Rights to Freedom of Security and Privacy of

THE LAW

RIGHTS TO FREEDOM OF SECURITY AND PRIVACY OF SHEBEEN OWNERS

With the current rate of raids on taverns and shebeens, one could swear that the sale of liquor in South African taverns and shebeens is illegal. Many shebeens in townships are frequently raided. It’s as if the country is still under apartheid rule, where dignity and the privacy of people are still trampled upon with impunity. The dignity and freedom of liquor traders in townships is non-existent. Week in and week out, their outlets are raided and their liquor seized without a trace, mainly by the South African Police Service.

What are the guarantees of the South African Constitution to liquor traders?

Section 12 of the South African Constitution guarantees the right to freedom and security of the person. The section states that “everyone has the right to freedom and security of the person which include the right to not be treated in a cruel, inhumane and degrading way”. Many liquor traders in townships are women. The way these women are treated when their shebeens are raided leaves a lot to be desired. Some are assaulted, harassed and threatened with imprisonment, even when they produce valid permits. Section 14 of the Constitution guarantees the right to privacy. Shebeens are liquor outlets conducted on private property and, as such, rights of admission are reserved by the owner. Section 14 of the Constitution states that “everyone has the right to privacy, which include the right not to have:

a. their person or home searched b. their property searched c. their possessions seized.” The right to security and privacy flows from the value placed on the human dignity of all persons, including business owners.

Searches and seizures should, whenever possible, be conducted only in terms of a search warrant that has been issued by a judicial officer, such as a magistrate or judge. The judicial officer must themselves decide whether or not there exist reasonable grounds for the search. This is law. Many raids are conducted without warrants, and these searches and the seizing of articles continue unabated, especially in the townships. Government action is required to be objectively and demonstrably reasonable. It is an important principle for the law of criminal procedure that a warrant should be strictly interpreted to protect the individual against

The City of Cape Town Liquor Law Enforcement Unit writes a fine of non-compliance to a tavern owner

excessive interference by the state. The warrant must clearly define the purpose of the search and the articles that are to be seized.

Furthermore, a search warrant must be executed by day, unless the judicial officer who issued it gives written authorisation for it to be executed at night. A warrant remains in force until it is executed or cancelled by the person who issued it. When police officials act in terms of the warrant, it is desirable that the subject involved has access to the document which authorises an infringement upon their private rights. Section 21(4) of the Criminal Procedure Act therefore stipulates that a police official who executes a warrant must, once a warrant has been executed and upon the request of any person whose rights are affected by the search or seizure of an object in terms of the warrant, provide such a person with a copy of the warrant. There are suggestions that from a point of view of a legal subject whose property is being searched or items seized, the warrant should be provided before the search and seizure, and a copy of a warrant should be issued without a request. It is, however, conceivable that circumstances may arise where the delay in obtaining a search warrant will defeat the object of the search, which makes it necessary that provision be made for the power to conduct a search without a warrant.

However, this provision cannot substitute the requirement to enter private property for purposes of search and seizure without a warrant. In the absence of a warrant, a police official must obtain consent to search or seize the articles from the owner or person who is in control of the premises. The law states that a police official may search any person, container or premises for the purposes of seizing any articles if the police official believes on reasonable grounds that: 1. a search warrant will be issued to him if he applies for such 2. delay in obtaining a search warrant will defeat the objective of a search

The belief of the police official must be objectively justified on the facts, meaning any reasonable police official would come to the same conclusion on similar facts.

The above powers do not set aside the requirements of a warrant before search and seizure. Furthermore, it cannot be that reasonable grounds exist that the police officials could raid taverns and shebeens upon suspicion that articles which are of concern to them, or are on reasonable grounds believed to be of concern in commission of an offence, by just looking at a liquor outlet situated in a township. All liquor traders should be treated with respect and dignity, and any violation of their rights should be remedied to restore the dignity of liquor traders in the townships.