The wide entry, search and seizure powers of customs officers may finally be limited
With the release of the Draft Tax Administration Laws Amendment Bill (TALAB) a number of changes to the Customs and Excise Act 91 of 1964 (the Customs Act) are proposed. These proposed changes include an amendment to Section 4 of the Customs Act as recommended in a recent High Court judgment (Patrick Lorenz Martin Gaertner vs. SARS (12632/12) after finding certain parts of section 4 of the Customs Act unconstitutional (in that they provided officers with the power to enter premises without previous notice or warrant at any time without regard to the right of the affected persons’ to privacy as enshrined in the South African Constitution).
The TALAB proposes the insertion of additional provisions under section 4 of the Customs Act which governs the general duties and powers granted to South African Revenue Service (SARS) officers with regard to the entry into as well as search and seizure of premises.
The proposed amendment limits the outright warrantless entry through a broader principle requiring SARS officers to only enter premises on the authority of a warrant. Such a warrant may be obtained from a magistrate or judge on written application detailing the reasons for the required entry, search.
However the propose amendment also makes provision for warrantless entry into premises under the following broad scenarios:
- Objective criteria
- SARS Officer discretion
Warrantless entry at the following premises is permitted (objective criteria):
- premises licensed or registered in terms of the Act,
- business premises of licensed or registered persons,
- premises managed or operated by the State or an organ of state as part of a port, airport, railway station or land border post, and
- premises entered with the consent of the owner or person in physical control thereof (provided that such person is informed that they are under no obligation to admit the SARS officer without a warrant).
The proposed changes also make provision for SARS officers to, without a warrant, enter premises at their own discretion provided that they satisfy the reasonability test, i.e. the officer on reasonable grounds believes that:
- If applied for, a magistrate would have issued the warrant; and
- The delay in obtaining the warrant would defeat the purpose for which the officers seeks to enter the premises
The amendment furthermore seeks to provide guidelines to SARS officials with regard to etiquette during a warrantless entry which includes the following:
- Entry must only be during ordinary business hours (unless the officers reasonably believes that entry at night is justified)
- Officer must, on seeking admission, communicate the purpose of the entry to the person in charge
In the event that the purpose of the entry is to search the premises for goods, records or related things in respect of which an offence under the Customs Act is suspected to have been committed, the following guidelines must also be observed by the SARS officer:
- A written statement must be provided to the person in control of the premises informing them that the search will be conducted;
- the actions of the officer must be confined to searches, enquiries and inspections reasonably necessary for purposes of the search;
- in the event where persons attempt to conceal, destroy or tamper with data, documentation or any other things located on the premises, the officer may take the necessary steps to prevent the persons carrying out such actions; the officer cannot refuse the person in charge of the premises the right to be present and observe during a search;
- a signed inventory list of all items removed must be compiled by the officer and provided to the person in charge of the premises;
- a schedule of all copies and extracts made must be compiled and provided to the person in charge; and
- the officer must conduct the search and seizure with strict regard to decency and order.
The Draft Amendment Bill also incorporates a “reasonability test” which requires officials to perform certain duties within reason. Such duties which also require reasonableness are the involvement of the police during searches, the breaking of property during searches and conducting warrantless searches.
It appears that the previously robust powers granted to SARS officers have now been limited during the course of an entry, search and seizure. However, affected persons will have to be aware of the circumstances in which SARS officials may enforce their powers without a warrant and how such a search should be carried out. The controversial reasonability tests incorporated in the proposed subsections could cause distress as it appears to grant officials the same power as before provided that the use of the powers is within reason.
The upside of this proposed amendment is that affected persons will have recourse to the courts should they believe that SARS has not complied with the provisions of the Customs Act governing entry, search and seizure. These proposed changes to section 4 are welcomed as interested parties have for years commented that these provisions were unconstitutional and required an amendment to bring them in line with the Criminal Procedure Act which governs the South African Police Service. It is, however, imperative that the officers who will be responsible for administering these proposed amendments receive the necessary training which will appropriately equip them to be able to administer the provisions within the bounds of the law.
Comments on these proposed changes are due on 5 August 2013.
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