Minister of Police and Others v Kunjana

On 14 March 2011, SAPS members received information from an informant that large quantities of illegal drugs (Mandrax) were kept at two premises in Cape Town leased by Ms Grace Kunjana. Police conducted warrantless search and seizure operations at the Kenilworth and Wynberg premises, seizing 24,719 Mandrax tablets at Kenilworth, 262,818 Mandrax tablets and "Tik" at Wynberg, and cash of R1,823,200 with traces of Mandrax. The respondent was arrested and charged with possession and dealing in drugs under the Drugs and Drug Trafficking Act 140 of 1992. The searches were conducted pursuant to section 11(1)(a) and (g) of the Act, which permits warrantless searches where police have reasonable grounds to suspect drug offences. The respondent challenged the constitutionality of these provisions in the High Court, seeking a declaration of invalidity. The applicants initially opposed but later conceded the provisions infringed section 14 rights and were not justifiable under section 36.

• Whether section 11(1)(a) and (g) of the Drugs and Drug Trafficking Act 140 of 1992 is constitutionally invalid for infringing the right to privacy under section 14 of the Constitution
• Whether any infringement is justifiable under section 36 of the Constitution
• Whether the declaration of invalidity should operate retrospectively or prospectively
• Whether costs should be awarded and to what extent

1. The declaration of constitutional invalidity of section 11(1)(a) and (g) of the Drugs and Drug Trafficking Act 140 of 1992 made by the High Court is confirmed. 2. The declaration of invalidity applies from the date of this order (prospective effect). 3. The first and third applicants ordered jointly and severally to pay the respondent's costs, including costs of two counsel, up to the date of delivery of her notice dated 13 January 2016.

Section 11(1)(a) and (g) of the Drugs and Drug Trafficking Act 140 of 1992 unjustifiably limits the constitutional rights to privacy (section 14) and dignity (section 10). While the purpose of preventing and prosecuting drug offences is important and rationally connected to the limitation, the provisions are unconstitutional because: (1) they are overly broad, permitting warrantless searches at any time of any premises without sufficient guidelines; (2) they do not differentiate between circumstances requiring urgency and those where obtaining a warrant is feasible; (3) less restrictive means exist to achieve the legislative purpose, particularly section 22 of the Criminal Procedure Act which permits warrantless searches only where consent is given or there are reasonable grounds to believe a warrant would be issued and delay would defeat the search object; and (4) they allow intrusion into the 'inner sanctum' of private homes where privacy expectations are at their apex without adequate constitutional safeguards. A warrant is not a mere formality but a mechanism to balance individual privacy with public interest, requiring the State to justify intrusions under oath before a judicial officer and governing the time, place and scope of searches.

The Court noted that the issue of admissibility of evidence gathered pursuant to the unconstitutional searches would be determined by the trial court, not by the Constitutional Court in these proceedings. The Court observed that strict compliance with warrant requirements will not hamper police efforts in combating crime, as police can invoke section 22 of the Criminal Procedure Act where swift action is needed. The Court commented that South Africa's history provides much evidence for the need to adhere strictly to the warrant requirement unless there are clear and justifiable reasons for deviation. The Court rejected the respondent's argument that this Court must confirm all aspects of a High Court order including costs in confirmation proceedings, clarifying that section 172(2)(a) confirmation is limited to the order of constitutional invalidity itself. On costs, the Court noted there may be instances where a respondent's presence in confirmation proceedings is necessary to protect interests where novel or complex issues arise, but this was not such a case given the clear precedent and the applicants' concessions.

This judgment forms part of an important line of Constitutional Court cases (following Magajane 2006, Gaertner 2013, Estate Agency Affairs Board 2014, and Ngqukumba 2014) establishing that warrantless search provisions in pre-constitutional legislation violate constitutional rights to privacy and dignity. It reinforces that the warrant requirement is not a mere formality but a crucial mechanism balancing individual privacy with public interest in law enforcement. The judgment emphasizes that exceptions to the warrant requirement should not become the rule, and that our constitutional democracy must be distinguished from a police state through proper safeguards regulating state intrusion into private domains. It provides guidance on when prospective-only declarations of invalidity are appropriate to avoid disruption to the administration of justice while still protecting constitutional rights. The case confirms that section 22 of the Criminal Procedure Act provides the appropriate constitutional framework for warrantless searches in urgent circumstances.