Warranted and warrantless search and seizure in South African income tax law : the development, operation, constitutionality and remedies of a taxpayer

[摘要] ENGLISH ABSTRACT: Section 74D of the Income Tax Act No 58 of 1962 (the Act) grants the power ofsearch and seizure to the South African Revenue Service, the basic underlyingprinciple being that the Commissioner has to obtain a warrant from a judge prior toa search and seizure operation. The previous section 74(3) of the Act provided thatthe Commissioner was allowed himself to authorise and conduct a search andseizure operation without the requirement of a warrant. Section 74D of the Act wasrecently reviewed and the Tax Administration Bill (the TAB) contains the newprovisions on search and seizure that will replace section 74D of the Act.In this assignment, the concept of search and seizure was examined by consideringthe cases, academic writing and other material on the topic. The objectives were toanalyse the development of search and seizure in South African income tax law, toprovide a basic understanding of the warranted and warrantless search and seizureprovisions of the Act and the TAB, to determine their constitutionality and todetermine the remedies available to a taxpayer who has been subject to a searchand seizure.It was found that search and seizure has developed from warrantless under theprevious section 74(3) of the Act into the requirement of a warrant under section74D of the Act into a combination of both under the TAB.The concept of an ex parte application was analysed, which was shown to bepermissible in certain circumstances under section 74D of the Act, while it is nowcompulsory in terms of the TAB. It was shown that the TAB closed the lacuna in theAct relating to the validity period of a warrant before it has been executed. It was,however, concluded, regarding whether a warrant expires when exercised or whether the same warrant can be used again to conduct a second search andseizure, that the position is not quite certain in terms of the Act and the TAB. It wasfound that there is no defined meaning of the reasonable grounds criterion, which isoften required to be met in terms of the Act and the TAB, but that anyone that hasto comply with the criterion must be satisfied that the grounds in fact existobjectively.The new warrantless search and seizure provisions of the TAB were analysed. It wasestablished that warrantless search and seizure provisions are not uncommon inother statutes, but that the content thereof often differs. The new warrantlessprovisions were compared to the warrantless search and seizure provisions of, interalia, the Competition Act No 89 of 1998 (the Competition Act), and it was found thatthe warrantless TAB provisions are not in all respects as circumscribed as those ofthe Competition Act and recommendations for counterbalances were made.It was concluded that the warranted search and seizure provisions of the Act and theTAB should be constitutionally valid but that the constitutionality of the newwarrantless provisions of the TAB is not beyond doubt.It was furthermore found that the remedies at the disposal of a taxpayer who hasbeen subject to a search and seizure should indeed be sufficient, but that there areno remedies available to a taxpayer to prevent injustice or harm.

[发布机构] Stellenbosch University