Sars’ new search powers

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.”