Category: Chapter 5 – Information gathering (TAA)

Section 63 (TAA) – Search without warrant

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63.    Search without warrant

 

(1)     A senior SARS official may without a warrant exercise the powers referred to in section 61(3)-

 

(a)     if the owner or person in control of the premises so consents in writing; or

 

(b)     if the senior SARS official on reasonable grounds is satisfied that-

 

(i)      there may be an imminent removal or destruction of relevant material likely to be found on the premises;

 

(ii)     if SARS applies for a search warrant under section 59, a search warrant will be issued; and

 

(iii)    the delay in obtaining a warrant would defeat the object of the search and seizure.

 

(2)     A SARS official must, before carrying out the search, inform the owner or person in control of the premises-

 

(a)     that the search is being conducted under this section; and

 

(b)     of the alleged failure to comply with an obligation imposed under a tax Act or tax offence that is the basis for the search.

 

(3)     Section 61(4) to (8) applies to a search conducted under this section.

 

(4)     A SARS official may not enter a dwelling-house or domestic premises, except any part thereof used for purposes of trade, under this section without the consent of the occupant.

 

(5)     If the owner or person in control of the premises is not present, the SARS official must inform such person of the circumstances referred to in subsection (2) as soon as reasonably possible after the execution of the search and seizure.

Section 64 (TAA) – Legal professional privilege

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64.    Legal professional privilege

(1)     If SARS foresees the need to search and seize relevant material that may be alleged to be subject to legal professional privilege, SARS must arrange for a legal practitioner from the panel appointed under section 111 to be present during the execution of the warrant.

[Subsection (1) substituted by section 31 of Act 33 of 2019]

(2)     A legal practitioner with whom SARS has made an arrangement in terms of subsection (1) may appoint a substitute legal practitioner to be present on the appointing legal practitioner’s behalf during the execution of a warrant.

[Subsection (2) substituted by section 31 of Act 33 of 2019]

(3)     If, during the carrying out of a search and seizure by SARS, a person alleges the existence of legal professional privilege in respect of relevant material and a legal practitioner is not present under subsection (1) or (2), SARS must seal the material, make arrangements with a legal practitioner from the panel appointed under section 111 to take receipt of the material and, as soon as is reasonably possible, hand over the material to the legal practitioner.

[Subsection (3) substituted by section 31 of Act 33 of 2019]

(4)     A legal practitioner referred to in subsections (1), (2) and (3)-

(a)       is not regarded as acting on behalf of either party; and

(b)       must personally take responsibility-

(i)      in the case of a warrant issued under section 60, for the removal from the premises of relevant material in respect of which legal privilege is alleged;

(ii)     in the case of a search and seizure carried out under section 63, for the receipt of the sealed information; and

(iii)     if a substitute legal practitioner in terms of subsection (2), for the delivery of the information to the appointing legal practitioner for purposes of making the determination referred to in subsection (5).

[Subsection (4) substituted by section 31 of Act 33 of 2019]

(5)     The legal practitioner referred to in subsection (1) or (3) must, within 21 business days, make a determination of whether the privilege applies and may do so in the manner the legal practitioner deems fit, including considering representations made by the parties.

[Subsection (5) substituted by section 31 of Act 33 of 2019]

(6)     If a determination of whether the privilege applies is not made under subsection (5) or a party is not satisfied with the determination, the legal practitioner must retain the relevant material pending final resolution of the dispute by the parties or an order of court.

[Subsection (6) substituted by section 31 of Act 33 of 2019]

(7)     The legal practitioner from the panel appointed under section 111 and any legal practitioner acting on behalf of that legal practitioner referred to in subsection (1) must be compensated in the same manner as if acting as Chairperson of the tax board.

[Subsection (7) substituted by section 31 of Act 33 of 2019]