Court declares Mashaba’s Joburg CBD raids ‘unconstitutional’

Johannesburg Mayor Herman Mashaba. Picture: Itumeleng English / African News Agency (ANA)

The court also ruled that section 13 (7) (c) of the South African Police Services Act 68 of 1995 (the SAPS Act) constitutionally invalid.

The Johannesburg High Court delivered a judgment on Monday, which declared People’s Dialogue leader and former major, Herman Mashaba’s inner-city raids on 11 buildings from July 2017 to May 2018, irrational and unconstitutional.

The court also ruled that section 13 (7) (c) of the South African Police Services Act 68 of 1995 (the SAPS Act) constitutionally invalid after lawyers on behalf of the Socio-Economic Rights Institute of South Africa (Seri), which represented more than 2,800 residents, filed an application on the matter.

Section 13(7) gave power to national or provincial SAPS commissioners to authorise the cordoning-off of an area where acts of crime were suspected, which meant that the police may search, seize property and citizens without a court-sanctioned warrant.

According to Seri, the judges found that the former provincial commissioner involved in the raids failed to apply her mind to the template-based applications for the authorizations.

“This led to the warrantless raids of the applicants’ homes and simply rubber-stamped the applications brought to her.

“The court held that the raids in the residents’ homes were “carried out in a manner that was cruel, humiliating, degrading and invasive” and demonstrate an egregious abuse of, and infringement of the residents’ constitutional rights to privacy and dignity,” the organisation said in a statement.

The organisation said the court held that the decision to issue the authorisations fall to be set aside, in terms of sections 6(2)(e)(i) and (ii) of Promotion of Administrative Justice Act (PAJA) respectively.

“As they were issued for a reason not authorised by section 13(7) of the SAPS Act and for an ulterior purpose or motive which is to intimidate the applicants into vacating the so-called hijacked buildings,” the organisation added.

It further said the court also ordered the legislature to amend the act within 24 months and pending the correction the section was to be read as excluding any private home and/or any person inside such private home.

Seri attorney Khululiwe Bhengu, who represented the residents, welcomed the courts’ judgment.

“The courts continue to interpret the constitution in way that vindicates the rights of the poor. Because of this judgment poor residents of the inner city can enjoy their homes without the fear of being raided by the police,” she said.

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