Gaertner and Others v Minister of Finance and Others (CCT 56/13) [2013] ZACC 38; 2014 (1) SA 442 (CC); 2014 (1) BCLR 38 (CC); 76 SATC 69 (14 November 2013)

Gaertner and Others v Minister of Finance and Others (CCT 56/13) [2013] ZACC 38; 2014 (1) SA 442 (CC); 2014 (1) BCLR 38 (CC); 76 SATC 69 (14 November 2013)

Sections 4(4)(a)(i)-(ii), 4(4)(b), 4(5) and 4(6) of the Customs and Excise Act authorise warrantless searches of any premises, including private homes, at any time and without reasonable suspicion, which constitutes a significant limitation of the right to privacy under section 14 of the Constitution. While the customs and excise industry is closely regulated and participants have a diminished expectation of privacy in business premises, the Act's provisions are overbroad and do not distinguish between business and private premises, nor do they provide adequate guidance or safeguards. The limitation is not justified under section 36, as less restrictive means, such as requiring warrants...

Citation
[2013] ZACC 38
Parties
Applicant: Patrick Lorenz Martin Gaertner; Applicant: Rory Charles Klemp; Applicant: Orion Cold Storage (Pty) Ltd; Respondent: Minister of Finance; Respondent: Commissioner: South African Revenue Service; Respondent: Controller of Customs: Cape Town
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
14 November 2013
Case Number
CCT 56/13
Procedural Posture
Constitutional Confirmation / Confirmation of High Court Declaration of Invalidity
Outcome
Declaration of constitutional invalidity of sections 4(4)(a)(i)-(ii), 4(4)(b), 4(5) and 4(6) of the Customs and Excise Act confirmed; invalidity not retrospective; suspension of invalidity for six months; interim reading-in remedy ordered; costs awarded to applicants.
Judges
Madlanga, Mogoeng, Moseneke, Cameron, Froneman, Jafta, Mhlantla, Nkabinde, Skweyiya, Van der Westhuizen, Zondo
Legal Topics
Right to Privacy, Search and Seizure, Limitation of Rights, Customs and Excise Act, Reading in Remedy, Suspension of Invalidity
Constitutional Law Tax Law Civil Procedure Right to Privacy Search and Seizure Limitation of Rights Customs and Excise Act Reading in Remedy +1 more

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Parties

Patrick Lorenz Martin Gaertner

Applicant

Rory Charles Klemp

Applicant

Orion Cold Storage (Pty) Ltd

Applicant

Minister of Finance

Respondent

Commissioner: South African Revenue Service

Respondent

Controller of Customs: Cape Town

Respondent

Procedural Posture

Constitutional Confirmation / Confirmation of High Court Declaration of Invalidity

Legal Issues

  1. 1 Do sections 4(4)(a)(i)-(ii), 4(4)(b), 4(5) and 4(6) of the Customs and Excise Act unjustifiably limit the right to privacy under the Constitution.
  2. 2 Is the limitation of privacy by these provisions justified under section 36 of the Constitution?
  3. 3 Should the declaration of invalidity be retrospective?

Ratio Decidendi

Sections 4(4)(a)(i)-(ii), 4(4)(b), 4(5) and 4(6) of the Customs and Excise Act authorise warrantless searches of any premises, including private homes, at any time and without reasonable suspicion, which constitutes a significant limitation of the right to privacy under section 14 of the Constitution. While the customs and excise industry is closely regulated and participants have a diminished expectation of privacy in business premises, the Act's provisions are overbroad and do not distinguish between business and private premises, nor do they provide adequate guidance or safeguards. The limitation is not justified under section 36, as less restrictive means, such as requiring warrants...

Court Disposition

Declaration of constitutional invalidity of sections 4(4)(a)(i)-(ii), 4(4)(b), 4(5) and 4(6) of the Customs and Excise Act confirmed; invalidity not retrospective; suspension of invalidity for six months; interim reading-in remedy ordered; costs awarded to applicants.

Orders

  • The declaration of constitutional invalidity of sections 4(4)(a)(i)-(ii), 4(4)(b), 4(5) and 4(6) of the Customs and Excise Act 91 of 1964 made by the Western Cape High Court, Cape Town is confirmed.
  • The declaration of invalidity is not retrospective.