Gaertner and Others v Minister of Finance and Others (12632/12) [2013] ZAWCHC 54; 2013 (6) BCLR 672 (WCC); 2013 (4) SA 87 (WCC); [2013] 3 All SA 159 (WCC); 75 SATC 184 (8 April 2013)

Gaertner and Others v Minister of Finance and Others (12632/12) [2013] ZAWCHC 54; 2013 (6) BCLR 672 (WCC); 2013 (4) SA 87 (WCC); [2013] 3 All SA 159 (WCC); 75 SATC 184 (8 April 2013)

Sections 4(4) to 4(6) of the Customs and Excise Act 91 of 1964 are unconstitutional to the extent that they permit warrantless, targeted (non-routine) searches of premises other than designated facilities (such as licensed warehouses, rebate stores, and pre-entry facilities) without judicial authorisation. The right to privacy under section 14 of the Constitution is a fundamental right, and its limitation by statutory search powers must be justified under section 36. While routine, random inspections of regulated businesses may be conducted without a warrant due to the attenuated expectation of privacy, targeted searches based on suspicion require judicial oversight except at designated...

Citation
[2013] ZAWCHC 54
Parties
Applicant: Patrick Lorenz Martin Gaertner; Applicant: Klemp; Applicant: OCS; Respondent: Minister of Finance; Respondent: Commissioner: SARS; Respondent: Fourth to Tenth SARS Officials
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
8 April 2013
Case Number
12632/12
Procedural Posture
Constitutional Application / First Instance Judgment
Outcome
Sections 4(4)(i), 4(4)(ii), 4(4)(b), 4(5), and 4(6) of the Customs and Excise Act 91 of 1964 are declared inconsistent with the Constitution and invalid, with the declaration suspended for 18 months and an interim reading-in of constitutionally compliant procedures.
Judges
Rogers
Legal Topics
Search and Seizure, Bill of Rights Limitation, Customs and Excise Act, Warrantless Searches, Privacy Rights, Reading in Remedy
Constitutional Law Administrative Law Search and Seizure Bill of Rights Limitation Customs and Excise Act Warrantless Searches Privacy Rights Reading in Remedy

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Parties

Patrick Lorenz Martin Gaertner

Applicant

Klemp

Applicant

OCS

Applicant

Minister of Finance

Respondent

Commissioner: SARS

Respondent

Fourth to Tenth SARS Officials

Respondent

Procedural Posture

Constitutional Application / First Instance Judgment

Legal Issues

  1. 1 Whether sections 4(4) to 4(6) of the Customs and Excise Act 91 of 1964, permitting warrantless searches, are unconstitutional to the extent that they infringe the right to privacy under section 14 of the Constitution.
  2. 2 Whether the impugned provisions can be justified under section 36 of the Constitution as reasonable and justifiable limitations of the right to privacy.
  3. 3 Whether the declaration of invalidity should be suspended and whether retrospective effect is appropriate.

Ratio Decidendi

Sections 4(4) to 4(6) of the Customs and Excise Act 91 of 1964 are unconstitutional to the extent that they permit warrantless, targeted (non-routine) searches of premises other than designated facilities (such as licensed warehouses, rebate stores, and pre-entry facilities) without judicial authorisation. The right to privacy under section 14 of the Constitution is a fundamental right, and its limitation by statutory search powers must be justified under section 36. While routine, random inspections of regulated businesses may be conducted without a warrant due to the attenuated expectation of privacy, targeted searches based on suspicion require judicial oversight except at designated...

Court Disposition

Sections 4(4)(i), 4(4)(ii), 4(4)(b), 4(5), and 4(6) of the Customs and Excise Act 91 of 1964 are declared inconsistent with the Constitution and invalid, with the declaration suspended for 18 months and an interim reading-in of constitutionally compliant procedures.

Orders

  • Sub-paras (i) and (ii) of s 4(4)(a) and ss 4(4)(b), 4(5), and 4(6) of the Customs and Excise Act 91 of 1964 are declared inconsistent with the Constitution and invalid.
  • The declaration is not retrospective and is suspended for 18 months to allow legislative amendment.