A Pharmacy turned to court after the police swooped on its premises and confiscated a number of items, including cannabis flowers and medical cannabis edibles, such as toffees and gummy bears.
THC Health Centre, trading as THC Pharmacy (the applicant), turned to the Gauteng High Court, in Johannesburg, in a bid for the SAPS to hand the confiscated goods back.
The pharmacy told the court that the police had swooped on their premises without a warrant.
This happened after the South African Health Products Regulatory Authority alerted the SAPS that there may be illegal substances on the premises which could result in criminal activity.
The applicant claimed that its rights had been infringed and that the SAPS engaged in “self-help” when they confiscated the goods, which also included beauty products and pre-rolled cannabis.
Both the SA Health Products Regulatory Authority and the SAPS opposed the application, with the medical regulator saying that the goods should be handed over to them.
The court said this case raised important issues involving the common and other legal principles and commented that the SAPS did not set forth in a reasoned manner the basis on which the 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 in Glenanda, Johannesburg. According to the applicant, 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 licensed as a community pharmacy.
The SA Health Products Regulatory Authority at first visited the premises in May last year and its inspectors noticed packing activities taking place. 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 is an illegal online pharmacy. It is said that THC Africa supplies various pharmacies across the Western Cape, Gauteng and KZN with cannabis flowers, which are then distributed to customers.
The inspectors concluded that they were likely dealing with a scene of a crime and then contacted a police captain and briefed him on the activities that were observed at the premises.
The SAPS took over the scene from the inspectors and seized the relevant articles without a warrant. The SAPS purported to do so in terms of sections 20 and 26 of the Criminal Procedure Act.
The goods taken remained in the possession of the SAPS.
Acting Judge VM Movshovich said our courts have emphasised that, should any seizure of property be contemplated, police officials 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 is 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.
The judge subsequently found that the seizure and dispossession of the articles by the SAPS was unlawful.
He added that the SA Health Products Regulatory Authority, as the regulator, conducted a lawful inspection of the premises and has 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. At the time when the SAPS took over the scene, the SA Health Products Regulatory Authority had just concluded its inspection and was in the process of deciding on the next steps. They should now be afforded the opportunity to make that decision and take whatever other steps in relation to the relevant articles they are permitted to do in law, the court said.
The police were meanwhile ordered to give back the articles taken by April 17. The SA Health Products Regulatory Authority 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 questioning.
Pretoria News