Auc­tion Al­liance wants Con­court to rub­ber-stamp find­ing

Weekend Argus (Saturday Edition) - - NEWS -

THE Con­sti­tu­tional Court will hear an ap­pli­ca­tion by Auc­tion Al­liance on Mon­day for con­fir­ma­tion of an or­der re­lat­ing to sec­tions of the Es­tate Agency Af­fairs Act (EAAA) and the Fi­nan­cial In­tel­li­gence Cen­tre Act (Fica).

This comes af­ter the Western Cape High Court de­clared Sec­tion 32A of the EAAA and Sec­tion 45B of the Fica un­con­sti­tu­tional and invalid.

The sec­tions per­mit­ted any in­spec­tions with­out war­rants, other than rou­tine or ran­dom in­spec­tions aimed at en­sur­ing reg­u­la­tory com­pli­ance.

The Es­tate Agency Board, the pri­mary reg­u­la­tor un­der the EAAA, sus­pected Auc­tion Al­liance of breach­ing the acts.

In­spec­tors from the board and the fi­nan­cial in­tel­li­gence cen­tre tried to use the search pow­ers con­tained in the two acts to search Auc­tion Al­liance’s busi­ness premises.

Auc­tion Al­liance re­fused to let the in­spec­tors en­ter.

It ar­gued that the pro­vi­sions were invalid be­cause they au­tho­rised “tar­geted” searches with­out a war­rant.

The high court up­held Auc­tion Al­liance’s chal­lenges to both statu­tory pro­vi­sions, and de­clared them un­con­sti­tu­tional and invalid.

The dec­la­ra­tion had an im­me­di­ate ef­fect in re­la­tion to Sec­tion 32A of the EAAA, but the high court sus­pended its dec­la­ra­tion of in­va­lid­ity re­gard­ing Sec­tion 45B of the Fica for 18 months to give the leg­is­la­ture an op­por­tu­nity to amend it.

In the in­terim, the high court or­dered that words be read into Sec­tion 45B to al­low a mag­is­trate or judge to grant a war­rant upon ap­pli­ca­tion.

The high court re­jected the board’s counter-ap­pli­ca­tion, in which the board had asked it to grant a war­rant for the search of Auc­tion Al­liance’s premises.

The board con­ceded that both statu­tory pro­vi­sions were un­con­sti­tu­tional, but it took is­sue with the dis­tinc­tion the high court drew be­tween “tar­geted” and “non- tar­geted” searches. – Sapa

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