Police officers seize generators that were suspected of being stolen during a raid on a hijacked building as part of a raid on Nugget Street in Johannesburg on 23 June 2017. The raids were part of a drive by Minister of Police Fikile Mbalula's visit to gain an appreciation for the Operational Command Centre. Picture for illustration: Yeshiel Panchia
The country’s apex court has declared legislation under which the police in 2017 and 2018 carried out a series of “cruel, degrading and invasive” raids in downtown Johannesburg – without any warrants – to be constitutionally invalid.
Between June 2017 and May 2018, Saps and Johannesburg Metro Police Department (JMPD) officers – along with officials from the department of home affairs – carried out a string of operations in the CBD, cordoning off supposedly hijacked apartment blocks and conducting warrantless raids.
This at the behest of then mayor Herman Mashaba.
The majority of these raids were authorised under Section 13(7) of the Saps Act, which allows the police – with the written authorisation of the national or provincial commissioner – to cordon off an area to ensure public order or safety and “without warrant, search any person, premises or vehicle, or any receptacle or object of whatever nature, in that area or part thereof”.
Last June, a full bench of the High Court in Johannesburg ruled in favour of the almost 3 000 residents who were affected by the 2017 and 2018 raids – represented before it by the Socio-Economic Rights Institute of South Africa (Seri) – and found the operations were authorised unlawfully.
While the raids were conducted under the guise of clamping down on violent crime, they were, in truth, aimed at exerting pressure on residents to vacate the “hijacked” buildings and rounding up undocumented migrants.
But the court also found the legislation governing these kinds of raids was “overbroad” and in breach of the right to privacy, and declared it invalid to this extent.
And yesterday, the Constitutional Court confirmed this.
The evidence before the courts laid out how, during the raids, men, women and children were forced out of their homes at all hours and made to present proof that they were in the country legally, while police broke down their doors and went through their belongings.
“A home is more than brick and mortar, it is often a place of comfort, safety, and the keystone of a functional society. The background to this application illuminates, in living colour and grim reality, the lived experiences of the applicants, for whom this comfort and safety was disregarded through a sustained search and seizure campaign by the respondents,” read the opening of Friday’s majority judgment, penned by Justice Nonkosi Mhlantla. She expressed particular concern over the unlawfulness of the authorisation for the raids.
“This abuse of power indicates wanton and calculated disregard of the law by the respondents and a predacious, mechanical scheme to terrorise and arrest non citizens and forcibly evict suspected unlawful occupiers, under the guise of restoring public order,” she said.
Like the high court, though, the Constitutional Court has stopped short of declaring Section 13(7) invalid in its entirety – despite the affected residents having pushed for this – finding it is “meant to enable the police
service to fulfil its constitutional obligations”.
The Constitutional Court has also, like the high court, dismissed the affected residents’ claim for R1 000 each in constitutional damages.
Mhlantla explained this did not amount to a condonation of the “appalling and systemic rights violations” the victims had been subject to, but signalled that there were “more appropriate” remedies available to them.
– bernadettew@citizen.co.za
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