Rethinking the search and seizure powers of officers in terms of Customs and Excise legislation

Abstract

This contribution is an analysis of the warrantless search and seizure powers provided for in terms of customs and excise legislation. This research evaluates whether the aforesaid powers infringe on the right to privacy, specifically with regard to the inner sanctum. The scope and purpose of the right to privacy is analysed to determine what could constitute an unlawful search and seizure, specifically considering the warrant requirement. To determine whether there is a limitation or infringement of the right to privacy, the limitation analysis in terms of section 36 of the Constitution of the Republic of South Africa, 1996 (hereinafter the Constitution) is applied. This dissertation is aimed at establishing whether the proposed new customs and excise legislation of South Africa is constitutionally sound. The research also includes a comparative analysis of the search and seizure powers enshrined in various pieces of fiscal legislation and in terms of the customs and excise legislation of neighbouring countries to determine how they provide for search and seizure operations to be conducted. This research concludes with a finding that the current and the future search and seizure powers are not in line with the Constitution and suggests that a universal model for search and seizure powers should be established in order to protect the right to privacy.