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ConCourt confirms ruling on Sars raids

Cape Town  - The Constitutional Court has upheld a ruling that a section of the Customs and Excise Act pertaining to the search of premises by the SA Revenue Service (Sars) is unconstitutional.

The initial ruling of invalidity was made by the Western Cape High Court in respect of parts of section four of the act.

The case was brought by Orion Cold Storage, which faced a food labelling scandal last year.

Sars officials raided Orion's premises and the home of its director Patrick Gaertner last year, on suspicion that the company had fraudulently manipulated invoices.

Gaertner challenged Sars in court, holding that the searches invaded his constitutional right to privacy.

Section four of the act allows Sars officials to conduct searches without obtaining a warrant.

In a unanimous judgment, the Constitutional Court found that section four "infringes the right to privacy unjustifiably".

The court agreed with Orion that the section was overbroad as it "does not define the premises that can be searched without a warrant, nor does it give guidance to the inspectors on the manner in which the searches are to be conducted".

The declaration of invalidity was suspended for six months, to allow parliament to correct the deficiencies in the act.

The declaration also does not apply retrospectively, meaning companies raided in the past cannot seek similar relief from the courts.

"As an interim measure, and to allow Sars to ensure compliance with the act, the court read in a warrant requirement when Sars officials wish to search private residences for purposes of the act," read a summary of the Constitutional Court judgment.

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