Khadija Magardie A landmark decision by the Constitutional Court last week endorsing crucial crime-fighting legislation brings to an end a string of legal attacks on the law.
The ruling, which stemmed from a raid on controversial tycoon Billy Rautenbach, sets a precedent for similar cases in which targets of criminal investigations might use the constitutionally guaranteed right to privacy to shield themselves. The case explored the lawfulness of new regulations allowing search and seizures for preparatory investigations, contained in the 1998 National Prosecuting Authority Act. The judgement has been praised by the National Directorate of Public Prosecutions, which is responsible for investigating and eventually prosecuting perpetrators of serious economic crimes. “The court has finally set the record straight on what many have seen as a grey area,” said representative Sipho Ngwema. The case dealt with the circumstances under which a warrant of search and seizure may be granted for a criminal investigation. The court ruled it was not unconstitutional for judicial officers to grant search-and-seizure warrants for the purposes of a preparatory investigation.
But at the same time, it confirmed the importance of so-called “safeguards” when authorities conduct search and seizures. Specifically, that there have to be reasonable grounds to believe that an offence has been committed before granting such a warrant. A significant portion of the judgement justifies the importance of search-and-seizure powers within the context of a rising crime wave. “It is a notorious fact that the rate of crime in South Africa is unacceptably high,” reads one part of the judgement. It then goes on to say that “the need to fight crime is thus an important objective in our society” – adding that “the legislature has sought to prioritise the investigation of certain serious offences”.
The case was brought before the court after the directorate raided the offices of the Wheels of Africa group in November 1999 and seized a large quantity of documents and computer records. The directorate argued that this was necessary in order to proceed with a preliminary investigation. Rautenbach took the matter to the Pretoria High Court, which ruled the actions of the directorate were unconstitutional. The high court found in favour of Rautenbach, but the directorate lodged an appeal, which put the case before the Constitutional Court. Rautenbach’s lawyers argued granting search and seizure powers under the context of a preparatory or preliminary investigation was illogical, because they in fact pre-empted the establishment of a reasonable suspicion that an offence has been committed. The court rejected this, saying that an adequate justificatory basis had to be, and was provided, for the suspicion that an offence has been committed. The judgement suggested that protecting the right to privacy of individuals needed to be weighed up against the equally important interest of the state in the effective investigation of criminal activity.