It seems the Competition Commission is increasingly enthusiastic when executing dawn raids. This may result in search warrants and the execution of dawn raids coming under the spotlight during 2017.
When dealing with a dawn raid, it’s always important to remember the basics. Ask for a copy of the warrant. Read the warrant and make sure that it properly identifies the premises to be searched. Watch how the Commission conducts the raid and keep notes about your observations. Section 49(1) of the Competition Act obliges the Commission to carry out searches "with strict regard for decency and order, and with regard for each person's right to dignity, freedom, security and privacy".
Warrants are supposed to tell the person being searched why and by what authority their privacy is being invaded. The Thint case held that a warrant must be "reasonably capable of being understood by the reasonably well-informed person who understands the relevant empowering legislation and the nature of the offences under investigation". If the warrant is unintelligible then, even if the investigators give the person being searched further particulars or explain the warrant, it may still be unlawful.
Are broadly framed warrants lawful? The PPC case is the only South African case dealing with search warrants issued in terms of the Competition Act. In PPC, the Court held that the Commission must give the searched person a copy of the affidavit which the Commission used to obtain the warrant and that refusing to do so infringed PPC's right to access to court. In PPC, the Commission's search warrants were also challenged for being too broadly framed. The Court didn't reach any conclusions about this issue but it pointed out that "with a view to the future...serious questions are raised by the argument that the warrants are overbroad, imprecise and not in accordance with the Act.”
The Thint case dealt with the National Prosecuting Authority Act, the wording of which is similar to the Competition Act. That case held that a warrant which allows investigators to carry out an unlimited search is an invasion of privacy. There must be a clear link between the alleged offences and the potential role of the person being searched.
IT issues are usually the focus of objections to search warrants as the Commission usually copies huge databases during raids, including lots of irrelevant, highly confidential information. When searching the "cloud" or information on foreign servers, it may also be copying information outside South Africa. This is likely to lead to complicated questions about jurisdiction and the scope of the warrant.
For more information on the above, please contact Jenny Finnigan on 031 575 7406 or firstname.lastname@example.org