The Tax Administration Act in South Africa permits the warrantless search and seizure of a taxpayer’s property by the South African Revenue Service.
However, this has been under scrutiny for many years due to its potential to infringe the right to privacy as enshrined in the South African Constitution. A recent case highlighted this matter and the circumstances under which such procedures may be carried out.
Section 62 of the Tax Administration Act 28 of 2011 , which permits the search of premises not identified in a warrant, has been under scrutiny for many years due to its potential to infringe the right to privacy as enshrined in the Constitution of the Republic of South Africa . While waiting and attempting to gain access to the office park, SARS noticed several people carrying items from the taxpayer’s office and placing them in the vehicles around the parking lot.
The Applicant’s car was among the cars parked in the parking lot and, according to SARS, when asked to open his vehicle, he stated he did not have the keys. Considering the Applicant’s resistance, SARS sought assistance from the SAPS and the Hawks to assist, 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.
In dealing with this issue, the court relied on the principles of the Constitutional Court in Anale Ngqukumba v The Minister of Safety and Security 201 SA 112 , in which the Constitutional Court held that the “essence of theis the restoration before all else of unlawfully deprived possession of the possessor. It finds expression in the maximEssentially the spoliation order is meant to prevent taking possession unless it is in accordance with the law.
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