The Constitutional Court (South Africa) handed down judgment in the Gaertner & Orion Cold Storage matter today on the unconstitutionality of certain parts of section 4 of the Customs and Excise Act, 1964.

Section 4(4)-(6) had been challenged in the Western Cape High Court in April 2013 and the matter was taken to the Constitutional Court to be challenged further.

The issue before Court was that SARS conducted a search in terms of section 4 at the third applicant’s premises (Orion Cold Storage (OCS)) and at the house of Mr Gaertner, a director of OCS.

The Act does not require SARS officials to obtain a warrant before a search is conducted and the Applicants launched the proceedings in the High Court in which they sought, and were granted, orders declaring parts of section 4 unconstitutional to the extent that they permit targeted non-routine searches without judicial warrant.

The Applicants argued in the Constitutional Court that section 4 is over broad in that it allows for non-routine or targeted searches by SARS without a warrant.

Briefly, the Constitutional Court order provides that –

• 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 however not retrospective.
• The order is suspended for six months to afford the Legislature an opportunity to cure the invalidity.
• The Constitutional Court also instructed that during the period of suspension, section 4(4) of the Customs and Excise Act must be applied in accordance with alternative wording.

To access the Constitutional Court judgement (November 2013), Click Here!

To access the Western Cape High Court judgement (April 2013), Click Here!