THE CONSTITUTIONALITY OF WARRANTLESS SEARCHES: A CASE THAT OPINION

Ex parte: THE BANKING ASSOCIATION SOUTH AFRICA In re: THE CONSTITUTIONALITY OF WARRANTLESS SEARCHES: A CASE THAT REQUIRES REINVENTION OPINION Prepared by Gilbert Marcus SC Mkhululi Stubbs Instructed by Cheadle Thompson & Haysom Inc. 18 January 2017

INTRODUCTION 1. Corruption, the Constitutional Court has held, poses a real danger to our developing democracy. 1 The Financial Intelligence Centre Act 38 of 2001 ( FICA ) establishes the Financial Intelligence Centre as one means to address it. 2 2. The Financial Intelligence Centre Amendment Bill (B 33B 2015) ( FIC Amendment Bill ) is a proposed amendment to FICA that seeks to address the end of combatting corruption further. It was passed by the National Assembly on 18 May 2016 and by the National Council of Provinces on 25 May 2016. It was then sent to the President for his consideration on 13 June 2016. 3. When a Bill such as the FIC Amendment Bill is sent to the President, section 79(1) of the Constitution permits him an election: he may either sign the Bill, or he may refer it back to the National Assembly if he has reservations about the constitutionality of the Bill. In this instance, however, upon receipt of the FIC Amendment Bill, the President did not act for several months. 4. The President s inaction led the Council for the Advancement of the South African Constitution ( CASAC ) to launch an application in the Constitutional Court. CASAC sought a declaration that the President s failure to act constituted a failure to perform a constitutional obligation, as well as an order that the President should assent to and 1 2 Glenister v President of the Republic of South Africa and Others 2011 (3) SA 347 (CC) at para 57. Section 2 of FICA provides that [t]he principal objective of the [Financial Intelligence] Centre is to assist in the identification of the proceeds of unlawful activities and the combating of money laundering activities. Page 1 of 19

sign the FICA Amendment Bill within 10 days of the date of th[e] Court s order. 3 5. The President anticipated the relief sought in CASAC s application. On 28 November 2016, the President made an election under section 79(1), choosing not to assent to the FIC Amendment Bill, but instead to refer it back to the National Assembly. In doing so, the President expressed the view that the Bill was impermissibly overbroad and, for that reason, was likely to be unconstitutional. 4 In this opinion, our advice is sought on whether we believe that the President s view is correct. OVERVIEW 6. Our client, the Banking Association of South Africa ( BASA ), has a clear interest in the application of the FIC Amendment Bill. The Bill is aimed at combatting private and public sector corruption, money-laundering and terrorism. It also facilitates the implementation of international agreements: among other things, the enactment of the Bill would enable South Africa to implement United-Nations sanctions relating to asset freezes. 7. BASA is an organisation that exists to contribute to the enablement of a conducive banking environment. We are instructed that the Financial Action Task Force ( FATF ), an independent intergovernmental policy-making body established in 1989 by the G-7 Ministers of its member jurisdictions, has expressed its frustration and concern at the lack of urgency in attending to the deficiencies in [the] SA regime in a number of its plenary meetings over the preceding 18 to 24 months. BASA 3 4 Paragraph 2 of the notice of motion in the CASAC application. Paragraph 7 of the President s Letter of Referral Page 2 of 19

seeks our advice as to the constitutionality of section 45(1C) of the FIC Amendment Bill primarily because a failure to assent to the Bill presents a danger that South Africa will fail to meet a FATF deadline of February 2017. This, we are instructed, will have serious implications for the banking sector. 5 8. Our view, in summary, is that section 45B(1C) is a proportionate and constitutionally valid provision. We therefore respectfully disagree with the view expressed by the President. In illustrating why this is so, we shall organise our analysis as follows: 8.1. First, we shall set out the wording of section 45B of the FIC Amendment Bill in full, together with the President s reasons for it; 8.2. Second, we address the concern of overbreadth, and we set out our understanding of the true ambit and import of the impugned provision; and 8.3. Third, we consider the merits of the proposed amendment to section 45B of FICA, and we explain why, in our respectful view, the President s concerns have no basis. THE RELEVANT PROVISION AND THE REASONS GIVEN FOR THE REFERRAL 9. The Constitutional Court has emphasised that questions regarding the proper interpretation of statutes 6 and the constitutionality of statutes 7 are objective matters, which do not turn on the position of individual litigants. It is, in addition, a trite 5 6 7 Paragraph 7 of our Letter of Instruction. Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others 1996 (1) SA 984 (CC) at para 26 Kubyana v Standard Bank of SA Ltd 2014 (3) SA 56 (CC) at para 78 Page 3 of 19

principle of statutory interpretation that the provision in question must be properly contextualised. 8 For these reasons, it is convenient that we set out the proposed new section 45B in full. The proposed section 45B of the FIC Amendment Bill provides as follows: (1A) An inspector appointed in terms of section 45A may, for the purposes of determining compliance with this Act or any order, determination or directive made in terms of this Act, and on the authority of a warrant issued under subsection (1B), enter (a) a private residence; or (b) any premises other than premises contemplated in subsection (1), if the Centre or, when acting in terms of section 45(1), the supervisory body, as the case may be, reasonably believes that the residence or premises are used for a business to which the provisions of this Act apply. (1B) A magistrate or judge may issue a warrant contemplated in subsection (1A) (a) on written application by the Centre or a supervisory body setting out under oath or affirmation why it is necessary for an inspector to have access to the premises; and (b) if it appears to the magistrate or judge from the information under oath or affirmation that (i) there are reasonable grounds for suspecting that an act of non-compliance has occurred; (ii) entry to the residence or premises is likely to yield information pertaining to the non-compliance; and (iii) entry to the residence or premises is reasonably necessary for the purposes of this Act. 8 Cool Ideas 1186 CC v Hubbard and Another 2014 (4) SA 474 (CC) at para 28. Page 4 of 19

(1C) An inspector otherwise required to obtain a warrant under subsection (1B) may enter any premises without a warrant (a) with the consent of the owner or person apparently in physical control of the premises after that owner or person was informed that he or she is under no obligation to admit the inspector in the absence of a warrant; or (b) if the inspector on reasonable grounds believes that (i) a warrant will be issued under subsection (1B) if the inspector applied for it; and (ii) the delay in obtaining the warrant is likely to defeat the purpose for which the inspector seeks to enter the premises. (1D) Where an inspector enters premises without a warrant, he or she must do so (a) at a reasonable time; (b) on reasonable notice, where appropriate; and (c) with strict regard to decency and good order, including to a person s right to (i) respect for and the protection of dignity; (ii) freedom and security; and (iii) personal privacy. (Our emphasis). 10. Section 45(1C) is the President s central focus. In certain circumstances, the provision permits an inspector to enter any premises without a warrant. The Page 5 of 19

Constitutional Court had occasion to consider a similar provision in Auction Alliance. 9 There, the Court struck the provision down, in summary, for the following reasons: The conclusion is unavoidable that in their present form both provisions fail to pass constitutional scrutiny. The fundamental reason in each case is their initiating premise: that all the searches they authorise require no warrant. In this, they afford no differentiation as to the nature of the search or the nature of the premises searched. The result is that they go too far, in authorising warrantless searches in circumstances where no justification can exist for not requiring the Board to obtain a warrant.. [I]n starting from the premise that no searches need warrants, section 45B goes too far. Without modulation, that premise cannot be constitutionally acceptable. The possibility of less restrictive means should be considered. It follows that the High Court s conclusion that the provisions must be declared incompatible with the Constitution and therefore invalid was correct. 10 11. The President s view on the constitutionality of section 45B(1C) as expressed in his Letter of Referral places reliance inter alia on the dictum in Auction Alliance set out above. The reasons expressed by the President for reaching his view are as follows: a. A search limits the right to privacy in section 14 of the Constitution. To pass constitutional muster, the limitation must be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including those listed in section 36(1)(a) to (e) of the Constitution. The proposed section 45B(1C) may not meet this standard of justification for the reasons that follow. b. Searches may result in criminal prosecution offer the strongest reason of the warrant requirement. In those circumstances, legislation that authorises warrantless searches, such as the proposed section 45B(1C), must provide a constitutionally adequate substitute for a warrant. The authorisation must not generally be overbroad because this would create an impermissible threat to the right to privacy. The legislative provisions must not extend the scope of permissible searches beyond the situations in which the expectation of privacy is 9 10 Estate Agency Affairs Board v Auction Alliance (Pty) Ltd and Others 2014 (3) SA 106 (CC). Ibid at para 40 to 43. Page 6 of 19

low potentially reaching to innocent activity in private homes. The provisions should also not give inspectors too much discretion in their searches, endangering the privacy of property owners and occupiers who are not adequately informed of the limits of the search or inspection. A warrant mitigates the effects of a statute s broad scope, as a neutral officer would weigh the State s justification for the search and would stipulate the time, place and scope of the search. These statements come directly from judgments of the Constitutional Court in, especially Magajane v Chairperson, North West Gambling Board and Others 2006 (10) BCLR 1133 (CC) at paragraphs 73 to 96, and, to some extent, Estate Agency Affairs Board v Auction Alliance (Pty) Ltd & Others 2014 (4) BCLR 373 (CC) (which referred to Gaertner and Others v Minister of Finance and Others 2014 (1) SA 442 (CC)). c. Non-compliance with the Act may constitute a criminal offence. Section 50 (and as proposed to be amended by section 40 of the Bill) and 52 of the Act, as well as the proposed section 49A (which criminalises any contravention of the proposed section 26B, provide relevant examples. d. Therefore, information gathered by an inspector in terms of the proposed section 45B(1) may result in criminal prosecution. This offers a strong reason for the requirement of a search warrant before a search is conducted to determine inter alia compliance with the Act. e. Notwithstanding the above, the authority to conduct searches under the proposed section 45B(1C) is impermissibly overbroad: i. Any premises include private homes, which are a person s inner sanctum with respect to privacy (Magajane paras 88) ii. Although the premises are qualified in that the Centre or, when acting in terms of section 45(1), the supervisory body, as the case may be, must reasonably believe that the residence or premises are used for a business to which the provisions of the Act apply, there is no requirement for the Centre or supervisory body to specify to an inspector acting in terms of 45B(1C) as to what he or she may search for or require production of from the owner or person apparently in control of the premises. The proposed section 45B(1C) does not require that the Centre or supervisory body must specify that the inspector may only search for or require the production of information related to the business to which the provisions of the Act apply, let alone particular business (sic). Although the section may be read down in this way, the absence of an appropriate qualification leaves the discretion of the inspector in conducting the search unbounded to that extent; and may potentially reach innocent activity in private homes (Magajane Page 7 of 19

para 94. One may contrast this provisions of section 22 of the Criminal Procedure Act, 51 of 1977, which are limited by those of section 20 thereof). iii. The element of surprise that motivates the proposed section 45(1C)(ii) may be met allowing warrants to be issued without notice to other parties (ex parte). (Estate Agency Affairs Board para 39). iv. Given the breadth of sections 21F (foreign prominent public official), 21G (domestic prominent influential person) and 21H (family members and known associates), and the risk of criminal prosecution referred to above, the authority granted under 45B(1C) needs to be expressly and carefully circumscribed in order not to invade the right to privacy unreasonably and unjustifiably. f. I am of the view that even though the purpose to be served by the Bill is very important and pressing, the proposed section 45B(1C) does not, in the respects identified, and others that the National Assembly may identify, meet all of the concerns set out in paragraphs 36 to 43 of the Estate Agency Affairs Board judgment referred to above. (Our emphasis). 12. On the terms of his Letter of Referral, then, the President s constitutional concern in regard to section 45B(1C) of the FIC Amendment Bill is twofold: 12.1. The President believes that section 45B(1C) of the FIC Amendment Bill is impermissibly overbroad; and 12.2. The President believes that section 45B(1C) of the FIC Amendment Bill unjustifiably violates the right to privacy under section 14 of the Constitution. 13. Below, we consider the merits of each of the President s conclusions in turn. THE OVERBREADTH CONCERN THE TRUE IMPORT OF SECTION 45B(1C) Page 8 of 19

14. The President, it seems to us, does not purport to raise a constitutional concern as to the overbreadth of section 45B(1C) of the FIC Amendment Bill that is self-standing in nature. In other words, the President does not, on our reading of his Letter of Referral, appear to contend that the provision can be declared to be unconstitutional solely because it is overbroad. The President s concern appears instead to be that section 45B(1C) of the FIC Amendment Bill is overbroad only to the extent that it is a disproportionate means to the end which the provision seeks to achieve. 15. A challenge to legislation (or a rule) on the basis that it is overbroad is in essence a challenge that a legitimate government purpose served by the legislation could be achieved by less restrictive means. 11 We record our reading of the President s approach to the concern of overbreadth because, if we are mistaken in our reading of it (i.e. if the President s concern is that the provision is unconstitutional solely on the basis that it is overbroad), the Constitutional Court has held that it will be misconceived: 12 Placing reliance on the judgment of Mokgoro J in Case, the applicants then contend that the definition of enterprise and section 2(1), to the extent that some offences created by it are pegged on that definition, are unconstitutional. This argument is misconceived. In our constitutional jurisprudence, overbreadth is not a self-standing ground of statutory constitutional invalidity. It comes into the equation in the justification analysis in terms of section 36(1) of the Constitution once a law of general application has been found to limit a right in the Bill of Rights. 13 (Our emphasis). 16. We have set out the legitimate objectives which FICA and the FIC Amendment Bill seek to achieve further above. In order to assess whether section 45B(1C) of the FIC 11 12 13 Noordien v Cape Bar Council and Others [2015] ZAWCHC 2 (13 January 2015) at para 18. Savoi and Others v National Director of Public Prosecutions and Another 2014 (5) SA 317 (CC) at para 31. Ibid. Page 9 of 19

Amendment Bill will pass muster under section 36 of the Constitution, it is necessary that we first delimit the ambit of the provision. Properly contextualised (i.e. in the light of section 45B of the FIC Amendment Bill), the salient features of the regime contemplated under section 45B of the FIC Amendment Bill are as follows: 16.1. In the first instance, an inspector appointed in terms of section 45A must obtain a warrant to enter a private residence or any premise other than a private residence. A warrant will only be issued by a magistrate or judge where it appears from the information under oath or affirmation that that three requirements are satisfied: 16.1.1. there are reasonable grounds for suspecting that an act of noncompliance has occurred; 16.1.2. entry to the residence or premises is likely to yield information pertaining to the non-compliance; and 16.1.3. entry to the residence or premises is reasonably necessary for the purposes of the Act. 14 16.2. An inspector may only enter a premises without a warrant where one of two alternatives is satisfied: 14 The basis upon which an inspector may apply for a warrant is where the Financial Intelligence Centre reasonably believes that such premise is being used for a business to which the Act applies. Page 10 of 19

16.2.1. an owner consents to a search, after he or she is informed that there is no obligation to admit the inspector in the absence of a warrant; or 16.2.2. the inspector on reasonable grounds believes that a warrant will be issued if applied for and that the delay in obtaining the warrant would likely defeat the purpose for which the inspector seeks to enter the premises. 17. In addition to these stringent requirements, the FIC Amendment Bill prescribes that any and all searches must be conducted 17.1. at a reasonable time; 17.2. on reasonable notice, where appropriate; and 17.3. with strict regard to decency and good order, including to a person s right to 17.3.1. respect for and the protection of dignity; 17.3.2. freedom and security; and 17.3.3. personal privacy. 18. There is one final principle of interpretation in this regard that is apposite. It is a trite principle of our law that, if a statutory provision is reasonably capable of an alternative interpretation which is constitutionally compliant, then, instead of declaring the Page 11 of 19

provision invalid, a court must prefer the latter interpretation over the former. 15 At the least (i.e. even if another reading of section 45B(1C) is technically possible), we believe that section 45B(1C) is reasonably capable of the meaning we have set out above. Below, we consider the constitutionality of the impugned provision on this basis. SECTION 45B(1C) OF THE FIC AMENDMENT BILL IS NOT UNCONSTITUTIONAL 19. In Bernstein, 16 the Constitutional Court characterised the right to privacy as protecting the individual s intimate personal sphere of life, and the maintenance of is basic preconditions, and as encompass[ing] the right of a person to live his or her life as he or she pleases. 17 The power provided for by section 45B(1C) of the FIC Amendment Bill permits an inspector to search someone s property (or home). This, it seems to us, constitutes a clear limitation of the right to privacy protected by section 14 of the Constitution. 18 15 16 17 18 Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others In re: Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others 2001 (1) SA 545 (CC) at para 23 Bernstein and Others v Bester NO and Others 1996 (2) SA 751 (CC) NM v Smith 2007 (5) SA 250 (CC) at para 33. Section 14 of the Constitution provides as follows: Everyone has the right to privacy, which includes the right not to have (a) (b) (c) (d) their person or home searched; their property searched; their possessions seized; or the privacy of their communication infringed. See for example, Thint (Pty) Ltd v National Director of Public Prosecutions and Others; Zuma and Another v National Director of Public Prosecutions and Others 2009 (1) SA 1 (CC); Mistry v National Medical & Dental Council 1998 (4) SA 1127 (CC); Magajane v Chairperson, North West Gambling Board 2006 (5) SA 250 (CC); Estate Agency Affairs Board v Auction Alliance (Pty) Ltd & Others (above); and Gaertner & Others v Minister of Finance & Others 2014 (1) SA 442 (CC) where the Constitutional Court has repeatedly, and constantly, found that any form of a search and Page 12 of 19

20. However, as we have alluded to above, the fact that the impugned provision limits the right to privacy does not, per se, render the provision unconstitutional. Like all rights in the Bill of Rights, the right to privacy is not absolute. 19 The Constitutional Court has repeatedly held that a limitation of a constitutional right may, in appropriate circumstances, be justified, provided that it meets the requirements set out under section 36 of the Constitution. In Magajane, the Constitutional Court held as follows in this regard: The limitation analysis in terms of section 36 involves a proportionality review. A court has to consider an applicant s expectation of privacy and the breadth of the legislation, among other considerations. The expectation of privacy will be more attenuated the more the business is public, closely regulated and potentially hazardous to the public. Legislation may not be so broad as to have the real potential to reach into private homes. In assessing whether legislation could have achieved its desired ends through less damaging means, a court will determine whether the legislation could have required a warrant, and a court will consider whether a warrant requirement would frustrate the state s regulatory objectives and whether in the absence of a warrant the legislation provides sufficient guidance to inspectors as to the limits of the inspections. 20 (Our emphasis). 21. The evaluation of the justification of a limitation under section 36 of the Constitution involves a process of the weighing up of competing values, and ultimately an assessment based on proportionality which calls for the balancing of different 19 20 seizure violated the right to privacy. This is so, regardless, of whether it is done in respect of a natural or juristic person. See Minister of Police & Others v Kunjana 2016 (9) BCLR 1237 (CC) at para 17. Magajane (above) n 18 at para 50. Page 13 of 19

interests. 21 In doing so, section 36 of the Constitution enjoins a court to balance the following five factors: 22 21.1. the nature of the right; 21.2. the importance of the purpose of the limitation; 21.3. the nature and extent of the limitation; 21.4. the relation between the limitation and its purpose; and 21.5. whether there are less restrictive means to achieve the stated purpose of the limitation. 23 22. There is no doubt that the right to privacy is an important one. 24 We consider the justifiability of section 45B(1C) of the FIC Amendment Bill against each of the remaining factors below. 21 22 23 S v Makwanyane and Another 1995 (3) SA 391 (CC) at para 104; and National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6 (CC) at para 33. Minister of Police and Others v Kunjana 2016 (9) BCLR 1237 (CC) at para 15. Section 36 of the Constitution reads as follows: (1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including (a) (b) (c) (d) the nature of the right; the importance of the purpose of the limitation; the nature and extent of the limitation; the relation between the limitation and its purpose; and less restrictive means to achieve the purpose. Page 14 of 19

(a) The importance of the purpose of the limitation 23. In Magajane, Van der Westhuizen J held as follows: [T]he importance of the purpose of the limitation, is crucial to the analysis, as it is clear that the Constitution does not regard the limitation of a constitutional right as justified unless there is a substantial interest requiring the limitation. 25 24. In the present instance, the impugned provision, particularly, and the FIC Amendment Bill, generally, are aimed at securing important societal objectives. These are stated in the long title of both the FIC Amendment Bill and its principal Act, Financial Intelligence Centre Act 38 of 2011, and include, inter alia 24.1. ensuring South Africa is brought into line with its international obligations as a member of the Financial Action Task Force; 24.2. ensuring that South Africa has agile measures that assist it in the implementation of financial sanctions and the administration of resolutions adopted by the Security Council of the United Nations; and 24.3. the effective combatting of money laundering activities and the financing of terrorist and related activities. 24 25 Mistry v Interim Medial and Dental Council of South Africa & Other 1998 (7) BCLR 880 (CC) at para 25, cited with approval in Gaertner (above) n 18 at para 48. Magajane (above) n 18 at para 65. Page 15 of 19

25. In Auction Alliance, the Constitutional Court confirmed that these objectives are sufficiently important, at the level of principle, to warrant an intrusion into the right to privacy. 26 (b) The nature and extent of the limitation 26. We have explained the scheme contemplated under section 45B further above. It seems to us that its import, or at least an interpretation that section 45B is reasonably capable of bearing, is narrowly circumscribed. 27. Properly contextualised, our view is that the impugned provision provides inspectors with sufficient guidelines with which to conduct inspections within legal limits. It accords, as we shall demonstrate below, with constitutionally sanctioned safeguards for warrantless searches provided in the Criminal Procedure Act 51 of 1977. 27 28. The impugned provisions differ in material respects to those that the Constitutional Court has previously struck down. On this score, it seems to us that the decisions referred to in the President s Letter of Referral are distinguishable. They are certainly no authority for the proposition that a warrantless search is ipso facto unconstitutional. 26 27 Estate Agency Affairs Board n 18 at para 42. See, Kunjana (above) n 19 at para 30. Page 16 of 19

(c) The relationship between the limitation and its purpose 29. It is trite that a rational connection must exist between the purpose of a law and the limitation it imposes. 28 In the present instance, there is evidently a rational connection. 30. The prevention and combatting of money laundering and financing of terrorist related activities require search and seizure operations of the sort contemplated in the provisions. In operations of this nature, an element of intrusion is intrinsic. (d) Are there less restrictive means to achieve the purpose? 31. In Kunjana, the Constitutional Court held that [t]he fundamental problem [with the Drugs Act] is that it allows police officials to escape the usual rigours of obtaining a warrant in all cases, including those cases where urgent action is not required and that the delay occasioned in obtaining a warrant will not result in the items or evidence sought being lost or destroyed. 29 In Estate Agency Affairs Board, the Constitutional Court similarly held that [t]he fundamental reason in each case in is their [FICA and Estate Agency Affairs Act 12 of 1976] initiating premise: that all searches they authorise require no warrant. 30 32. Section 45B(1C) of the FIC Amendment Bill does not seem to us to suffer from this defect. On the contrary, it requires, as a general matter, that a warrant should be procured by an inspector. In instances where a warrantless search is to be carried out, our view is that the provisions are adequately tailored to ensure a constitutionally 28 29 30 Gaertner (above) n 18 at para 67. Kunjana (above) n 19 at para 25. Estate Agency Affairs Board (above) n 18 at para 40. (Our emphasis). Page 17 of 19

compliant safeguard in the form of a model espoused in the Criminal Procedure Act. This model, as was noted in Kunjana, is an apt example of the safeguards required when warrantless searches are to be carried out. 31 33. Our view is accordingly that the provision is not disproportionate to the ends that it seeks to achieve. In our view, it cannot be said that there are plainly less restrictive measures to achieve FIC Amendment Bill s legitimate ends. (e) Summation 34. For the reasons above, our view is that the balance of the five factors required to be considered under section 36 of the Constitution tips in favour of justification. It seems to us that any intrusions imposed by the provisions of section 45B(1C) are justifiable under section 36. 35. The fact however remains that the President has referred the FIC Amendment Bill to the National Assembly. That decision cannot be ignored it will stand unless and until it is 31 Section 22 of the Criminal Procedure Act provides: A police official may without a search warrant search any person or container or premise for the purpose of seizing any article referred to in section 20 (a) if the person concerned consents to the search for and the seizure of the article in question, or if the person who may consent to the search of the container or premises consents to such search and the seizure of the article in question; or (b) if he on reasonable grounds believes (i) (ii) that a search warrant will be issued to him under paragraph (a) of section 21(1) if he applies for such a warrant; and that the delay in obtaining such warrant would defect the objects of the search. See S v Gumede 1998 (5) BCLR 530 (D) for a discussion on the constitutionality of this provision. Page 18 of 19

reviewed and set aside by a court. 32 We make this point because, whilst we believe that the provision will survive constitutional scrutiny, there is nothing that would prevent Parliament from introducing further constraints. CONCLUSION 36. In the light of the above, our respectful view is that the President s concerns that section 45B(1C) of the FIC Amendment Bill is unconstitutional are without basis. 37. We advise accordingly. GILBERT MARCUS SC MKHULULI STUBBS Chambers, Sandton 18 January 2017 32 See MEC for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd 2014 (3) SA 481 (CC) at paras 89 to 103. Page 19 of 19