Tuesday, 12 July 2011

Search warrants must spell out the offence



WARRANTS were issued as a result of a suspicion by the Commercial Crime Unit of the South African Police Service (SAPS) that a G van der Merwe and three other suspects, and several companies in which he had a financial interest, were involved in money-laundering and financial and tax irregularities.

Left: Constitutional Court rules that a searched person must understand the reasons for the invasion of their privacy. The High Court declared the three warrants invalid  and set them aside on the basis that they did not stipulate the offence.

In Minister for Safety and Security v G W van der Merwe and Others, the Constitutional Court was required to adjudicate whether the search and seizure warrants issued in terms of section 21 of the Criminal Procedure Act were valid or not.

The SAPS caused search and seizure warrants to be issued by a magistrate in Cape Town. The search warrants did not specify the offences which Van der Merwe and others were alleged to have committed and, as a result, those warrants were set aside as invalid by both the High Court and the Supreme Court of Appeal.

In terms of section 74D of the Income Tax Act, 1962, the Commissioner may approach a judge of the High Court for the issue of a search and seizure warrant, whereby the Commissioner’s officials may then search premises and seize records without prior announcement. In Van der Merwe’s case the Criminal Investigations Unit of the South African Revenue Service (SARS) suspected that Van der Merwe and others had committed financial irregularities and were involved in criminal activities. 


Therefore, SARS collaborated with the Director of Public Prosecutions and SARS caused the Commercial Branch of SAPS to investigate possible violations of the act, fraudulent claims in contravention of the Value-Added Tax Act, and moneylaundering.

The SAPS was, therefore, assigned the case for investigation and when the need arose for search and seizure operations to be conducted at premises linked to Van der Merwe and others, SAPS officials and employees of SARS deposed to affidavits in support of the issuing of search and seizure warrants in terms of section 21, read with section 20, of the Criminal Procedure Act.

It is important to note that neither the search warrants issued, nor their annexures, specified the offences under investigation, nor did those documents describe the nature of the investigation. Members of SAPS and SARS conducted the search and seizure operations in terms of the warrants issued by the magistrate in Cape Town and removed several items from the targeted premises.

Van der Merwe and others chose to challenge the validity of the warrants in the Western Cape High Court on the basis that the suspected offences were not stipulated in the search warrants and that the magistrates failed to apply their minds to the applications for the warrants, and this rendered the warrants fatally defective in law. 


The High Court declared the three Cape Town warrants invalid and set them aside on the basis that they did not stipulate the offence. The Minister was dissatisfied with the decision of the High Court and took the matter on appeal. The Supreme Court of Appeal upheld the decision of the High Court in respect of the Cape Town search warrants.

The Minister was unhappy with the decision and approached the Constitutional Court for leave to appeal. The Constitutional Court held that the application dealt with a constitutional issue and that it was in the interests of justice for the court to pronounce on the validity of the search warrants in question and whether the search and seizure warrants should specify the offence to which the search relates.

Under the provisions of the Criminal Procedure Act, a person, subjected to a search and seizure warrant, is entitled to a copy of the warrant only after the search has been completed. The Constitutional Court indicated that it had not previously been required to consider the validity of search and seizure warrants issued in terms of sections 20 and 21 of the Criminal Procedure Act. The Constitutional Court pointed out that warrants issued in terms of section 21 of the Criminal Procedure Act are important tools used by SAPS in carrying out their constitutional mandate of preventing, combating and investigating crime.


However, the Constitutional Court also recognised that by using search and seizure warrants, those warrants inevitably interfere with the constitutional rights of individuals and, therefore, safeguards must be in place to ameliorate the affect of any interference arising out of the exercise of such warrants.

The Constitutional Court referred to the intelligibility requirement for a valid search and seizure warrant and pointed out that it is a principle derived from the common law introduced by the Courts and is quite separate and distinct from the statutory requirements in the Criminal Procedure Act.

Intelligibility requires that the police officer exercising the search warrant understands the authority in the warrant in order to enable him or her to carry out the duty required, and also that the searched person understands the reasons for the invasion of their privacy.

The court pointed out that none of the warrants issued by the Cape Town magistrate disclosed the offences which Van der Merwe and others were alleged to have been guilty of. Therefore, the Constitutional Court held that the search and seizure warrants issued to the SAPS to conduct a search and seizure operation against Van der Merwe and others were invalid due to the failure to comply with the offence specification requirement.

In terms of section 74D of the act, the Commissioner may, in certain prescribed cases, seek the issue of a search and seizure warrant from a judge of the high court.

Section 74D(4) of the act specifically requires that any warrant issued under the provision must refer to the alleged noncompliance or offence in relation to which the warrant is issued.

SARS, in ensuring that taxpayers comply with the obligations they face under the fiscal laws of SA, may apply for a search and seizure warrant under section 74D of the act or, alternatively, hand the matter over to the SAPS, where it is a criminal matter, and rely on the SAPS to procure a warrant under sections 20 and 21 of the Criminal Procedure Act. It is important though that any warrant issued complies with the requirement specified in the judgment of the Court in Minister for Safety and Security v GW van der Merwe and Others.

It is clear that strict rules are in place as to the requirements for a valid search and seizure warrant. In light of the decision of Magajane v Chairperson Northwest Gambling Board and Others, it is debatable whether the power conferred on SARS in the Tax Administration Bill to conduct a warrantless search is valid under the Constitution.
Dr Beric Croome is a tax executive at ENS. This article first appeared in Business Day, Business Law & Tax Review, 11 July 2011. Free Image from ClipArt

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