Bullion Star (Pty) Ltd v Commissioner for the South African Revenue Service (18176/2022) [2024] ZAGPPHC 184 (2 February 2024)

Bullion Star (Pty) Ltd v Commissioner for the South African Revenue Service (18176/2022) [2024] ZAGPPHC 184 (2 February 2024)

The court found that the warrant issued to SARS was overly broad and did not comply with the requirements of section 60(1) of the Tax Administration Act. The warrant authorised SARS to search for and seize a wide range of documents and items not supported by the facts presented in the founding affidavit, including unfettered access to private residences. The court held that SARS failed to explain the basis for the scope of the warrant and did not adequately limit the search to items relevant to the investigation. The issuing of the warrant was therefore unlawful, and the court set it aside. The court further ordered the return of all seized items, destruction of all records made from the...

Citation
[2024] ZAGPPHC 184
Parties
Applicant: Bullion Star (Pty) Ltd; Respondent: Commissioner for the South African Revenue Service
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
2 February 2024
Case Number
18176/2022
Procedural Posture
Review Application / Application for Reconsideration and Setting Aside of Ex Parte Search and Seizure Warrant
Outcome
Application granted. The warrant issued to SARS is set aside. SARS is ordered to return all seized items, destroy all records made from the seized information, and is interdicted from using any information obtained through the warrant. Costs awarded against SARS, including costs of two counsel.
Judges
N Janse Van Nieuwenhuizen
Legal Topics
Search and Seizure, Tax Administration Act, Ex Parte Applications, Judicial Discretion, Vat Refunds
Tax Law Civil Procedure Search and Seizure Tax Administration Act Ex Parte Applications Judicial Discretion Vat Refunds

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Parties

Bullion Star (Pty) Ltd

Applicant

Commissioner for the South African Revenue Service

Respondent

Procedural Posture

Review Application / Application for Reconsideration and Setting Aside of Ex Parte Search and Seizure Warrant

Legal Issues

  1. 1 Whether the ex parte warrant issued to SARS for search and seizure complied with section 60(1) of the Tax Administration Act.
  2. 2 Whether SARS disclosed all material facts and acted in utmost good faith in its ex parte application.
  3. 3 Whether the warrant was overly broad and authorised seizure of items not supported by the founding affidavit.

Ratio Decidendi

The court found that the warrant issued to SARS was overly broad and did not comply with the requirements of section 60(1) of the Tax Administration Act. The warrant authorised SARS to search for and seize a wide range of documents and items not supported by the facts presented in the founding affidavit, including unfettered access to private residences. The court held that SARS failed to explain the basis for the scope of the warrant and did not adequately limit the search to items relevant to the investigation. The issuing of the warrant was therefore unlawful, and the court set it aside. The court further ordered the return of all seized items, destruction of all records made from the...

Court Disposition

Application granted. The warrant issued to SARS is set aside. SARS is ordered to return all seized items, destroy all records made from the seized information, and is interdicted from using any information obtained through the warrant. Costs awarded against SARS, including costs of two counsel.

Orders

  • The warrant issued on 28 March 2022 is set aside.
  • The respondent is ordered to forthwith return each and every item seized and removed during the search and seizure operation to the premises from which they were seized.