The Residents of Industry House, 5 Davies Street, New Doornfontein, Johannesburg and Others v Minister of Police and Others

Between June 2017 and May 2018, approximately 2,852 poor residents across 11 properties in inner-city Johannesburg experienced repeated warrantless raids conducted by members of the South African Police Service (SAPS), Johannesburg Metropolitan Police Department and Department of Home Affairs officials. The searches were purportedly authorised by section 13(7) of the South African Police Service Act 68 of 1995, which permits cordoning off areas and conducting warrantless searches to restore public order or ensure public safety. Residents were forcibly removed from their homes, fingerprinted, searched, and detained if they could not produce identification documents. The raids were conducted without warrants, often at night, doors were broken down, and possessions were seized. The High Court found the written authorisations were issued for an ulterior purpose—arresting undocumented immigrants—rather than genuine public safety concerns. The applicants challenged the constitutionality of section 13(7) and sought constitutional damages, interdicts, and declaratory relief.

• Whether section 13(7)(c) of the SAPS Act, which authorises warrantless searches, is constitutionally valid
• Whether paragraphs (a) and (b) of section 13(7) are constitutionally valid
• Whether the limitation of the right to privacy in section 14 of the Constitution is reasonable and justifiable under section 36
• Whether constitutional damages are an appropriate remedy for breach of constitutional rights to privacy and dignity
• Whether a final interdict should be granted to prevent future unlawful searches

1. Declaration of invalidity of section 13(7)(c) confirmed but varied; 2. The warrantless search portion of section 13(7)(c) severed and replaced with requirement to conduct searches in terms of sections 21 and 22 of the Criminal Procedure Act; 3. Leave to appeal granted; 4. Appeal against constitutionality of section 13(7)(a) and (b) dismissed; 5. Appeal for constitutional damages dismissed; 6. Appeal for final interdict upheld only for seventh and eleventh applicants; 7. City of Johannesburg, Minister of Home Affairs and Director-General of Home Affairs interdicted from raiding or searching seventh and eleventh applicants' homes except on authority of court order, warrant, or section 22 of CPA; 8. Minister of Police to pay costs including two counsel.

Warrantless search provisions that lack adequate safeguards regarding time, place, manner, and scope of searches, impose no requirement for reasonable suspicion, and apply even where no urgency exists, unjustifiably infringe the constitutional right to privacy under section 14. While maintaining public order and safety are legitimate governmental objectives, legislation must be appropriately tailored to limit intrusion on fundamental rights. Section 13(7)(a) and (b), which authorise cordoning off areas, are constitutionally valid as they contain internal limitations (reasonableness, 24-hour limit, specified objectives) and do not independently infringe rights. Constitutional damages are not appropriate where alternative remedies (delictual claims, PAJA compensation) are available and effective to vindicate the breach of rights. The mere difficulty of proving a delictual claim does not render constitutional damages necessary.

Mhlantla J emphasised that human dignity has no nationality and constitutional rights attach to "everyone" not just citizens. The Court noted that requiring officials to act constitutionally is insufficient—legislation must provide clear guidance limiting discretion. Jafta J observed that constitutional damages serve to enforce the Constitution beyond individual compensation, and should generally only be awarded where no other effective remedy exists. He cautioned that Kate was wrongly decided in allowing constitutional damages on top of full compensation. Victor AJ (dissenting) warned about racial profiling and intersectional discrimination, noting the raids targeted poor, Black residents in a manner resembling apartheid-era policing. She emphasised that facially neutral laws may be unconstitutional based on discriminatory application, citing Yick Wo v Hopkins. The judgments collectively stressed that poverty and vulnerability cannot justify lesser constitutional protection.

This landmark judgment establishes crucial limitations on police powers to conduct warrantless searches, reinforcing the importance of privacy rights even for poor and marginalised communities. It demonstrates that legislation authorising warrantless searches must contain adequate safeguards regarding time, place, scope, and manner of searches. The judgment confirms that constitutional damages are not automatically available where other remedies exist, clarifying when such damages are appropriate. It addresses systemic police abuse targeting vulnerable populations and affirms that constitutional rights apply equally to all residents regardless of citizenship, race, or socio-economic status. The case illustrates the Court's approach to remedies, balancing rights protection with institutional competence and resource constraints. It also demonstrates the principle of constitutional subsidiarity—requiring use of legislative remedies (like PAJA) before resorting to direct constitutional relief.