Blow for drugbusters

[DankAF]

http://www.iol.co.za/news/crime-courts/blow-for-drugbusters-2087094

 

It is now illegal for police officers to randomly stop and search people or enter any premises looking for drugs, unless they have a search warrant.

And if they do, they would be in breach of a recent Constitutional Court judgment aimed at preserving citizens’ right to privacy.

 

 

 

A Constitutional Court judgment has declared invalid sections of the Drugs and Drug Trafficking Act. Drug policing, as a result, has been altered.

Police officers previously had the legal right to search for drugs on anyone showing “reasonable suspicious behaviour”. But since a section of the drugs law dealing with this has been declared invalid, police officers need to apply to a court for a warrant before they can conduct any searches.

The Constitutional Court judgment in July came after lawyers argued that a woman renting two properties had been arrested unconstitutionally after police raided her homes. Police entered the Kenilworth and Wynberg properties of Grace Nomazizi Kunjana in March 2011.

The police had, according to court papers, “received information that a large quantity of illegal drugs, particularly mandrax, was kept at 2 Moor Street, Kenilworth, and that these drugs would be moved during the course of that day”.

“It was also reported that another large quantity of drugs was stored at 6 Chartwell Place, Robinson Street, Wynberg. Both properties were leased by Kunjana.”

The court papers continue that “police conducted search and seizure operations at the Kenilworth and Wynberg premises”.

Police found 24 719 mandrax tablets weighing 33.9kg at the Kenilworth premises, and 262 818 mandrax tablets and tik weighing 2.1kg at the Wynberg premises.

Cash totalling R1 823 200, “with traces of mandrax”, was also found at the Wynberg premises.

Kunjana is still facing court proceedings in the Western Cape High Court in this matter. But lawyers meanwhile approached the Constitutional Court with claims the search at her properties was illegal - and won.

In the end, the police ministerw, the director of public prosecutions and the minister of justice and correctional services had to pay Kunjana’s lawyers fees in the Constitutional Court matter.

The court’s judgment leans on Section 14 of the constitution which “guarantees that everyone has the right to privacy, including the right not to have their person or home searched, their property searched, their possessions seized or the privacy of their communications infringed”.

The court did not, however, ignore the necessity for police officers to act hastily at times. In this case, they might not have time to obtain search warrants from a local court.

“These (drug-related) offences, like other unlawful activities, are conducted in a clandestine fashion, successful prosecution of which requires the limitation of the right to privacy,” the court’s judgment said.

But the judgment favoured the constitutional right to privacy above the police’s right to freely - based on an officer’s discretion - enter someone’s house or stop anybody with the intention to search for drugs.

A search warrant “governs the time, place and scope of the search, limiting the privacy intrusion, guiding the state in the conduct of the inspection and informing the subject of the legality and limits of the search”.

Dr Simon Howell, senior researcher at the UCT Centre for Criminology, said on reviewing the court order that the Drugs Act still did allow for police officers to stop and search people if they obtained a warrant for a certain area, such as a known drug hotspot, for example. This warrant was not for an individual.

Howell said it was also possible for police officers to search a person or property for drugs, and then obtain a search warrant afterwards. He cautioned: “This is risky because should that warrant not be granted after the fact, the officers could face private litigation.

“The person being searched could base this litigation on an invasion of privacy.”

But Howell believed the amendment to the Drugs Act was “good news for the man on the street”.

“Police officers can no longer justify turning a person’s whole house upside down because they were looking for drugs. That’s an invasion of privacy,” he said.

Western Cape police spokesman Lieutenant Colonel Andre Traut dismissed Howell’s claims.

“The alleged belief that we only arrest users is devoid of truth,” he said.

But he confirmed police officers had been informed of the Constitutional Court’s judgment and were abiding by it.