Gaertner and Others v Minister of Finance and Others

The applicants were directors and a company (Orion Cold Storage (Pty) Ltd) operating bonded cold storage warehouses licensed under the Customs and Excise Act 91 of 1964. Following a civil dispute between Orion and a Canadian supplier, SARS suspected under‑declaration of customs duties. Without obtaining warrants, SARS officials conducted extensive searches over several days at Orion’s business premises, offices, computers and safes, and subsequently at the private home of the first applicant. Entry and exit were controlled, data was copied, documents seized, and personal belongings searched, including family computers. SARS relied on section 4 of the Customs and Excise Act, which authorised warrantless searches. The applicants challenged the constitutionality of section 4 insofar as it permitted targeted, non‑routine searches without a warrant and sought declaratory relief.

The declaration of constitutional invalidity of sections 4(4)(a)(i), 4(4)(b), 4(5) and 4(6) of the Customs and Excise Act was confirmed, subject to limitations articulated by the Court. The declaration was not retrospective and was suspended for 18 months to allow Parliament to amend the Act. An interim reading‑in applied during the period of suspension, regulating searches and requiring warrants for non‑routine searches, with limited exceptions.

This case is a leading authority on the constitutionality of warrantless searches in regulatory and revenue‑collection contexts. It clarified the distinction between routine inspections in regulated industries and targeted enforcement searches, reinforced the centrality of privacy and dignity under the Constitution, and constrained the powers of SARS and other regulators. The judgment has influenced subsequent legislation and jurisprudence on search, seizure and administrative enforcement powers.