4. General duties and powers of officers

(1)     Officers shall act under the control and direction of the Commissioner.

[Subsection (1) substituted by section 34 of Act 34 of 1997]

(2)     No officer shall have a direct financial interest in –

(a)     the importation or exportation of goods;

(b)     the manufacture of excisable goods, environmental levy goods, fuel levy goods or Road Accident Fund levy goods; or

(c)     the trade in imported goods, goods for export, excisable goods, environmental levy goods, fuel levy goods or Road Accident Fund levy goods.

[Subsection (2) substituted by section 2 of Act 105 of 1969, section 4 of Act 59 of 1990 and section 5 of Act 36 of 2007]

(3)     The Commissioner or any officer shall not disclose any information relating to any person, firm or business acquired in the performance of his duties, except in the performance of his or her duties under this Act or by order of a competent court:

Provided that the provisions of this subsection shall not be construed as preventing the Commissioner (in such form and under such procedural arrangements as the Commissioner may prescribe) from, on good cause shown –

(i)      disclosing such information in relation to any person as may be required by the Statistician General in connection with the collection of statistics in complying with the provisions of the Statistics Act, 1999 (Act No. 6 of 1999), or any regulation thereunder;

[Paragraph (i) substituted by section 5 of Act 36 of 2007]

(ii)     disclosing to the Director-General of the Department of Trade and Industry or the Economic Development Department such information in relation to imports and exports and importers and exporters as may be required by such Director-General for the determination and application of any trade policy;

[Paragraph (ii) substituted by section 11 of Act 13 of 2017 effective on 18 December 2017]

(iii)    applying ex parte to a judge in chambers for an order allowing the Commissioner to disclose to the National Commissioner of the South African Police Service, contemplated in section 6(1) of the South African Police Service Act, 1995 (Act No. 68 of 1995), or the National Director of Public Prosecutions, contemplated in section 5(2)(a) of the National Prosecuting Authority Act, 1998 (Act No. 32 of 1998), such information the disclosure of which may reveal evidence –

(a)     that an offence, other than an offence in terms of this Act or any other Act administered by the Commissioner or any other offence in respect of which the Commissioner is a complainant, has been or may be committed, or where such information may be relevant to the investigation or prosecution of such an offence, and such offence is a serious offence in respect of which a court may impose a sentence exceeding five years imprisonment; or

(b)     of an imminent and serious public safety or environmental risk,

and where the public interest in the disclosure of the information outweighs any potential harm to the person concerned should such information be disclosed: Provided that any information or document provided by any person in terms of this Act which is disclosed in terms of this subsection, shall not, unless a competent court otherwise directs, be admissible in any criminal proceedings against such person, to the extent that such information or document constitutes an admission by such person of the commission of an offence contemplated in paragraph (a);

[Paragraph (iii) amended by section 5 of Act 36 of 2007 and section 24 of Act 8 of 2010 effective on 1 June 2003]

(iv)    ………..

[Paragraph (iv) deleted by section 60 of Act 16 of 2004]

(ivA)  disclosing to the Director­General of the Department of Mineral Resources and Energy such information as may be required for the administration of the regulations in respect of carbon offsets in terms of the Carbon Tax Act, 2019 (Act 15 of 2019);

[Paragraph (ivA) inserted by section 12(a) of Act 33 of 2019]

(ivB)  disclosing to the Director­General of the Department of Environment, Forestry and Fisheries such information as may be required for the administration of the regulations in respect of greenhouse gas emissions reporting in terms of the National Environmental Management: Air Quality Act, 2004 (Act 39 of 2004);

[Paragraph (ivB) inserted by section 12(a) of Act 33 of 2019]

(ivC) disclosing to a public officer, as contemplated in section 246 of the Tax Administration Act, of an authorised dealer in foreign exchange appointed by the Minister of Finance for purposes of the Regulations issued under section 9 of the Currency and Exchanges Act, 1933 (Act 9 of 1933), such information as may be required by the authorised dealer for purposes of verification of applications for advance foreign exchange payments in respect of goods that are to be imported;

[Paragraph (ivC) inserted by section 12(a) of Act 33 of 2019 and substituted by section 10(a) of Act 24 of 2020]

(ivD) disclosing to the Director-General of the Department of International Relations and Co-operation such information in relation to purchases of goods free of duty, at premises licensed as special customs and excise warehouses in terms of section 21, as may be required to manage abuses in relation to privileges granted in terms of the Diplomatic Immunities and Privileges Act, 2001 (Act 37 of 2001);

[Paragraph (ivD) inserted by section 10(b) of Act 24 of 2020]

(v)    disclosing to the Governor of the South African Reserve Bank or any other person to whom the powers, functions and duties have been delegated by the Minister in terms of regulations issued in terms of section 9 of the Currency and Exchanges Act, 1933 (Act No. 9 of 1933), such information as may be required for purposes of exercising any power or performing any function or duty in terms of those regulations or the South African Reserve Bank Act, 1989 (Act No. 90 of 1989);

[Paragraph (v) amended by section 24 of Act 8 of 2010, section 3 of Act 25 of 2011 and substituted by section 11 of Act 13 of 2017 effective on 18 December 2017]

(vi)    disclosing to the Chief Commissioner of the International Trade Administration Commission such information in relation to imports and exports and importers and exporters as may be required by that Chief Commissioner for purposes of performing any function conferred the Chief Commissioner by or in terms of the International Trade Administration Act, 2002 (Act 71 of 2002);

[Paragraph (vi) added by section 24(1)(a) of Act 8 of 2010, amended by section 3(b) of Act 25 of 2011 and by section 12(b) of Act 33 of 2019]

(vii)   disclosing to the Director of the Financial Intelligence Centre, the information required for the performance of the functions of the Financial Intelligence Centre in terms of the Financial Intelligence Centre Act, 2001 (Act No. 38 of 2001); or

[Paragraph (vii) added by section 3 of Act 25 of 2011 effective on 14 December 2011]

(viii)  disclosing to the head of any organ of state administering legislation regulating the movement of goods or persons into or out of the Republic, the information necessary for enforcing that legislation:

[Paragraph (viii) added by section 3 of Act 25 of 2011 effective on 14 December 2011]

Provided further that the Commissioner shall disclose information in respect of any class of persons to the Director-General of the National Treasury, to the extent necessary for the purposes of tax policy design or revenue estimation.

[Subparagraph (v) added by section 39 of Act 12 of 2003]

[Subsection (3) amended by section 2 of Act 110 of 1979, section 3 of Act 98 of 1980, section 2 of Act 84 of 1987, section 34 of Act 34 of 1997 and section 58 of Act 30 of 1998 and substituted by section 115 of Act 60 of 2001]

(3A)      No person, including-

(a)      the Statistician ­General;

(b)     the Director ­General of the Department of Trade and Industry and Economic Development;

(c)     the Governor of the South African Reserve Bank;

(d)     the National Commissioner of the South African Police Service;

(e)     the National Director of Public Prosecutions;

(f)      the Director­ General of the National Treasury;

(g)     the Director ­General of the Department of Mineral Resources and Energy;

(h)     the Director­ General of the Department of Environment, Forestry and Fisheries;

(hA)  the Director-General of the Department of International Relations and Co-operation;

[Paragraph (hA) inserted by section 10(c) of Act 24 of 2020]

(i)      the public officer of an authorised dealer in foreign exchange;

(j)      the Chief Commissioner of the International Trade Administration Commission;

(k)     the Director of the Financial Intelligence Centre;

(l)      the head of any organ of state; or

(m)    any person acting under the direction and control of the persons referred to in paragraphs (a) to (l),

shall disclose any information supplied under the proviso to subsection (3) to any person or permit any person to have access thereto, except in the exercise of his or her powers or the carrying out of his or her duties under any Act from which such powers or duties are derived.

[Sub­section (3A) inserted by section 1 of Act 105 of 1992, substituted by section 58(b) of Act 30 of 1998, by section 115(1)(a) of Act 60 of 2001, by section 5(1)(d) of Act 36 of 2007, by section 24(1)(b) of Act 8 of 2010, by section 3(d) of Act 25 of 2011, by section 11(c) of Act 13 of 2017 and by section 12(c) of Act 33 of 2019]

(3B)  The provisions of subsection (3) shall not be construed as preventing the Commissioner from using any information obtained by him in the exercise of his powers or the performance of his duties under this Act for the purposes of any other law administered by him.

[Subsection (3B) inserted by section 1 of Act 98 of 1993, deleted by section 2 of Act 45 of 1995, re-inserted by section 34 of Act 34 of 1997 and substituted by section 43 of Act 30 of 2002]

(3C)  For the purposes of the proviso to subsection (3), the Commissioner may, subject to the provisions of section 3 (2), delegate the powers vested in him by that proviso, to any officer.

[Subsection (3C) inserted by section 115 of Act 60 of 2001]

(3D)  The prohibition on the disclosure of information by the Commissioner or any officer, referred to in subsection (3), shall not apply in respect of information relating to-

(a)     a person licensed or registered in terms of this Act in an anonymised form;

(b)     any person, where that person has consented that such information may be published or made known to any other person; and

(c)     tariff determinations: Provided that publication of such information shall take place in accordance with rules prescribed by the Commissioner which may include the circumstances in which publication may take place, the kind of information that may be published and the manner in which the information must be published.

[Subsection (3D) inserted by section 115(1)(b) of Act 60 of 2001 and substituted by section 12(d) of Act 33 of 2019 and by section 10(d) of Act 24 of 2020]

(3E)   Notwithstanding anything to the contrary contained in subsection (3), the Auditor-General shall in the performance of the Auditor-General’s duties in terms of section 3 of the Auditor-General Act, 1995 (Act No. 12 of 1995) have access to the documents in the possession or custody of the Commissioner or a Controller.

[Subsection (3E) inserted by section 133 of Act 45 of 2003]

(4)

(a)     An officer may, for the purposes of this Act subject to the other provisions of this section.

(aA)  An officer may enter premises in terms of paragraph (a) only on authority of a warrant issued by a magistrate or judge, provided that in the case of the following categories of premises an officer may enter the premises without a warrant:

(i)      Premises managed or operated by the State or a public entity within the meaning of the Public Finance Management Act, 1999 (Act No 1 of 1999) as part of a port, airport, railway station or land border post and on which an activity to which this Act applies is carried out or allowed;

(ii)     premises licensed or registered in terms of this Act;

(iii)    premises occupied by a person licensed or registered in terms of this Act and used for purposes of the business for which that person is licensed or registered; and

(iv)    premises entered by an officer with the consent of the owner or person in physical control of the premises after that owner or person was informed that there is no obligation to admit the officer in the absence of a warrant.

(aB)  An officer may without a warrant enter any premises for which a warrant is required in terms of paragraph (aA) if the officer on reasonable grounds believes-

(i)      that a warrant will be issued by a magistrate or judge if a warrant is applied for; and

(ii)     that the delay in obtaining the warrant is likely to defeat the purpose for which the officer seeks to enter the premises.

(aC)  An officer may for purposes of this Act-

(i)      after having gained entry to any premises in terms of this subsection, conduct an inspection, examination, enquiry or a search;

(ii)     while the officer is on the premises or at any other time require from any person the production then and there, or at a time and place fixed by the officer, of any book, document or thing which by this Act is required to be kept or exhibited or which relates to or which the officer has reasonable cause to suspect of relating to matters dealt with in this Act and which is or has been on the premises or in the possession or custody or under the control of any such person or his employee;

(iii)    at any time and at any place require from any person who has or is believed to have the  possession or custody or control of any book, document or thing relating to any matter dealt with in this Act, the production thereof then and there, or at a time and place fixed by the officer; and

(iv)    examine and make extracts from and copies of any such book or document and may require from any person an explanation of any entry therein and may attach any such book, document or thing as in the opinion of the officer may afford evidence of any matter dealt with in this Act.

(b)     An officer may take with him or her on to any premises an assistant or a member of the police force, provided that only those assistants and members of the police force whose presence, in the reasonable opinion of the officer, is necessary for purposes of conducting the inspection,   examination, enquiry or search on the premises may enter the premises.

(c)     When entering any premises in terms of paragraph (aB), the officer shall comply with the following requirements:

(i)      The officer may enter the premises only during ordinary business hours unless in the reasonable opinion of the officer entry at any other time is necessary for purposes of this Act;

(ii)     the officer shall, upon seeking admission to the premises, inform the person in charge of the premises of the purpose of the entry;

(iii)    if the purpose of the entry is, or if the officer after having gained entry decides, to search the premises for goods, records or any other things in respect of which an offence in terms of this Act is suspected to have been committed or that may be used as evidence for the prosecution of such an offence-

(aa)   the officer shall hand to the person in charge a written statement signed by the officer stating that a search of the premises is to be conducted unless, in the officer’s reason able opinion, there are circumstances of urgency which may result in the search being frustrated if its commencement is delayed until such a statement can be prepared;

(bb)   the officer’s actions shall be confined to such searching, inspection, enquiries and examination as are reasonably necessary for the purpose of the search;

(cc)   the officer may, either before or after complying with item (aa), take such steps as the officer considers necessary to prevent persons present on the premises from concealing, destroying or tampering with any documents, data or things located on the premises;

(dd)   the person in charge shall have the right to be present, or to appoint a delegate to be present, during and to observe the search;

(ee)   the officer shall compile an inventory of all items removed from the premises and shall, prior to leaving the premises, sign the inventory and hand a copy thereof to the person in charge: Provided that if it is not possible in the circumstances to compile, sign and hand such inventory to the person in charge before leaving the premises, the officer shall seal the items to be removed and as soon as possible after removal of the items from the premises, compile the inventory in the presence of the person in charge of the premises, if that person requested to be present, and sign and hand a copy of the inventory to that person;

(ff)    the officer shall compile a schedule of all copies and extracts made in the course of the search and shall, prior to leaving the premises, sign and hand a copy thereof to the person in charge; and

(gg)   the officer must conduct the search with strict regard for decency and order.

(d)     A judge or magistrate may issue a warrant referred to in paragraph (aA) only on written   application by an officer setting out under oath or affirmation the grounds why it is necessary for an officer to gain access to the relevant premises.

(e)     If the purpose of the entry is to conduct a search of the premises for goods, records or any other things in respect of which an offence in terms of this Act is suspected to have been committed or that may be used as evidence for the prosecution of such an offence, the magistrate or judge may issue such warrant if it appears from the information on oath that-

(i)     there are reasonable grounds for suspecting that an offence in terms of this Act has been committed;

(ii)    a search of the premises is likely to yield such goods, records or other things; and

(iii)   the search is reasonably necessary for the purposes of this Act.

[Subsection (4) amended by section 2 of Act 84 of 1987 and substituted by section 16 of Act 39 of 2013 effective on 16 January 2014]

(5)     Any person in connection with whose business any premises are occupied or used, and any person employed by him shall at any time furnish such facilities as may be required by the officer for entering the premises and for the exercise of his powers under this section.

(6)

(a)     If an officer, after having declared his or her official capacity and his or her purpose and having demanded admission into any premises and having complied with any applicable requirements of subsection (4), is not immediately admitted, the officer and any person assisting the officer may at any time, but at night only in the presence of a member of the police force, break open any door or window or break through any wall on the premises for the purpose of entry and search.

(b)     An officer or any person assisting the officer may at any time break up any ground or   flooring on any premises for the purpose of a search if the officer in his or her reasonable opinion considers such breaking up to be necessary for the purposes of this Act; and if any room, place, safe, chest, box or package is locked and the keys thereof are not produced on demand, may open such room, place, safe, chest, box or package in any manner.

[Subsection (6) subsituted by section 16 of Act 39 of 2013 effective on 16 January 2014]

(7)     An officer may require any person to appear before him at any time and place fixed by the officer and may then and there question that person, either alone or in the presence of any other person, as he thinks fit, with respect to any matter dealt with in this Act.

(8)     An officer may question, either alone or in the presence of any other person, as he thinks fit, with respect to any matter dealt with in this Act, any person whom he finds on any premises entered in terms of this section or whom he has reasonable grounds for believing to be or to have been employed on any premises in respect of which any provision of this Act is applicable, or whom he has reasonable grounds for believing to be or to have been in possession, custody or control of anything, in respect of which any such provision is applicable.

(8A)

(a)     An officer may stop and detain and examine any goods while under customs control in order to determine whether the provisions of this Act or any other law have been complied with in respect of such goods as contemplated in section 107(2)(a).

[Paragraph (a) substituted by section 10 of Act 10 of 2006 and section 9 of Act 21 of 2006 effective on 15 January 2008]

(b)

(i)      The release of goods may be stopped at any time while such goods are under customs control.

(ii)

(aa)

(A)    For the purposes of this subsection, unless the context otherwise indicates, “examine” includes using an X-ray scanner or any other non-intrusive inspection methods.

(B)    No person shall enter any restricted area where non-intrusive equipment is operated unless authorised by the Controller.

(bb)   The Commissioner may by rule prescribe-

(A)    any requirement any person must comply with in connection with such non-intrusive inspection;

(B)    notwithstanding the provisions of section 8, any additional advance information required in respect of any goods that will be imported or exported in such form and at such time as may be specified in such rule;

(C)    any other matter which the Commissioner considers necessary and useful for the purpose of the effective and efficient use of such equipment and the results obtained from its operation.

(cc)    Notwithstanding anything to the contrary in this Act, any non-intrusive or other examination may take place in the absence of any importer, exporter, port or airport authority, container operator, agent or any licensee or any other person having control of the goods concerned.

(dd)   Any person who-

(A)    without authorisation by the Controller enters any restricted area where non-intrusive equipment is operated;

(B)    with the intent to deceive, does anything to prevent equipment from producing a true image of the contents of any container or package,

shall be guilty of an offence and liable on conviction-

(C)    in the case of item (A) to a fine not exceeding R10 000 or imprisonment for a period not exceeding three years or both such fine or imprisonment; and

(D)    in the case of item (B) to a fine not exceeding R100 000 or treble the value of the goods in respect of which the offence was committed whichever is the greater or imprisonment for a period not exceeding five years or both such fine and imprisonment and the goods concerned shall be liable to forfeiture in accordance with the provisions of this Act.

[Subparagraph (ii) substituted by section 9 of Act 21 of 2006]

(c)

(i)      Whenever any goods are stopped as contemplated in this paragraph the goods may be detained under the control of a Controller for any reasonable period required to determine whether the goods comply with the provisions of this Act or such other law.

(ii)     Any detention under this section is not subject to the provisions of section 93 and the officer or Controller must release the goods if found to comply with the provisions of this Act or such other law.

(iii)    Where at any time during such detention the officer or Controller decides that it is necessary to establish whether the goods are liable to forfeiture, a detention under section 88(1)(a) may be substituted for the detention under this subsection.

(d)     The provisions of this subsection shall not be construed as affecting any other provision of this Act, including the provisions of this section, relating to the detention, examination, or seizure of goods.

[Subsection (8A) added by section 133 of Act 45 of 2003]

(9)  

(a)     An officer-

(i)

(aa)   commanding any customs patrol boat referred to in section 4C, may stop any ship within the territorial waters or contiguous zones of the Republic;

(bb)   may board that ship or any other ship in the Republic; and

(ii)     may stop and board any vehicle in the Republic, and may search any such ship or vehicle or any person found therein or thereon –

(aa)   for goods that should have been entered or otherwise declared, but have not been so entered or declared; or

(bb)   for goods on which the duty should have, but has not, been paid;

(cc)   in respect of which he or she has reasonable cause to believe that there has been a contravention of any provision of this Act or any provision of any other law relating to the importation or exportation of goods,

and may freely remain on such ship or vehicle in pursuance of his or her duties.

[Paragraph (a) substituted by section 25 of Act 61 of 2008]

(b)     If any vehicle, room, cabin, place, safe, chest, box, package or container as defined in section 1(2), is locked and the keys thereof are not produced on demand, the officer may open such vehicle, room, cabin, place, safe, chest, box, package or container in any manner.

(c)     An officer shall have free access to and the right to rummage every part of any such ship or vehicle and to examine all goods on board, with power to fasten down hatchways and to mark any goods before landing and to lock up, seal, mark or otherwise secure any goods on board that ship or vehicle, including any apparatus thereof, and he may also demand from the master of such ship or the pilot of any aircraft concerned or the person in charge of any other vehicle the production of any document to which any provision of this Act relates.

(d)     If any lock, seal or mark placed upon any goods on board a ship or vehicle by an officer in terms of the provisions of this section is wilfully opened, broken, obliterated or altered or if any goods which have been locked, sealed, marked or otherwise secured in terms of this section are removed or if the hatchways of any such ship are, after having been fastened down by an officer, opened without his consent, the master of any such ship, the pilot of any aircraft concerned or the person in charge of any other such vehicle, as the case may be, shall be guilty of an offence unless he proves that it was not possible for him to have prevented the act in question.

[Subsection (9) substituted by section 4 of Act 59 of 1990]

(10)

(a)     An officer may stop any person whom he has reason to suspect of having dutiable goods or goods in respect of which a contravention under this Act has been committed, secreted about him or in his possession and he may search such person.

(b)     If such person fails to stop, the officer may take such action, including the use of force, as he may deem necessary to stop such person.

[Paragraph (b) added by section 4 of Act 59 of 1990]

(10A)

(a)     When conducting an external search of a person an officer may, subject to paragraph (b), make use of-

(i)      any mechanical, electrical, imaging or electronic equipment that can produce an indication that the person may be concealing any specific thing or substance on or in his or her body or in any goods that that person has with him or her;

(ii)     sniffer dogs or other animals trained to use their senses for the detection of any specific thing or substance; or

(iii)    any other search aid that may be prescribed by rule.

(b)     A search aid referred to in paragraph (a) may only be used by an officer trained to use such aid in the conduct of a search.

[Subsection (10A) inserted by section 21 of Act 23 of 2015 effective on 8 January 2016]

(11)

(a)     Any person may, before being searched in terms of this section, require the officer concerned to take him before the Controller, who may in his discretion discharge such person or direct that he be searched: Provided that the provisions of this paragraph shall apply only if such person is stopped within a harbour or airport control area and during the prescribed working hours of the Controller.

(b)     A female shall only be searched by a female.

(12)   An officer may lock up, seal, mark, fasten or otherwise secure any warehouse, store, room, cabin, place, vessel, appliance, utensil, fitting, vehicle or goods if he has reason to believe that any contravention under this Act has been or is likely to be committed in respect thereof or in connection therewith.

(12A)

(a)     Where, on the exportation of any goods from the Republic, any certificate, declaration or other proof has been furnished regarding the origin of such goods to comply with the provisions of any agreement contemplated in section 46, 49 or 51 or any other requirement or any practice, an officer may, for the purposes of verifying or investigating such certificate, declaration or other proof, require –

(i)      the exporter; or

(ii)     any other person appearing to the officer to have been concerned in any way with –

(aa)    the production or manufacture or exportation of such goods;

(bb)   any goods from which directly or indirectly such goods have been produced or manufactured; or

(cc)    the furnishing of such certificate, declaration or other proof,

to furnish such information in such a manner and within such time as the officer may determine, and to produce on demand for inspection and to allow the making of copies or extracts from such invoices, bills of lading, bills of entry, books of account or other documents in whatever form, as the officer may specify.

(b)     No person may, without good cause shown, refuse to comply with any such requirement of an officer.

[Subsection (12A) inserted by section 47 of Act 53 of 1999]

(13)   No person shall be entitled to any compensation for any loss or damage arising out of any bona fide action of an officer under this section.

[Subsection (13) added by section 4 of Act 59 of 1990]