in a nutshell
South Africa’s Tax Administration Act permits the search and seizure of taxpayer property without a warrant by the South African Revenue Service. This plays an important role in ensuring that taxes are collected in an efficient and effective manner. However, this has come under scrutiny over the years as it may violate the right to privacy enshrined in the South African Constitution. The situation has become embossed. The facts of the case and the court’s conclusions are outlined here.
This article was written by Francis Mayebe, Johannesburg Tax Practice Attorney Candidate, and supervised by Virusha Subban, Johannesburg Tax Officer.
in the case of Bechan and Another v SARS Customs Enforcement and Others (19626) [2022] (“bechan case“) depends on the fundamental aspects of constitutional democracy. Article 62 of the Tax Administration Law No. 28 of 2011TAA“Allowing searches of premises not specified in the warrant”) has been under scrutiny for many years because it may violate the right to privacy enshrined in the South African Constitution (“Constitution”). South African Revenue Service (“SARS) and the TAA play a key role in ensuring that taxes are collected in an efficient and effective manner. So, to do so and ensure financial stability, Section 62 of the TAA allows SARS to search and seize taxpayer property without a warrant.
This power granted to SARS conflicts with the taxpayer’s constitutional right to privacy as set forth in Article 14 of the Bill of Rights contained in Chapter II of the Constitution. The question remains whether such violations of constitutional rights are justified under the restrictions provided for in Article 36 of the Constitution.
facts of the case
In Bechan’s case, SARS was issued a warrant under Sections 59 and 60 of the TAA, allowing it to seize information and documents related to the case on the premises of certain taxpayers. Upon arriving at the taxpayer’s premises to execute the warrant, SARS was delayed in accessing the office park where the taxpayer’s premises were located. While waiting for and trying to access access to the office park, SARS noticed hauling items from taxpayers’ offices and leaving them in cars around the parking lot.
A few hours later, SARS was granted access to the facility. As well as finding taxpayer directors, they also ran into Bechan (“Applicant”) A person who was on the premises to conduct business with another entity. The main problem started when SARS started searching cars in parking lots when executing warrants. I noticed that the vehicle contained several items and documents related to taxpayers. This turned out to be an even more important factor in this incident.
The applicant’s car was in a car parked in a parking lot and when asked to open his car, he said he did not have the keys, according to SARS. Given the applicant’s resistance, SARS sought assistance from his SAPS and Hawks, as well as the services of a locksmith to open the vehicle in question. Once opened, SARS took possession of several items belonging to the applicant.
According to the applicant’s version, he handed the keys to SARS and denied being there when SARS obtained the items in question.
Issues considered
A significant problem in this matter arose at the start of the Mandement Van Spree Petition by applicants seeking orders to return certain items in SARS possession. For this application to succeed, he had to answer two legal questions:
- Was there an obstructed forfeiture of the applicant’s property?
- Was the search and seizure of the applicant’s vehicle by SARS outside the scope of the warrant granted illegal?
In dealing with this issue, the Court relied on the principles of the Constitutional Court. Anale Ngukumba v Minister of Safety and Security 201 (5) SA 112 (CC)where the Constitutional Court “The essence of a power of attorney van spolie is, first and foremost, to restore the property rights of an unlawfully deprived owner. It is expressed in the maxim spoliatus ante omnia restituendus est (the plundered person must restore his property before then).
In essence, plagiarism orders are meant to prevent possession unless the law is followed.
court certification
As for the first issue, it was indisputable that SARS took the applicant’s property. However, the two different versions of him between the parties should give him two different results for the second problem. The court ultimately held that the applicant may not have voluntarily relinquished possession, and thus there was an impeded forfeiture.
search unidentified property with a lawful warrant
Section 62 of the TAA authorizes SARS personnel to enter and search premises not specified in the warrant. However, the following requirements apply:
- Property covered by the warrant is located at facilities not specified in the warrant and may be removed or destroyed.
- If a warrant cannot be served in time to prevent the deletion or destruction of related materials.
- Any delay in obtaining a warrant defeats the purpose of the search and seizure.
In enforcing the warrant, the court found that SARS had the right to ascertain whether Bechan owned or controlled any of the taxpayer materials specified in the warrant. This view by the court was most likely motivated by the fact that SARS had previously observed supplies being delivered to cars in the building’s parking lot.
As to plaintiffs’ contention that the warrant must be limited only to the taxpayer’s physical premises, excluding parking lots, the court dismissed this view, stating that the warrant referred to the address of the taxpayer’s premises. did. Including parking would undermine the validity of the warrant, the taxpayer’s asserted interpretation. To conclude the case, the court dismissed the application and ordered the applicants to jointly and severally pay the costs.
comment
The significance of this finding is anchored in the fact that warrantless searches may be carried out by SARS, but these searches are not without their privacy rights sometimes being violated. are subject to much more stringent requirements. Such rights are subject to restrictions, and in the Court’s view Section 62 of the TAA is sufficient to satisfy the scrutiny of the restrictive provisions of Section 36 of the Constitution.
Further, regarding the true extent of SARS’ ability to search and seize, particularly without a warrant, and whether the evidence so collected may extend beyond the purposes and purposes of the original warrant. I have an unanswered question. Importantly for taxpayers, however, SARS agents may not always have to file a warrant to search and seize their property. SARS relies heavily on facts.
