About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Constitutional Court
SAFLII
>>
Databases
>>
South Africa: Constitutional Court
>>
2013
>>
[2013] ZACC 38
|
|
Gaertner and Others v Minister of Finance and Others (CCT 56/13) [2013] ZACC 38; 2014 (1) SA 442 (CC); 2014 (1) BCLR 38 (CC); 76 SATC 69 (14 November 2013)
Links to summary
CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 56/13
[2013] ZACC 38
In the matter between:
PATRICK LORENZ MARTIN GAERTNER
........................................
First Applicant
RORY CHARLES KLEMP
................................................................
Second
Applicant
ORION COLD STORAGE (PTY) LTD
................................................
Third
Applicant
and
MINISTER OF FINANCE
...................................................................
First
Respondent
COMMISSIONER: SOUTH AFRICAN
REVENUE SERVICE
.....................................................................
Second
Respondent
CONTROLLER OF CUSTOMS: CAPE TOWN
...............................
Third
Respondent
Heard on : 12 September 2013
Decided on : 14 November 2013
JUDGMENT
MADLANGA J (Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J, Jafta J,
Mhlantla AJ, Nkabinde J, Skweyiya J, Van der Westhuizen J
and Zondo J
concurring):
Introduction
“
Kubomvu
!”
1
is the warning that a lookout would sound
on the arrival of police at one or the other of the homes that had
the misfortune of
being subjected to frequent, warrantless police
searches. To the apartheid state the oppressed majority had no
privacy to be
protected; and no dignity to be respected. Of course,
the warning could only be sounded on some of those occasions when
the police
descended for the searches during the day. Most certainly
for effect and possibly heightened indignity, many of the egregious
searches were conducted at the dead of night: a time of relaxation;
sleep; intimacy; reckless abandon even; and when some, if
not most,
would be flimsily dressed. The sense of violation and degradation
that the victims must have experienced is manifest.
Even members of
the then dominant race who were viewed as enemies of the state
suffered this indignity. It is with this painful
history in mind
that we consider the constitutional validity of statutory provisions
that authorise searches without warrants.
In this case, we do it in
the context of the customs and excise industry.
2
The
Western Cape High Court, Cape Town (High Court) held that
sections 4(4)(a)(i)-(ii), 4(4)(b), 4(5) and 4(6)
3
of the Customs and Excise Act
4
are inconsistent with the Constitution and
declared them invalid.
5
This declaration was ordered not to be
retrospective and suspended for a period of 18 months to afford the
Legislature an opportunity
to make remedial changes. In order not to
create a lacuna in the legislative scheme and purpose served by the
affected provisions,
the High Court read in certain provisions.
The
applicants now seek confirmation of the High Court’s
declaration of invalidity.
Parties
Mr
Gaertner and Mr Klemp, the first and second applicants, are
directors of the third applicant, Orion Cold Storage (Pty) Ltd
(OCS), which conducts business as an importer and distributor of
bulk frozen foods.
The
first respondent is the Minister of Finance (Minister). He is the
minister responsible for the Customs and Excise Act. The
second
respondent is the Commissioner of the South African Revenue Service
(SARS). The Commissioner administers the Customs and
Excise Act. The
third respondent is the Controller of Customs: Cape Town.
6
Background facts
OCS
imports and distributes bulk frozen foodstuffs and holds licences
for storage warehouses (also known as customs bonded warehouses
or
bond stores) in Muizenberg. SARS officials perform routine
inspections of OCS’s storage warehouses, at most annually,
to
monitor compliance with the Customs and Excise Act. Past inspections
have always been limited to OCS’s bond stores and
have never
extended to OCS’s offices or to the homes of OCS’s
employees or officers.
On 21
May 2012 Sloan Valley Dairies Ltd (SVD) of Canada instituted motion
proceedings against OCS claiming the return of consignments
of skim
milk powder sold to OCS, alternatively payment of the purchase
price. SVD served a copy of the application on SARS. SARS
compared
the invoices attached to the application with those that OCS had
submitted to SARS for purposes of customs duty. The
prices on the
SVD invoices were substantially higher than what was reflected on
the submission to SARS. This discrepancy led
SARS to suspect that
OCS had fraudulently manipulated the invoices so as to pay less
duty. Consequently, SARS decided to search
the premises of OCS.
On
30 and 31 May 2012, SARS officials numbering about 40 searched OCS’s
Muizenberg premises.
7
When they arrived on the first day, they gave
Mr Gaertner to understand that they were there to conduct a
bond inspection
8
and he allowed them in. It was only after they
had sealed the premises that they told Mr Gaertner the true
reason for their
presence. At that point Mr Gaertner asked for
time to get his attorney to the premises. The attorney not having
arrived
after 30 minutes, an extensive search ensued. Over the
two-day period it included a search of the warehouse; bond store; a
safe
in the strong room; computers; and the offices of Mr Gaertner
and Mr Klemp. Mirror images of data on various computers were
made and a variety of documents and other objects were seized.
As
the search was in progress, entry into and exit from the premises
was controlled by the SARS officials. People were only allowed
out
if they agreed to thorough body and vehicle searches. OCS staff were
required to stand clear of their computers. Early on
during the
search an official had warned, if not threatened, Mr Gaertner
that obstructing a search was an offence and, if
necessary, they
would call the police for assistance.
Through
it all, the officials did not have a search warrant. In fact, they
told Mr Gaertner that they did not need one for
a search in
terms of section 4 of the Customs and Excise Act.
At
around 11h00 on 1 June 2012, 14 SARS officials proceeded to
Mr Gaertner’s Constantia home to continue the warrantless
search there. Mr Gaertner’s employee denied them entry
until Mr Gaertner arrived. They refused to give Mr Gaertner
reasons for the search and would not tell him what they were looking
for. The officials searched the whole house, including freezers,
the
ceiling space, the safe, the cellar, garages and storerooms. In the
process they went through personal belongings and demanded
and got
access to the home computers, including those of Mr Gaertner’s
children. During the search, the officials
took photographs.
On
2 July 2012 the applicants brought an application before the High
Court citing, as respondents, the Minister, the other respondents
before this Court and several SARS officials. They sought
declarators that the searches and seizures were unlawful and that
section 4 of the Customs and Excise Act is inconsistent with the
Constitution and invalid to the extent that it permits targeted,
non-routine enforcement searches
9
to be conducted without a warrant. They further
sought the return of what was seized during the searches. After some
initial half-hearted
tenders, SARS finally tendered the return of
all seized goods and the applicants’ costs on an attorney and
client scale.
Despite the actual return of some of the items and the
tender of the return of the rest, SARS could not convince the
applicants
to abandon the application.
In
their answering affidavits the Minister and SARS took the stance
that the question whether section 4 was inconsistent with
the
Constitution and the lawfulness of the searches were moot as a
tender for the return of the seized goods had been made, and
the
applicants had accepted it. They contested the claim that section 4
of the Customs and Excise Act is unconstitutional and
contended,
instead, that to the extent that the section limited the right to
privacy, this was justified under section 36 of
the Constitution. In
the alternative, they pleaded that a declaration that section 4 was
unconstitutional should not be retrospective
and that it should be
suspended to afford the Legislature an opportunity to correct the
defect. SARS also denied that the searches
had been conducted in an
unlawful manner.
High Court
The
High Court accepted the submission that the question whether the
searches had been conducted in an unlawful manner had become
moot.
In argument, SARS conceded the unconstitutionality of section 4. The
contest between the parties boiled down to: the reasons
for and thus
the extent of the invalidity; whether the declaration of invalidity
should be suspended and rendered non-retrospective;
and whether in
the meanwhile words should be read into the impugned provisions to
make them constitutionally acceptable.
10
The
High Court felt it necessary to determine all the issues raised by
the parties and go beyond merely making a finding of constitutional
invalidity on the most obvious ground. This, it reasoned, was
because an amended provision might face another challenge on grounds
left undecided in the first case. Put differently, the Legislature
might be left in the dark as to the exact nature of what was
objectionable.
The
High Court concluded that—
“
[w]arrantless
routine searches are justifiable under the Act in respect of the
business premises of persons registered in terms
of section 59A,
of persons licensed under Chapter VIII, of persons registered under
section 75(10) and of persons who
operate pre-entry facilities,
to the extent that the search relates to the business for which such
person is registered or to the
business for which such premises are
licensed or registered, or to the business of operating the pre-entry
facility.”
11
The
High Court held that warrantless non-routine or targeted searches
are justifiable in respect of pre-entry facilities, licensed
warehouses and rebate stores,
12
to the extent that the searches relate to the
business of operating the pre-entry facility or to the business of
the licensed
warehouse or rebate store. Searches without judicial
warrant are not justifiable in other cases, the High Court
concluded. In
particular, there is no justification for dispensing
with the requirement of a warrant in the case of searches of the
premises
of unregistered and unlicensed persons and non-routine
searches of the premises of registered persons except to the extent
that
the search relates to the business of operating the pre-entry
facility or to the business of the licensed warehouse or rebate
store.
In
those cases requiring a warrant, the High Court held that it would
not be necessary to require SARS officials to apply for
one under
the Criminal Procedure Act
13
or National Prosecuting Authority Act.
14
It took the view that the Customs and Excise Act
could be amended to contain provisions entitling SARS officials to
apply for
warrants to a judicial officer.
The
High Court then made the declaration of invalidity, suspended it and
read in as shown below. The High Court’s reading-in
was quite
extensive. For clarity, let me quote the relevant part of section 4,
inclusive of the High Court’s reading in.
The part that
was read in is underlined:
“
General
duties and powers of officers
(4) (a) An officer may, for
purposes of this Act—
(i) enter premises and make such
examination and enquiry as he deems necessary,
subject to the
provisions of paragraphs (c) – (h) of this subsection
;
(ii) while he is on the premises
or at any other time require from any person the production then and
there, or at a time and place
fixed by the officer, of any book,
document or thing which by this Act is required to be kept or
exhibited or which relates to
or which he has reasonable cause to
suspect of relating to matters dealt with in this Act and which is or
has been on the premises
or in the possession or custody or under the
control of any such person or his employee;
(iii) at any time and at any
place require from any person who has or is believed to have the
possession or custody or control of
any book, document or thing
relating to any matter dealt with in this Act, the production thereof
then and there, or at a time
and place fixed by the officer; and
(iv) examine and make extracts
from and copies of any such book or document and may require from any
person an explanation of any
entry therein and may attach any such
book, document or thing as in his opinion may afford evidence of any
matter dealt with in
this Act.
(b) An officer may take with him
on to any premises an assistant or a member of the police force,
provided that only those assistants and members of the police
force whose presence, in the officer’s reasonable opinion, is
strictly necessary for purposes of conducting the inspection, search
or examination on the premises may enter the premises
.
(c)
The power of entry in
terms of sub-paragraph (i) of paragraph (a) of this subsection shall
be subject to the further provisions
of paragraphs (d) to (g),
in regard to which the definitions in paragraph (h) shall apply.
(d)
Subject to paragraph (e),
if an officer wishes to enter premises to conduct a non-routine
search, the officer shall not do so except
on the authority of a
warrant issued in terms of paragraph (g) of this subsection; provided
that this paragraph shall not apply
to the non-routine search of
designated premises to the extent that the search pertains to the
business of operating the designated
premises or to the business in
respect of which the designated premises have been licensed or
registered
.
(e)
An officer may enter and
search premises without the warrant contemplated in paragraph (d) if:
(i)
the person in charge of
the premises consents to the entry and search after being informed
that he is not obliged to admit the officer
in the absence of a
warrant; or
(ii)
the officer on
reasonable grounds believes—
(aa)
that a warrant would be
issued in terms of paragraph (g) if the officer applied for a
warrant;
(bb)
that the delay in
obtaining the warrant is likely to defeat the object of the search.
(f)
If the officer wishes to
enter premises in circumstances where a warrant is not required in
terms of this subsection, he shall comply
with the following
requirements:
(i)
The officer may enter the
premises only during ordinary business hours unless in his reasonable
opinion he considers that entry
at any other time is necessary for
purposes of the Act.
(ii)
The officer shall, upon
seeking admission to the premises, inform the person in charge of the
premises whether the purpose of entry
is to conduct a routine
inspection or to conduct a non-routine search.
(iii)
If the purpose of entry
is to conduct a non-routine search, the officer shall hand to the
person in charge a written statement signed
by him stating the
purpose of the search; provided that if, in the officer’s
reasonable opinion, there are circumstances
of urgency which may
result in the purpose of the search being frustrated if its
commencement is delayed until such a statement
can be prepared, the
officer shall orally inform the person in charge of the purpose of
the search; provided further that the search
shall be confined to
such searching, inspection and examination as are reasonably
necessary for the stated purpose; and provided
further that if in the
officer’s reasonable opinion there are grounds for believing
that the object of the search may be
frustrated if the person in
charge is informed of the purpose of the search, the officer may,
before complying with this sub-paragraph
(iii), take such steps as he
considers necessary to prevent persons present on the premises from
concealing, destroying or tampering
with any document, data or thing
located at the premises.
(iv)
The person in charge
shall have the right to be present, or to appoint a delegate to be
present, during and to observe the search.
(v)
If the officer removes
anything from the premises pursuant to the search, he shall compile
an inventory of such items and shall,
prior to leaving the premises,
sign the inventory and hand a copy thereof to the person in charge.
(vi)
If the officer makes any
copies or extracts during the course of the search, he shall compile
a schedule of such material and shall,
prior to leaving the premises,
sign and hand a copy thereof to the person in charge.
(vii)
The officer must
conduct the search with strict regard for decency and order
.
(g)
An officer may apply to a
magistrate or judge in chambers for the issue of a warrant
contemplated in paragraph (d) of this subsection,
and the magistrate
or judge may issue such warrant if it appears from information on
oath:
(i)
that there are reasonable
grounds for suspecting that a contravention of the Act has occurred;
and
(ii)
that a search of the
premises is likely to yield information pertaining to such
contravention; and
(iii)
that the search is
reasonably necessary for the purposes of the Act.
(h)
For purposes of this
subsection the following expressions have the meaning indicated:
(i)
‘designated
premises’ means any transit shed or container terminal as
contemplated in section 6(1) of the Act, any premises
in respect of
which a license has been issued in terms of Chapter VIII of the Act,
and any rebate store as contemplated in rule
75.08 of the rules
promulgated in terms of section 120;
(ii) ‘
non-routine
search’ means a search which an officer has decided to conduct
because a suspicion exists that a contravention
of the Act has
occurred and because the officer suspects that information pertaining
to such contravention may be discovered if
the premises in question
are searched;
(iii)
‘routine search’
means any search, inspection or examination other than a non-routine
search.
(5) Any person in connection
with whose business any premises are occupied or used, and any person
employed by him shall at any
time furnish such facilities as may be
required by the officer for entering the premises and for the
exercise of his powers under
this section.
(6) (a) If an officer, after
having declared his official capacity and his purpose and having
demanded admission into any premises
and having complied with any
applicable requirements of subsection (4)
, is not
immediately admitted, he and any person assisting him may at any
time, but at night only on the presence of a member of
the police
force, break open any door or window or break through any wall on the
premises for the purpose of entry and search;
(b) An officer or any person
assisting him may at any time break up any ground or flooring on any
premises for the purpose of search
if the officer in his
reasonable opinion considers such breaking up to be necessary for the
purposes of the Act
; and if any room, place, safe, chest, box or
package is locked and the keys thereof are not produced on demand,
the officer may
open such room, place, safe, chest, box or package in
any manner.”
In this Court
In
addition to seeking confirmation of the declaration of invalidity,
the applicants support the interim reading-in made by the
High
Court, subject to the deletion of the part which permits warrantless
targeted searches of designated premises.
15
On
invalidity, the applicants argue that section 4 is overbroad for the
following reasons. First, it permits entry into and searches
of
virtually any premises that have some connection with persons being
inspected or investigated.
Second,
overbroad as the section is regarding premises, the official
invoking it does not have to hold a belief or apprehension
–
let alone a reasonable one – of a contravention of the Customs
and Excise Act to justify the search. And this is
so whether the
search is targeted or not.
Third,
section 4 provides no guidance whatsoever on the manner in which a
search is to be conducted. One of the flaws identified
by this Court
in
Magajane
16
was that the relevant section failed “to
guide inspectors as to how to conduct searches within legal
limits”.
17
The applicants also argued that a resounding
principle of South African law is that the exercise of public power
must be within
constitutionally permissible limits. Stipulating
guidelines in legislation comports with one of the requisites of
legality that
laws must be clear and ascertainable.
The
applicants support the reasoning of the High Court regarding the
finding of constitutional invalidity, the reasons why the
section
cannot be justified in terms of section 36, the suspension of
the declaration of invalidity and, partly, the reading-in.
The
applicants contend that the High Court erred in finding that
warrantless non-routine searches of designated premises are
justifiable in all and any circumstances. This is so, they argue,
because the High Court did not have regard to the fact that
speed of
action is not required in all circumstances and that where it is
required, it is in any event facilitated by the fact
that search
warrants may be obtained without prior notice to the party affected
by it (
ex parte
).
Warrantless non-routine searches should remain the exception and, if
necessary, could be catered for as provided for in section
4(4)(e)(ii).
18
Should this Court find that warrantless
non routine searches of designated premises are justifiable,
the applicants argue
that these searches should be confined to the
designated premises in question and should not include any of the
licensees’
other premises or offices.
The
Minister supports the confirmation of the declaration of invalidity
of section 4(4)(a)(i), and 4(5)-(6) to the extent
that the
section permits entry and searches without a warrant. The Minister,
however, opposes the confirmation of invalidity
of
section 4(4)(a)(ii) as it is a self-standing provision and only
empowers inspection in terms of section 101. The Act
requires a
person to keep a book of account and the mere production of books
does not violate the right to privacy – so
long as the
entrance is lawful. Entrance to the premises requires a warrant or
consent but all that this section empowers the
official to do is to
demand compliance with section 101.
The
Minister further opposes confirmation of the declaration of
invalidity of section 4(4)(b). On the Minister’s
argument, it cannot be unconstitutional for an official to require
that he or she be assisted by the police where there is a reasonable
suspicion that there may be resistance requiring protection.
On
remedy the Minister argues that the “interim order is too
detailed and reads like an administrative action rather than
a law”.
The distinction between routine and non-routine searches, so the
Minister contends, is unhelpful and theoretical.
The Minister,
however, argues that the imperfections in the interim order are what
make it acceptable as it is these imperfections
which will force the
Legislature to act with the necessary expedition to amend the
legislation.
While
the SARS respondents accept that the provisions of section 4 are
overbroad and unconstitutional, their approach differs
– from
that of the applicants – on the extent of the constitutional
invalidity and the nature of the remedy to be
granted.
They
submit that the Constitution protects only reasonable expectations
of privacy and that there is no reasonable expectation
of privacy in
respect of business premises which are registered or licensed under
the Customs and Excise Act; and those used
to conduct the business
of persons who are registered or licensed under that Act.
This is the case because of the pervasive control
and monitoring by SARS over premises registered or licensed in terms
of the
Act.
Further, at best for the
applicants, any expectation of privacy is sharply attenuated. When
this is weighed against the critical
need for SARS to have wide
powers of entry, inspection and search in respect of customs
premises,
19
the Constitution does not preclude the grant of
the powers to SARS. For this reason a limitation of the right to
privacy, if there
be any, is also readily justifiable in terms of
section 36 of the Constitution.
The
SARS respondents seek to distinguish this matter from what this
Court found in
Magajane
20
and to show that the applicants’ reliance
on it is misplaced.
Magajane
,
according to the SARS respondents, did not decide the extent to
which the right to privacy is infringed by a warrantless search
of
licensed premises as it was concerned with a search on unlicensed
premises.
The
SARS respondents further argue that the distinction between routine
and non-routine/targeted searches is not a constitutional
requirement nor does it conducive to practical application. During
searches officials engage in both general inspections and
in further
searches if anything suspicious arises. In these circumstances, if
the High Court and the applicants’ line of
reasoning were to
be followed, a routine search would have to stop dead in its tracks
and a warrant would have to be obtained
first before the official
could continue with it.
On
remedy the only area of contention is the wording of the reading-in
to be adopted. The SARS respondents argue that the construction
of
the section by the High Court is overly constraining, impractical
and confusing. They attached a draft order to their written
submissions – based on their interpretation of the extent of
the invalidity – which they claim would constitute just
and
equitable relief.
21
Discussion
Flowing
from the High Court’s declaration of constitutional
invalidity, the reading-in and the submissions made before us,
the
issues for determination are:
(a) Are
sections 4(4)(a)(i)-(ii), 4(4)(b), 4(5) and 4(6) unconstitutional and
thus invalid:
i. do they limit the right to privacy; and
ii. if they do, is the limitation justified?
(b) If the
sections are unconstitutional and thus invalid, must the declaration
of invalidity be retrospective?
(c) Should the declaration of invalidity be suspended pending
correction of the defect?
(d) How
long should the period of suspension be?
(e) If the
declaration of invalidity is suspended, should there be a remedy in
the interim?
Constitutionality of the impugned provisions
The
right to privacy extends beyond the inner sanctum of the home
.
22
Even though businesses do have a right to
privacy,
they have a lower expectation of
privacy as to the disclosure of relevant information to the
authorities as well as the public.
23
In
Mistry
24
this Court considered the right to privacy in the
context of regulatory inspections.
25
Relying on
Bernstein
,
it stated that regulated businesses possess a more attenuated right
to privacy, more so if the business is public, closely regulated
and
potentially hazardous to the public.
26
Sections
4(4)(a)(i)-(ii), 4(4)(b), 4(5) and 4(6) of the Customs and Excise
Act authorise:
(a) warrantless searches “
at any time
”, “
at
any premises
whatsoever
”;
(b) the
demanding of any book, document or thing from any person believed to
have it in his or her possession or under his or her
control “
at
any time
” and “
at any place
”;
(c) the
breaking open of any door or window or breaking through any wall of
“
any premises
” and “
at any time
”;
(d) the
breaking up, “
at any time
”, of any ground or
flooring on “
any premises
” for the purpose of a
search; and
(e) the
opening, in any manner, of any room, place, safe, chest, box or
package (and all these refer to “
any premises
”) if
it is locked and the keys are not produced on demand.
Clearly,
“
any premises
” and “
any premises
whatsoever
” include private homes. The only qualification,
if a qualification at all, on the exercise of the search power is
that
an officer may enter any premises “
for the purposes of
this Act
”. The wording is so broad that it brings within
its sweep not only the places of business and homes of people who
are players
in the customs and excise industry, but also the homes
of their clients, associates, service providers, and employees and
their
relatives. Quite conceivably, the premises – business or
homes – of any person who, somehow, may be linked to a player
in the customs and excise industry may be the subject of a search in
terms of the impugned sections. The breadth of the impugned
sections
in relation to premises becomes quite plain.
The
language of the section says nothing about the need for the searches
– regardless of type – to be motivated by
a suspicion,
let alone a reasonable one. This is true of business premises and
people’s homes.
The
provisions are broad as to the manner of conducting the searches.
Searches may be conducted in private dwellings at any time,
and
officials may not only break in at the dwellings but, once inside,
they may even break up floors. And they do not need a
warrant to do
all this.
That
this power – unbounded as to time, scope of the search and
type of premises – is extremely intrusive is manifest.
In
Mistry
27
this Court held that while a warrant requirement
might be nonsensical if the statute had provided only for periodic
regulatory
inspection of premises, as a prior warrant could
frustrate the objectives behind the search, there was no reason not
to require
a warrant for searches that could extend to a private
home. The Court emphasised that it would be incongruous to require
police
officers, who are trained to search homes, to obtain
warrants, but not to require the same from inspectors who are not so
trained.
Also, the Court found that this violation was compounded by
the fact that there was not sufficient guidance to the inspectors on
the manner in which searches should be conducted. This reasoning
applies with equal force to this matter.
I
conclude that sections 4(4)(a)(i)-(ii), 4(4)(b), 4(5) and 4(6)
do limit the right to privacy.
Coming
to justification, in
Magajane
this Court said:
“
The
limitation analysis in terms of section 36 involves a proportionality
review. A court has to consider an applicant’s
expectation of privacy and the breadth of the legislation, among
other considerations. The expectation of privacy will be more
attenuated the more the business is public, closely regulated and
potentially hazardous to the public. Legislation may not be so
broad
as to have the real potential to reach into private homes. In
assessing whether legislation could have achieved its desired
ends
through less damaging means, a court will determine whether the
legislation could have required a warrant, and a court will
consider
whether a warrant requirement would frustrate the state’s
regulatory objectives and whether in the absence of a
warrant the
legislation provides sufficient guidance to inspectors as to the
limits of the inspections.”
28
It is
so that at issue in
Magajane
were search and seizure powers
in respect of unlicensed businesses. But some of the propositions
contained in the judgment are
of relevance to this case.
Section
36 enjoins a court to balance all relevant factors.
29
I next deal with these factors.
The nature of the right
Section 14 of the Constitution refers to the
right to privacy which includes the right of an individual not to
have their person,
home or property searched or their possessions
seized or have the privacy of their communications infringed.
McQuoid-Mason
30
says that “privacy has a variety of
connotations, has been described as ‘an amorphous and elusive’
concept and
has been closely identified with the concept of
identity.”
31
He refers to Westin who describes privacy as “the
voluntary and temporary withdrawal of a person from the general
society
through physical and psychological means, either in a state
of solitude or small group intimacy or, when among larger groups, in
a condition of anonymity or reserve”.
32
The right to privacy embraces the right to be
free from intrusions and interference by the state and others in
one’s personal
life.
In
Magajane
Van
der Westhuizen J pointed to the fact that in
Mistry
33
this Court “described the essential nature
of the right to privacy as protected in section 14 of the
Constitution and the
means through which section 14 repudiates
repugnant past practices and reaffirms others consistent with the
new constitutional
values”.
34
This is what
Mistry
tells us:
“
The
existence of safeguards to regulate the way in which state officials
may enter the private domains of ordinary citizens is one
of the
features that distinguish a constitutional democracy from a police
state. South African experience has been notoriously
mixed in this
regard. On the one hand there has been an admirable history of strong
statutory controls over the powers of the police
to search and seize.
On the other, when it came to racially discriminatory laws and
security legislation, vast and often unrestricted
discretionary
powers were conferred on officials and police. Generations of
systematised and egregious violations of personal privacy
established
norms of disrespect for citizens that seeped generally into the
public administration and promoted amongst a great
many officials
habits and practices inconsistent with the standards of conduct now
required by the Bill of Rights. [The right to
privacy] accordingly
requires us to repudiate the past practices that were repugnant to
the new constitutional values, while at
the same time re-affirming
and building on those that were consistent with these values.”
35
Privacy, like other rights, is not absolute.
36
As a person moves into communal relations and activities such as
business and social interaction, the scope of personal space
shrinks. This diminished personal space does not mean that once
people are involved in social interactions or business, they
no
longer have a right to privacy. What it means is that the right is
attenuated, not obliterated. And the attenuation is more
or less,
depending on how far and into what one has strayed from the inner
sanctum of the home.
Purpose of the limitation
Perhaps
this is best understood by looking at the nature of customs and
excise duty as well as the rationale for customs and excise
controls.
Customs
duty can be described as a “tax levied on imports . . . by the
customs authorities of a country to raise state revenue,
and/or to
protect domestic industries from more efficient or predatory
competitors from abroad”.
37
Excise
duty
38
is
an
inland tax on the sale, or production for sale, of specific goods or
a tax on specified goods produced for sale, or sold, within
a
country or licenses for specific activities.
39
Customs
duty is levied, primarily, to:
(a) raise revenue;
(b) regulate imports of foreign goods into South Africa;
(c) conserve foreign exchange, regulate the supply of goods into the
domestic market; and
(d) provide protection to domestic industries from foreign
competition.
Excise
duties and levies are imposed mostly on high-volume daily consumable
products (for example, petroleum, alcohol and tobacco
products) as
well as certain non essential or luxury items (for example,
electronic equipment and cosmetics). The primary
function of these
duties and levies is to ensure a constant stream of revenue for the
state, with a secondary function of discouraging
consumption of
certain products that are harmful to health or the environment. The
revenue generated from these duties and levies
amounts to
approximately ten per cent of the total revenue received by SARS.
40
This
means customs and excise controls serve an important public purpose.
The Act is essentially a fiscal piece of legislation.
The tight
regulation of customs and excise is calculated to reduce practices
that are deleterious to the purpose of the customs
and excise
regime. The impugned provisions ensure effective monitoring and
prevent – as far as possible – evasion
of payment of
what is due in terms of the Customs and Excise Act. SARS tells us
that despite the industry regulation that is
in place, the country
still loses billions of rand. Thus there is a need for regular
inspections. This is especially so in our
country, which is a
developmental state that can ill-afford loss of revenue – in
such large sums, to boot – through
evasion.
Adapting
this to the present matter, as shown by the extent of the loss of
revenue, evasion is so pervasive as to necessitate
tight control.
That is possible through regular inspections. Besides the revenue
component, inspections are equally important
for the other purposes
of customs and excise control. The importance and incontestable
necessity of control and constant monitoring
diminish the
invasiveness of searches under the impugned sections. And
individuals involved in the customs business are well-aware
that
monitoring and inspection are an integral part of the industry.
The nature and extent of the limitation
In
Magajane
this Court said that
“
[i]n
the context of a regulatory inspection of commercial private
property, there are at least three issues that will have a bearing
on
the nature and extent of the limitations, namely (1) the level of the
reasonable expectation of privacy, (2) the degree to which
the
statutory provision resembles criminal law and (3) the breadth of the
provision”.
41
I discuss
each of these in turn.
The
more public the undertaking and the more closely regulated the
industry, the more attenuated the right to privacy and the
less
intense any possible invasion.
42
As a person’s privacy interest is more
attenuated and as the individual has a lessened reasonable
expectation of privacy,
the scope of that individual’s
personal space shrinks and the individual’s right to privacy
may be diminished further
by the rights accruing to other citizens.
43
The
degree of privacy that can reasonably be expected by a person may
vary significantly depending on the commercial activity
that brings
one into contact with the state.
44
In
a modern society, it is generally accepted that many commercial
activities in which individuals may engage must, to a greater
or
lesser extent and depending on their nature, be regulated by the
state to ensure that the individual’s pursuit is compatible
with the community’s interest in the realisation of collective
goals and aspirations.
45
How tight the control must be will depend on the
nature of the industry. In many instances, the regulation must
necessarily involve
the inspection of private commercial premises by
agents of the state. Obvious means of testing compliance with
statutory regulation
are random inspections by state functionaries.
The reasonableness of a person’s
expectation of privacy, and thus the strength of that person’s
privacy interest,
can vary depending on the regulatory scheme to
which that person is subject.
According
to
Magajane
:
“
Mistry
listed
a number of respects in which the proprietor of a business generally
has a reduced expectation of privacy. Reasonable regulations
and
inspections are an ‘inseparable part of an effective regime of
regulation.’ The more a business creates potential
hazards to
the public, the more important and less invasive the inspection.
People involved in certain businesses must be taken
to know that
their activities will be monitored.”
46
(Footnote
omitted.)
In
these circumstances, an expectation of a wholesome right to privacy
by an industry participant would be unreasonable: the right
is
simply attenuated, and greatly so.
The
customs and excise industry is closely controlled and regulated.
Given that fact, participants in the customs and excise industry
must be taken to expect regular inspections.
47
Consequently, the right to privacy in respect of
business premises in this context is greatly attenuated. On the
other hand, in
respect of private homes the right remains as strong
as one can imagine.
But
the Customs and Excise Act does not discriminate between the types
of premises that may be subjected to searches for the purposes
specified in the statute. Needless to say, in respect of private
dwellings, participants in the customs and excise industry are
still
entitled to expect – and reasonably so – that the law
will respect and protect their right to privacy.
Provisions
that more closely resemble traditional criminal law require closer
scrutiny. The distinction will often be between
compliance and
enforcement.
48
Inspections aimed at compliance
49
are unlike criminal searches and are likely to
limit the right to privacy to a lesser extent. Searches aimed at
enforcement
50
are akin to criminal searches, especially if
there are penal sanctions under the regulatory provision or if the
target may be
charged criminally.
51
Enforcement searches of this nature – as
was the case here – are generally more invasive and involve a
greater limitation
of the right to privacy.
52
The
breadth of the impugned provisions is crucial to the question of the
extent of the limitation.
53
As demonstrated above, the provisions are
overbroad. The provision allows searches that are not only
warrantless, there is no
limit as to (a) the time when searches may
be conducted, (b) the types of premises that may be searched, and
(c) the scope of
the search. Instead, SARS officials are given
far-reaching powers (breaking in and breaking floors) that may be
exercised anywhere,
at whatever time and in relation to whomsoever,
with no need for the existence of a reasonable suspicion,
irrespective of the
type of search.
The relation between the limitation and its purpose
There
must be a rational connection between the purpose of the law and the
limitation imposed by it.
54
In broad terms, that rational connection does
exist between the limitation at issue here and the provision’s
purpose. The
tight regulation of the customs and excise industry is
enforced through inspections. Intrinsically, inspections of this
kind
are still intrusive, although they must be somewhat tolerable
in respect of business premises. But this is something that
participants
in the industry must be content with if compliance with
the Customs and Excise Act is to be achieved. It is in this context
that
the limitation of the right to privacy must be understood.
Less restrictive means to achieve the purpose
It is
difficult to see how the achievement of the basic purposes of the
Customs and Excise Act requires that inspectors be allowed
to enter
private homes and inspect documents and possessions at will. The
fact that the Customs and Excise Act is manifestly
in the public
interest in no way diminishes the need to protect and uphold the
privacy and, indeed, dignity of individuals where
– as in the
case of private dwellings – these rights are by no means
attenuated.
Exceptions
to the warrant requirement should not become the rule.
55
A warrant is not a mere formality. It is a
mechanism employed to balance an individual’s right to privacy
with the public
interest in compliance with and enforcement of
regulatory provisions.
56
A warrant guarantees that the state must be able,
prior to an intrusion, to justify and support intrusions upon
individuals’
privacy under oath before a judicial officer.
Further, it governs the time, place and scope of the search. This
softens the intrusion
on the right to privacy, guides the conduct of
the inspection, and informs the individual of the legality and
limits of the search.
57
Our history provides evidence of the need to
adhere strictly to the warrant requirement unless there are clear
and justifiable
reasons for deviation.
The
law recognises that there will be limited circumstances in which the
need for the state to protect the public interest compels
an
exception to the warrant requirement.
58
Also, as indicated above, in certain instances,
regulatory inspections aimed at advancing the general welfare of the
public require
just such an exception.
59
When
legislation authorises warrantless regulatory inspections, provision
must be made for a constitutionally adequate substitute
to ensure
certainty in the conduct of the inspections and limit the discretion
of the inspectors.
60
In
Dawood
61
this Court stated:
“
We
must not lose sight of the fact that rights enshrined in the Bill of
Rights must be protected and may not be unjustifiably infringed.
It
is for the Legislature to ensure that, when necessary, guidance is
provided as to when limitation of rights will be justifiable.
It is
therefore not ordinarily sufficient for the Legislature merely to say
that discretionary powers that may be exercised in
a manner that
could limit rights should be read in a manner consistent with the
Constitution in the light of the constitutional
obligations placed on
such officials to respect the Constitution. Such an approach would
often not promote the spirit, purport
and objects of the Bill of
Rights. Guidance will often be required to ensure that the
Constitution takes root in the daily practice
of governance. Where
necessary, such guidance must be given. Guidance could be provided
either in the legislation itself or, where
appropriate, by a
legislative requirement that delegated legislation be properly
enacted by a competent authority.”
62
(Footnote
omitted.)
The
legislation must sufficiently inform the property owner that
searches of the property will be undertaken periodically and
for a
specific regulatory purpose. The discretion of the inspectors should
be limited as to time, place and scope.
63
To my mind, the legislation must also provide for
a manner of conducting searches that accords with common decency and
is not
more intrusive than is necessary.
In
conclusion under this head, less restrictive means to achieve the
purpose of the Act do exist. For example, there is no cogent
reason
for not providing for warrants in respect of searches of people’s
homes,
64
with exceptions similar to those provided for in
section 22 of the Criminal Procedure Act. There is no readily
discernible reason
– in conducting searches – for not
having bounds as to time, place and scope.
A
balancing of all these factors leads me to the conclusion that the
impugned sections cannot be justified in terms of section
36.
The
distinction the applicants urged us to make regarding routine and
non routine searches, on the one hand, and types of
premises,
65
on the other, seems to be problematic for this
Court to make in these proceedings.
A
distinction between the types of searches or the types of premises
to be searched does not need to be made in this judgment.
I am
particularly loath to do so as the lawmaker is – at this very
moment – in the process of crafting a legislative
measure that
aims to address the unconstitutionality. The Legislature, guided by
this judgment to the extent certain pronouncements
have been made,
should be given latitude to formulate the inner and outer reaches of
the search power.
Must
the declaration of invalidity be retrospective?
It
is clear that an order of full retrospective effect would render
unlawful all searches under section 4(4) from when the Constitution
came into force. In the present circumstances, this approach would
be inconsistent with our jurisprudence. In
Bhulwana
66
this Court held that as a “general
principle . . . an order of invalidity should have no effect on
cases which have been
finalised prior to the date of the order of
invalidity.”
67
Must the declaration of invalidity be suspended?
In
deciding whether to suspend the declaration of invalidity, a Court
“must consider, on the one hand, the interests of
the
successful litigant in obtaining immediate constitutional relief
and, on the other, the potential disruption of the administration
of
justice that would be caused by the lacuna.”
68
The
declaration of invalidity should be suspended as, without the
suspension, SARS will not be able to conduct even regulatory
searches and a lacuna will be created. A suspension coupled with an
interim reading-in will afford Parliament an opportunity
to craft an
appropriate legislative solution to remedy the constitutional
defect, while – in the interim – ensuring
that SARS can
properly carry out its duties in terms of the Customs and Excise
Act. Leaving SARS without the necessary power
to ensure compliance
with the Act would simply not be in the public interest. As
indicated above, this is an industry that requires
tight regulation.
Thus it is important for SARS to be able to continue monitoring
compliance with the regulatory framework. The
search provisions in
the Criminal Procedure Act and National Prosecuting Authority Act
are unsuited to the monitoring and regulating
functions of SARS.
Searches in terms of these two statutes are in the context of
enforcement.
To
the extent that some searches may go beyond mere monitoring and
regulating, a short period of suspension may well be necessary
so
that the unacceptable elements of the impugned sections endure for
as short a period as possible.
The
continuing unconstitutionality will be ameliorated by the tightly
framed reading-in dealt with below.
How long should the period of suspension be?
The
High Court suspended the order of invalidity for a period of 18
months to allow the Legislature time to correct the defect.
Before us the picture has changed significantly. We have been
informed by SARS that on 4 July 2013, the National Treasury
published
the draft Taxation Administration Laws Amendment Bill,
2013 for public comment. That draft Bill seeks to remedy the
constitutional
deficiencies in section 4(4) to (6) of the
Customs and Excise Act. SARS states that on the basis of past
experience
it is anticipated that the draft Bill will likely be
enacted into law by either late January or early February 2014.
69
Based on this, and the assurance by counsel for
SARS that this could be done within a relatively short period, I see
no reason
to order a period of suspension of the declaration of
invalidity which exceeds six months.
Interim remedy
One possible remedy is reading-in. Reading-in has
been the object of some suspicion and courts must resort to it
sparingly. The
actual act of writing or editing legislation may
constitute a possible encroachment by the judiciary on the terrain
of the Legislature
and, therefore, a violation of the separation of
powers.
70
In
Johncom Media Investments Limited
71
Jafta J held that a temporary reading in is
permissible and is just and equitable. In
C
72
the Court stated:
“
[T]he
only feasible way forward is reading-in. This course will not unduly
intrude into the domain of Parliament because Parliament
can amend
the statute at any time.”
73
Depending
on its nature and extent, the remedy thus does not intrude unduly
into the lawmaker’s sphere. With interim reading-in,
there is
recognition of the Legislature’s ultimate responsibility for
amending Acts of Parliament: reading-in is temporary
precisely
because the Court recognises that there may be other legislative
solutions. And those are best left to Parliament to
contend with.
Thus
during the period of suspension, there is a need for a reading-in.
When SARS officials wish to search homes (private residences)
pursuant to the powers conferred by section 4, they must apply
for a warrant in terms similar to those required by section
22 of
the Criminal Procedure Act
74
or section 29 of the National Prosecuting
Authority Act:
75
the exception provided for in those pieces of
legislation (a need to act swiftly coupled with a belief – on
reasonable grounds
– that a warrant would otherwise have been
authorised) also to be applicable to this reading-in.
Privacy
is most often seen as a fundamental personality right deserving of
protection as part of human dignity.
76
This Court in
Mistry
77
held that, to the extent that a statute authorises warrantless entry
into private homes and the rifling through private possessions,
the
statute breaches the right to privacy. To this end, it is necessary
that the right to privacy with regard to the homes of
individuals
and their private possessions is protected. In this context the
expectation of privacy is higher and, at the very
least, entry and
searches conducted there have to be authorised by warrants. This is
in line with
Magajane
.
78
The reading-in of this requirement is warranted.
Costs
These
are proceedings which, in terms of section 167(5), had to be brought
to this Court for confirmation. The applicants were
successful in
their challenge in the High Court, where they were awarded costs. It
is the norm to award costs in favour of a
successful applicant for
confirmation.
79
I see no reason why that should not be the case
in this matter.
Order
[88] The
following order is made:
1. The
declaration of constitutional invalidity of sections 4(4)(a)(i)-(ii),
4(4)(b), 4(5) and 4(6) of the Customs and Excise Act
91 of 1964 made
by the Western Cape High Court, Cape Town is confirmed.
2. The
declaration of invalidity is not retrospective.
3. The
order is suspended for six months to afford the Legislature an
opportunity to cure the invalidity.
4. During
the period of suspension, section 4(4) of the Customs and Excise Act
will be deemed to read as follows, what is underlined
being the
reading-in:
“
(4)
(a) An officer may, for the purposes of this Act—
(i) without previous notice, at
any time enter any premises,
except a private residence
, and
make such examination and enquiry as he deems necessary;
(ii) while he is on the premises
or at any other time require from any person the production then and
there, or at a time and place
fixed by the officer, of any book,
document or thing which by this Act is required to be kept or
exhibited or which relates to
or which he has reasonable cause to
suspect of relating to matters dealt with in this Act and which is or
has been on the premises
or in the possession or custody or under the
control of any such person or his employee;
(iii) at any time and at any
place require from any person who has or is believed to have the
possession or custody or control of
any book, document or thing
relating to any matter dealt with in this Act, the production thereof
then and there, or at a time
and place fixed by the officer; and
(iv) examine and make extracts
from and copies of any such book or document and may require from any
person an explanation of any
entry therein and may attach any such
book, document or thing as in his opinion may afford evidence of any
matter dealt with in
this Act.
(b) An officer may take with him
on to any premises an assistant or a member of the police force.
(c) Premises that are a
private residence may be entered by an officer in terms of paragraph
(a) only on the authority of a warrant
issued by a magistrate or
judge.
(d) A magistrate or judge may
issue a warrant referred to in paragraph (c) only on written
application by an officer setting out
under oath or affirmation the
grounds why it is necessary for an officer to gain access to the
relevant premises.
(e) The magistrate or judge
may issue the warrant referred to in paragraph (c) if it appears from
information on oath or affirmation
that—
(i) there are reasonable
grounds for suspecting that a contravention of the Act has occurred;
(ii) a search of the premises
is likely to yield information pertaining to such contravention; and
(iii) the search is
reasonably necessary for the purposes of the Act.
(f) An officer may enter and
search a private residence without the warrant referred to in
paragraph (c) if—
(i) the officer on reasonable
grounds believes—
(aa) that a warrant would be
issued in terms of paragraph (c) if the officer applied for it; and
(bb) that the delay in
obtaining the warrant is likely to defeat the object of the search.”
5. The respondents are ordered, jointly and
severally, to pay the applicants’ costs, including costs of two
counsel.
For the Applicants: Advocate A Katz SC, Advocate M
Ioannou instructed by Maurice Phillips Wisenberg Attorneys.
For
the First Respondent: Advocate P Mtshaulana SC instructed by the
State Attorney.
For
the Second and Third Respondents: Advocate S Budlender, Advocate J
Berger instructed by the State Attorney.
1
Literally,
“It’s red!” in the Nguni languages.
2
It
must be remembered that the impugned provisions of the Customs and
Excise Act 91 of 1964, at the heart of this dispute, date
back to 1
January 1965 (this being the date of commencement of the Act) –
a time when wide powers were “conferred
upon the police to
enter homes without a search warrant at all times to enforce the law
of apartheid and to maintain the security
of the state . . . the
Criminal Procedure Act [56 of 1955] was amended to permit
any
policeman to enter
any
premises at
any
time
without a warrant”. (Emphasis in original.) (Dugard
Human
Rights and the South African Legal Order
(Princeton University
Press, Princeton 1978) 144-5).
3
The
text of section 4, inclusive of the High Court’s reading-in,
is quoted in [19] below.
4
91
of 1964.
5
Gaertner
and Others v Minister of Finance and Others
2013 (4) SA 87
(WCC)
(High Court judgment).
6
I
will refer to the second and third respondents collectively as the
“SARS respondents”.
7
In
the interests of brevity, I have lumped the events of the two days
together, except where I find it necessary to specify those
of a
particular day.
8
This
is an inspection of the warehouse which forms part of the premises.
9
These
terms will be defined later.
10
High
Court judgment above n 5 at para 14.
11
High
Court judgment above n 5 at para 103. The High Court defined a
non-routine search as “being a search where the premises
are
selected (targeted) for search because of a suspicion or belief that
material will be found there, showing or helping to
show that there
has been a contravention of the Act. The purpose of the search will
be to find material relating specifically
to the suspected
contravention. A routine search is any search other than a targeted
search.” Pre-entry facilities are
facilities where goods are
kept prior to their entry into the country and can be described as:
a transit shed as referred to
in section 6(1)(g); a container
terminal as referred to in section 6(1)(hA); a container depot
as referred to in section 6(1)(hB);
or a state warehouse as
referred to in section 17.
12
The
High Court judgment termed these “designated premises”.
13
51
of 1977.
14
32
of 1998.
15
Section
4(4)(d) of the Act as read in by the High Court.
16
Magajane
v Chairperson, North West Gambling Board and Others
[2006] ZACC
8
;
2006 (5) SA 250
(CC);
2006 (10) BCLR 1133
(CC).
17
Id
at para 88.
18
Section
4(4)(e) is part of what was read in by the High Court.
19
The
term is used by SARS to denote business premises which are
registered or licensed under the Act and business premises used
to
conduct the business of persons who are registered or licensed under
the Act.
20
Above
n 16.
21
The
essence of the draft order is that an officer may, for purposes of
the Act, and without a warrant enter premises managed by
the state
or a public entity, premises licensed by the Act, premises occupied
by a person licensed or registered in terms of
the Act and premises
entered with consent of the owner. In addition the draft also allows
for searches without a warrant, in
those instances where a warrant
would ordinarily be required, if the officer on reasonable grounds
believes that a warrant would
be issued by a magistrate or a judge
if applied for and if the delay in obtaining a warrant is likely to
defeat the purposes
of entry into the premises. The draft also sets
out requirements that an officer would have to comply with when
conducting a
search.
22
Bernstein
and Others v Bester and Others NNO
[1996] ZACC 2
;
1996 (2) SA
751
(CC);
1996 (4) BCLR 449
(CC) at para 67 (
Bernstein
).
23
Investigating
Directorate: Serious Economic Offences and Others v Hyundai Motor
Distributors (Pty) Ltd and Others In re: Hyundai
Motor Distributors
(Pty) Ltd and Others v Smit NO and Others
[2000] ZACC 12
;
2001
(1) SA 545
(CC);
2000 (10) BCLR 1079
(CC) (
Hyundai
) at paras
17-8.
24
Mistry
v Interim Medical and Dental Council of South Africa and Others
[1998] ZACC 10
;
1998 (4) SA 1127
(CC);
1998 (7) BCLR 880
(CC).
25
Regulatory
inspections can be described as inspections aimed at ensuring
compliance with a regulatory framework set out in a statute.
26
Mistry
above n 24 at para 29.
27
Mistry
above n 24 at para 27.
28
Magajane
above n 16 at para 50.
29
Section
36 of the Constitution reads as follows:
“
Limitation of rights
(1) The rights in the Bill of Rights may be limited
only in terms of law of general application to the extent that the
limitation
is reasonable and justifiable in an open and democratic
society based on human dignity, equality and freedom, taking into
account
all relevant factors, including—
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its
purpose; and
(e) less restrictive means to achieve the purpose.
(2) Except as provided in subsection (1) or in any
other provision of the Constitution, no law may limit any right
entrenched
in the Bill of Rights.”
30
“
Privacy”
in Woolman et al
Constitutional
Law of South Africa
2 ed vol 3 (RS 5) at 38-1.
31
Bernstein
above n 22 at para 65.
32
Privacy
and Freedom
(1967) at 7. The International Commission of Jurists
Conclusions of the Nordic Conference on the Right to Privacy (1967)
defined
privacy as “the right to be left alone to live one’s
own life with the minimum degree of interference”.
33
Mistry
above n 24.
34
Magajane
above n 16 at para 63.
35
Mistry
above n 24 at para 25.
36
Case
and Another v Minister of Safety and Security and Others; Curtis v
Minister of Safety and Security and Others
[1996] ZACC 7
;
1996
(3) SA 617
(CC);
1996 (5) BCLR 609
(CC) at para 106.
37
Definition
found at the online version of the Business Dictionary to be found
at www.businessdictionary.com.
38
It
may perhaps be illuminating to state that there is also an excise
levy. It
is a levy imposed by a country because
of the impact the production of a certain product has on it. For
example, South Africa
currently imposes a levy on petroleum products
and an environmental levy on certain products and activities, such
as certain
plastic carriers and flat bags; generation of electricity
from certain sources; and electric filament lamps.
39
Definition
found at the online version of the Business Dictionary to be found
at www.businessdictionary.com.
40
SARS
Guide to Excise Duties and Levies
20 February 2013, found at
www.sars.gov.za.
41
Magajane
above n 16 at para 66.
42
Mistry
above n 24 at para 27.
43
Bernstein
above n 22.
44
Mistry
above n 24 at para 27 fn 43 and the authorities cited therein.
45
Thomson
Newspapers Ltd. v Canada (Director of Investigation and Research,
Restrictive Trade Practices Commission)
[1990] 1 SCR 425
at
505-7.
46
Magajane
above n 16 at para 68.
47
Compare
Magajane
above n 16 at para 50.
48
Magajane
above n 16 at para 70.
49
The
supervision of an industry at large, without particular regard to
any pre-existing objective except to ensure the integrity
of the
scheme of regulation in general.
50
A
focused investigation under a regulatory scheme, often with a view
to penal or quasi-penal consequences.
51
Breaches
of the Act can lead to the imposition of administrative penalties
(for example, section 91 of the Act which provides
that where a
person has contravened the provisions of the Act, agrees to abide
the decision of the Commissioner, the Commissioner
may, after such
enquiry as he deems necessary, determine the matter summarily and
may, without legal proceedings, order forfeiture
by way of penalty
of the whole or any part of the amount deposited or secured) or even
the instigation of criminal investigation
and the imposition of a
sanction (for example, section 78(1) of the Customs and Excise Act,
provides that any person who contravenes
any of its provisions will
be guilty of an offence).
52
Magajane
above n 16 at para 70.
53
Mistry
above n 24 at para 28.
54
Magajane
above n 16 at paras 72-3.
55
Id
at para 74.
56
Thint
(Pty) Ltd v National Director of Public Prosecutions and Others;
Zuma and Another v National Director of Public Prosecutions
and
Others
[2008] ZACC 13
;
2009 (1) SA 1
(CC);
2008 (12) BCLR 1197
(CC) at para 78.
57
Hyundai
above n 23 at para 40.
58
Section
22 of the Criminal Procedure Act provides:
“
A police official may without
a search warrant search any person or container or premises for the
purpose of seizing any article
referred to in section 20—
(a) if the person concerned consents to the search for
and the seizure of the article in question, or if the person who may
consent
to the search of the container or premises consents to such
search and the seizure of the article in question; or
(b) if he on reasonable grounds believes—
(i) that a search warrant will be issued to him under
paragraph (a) of section 21(1) if he applies for such warrant;
and
(ii) that the delay in obtaining such warrant would
defeat the object of the search.”
59
Magajane
above n 16 at para 75.
60
Id
at para 77.
61
Dawood
and Another v Minister of Home Affairs and Others; Shalabi and
Another v Minister of Home Affairs and Others; Thomas and
Another v
Minister of Home Affairs and Others
[2000] ZACC 8
;
2000 (3) SA
936
(CC);
2000 (8) BCLR 837
(CC) (
Dawood
).
62
Id
at para 54.
63
Magajane
above n 16 at para 77.
64
Mistry
above n 24 at para 29.
65
The
debate did not relate to private homes. It concerned designated,
licensed and business premises.
66
S
v Bhulwana; S v Gwadiso
[1995] ZACC 11
;
1996 (1) SA 388
(CC);
1995 (12) BCLR 1579
(CC).
67
Id
at para 32.
68
J
and Another v Director General, Department of Home Affairs, and
Others
[2003] ZACC 3
;
2003 (5) SA 621
(CC);
2003 (5) BCLR 463
(CC) at para 21.
69
Public
hearings on the Bill were conducted on 20 and 21 August 2013 and at
the time of the writing of this judgment the Standing
Committee on
Finance had indicated that they hoped to refer the Bill to the
National Assembly by early October.
70
Bishop
“Remedies” in Woolman et al
Constitutional Law of
South Africa
2 ed vol 1 (RS 5) at 9-104 to 9-105.
71
Johncom
Media Investments Limited v M and Others
[2009] ZACC 5
;
2009 (4)
SA 7
(CC);
2009 (8) BCLR 751
(CC) at para 40.
72
C
and Others v Department of Health and Social Development, Gauteng
and Others
[2012] ZACC 1
;
2012 (2) SA 208
(CC);
2012 (4) BCLR
329
(CC) (
C
).
73
Id
at para 89.
74
Section
21(1) of the Criminal Procedure Act provides:
“
Subject to the provisions of
sections 22, 24 and 25, an article referred to in section 20
shall be seized only by virtue
of a search warrant issued—
(a) by a magistrate or justice, if it appears to such
magistrate or justice from information on oath that there are
reasonable
grounds for believing that any such article is in the
possession or under the control of or upon any person or upon or at
any
premises within his area of jurisdiction; or
(b) by a judge or judicial officer presiding at
criminal proceedings, if it appears to such judge or judicial
officer that any
such article in the possession or under the control
of any person or upon or at any premises is required in evidence of
such
proceedings.”
Section
22 of the same Act provides:
“
A police official may without
a search warrant search any person or container or premises for the
purpose of seizing any article
referred to in section 20—
(a) if the person concerned consents to the search for
and the seizure of the article in question, or if the person who may
consent
to the search of the container or premises consents to such
search and the seizure of the article in question; or
(b) if he on reasonable grounds believes—
(i) that a search warrant will be issued to him under
paragraph (a) of section 21(1) if he applies for such warrant;
and
(ii) that the delay in obtaining such warrant would
defeat the object of the search.”
75
Section
29 of the National Prosecuting Authority Act in relevant part
provides:
“
(4) Subject to subsection
(10), the premises referred to in subsection (1) may only be
entered, and the acts referred to in subsection
(1) may only be
performed, by virtue of a warrant issued in chambers by a
magistrate, regional magistrate or judge of the area
of jurisdiction
within which the premises is situated: Provided that such a warrant
may be issued by a judge in respect of premises
situated in another
area of jurisdiction, if he or she deems it justified.
.
. .
(10) (a) The Investigating Director or any person
referred to in section 7(4)(a) may
without a warrant enter upon any premises and perform
the acts referred to in subsection (1)—
(i) if the person who is competent to do so consents to
such entry, search, seizure and removal; or
(ii) if he or she upon reasonable grounds believes
that—
(aa) the required warrant will be issued to him or her
in terms of subsection (4) if he or she were to apply for such
warrant;
and
(bb) the delay caused by the obtaining of any such
warrant would defeat the object of the entry, search, seizure and
removal.”
76
See
Burchell
Personality Rights and Freedom of Expression: The Modern
Actio Injuriarum (Juta and Co Ltd, Cape Town 1998) and
Markesinis et al “Concerns and Ideas About the Developing
English
Law of Privacy (and How Knowledge of Foreign Law Might Be of
Help)” (2004) 52
American Journal of Comparative Law
133
at 153.
77
Mistry
above n 24.
78
Magajane
above n 16.
79
See
Mvumvu and Others v Minister for Transport and Another
[2011]
ZACC 1
;
2011 (2) SA 473
(CC);
2011 (5) BCLR 488
(CC);
Brümmer
v Minister for Social Development and Others
[2009] ZACC 21
;
2009 (6) SA 323
(CC);
2009 (11) BCLR 1075
(CC); and
South African
Liquor Traders’ Association and Others v Chairperson, Gauteng
Liquor Board, and Others
[2006] ZACC 7
;
2009 (1) SA 565
(CC);
2006 (8) BCLR 901
(CC).