Ashok Rama Mistry v The Interim National Medical and Dental Council of South Africa and Others

The applicant was a registered medical practitioner in private practice. Following a complaint by a patient alleging fraudulent claiming from a medical aid fund, the Interim National Medical and Dental Council ordered an inspection of the applicant's premises. Two investigating officers from the Council (Mr Enslin and Dr Moodliar), acting under the Medical Act, informed an inspector of medicines (Mr Coote) appointed under the Medicines Act of the impending inspection. The three inspectors conducted a joint search of the applicant's surgery in his absence. Mr Coote purchased skin-lightening cream from the receptionist and seized numerous items. The applicant sought the return of all seized items and challenged the constitutionality of sections 28(1) of the Medicines and Related Substances Control Act 101 of 1965 and sections of the Medical Act. McLaren J in the High Court ordered the return of items seized by Enslin and Moodliar but refused to order return of items seized by Coote. He referred the constitutionality of section 28(1) of the Medicines Act to the Constitutional Court and granted leave to appeal regarding the items not ordered to be returned.

• Whether section 28(1) of the Medicines and Related Substances Control Act 101 of 1965 is constitutional and valid
• Whether the powers of entry, examination, search and seizure given to inspectors by section 28(1) are consistent with the right to personal privacy guaranteed by section 13 of the interim Constitution
• Whether the search conducted infringed the applicant's right to privacy under section 13
• Whether section 28(1) can be 'read down' to bring it within constitutional limits
• Whether the communication of information by Mr Enslin to Mr Coote constituted a breach of the applicant's constitutional right to privacy
• Whether the items seized should be returned to the applicant

1. Section 28(1) of the Medicines and Related Substances Control Act 101 of 1965 is declared inconsistent with section 13 of the interim Constitution and invalid. 2. The appeal is dismissed. 3. Mr Coote and the Minister are jointly and severally ordered to pay the costs of the proceedings in the Constitutional Court, including the costs of two counsel.

Section 28(1) of the Medicines Act is unconstitutional because it authorizes warrantless entry and search of any premises (including private homes) and inspection of any documents wherever medicines or scheduled substances are or are reasonably suspected to be, without any requirement for prior independent authorization, without distinguishing between regulatory inspections of commercial premises and invasive searches of private homes, and without adequate safeguards to minimize intrusions on privacy. Such sweeping powers are grossly disproportionate to the legitimate public health objectives of the Act and fail the proportionality test under section 33(1) of the interim Constitution. The extent of invasion of the important right to personal privacy is substantially disproportionate to the public purpose, making the section overbroad and unjustifiable. The desired regulatory ends could be achieved through less restrictive means, particularly by requiring warrants for searches of private homes while permitting warrantless regulatory inspections of business premises in appropriate circumstances.

Chaskalson P made important observations about constitutional interpretation, emphasizing that 'the Constitution does not mean whatever we might wish it to mean' and that cases must be decided on principled bases that develop a coherent body of constitutional jurisprudence, not on subjective attitudes of judges. Sachs J made several significant obiter observations: (1) The precise boundary between 'inspection' and 'search' was not determined, nor the exact scope of 'property' and 'private possessions' in section 13, as these threshold questions were unnecessary given the clear breach. (2) The judgment assumed without deciding that informational privacy is protected by section 13, that Mr Enslin was performing state functions bound by the Bill of Rights, and that he breached confidentiality provisions. (3) The Court declined to fully analyze the 'complex and controversial' terrain of informational privacy. (4) The judgment noted but did not decide whether regulatory inspections should always be regarded as searches under section 13. (5) Sachs J outlined principles for when courts should use section 98(5) powers, including the need for evidence about negative consequences of immediate invalidity, adequacy of alternatives, legislation in the pipeline, and reasonable time required for correction. (6) The judgment commented on the need for parties to provide timely and proper information when seeking orders under section 98(5) or 98(6). (7) Sachs J noted that section 33(1) limitations clause applies to laws, not to conduct of officials, though it may guide values officials should respect. (8) The Court expressly refrained from commenting on the constitutionality of the amended provisions in the Medicines and Related Substances Control Amendment Act 90 of 1997.

This is a foundational case in South African constitutional law on the right to privacy and the limits of state search and seizure powers. It established important principles: (1) The right to privacy in section 13 protects the 'inner sanctum' of personal and home life, with privacy expectations diminishing as one moves into communal and commercial spheres. (2) Even beneficial regulatory schemes must respect constitutional rights through appropriate safeguards. (3) Warrantless searches may be appropriate for routine regulatory inspections of business premises in regulated industries, but not for searches of private homes. (4) Overbroad statutory powers that authorize extensive invasions of privacy cannot be saved by 'reading down' where this would require substantial rewriting of the legislative scheme. (5) Courts applying section 98(5) to suspend declarations of invalidity require proper evidence about the interests of justice and good government. (6) The proportionality test from Makwanyane applies to privacy limitations. The judgment reflects the Court's commitment to repudiating apartheid-era practices of unrestricted official searches while preserving legitimate regulatory functions. It demonstrates the distinction between a constitutional democracy and a police state. The case also addressed but did not fully resolve questions of informational privacy, leaving that terrain for future development. The judgment emphasizes that safeguarding personal privacy through regulated entry into private domains is a key feature distinguishing constitutional democracy from authoritarianism.