Judgment summary
Alliance Fuel (Pty) Ltd brought an urgent application against the Commissioner for the South African Revenue Service and a SARS official, Mr Alfred Mthimunye, following search and seizure operations carried out at the applicant's premises in Louis Trichardt on 10 July 2024 [1].
The application sought an order compelling SARS to provide copies of the ex parte applications used to obtain the search warrants, as well as interim interdictory relief preventing further searches and prohibiting the use of seized materials [2].
The court held that SARS was legally obliged under Rule 55(3)(e) of the Magistrates' Courts Rules to serve copies of the ex parte applications on the applicant, that the applicant had established the requirements for urgent interim interdictory relief, and that SARS was not entitled to conduct further searches beyond the date specified in the warrants without fresh court authorisation [16.2, 17.6, 18.3].
The application was granted as one of urgency, with costs awarded against the respondents on the attorney-client scale, jointly and severally [26].
Background
On 3 and 4 July 2024, SARS obtained search warrants from the Louis Trichardt Magistrates Court ex parte, in terms of section 4(4)(d) of the Customs and Excise Act 91 of 1964 and sections 59 and 60 of the Tax Administration Act 28 of 2011 [4].
The warrants authorised SARS to search the applicant's premises in Louis Trichardt. SARS executed the warrants on 10 July 2024, seizing various items including an employee's personal cell phone [5].
From 11 July 2024, the applicant's attorney, Mr Mayet, made numerous requests for copies of the ex parte applications. SARS initially refused, stating that the relevant affidavits had been considered by the court that issued the warrants [6].
On 13 July 2024, SARS's attorneys informed the applicant of an intention to conduct a further operation at the applicant's premises on 15 July 2024, despite the warrants expressly confining execution to 10 July 2024 [7].
The applicant launched the urgent application on 15 July 2024 [8]. SARS eventually furnished a copy of the ex parte application a day or two before the hearing of the matter [9].
Core dispute
The dispute centred on three issues: whether SARS was obliged to furnish the applicant with copies of the ex parte applications used to obtain the search warrants; whether the applicant had established grounds for urgent interim interdictory relief pending provision of those applications and determination of a reconsideration application; and whether SARS was entitled to conduct further searches beyond the date specified in the warrants [10].
SARS contended initially that it was not obliged to provide the ex parte applications because a competent court had already considered and issued the warrants [16.1]. The applicant argued that Rule 55(3)(e) of the Magistrates' Courts Rules imposed a peremptory obligation to serve those documents, and that SARS's refusal and its intention to conduct further searches beyond the warrant date were unlawful [16.2, 18.1].
Court findings
The court found that Rule 55(3)(e) of the Magistrates' Courts Rules imposed an explicit and peremptory obligation on SARS to serve copies of the ex parte applications and supporting affidavits on the applicant, independently of the magistrate's prior consideration of those applications [16.2].
The court held that SARS's initial refusal to provide the applications frustrated the applicant's constitutional right of access to courts under section 34 of the Constitution, and effectively denied the applicant a fair opportunity to challenge the warrants [16.4].
The court was satisfied that the applicant had established all four requirements for urgent interim interdictory relief: a prima facie right under Rule 55(3)(e) bolstered by the constitutional right of access to courts; a well-grounded apprehension of irreparable harm arising from SARS's possession of seized materials and stated intention to conduct further operations; a balance of convenience favouring the grant of relief; and no other satisfactory remedy available [17.2, 17.3, 17.4, 17.5].
The court further found that, because the warrants expressly confined execution to 10 July 2024, SARS's intention to conduct further operations on 15 July 2024 was prima facie unlawful, and that SARS was not entitled to conduct further searches beyond the date specified in the warrants without obtaining fresh authorisation from a court [18.1, 18.3].
The court noted that SARS, as an organ of state, has a higher duty to respect the law, fulfil procedural requirements and tread carefully when dealing with rights, and that its initial refusal fell short of that standard [16.5].
Outcome
The application was granted as one of urgency in terms of Rule 6(12) of the Uniform Rules of Court [26.1].
The court noted that SARS had by then furnished the applicant with copies of the ex parte applications, including all supporting affidavits, used to obtain the warrants issued on 3 and 4 July 2024 [26.2].
Pending the final determination of an application for reconsideration of the warrants to be brought in the Louis Trichardt Magistrates Court, the respondents were interdicted from conducting any further searches or seizures at the applicant's premises at 0 Bronn Street, Louis Trichardt under those warrants, and from using, for any purpose whatsoever, any materials, information or data seized or obtained during the search conducted on 10 July 2024 [26.3].
The applicant was directed to launch the reconsideration application within ten court days of the order [26.4].
The respondents were ordered to pay the costs of the application on the attorney-client scale, jointly and severally [26.5].
Major issues / areas of contention
- Whether SARS was legally obliged under Rule 55(3)(e) of the Magistrates' Courts Rules to furnish the applicant with copies of the ex parte applications and supporting affidavits used to obtain the search warrants [10.1, 16.2].
- Whether SARS's initial refusal to provide the ex parte applications infringed the applicant's constitutional right of access to courts under section 34 of the Constitution [16.4].
- Whether the applicant satisfied the four requirements for urgent interim interdictory relief, including a prima facie right, apprehension of irreparable harm, balance of convenience and absence of another satisfactory remedy [10.2, 17.1].
- Whether SARS was entitled to conduct further search and seizure operations at the applicant's premises on 15 July 2024 when the warrants expressly confined execution to 10 July 2024 [10.3, 18.1].
- Whether the late provision of the ex parte applications by SARS remedied its earlier non-compliance [9, 16.6].
- The appropriate scale of costs, with the court awarding costs on the attorney-client scale against the respondents jointly and severally [26.5].