IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA CONSTITUTION HILL
CCT CASE NO: CCT56/13
In the matter between:
PATRICK LORENZ MARTIN GAERTNER First Applicant
RORY CHARLES KLEMP Second Applicant
ORION COLD STORAGE (PTY) LTD Third Applicant
and
THE MINISTER OF FINANCE First Respondent
THE COMISSIONER:
SOUTH AFRICAN REVENUE SERVICES Second Respondent THE CONTROLLER OF CUSTOMS: CAPE TOWN Third Respondent
A P P L I C A N T S ’ P R A C T I C E N O T E
(a) The names of the parties and the case number
The names of the parties and the case number appear above.
(b) The nature of the proceedings
(i) This application follows the ruling by the Western Cape High Court (“the High Court”) in which the High Court declared sub-paras (i) and (ii) of the Customs and Excise Act 91 of 1964 (“the Act”) and ss 4(4)(b), 4(5) and 4(6) to be inconsistent with the Constitution and invalid. Such declaration being suspended for a period of 18 months to afford the legislature an opportunity to amend the offending provision.
2 The High Court has made provision for temporary relief by means of an interim reading-in of the offending provisions.
(ii) In this Court, the Applicant’s seek: (a) confirmation of the High Court ruling in respect of the declaration of inconsistency and invalidity; (b) confirmation of the suspension of the declaration; and (c) confirmation of the interim reading-in provision subject to the exclusion of certain words.
(c) The issues to be argued
(i) Whether or not the declaration that sub-paras (i) and (ii) and ss 4(4)(b), 4(5) and 4(6) of the Act are to be confirmed as being inconsistent and invalid with the Constitution.
(ii) If the High Court order of inconsistency and invalidity is so confirmed, then whether or not:
(a) such declaration should be suspended for a period of 18 months;
(b) the interim reading-in provision ordered by the High Court be confirmed subject to the deletion of the part thereof which would permit warrantless targeted searches of designated premises in all circumstances.
(d) Portions of the record in the opinion of counsel necessary for the determination of the matter
The whole record is relevant for the determination of the matter.
(e) Estimation of duration of oral argument
(i) It is estimated that oral argument will not take more than one day.
(ii) The allocation of times between the parties will be as agreed between the parties and/or otherwise directed by the Chief Justice.
3 (f) Summary of the argument
The Respondents do not oppose the High Court order involving the decelaration of invalidity of sub-paras (i) and (ii) and ss 4(4)(b), 4(5) and 4(6) of the Act, nor do they oppose suspension of the said declaration.
The Applicant’s will however argue that the reading-in as per the court order be confirmed subject to the exclusion of the following words:
“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”.
The Applicants will argue that confirmation of the reading-in subject to the exclusion of the said words is necessary for the reason being that disregard to the requested exclusion will have the effect that parties, such as the Applicant, may be subject to targeted non-routine searches of their offices (not being designated premises) without SARS having a reasonable belief for doing so and without a warrant, in any and all circumstances. The Applicants will submit that permitting officials to determine and execute a search – which limits the right to privacy – on anything less than a reasonable suspicion, even in relation to designated premises, cannot be constitutionally countenanced.
Furthermore, the Applicants will argue that the investigation of crime is a function performed by SARS. Whether it is held that the investigation of crime is in fact a function of SARS, or whether the power to conduct searches in order to ascertain whether there has been non-compliance with the Act simply has the same effect; that searches aimed at criminal prosecution require that a warrant be obtained.
(g) List of authorities on which particular reliance will be placed:
1. Magajane v Chairperson, North West Gambling Board 2006 (5) SA 250 (CC)
2. Mistry v Interim Medical and Dental Council of South Africa 1998 (4) SA 1127 (CC)
4 ANTON KATZ SC
MARILENA IOANNOU
Counsel for the Applicants
27 June 2013 Chambers Cape Town