Recent Case: Constitutional application

• Jurisdiction: South Africa
• Author: Anashri Pillay
• Date: 03 September 2019
• Pages: 281-287
• Citation: (2004) 17 SACJ 281
• Published date: 03 September 2019

Cases

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281

Constitutional application

ANASHRI PILLAY

University of Cape Town

Interpretation

Interpretation - right to freedom and security of the person

Minister of Safety and Security v Xaba

2004 (1) SACR 149 (D) involved an

application for the confirmation of a rule nisi which would have allowed a

police official to get a bullet surgically removed from the respondent's thigh

(at 152f-h). The respondent was a suspect, and was awaiting trial for two

charges of murder. These two charges were not connected to the case in

respect of which the application was made. The facts relevant to the

application were as follows: a suspect had been wounded in the hijacking

which the officer in question was investigating and the officer had received

information that the respondent was involved in the hijacking. The bullet in

the respondent's thigh could thus link him to the hijacking. The respondent

was refusing to undergo the operation, described as a 'relatively simple and

safe procedure' (at 154e-f). The court held that such a procedure, done

without consent 'and not under some law limiting his protection' would

infringe his right to freedom and security of the person, protected in s 12 of

the Constitution (at 155d-e). The court then moved on to examine whether

the procedure would be a justifiable limitation of the right under s 36 of the

Constitution. The court noted that s 27 of the Criminal Procedure Act 1977

gave a police official or peace officer the right to search a person and that that

power could not be delegated (at 158

b).

The court went on to find that a

search does not include an operation under general anaesthetic to remove an

object. In addition, repeated references to 'including the taking of a blood

sample' in s 37 of the Act indicated that the legislature intended that section

to apply only to limited surgery, not the surgical removal of a bullet (at

161

c-d).

Thus, the court refused to follow

Minister of Safety and Security v

Gaga

2002 (1) SACR 654 (C) on the basis that the decision was clearly wrong

(at 161h). The rule nisi was dismissed. Whilst the result of the case is that

an individual's right to freedom and security of the person including the right

to bodily integrity is protected above the state's interest in prosecution of

crimes, the reasoning is problematic. This is because there is no real

limitation clause analysis — there is no balancing of the individual right and

the state purpose in the judgment. The judgment centres, instead, on the

interpretation of two provisions of the Criminal Procedure Act 1977.

(2004) 17 SACJ 281

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