search _ seizures by gyvwpsjkko


									C    olumns
                              I DEAR SARS I

search & seizures
                                                                  Part ll
           his article continues the review of SARS powers to search    The case proceeded to the then Appellate Division, after the leave to
           a taxpayer’s premises and seize records therefrom. The       appeal was initially declined by Goldblatt J. The Appellate Division
           search and seizure provisions contained in the Act were      decided in Rudolph and Another vs. CIR and Others (58 SATC 183) that
reviewed by various courts in what can be referred to as the Rudolph    the case should be referred to the Constitutional Court in terms of
saga [Rudolph and Another vs. Commissioner for Inland Revenue and       section 182(6) of the Interim Constitution to determine if section 74(3)
Others (NNO 56 SATC 249), Rudolph and Another vs Commissioner           of the Act was contrary to the Bill of Rights contained in the Interim
for Inland Revenue and Others (58 SATC 183), Rudolph and Another        Constitution and thus invalid. As a result, the case came before the
vs. Commissioner for Inland Revenue and Others (58 SATC 219) and        Constitutional Court and is reported as Rudolph and Another vs. CIR
Rudolph and Another vs. Commissioner for Inland Revenue and Others      and Others (58 SATC 219). That court had to determine whether section
(59 SATC 399)]. Rudolph was a businessman who had failed to submit      74(3) of the Act was contrary to the provisions of chapter 3 of the
income tax returns as required under the provisions of the Act.         Interim Constitution. Ackermann J, on page 224, stated as follows:
Searches of the taxpayer’s premises commenced on 21 October 1993
and a further search was conducted on 22 April 1994. On 26 April        “In Du Plessis and Others vs. De Klerk and Another (CCT 8/95, 15 May
1994 Rudolph was given an opportunity of copying certain seized         1996, as yet unreported) the court was concerned with an attempted
documents under the supervision of the Commissioner’s officers and      invocation of the constitutional rights of free speech to justify
on 27 April 1994 the Interim Constitution entered into force.           defamation committed before the Interim Constitution came in to
                                                                        operation. It held that the Constitution did not operate retroactively in
In Rudolph and Another vs. CIR and Others NNO (56 SATC 249),            the sense that it enacts that “as at a past date the law shall be taken
Rudolph sought an order that the searches were unconstitutional.        to have been that which it was not” with the effect of invalidating
Goldblatt J delivering the judgement of the court, on page 252 held
                                                                        what was previously valid, or vice versa. It did not have the effect that
as follows:
                                                                        “conduct unlawful” before the Constitution came into force, is now
“Secondly, it must be recognised that all existing laws at present      deemed to be lawful by reason of chapter 3.”
remain the laws of this country. Section 229 of the Constitution lays
                                                                        The court accordingly held that the Interim Constitution did not assist
down that:
                                                                        Rudolph in that the warrant relied on by the Commissioner had been
‘Subject to this Constitution, all laws which immediately before        issued before the Interim Constitution came into operation.
the commencement of this Constitution were in force in any area
                                                                        The court accordingly confirmed its decision handed down in Key
which forms part of the national territory, shall continue in force
                                                                        vs. the Attorney General, Cape of Good Hope Provincial Division and
in such area, subject to any repeal or amendment of such laws
                                                                        Another (1996 (6) BCLR 788 (CC)). The search and seizure and all other
by a competent authority.’ Thus section 74 of the Income Tax Act
                                                                        matters had taken place prior to the Constitution coming into force
is presently in force and will continue in force unless repealed
                                                                        and as a result, the Constitutional Court decided that Rudolph could
or amended by Parliament or declared unconstitutional by the
                                                                        not rely on the Interim Constitution for relief. The Constitutional
Constitutional Court.”
                                                                        Court decided that the Appellate Division could properly dispose
The court accordingly refused Rudolph’s request to strike down the      of Rudolph’s appeal in accordance with its own powers and should
erstwhile section 74 of the Act and it recognised that it was not       proceed on the common law grounds of invalidity. In light of the
possible that all statutes would, on 27 April 1994 comply with the      Constitutional Court’s decision, the matter found its way back to the
Interim Constitution. The judge was of the view that to strike the      Supreme Court of Appeal where it is reported as Rudolph and Another
erstwhile section 74 of the Act down would have left a serious gap      vs. CIR and Others (59 SATC 399).
in the Act. It was held that it was for the Constitutional Court to
                                                                        Rudolph sought to argue that the authorisations were not issued by
determine whether the section was unconstitutional or not and that
                                                                        the Commissioner personally but by a subordinate official to whom
the Supreme Court could not make such a determination.
                                                                        the powers granted could not be lawfully delegated. The court held

    46 [ October 2007 ]
that the letters of authorisation had been properly issued because         The entire manner in which the officers of SARS is empowered to
the Commissioner was authorised under section 74(3) of the Act to          undertake searches and seizures has been changed by virtue of the
delegate the authority to another official. Another point raised by        introduction of section 74D of the Act and it is submitted that this
Rudolph related to the fact that the initial authority to search was       conforms to the requirements laid down in the Park-Ross decision.
granted during October 1993 and that such authorisations could             It is thus contended that section 74D of the Act should stand up to
not be lawfully executed later. The court held that the authorisation      judicial scrutiny insofar as the right to privacy contained in section 14
letters issued under section 74(3) of the Act did not expire and that
                                                                           of the final Constitution is concerned.
it was possible for an initial authorisation to be used in subsequent
searches because documents seized on the first date could indicate         In the event that a warrant has been granted to the Commissioner
other documents that should also be seized and that it was not             and the officer identifies further premises to search or documents to
appropriate for fresh authorisations to be issued in each and every        seize, he is empowered to do so in terms of section 74D(5) and (6). This
subsequent case.                                                           power has been granted to the officer to prevent the destruction of
In the Rudolph saga the taxpayer had failed to submit tax returns for      records that may be necessary to properly enforce the provisions of the
1988 to 1992, despite numerous undertakings given by him to the            various fiscal statutes. It is questionable though whether the officer
Commissioner: SARS. The warrant to seize records and search premises       himself should be capable of exercising this discretion and whether or
was issued in an attempt to bring his tax affairs to finality. The court   not it would be preferable to obtain a further warrant therefore.
held that none of the common law grounds raised by Rudolph as to
                                                                           It is accepted that once the search and seizure operation has
why the warrant should be regarded as invalid could succeed.
                                                                           commenced under a warrant granted by a judge, that the operation
The court took into account the conduct of the taxpayer and his            be conducted as quickly as possible so as to prevent the possible
dealings with the Commissioner and the fact that this was a last step      destruction of records that may assist the Commissioner.
taken by the Commissioner to bring the taxpayer’s affairs up to date.
The Supreme Court of Appeal accordingly held that the warrants             It is important that the powers granted to the SARS officer under
issued, were valid in all respects and that the fact that the warrant      section 74D(5) and (6) of the Act can be said to be reasonable and
was originally issued in October 1993 and relied upon again in April       justifiable in an open and democratic society so as to conform to
1994, did not bring the validity thereof into question.                    section 36(1) of the final Constitution.
At the end of the day, Rudolph failed to succeed in showing that           In principle, the granting of a warrant by a judge will comply with the
section 74 of the Act was unconstitutional despite having proceeded        requirements laid down in the Park-Ross decision and Silke on South
through the various courts of the country. It was unfortunate for him      African Income Tax at paragraph 18.12B which states:
that the warrants had been issued prior to the Interim Constitution
coming into operation.                                                     “Thus the decision is left to the objective opinion of the judge
                                                                           after weighing up the facts supplied to him under oath or solemn
It is submitted that the right to seize and search are a necessary part
of the Commissioner’s armoury and it is essential therefor that the
powers granted are controlled by a judge, so that an independent           SARS can thus no longer act as both judge and jury in determining
party can determine whether the Commissioner has just and                  whether or not a warrant should be issued to seize records and search
reasonable cause to conduct a search and seizure operation.                a taxpayer’s premises. It is required that evidence must be presented
In terms of section 74D of the Act a judge may only issue the warrant      to a judge who must be satisfied on balance that an offence has been
if he is satisfied that there are reasonable grounds to believe that       committed under the fiscal statutes of the country. Only once the judge
evidence will be found supporting the allegation that the taxpayer has     is so satisfied is he empowered to issue the warrant in accordance with
failed to comply with the provisions of the Act.                           the provisions contained in section 74D of the Act.

                                                                                                                              [ October 2007 ] 47
C        olumns
                                    I DEAR SARS I

sars: search & seizures
part II cont

A concern that arises insofar as section 74D, is where the judge is         returned to the applicant. Once a warrant has been issued against the
presented with facts that are incorrect or the result of vexatious          taxpayer, they can seek redress via the High Court in terms of section
accusations lodged by a member of the public against a particular           74D(9) of the Act.
taxpayer. Once the warrant has been properly issued by a judge it is
difficult for a taxpayer to resist such a warrant being executed by the     Section 74B(1) of the Act, whereby SARS can conduct audits, is very
Commissioner. Section 74D(9) of the Act provides as follows:                different to the search and seizure provisions contained in section
                                                                            74D of the Act in that it operates on the basis of co-operation
“Any person may apply to the relevant division of the Supreme Court         between the taxpayer and SARS. It does not rely on the intervention
for the return of any information, documents or things seized under         of the court in deciding whether an audit should be conducted by
the section.
                                                                            SARS or not.
The court hearing such application may, on good cause shown, make
                                                                            Many countries grant their tax authorities the right to search
such order as it deems fit.”
                                                                            premises and seize records, but only after a proper warrant has been
An aggrieved taxpayer may therefore approach the High Court for             issued by an independent judicial officer (See D Bentley “Taxpayer’s
relief. This is in fact what happened in Ferela (Pty) Ltd and Others vs.    Rights : An International Perspective” at 51 and 52 and P Baker and A-
CIR and Others (60 SATC 513). In that case the Commissioner had             M Groenhagen “The Protection of Taxpayer’s Rights – An International
secured warrants to search premises and seize records under section         Codification” (2001) at 48 and 49). Our courts can have regard to the
74D of the Act and section 57D of the VAT Act.                              position in other countries insofar as tax administration is concerned,
The Commissioner initially resisted the taxpayer’s request to have          particularly having regard to section 39 of the final Constitution
access to the court file in the court case on the basis that section 4 of   dealing with the interpretation of the Bill of Rights.
the Act applied. The court held that that section protected taxpayers
                                                                            It is accepted in order to ensure the proper collection of taxation
against other parties obtaining information about their own tax
affairs and the taxpayers were therefore fully entitled to the file         that SARS must have the right to inspect and audit value added tax
prepared in the case at hand. The court held that the taxpayers should      in accordance with the VAT Act or PAYE and income tax under the
have access to the file in order to exercise their rights in relation to    provisions of the Income Tax Act. Section 74B of the Income Tax Act
the warrant so that they could determine whether the warrant was            envisages the Commissioner giving the taxpayer reasonable prior
valid and, furthermore, what steps they could take in seeking relief        notice to an inspection or audit taking place and it is accepted that
against the Commissioner, if such relief was justified.                     in this situation no warrant is required to be issued by a judge of the
                                                                            High Court.
Botha J at 524 decided as follows:
                                                                            Most revenue authorities around the world conduct regular audits
“That is in my view the purpose, inter alia of s74D(9). It confers on
                                                                            at the taxpayer’s premises and the minimum level required in this
the court, not judge, a wide discretion to order the return of any
information, documents or things seized under a warrant. In effect it       regard is that the Commissioner advises the taxpayer in advance
empowers the court to reverse the affect of a warrant in toto. It also      thereof. The SARS officer is obliged to produce the authorisation
empowers the court on hearing such an application to make such an           letter if called upon to do so by the taxpayer. The right of SARS to
order as it deems fit.”                                                     conduct inspections may well be regarded as a breach of privacy
                                                                            contained in section 14 of the Final Constitution. It is submitted that
It is not necessary for me to speculate on all the types of grounds on      such conduct is reasonable and justifiable in an open and democratic
which s74D(9) could be invoked. Grounds that spring to mind are:            society. Statutory bodies are obliged under various statutes to inspect
• if a party concerned needs any documents that have been seized;           business premises to ensure compliance with such statutes. To the
                                                                            extent that such visits are routine in nature and so long as reasonable
• if the documents seized do not have any bearing on the affairs of
                                                                            prior notice is given, the limitation of the right to privacy, should in
  a taxpayer;
                                                                            my opinion stand up to scrutiny.
• if the documents seized are not covered by the warrant; and
                                                                            The next article in this series deals with the question of legal
• if the warrant is deficient; or                                           professional privilege.
• if it should not have been obtained.                                      Beric Croome BCom, BProc, LLB, FCMA, H Dip Tax Law (cum laude),
In Ferela’s case, the court held that the warrants should not have been     CA(SA), is an Advocate of the High Court of South Africa and Tax
issued and ruled that all documents seized in terms of the warrant be       Executive - Edward Nathan Sonnenbergs Inc.

    48 [ October 2007 ]
 C         olumns
                                  I WIK EN WEEG I

die water
          it is nie eenvoudig om op hierdie       die prysstygings eerder struktureel en vind dit   Tog opereer ons ekonomie waarskynlik naby
          tydstip die ekonomie se verloop met     plaas oor ‘n aantal jare.                         aan sy volle groeipotensiaal, en is veral
          groot oortuiging vooruit te skat nie.                                                     salarisse onderhewig aan opwaarste druk. Dit
                                                  Behalwe hierdie olie-en voedselskokke is daar
                                                                                                    word sekerlik verwelkom deur verbruikers,
Die groot ligpunt is dat inkomegroei sterk        ook ‘n duidelike kredietskok besig om uit te
                                                                                                    maar dit is minder goed vir werkgewers wat
bly, gevoed deur salarisaanpassings bo die        kring. Dis alles terugherleibaar na die groot
                                                                                                    geneig is om hierdie koste deur te gee in
6.4% VPIX inflasiekoers, werkgeleentheid          VSA behuisingsborrel, wat blykbaar deels          verhoogde pryse.
wat uitbrei teen 3%-4%, en maatskappy             gevoed is deur verlaagde kredietkriteria vir
verdienste wat teen 15%-30% bly groei.            die mees riskante huishoudings.                   Die Reserwe Bank het tot Junie rentekoerse
                                                                                                    vyf keer verhoog, en het weer in Augustus
Dit hou die beurs aan die borrel, die             Blykbaar het ander vorms van kredietverlening     dit verder verhoog, om te verhoed dat
behuisingsmark lewendig in die laer tot           soortgelyke swakte ontwikkel. Soos slegte         inflasieverwagtings hand uit ruk.
middelprys segmente, en vertroue onder            skulde toeneem, raak meer mense oorsee
verbruikers en ondernemers baie hoog.             katvoet en word alle vorms van krediet minder     Die kombinasie van ‘n sterker Rand en
                                                  gretig geabsorbeer.                               verhoogde rentekoerse mag dalk daarin slaag
Die groei momentum is nog steeds sterk                                                              om die VPIX inflasie die volgende twaalf
in die ekonomie, veral besteding op vaste         Die sentrale banke is waarskynlik hoogs           maande te beperk tot 6%-7%, maar dit mag
investering maar ook op huishoudelike             tevrede dat daar ‘n nuwe besadigheid              dalk ook die groei meer kortknip as wat ons
verbruik. Dat motorverkope af is, het baie te     posgevat het en nog steeds posvat, mits dit       tot voor kort verwag het. Nie baie nie, maar
doen met komputerglipse van die afgelope          nie ontaard in ‘n volskaalse pessimisme nie.      nogtans ‘n bietjie, veral aan die verbruikskant.
paar maande, die moeisame begin van die           Want dan is die gort eers gaar.
nuwe kredietwet, verhoogde rentekoerse en                                                           En dan moet ons maar afwag hoe dit
                                                  Die toenemende onsekerheid laat                   verder gaan volgende jaar, vir die olie-en
lesbes ‘n baie jonk motorbevolking. ‘n Mens
                                                  buitelandse beleggers nou blykbaar twee           voedselprysse, salarisaanpassings en die
vervang ou motors maklik, maar nie jong
                                                  keer dink oor Amerikaanse beleggings, en          kredietskok wat nog steeds besig is om
motors nie, veral as rentekoerse mense meer
                                                  dit plaas die Dollar onder druk. Beleggings       oorsee uit te kring. En wat dit op sy beurt kan
versigtig maak.
                                                  buite Amerika het egter tot datum hul             beteken vir die Rand (terug na 6:$ of 7:$?) en
Daar is egter donderwolke wat saampak op          aantreklikheid en gewildheid behou, wat           rentekoerse (prima van 13.5% of 14%?). En
die horison.                                      goed is vir kommoditeite en vinnig groeiende      BBP groei wat miskien nie langer so maklik by
                                                  ontwikkelende lande.                              5% sal bly uitkom nie.
Internasionaal hou die olieprys aan om te
styg, soos vraaggroei baie lewendig bly en        Dit op sy beurt het ons kapitaalinvloeie weer     Cees Bruggemans is hoofekonoom van
aanbod redelik gestrem word. Dit het alles ‘n     versterk en die Rand ‘n hupstoot gegee. Dit       First National Bank. Besoek sy webwerf
deurwerking na voedselpryse. Pleks dat ons        help om ons inflasiedruk van olie en voedsel en skryf in op sy
siklies tydelik verhoogde pryse ondervind, lyk    te verlig.                                        vrye e-pos artikels.

                                                                                                                              [ October 2007 ] 49
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                                                                                                   Opportunity at large logistics concern for CA (SA).
small and medium sized businesses. Trainee        fully automated ExcelTM based AFS, audit         Strong monthly and annual financial reporting skill
applicants fax CV’s to 031-2027663 or email       programs, checklists and ‘Replication’           essential. Working knowledge of accounting                                                                     standards, group pension fund accounting and group
                                                  functionality. Regular countrywide training      deferred taxation required. Duties include providing
ESTABLISHED PRACTICE                              courses, telephonic support and computer         input in regard to group reports, developing report
                                                                                                   formats and assessing strategy impact on group and
In Gauteng is looking for a suitable partner to   based training modules. Professional and         business units.Contact Rachel (011) 269 8700.
join their dynamic team. Successful candidate     affordable. Visit Phone
will share in the risk and rewards of the         Carl 033 330 2146 or Shane 012 667 4544.
                                                                                                        Tax Accountant - CA (SA)
practice. Please contact 076 611 7759.                                                                       Sandton - R600K - R480K
                                                  E-mail: or
                                                                                                   Leading financial services firm require candidates
INTERESTED IN MERGING with a well                                     with extensive banking experience. Responsibilities
established successful accounting and                                                              entail preparation and submission of SA Income Tax
auditing firm in Gauteng. Let’s talk about the    DECEASED ESTATES/WILLS/TRUSTS                    Returns, quarterly tax packs and calculation of
                                                                                                   Income tax liability for different business units.
possibility and opportunities, call Marius at     Phillip Coetzee is an attorney specialising      Preparation of financial statements as per IFRS
082 887 3496.                                     in the administration of deceased estates,       and SA GAAP. Strong accounting and tax
                                                                                                   knowledge advantageous. Contact Kgomotso (011)
WELL ESTABLISHED SUCCESSFUL                       the drafting of wills and trusts. I offer the    269 8700.
CA firm wishes to take over accounting and        services of attending to the estate work
auditing firms (Gauteng only). If you are         of auditors and accountants, subject to an               Chartered Accountant
interested in selling call Marius at              arranged allowance. Will travel to attend to
                                                                                                          Johannesburg - R400K - R350K
082 887 3496.                                                                                      Leading Financial institution requires a Financial
                                                  the initial intake of the estate. P.A.COETZEE    Manager with minimum 2 years experience, to
PRODUCTS                                          ATTORNEYS, TEL: 011 849 8005/011 425             facilitate the co-ordination, implementation and post
                                                                                                   implementation review of projects. Sound knowledge
                                                  0919, FAX: 011 425 2707, MOBILE: 083             of IFRS and Tax Laws essential. Must ensure proper
                                                  379 6855, E MAIL: - Will          financial and business practices and identify and
Full featured Fixed Asset Register system with                                                     implement value-adding initiatives. Contact
hand-held barcode scanners for management         soon be opening offices in Pretoria as well.     Keshantha (011) 269 8700.
and verification of Plant, Property and
                                                  TWO AUDIT TEAMS available for audit              Johannesburg     Tel: (011) 269 8700   Fax: (011) 269 8716
Equipment. Tracks procurement, location,                                                           Pretoria         Tel: (012) 346 3721   Fax: (012) 346 5965
depreciation, condition, insurance and            assignments using Caseware and probe             Cape Town        Tel: (021) 442 4379   Fax: (021) 447 9139
                                                  methodology. Contact Rory de Vos                 Port Elizabeth   Tel: (041) 363 2404   Fax: (041) 363 9078
more. Integrates with SAP, Accpac and other
                                                                                                     Website: E-mail:
accounting systems. Reports in Excel. Used by     083 701 6429 or Selby Matladi 083 984 6730.
                                                                                                                                                                HR Communications

                                                                                                       PROFIT WITH THE PROFESSIONALS
                                                                                                        Specialists in Permanent and Flexible Accounting
                                                                           [ October 2007 ] 55             Financial Appointments and Assignments

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