Bechan and Another vs. SARS Customs Investigations Unit and Others

South Africa

05.03.2024

Civil

In executing a warrant, SARS officials may search anything on the premises identified in the warrant, if they suspect that it contains relevant material

The appeal emanated from the High Court and was launched by the first appellant Mr. Kapeel Bechan (Mr Bechan) who is the sole director of the second Appellant, Bechan Consulting (Pty) Ltd. The first and second respondents are divisions within the South African Revenue Service (SARS), whilst the third and fourth respondents are SARS officials attached to the SARS’ Illicit Economy Unit, also a division of SARS.

In present case, on 28 March 2022, SARS applied to the high Court without notice to the Appellants for a warrant in terms of Section 59 of the Tax Administration Act, 2011 (the TAA). The high court issued the warrant, in terms of Section 60 of the TAA, on the basis that there was reason to believe that Bullion Star had, amongst others, committed various tax offences. The warrant authorised SARS officials to search the premises. The issue before the SCA was ultimately whether a warrant issued in terms of Section 60 of the TAA may be executed against third parties.

The phrase ‘to search the premises and any persons present on the premises and seize relevant materials’ in Section 59(1) of the TAA, was a clear indicator that SARS officials may, on the authority of a warrant issued under Section 60, search the taxpayer as well as any third parties on the premises, and seize any relevant material in their possession - it is immaterial that, the seized items are not in the possession of the taxpayer when seized.

Section 61(3) of the TAA does not limit the execution of a warrant to the business of the taxpayer. Properly construed, it contemplates that, in executing a warrant, SARS officials may search anything on the premises identified in the warrant, if they suspect that it contains relevant material. In the result, the present Court concluded that SARS had a statutory right to dispossess the appellants of the property found in the Fortuner and that the appellants were, therefore, not entitled to the relief sought in the spoliation application.

Tags : Search Premises Warrant

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