Furthermore, the aggravated impact on the lives of the applicants viewed through the prism of an intersectional analysis illustrates that, in order to ensure systemic and structural change which empowers the poor and voiceless, this Court must declare the entire section 13(7) unconstitutional. In the absence of section 13(7) being declared invalid, there remains an opportunity for the wide-ranging powers to be abused. This is so because the Constitution endorses not only formal equality, but substantive remedial equality in which the full potential of each person can be realised irrespective of race, gender, social origin or other status.

[174] It is therefore important that this blot on our constitutional democracy should never happen again.

The legislative scheme of section 13(7) of the SAPS Act

[175] Section 13(7) has been quoted in full in the first judgment as well as the order. In short, the National or Provincial Commissioner may, where it is reasonable in the circumstances in order to restore public order or to ensure the safety of the public in a particular area, “in writing authorise that the particular area or any part thereof be cordoned off”,[186] for a period not exceeding 24 hours.[187] Then, in accordance with the first judgment, in terms of section 13(7)(c) the police are then obliged to cordon off the area.

[176] The powers in section 13(7)(a) and (b) are vague yet far reaching in their implementation. The respondents’ assertion that the wide powers under section 13(7) are justified on the basis of bomb threats or insurgent attacks overlooks the applicants’ argument that the section plainly confers wide powers on the police in circumstances above and beyond such genuine public safety emergencies. The ease with which the applicants were exposed to repeated raids shows how easily the National or Provincial Commissioners can simply form the opinion that if it is reasonable to restore public order, an area can be cordoned off. The publicity and fanfare which accompanied the raids made for sound bites and publicity for a civic office bearer, thus demonstrating how easily a National or Provincial Commissioner can be persuaded to deploy these powers for an ulterior motive or for political

point-scoring.

[177] This Court in Dawood stated that “[i]t is an important principle of the rule of law that rules be stated in a clear and accessible manner”.[188] Even if large-scale searches are to be carried out simultaneously, the provisions of the Criminal Procedure Act (CPA) will suffice. The police and other officials in this particular operation obviously had enough time to co-ordinate their efforts and to do so on repeated occasions, and this demonstrates that they had sufficient time and opportunity to obtain warrants for their searches. What occurred here is indicative of careless policing, characterised by short cut methods intended to achieve a fear-inducing impact. This undermines the protection afforded by the Constitution.

Integrated jurisdictional requirements of section 13(7) of the SAPS Act

[178] There is a close relationship between all three paragraphs within section 13(7) of the SAPS Act. I consider that paragraphs (a), (b) and (c) are inter linked and, as such, a finding of unconstitutionality in respect of one paragraph must, of necessity, trigger the same finding in respect of the other paragraphs. The applicants are correct when they assert that there are three sets of integrated jurisdictional requirements and each paragraph is dependent on the other two for its meaning and effect.

[179] Most importantly, the applicants argue that only severing paragraph (c) would leave an inchoate power that would be open to abuse. In my view, the applicants are correct in this regard. In addition, the respondents’ submissions in response to these

concerns provide cold comfort to genuine fears of police abuse and misconduct. For example, the respondents argued that sections 13(1)[189] and 13(3)(a)[190] of the SAPS Act require members of the police to act with due regard to the affected persons’ constitutional rights when exercising their powers. As stated above, this line of reasoning was rejected by this Court in Dawood when it stated:

“There is, however, a difference between requiring a court or tribunal in exercising a discretion to interpret legislation in a manner that is consistent with the Constitution and conferring a broad discretion upon an official, who may be quite untrained in law and constitutional interpretation, and expecting that official, in the absence of direct guidance, to exercise the discretion in a manner consistent with the provisions of the Bill of Rights. Officials are often extremely busy and have to respond quickly and efficiently.”[191]

[180] An immediate problem emerges when a policeman in the cordoned off area, acts with extensive powers and can, without a warrant, search any person, premises or vehicle, or any receptacle or object of whatever nature, in that area. It provides a lawful umbrella

which unleashes unbridled power for an ordinary member of the police to act as he or she wishes. It follows therefore that if the power is vested in the Police Commissioner in paragraph (a) to authorise, in writing, an area to be cordoned off, which then results in the extensive powers in paragraph (c), then the source of that power is unbridled and should also be unconstitutional.

Even the excision of paragraph (c) leaves undefined the nature of the police activity in the cordoned off area. I agree with the applicants when they submit that the raison d’être (reason for being) for paragraphs (a) and (b) of subsection (7) is paragraph (c).

[181] Notably, in Dawood, this Court also rejected the argument that because the state is obliged to respect, protect and fulfil the rights in the Bill of Rights, officials can be trusted to exercise their discretion in a way that protects constitutional rights, irrespective of how unfettered that discretion is in terms of the empowering provision.[192]

[182] In Manamela[193] and EFF,[194] this Court found that the onus is on the state to demonstrate that the limitation of rights is justified in terms of section 36.

In my view, in this matter, the respondents have failed to discharge that onus. Notably, in EFF this Court said:

“The limitation must demonstrably be in the interests of the public and appropriately tailored so as not to deny citizens their fundamental rights where this could have been avoided.”[195]

[183] Whilst the objectives of the cordoning off, which are to restore public order or ensure the safety of the public, are self-evidently important objectives, this is not the end of the enquiry. The approach in EFF is quite similar to the issues raised in this matter. The following observation was made in EEF about engaging in a limitations analysis where the object of the statute is the preservation of public order and/or fighting crime:

“[The impugned provision] is sought to be saved from invalidation merely because, like all other criminal legislation, it serves the common or ordinary purpose of crime prevention. What is, however required is that the purpose of criminal legislation, like the Riotous Assemblies Act, be much more than the ordinary need to protect society from potential “harm”, to pass constitutional muster. Additional to being legitimate, the purpose must still be specific, pressing and substantial for that legislation to be regarded as reasonable and justifiable in its limitation of free expression.”[196]

[184] The High Court referred to the frequency and regularity of the raids on the applicants’ homes over the period of 30 June 2017

to 3 May 2018. The Court found that this “demonstrated a manifest propensity on the part of the police, the City and the Department of Home Affairs to engage in illegal raids” at will by using their unconstrained powers. Even where the aim of a statute is to strengthen crime prevention, it must still demonstrate that it is “appropriately tailored” to achieve that objective.[197]

[185] Whilst a reading of paragraphs (a) and (b) of section 13(7) may appear facially neutral, their application and implementation introduces vulnerabilities, and I agree with the applicants’ contention that the impugned provisions are unconstitutional because of their effect and application. In the case of Yick Wo,[198] the Supreme Court of the United States held that a law which is neutral on its face could nevertheless fall foul of the equal protection clause based on the disproportionate and discriminatory administration of the law in question. The Court remarked:

“Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.”[199]

[186] It is not a coincidence, that Yick Wo also concerned a city administration bent on inflicting harm on a vulnerable group of residents (who incidentally were also foreign

nationals) by using “public safety” as a smokescreen when its real motivation was racist and xenophobic in nature.

[187] Whilst no South African court has applied the principle in Yick Wo before, this principle is apt in light of the non-racist and egalitarian values of our Constitution. In my view, this principle applies perhaps with even more force in our constitutional context.

The interpretation of section 13(7) of the SAPS Act as a whole

[188] I cannot agree with the approach that paragraphs (a) and (b) of section 13(7) are not constitutionally problematic once

the provision providing for warrantless searches in terms of paragraph (c) is excised from the SAPS Act. After the excision of paragraph (c), the first judgment is left with the directive that the police must then cordon off the area. This leaves paragraph (a) and (b) inchoate, meaning the powers are left in a state of partial completion. Once the Commissioner

makes the decision that the area must be cordoned off for a period not exceeding 24 hours, the statute fails to define how the operation is to be carried out. In my view, this approach, which I describe as inchoate, leaves the far-reaching nature of the powers provided by paragraphs (a) and (b) wide and subject to abuse.

[189] Even the reduced ambit of paragraph (c) in the first judgment, which provides that the area be cordoned off, leaves the police with undefined and wide powers if paragraphs (a) and (b) are still present.

[190] The High Court proceeds from the premise that, because section 13(7) serves a legitimate governmental objective, this means its intrusion into constitutional rights is tolerable. This approach however contradicts what this Court recently said in EFF, where it warned:

“An approach to the justification analysis that seems to move from the premise that a legitimate governmental objective for the limitation automatically renders the limitation reasonable and justifiable or somehow shifts the burden to citizens to explain what is wrong with the limitation or why their constitutional rights deserve protection, would be misplaced. The purpose for the limitation, however legitimate and laudable, must still earn its juxtaposition to the right it inhibits. The burden to prove that it passes constitutional muster rests primarily on the State. And that is so because the obligation to give these rights the space to flourish rests on the same State that may limit them, in a constitutionally permissible manner.”[200]

[191] The first judgment and the High Court judgment, in accepting the constitutionality of paragraphs (a) and (b), conflate the question of the importance of the purpose of the limitation with the question of whether the limitation on rights is constitutionally

justified.

[192] Furthermore, as this Court pointed out in Manamela and EFF, the onus is on the state to demonstrate that the limitation of rights is justified in terms of section 36.[201] In my view, in this matter, the respondents have failed to discharge that onus.

[193] In addition, when interpreting legislation, it is incumbent on courts to consider international law.[202] As demonstrated above, the jurisprudence of the CERD Committee leads to the conclusion that the impugned provision can be interpreted as a textbook example of racialised policing, which is contrary to the state’s international obligations to ensure substantive racial equality in the criminal justice system.

[194] I will now proceed with a limitation analysis to demonstrate why I say so.

The nature of the right

[195] One must accept that there is a constitutional limit to the right to privacy, but that depends on whether the limitation is reasonable and justifiable under section 36.

[196] It is accepted that paragraph (c) infringes the right to privacy. Paragraphs (a) and (b) are the safeguards in place to limit the infringement. They stipulate that warrantless searches under paragraph (c) can only occur where the National or Provincial Commissioner has given written authorisation to cordon off an area. They also stipulate that warrantless searches can only take place where it is reasonable to restore public order or ensure the safety of the public in that area; and only if the period (not exceeding 24 hours) is specified. Paragraph (c) then allows warrantless searches and seizures only “where it is reasonably necessary in order to achieve the object specified in the written authorisation”.

[197] With these safeguards and the above jurisprudence in mind, are they sufficient to justify the limitation of the right to privacy?

Although the limitation has an important purpose, the above jurisprudence assists us in showing that the nature and extent of the

limitation is extreme, and that there are certainly less restrictive means available. As in Gaertner the powers in section 13(7) could “be exercised anywhere, at whatever time [within the 24-hour period] and in relation to whomsoever, with no need for the existence of a reasonable suspicion, irrespective of the type of search.”[203]

[198] Firstly, the SAPS Act does not specify what types of premises may be searched. Any premises, person, vehicle or object may be searched. This includes a person’s home (the inner sanctum of the right to privacy), their vehicles, and if they are not in their home but are walking in the cordoned off area, the search may also extend to their personal items (handbags etc.). These are certainly interferences by the state in one’s “personal life”,[204] even though they are outside of the home itself. Section 13(7) is thus extremely broad.

[199] Secondly, section 13(7) does not specify at what time searches may occur, except to say that the period must be specified and may not exceed 24 hours. This means that searches may occur unexpectedly and without a warrant in the middle of the night – an extremely intrusive measure. Ordinarily, a warrant would indicate to a person at what time and for how long the search of their premises may last – here, the search could last as long as 24 hours with people standing within or outside of the cordoned off area. It also does not preclude consecutive periods and repeated authorisations could thus be granted, permitting an endless number of intrusive searches.

[200] Thirdly, the police officer conducting the search and seizure may search anything where it is reasonably necessary to achieve the

object in the written authorisation. However, the written authorisation is not required to specify the precise object of

cordoning off the area – paragraph (a) merely permits cordoning off to restore public order or to ensure the safety of the public in the area. As a result, police officers are left with a wide discretion to decide what is reasonably necessary to achieve that object. They are not required to have a reasonable suspicion that each premise, person, vehicle or object they search is related to a particular, narrowly specified type of offence or threat, and could thus search anything at all in the area. A warrantless search is also permitted in situations where it is not urgent, and where obtaining a warrant wouldn’t defeat the purpose of the search.

[201] Fourthly, the provision does not specify the manner in which the search must be conducted. As in Gaertner, the police officials could break into dwellings and break up floorboards.[205] The facts indicate that the respondents have similarly behaved in this manner, and worse. If searches occur without a warrant, which generally specifies the manner and limits of the search, the above jurisprudence indicates that the empowering legislation must instead provide clear limitations to prevent a greater intrusion than necessary.

[202] Finally, section 13(7) does not provide for “differentiation as to the nature of the search or the nature of the premises searched”.[206] This has resulted in warrantless searches in these regularly cordoned off areas being the rule instead of the exception.[207] This is exacerbated by the fact that the bar for a Commissioner to authorise cordoning off an area is very low – with crime rates in South Africa being what they are, almost any area in South Africa could reasonably be cordoned off for crime detection and prevention (which would ensure the safety of the public in that area). This creates a loophole for unscrupulous persons to search anything without a warrant or a reasonable suspicion, and thus opens the process up to abuse.

[203] Gaertner, read with Dawood, tells us that it is not enough to simply accept that the police officers are generally required to act constitutionally, and that they may exercise their discretion in this regard.[208] In fact, legislation infringing the right to privacy is required to limit the officials’ discretion as much as possible. The respondents’ argument in this regard is thus misguided.

[204] It is trite that the rights to dignity and privacy are fundamental constitutional rights. Dignity, in particular, is not only a foundational value, but also a justiciable constitutional right.[209] In addition, there is a close relationship between the rights to dignity and privacy. When understanding the scope of the right to privacy, this Court has stressed our historical context and how we have recently transitioned from being a police state to a constitutional democracy.[210] The first judgment is correct that the High Court erred when it limited its considerations of privacy to the so-called inner sanctum and one’s home in this regard. Rather, the right to privacy extends beyond such confines and concerns the entirety of one’s personal life. Given the wide scope of the impugned law, it is clear that any person or object found within the cordoned off area may be searched regardless of whether there is a reasonable suspicion that there is any relationship between the person or object and a threat to public safety or public order.

The importance of the purpose of the limitation

[205] The High Court was correct when it found that the impugned provision serves a legitimate governmental objective: namely, combatting crime and ensuring that the police fulfil their constitutional mandate to this end. This view is endorsed by the first and second judgments.

[206] In my view, the objectives of the cordoning off are to restore public order and to ensure the safety of the public. While these objectives are self-evidently important, this is not the end of the enquiry. This Court’s approach in EFF is relevant to the issues raised by this matter. There, this Court stressed that it is not sufficient that the statute serve the common or ordinary purpose of crime prevention.[211] Rather, the Court held that over and above being aimed at crime prevention, the statute must serve a purpose which is also “specific, pressing and substantial”.[212]

[207] In EFF, this Court stated further that, even where the aim of a statute is to strengthen crime prevention, it must still demonstrate that it is “appropriately tailored” to achieve that objective.[213] As such, it must interfere with fundamental rights no more than is necessary to achieve that objective. The mere fact that a statute strengthens crime prevention and assists the police in discharging its constitutional objectives is not sufficient to justify a limitation of rights; especially so egregious an infringement as we have seen in the present matter.

The nature and extent of the limitation

[208] It cannot be gainsaid that the nature and extent of the limitation on the relevant rights is far-reaching. The High Court acknowledged as much, albeit in respect of paragraph (c), and observed the state’s egregious conduct in this regard when

it said:

“[I]ndeed, the frequency and regularity of the raids on the applicants’ homes, over the period 30 June 2017 to 3 May 2018, demonstrate a manifest propensity on the part of the police, the City and the Department of Home Affairs to engage in illegal raids at will. The applicants certainly have a clear right not to have their privacy, dignity and homes invaded by warrantless searches. As already established, a sizeable number of applicants have already suffered the harm of such an invasion multiple times. Neither the City nor the other respondents have denied the threat to repeat the raids on the applicants’ homes in the future. The applicants have a reasonable apprehension that the raids will be repeated in future and there is no other effective remedy opened to them.”[214]

[209] The High Court also remarked that the extent of the limitation was “substantially disproportionate to its public purpose”.[215]

[210] In my view, whilst these remarks were made in respect of only paragraph (c), the same can be said of the entire provision.

It is notable that the terms “ensure the safety of the public” and “restore public order” are not defined in the SAPS Act. Furthermore, the respondents failed to proffer any precise definition of these concepts. It seems to me that these concepts (far-reaching as they are) can be invoked quite arbitrarily wherever a very general concern of crime and disorder can be made out. In light of the high crime rate in South Africa and the manner in which poor and vulnerable communities suffer disproportionately from violent and serious crimes, it stands to reason that such broad powers can be abused and used for discriminatory ends. The discriminatory ends to which the impugned provisions can and have been used undermine the constitutional guarantee of establishing a “non-racial” society. They further endorse intersectional forms of discrimination that are abhorrent to the constitutional mission to heal the injustices of the past and move beyond the indignities of apartheid-era policing. The impact on racial equality is also inconsistent with the state’s obligations in terms of the International Convention on the Elimination of All Forms of Racial Discrimination.

[211] In my view, even if paragraph (c) were excised from the SAPS Act, the jurisdictional requirements to invoke the cordoning off

power would be too low. Because the terms “public safety” and “public order” are not defined in the SAPS Act, the impugned provision confers wide and unbridled powers on the respondents. The facts of this matter illustrate the discriminatory ends to which such an unfettered power can be deployed. It is my view that such a power is plainly inconsistent with a society founded on the rule of law and respect for fundamental rights including dignity and equality.

The relation between the limitation and its purpose

[212] Besides general concerns about public disorder (which could apply to many parts of South Africa, mind you), the respondents have

failed to articulate a specific purpose that the impugned law seeks to achieve and the relationship between this purpose and the

limitation it imposes. In my view, based on this Court’s reasoning in EFF, the relationship between the limitation and its purpose in this case is tenuous at best. The respondents have failed to establish a direct link between the arbitrariness that flows from the far-reaching power to cordon off areas, and harass members of the public at will, which inevitably entails a degree of arbitrariness, and the public safety achieved by the exercise of these wide powers.

Less restrictive means

[213] It has already been said that the impugned law is disproportionate to its purpose. It also fails to adhere to the standards for intrusion into privacy established by this Court. For example, in Kunjana, this Court found that laws which infringe the right to privacy will be constitutionally problematic if they do not specify the time; place or manner of a search.[216] Applying the less restrictive means test, this Court also found the impugned law problematic because it enabled searches in all cases even where urgency had not been established and where there was no danger that the items would be lost or destroyed.[217]

[214] Similarly, in this matter, even if the first judgment severs paragraph (c) of section 13(7), the remainder of section 13(7) will still be problematic. Whilst it says the search may be for 24 hours, it suggests that a place can be cordoned off at any time – even in the early hours of the morning or the middle of the night. Furthermore, once the first judgment severs the warrantless search provisions, it will no longer be clear what powers the police have, when they cordon off an area. It therefore seems that it is entirely at their discretion what they may then do within the cordoned off area to preserve public order or safety. I agree with the applicants that severing paragraph (c) will leave behind an inchoate power that is equally ripe for abuse.

[215] In my view, the law is clearly disproportionate because the terms “public order” and “ensure the safety of the public” are given no definition. Furthermore, as pointed out above, the law can be invoked even where there is no genuine emergency such as a bomb threat, terrorist attack, insurrection, or other public emergency.

[216] The applicant is also correct that the police can still invoke Chapter 2 of the CPA, which defines the circumstances under which searches with or without warrants may take place. In these circumstances, the warrant must be justified and police officers must, on request, hand a copy of the warrant to the individual concerned. Even where there is no time to obtain a warrant, as set out in section 22 of the CPA, the police officer must believe that a warrant would have been issued in terms of section 21(1) of the CPA. This section requires that there must be reasonable grounds to obtain the search warrant. The CPA goes on to provide protection to a citizen who has been wronged during or as a result of such search.

[217] In terms of section 28 of the CPA, where a police officer acts contrary to the warrant, he or she shall be guilty of an offence and liable to pay a fine not exceeding R600 or imprisonment for a period not exceeding six months.[218] Should a police officer be so convicted, there is also a remedy for the injured person in the form of compensation in terms of section 300 of the CPA.[219] Section 13(11) of the SAPS Act also provides for the cordoning off of an area which is adjacent to the scene where the offence or alleged offence took place for investigation purposes.[220] Thus, less restrictive means clearly exist, and more accountability is introduced when searches and cordoning off are carried out within the prescripts of the CPA.

[218] As such, based on this Court’s recent approach to overbreadth in EFF, the impugned law would certainly be considered unconstitutional for overbreadth because it does not seek to achieve a specific, pressing and substantial purpose, which would justify the egregious violation of constitutional rights it enables. And to the extent that such a purpose has been identified, it is not appropriately tailored so as to minimise its effect on constitutional rights. The onus was on the police to justify the serious infringement of rights occasioned by the impugned law. In my view it failed to do so.

Conclusion

[219] Section 13(7) of the SAPS Act seeks to do no more than serve the purpose of crime prevention. There can be no doubt that in the context of South Africa’s high crime rate this is an important and legitimate objective. However, for the reasons outlined above, the section is clearly disproportionate to its purpose and has been deployed for an ulterior purpose, namely, to systematically persecute the residents of a neighbourhood branded as “undesirable” by the respondents. That such a manifest violation of rights can take place in the new dispensation gives rise to concerns that the Constitution does not mean much for those who, due to their race, gender, class, or other status, may be brutalised by the police with no fear of consequences. It further gives rise to the concern of what the Bill of Rights means for people such as the applicants who are impoverished and who live in conditions of indignity.

[220] The intersectional nature of the harms suffered by the applicants calls for an intersectional remedy which will bring about transformative equality.[221] In my view severing section 13(7) in its entirety is the kind of remedy which will restore the dignity of the applicants and result in the kind of structural changes which will moderate the conduct of the police. The severance of the impugned provision will ensure that the unfettered powers resulting in discrimination and harassment are permanently excised from our statute books.

[221] For all these reasons, I would declare section 13(7) unconstitutional and invalid in its entirety.

[222] On the question of constitutional damages, I concur with the reasoning in both the first and second judgments. In particular, I agree with the emphasis in the second judgement that constitutional damages are not appropriate in this matter where other forms of relief can be granted.

For the Applicants: S Wilson, I De Vos and O Motlhasedi

instructed by SERI Law Clinic

For the First, Sixth, Seventh and Tenth Respondents: M Mphaga SC and M Pompo

instructed by the State Attorney,

Johannesburg

[1] 68 of 1995.

[2] Residents of Industry House v Minister of Police 2021 (2) SA 220 (GJ) (High Court judgment).

[3] The first applicants are the residents of 5 Davies Street, New Doornfontein. The second applicants are the residents of

Rosano Modes, 32 and 34 Davies Street, New Doornfontein. The third applicants are the residents of 36 Davies Street, New

Doornfontein. The fourth applicants are the former residents of 39 to 41 Davies Street, New Doornfontein. The fifth

applicants are the residents of Wellington Court, 34 Leyds Street, Joubert Park. The sixth applicants are the residents of Remington Court, corner of Nugget and Jeppe Street. The seventh applicants are the residents of the Wemmer Shelter, 1 Glenluce Road, Turffontein. The eighth applicants are the residents of Kiribilly, Erven 87 and 88 Berea, corner of Soper Road and Fife Avenue, Berea, Johannesburg. The ninth applicants are the residents of 20 Janie Street, Jeppestown. The tenth applicants are the residents of 50, 52 and 54 Soper Road, Berea. The eleventh applicants are the residents of 1 Delvers Street, Marshalltown.

[4] The sixth and seventh respondents were Provincial Commissioners of the South African Police Service when the raids took place.

[5] These are the City of Johannesburg Metropolitan Municipality (second respondent), the Minister of Home Affairs (third respondent), Director-General of the Department of Home Affairs (fourth respondent), the Member of the Executive Council: Roads and Transport (fifth respondent), Herman Mashaba (eighth respondent), and Albert Matsaung (ninth respondent).

[6] I refer to those under the employ of the South African Police Service as “members of the police”.

[7] 13 of 2002.

[8] Where “illegal immigrants” is used in this judgment to refer to non-citizens, it reflects the language used in the application.

[9] “Hijacked” building refers to buildings where the control has been wrested away from the owner and is being occupied unlawfully. In certain instances rent is collected unlawfully from those who occupy the properties.

[10] High Court judgment above n 2 at para 21.

[11] Id at para 22.

[12] Id.

[13] Id at para 25.

[14] Id at para 34. See also Minister of Police v Kunjana [2016] ZACC 21; 2016 (2) SACR 473 (CC); 2016 (9) BCLR 1237 (CC) (Kunjana) at para 17; and Bernstein v Bester N.O. [1996] ZACC 2; 1996 (2) SA 751 (CC); 1996 (4) BCLR 449 (CC) at para 67.

[15] High Court judgment above n 2 para 40. The High Court relied on Mistry v Interim National Medical and Dental Council [1998] ZACC 10; 1998 (4) SA 1127 (CC); 1998 (7) BCLR 880 (CC) at para 28-30; Magajane v Chairperson, North West Gambling Board [2006] ZACC 8; 2006 (5) SA 250 (CC); 2006 (10) BCLR 1133 (CC) at para 71; and Kunjana above n 14 at paras 21-3.

[16] High Court judgment id at para 43.

[17] 51 of 1977.

[18] Section 20 of the Criminal Procedure Act reads as follows: “The State may, in accordance with the provisions of this Chapter, seize anything (in this Chapter referred to as an article)— (a) which is concerned in or is on reasonable grounds believed to be concerned in the commission or suspected commission of an offence, whether within the Republic or elsewhere; (b) which may afford evidence of the commission or suspected commission

of an offence, whether within the Republic or elsewhere; or (c) which is intended to be used or is on reasonable grounds believed to be intended to be used in the commission of an offence.”

[18] Section 20 of the Criminal Procedure Act reads as follows:

“The State may, in accordance with the provisions of this Chapter, seize anything (in this Chapter referred to as an article)—

(a) which is concerned in or is on reasonable grounds believed to be concerned in the commission or suspected commission of an offence, whether within the Republic or elsewhere;

(b) which may afford evidence of the commission or suspected commission

of an offence, whether within the Republic or elsewhere; or

(c) which is intended to be used or is on reasonable grounds believed to be intended to be used in the commission of an offence.”

[19] High Court judgment above n 2 at para 43.

[20] Id at para 44.

[21] Id at para 47.

[22] Id at paras 48 and 50.

[23] Id at para 119(d). The reading-in remedy reads as follows: “Upon receipt of the written authorisation referred to in paragraph (a), any member may cordon off the area concerned or part thereof, and may, where it is reasonably necessary in order to achieve the object specified in the written authorisation, without warrant, search any person, premises, except any private home and/or any person inside such private home, or vehicle, or any receptacle or object of whatever nature, in that area or part thereof and seize any article referred to in section 20 of the Criminal Procedure Act, 1977 (Act 51 of 1977), found by him or her in the possession of such person or in that area or part thereof: Provided that a member executing a search under this paragraph shall, upon demand of any person whose rights are or have been affected by the search or seizure, exhibit to him or her a copy of the written authorisation; Provided further that the provisions of section 21 with the exceptions provided for in section 22 of the Criminal Procedure Act 51 of 1977 shall apply to the search in terms of this subsection of any private home and/or any person inside such private home within the cordoned off area, and the seizure of any article contemplated in this subsection found in any such private home or in the possession of any person inside such private home.”

[23] Id at para 119(d). The reading-in remedy reads as follows:

“Upon receipt of the written authorisation referred to in paragraph (a), any member may cordon off the area concerned or part thereof, and may, where it is reasonably necessary in order to achieve the object specified in the written authorisation, without warrant, search any person, premises, except any private home and/or any person inside such private home, or vehicle, or any receptacle or object of whatever nature, in that area or part thereof and seize any article referred to in section 20 of the Criminal Procedure Act, 1977 (Act 51 of 1977), found by him or her in the possession of such person or in that area or part thereof: Provided that a member executing a search under this paragraph shall, upon demand of any person whose rights are or have been affected by the search or seizure, exhibit to him or her a copy of the written authorisation; Provided further that the provisions of section 21 with the exceptions provided for in section 22 of the Criminal Procedure Act 51 of 1977 shall apply to the search in terms of this subsection of any private home and/or any person inside such private home within the cordoned off area, and the seizure of any article contemplated in this subsection found in any such private home or in the possession of any person inside such private home.”

[24] Id at para 66.

[25] Id at para 67.

[26] Id at para 69.

[27] 3 of 2000. The sections fell afoul of sections 6(2)(b) and 6(2)(e)(1) of the PAJA.

[28] High Court judgment above n 2 at para 106-7.

[29] Id.

[30] Id at paras 117-8.

[31] Section 172(2)(a) reads as follows: “The Supreme Court of Appeal, the High Court of South Africa or a court of similar status may make an order concerning the constitutional

validity of an Act of Parliament, a provincial Act or any conduct of the President, but an order of constitutional invalidity has no force unless it is confirmed by the Constitutional Court.”

[31] Section 172(2)(a) reads as follows:

“The Supreme Court of Appeal, the High Court of South Africa or a court of similar status may make an order concerning the constitutional

validity of an Act of Parliament, a provincial Act or any conduct of the President, but an order of constitutional invalidity has no force unless it is confirmed by the Constitutional Court.”

[32] Fose v Minister of Safety and Security [1997] ZACC 6; 1997 (3) SA 786 (CC); 1997 (7) BCLR 851 (CC) at para 60.

[33] President of the Republic of South Africa v Modderklip Boerdery (Pty) Ltd (Agri SA and Others, Amici Curiae) [2005] ZACC 5; 2005 (5) SA 3 (CC); 2005 (8) BCLR 786 (CC) (Modderklip (CC)) at para 20.

[34] South African Informal Traders Forum v City of Johannesburg [2014] ZACC 8; 2014 (4) SA 371 (CC); 2014 (6) BCLR 726 (CC) at para 20(g).

[35] Section 13(1) provides that: “[s]ubject to the Constitution and with due regard to the fundamental rights of every person, a member may exercise such powers and shall perform such duties and functions as are by law conferred on or assigned to a police official.”

[36] Section 13(3) reads as follows: “(a) A member who is obliged to perform an official duty, shall, with due regard to his or her powers, duties and functions, perform such duty in a manner that is reasonable in the circumstances. (b) Where a member who performs an official duty is authorised by law to use force, he or she may use only the minimum force which is reasonable in the circumstances.”

[36] Section 13(3) reads as follows:

“(a) A member who is obliged to perform an official duty, shall, with due regard to his or her powers, duties and functions, perform such duty in a manner that is reasonable in the circumstances.

(b) Where a member who performs an official duty is authorised by law to use force, he or she may use only the minimum force which is reasonable in the circumstances.”

[37] S v Zuma [1995] ZACC 1; 1995 (2) SA 642 (CC); 1995 (4) BCLR 401 (CC) at para 21.

[38] Ex Parte Minister of Safety and Security: In Re S v Walters [2002] ZACC 6; 2002 (4) SA 613 (CC); 2002 (7) BCLR 663 (CC) (Walters).

[39] Id at paras 26-7. The Court further held that “both the rights and the enactment . . . must be interpreted as to promote the value system of an open and democratic society based on human dignity, equality and freedom”.

[40] Currie and De Waal The Bill of Rights Handbook 6 ed (Juta & Co, Cape Town) at 164 state the following: “A court must assess what the importance of a particular right is in the overall constitutional scheme. A right that is of

particular importance to the Constitution’s ambition to create an open and democratic society based on human dignity, freedom and equality will carry a great deal of weight in the exercise of balancing rights against justifications for their infringement.”

[40] Currie and De Waal The Bill of Rights Handbook 6 ed (Juta & Co, Cape Town) at 164 state the following:

“A court must assess what the importance of a particular right is in the overall constitutional scheme. A right that is of

particular importance to the Constitution’s ambition to create an open and democratic society based on human dignity, freedom and equality will carry a great deal of weight in the exercise of balancing rights against justifications for their infringement.”

[41] Investigating Directorate: Serious Economic Offences v Hyundai Motors Distributors (Pty) Ltd: In re Hyundai Motors Distributors v Smith [2000] ZACC 12; 2001 (1) SA 545 (CC); 2000 (10) BCLR 1079 (Hyundai) at para 18.

[42] Khumalo v Holomisa [2002] ZACC 12; 2002 (5) SA 401 (CC); 2002 (8) BCLR 771 (CC) at para 27.

[43] Hyundai above n 41 at para 18. See also De Vos et al South African Constitutional Law in Context (Oxford Press, Cape Town 2014) at page 463.

[44] Hyundai id at para 16.

[45] Minister of Justice and Constitutional Development v Prince [2018] ZACC 30; 2018 (6) SA 393 (CC); 2018 (10) BCLR 1220 (CC) (Prince).

[46] Id at para 100.

[47] Id at para 108.

[48] Id.

[49] Magajane above n 15 at para 65.

[50] European Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocols No. 11 and No. 14, 3 September 1953.

[51] Section 205(3) of the Constitution.

[52] Bernstein above n 14 at para 67. See also National Coalition for Gay and Lesbian Equality v Minister of Justice [1998] ZACC 15; 1999 (1) SA 6 (CC); 1998 (12) BCLR 1517 (CC) (National Coalition) at para 31, discussing Bernstein.

[53] Estate Agency Affairs Board v Auction Alliance (Pty) Ltd [2014] ZACC 3; 2014 (3) SA 106 (CC); 2014 (4) BCLR 373 (CC) (Estate Agency) at para 40.

[54] Gaertner v Minister of Finance [2013] ZACC 38; 2014 (1) SA 442 (CC); 2014 (1) BCLR 38 (CC) at para 47.

[55] 91 of 1964.

[56] Gaertner above n 54 at para 40.

[57] Id at para 66.

[58] In Mistry above n 15 at para 30, this Court noted that the breadth of a provision is an important determinant of the extent of the limitation.

[59] Magajane above n 15 at para 77.

[60] Id at paras 71 and 94.

[61] Dawood v Minister of Home Affairs; Shalabi v Minister of Home Affairs; Thomas v Minister of Home Affairs [2000] ZACC 8; 2000 (3) SA 936 (CC); 2000 (8) BCLR 837 (CC) (Dawood) at para 52.

[62] Minister of Safety and Security v Van der Merwe [2011] ZACC 19; 2011 (5) SA 61 (CC); 2011 (9) BCLR 961 (CC) (Van der Merwe).

[63] Id at para 35-6. In Kunjana above n 14 at para 23, this Court said that it is— “desirable that the statutory provision authorising a warrantless search procedure be crafted so as to limit the possibility of a greater limitation of the right to privacy than is necessitated by the circumstances, which the warrant requirement would otherwise do”.

[63] Id at para 35-6. In Kunjana above n 14 at para 23, this Court said that it is—

“desirable that the statutory provision authorising a warrantless search procedure be crafted so as to limit the possibility of a greater limitation of the right to privacy than is necessitated by the circumstances, which the warrant requirement would otherwise do”.

[64] 140 of 1992.

[65] Kunjana above n 14 at para 18.

[66] Id at para 25.

[67] Id at para 27.

[68] Id.

[69] Id.

[70] Gaertner above n 54 at para 71.

[71] Id at para 72.

[72] Magajane above n 15 at para 72 and Gaertner above n 54 at para 67.

[73] This will be in terms of section 21 which reads as follows— “(1) Subject to the provisions of sections 22, 24 and 25, an article referred to in section 20 shall be seized only by virtue of a search warrant issued— (a) by a magistrate or justice, if it appears to such magistrate or justice from information on oath that there are reasonable grounds for believing that any such article is in the possession or under the control of or upon any person or upon or at any premises within his area of jurisdiction; or (b) by a judge or judicial officer presiding at criminal proceedings, if it appears to such judge or judicial officer that any such article in the possession or under the control of any person or upon or at any premises is required in evidence at such proceedings. (2) A search warrant issued under subsection (1) shall require a police official to seize the article in question and shall to that end authorise such police official to search any person identified in the warrant, or to enter and search any premises identified in the warrant and to search any person found on or at such premises. (3) (a) A search warrant shall be executed by day, unless the person issuing the

warrant in writing authorises the execution thereof by night. (b) A search warrant may be issued on any day and shall be of force until it is executed or is cancelled by the person who issued it or, if such person is not available, by a person with like authority. (4) A police official executing a warrant under this section or section 25 shall, after such execution, upon demand of any person whose rights in respect of any search or article seized under the warrant have been affected, hand to him a copy of the warrant.” (Emphasis added.)

[73] This will be in terms of section 21 which reads as follows—

“(1) Subject to the provisions of sections 22, 24 and 25, an article referred to in section 20 shall be seized only by virtue of a search warrant issued—

(a) by a magistrate or justice, if it appears to such magistrate or justice from information on oath that there are reasonable grounds for believing that any such article is in the possession or under the control of or upon any person or upon or at any premises within his area of jurisdiction; or

(b) by a judge or judicial officer presiding at criminal proceedings, if it appears to such judge or judicial officer that any such article in the possession or under the control of any person or upon or at any premises is required in evidence at such proceedings.

(2) A search warrant issued under subsection (1) shall require a police official to seize the article in question and shall to that end authorise such police official to search any person identified in the warrant, or to enter and search any premises identified in the warrant and to search any person found on or at such premises.

(3) (a) A search warrant shall be executed by day, unless the person issuing the

warrant in writing authorises the execution thereof by night.

(b) A search warrant may be issued on any day and shall be of force until it is executed or is cancelled by the person who issued it or, if such person is not available, by a person with like authority.

(4) A police official executing a warrant under this section or section 25 shall, after such execution, upon demand of any person whose rights in respect of any search or article seized under the warrant have been affected, hand to him a copy of the warrant.” (Emphasis added.)

[74] This is provided for in section 22 which reads as follows— “A police official may without a search warrant search any person or container or premises for the purpose of seizing any article

referred to in section 20— (a) if the person concerned consents to the search for and the seizure of the article in question, or if the person who may consent to the search of the container or premises consents to such search and the seizure of the article in question; or (b) if he on reasonable grounds believes (i) that a search warrant will be issued to him under paragraph (a) of section 21(1) if he applies for such warrant; and (ii) that the delay in obtaining such warrant would defeat the object of the search.”

[74] This is provided for in section 22 which reads as follows—

“A police official may without a search warrant search any person or container or premises for the purpose of seizing any article

referred to in section 20—

(a) if the person concerned consents to the search for and the seizure of the article in question, or if the person who may consent to the search of the container or premises consents to such search and the seizure of the article in question; or

(b) if he on reasonable grounds believes

(i) that a search warrant will be issued to him under paragraph (a) of section 21(1) if he applies for such warrant; and

(ii) that the delay in obtaining such warrant would defeat the object of the search.”

[75] This is because section 13(7)(c) is exercised “after receipt of the written authorisation referred to in paragraph (a)”.

This indicates to me that properly constructed the sub-sections of section 13(7) must read together.

[76] Cool Ideas 1186 CC v Hubbard [2014] ZACC 16; 2014 (4) SA 474 (CC); 2014 (8) BCLR 869 (CC) (Cool Ideas).

[77] Id at para 28(c).

[78] Hyundai above n 41 at para 23.

[79] National Coalition above n 52 at para 23.

[80] Third judgment at [178].

[81] Id at [196].

[82] Id at [198]-[199].

[83] Id at [210].

[84] Id at [211].

[85] Cordoning-off is merely the act of blocking an area to prevent persons from entering an area.

[86] In Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism [2004] ZACC 15; 2004 (4) SA 490 (CC); 2004 (7) BCLR 687 (CC) at para 45, this Court has held that factors relevant to determining whether a decision was reasonable include “the nature of the competing interests involved and the impact of the decision on the lives and well-being of those affected”.

[87] See for example sections 60, 125 and 252A of the Criminal Procedure Act.

[88] Cool Ideas above n 76 at para 28 tells us that a “fundamental tenet of statutory interpretation is that the words in a statute must be given their ordinary grammatical meaning, unless to do so would result in an absurdity”. Furthermore, as a general principle, the law does not concern itself with trivialities, this would exclude some acts from reasonably falling within the scope of what could be considered a substantial danger to public order and safety. In addition, a strict definition for certain terms within the criminal law framework is often impractical as the gravity of some crimes is self-evident and courts are often able, on a case-by-case basis, to determine this. Thus, the terms cannot be said to be overbroad for mere lack of a definition. See Economic Freedom Fighters v Minister of Justice and Correctional Services [2020] ZACC 25; 2021 (2) SA 1 (CC); 2021 (2) BCLR 118 (CC) (EFF) at paras 53, 69, 70 and 142.

[89] Section 13(6) of the SAPS Act provides:

“Any member may, where it is reasonably necessary for the purposes of control over the illegal movement of people or goods across the borders of the Republic, without warrant search any person, premises, other place, vehicle, vessel or aircraft, or any

receptacle of whatever nature, at any place in the Republic within 10 kilometres or any reasonable distance from any border between the Republic and any foreign state, or in the territorial waters of the Republic, or inside the Republic within 10 kilometres or any reasonable distance from such territorial waters, or at any airport as defined in section 1 of the Aviation Act, 1962 (Act 74 of 1962), or within any reasonable distance from such airport and seize anything found in the possession of such person or upon or at or in such premises, other place, vehicle, vessel, aircraft or receptacle and which may lawfully be seized.”

[90] Section 13(8) provides in relevant part:

“(g) Any member may, without warrant—

(i) in the event of a roadblock or checkpoint that is set up in accordance with paragraph (c), search any person or vehicle stopped at such roadblock or checkpoint and any receptacle or object of whatever nature in the possession of such person or in, on or attached to such vehicle and seize any article referred to in section 20 of the Criminal Procedure Act, 1977, found by him or her in the possession of such person or in, on or attached to such receptacle or vehicle: Provided that a member executing a search under this subparagraph shall, upon demand of any person whose rights are or have been affected by the search or seizure, exhibit to him or her a copy of the written authorisation by the Commissioner concerned; and

(ii) in the event of a roadblock that is set up in accordance with paragraph (d), search any person or vehicle stopped at such roadblock and any receptacle or object of whatever nature in, on or attached to such vehicle and seize any article referred to in section 20 of the Criminal Procedure Act, 1977, found by him or her in, on or attached to such receptacle or vehicle: Provided that a member executing a search under this subparagraph shall, upon demand of any person whose rights are or have been affected by the search or seizure, inform him or her of the reason for the setting up of the roadblock.” (Emphasis added.)

[91] Section 13(11)(a) provides:

“(a) A member may, for the purposes of investigating any offence or alleged offence, cordon off the scene of such offence or alleged offence and any adjacent area which is reasonable in the circumstances to cordon off in order to conduct an effective investigation at the scene of the offence or alleged offence.

(b) A member may, where it is reasonable in the circumstances in order

to conduct such investigation, prevent any person from entering or leaving an area so cordoned off.”

[92] Section 205(3) of the Constitution.

[93] Section 172(1) of the Constitution provides:

“When deciding a constitutional matter within its power, a court—

(a) must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency; and

(b) may make any order that is just and equitable, including—

(i) an order limiting the retrospective effect of the declaration of invalidity; and

(ii) an order suspending the declaration of invalidity for any period and on any conditions, to allow the competent authority to correct the defect.”

[94] S v Zuma above n 37 at para 43.

[95] Mistry above n 15 at para 41.

[96] Kunjana above n 14 at paras 34-5.

[97] High Court judgment above n 2 at para 97.

[98] Id at para 78.

[99] Masstores (Pty) Ltd v Pick n Pay Retailers (Pty) Ltd [2016] ZACC 42; 2017 (1) SA 613 (CC); 2017 (2) BCLR 152 (CC) (Masstores).

[100] Setlogelo v Setlogelo 1914 AD 221 and Pilane v Pilane [2013] ZACC 3; 2013 JDR 0295 (CC); 2013 (4) BCLR 431 (CC) at para 39.

[101] Masstores above n 99 at para 8.

[102] National Council of Societies for the Prevention of Cruelty to Animals v Openshaw [2008] ZASCA 78; 2008 (5) SA 339 (SCA) at para 20.

[103] Fose above n 32 at para 60.

[104] Id at 69.

[105] Id at para 13.

[106] Id at para 67.

[107] Id at para 72.

[108] Id at para 58(b).

[109] Dikoko v Mokhatla [2006] ZACC 10; 2006 (6) SA 235 (CC); 2007 (1) BCLR 1 (CC).

[110] Id at para 91.

[111] Currie and De Waal above n 41 at 202.

[112] Modderklip (CC) above n 33 at paras 50-1.

[113] This Court went on to consider whether the award of damages took into account the following factors: the occupiers had formed

themselves into a settled community and built homes for themselves; the occupiers had no other option but to remain on Modderklip’s

property; their investment into their own community on Modderklip’s farm should be weighed against the financial waste that their eviction would represent; the cost of avoiding such waste would be minimal; the state is and has always been involved in matters concerning the unlawful occupation of Modderklip's farm; the state gave notice to Modderklip in terms of section 6(4) of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998, to institute eviction proceedings and Modderklip made various requests for assistance from various organs of State; and the responses of the state were consistently negative and unhelpful.

[114] Modderklip (CC) above n 33 at para 60.

[115] Id at para 65.

[116] Olitzki Property Holdings v State Tender Board [2001] ZASCA 51; 2001 (3) SA 1247 (SCA) (Olitzki).

[117] Id at para 1.

[118] Id at para 42.

[119] Id at para 38.

[120] Id at para 41.

[121] In Modderklip (CC) above n 33, this Court, at para 59, said that—

“[i]t could even be open to Modderklip to bring a separate delictual action against the state. What Modderklip required at that stage, however, having regard to the long history of its efforts to relieve its property from unlawful occupation, was something more effective. . .”. (Emphasis added.)

[122] Van der Walt and Midgely Principles of Delict 3 ed (LexisNexis Butterworths, Durban 2005) at 10.

[123] Neethling and Potgieter Law of Delict 7 ed (LexisNexis, Durban 2015) at 4 and 12.

[124] Nedcor Bank Ltd t/a Nedbank v Lloyd-Gray Lithographers (Pty) Ltd [2000] ZASCA 166; 2000 (4) SA 915 (SCA) at para 11. Joint wrongdoers are persons who, acting in concert or in furtherance of a common design, jointly commit a delict. They are jointly and severally liable. In addition, section 2 of the Apportionment of Damages Act 34 of 1956 reads as follows:

“Where it is alleged that two or more persons are jointly or severally liable in delict to a third person (hereinafter referred to as the plaintiff) for the same damage, such persons (hereinafter referred to as joint wrongdoers) may be sued in the same action.”

[125] High Court judgment above n 2 at para 96, where the Court found that the Commissioner failed to take into account relevant considerations before issuing the authorisations for repeat raids, and that the raids were conducted for an ulterior motive other than that set out in section 13(7), this ulterior motive was to enable the Department of Home Affairs to arrest those suspected of being “illegal immigrants” without a warrant.

[126] Section 8(1) of PAJA states:

“8 Remedies in proceedings for judicial review

(1) The court or tribunal, in proceedings for judicial review in terms of section 6(1), may grant any order that is just and equitable, including orders—

(a) directing the administrator—

(i) to give reasons; or

(ii) to act in the manner the court or tribunal requires;

(b) prohibiting the administrator from acting in a particular manner;

(c) setting aside the administrative action and—

(i) remitting the matter for reconsideration by the administrator, with or without directions; or

(ii) in exceptional cases—

(aa) substituting or varying the administrative action or correcting a defect resulting from the administrative action; or

(bb) directing the administrator or any other party to the proceedings to pay

compensation;

d) declaring the rights of the parties in respect of any matter to which the administrative action relates;

(e) granting a temporary interdict or other temporary relief; or

(f) as to costs.”

[127] Steenkamp N.O. v Provincial Tender Board, Eastern Cape [2006] ZACC 16; 2007 (3) SA 121 (CC); 2007 (3) BCLR 300 (CC).

[128] Id at para 101.

[129] Darson Construction (Pty) Ltd v City of Cape Town (2007) 1 SA 488 (C) (Darson).

[130] Id at 502D.

[131] In My Vote Counts NPC v Speaker of the National Assembly [2015] ZACC 31; 2016 (1) SA 132 (CC); 2015 (12) BCLR 1407 (CC) at para 46 this Court held:

“Subsidiarity denotes a hierarchical ordering of institutions, of norms, of principles, or of remedies, and signifies that the central institution, or higher norm, should be invoked only where the more local institution, or concrete norm, or detailed principle or remedy, does not avail.”

[132] Head of Department, Mpumalanga Department of Education v Hoërskool Ermelo [2009] ZACC 32; 2010 (2) SA 415 (CC); 2010 (3) BCLR 177 (CC) at para 96.

[133] Millennium Waste Management (Pty) Ltd v Chairperson Tender Board, Limpopo Province [2007] ZASCA 165; 2008 (2) SA 481 (SCA) at paras 22–9.

[134] Mvumvu v Minister for Transport [2011] ZACC 1; 2011 (2) SA 473 (CC); 2011 (5) BCLR 488 (CC) at para 49. See also Minister of Police v Mboweni [2014] ZASCA 107; 2014 (6) SA 256 (SCA) at para 25.

[135] High Court judgment above n 2 at para 96 found that the Commissioner failed to take into account relevant considerations before issuing the authorisations for repeat raids, and that the raids were conducted for an ulterior motive to that set out in section 13(7), this ulterior motive was to enable the Department of Home Affairs to arrest those suspected of being “illegal immigrants” without a warrant.

[136] See in contrast to these rights the section 19 political rights, and the section 22 right to freedom of trade, occupation and profession for example, which attach only to citizens of the Republic.

[137] Minister of Home Affairs v Watchenuka [2003] ZASCA; 2004 (4) SA 326 (SCA); 2004 (2) BCLR 120 (SCA) at para 25.

[138] This Constitutional Court in Lawyers for Human Rights v the Minister of Home Affairs [2004] ZACC 12; 2004 (4) SA 125 (CC); 2004 (7) BCLR 775 (CC) at paras 21-2, noted that non-citizens have a very limited understanding of the South African legal system as well as the constitutional rights to which they are entitled. This Court further noted that they generally have a very remote chance of challenging a violation of their rights, mostly because they do not have the “resources, knowledge, power or will to institute appropriate proceedings.” Although in that case the Court was dealing with non-citizens who had only just recently arrived in the country, this phenomenon is pervasive even in the case of those who have been resident in the country for longer periods.

[139] Olitzki above n 116 at para 42 and Modderfontein Squatters, Greater Benoni City Council v Modderklip Boerdery (Pty) Ltd (Agri SA and Legal Resources Centre, Amici Curiae); President of the Republic of South Africa and Others v Modderklip Boerdery (Pty) Ltd [2004] ZASCA 47; 2004 (6) SA 40 (SCA) (Modderklip (SCA)).

[140] Modderklip (SCA) id at para 43.

[141] Olitzki above n 116 at para 38.

[142] MEC, Department of Welfare, Eastern Cape v Kate [2006] ZASCA 49; 2006 (4) SA 478 (SCA) (Kate).

[143] Id at para 27.

[144] Id.

[145] Id at para 33.

[146] Ruta v Minister of Home Affairs [2018] ZACC 52; 2019 (2) SA 329 (CC); 2019 (3) BCLR 383 (CC) at para 21; Camps Bay Ratepayers’ and Residents Association v Harrison [2010] ZACC 19; 2011 (4) SA 42 (CC); 2011 (2) BCLR 121 (CC) at paras 28-30; Gcaba v Minister for Safety and Security [2009] ZACC 26; 2010 (1) SA 238 (CC); 2010 (1) BCLR 35 (CC) at paras 58-62; and Certification of the Amended Text of the Constitution of the Republic of South Africa, 1996 [1996] ZACC 24; 1997 (2) SA (CC) ; 1997 (1) BCLR 1 (CC) at para 8.

[147] Fose above n 32.

[148] Id at paras 71-2.

[149] Id at para 103.

[150] Id at para 104.

[151] Id at para 95.

[152] Id at para 68.

[153] Id at para 71.

[154] Some of these rights are found in sections 15-21 and 26-35 of the Constitution.

[155] Minister of Health v Treatment Action Campaign (No 2) [2002] ZACC 15; 2002 (5) SA 721 (CC); 2002 (10) BCLR 1033 (CC) (Treatment Action Campaign (No 2)) at para 39.

[156] Mazibuko v City of Johannesburg [2009] ZACC 28; 2010 (4) SA 1 (CC); 2010 (3) BCLR 239 (CC) at para 49.

[157] Id at para 61.

[158] Government of the Republic of South Africa v Grootboom [2000] ZACC 19; 2001 (1) SA 46 (CC); 2000 (11) BCLR 1169 (CC) (Grootboom).

[159] Khumalo above n 42 at para 27.

[160] Le Roux v Dey (Freedom of Expression Institute and Restorative Justice Centre as Amici Curiae) [2011] ZACC 4; 2011 (3) SA 274 (CC); 2011 (6) BCLR 577 (CC) (Dey) at para 149.

[161] The Citizen 1978 (Pty) Ltd v McBride (Johnstone and Others, Amici Curiae) [2011] ZACC 11; 2011 (4) SA 191 (CC); 2011 (8) BCLR 816 (CC) at para 136(2)(b) and NM v Smith (Freedom of Expression Institute as Amicus Curiae) [2007] ZACC 6; 2007 (5) SA 250 (CC); 2007 (7) BCLR 751 (CC) at para 81.

[162] Section 38 provides:

“Anyone listed in this section has the right to approach a competent court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights. The persons who may approach a court are—

(a) anyone acting in their own interest;

(b) anyone acting on behalf of another person who cannot act in their

own name;

(c) anyone acting as a member of, or in the interest of, a group or

class of persons;

(d) anyone acting in the public interest; and

(e) an association acting in the interest of its members.”

[163] Fose above n 32 at para 58.

[164] Dikoko above n 109 at para 91.

[165] Fose above n 32 at paras 96-7.

[166] Id at para 98.

[167] Modderklip (CC) above n 33 at para 59.

[168] First judgment at [103].

[169] Fose above n 32 at para 98.

[170] Id at para 19.

[171] Id at para 71.

[172] De Vos and Webster “No Place for the Poor: The Governance of Removal in Zulu and SAITF” (2015) 7 Constitutional Court Review 321 at 328. The authors also warn, at 335, that “[i]f these currents persist, the South African urban crisis is unlikely to reach any democratic conclusion, and urban governance will become increasingly exclusionary, authoritarian and repressive”.

[173] Krüger “The South African Constitutional Court and the Rule of Law: The Masethla Judgment, a Cause for Concern?” (2010) 13 Potchefstroom Electronic Law Journal 468 at 479.

[174] The Preamble to the SAPS Act provides:

“[T]here is a need to provide a police service throughout the national territory to—

(a) ensure the safety and security of all persons and property in the

national territory;

(b) uphold and safeguard the fundamental rights of every person as

guaranteed by [Chapter 2] of the Constitution.”

[175] General Recommendation XIII on the Training of Law Enforcement, UN Doc A/48/18 (1993) at para 2.

[176] Anderson “City of Joburg arrests 272 undocumented immigrants during property raid” The South African (3 May 2018), available at https://www.thesouthafrican.com/news/city-of-joburg-arrests-272-undocumented-immigrants/.

[177] High Court judgment above n 2 at para 100.

[178] Notably, former Deputy Chief Justice Moseneke, writing extra-curially, once remarked that:

“Ours is a ‘never and never again’ Constitution. At its inception, it had several purposes, but two were foremost. The one objective was to shut the door firmly on what Mr Mandela called the ‘oppression of one by another’. The Constitution has and continues to afford us the opportunity to turn our backs firmly on a dim and painful past. The other prime objective is aspirational, and therefore transformative. Its hope is that there will be ‘justice, peace, work, bread, water and salt for all [and that for each] the body, the mind and the soul [will be] freed to fulfil themselves’.”

See Moseneke “Separation of powers: Have the courts crossed the line?” GroundUp (24 July 2015), available at https://www.groundup.org.za/article/separation-powers-have-courts-crossed-line_3152/.

[179] General Recommendation No 36 on Preventing and Combating Racial Profiling by Law Enforcement Officials, UN Doc CERD/C/GC/36 (2020)

(General Recommendation No 36) at para 13.

[180] Inter-American Commission on Human Rights, The Situation of People of African Descent in the Americas OEA/Ser.L/V/II, (2011) at para 143.

[181] General Recommendation No 36 above n 179 at para 30.

[182] Id at para 53.

[183] Mahlangu v Minister of Labour [2020] ZACC 24; 2021 (2) SA 54 (CC); 2021 (1) BCLR 1 (CC) at para 76.

[184] Id.

[185] Crenshaw “Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist

Theory and Antiracist Politics” (1989) 1989 University of Chicago Legal Forum 139.

[186] Section 13(7)(a) of the SAPS Act.

[187] Section 13(7)(b) of the SAPS Act.

[188] Dawood above n 61 at para 47.

[189] Section 13(1) of the SAPS Act provides:

“Subject to the Constitution and with due regard to the fundamental rights of every person, a member may exercise such powers and shall perform such duties and functions as are by law conferred on or assigned to a police official.”

[190] Section 13(3)(a) of the SAPS Act provides:

“A member who is obliged to perform an official duty, shall, with due regard to his or her powers, duties and functions, perform such duty in a manner that is reasonable in the circumstances.”

[191] Dawood above n 61 at para 46.

[192] Id at paras 46-7.

[193] S v Manamela (Director-General of Justice Intervening) [2000] ZACC 5; 2000 (3) SA 1 (CC); 2000 (5) BCLR 491 (CC) at para 49.

[194] EFF above n 88 at para 62.

[195] Id at para 50.

[196] Id at para 49.

[197] Id at para 50.

[198] Yick Wo v Hopkins [1886] USSC 197; 118 US 356 (1886).

[199] Id at 373-4.

[200] EFF above n 88 at para 40.

[201] See Manamela above n 193 and EFF above n 88.

[202] Section 233 of the Constitution.

[203] Gaertner above n 54 at para 66.

[204] Id at para 47.

[205] Gaertner above n 54.

[206] Estate Agency above n 53 at para 40.

[207] Kunjana above n 14 at para 27.

[208] Gaertner above n 54 and Dawood above n 61.

[209] Dawood id at para 35.

[210] Mistry above n 15 para 25.

[211] EFF above n 88 at para 49.

[212] Id.

[213] Id at para 50.

[214] High Court judgment above n 2 at para 106.

[215] Id at para 40.

[216] Kunjana above n 14 at paras 21-4.

[217] Id at paras 25-32.

[218] Section 28 of the CPA provides:

“(1) A police official—

(a) who acts contrary to the authority of a search warrant issued under

section 21 or a warrant issued under section 25(1); or

(b) who, without being authorised thereto under this Chapter—

(i) searches any person or container or premises or seizes or detains any article; or

(ii) performs any act contemplated in subparagraph (i), (ii) or (iii) of section 25(1),

shall be guilty of an offence and liable on conviction to a fine not exceeding R600 or to imprisonment for a period not exceeding six months, and shall in addition be subject to an award under subsection (2).”

[219] Section 300 of the CPA provides:

“(1) Where a person is convicted by a superior court, a regional court or a magistrate’s court of an offence which has caused damage to or loss of property (including money) belonging to some other person, the court in question may, upon the application of the injured person or of the prosecutor acting on the instructions of the injured person, forthwith award the injured person compensation for such damage or loss: Provided that—

(a) a regional court or a magistrate’s court shall not make any such award if the compensation applied for exceeds the amount determined by the Minister from time to time by notice in the Gazette in respect of the respective courts.”

[220] Section 13(11) of the SAPS Act provides:

“(a) A member may, for the purposes of investigating any offence or alleged

offence, cordon off the scene of such offence or alleged offence and any adjacent area which is reasonable in the circumstances to cordon off in order to conduct an effective investigation at the scene of the offence or alleged offence.

(b) A member may, where it is reasonable in the circumstances in order to conduct such investigation, prevent any person from entering or leaving an area so cordoned off.”

[221] The importance of crafting an intersectional remedy to respond to intersectional discrimination was recently underscored by this Court in Mahlangu above n 183 at para 128, where this Court said:

“The fact that this case concerns intersectional discrimination is a relevant factor in determining whether a retrospective order should be granted. As discussed above, I am hopeful that the inclusion of domestic workers in the definition of ‘employee’ under COIDA will contribute towards the amelioration of systemic disadvantage suffered by these women and contribute to breaking the cycle of poverty they suffer.”