Abstract
M.Com.
The Commissioner for the South African Revenue Service (hereafter SARS
Commissioner) is empowered with information-gathering powers, including search
and seizure powers, enabling them to enforce inter alia the provisions of the Income
Tax Act (58 of 1962) (hereafter the Act).
This study examined the search and seizure provisions, previously contained in the
Act and as they currently exist under the Tax Administration Act (28 of 2011)
(hereafter the TAA), to determine whether they are aligned to the Constitution of the
Republic of South Africa.
The search and seizure provisions of the Act previously contained in section 74(3),
authorised search and seizure operations to be conducted at the sole discretion of
the Commissioner for SARS. These provisions could not be sustained following the
enactment of the Constitution which required that a person’s constitutionally
enshrined rights are not unduly violated in the process of exercising and enforcing
these powers.
Section 74(3) was thus repealed and replaced by section 74D of the Act, which
authorised, the SARS Commissioner to conduct search and seizure operations with
prior authorisation, in the form of a warrant obtained from a judge.
The TAA introduced provisions regulating and authorising a senior SARS official to
carry out warrantless search and seizure operations, within specifically defined
criteria.
The safeguards preventing the undue infringement of taxpayers’ constitutional rights,
by the enforcement of search and seizure provisions, include the obligation placed on
the Commissioner to obtain prior judicial authorisation, in the form of a warrant; and
the requirements pertaining to the existence of objective, reasonable grounds for the
search, as a basis for issuing the warrant.
To be effective and satisfy their objective, safeguards must strike a balance between
a person’s constitutionally enshrined rights and the enforcement of the legislation...