CCT CASE NO:
HC CASE NO: 12632/12
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
AFFIDAVIT ON BEHALF OF SECOND AND THIRD RESPONDENTS
I, the undersigned
MARTHA ELIZABETH ODENDAAL
do hereby make oath and state as follows:
1. I am the Senior Manager: Customs and Excise Litigation at the South African Revenue Service (“SARS”). I am duly authorized to oppose this application and to depose to this affidavit on behalf of the second and third respondents.
2. The facts contained in this affidavit are within my personal knowledge, unless otherwise stated. Where I make legal submissions, I do so, on the advice of SARS’s legal representatives, which advice I believe to be correct.
THE ATTITUDE OF SARS TO THE PRESENT APPLICATION
3. The present application arises from the order of the Western Cape High Court, Cape Town in case number 12632/12 on 8 April 2013 (“the High Court order”).
In that order, the High Court declared sub-paragraphs (i) and (ii) of section 4(4)(a), section 4(4)(b), section 4(5) and section 4(6) of the Customs & Excise Act, 91 of 1964 (“the Act”), to be inconsistent with the Constitution and invalid.
4. In the present application, the applicants ask this Court:
4.1. To confirm the declaration of invalidity in paragraph (a) of the High Court order;
4.2. To confirm the suspension of invalidity made in paragraph (b) of the High Court order;
4.3. To vary and then confirm paragraph (c) of the order made by High Court, in terms of which it granted an interim reading-in.
5. SARS does not oppose confirmation of paragraphs (a) and (b) of the order of the High Court.
6. However, SARS does oppose both the confirmation of paragraph (c) of the High Court order and the variation that the applicants contend for. In this regard, I emphasise that SARS has itself appealed to this Court against paragraph (c) of the High Court’s order.
THE APPROACH OF SARS TO PARAGRAPH (C) OF THE HIGH COURT’S ORDER
7. In essence, SARS contends that paragraph (c) of the High Court order should not be confirmed in that:
7.1. The High Court erred in concluding that the investigation of crime is not a SARS function in terms of the Act.
7.2. The High Court erred in concluding that “routine” and “non-routine” searches could be distinguished with sufficient clarity in advance in order to provide for this distinction to be expressly read-in to the Act.
7.3. The High Court erred in granting a reading-in order in a form which:
7.3.1. places significant and undue constraints on SARS’s ability to engage in inspections and searches;
7.3.2. renders such inspections and searches impractical;
7.3.3. is in various respects not sufficiently clear for SARS to comply therewith;
7.3.4. consequently undermines SARS’s ability to properly enforce the Act;
and
7.3.5. goes beyond what was required in order to cure the constitutional defect in the sections concerned.
8. Moreover, the variation of paragraph (c) of the order now contended for by the applicants would exacerbate, rather than resolve, these difficulties.
9. I point out further that a Bill is already in the process of being drafted in order to cure the constitutional defects identified by the High Court in respect of the Act.
9.1. As soon as the Bill is made available for public comments (which has not yet occurred), SARS will seek to place such Bill before this Court and will explain the formulation and approach of the Bill concerned.
9.2. SARS will contend that any order of interim reading-in that is granted by this Court should adopt the approach in the Bill.
10. In relation to costs, the High Court ordered that the respondents’ pay the applicants’ costs. SARS does not contest this. SARS, however, opposes the further costs sought by the applicants in this Court.
____________________________________
MARTHA ELIZABETH ODENDAAL
I certify that:
The deponent signed this affidavit and swore and acknowledged that:
(a) she knew and understood the contents of this affidavit;
(b) she had no objection to taking the prescribed oath; and (c) she considered the oath to be binding on her conscience.
The deponent thereafter uttered the words “I swear that the contents of this declaration are true, so help me God.”
Dated at this day of 2013.
