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]