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n Stellenbosch Law Review = Stellenbosch Regstydskrif - Concerns regarding new search and seizure powers granted to the SARS in terms of the Tax Administration Act
Section 74D of the Income Tax Act 58 of 1962 ("the Act") granted the power of search and seizure to the South African Revenue Service, the basic underlying principle being that the Commissioner has to obtain a warrant from a judge prior to a search and seizure operation. The previous section 74(3) of the Act provided that the Commissioner was empowered to authorise and conduct a search and seizure operation without the requirement of a warrant. Section 74D of the Act was recently reconsidered and the Tax Administration Act 28 of 2011 ("TAA") contains the new statutory provisions on search and seizure which in turn repealed and replaced section 74D of the Act. One of the more controversial provisions of the TAA provides that the Commissioner can, under certain circumstances, conduct a search and seizure operation without a warrant.
These new warrantless search and seizure provisions of the TAA were analysed in this article. It was established that warrantless search and seizure provisions are not uncommon in other statutes, but that the content thereof often differs. The new warrantless search and seizure provisions were compared to the warrantless search and seizure provisions of the Competition Act 89 of 1998 ("Competition Act"), and it was found that the warrantless TAA provisions are not in all respects as circumscribed as those of the Competition Act and recommendations for counterbalances were made.
It was concluded that the warranted search and seizure provisions of the Act and the TAA should be constitutionally valid but that the constitutionality of the new warrantless provisions of the TAA is not beyond doubt. It was however found that the TAA does not provide for "instant" warrantless powers, which have been found to be inconsistent with the Constitution of the Republic of South Africa, 1996. There is still the general requirement of a warrant in terms of the TAA, with only certain exceptional circumstances under which a search and seizure can be conducted without a warrant.
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