It’s a matter of time before the Tax Administration Laws Amendment Act, 2013 comes into operation, heralding substantial changes to the general duties and powers of SA Revenue Service officers. While the full text is available in FTW’s online Customs Buzz, Petr Erasmus of Shepstone & Wylie’s international transport, trade & energy division provided the following insight into the implications of the amendment. 1. Customs officers will now always require warrants, to be applied for before a magistrate/judge, by stating reasons under oath or affirmation why it is necessary to enter premises, except: (a) When searching: (i) Ports, airports, railway stations, land border posts which are managed or operated by the state/a public entity and to which activities relating to the Customs & Excise Act (No 91 of 1964, “the Act”) apply or are carried out; or (ii) Premises licensed/ registered in terms of the Act ie, bonded warehouses, clearing agents’ premises, premises of registered importers/exporters, etc.; or (iii) Premises with the consent of the owner or person in control after the Customs officer has notified the person that there is no obligation to admit them. (b) If the Customs officer reasonably believes that: (i) A warrant will be issued; and (ii) Obtaining a warrant will defeat the purpose of entering (very similar to the search and seizure powers of the SAPS). 2. It contains new law in relation to entering of premises and searches relating to how officers should conduct themselves, for example: (a) “search with strict regard for decency and order”; and (b) May only enter during ordinary business hours unless entry at another time is required. “It is probably somewhere in between the amendments made by the High Court and the Constitutional Court,” says Erasmus. “In general, it appears that searches at registered/ licensed premises, like registered importers, require no warrants. Yet for unregistered importers/ exporters, like importers by post/via courier companies, or importers using the general code 70707070, or passengers bringing in goods (or taking out goods) as luggage through airports/ harbours/railway stations, it appears that warrants may be required to enter their residences or even business premises,” he said. “However, most entities dealing with the Commissioner in relation to Customs or Excise are required to be either licensed or registered and premises so licensed or registered can be searched by Sars without the requirement of a warrant.”
