By Duncan Wild and Greg Palmer on 23 March 2014
This case involves a constitutional challenge to certain sections of the Prevention of Organised Crime Act 21 of 1998 (“POCA“). Some of the sections are predicated on the definitions (also challenged) in POCA of “pattern of racketeering activity” and “enterprise” and which the applicants contend are unconstitutional, invalid and void for vagueness. Chapter 2 of POCA is also challenged on the basis that it operates retrospectively in violation of section 35(3)(1) of the Constitution and the Rule of Law, and section 2(2) of POCA is said to violate the fair trial rights of an accused.
The Constitutional Court, in an unanimous judgment authored by Justice Madlanga, and concurred in by Moseneke ACJ, Skweyia ADCJ, Cameron J, Dambuza AJ, Froneman J, Jafta J, Mhlantla AJ, Nkabinde J and Zondo J, dismissed these challenges finding that the impugned sections of POCA were defensible.
By Duncan Wild on 23 March 2014
Imvula Quality Protection (Pty) Ltd (“iMvula“) was hired to provide security guards to guard the home of Lincio Loureiro (“Loureiro“) and his family. In January 2009, an armed robbery occurred at the house after a man pretending to be a police was allowed entry to the house by a guard employed by Imvula.
The Constitutional Court found that iMvula had breached its contractual duty, owed to Loureiro, not to allow access to the premises to any person without authorisation. In addition, that iMvula, as a security company, owed a duty to prevent harm, and in addition, the guard on duty had breached that duty by negligently failing to take the necessary precautions in allowing the disguised robber access. Continue reading
||Lower Court Judgments
||Western Cape Division of the High Court,
||21 Jun. 2012
||27 Feb. 2014
|| Cameron J
By Duncan Wild on 16 March 2014
The case came before the Constitutional Court as an application for the confirmation of a an order by the Western Cape High Court which had found section of the Estate Agency Affairs Act 112 of 1976 (“EAAA“) and the Financial Intelligence Centre Act 38 of 2001 (“FICA“) to be constitutionally invalid. The sections, 32A of the EAAA and 45B of FICA afforded search and seizure powers to regulatory bodies.
The Estate Agency Affairs Board (“the Board“) regulates compliance with EAAA and was a supervisory body responsible for enforcing FICA compliance. The Board suspected that the respondent, Auction Alliance (Pty) Ltd (“Auction Alliance“) had contravened both the EAAA and FICA and so attempted to conduct a search of Auction Alliance’s premises without a warrant under the challenged sections. Auction Alliance refused to allow the inspectors from the board access, and instead brought this application, seeking to to prevent the Board from conducting the warrantless search, and to declare the relevant provisions invalid. It was agreed that in the interim the documents sought by the Board would be kept in the possession of KPMG pending the resolution of the litigation. The Board also brought a counter-application seeking that the High Court issue a search warrant allowing a search of Auction Alliance’s premises. Continue reading