Right to privacy?

Essays by GOSA members.

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Right to privacy?

Postby Emilio » Mon, 2006-03-13 20:25

According to S 205 of the Constitution the objects of the police service are to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law. On the face of it, the police have no power to issue licences or permits or regulate the possession of firearms. At best, police involvement in gun control is to provide an alibi for the poor performance of the SAPS' constitutional duties.

S 199 of the Constitution requires that the police service must act, and teach its members to act, in accordance with the Constitution and the law. It also provides that no member of any security service may obey a manifestly illegal order, or further the partisan interests of any political party.

Dereliction of this constitutional duty goes right to the very top of the SAPS hierarchy, and Parliament as well. We might possibly excuse the Legislature, because the ANC members of the Parliamentary Portfolio Committee on Safety and Security clearly have no understanding of much of the legislation before them. But the rights industry, the Law Commission et al, who are supposed to act as a watchdog over legislation? The collective silence of the collectivists is deafening.

Probably the most egregious constitutional violations contained in the Firearms Control Act and its hotchpotch of unlawful regulations concern
S14 of the Constitution, which recognises our general right to privacy. In Mistry v Interim Medical and Dental Council of South Africa and others 1998 (4) SA 1127 (CC) Sachs J referred to the celebrated elucidation by Judge Louis Brandeis quoted In Tribe's American Constitutional Law: "Justice Louis Brandeis defined the constitutional right of privacy as "the right to be let alone - the most comprehensive of rights and the right most valued by civilised men".

In South Africa, gunowners have no right to be let alone. Mistry contains the most important elucidation of South African's constitutional privacy protections yet. The facts in Mistry are relevant to many thousands of South Africans whose rights have been violated by members of the SAPS who arrive at their homes to inspect their licenced firearms.

Many more thousands have been subjected to physical searches during Operation Sethunya eerily reminiscent of the "list of myriad pass, liquor and curfew statutes of notorious and painful memory, which authorised police to stop people in the street to demand their passes or to raid homes in what were called locations at any time of day or night in random searches..." that Sachs J refers to in Mistry.

There is an important distinction though -- in Mistry there was a complaint of illegal sale of medicines -- gun licence applicants who are subjected to home inspections are not suspects in any crime. The most striking feature of the FCA and its Regulations is the lack of qualification of the powers of entry and inspection given to the inspectors. Judge Sachs said "....it is not necessary to determine precisely when an inspection becomes a 'search' and I expressly refrain from trying to do so....Such determinations would be of a threshhold nature....however the terms 'search' and 'seizure' may be interpreted in a particular case, to the extent that a statute authorises warrantless entry into private homes and rifling through intimate possessions, such activities would intrude on the 'inner sanctum' of the persons in question and the statutory authority would accordingly breach the right to personal privacy..."

Clearly, what the police are doing to gun licence applicants is illegal, but we hear nothing from the Independent Complaints Directorate and this country's rights industry. They must share the paranoid, apocalyptic world view of the ANC leadership.

"The existence of safeguards to regulate the way in which State officials may enter the private domains of ordinary citizens is one of the features that distinguish a constitutional democracy from a police State".... Says it all about what is taking place in this country, does it not?

Sachs J also referred wth approval to the classic words of Jackson J in Brinegar v US: "Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government."

How is it possible that the Central Firearms Register could draft the Regulations it did when the Constitutional Court had spelled out our right to privacy so clearly? How could Advocate Louis Kok write the Act that he did, which disregards the Constitutional Court's judgement in Mistry in so many ways?

"Once the investigation extends to private homes, however, there would seem to be no reason why the time-honoured requirement of prior independent authorisation should not be respected." That means a search warrant. Much of the Firearms Control Act was indicted before it was ever drafted -- by our Constitutional Court -- but the Legislative and Executive branches of Government refused to listen.

According to Mistry, the right to informational privacy is covered by the broad protection of privacy. This means that besides house-inspections, informing neighbours and employers of a gun licence application during a background check is also a breach of privacy. So is communication of confidential information about licence applicants to Gun Free SA, Technikon RSA etc. The test in Mistry is "...disclosure of private information disseminated to the press or the general public or persons from whom the applicant could reasonably expect such private information would be withheld...."

People who have been subjected to such unconstitutional state-sanctioned home invasions have to start complaining. To their local charge office as provide for in S28 of the Criminal Procedure Act, to the Independent Complaints Directorate and this country's rights industry, and ultimately to the Constitutional Court.

B Nortje
Posts: 47
Joined: Tue, 2006-02-07 05:29
Location: Sandton, South Africa

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