PODCAST | SARS can search and seize your property without a warrant

Business Law Focus host Evan Pickworth speaks to candidate attorney Francis Mayebe, and partner and head of tax at Baker McKenzie Johannesburg, Virusha Subban, about the power of SARS to search and seize your property without a warrant, and what the law says about this.

We zone in on a case that highlighted this issue and what businesses and individuals should know about the power of the SA Revenue Service to search and seize your property.

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The case ofBechan and Another v SARS Customs Investigations Unit and Others (19626) (2022) hinges on fundamental aspects of Constitutional democracy.

Section 62 of the Tax Administration Act 28 of 2011 (TAA), 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 SA.

The SA Revenue Service and the TAA play an essential role in ensuring that taxes are collected in an efficient and effective manner. Therefore, in order to do so and ensure fiscal security, section 62 of the TAA permits SARS to conduct warrantless searches and seizures of taxpayers' property. 

This power granted to SARS collides with the taxpayer’s Constitutional rights to privacy as entrenched in section 14 of the Bill of Rights, contained in chapter two of the constitution. A question remains as to whether such an infringement on one's Constitutional rights may be justifiable under a limitation clause covered in section 36 of the constitution. 

The importance of the case is that it is entrenched in the fact that although a warrantless search may be executed by SARS, this search is subject to much more stringent requirements, even though the rights to privacy might be infringed at times. Such rights are subject to limitations and in the court's view, section 62 of the TAA would be sufficient to meet the scrutiny of the limitation clause in section 36 of the constitution. 

Further, there are unanswered questions with respect to the true scope of the ability of SARS to investigate and seize, particularly without a warrant, and if such collected evidence could extend beyond the objects and purpose of the original warrant.

However, it is important for taxpayers to note that it is not always the case that SARS officials would need to furnish them with a warrant to search and seize their property and, as the court highlighted, the circumstances in which these powers may be exercised by SARS are highly fact dependent.