The difference between criminal and forensic investigation

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CHAPTER 2 FORENSIC INVESTIGATION

Introduction

Brandl (2008:xi) states that police work is more complicated now than ever before. According to Gilbert (2010:46), investigations are a highly important function in the fight against crime, especially where the criminal justice system struggles to maintain its effectiveness. Gilbert (2010:46) also claims that if investigations are properly accomplished, the answers to the traditional questions of who, what, where, when and how become evident. Crimes against the fiscus also contribute to the crime statistics and undermine the public’s confidence in the South African Revenue Services (SARS). This type of crime also results in decreased tax collections. In recent years SARS has also become a victim of crimes by unscrupulous taxpayers, as well as organised crime syndicates. By way of background, SARS is an autonomous government department that, in terms of the South African Revenue Services Act (South Africa, 1997), is tasked with the collection of taxes and duties in South Africa, as well as the administration of all the legislation administered by the Commissioner of SARS. This legislation includes but is not limited to the:
• Income Tax Act (South Africa, 1962);
• Value Added Tax Act(South Africa, 1991); and
• Customs and Excise Act (South Africa, 1964).
The Criminal Investigation Unit of SARS forms part of SARS’ Enforcement Division, which is tasked with the investigation into and subsequent criminal prosecution of tax offenders. The rationale behind the prosecution of tax offenders is no different from the objectives and purposes of any other criminal investigation and prosecution. In order to cover the topic, aims and research questions of the current study, it was important for the researcher to determine if the participants were familiar with the following concepts in terms of their working environment:
• Criminal investigation;
• Forensic investigation;
• Evidence; and
• Documents.
It was equally important for the researcher to find out from the participants their powers and mandate to investigate. As background for this research, before discussing the meaning of the concepts listed above, it is important to discuss the mandate under which SARS criminal investigators operate.

The mandate to investigate

The SAPS is mandated in terms of section 205 of the Constitution of the Republic of South Africa (South Africa, 1996) to combat and investigate all crimes. It is a widely held view that the SAPS is unable to investigate all crimes owing to manpower constraints, particularly in cases that require specialist knowledge and skills. Various government agencies and parastatals have set up their own internal investigation units such as:
• The Military Police of the Department of Defence;
• The Internal Investigations Division of The Department of Home Affairs;
• The Marine and Coastal Division of The Department of Environmental Affairs;
• The Internal Investigations Unit of the Electricity Supply Commission (ESKOM);
• The Internal Investigations Unit of Spoornet; and
• The Internal Investigations Unit of Transnet.
In S v Botha and others the court held that the SAPS does not have the sole mandate to investigate crime and that private and corporate institutions conduct their own investigations before handing them over to the SAPS to institute criminal proceedings.
SARS is mandated in terms of the South African Revenue Services Act (South Africa, 1997) to investigate any contravention of the said Act to determine if any offences have been committed. In addition to this, an OPA dated 23 October 1998 (Seaman, 2011) provides a framework for conducting, as well as gives SARS the necessary authority to conduct, criminal investigations into tax-related crimes. Section 74(1)(e) of the Income Tax Ac (South Africa, 1962) and section 57(1)(e) of the Value Added Tax Act(South Africa, 1991) state that for purposes of this section “administration of this Act” means “ascertaining whether an offence in terms of this Act has been committed”. It is therefore evident that the legislation pertaining to the Income Tax Act (South Africa, 1962) and the Value Added Tax Act (South Africa, 1991) provide the authorisation for SARS to determine whether an offence has been committed but do not authorise SARS criminal investigators to conduct criminal investigations into tax-related offences. The OPA dated 23 October 1998 between the SAPS and SARS provides SARS criminal investigators with the authority only to conduct criminal investigations into tax- and customs-related investigations. It is worth noting that all SARS criminal investigators carry an identification card which, in terms of section10(1)(c) of the South African Revenue Services Act (South Africa, 1997), stipulates that they are authorised “in terms of legislation, administered by the Commissioner: SARS, to exercise such powers required for the purpose of performing such duties as described therein”. According to section 9 of the South African Revenue Services Act (South Africa, 1997), the Commissioner of SARS is responsible for the execution of functions in the interest of efficient and effective tax administration in ensuring tax compliance and collection of taxes. In order to achieve its aims and execute its statutory functions effectively, SARS has appointed investigators to perform investigative work. Both section 74 of the Income Tax Act (South Africa, 1962) and section 57 of the Value Added Tax Act (South Africa, 1991) provide for ascertaining whether an offence in terms of the Act has been committed. However, both these Acts only provides for ascertaining whether an offence was committed and not for the actual criminal investigation by SARS investigators. The OPA between SARS and the SAPS provides authorisation for SARS investigators to conduct tax-related investigations (Seaman, 2011).

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Abstract
Key terms
List of acronyms
Acknowledgements
Declaration
Table of contents
CHAPTER 1: GENERAL ORIENTATION
1.1 Introduction
1.2 Delimitations of the research
1.3 Research aims
1.4 The research purpose
1.5 Research questions
1.6 Key concepts
1.6.1 Search
1.6.2 Seizures
1.6.3 Evidence
1.6.4 Forensic Investigation
1.6.5 Crime
1.6.6 Tax related offences
1.7 Research approach and design
1.7.1 The research design
1.8 The target population and sampling
1.8.1 Population
1.8.2 Target population
1.8.3 Sample
1.8.4 Sampling procedure
1.9 Data collection
1.9.1 Data-collection techniques
1.10 Data analysis
1.10.1 Historic information
1.11 Methods to ensure validity
1.11.1 Internal validity
1.11.2 External validity
1.12 Methods to ensure reliability
1.13 Ethical considerations
1.13.1 Protection from harm
1.13.2 Informed consent
1.13.3 Right to privacy
1.13.4 Honesty with professional colleagues
1.14 Chapter layout
CHAPTER 2: FORENSIC INVESTIGATION
2.1 Introduction
2.2 The mandate to investigate
2.3 Criminal investigation
2.4 Forensic investigation
2.5 The difference between forensic and criminal investigation
2.6 The purpose of investigation
2.7 The objectives of investigations
2.8 Evidence
2.8.1 What is evidence?
2.8.2 The different types of evidence
2.8.3 The chain of evidence
2.9 Documents
2.10 Summary
CHAPTER 3: SEARCH AND SEIZURE IN THE SOUTH AFRICAN REVENUE SERVICES
3.1 Introduction
3.2 The Constitution of the Republic of South Africa
3.3 Search and seizure in terms of the Criminal Procedure Act, Act of 1977
3.3.1 Search and seizure with a search warrant
3.3.2 Search and seizure without a search warrant
3.4 Search and seizure in terms of the Acts that SARS administers
3.4.1 Search and seizure with a search warrant
3.4.2 Search and seizure without a search warrant
3.5 The search and seizure of articles
3.5.1 Search and seizure
3.5.2 Search warrants
3.6 The legal requirements for a search warrant in a tax-related offence
3.7 Admissibility of evidence obtained through a search warrant in a tax-related offence
3.8 Procedure to obtain a search warrant in a tax-related offence
3.9 Planning for the search
3.10 Personnel
3.11 Equipment and vehicles
3.12 Pre-raid briefing
3.13 Conducting the search and seizure
3.13.1 Procedure at the premises to be searched
3.13.2 Different search methods
3.13.3 Collection, marking and storage of seized documents
3.14 Disposal of seized articles at the finalisation of investigation
3.15 Training
3.16 Summary
CHAPTER 4: FINDINGS, RECOMMENDATIONS AND CONCLUSIONS
4.1 Introduction
4.2 Findings
4.2.1 Research question one: What does forensic investigation entail?
4.2.2 Research question two: What procedure should South African Revenue Services investigators follow to conduct a search and seizure in a tax related criminal investigation?
4.3 Secondary findings
4.3.1 The mandate to investigate
4.3.2 Criminal investigations
4.3.3 The difference between criminal and forensic investigation
4.3.4 The purpose of investigations
4.3.5 The objectives of investigations
4.3.6 Evidence
4.3.7 Search
4.3.8 Seizure
4.3.9 Search warrants
4.3.10 Empowering legislation authorising search and seizure by SARS criminal investigators
4.3.11 The legal requirements for a search warrant
4.3.12 The procedure to obtain a search warrant in a tax-related offence
4.3.13 The admissibility of evidence obtained from a search and seizure in a tax-related offence
4.3.14 Search and seizure
4.3.15 Documents
4.4 Recommendations
4.4.1 Training
4.4.2 Improved Communications
4.4.3 Skills Transfer
4.5 Conclusion
References
List of Figures
List of Attachments
List of Annexures