Magajane v Chairperson, North West Gambling Board
# Magajane v Chairperson, North West Gambling Board

In Magajane v Chairperson, North West Gambling Board is an important case in South African criminal procedure. Magajane sought leave to appeal against the dismissal of his constitutional challenge to the provisions of section 65 of the North West Gambling Act. This challenge was on the ground that the provision violated his right to privacy by authorising inspectors to search his commercial premises and to seize items without a warrant. While the section authorised inspections of both licensed and unlicensed premises, he confined his challenge to inspections of unlicensed premises.

The court held that it had been established in Mistry v Interim National Medical and Dental Council of South Africa that "the scope of a person's privacy extends only to those aspects to which a legitimate expectation of privacy can be harboured."

The court also made it clear that a regulated business's right to privacy was softened the more its business was public, closely regulated and potentially hazardous to the public.

The question to be answered was whether the statute authorising the regulatory inspection could achieve its ends through means less damaging to the right to privacy: for example, by requiring a warrant. In other words, the court had to consider the applicant's expectation of privacy and the breadth of the legislation.

The court held that section 65 served the worthy goal of ensuring enforcement of the statute's regulation of the gambling industry, and that, although the owner or occupier of a gambling business generally had a low reasonable expectation of privacy in the gambling premises, the provisions relating to unlicensed premises were aimed at collecting evidence for criminal prosecution, and thus constituted significant intrusions. Their breadth extended the scope of permissible searches beyond situations in which the expectation of privacy was low, thereby endangering the privacy of property owners and occupiers who were not adequately informed of the limits of the inspection.

Furthermore, it was held that section 65 could achieve its purpose of promoting enforcement of the Act while simultaneously protecting the right to privacy of persons who were subjected to searches. Section 65 was accordingly held to be an unreasonable limitation of section 14 of the Constitution, and therefore unconstitutional. The application for leave to appeal was thus upheld, as was the appeal.

