Lawyers acting on behalf of the Socio-Economic Rights Institute (Seri), which is representing more than 2800 inner-city residents, seek to declare Section 13(7) of the SAPS Act unconstitutional, while also declaring unlawful Mashaba's infamous CBD raids of 2017 and 2018 on 11 buildings.
Section 13(7) empowers a police commissioner, national and provincial, to authorise the cordoning-off of an area where acts of crime are suspected, where the police may search and seize property and citizens without a court-sanctioned warrant.
On Monday at the South Gauteng High Court, in front of a full bench which included provincial Judge President Dunstan Mlambo, Seri argued that the Mashaba-motivated raids, which ran from July 2017 to May 2018 with the use of Section 13(7), were unconstitutional as they violated Section 14 of the Constitution, which guarantees the right to privacy.
Seri lawyer advocate Stuart Wilson argued that the then Gauteng commissioner Deliwe De Lange, in giving out authorisation for the 11 raids, had not scrutinised the information given to her, which led to women and children being strewn on the streets in the dead of winter nights.
Wilson gave five judgments from the Constitutional Court, which stated that the warrant-less search and seizures were unconstitutional.
Advocate Mpho Makgato, on behalf of Mashaba, argued that the city conducted the raids on so-called hijacked buildings as part of a “needs assessment to rejuvenate the inner city”.
But Wilson rejected this, calling the blanket term “hijacked building” discriminatory.
“We take strenuous issue with the phrase hijacked building. We don't know what (it) means. The (inner-city residents) are desperately poor people who would be rendered homeless (if they didn't live there). They live in property unlawfully occupied because they don't have anywhere else to go."
Advocate Moss Mphaga, SC, on behalf of the police and commissioners, said Section 13(7) should not be declared unconstitutional as it was used diligently to fight crime in the Joburg CBD.
But Judge Kathree Setiloane put it to the police that the late-night and winter raids caused the residents to be “treated in such an undignified manner”.
“How do you justify the violation of those rights?” Judge Setiloane asked.
Mphaga conceded that the raids were excessive, but said legislation should not be declared unconstitutional, but that individual police should be punished.
“That fact that we have so many unlawful arrest cases in this country does not mean that legislation governing arrests should be unconstitutional,” Mphaga said.
Judge President Mlambo reserved judgment in the matter.