Part D
Search and seizure
Category: Part D – Search and seizure (TAA)
Section 59 (TAA) – Application for warrant
59. Application for warrant
(1) A senior SARS official may, if necessary or relevant to administer a tax Act, authorise an application for a warrant under which SARS may enter a premises where relevant material is kept to search the premises and any person present on the premises and seize relevant material.
(2) SARS must apply ex parte to a judge for the warrant, which application must be supported by information supplied under oath or solemn declaration, establishing the facts on which the application is based.
(3) Despite subsection (2), SARS may apply for the warrant referred to in subsection (1) and in the manner referred to in subsection (2), to a magistrate, if the matter relates to an audit or investigation where the estimated tax in dispute does not exceed the amount determined in the notice issued under section 109(1)(a).
Section 60 (TAA) – Issuance of warrant
60. Issuance of warrant
(1) A judge or magistrate may issue the warrant referred to in section 59(1) if satisfied that there are reasonable grounds to believe that-
(a) a person failed to comply with an obligation imposed under a tax Act, or committed a tax offence; and
(b) relevant material likely to be found on the premises specified in the application may provide evidence of the failure to comply or commission of the offence.
(2) A warrant issued under subsection (1) must contain the following:
(a) the alleged failure to comply or offence that is the basis for the application;
(b) the person alleged to have failed to comply or to have committed the offence;
(c) the premises to be searched; and
(d) the fact that relevant material as defined in section 1 is likely to be found on the premises.
(3) The warrant must be exercised within 45 business days or such further period as a judge or magistrate deems appropriate on good cause shown.
Section 61 (TAA) – Carrying out search
61. Carrying out search
(1) A SARS official exercising a power under a warrant referred to in section 60 must produce the warrant, and if the owner or person in control of the premises is not present, the SARS official must affix a copy of the warrant to the premises in a prominent and visible place.
(2) Subject to section 63, a SARS official’s failure to produce a warrant entitles a person to refuse access to the official.
(3) The SARS official may-
(a) open or cause to be opened or removed in conducting a search, anything which the official suspects to contain relevant material;
(b) seize any relevant material;
(c) seize and retain a computer or storage device in which relevant material is stored for as long as it is necessary to copy the material required;
(d) make extracts from or copies of relevant material, and require from a person an explanation of relevant material; and
(e) if the premises listed in the warrant is a vessel, aircraft or vehicle, stop and board the vessel, aircraft or vehicle, search the vessel, aircraft or vehicle or a person found in the vessel, aircraft or vehicle, and question the person with respect to a matter dealt with in a tax Act.
(4) The SARS official must make an inventory of the relevant material seized in the form, manner and at the time that is reasonable under the circumstances and provide a copy thereof to the person.
(5) The SARS official must conduct the search with strict regard for decency and order, and may search a person if the official is of the same gender as the person being searched.
(6) The SARS official may, at any time, request such assistance from a police officer as the official may consider reasonably necessary and the police officer must render the assistance.
(7) No person may obstruct a SARS official or a police officer from executing the warrant or without reasonable excuse refuse to give such assistance as may be reasonably required for the execution of the warrant.
(8) If the SARS official seizes relevant material, the official must ensure that the relevant material seized is preserved and retained until it is no longer required for-
(a) the investigation into the non-compliance or the offence described under section 60(1)(a);or
(b) the conclusion of any legal proceedings under a tax Act or criminal proceedings in which it is required to be used.
Section 62 (TAA) – Search of premises not identified in warrant
62. Search of premises not identified in warrant
(1) If a senior SARS official has reasonable grounds to believe that-
(a) the relevant material referred to in section 60(1)(b) and included in a warrant is at premises not identified in the warrant and may be removed or destroyed;
(b) a warrant cannot be obtained in time to prevent the removal or destruction of the relevant material; and
(c) the delay in obtaining a warrant would defeat the object of the search and seizure,
a SARS official may enter and search the premises and exercise the powers granted in terms of this Part, as if the premises had been identified in the warrant.
(2) 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.
Section 63 (TAA) – Search without warrant
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
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]
Section 65 (TAA) – Person’s right to examine and make copies
65. Person’s right to examine and make copies
(1) The person to whose affairs relevant material seized relates, may examine and copy it.
(2) Examination and copying must be made-
(a) at the person’s cost in accordance with the fees prescribed in accordance with section 92(1)(b) of the Promotion of Access to Information Act;
(b) during normal business hours; and
(c) under the supervision determined by a senior SARS official.
Section 66 (TAA) – Application for return of seized relevant material or costs of damages
66. Application for return of seized relevant material or costs of damages
(1) A person may request SARS to-
(a) return some or all of the seized material; and
(b) pay the costs of physical damage caused during the conduct of a search and seizure.
(2) If SARS refuses the request, the person may apply to a High Court for the return of the seized material or payment of compensation for physical damage caused during the conduct of the search and seizure.
(3) The court may, on good cause shown, make the order as it deems fit.
(4) If the court sets aside the warrant issued in terms of section 60(1) or orders the return of the seized material, the court may nevertheless authorise SARS to retain the original or a copy of any relevant material in the interests of justice.