Bechan and Another v SARS Customs Investigations Unit and Others (19626/2022) [2022] ZAGPPHC 259; 84 SATC 413 (28 April 2022)

Bechan and Another v SARS Customs Investigations Unit and Others (19626/2022) [2022] ZAGPPHC 259; 84 SATC 413 (28 April 2022)

The court found that SARS lawfully deprived Mr. Bechan of possession of the items seized from his vehicle in the execution of a warrant issued under the Tax Administration Act. Although Mr. Bechan disputed the circumstances of the seizure and denied voluntary relinquishment of possession, the court accepted SARS's version, supported by contemporaneous photographic evidence and the involvement of law enforcement. The warrant, read with section 62 of the Act, authorised SARS to search vehicles on the premises and seize relevant material. The mandament van spolie is not available as a remedy where dispossession is lawful, and the applicants failed to follow the statutory procedure for return...

Citation
[2022] ZAGPPHC 259
Parties
Applicant: Kapeel Bechan; Applicant: Bechan Consulting (Pty) Ltd; Respondent: SARS Customs Investigations Unit; Respondent: SARS Tactical Investigations Unit; Respondent: Tanya Potgieter – SARS Illicit Economy Unit; Respondent: Lindiwe Shibindi – Tactical Investigations Unit; Respondent: Minister of Police; Respondent: Hawks Special Investigation Unit
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
28 April 2022
Case Number
19626/2022
Procedural Posture
Urgent Application / Application for Mandament Van Spolie and Return of Seized Property
Outcome
Application dismissed with costs awarded against the applicants jointly and severally.
Judges
Millar
Legal Topics
Mandament Van Spolie, Tax Administration Act Section 62, Search and Seizure, Return of Seized Property, Lawful Execution of Warrant
Civil Procedure Tax Law Administrative Law Mandament Van Spolie Tax Administration Act Section 62 Search and Seizure Return of Seized Property Lawful Execution of Warrant

Case Brief

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Parties

Kapeel Bechan

Applicant

Bechan Consulting (Pty) Ltd

Applicant

SARS Customs Investigations Unit

Respondent

SARS Tactical Investigations Unit

Respondent

Tanya Potgieter – SARS Illicit Economy Unit

Respondent

Lindiwe Shibindi – Tactical Investigations Unit

Respondent

Minister of Police

Respondent

Hawks Special Investigation Unit

Respondent

Procedural Posture

Urgent Application / Application for Mandament Van Spolie and Return of Seized Property

Legal Issues

  1. 1 Whether the mandament van spolie is available as a remedy to defeat the execution of a lawfully issued warrant.
  2. 2 Whether SARS lawfully deprived the applicants of possession of the items seized from the vehicle.
  3. 3 Whether the correct procedure for return of seized property under section 66 of the Tax Administration Act was followed.

Ratio Decidendi

The court found that SARS lawfully deprived Mr. Bechan of possession of the items seized from his vehicle in the execution of a warrant issued under the Tax Administration Act. Although Mr. Bechan disputed the circumstances of the seizure and denied voluntary relinquishment of possession, the court accepted SARS's version, supported by contemporaneous photographic evidence and the involvement of law enforcement. The warrant, read with section 62 of the Act, authorised SARS to search vehicles on the premises and seize relevant material. The mandament van spolie is not available as a remedy where dispossession is lawful, and the applicants failed to follow the statutory procedure for return...

Court Disposition

Application dismissed with costs awarded against the applicants jointly and severally.

Orders

  • The application is dismissed.
  • The First and Second Applicants are ordered to pay the costs of the application jointly and severally.