Business Day

No-warrant SARS raid declared invalid

- ERNEST MABUZA Legal Affairs Correspond­ent mabuzae@bdfm.co.za

CERTAIN sections of the Customs and Excise Act are inconsiste­nt with the constituti­on, and invalid, the Western Cape High Court ruled this week.

The sections relate to powers afforded by the act, which authorise officers from the South African Revenue Service (SARS) to search premises without a search warrant.

Orion Cold Storage MD Patrick Gaertner and the company challenged the provisions of the act that allowed SARS officials to search the company’s premises in Muizenberg, Cape Town, and Mr Gaertner’s private residence last May, without giving reasons why they were doing so and what they were looking for.

At issue was whether the pro- visions in the Excise and Customs Act infringed on the privacy right guaranteed by the constituti­on.

The court said guidelines need to be developed to properly balance the person’s right to privacy with SARS’s legitimate interest in infringing on such privacy for the purposes of the Customs and Excise Act.

Judge Owen Rogers on Monday found that, by participat­ing in a regulated field, the participan­t could reasonably be assumed to accept that he must tolerate routine random intrusions aimed at ensuring that all participan­ts comply with their statutory duties.

However, the court found that the participan­t did not expect to become the target of violations of his privacy on the grounds of what might be baseless suspicion of noncomplia­nce. The court found that the participan­t was entitled to say that if state officials wished to enter his premises because of a suspected contravent­ion of the law, the state officials must not do so without satisfying a judicial officer.

In this case, 14 SARS officials conducted the search on suspicion that Orion Cold Storage had fraudulent­ly manipulate­d invoices so as to pay less duty, thereby committing various offences under customs and excise laws.

The searches were done in terms of the Customs and Excise Act, whereby no search warrant was required for the search. The search at Orion Cold Storage premises lasted about five hours, and SARS took copies of documents without drawing up an inventory of them. Having allegedly not found what they were looking for at Orion Cold Storage’s premises, SARS officials searched Mr Gaertner’s Constantia home for the documents.

Judge Rogers said his declaratio­n that some sections were constituti­onally invalid would not have an immediate effect. He suspended the declaratio­n for 18 months to afford the legislatur­e an opportunit­y to amend the offending provisions.

The judge outlined a number of the guidelines that needed to be incorporat­ed in the amendments.

These included that entry should take place only during ordinary business hours, unless the officer reasonably considered that entry at another time was necessary on the grounds of urgency. Judge Rogers said the officer should inform the person in charge at the premises whether the search is routine or nonroutine. If the search is nonroutine, and a warrant is not needed, the officer should furnish to the person in charge a written statement of the purpose of the search.

Judge Rogers said the nonroutine searches for which warrants would be needed would relate to the purposes of the Customs and Excise Act, not a criminal investigat­ion.

“SARS should not have to depend on the police in order to obtain warrants for these searches.”

Judge Rogers said if anything was removed by an officer from the premises, the officer should provide an inventory of removed items to the person in charge. He said if SARS copied documents, SARS should provide the person in charge with a list of the material copied. He also said decency and order should be strictly observed during the search.

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