Search and seizure finding a victory for Sars?

The recent Constitutional Court finding that restricts SA Revenue Service’s search and seizure powers may be seen by many as a victory for Sars. In terms of the current dispensation, Sars does not require a warrant to search any business premises. A warrant is only required for a residential property. “Earlier this year a High Court judgment read some law into Section 4 of the Customs and Excise Act,” Shepstone & Wylie associate Petr Erasmus told FTW. “It reduced the powers of Sars substantially, ruling that a warrant was required in certain instances. Sars had substantial powers prior to the High Court judgment. After the High Court judgment it had substantially fewer powers and following the Constitutional Court judgment it has something in between,” said Erasmus. “Although an order of unconstitutionality was confirmed and costs were awarded to the applicants – Mr Gaertner and others – this case now dilutes substantially the restrictions placed on the interim reading of the section by the High Court judgment, which has now been amended.” The matter was first exposed in FTW in July when a landmark judgment in the Gaertner case was delivered by Judge Rogers in the Western Cape High Court, drastically reducing the draconian powers of the Sars Commissioner. Prior to the judgment, Customs officers enjoyed wideranging 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 judgment was that only routine searches could be conducted without a warrant and nonroutine searches could only be conducted without a warrant at “designated premises” which include transit sheds, container terminals, any premises in respect of which a licence has been issued and rebate stores. Orion Cold Storage (OCS) initially challenged Sars’ wide-ranging powers when its bulk frozen food premises in Muizenberg were searched earlier this year. OCS applied for parts of Section 4 to be declared unconstitutional to the extent that they permitted “targeted non-routine searches without judicial warrant”. As well as declaring the searches “unlawful by virtue of the way in which they were conducted”, it said Sars should return everything taken or copied. While the High Court provided 18 months for the legislation to be rectified, the latest judgment provides six months. INSERT & CAPTION Prior to the judgment Customs officers enjoyed wide-ranging search and seizure powers without having to obtain a warrant. – Petr Erasmus