On November 14, the Constitutional Court released a judgment on sections 4(4) to 4(6) of the Customs and Excise Act, 1964, which relate to the “general duties and powers of officers”.

Section 4(4) states: “. . . an officer may, for the purposes of this Act, (i) without previous notice, at any time enter any premises whatsoever and make such examination and enquiry as he deems necessary; (ii) while he is on the premises or at any other time require from any person the production then and there, or at a time and place fixed by the officer, of any book, document or thing which by this Act is required to be kept or exhibited or which relates to or which he has reasonable cause to suspect of relating to matters dealt with in this Act and which is or has been on the premises or in the possession or custody or under the control of any such person or his employee.”

Section 4(5) states: “Any person in connection with whose business any premises are occupied or used and any person employed by him shall at any time furnish such facilities as may be required by the officer for entering the premises and for the exercise of his powers under this section.”

Section 4(6) states: “. . . (a) if an officer, after having declared his official capacity and his purpose and having demanded admission into any premises, is not immediately admitted, he and any person assisting him may at any time, but at night only in the presence of a member of the police force, break open any door or window or break through any wall on the premises for the purpose of entry and search. (b) An officer or any person assisting him may at any time break up any ground or flooring on any premises for the purpose of search and if any room, place, safe, chest, box or package is locked and the keys thereof are not produced on demand, may open such room, place, safe, chest, box or package in any manner.”

According to the judgment, the impugned provisions of the Act dates back to the commencement of the Act (January 1, 1965) a time when wide powers were “conferred upon the police to enter homes without a search warrant at all times to enforce the law . . .”

In the case Gaertner and Others v Minister of Finance and Others, heard in the Western Cape High Court, it was held that sections 4(4)(a)(i) and (ii), 4(4)(b), 4(5) and 4(6) of the Act are inconsistent with the Constitution and these were declared invalid. According to the judgment, the declaration was ordered not to be retrospective and suspended for a period of 18 months to afford the Legislature an opportunity to make remedial changes. The judgment indicated that, in order not to create a lacuna (an unfilled space/gap or interval) in the legislative scheme and purpose served by the affected provisions, the High Court read in certain provisions.

The Constitutional Court’s judgment was a result of the applicants seeking confirmation of the High Court’s declaration of invalidity.

In accordance with the Constitutional Court’s judgment, the following order was made: The declaration of the constitutional invalidity of sections 4(4)(a)(i) and (ii), 4(4)(b), 4(5) and 4(6) of the Customs and Excise Act made by the Western Cape High Court was confirmed, but the declaration of invalidity is not retrospective. The order is suspended for six months to afford the Legislature an opportunity to cure the invalidity.

During the period of suspension, Section 4(4) of the Act will be deemed to read as follows, what is in italics being the reading-in: “(4) (a) An officer may, for the purposes of this Act, (i) without previous notice, at any time enter any premises, except a private residence, and make such examination and enquiry as he deems necessary; (ii) while he is on the premises or at any other time require from any person the production then and there, or at a time and place fixed by the officer, of any book, document or thing which by this Act is required to be kept or exhibited or which relates to or which he has reasonable cause to suspect of relating to matters dealt with in this Act and which is or has been on the pre- mises or in the possession or custody or under the control of any such person or his employee; (iii) at any time and at any place require from any person who has or is believed to have the possession or custody or control of any book, document or thing relating to any matter dealt with in this Act, the production thereof then and there, or at a time and place fixed by the officer; and (iv) examine and make extracts from and copies of any such book or document and may require from any person an explanation of any entry therein and may attach any such book, document or thing as in his opinion may afford evidence of any matter dealt with in this Act. (b) An officer may take with him on to any premises an assistant or a member of the police force. (c) Premises that are a private residence may be entered by an officer in terms of paragraph (a) only on the authority of a warrant issued by a magistrate or judge. (d) A magistrate or judge may issue a warrant referred to in paragraph (c) only on written application by an officer setting out under oath or affirmation the grounds why it is necessary for an officer to gain access to the rele- vant premises. (e) The magistrate or judge may issue the warrant referred to in para- graph (c) if it appears from information on oath or affirmation that – (i) there are reasonable grounds for suspecting that a contravention of the Act has occurred; (ii) a search of the premises is likely to yield information pertaining to such contravention; and (iii) the search is reasonably necessary for the purposes of the Act. (f) An officer may enter and search a private residence without the warrant referred to in paragraph (c) if – (i) the officer on reasonable grounds believes – (aa) that a warrant would be issued in terms of paragraph (c) if the officer applied for it; and (bb) that the delay in obtaining the warrant is likely to defeat the object of the search.
(5) The respondents are ordered, jointly and severally, to pay the applicants’ costs, including costs of two counsel.”