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

The applicant, a medical practitioner in private practice, was the subject of a complaint alleging fraudulent claims to a medical aid fund. The Interim National Medical and Dental Council ordered an inspection of his premises. Two council investigators (Mr Enslin and Dr Moodliar) informed a medicines inspector (Mr Coote) of the impending inspection. The three inspectors jointly searched the applicant's surgery in his absence, seizing numerous items including medicines and records. Mr Coote seized items under section 28(1) of the Medicines and Related Substances Control Act 101 of 1965. The applicant challenged the search and seizure on constitutional grounds, seeking return of seized items and referral of the constitutionality of section 28(1) to the Constitutional Court. McLaren J in the High Court ordered the return of items seized by Mr Enslin and Dr Moodliar but refused to order return of all items seized by Mr Coote. He referred the constitutionality of section 28(1) to the Constitutional Court and granted leave to appeal against the refusal to order return of certain items.

• Whether section 28(1) of the Medicines and Related Substances Control Act 101 of 1965 violates the constitutional right to privacy under section 13 of the interim Constitution
• Whether section 28(1) can be read down to comply with constitutional requirements
• Whether communication of confidential information by council investigators to the medicines inspector breached the applicant's right to privacy
• Whether the manner of conducting the search constituted an unconstitutional invasion of privacy
• Whether seized items should be returned to the applicant
• Whether the declaration of invalidity should have retrospective effect under section 98(6) of the interim Constitution

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

A statutory provision authorizing warrantless entry into private homes and inspection of private documents on the sole basis that medicines (broadly defined to include common household remedies) are or are reasonably suspected to be present, without any requirement for prior independent authorization or other meaningful safeguards, constitutes an unjustifiable limitation of the constitutional right to privacy under section 13 of the interim Constitution. While regulatory inspections of business premises in closely regulated industries may justify attenuated privacy expectations, searches of private homes require prior authorization unless exigent circumstances exist. The proportionality test requires examining: the nature and importance of the right limited; the purpose and importance of the limitation; the extent of the limitation; and whether less restrictive means could achieve the same objective. Legislation that is overbroad and grants unrestricted discretionary powers to officials fails this test. Courts cannot read down or save unconstitutional legislation when doing so would require rewriting the statutory scheme or the mandate given to officials.

Chaskalson P emphasized that constitutional cases must be decided on principle, not subjective preferences of judges, with each decision contributing to a coherent body of constitutional jurisprudence. He clarified the procedure for applications for certificates under Rule 18 for appeals to the Constitutional Court, stating that reasoned judgments are required as in conventional leave to appeal applications. Sachs J made several obiter observations: (1) He expressly refrained from determining precisely when an inspection becomes a "search" or the exact scope of "property" and "private possessions" in section 13; (2) He noted the complex and controversial terrain of informational privacy without fully analyzing it, as the case could be decided on narrower grounds; (3) He suggested that government seeking suspension of invalidity declarations under section 98(5) should provide information on negative consequences, adequacy of alternatives, pending legislation, and time required for correction; (4) He ventured no firm opinion on the broad subject of constitutional "tainting" of evidence; (5) He observed that Lord Acton's warning about power corrupting applies especially to worthy people exercising power, not just to corrupt officials; (6) He noted the admirable history of strong statutory controls over police search powers in South Africa, contrasted with the egregious violations under apartheid-era racial and security legislation.

This case is a landmark decision on the constitutional right to privacy in South Africa. It established important principles regarding: (1) The scope of the right to privacy under section 13 of the interim Constitution, particularly regarding searches and seizures; (2) The application of the proportionality test from S v Makwanyane to privacy rights; (3) The distinction between regulatory inspections of business premises and searches of private homes, with the latter requiring greater safeguards; (4) The limits of reading down unconstitutional legislation - courts cannot rewrite statutory schemes; (5) The procedure for seeking orders under section 98(5) to suspend declarations of invalidity; (6) Recognition that privacy expectations are attenuated in regulated industries but not eliminated; (7) The importance of prior independent authorization (warrants) for searches of private homes even in regulatory contexts; (8) Standards for retrospective application of constitutional invalidity declarations. The judgment reinforced constitutional values of human dignity and privacy as central to South Africa's democracy, contrasting these with the apartheid-era practice of granting broad, unrestricted search powers to officials. It signaled that even laws with legitimate public health purposes must be carefully tailored to minimize invasions of constitutional rights.