The SA police has been ordered to return confiscated items, including cannabis products and edibles, after it unlawfully raided a pharmacy without first obtaining a warrant, according to the Gauteng High Court.
THC Health Centre, trading as THC Pharmacy, had applied to the court saying SAPS had unlawfully swooped on its premises after the SA Health Products Regulatory Authority (SAHPRA) said there might be illegal substances on the premises.
The applicant claimed its rights had been infringed and that the SAPS engaged in “self-help” when confiscating the goods, which also included beauty products and pre-rolled cannabis, reports The Mercury.
Both SAHPRA and the police opposed the application, with the medical regulator saying the goods should be handed over to it.
However, the court said the case raised important issues involving common and other legal principles, and that the police did not set forth – in a reasoned manner – the basis on which seizure of the goods was justified without a warrant.
The applicant said it was licensed by the South African Pharmacy Council to operate a community pharmacy, and that it serves principally as a dispensary for users of medical cannabis, although this was not disclosed during the application process for the applicant to be licenced as a community pharmacy.
SAHPRA first visited the premises last May, when its inspectors noticed packing activities.
Bulk cannabis flowers were found in plastic bags and staff were observed weighing the flowers into smaller bags.
The entity said the packing took place unsupervised and under uncontrolled temperatures. Its inspectors also reported that the pharmacy is linked to THC Africa, which it said was an illegal online pharmacy. It said THC Africa supplies various pharmacies across the Western Cape, Gauteng and KZN with cannabis flowers, which are then distributed to customers.
The inspectors had concluded that they were probably dealing with the scene of a crime and then contacted a police captain and briefed him on the activities they had observed.
The SAPS took over the scene and seized the relevant articles without a warrant, apparently under sections 20 and 26 of the Criminal Procedure Act.
The goods taken remained in the possession of the police.
Acting Judge VM Movshovich said courts have emphasised that, in the event of any seizure, police should obtain a warrant if possible. In the context of the exercise of law enforcement powers by the SAPS, warrantless seizure is the exception.
He said it was not sufficient for the police officer seeking to justify reliance on a warrantless seizure simply to restate the statutory provisions, to offer no reasoned justification for why the provisions were invoked, or not to explain why the legal requirements were not adhered to.
He found that the seizure and dispossession were unlawful.
He added that SAHPRA had conducted a lawful inspection of the premises and set forth in detail in its report the transgressions by the applicant of the legislative framework. It is thus unconnected to any illegality on the part of the SAPS, as it did not attempt unlawfully to invoke self-help.
The judge said the medical regulator should be afforded a reasonable opportunity to exercise its statutory powers. When the SAPS took over the scene, SAHPRA had just concluded its inspection and was deciding on the next steps.
They should now be afforded the opportunity to make that decision, the court said.
Meanwhile, the police were ordered to give back the goods by 17 April.
SAHPRA and the pharmacy council are afforded an opportunity to exercise their powers (including any seizure powers) in relation to some or all of the relevant articles under question.
The Mercury PressReader article – Police raid on pharmacy unlawful: judge (Open access)
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