Landmark case clips Sars’ wings

In a landmark judgement in the Gaertner case, delivered by Judge Rogers on April 8 this year in the Western Cape High Court, the farreaching draconian powers of the Commissioner for the South African Revenue Services’ Customs and Excise component were drastically reduced. The provisions of sections 4(4)(a)(i) to (ii), 4(4)(b) and 4(5) to (6) of the Customs and Excise Act No. 91 of 1964 were found to be constitutionally invalid. Importantly Sars’ counsel conceded that the section was unconstitutional and so the case cannot be taken on appeal. The finding of unconstitutionality was not made retrospective and has been suspended for 18 months to allow Sars to make suitable amendments to the legislation. However, in the interim, the legislation has been substantively amended by the Court, which has ruled how section 4 must be read in the interim, effectively amending the relevant subsections. Prior to the judgement, Customs officers enjoyed wide-ranging search and seizure powers without having to obtain a warrant from a suitable judicial officer, even in the case of searching private homes. The effect of the judgement is that currently only routine searches may be conducted without warrant and only non-routine searches may be conducted without warrant at “designated premises” which include transit sheds, container terminals, any premises in respect of which a licence has been issued, and rebate stores. Non-routine and routine searches have been defined as follows: “‘non-routine search means a search which an officer has decided to conduct because a suspicion exists that a contravention of the Act has occurred and because the officer suspects that information pertaining to such contravention may be discovered if the premises in question are searched; routine search means any search, inspection or examination other than a non-routine search.”