CCT94/13

[2014] ZACC 3

2014 (3) SA 106 (CC)

2014 (4) BCLR 373 (CC)

Cameron J

18 November 2013

27 February 2014

http://hdl.handle.net/20.500.12144/3730

Application for confirmation of two declarations of invalidity made by the Western Cape High Court: Auction Alliance (Pty) Ltd v Estate Agency Affairs Board and Others (4850/2012) [2013] ZAWCHC 105 (28 June 2013) and Auction Alliance (Pty) Ltd v Estate Agency Affairs Board and Others (4850/2012) [2012] ZAWCHC 92 (21 June 2012).

Estate Agency Affairs Act 112 of 1976 – constitutionality of section 32A – right to privacy – warrantless searches – section 32A unconstitutional Financial Intelligence Centre Act 38 of 2001 – constitutionality of section 45B – right to privacy – warrantless searches – section 45B unconstitutional 2 Retrospectivity of orders of invalidity – courts’ power to limit retrospective effect generally exercised Counter-application for a warrant – inherent jurisdiction – section 172(1)(b) of the Constitution – courts’ power to issue a warrant limited. Application for confirmation of two declarations of invalidity made by the High Court of section 32A of the Estate Agency Affairs Act 112 of 1976 and section 45B of the Financial Intelligence Centre Act 38 of 2001. The applicant had relied on the provisions in trying to conduct a warrantless search of Auction Alliance’s premises. Auction Alliance refused the Board’s inspectors entry and launched this constitutional challenge, which the High Court upheld. The High Court also rejected a counter-application by the Board, in which it sought a warrant to inspect documents previously stored at Auction Alliance’s offices, and which, by agreement, were being held in trust by KPMG pending the outcome of the litigation. The Court held that the provisions unjustifiably infringe the right to privacy. Both provisions lack meaningful limits as to the locations and scope of warrantless searches as well as the manner in which they may be conducted. The state failed to show that less restrictive means may not be used to achieve the purposes of the statutes. The Court confirmed both declarations of invalidity, which it made prospective only and suspended for 24 months. In the interim, it read a warrant requirement into each provision and empowered judges and magistrates to issue the required warrant on application by an inspector. The Court also declined to issue a warrant in favour of the Board to search and access the material being held in trust by KPMG. Instead, the Court gave the Board an opportunity to apply to the High Court for a warrant under the newly read-in provisions. Judgment: Cameron J (unanimous).