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Section 99 (Customs Act) – Liability of agent for obligations imposed on principal

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99. Liability of agent for obligations imposed on principal



(1)     An agent appointed by any master, container operator or pilot or other carrier, and any person who represents himself or herself to any officer as the agent of any master, container operator or pilot or other carrier, and is accepted as such by that officer, shall be liable for the fulfilment, in respect of the matter in question, of all obligations, including the payment of duty and charges, imposed on such master, container operator or pilot or other carrier by this Act and to any penalties or amounts demanded under section 88(2)(a) which may be incurred in respect of that matter.

[Subsection (1) substituted by section 34 of Act 112 of 1977, section 71 of Act 30 of 1998 and section 138 of Act 60 of 2001]



(2)    

(a)     An agent appointed by any importer, exporter, manufacturer, licensee, remover of goods in bond or other principal and any person who represents himself to any officer as the agent of any importer, exporter, manufacturer, licensee, remover of goods in bond or other principal, and is accepted as such by that officer, shall be liable for the fulfilment, in respect of the matter in question, of all obligations, including the payment of duty and charges, imposed on such importer, exporter, manufacturer, licensee, remover of goods in bond or other principal by this Act and to any penalties or amounts demanded under section 88(2)(a) which may be incurred in respect of that matter: Provided that, except if such principal has not been disclosed or the name of another agent or his own name is stated on the bill of entry as contemplated in section 64B(6) or the principal is a person outside the Republic, such agent or person shall cease to be so liable if he proves that –



(i)      he was not a party to the non-fulfilment by any such importer, exporter, manufacturer, licensee, remover of goods in bond or other principal, of any such obligation;



(ii)     when he became aware of such non-fulfilment, he notified the Controller thereof as soon as practicable; and



(iii)    all reasonable steps were taken by him to prevent such non-fulfilment.

[Paragraph (a) amended by section 24 of Act 86 of 1982, section 62 of Act 45 of 1995, section 71 of Act 30 of 1998 and section 68 of Act 53 of 1999]



(b)     No importer, exporter, manufacturer, licensee, remover of goods in bond or other principal shall by virtue of the provisions of paragraph (a) be relieved from liability for the fulfilment of any obligation imposed on him by this Act and to any penalty or amounts demanded under section 88(2)(a) which may be incurred in respect thereof.

[Paragraph (b) substituted by section 71 of Act 30 of 1998]



(c)     For the purposes of the proviso to paragraph (a) a principal outside the Republic shall be deemed to include the consignee in a country outside the Republic shown on a bill of entry for removal in bond of imported goods.

[Paragraph (c) added by section 68 of Act 53 of 1999]

[Subsection (2) substituted by section 12 of Act 110 of 1979]



(3)     Every shipping and forwarding agent and every agent acting for the master of a ship or the pilot of an aircraft and any other class of agent which the Commissioner may by rule specify shall, before transacting any business with the Commissioner, and any class of carrier of goods to which this Act relates which the Commissioner may by rule specify shall, before conveying any such goods, give such security as the Commissioner may from time to time require for the due observance of the provisions of this Act: Provided that the Commissioner may call for special or additional security in respect of any particular transaction or conveyance of goods from any agent or carrier.

[Subsection (3) substituted by section 15 of Act 95 of 1965 and amended by section 34 of Act 112 of 1977, section 62 of Act 45 of 1995 and section 31 of Act 34 of 2004]



(4)    

(a)     An agent (including a representative or associate of the principal) representing or acting for or on behalf of any exporter, manufacturer, supplier, shipper or other principal outside the Republic who exports goods to the Republic, shall be liable, in respect of any goods ordered through him or obtained by an importer by means of his services, for the fulfilment of all obligations imposed upon such exporter, manufacturer, supplier, shipper or other principal by this Act, and to any penalties or amounts demanded under section 88(2)(a) which may be incurred by such exporter, manufacturer, supplier, shipper or other principal under this Act: Provided that any such agent shall cease to be so liable if he proves that –



(i)      he was not a party to the non-fulfilment, by any such exporter, manufacturer, supplier, shipper or other principal, of any such obligation; and



(ii)     when he became aware of such non-fulfilment, he forthwith notified the Controller thereof; and



(iii)    all reasonable steps were taken by him to prevent such non-fulfilment.

[Paragraph (a) amended by section 7 of Act 98 of 1970, section 62 of Act 45 of 1995 and section 71 of Act 30 of 1998]



(b)     Every agent of a class referred to in paragraph (a) and specified in the rules for the purposes of this paragraph shall register himself with the Commissioner and furnish such security as the Commissioner may from time to time require for the due observance of the provisions of this Act: Provided that the Commissioner may accept such security from any association of such agents approved by him which undertakes to give security on behalf of its members.

[Paragraph (b) amended by section 62 of Act 45 of 1995]



(c)     No agent referred to in paragraph (b) shall transact any business on behalf of any such exporter, manufacturer, supplier, shipper or other principal after a date specified by the Minister by notice in the Gazette unless he has complied with the provisions of paragraph (b).



(d)     The registration and operations of any agent referred to in paragraph (b) shall be subject to such conditions as the Commissioner may impose by rule and the Commissioner may cancel the registration of any agent who has persistently contravened or failed to comply with the provisions of this Act or who has committed an offence referred to in section 80, 83, 84, 85 or 86.

[Subsection (4) added by section 17 of Act 85 of 1968]



(5)     Any liability in terms of subsection (1), (2) or (4)(a) shall cease after the expiration of a period of two years from the date on which it was incurred in terms of any such subsection.

[Subsection (5) added by section 12 of Act 110 of 1979]

Section 99A (Customs Act) – Consultant and agent not being clearing agent required to register

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99A.   Consultant and agent not being clearing agent required to register


(1)     No person, except –


(a)     a licensed clearing agent referred to in section 64B; or


(b)     a person specified by rule,


shall, from a date specified by the Commissioner by notice in the Gazette, represent any principal referred to in section 99(2) as a consultant or agent for the purpose of transacting any business on behalf of such principal in relation to customs and excise matters unless such a person is registered with the Commissioner.


(2)     An application for such registration shall be made on the form prescribed by the Commissioner by rule and the applicant shall comply with all the requirements specified therein and any additional requirements that may be prescribed in any other rule and as may be determined by the Commissioner in each case.

[Section 99A inserted by section 69 of Act 53 of 1999]

Section 100 (Customs Act) – Agent may be called upon to produce written authority

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100. Agent may be called upon to produce written authority

If any person makes an application to an officer to transact any business on behalf of another person or if any person represents himself to an officer as the agent of another person, such officer may require the person so applying or representing himself to produce a written authority in the form approved by the Commissioner, from the person on whose behalf such application is made or on whose behalf the person so representing himself is alleged to be acting, and in default of the production of such authority, the officer may refuse to transact such business.

Section 101 (Customs Act) – Business accounts, documents etc., to be available for inspection

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101. Business accounts, documents, etc., to be available for inspection

(1)    


(a)     Any person carrying on any business in the Republic shall keep within the Republic in one of the official languages such books, accounts and documents relating to his transactions as may be prescribed by rule and such books, accounts and documents shall be kept in such form and manner and shall be retained for such period as may be so prescribed.

[Paragraph (a) substituted by section 63 of Act 45 of 1995]

(b)     Different provisions may be so prescribed in respect of different classes or kinds of books, accounts and documents and different classes of persons.

(1A)  The Commissioner may, subject to such conditions as he may determine, allow any person referred to in subsection (1) to retain in lieu of any book, account or document required to be retained in terms of that subsection, a reproduction of any such book, account or document obtained by means of microfilming or any other process.

[Subsection (1A) inserted by section 12 of Act 98 of 1980]

(2)     Any person referred to in subsection (1) shall upon demand by the Controller or the Commissioner produce to him such books, accounts or documents referred to in subsection (1) as he may require and such person shall render such returns or submit such particulars in connection with his transactions to the Commissioner as he may from time to time require.

(2A)  The Commissioner may, subject to such conditions as he may determine, allow any such person to produce in lieu of any such book, account or document required to be produced in terms of subsection (2), a copy thereof obtained by means of a reproduction referred to in subsection (1A), and such copy shall, subject to compliance with such conditions, for all purposes have all the effects of the original book, account or document concerned.

[Subsection (2A) inserted by section 12 of Act 98 of 1980]

(2B)  Any person referred to in subsection (1) shall keep and produce on demand any electronic representations of information in any form.

[Subsection (2B) inserted by section 70 of Act 53 of 1999 and substituted by section 152 of Act 45 of 2003]

(3)     The Commissioner may by rule prescribe –

(a)     the books, accounts, documents, transactions or operations in respect of which a chartered accountant’s certificate shall be produced to the Controller by such class of persons referred to in subsection (1) as he may so prescribe; and

(b)     the nature and form of such certificate and the intervals at which such a certificate shall be produced.

[Subsection (3) amended by section 63 of Act 45 of 1995]

[Section 101 substituted by section 18 of Act 85 of 1968]

Section 101A (Customs Act) – Electronic communications for the purposes of customs and excise procedures

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101A. Electronic communication for the purposes of customs and excise procedures

(1)     In this section and the rules thereto, unless the context otherwise indicates, the following words and phrases, and their grammatical variations where applicable, shall have the following meanings:

Section 101B (Customs Act) – Special provisions relating to the processing and protection of personal information

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101B.  Special provisions relating to the processing and protection of personal information

(1)     In this section and the rules made thereunder, unless the context otherwise indicates, the following words and phrases, and their grammatical variations where applicable, shall have the following meanings:

Section 102 (Customs Act) – Sellers of goods to produce proof of payment of duty

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102. Sellers of goods to produce proof of payment of duty

 

(1)     Any person selling, offering for sale or dealing in imported or excisable goods or fuel levy goods or any person removing the same, or any person having such goods entered in his books or mentioned in any documents referred to in section 75(4A) or 101, shall, when requested by an officer, produce proof as to the person from whom the goods were obtained and, if he is the importer or manufacturer or owner, as to the place where the duty due thereon was paid, the date of payment, the particulars of the entry for home consumption and the marks and numbers of the cases, packages, bales and other articles concerned, which marks and numbers shall correspond to the documents produced in proof of the payment of the duty.

[Subsection (1) substituted by section 29 of Act 105 of 1969, section 30 of Act 84 of 1987 and section 34 of Act 59 of 1990]

 

(2)     In any prosecution or proceedings under this Act, any statement in any record, letter or any other document kept, retained, received or dispatched by or on behalf of any person to the effect that any goods of a particular price, value (including any commission, discount, cost, charge, expense, royalty, freight, tax, drawback, refund, rebate, remission or other information which relates to such goods and has a bearing on such price or value) or quantity, quality, nature, strength or other characteristic have been manufactured, imported, ordered, supplied, purchased, sold, dealt with or in or held in stock by him at any time, shall be admissible in evidence against him as an admission that he has at that time manufactured, imported, ordered, supplied, purchased, sold, dealt with or in or held in stock goods of that price, value, quantity, quality, nature, strength or other characteristic.

[Subsection (2) substituted by section 19 of Act 85 of 1968, section 29 of Act 105 of 1969 and section 35 of Act 112 of 1977]

 

(3)     If in any such prosecution or proceedings the question arises whether any goods have been sold or used or disposed of or are or were in the possession of any person in such a manner as not to render them subject to duty, it shall be presumed that such goods have not been so sold or used or disposed of or are not or were not in the possession of such person in the said manner unless the contrary is proved.

[Subsection (3) substituted by section 12 of Act 57 of 1966]

 

(4)     If in any prosecution under this Act or in any dispute in which the State, the Minister or the Commissioner or any officer is a party, the question arises whether the proper duty has been paid or whether any goods or plant have been lawfully used, imported, exported, manufactured, removed or otherwise dealt with or in, or whether any books, accounts, documents, forms or invoices required by rule to be completed and kept, exist or have been duly completed and kept or have been furnished to any officer, it shall be presumed that such duty has not been paid or that such goods or plant have not been lawfully used, imported, exported, manufactured, removed or otherwise dealt with or in, or that such books, accounts, documents, forms or invoices do not exist or have not been duly completed and kept or have not been so furnished, as the case may be, unless the contrary is proved.

[Subsection (4) substituted by section 16 of Act 95 of 1965, section 12 of Act 57 of 1966, section 12 of Act 101 of 1985, section 30 of Act 84 of 1987 and section 64 of Act 45 of 1995]

 

(5)     If in any prosecution under this Act or in any dispute in which the State, the Minister or the Commissioner or any officer is a party, it is alleged by or on behalf of the State or the Minister or the Commissioner or such officer that any goods or plant have been or have not been imported, exported, manufactured in the Republic, removed or otherwise dealt with or in, it shall be presumed that such goods or plant have been or (as the case may be) have not been imported, exported, manufactured in the Republic, removed or otherwise dealt with or in, unless the contrary is proved.

[Subsection (5) added by section 12 of Act 57 of 1966]

Section 103 (Customs Act) – Liability of company, partnership, etc.

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103. Liability of company, partnership, etc.

For the purposes of this Act any reference to a person shall be deemed to include a reference to a company, close corporation, co-operative society, firm, partnership, statutory body or club, and in the event of a contravention of or non-compliance with this Act or the incurring of any liability under this Act by any company, close corporation, co-operative society, firm, partnership, statutory body or club any person having the management of any premises or business in or in connection with which the contravention or non-compliance took place or the liability was incurred may be charged with the relevant offence and shall be liable to any penalties provided therefor and shall be liable in respect of any liability so incurred.

[Section 103 substituted by section 16 of Act 68 of 1989]

104 ……….

[Section 104 repealed by section 6 of Act 25 of 1969]

Section 105 (Customs Act) – Interest on outstanding amounts

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105. Interest on outstanding amounts

 

Notwithstanding anything to the contrary in any law contained –

 

(a)     interest shall be payable from such date and for such period as the Commissioner may determine on any outstanding amount payable in terms of this Act, other than the outstanding amount of any penalty or forfeiture payable in terms of this Act;

 

 (b)    the interest so payable shall be paid at a rate the Minister of Finance determines in terms of section 80(1)(b) of the Public Finance Management Act, 1999 (Act No. 1 of 1999): Provided that where the Minister fixes a new rate in terms of that Act, that new rate applies for purposes of this Act from the first day of the second month following the date on which that new rate came into operation;

[Paragraph (b) substituted by section 6 of Act 32 of 1999, amended by GN 540 of 1999, GN 1066 of 1999 and GN 185 of 2000 and substituted by section 63 of Act 30 of 2000, section 111 of Act 74 of 2002 and section 35 of Act 16 of 2004]

 

(c)     the Commissioner may on such conditions as he may consider necessary –

 

(i)      remit any interest for which any person is liable by virtue of this section;

(ii)     permit payment of any amount referred to in paragraph (a) by instalments of such amounts and at such times as he may determine;

[Paragraph (c) amended by section 65 of Act 45 of 1995]

 

(d)     any such instalment paid shall be utilized by the Commissioner to discharge any penalty, interest, forfeiture, duty and expenses incurred by or charges due to the Commissioner, in that order;

[Paragraph (d) substituted by section 93 of Act 31 of 2005 and section 72 of Act 20 of 2006]

 

(e)     any such interest shall be calculated monthly and a portion of a month shall be regarded as a full month; and

 

 (f)    any such interest recovered shall be paid into the National Revenue Fund.

[Paragraph (f) substituted by section 72 of Act 30 of 1998]

 [Section 105 substituted by section 2 of Act 111 of 1991]

Section 106 (Customs Act) – Sample

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106. Samples

 

(1)     An officer may on entry of any imported goods or goods for export or during the manufacture of any excisable goods, or at any time after such entry or manufacture, take, without payment, from any person in possession of such imported goods or goods for export or of any manufactured or partly manufactured excisable goods samples of such imported, manufactured or partly manufactured goods or of materials intended for the manufacture of excisable goods or of goods used under the provisions of Chapter X, for examination or for ascertaining the duties payable thereon or for such other purpose as the Commissioner may prescribe by rule, and those samples shall be dealt with and accounted for in such manner as the Commissioner may direct.

[Subsection (1) substituted by section 30 of Act 105 of 1969, section 35 of Act 59 of 1990, section 66 of Act 45 of 1995 and section 39 of Act 61 of 2008]

 

(2)     For the purpose of determining the duty leviable in respect of any goods comprising a single consignment, or in any vessel, tank or other container of goods, the nature or characteristics of all the goods in that consignment, vessel, tank or other container shall be deemed to correspond to the nature or characteristics of any sample taken by the officer from such consignment, vessel, tank or other container.