Warrantless search and seizure by SARS: a constitutional invasion of taxpayers’ privacy? – Part Two

Sec. 63 of the Tax Administration Act 28 of 2011 (TAA) grants officials of the South African Revenue Service (SARS) access to taxpayers’ private and confidential information by, first, searching a taxpayer’s person and premises without a warrant and, secondly, permitting the seizure of taxpayers’ possessions and communications. Part One of this article (see Journal for Juridical Science 2021(1)) argued that the TAA is a “law of general application” as envisaged by the so-called “limitation clause” contained in sec. 36(1) of the Constitution, 1996 and that, in terms of the threshold stage of analysis prescribed by this provision, the exercise of the powers conferred by sec. 63(1) and (4) limits a taxpayer’s constitutional right to privacy as entrenched in sec. 14 of the Constitution. In this Part Two of the article, it will be hypothesised that, although the search and seizure powers in sec. 63(1) and (4) of the TAA are not models of drafting with absolute clarity, they ought, in terms of the second stage of enquiry that is triggered by the findings in Part One, nevertheless to pass muster under sec. 36(1) of the Constitution, because of the justifiability of the limitation imposed on the right to privacy by these provisions.

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IS CYBER SEARCH AND SEIZURE UNDER THE CYBERCRIMES AND CYBERSECURITY BILL CONSISTENT WITH THE PROTECTION OF PERSONAL INFORMATION ACT?

Obiter ◽

10.17159/obiter.v37i3.11529 ◽

2016 ◽

Vol 37 (3) ◽

Author(s):

Melody Musoni

Keyword(s):

Personal Information ◽

The State ◽

Search And Seizure ◽

Right To Privacy ◽

The Right To Privacy ◽

Constitutional Right ◽

The Right

The focus of this note is to analyze whether the Cybercrimes and Cybersecurity Bill provides a harmonization between search and seizure and the constitutional right to privacy. This will be achieved by discussing the State powers of search and seizure in cyberspace vis-à-vis the right to privacy as envisaged in the Protection of Personal Information Act. Further, this note investigates whether the Cybercrimes and Cybersecurity Bill achieves the purpose of combatting cybercrimes without the infringement of the right to privacy. Subsequently, the article provides plausible recommendations on how the State should lawfully conduct searches and seizures of articles related to cybercrimes.

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Warrantless Search and Seizures by the South African Police Service: Weighing up the Right to Privacy versus the Prevention of Crime

Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad ◽

10.17159/1727-3781/2021/v24i0a8153 ◽

2021 ◽

Vol 24 ◽

pp. 1-27

Author(s):

Windell Nortje

Keyword(s):

South Africa ◽

Search And Seizure ◽

Constitutional Court ◽

Right To Privacy ◽

The Right To Privacy ◽

Reasonable Suspicion ◽

The Individual ◽

Search Warrant ◽

Prevention Of Crime ◽

The Right

The constitutional right to privacy is enshrined in section 14 of the Constitution of the Republic of South Africa, 1996. It is premised on the notion that all persons should be protected from intrusions on their privacy by any person or institution. The Constitutional Court has also, on numerous occasions, held that the right to privacy is bolstered by its connection with the right to human dignity. It is undeniable that every person's right to privacy should be protected. However, a person's right to privacy is violated when police officials conduct warrantless search and seizure operations. Generally section 22 of the Criminal Procedure Act provides for warrantless search and seizure operations when a police official has a reasonable suspicion that a search warrant will be issued to him and that a delay in obtaining such a warrant would defeat the object of the search. Warrantless searches are important for the prevention of crime, but recent case law has suggested that there has been a progressive shift towards protecting the right to privacy of the individual subjected to warrantless searches, since there are a number of laws besides section 22 that regulate warrantless searches and which have been declared to be constitutionally invalid. This article seeks to demonstrate that the current regulatory framework for warrantless searches should be reviewed in order to protect the legitimacy of the police as well as the dignity and privacy of the citizens of South Africa.

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THE RIGHT TO PRIVACY AND DRUG-TESTING IN SPORT IN SOUTH AFRICA: COULD THE NEW ZEALAND CASE OF CROPP V JUDICIAL COMMITTEE PROVIDE SOME GUIDANCE?

Obiter ◽

10.17159/obiter.v34i1.12088 ◽

2021 ◽

Vol 34 (1) ◽

Author(s):

Jean Wilké

Keyword(s):

South Africa ◽

New Zealand ◽

South African ◽

Drug Testing ◽

Right To Privacy ◽

The Right To Privacy ◽

The Republic ◽

The Right

This article examines the right to privacy of athletes who are required to submit to drug tests. In South Africa, the right to privacy of an athlete with regard to drugtesting has not been challenged in the courts. However, the courts in New Zealand have had an opportunity to examine the right to privacy of an athlete in terms of drugtesting in sport. Therefore, the article discusses whether the decision in the NewZealand case of Cropp v Judicial Committee may provide some guidance to South African courts in the adjudication of whether the infringement and the limitation on the right to privacy in the context of drug-testing in sport can be reasonable and justified and concludes that such infringement may be reasonable and justified if a court is to consider a limitation of the right to privacy in terms of section 36 of the Constitution of the Republic of South Africa, 1996 as well as consent and safety.

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Statistical confidentiality as an element of the protection of the constitutional right to privacy

Wiadomości Statystyczne. The Polish Statistician ◽

10.5604/01.3001.0013.6464 ◽

2019 ◽

Vol 64 (12) ◽

pp. 58-67

Author(s):

Piotr Zapadka

Keyword(s):

Public Interest ◽

Statistical Data ◽

Legal Framework ◽

Protective Measure ◽

Constitutional Rights ◽

Right To Privacy ◽

The Right To Privacy ◽

Constitutional Right ◽

Statistical Surveys ◽

The Right

The confidentiality of statistical data, one of the areas of classified data, is a part of the institutional legal framework designed as a coherent safeguard of natural persons’ right to privacy, at the same time recognising the fact that collecting statistical data for public statistics satisfies an important public need. Therefore it is necessary to reach a sensible compromise between justified public interest and private interest. The article analyses selected aspects of statistical confidentiality regarded as a tool for the execution of the constitutional duty to protect the identity of persons participating in statistical surveys. The aim of this paper is to define the extent to which the process of collecting and storing data, provided for by the law on public statistics, constituties a justified and lawful interference with the constitutional rights and freedoms of natural persons. The analysis of the Polish and foreign regulations pertaining to this matter indicates that statistical confidentiality serves as a protective measure for the right to privacy for natural persons, guaranteed by Art. 47 of the Polish Constitution.

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Protection of Personal Information Act 2013 and data protection for health research in South Africa

International Data Privacy Law ◽

10.1093/idpl/ipz024 ◽

2020 ◽

Vol 10 (2) ◽

pp. 160-179

Author(s):

Ciara Staunton ◽

Rachel Adams ◽

Dominique Anderson ◽

Talishiea Croxton ◽

Dorcas Kamuya ◽

...

Keyword(s):

South Africa ◽

Data Protection ◽

Health Research ◽

Personal Information ◽

Right To Privacy ◽

Informational Privacy ◽

The Right To Privacy ◽

Constitutional Right ◽

The Right ◽

The Impact

Abstract The Protection of Personal Information Act (POPIA) [No.4 of 2013] is the first comprehensive data protection regulation to be passed in South Africa and it gives effect to the right to informational privacy derived from the constitutional right to privacy It is due to come into force in 2020, and seeks to regulate the processing of personal information in South Africa, regulate the flow of personal information across South Africa’s borders, and ensure that any limitations on the right to privacy are justified and aimed at protecting other important rights and interests. Although it was not drafted with health research in mind, POPIA will have an impact on the sharing of health data for research, in particular biorepositories. It is now timely to consider the impact of POPIA on biorepositories, and the necessary changes to their access and sharing arrangements prior to POPIA coming into force.

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The Right to Privacy

Social Philosophy and Policy ◽

10.1017/s0265052500002090 ◽

2000 ◽

Vol 17 (2) ◽

pp. 25-44 ◽

Cited By ~ 5

Author(s):

Lloyd L. Weinreb

Keyword(s):

The United States ◽

Legal Rights ◽

Moral Claim ◽

Constitutional Rights ◽

Right To Privacy ◽

The Right To Privacy ◽

Positive Law ◽

Constitutional Right ◽

The Right ◽

The U.S

The question that I address in this paper is whether there is a right to privacy. It is not the question whether in the United States there is a legal right to privacy or, more particularly, a constitutional right to privacy. There are any number of ordinary legal rights and specific constitutional rights that might be so described, and the U.S. Supreme Court has referred also to a generic “right to privacy” that is implicit in the U.S. Constitution. Nor is the question that I address whether persons have a moral claim to privacy that others ought to respect. I assume that in many circumstances, respecting a person's claim to privacy is productive of the good and, if so, that the claim ought to be respected. Rather, my question is whether persons have a right to privacy not dependent on positive law, such that it ought ordinarily to be respected without regard to the consequences, good or bad, simply because it is right.

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The constitutional right to the confidentiality of listening, telephone conversation, telegraph and other correspondence of separate categories of persons

Law Review of Kyiv University of Law ◽

10.36695/2219-5521.4.2020.18 ◽

2020 ◽

pp. 102-106

Author(s):

Liudmyla Mikhnevych

Keyword(s):

Family Life ◽

Legal Regulation ◽

Private Life ◽

Right To Privacy ◽

Criminal Proceedings ◽

Human Right ◽

Telephone Conversation ◽

The Right To Privacy ◽

Constitutional Right ◽

The Right

The right to the confidentiality of listening, telephone conversation, telegraph and other correspondence of separate categories ofpersons is researched in the article. It is establishes that despite all legal guarantees, the right to the confidentiality of correspondenceis provided differently for separate categories of persons. The least secure of this right are those sentenced to imprisonment, and peop -le’s deputies, lawyers and other persons in respect of which a special procedure of criminal proceedings is carried out have the highestimmunity from illegal or arbitrary interference with the right to confidentiality of correspondence. Two scientific concepts of understandingthe right to the confidentiality of correspondence are characterized. The so-called “personal” concept, which considers thisright as a component of the right to privacy and family life, and the second concept justifies the independence of this right, the contentand purpose of which is broader than the protection of privacy. The perception of the right to confidentiality of correspondence in thecontext of the right to private and family life is common. It is substantiated that the “personal” concept is characterized by the connectionbetween the right to confidentiality of correspondence and the right to private and family life, as well as the consideration of theright to confidentiality of correspondence as a separate element of the right to privacy. Instead, the second concept considers the rightto confidentiality of correspondence as an independent right that has a relative connection with the sphere of private life and is a separatepersonal human right. It is noted that the Constitutional of Ukraine derives the right to confidentiality of correspondence in a separatearticle from the inviolability of private and family life, which leads to the conclusion that it is inexpediency to narrow the right toconfidentiality of listening, telephone conversation, telegraph and other correspondence only in privacy or family life.An analysis of the latest normative changes in the legal regulation of ensuring the right to confidentiality of correspondence inUkraine of separate categories of persons, in particular on the restriction of the right to convicted and higher guarantees of the right toconfidentiality of correspondence of deputies of Ukraine, are committed.

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