It is a long known fact that Customs has being able to do just about anything when it comes to searches. The only requirements for them were that it had to be Customs related, legal and within reason.
Customs was able to enter any building, request any document, conduct any search, and to open any records. They were and still are able to use force (including breaking and entering) within reason to gain access to products or information. All of this was allowed with no recourse by the property owner. In fact, till recently the Customs authorities were considered to be the one organ of state with the most powerful and far reaching powers of duties; more powerful than any police or public service no matter how special. Why, you may ask? Well, in the past, Customs did not need to provide written reasons for a search, nor were they required to produce a search warrant.
While Customs is still able to do all of this, today they can no longer do so at free will. So what has changed?
Firstly, PAJA (Promotion of Administrative Justice Act) number 3 of 2000 was enacted. Without regurgitating the contents of the legislation, the basic premise according to the Act is… “To give effect to the right to administrative action that is lawful, reasonable and procedurally fair and the right to written reasons for administrative action as contemplated in section 33 of the Constitution”. It basically means that prior to any administrative action taken by any Governmental agency including SARS Customs (i.e. not limited only to searches) that you have the right to be given reasons thereof, in writing. It also means that you have the right to be heard and to provide representations prior adherence to any administrative action. The following blogs will delve into the procedures that are generally followed by Customs which enable them to be administratively fair.
Secondly, it has to do with a legislative change which took place recently. The reasons for the legislative change came about as a result of a court action issued in the Western Cape. The court held that for searches to be constitutionally fair, a search warrant must, within reason, be obtained by the Customs authorities prior to any search. The old and the new Customs legislation now contain extensive clauses relating to search warrants. This includes all activities outside of a CCA (Customs Controlled Area), and outside of a Customs registered or licenced premises or a person. Warrantless access may still be gained upon reasonable explanation by Customs to the property owner. Explanations for such warrantless access must entail any real suspicion of breach of the legislation but where waiting for a warrant may take too long.
But searches are different from simple requests by Customs for you to produce documents. In so doing they may visit your premises. There is therefore no reason why one should not allow Customs access in the ordinary course of business, so long as it is reasonable.