Critical assessment of the constitutionality of the South African customs legislation

LLM (Import & Export Law), North-West University, Potchefstroom CampusBefore 1994, most if not all pieces of legislation were subject to the sovereignty of Parliament and the law enforcement powers of the executive, which enabled the development of the authoritarian and oppressive system of the apartheid era. The Customs and Excise Act 91 of 1964, hereinafter referred to as CEA, is a piece of legislation thought to be very critical in the promotion of international trade, but it could be a serious stumbling block if its provisions and application were the subject of constitutional scrutiny and found to be not constitutionally compliant. The Constitution of the Republic of South Africa, 1996, hereinafter referred to as the Constitution has created a democratic state based on the supremacy of the Constitution, the rule of law and the Bill of Rights, amongst other values. The Bill of Rights protects the fundamental rights of individuals when they are dealing with organs of the state, which includes members of the police services and to a certain extent Customs officers. For purposes of this dissertation, focus will be more on conduct of the Customs officers when executing their roles at ports of entry and/or exit, and during inspections in what is commonly known as pre-entry facilities like Bonded Warehouses. Before the advent of the Constitution, the CEA was silent about the searches to be conducted and goods to be seized without due regard to the right to privacy of the persons being searched. In the instance of the seizure of the goods, without providing such a person the right to state his/her case in terms of the provision of the Promotion of Administrative Justice Act 3 of 2000, hereinafter referred to as PAJA. Since the enactment of the Constitution there have been additional constraints on search and seizure powers. Not only are there now constitutionalised standards against which such legal powers are measured, but there is also the possibility of excluding evidence obtained in the course of a violation of a constitutional right. In the light thereof, the CEA could not withstand the constitutional attacks it has encountered, given that most of the decisions against the Commissioner have also demanded of him to amend the provisions of the Act in question. Although the Tax Administration Act 28 of 2011, hereinafter referred to as TAA (also administered by Commissioner of SARS) is considered as progressive, it is arguably also not fully constitutionally compliant. This dissertation will therefore focus on issues that led not to the amendment of the CEA but to the total overhaul thereof, even to the extent of giving it new titles, which according to me make it more progressive and business-friendly than the current Act.Master