Category: Customs and Excise Act No. 91 of 1964

Section 107A (Customs Act) – Control in respect of manufacturers of certain goods or materials and persons who carry out processes in connection with such goods or materials

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107A. Control in respect of manufacturers of certain goods or materials and persons who carry out processes in connection with such goods or materials

(1)     The manufacturer of any goods or materials used or capable of being used in the manufacture of any goods to which this Act applies and any person who carries out any preliminary, intermediate or supplementary process in connection with such goods or materials or any goods to which this Act applies, shall, in accordance with the directions of the Commissioner –

(a)     register with the Commissioner any such formula, factory, machinery, instrument, appliance or apparatus used in connection with the manufacture of such goods or materials or the carrying out of any such process as the Commissioner may require;

(b)     comply with such conditions relating to such manufacture or the carrying out of any such process as the Commissioner may impose in each case;

(c)     keep such records as the Commissioner may require as to –

(i)      the nature, characteristics, source, origin and quantities of the ingredients of such goods or materials and of such other particulars of the ingredients of such goods or materials as the Commissioner may specify;

(ii)     the process carried out in respect of such goods or materials;

(iii)    the persons on whose behalf such processes were carried out; and

(iv)    the purchasers of such goods or materials;

(d)     render such returns or furnish such certificates in respect of such goods or materials, as the Commissioner may require; and

(e)     produce such documents in support of any records kept in terms of paragraph (c) or returns or certificates rendered or furnished in terms of paragraph (d), as the Commissioner may require.

(2)     For the purposes of subsection (1) any preliminary, intermediate or supplementary process in connection with any goods or materials in that subsection mentioned, shall include any such process relating to the ordering, purchasing, selling or disposal of, and the entering into any contract for the manufacture of, any such goods or materials.

[Subsection (2) added by section 32 of Act 105 of 1969]

[Section 107A inserted by section 13 of Act 57 of 1966]

 

108 .……….

[Section 108 repealed by section 36 of Act 59 of 1990]

Section 109 (Customs Act) – Destruction of goods and detention of ships or vehicles

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109. Destruction of goods and detention of ships or vehicles

(1)     If it is necessary to give effect to any law for the safeguarding of public health or for the safety of the public or the State, the Commissioner may in concurrence with the authority administering such law at any time, and at the expense and risk of the importer, exporter, owner, master or pilot concerned, according as the Commissioner may determine –

(a)     cause any goods under customs and excise control forthwith to be destroyed or otherwise disposed of; or

(b)     delay the departure of any ship or vehicle from any place in the Republic for a period not exceeding forty-eight hours.

[Subsection (1) amended by section 12 of Act 93 of 1978, section 68 of Act 45 of 1995 and section 139 of Act 60 of 2001]

(2)     No person shall be entitled to any compensation for loss arising out of any bona fide action of the Commissioner under subsection (1).

Section 11 (Customs Act) – Landing of unentered goods

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11. Landing of unentered goods

(1)     All goods imported into the Republic by ship or aircraft shall, if landed before due entry thereof, be placed in a transit shed, container terminal, container depot or State warehouse, or removed to any other place approved by the Controller.

(2)     All goods landed from a ship or aircraft before due entry of such goods and placed in a transit shed or other approved place in accordance with the provisions of subsection (1) shall be deemed to be still in the ship or aircraft, and as long as such goods remain in such shed or place, the master or pilot, as the case may be, shall remain responsible therefor in all respects and liable for the duty thereon as if the goods had not been removed from such ship or aircraft.

[Section 11 amended by section 2 of Act 105 of 1976 and substituted by section 6 of Act 45 of 1995]

Section 110 (Customs Act) – Instruments and tables

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110. Instruments and tables

(1)     Except as elsewhere provided in this Act, the Commissioner may by rule prescribe the instruments, meters, gauges, and other appliances and the tables, formulae and other methods of calculation to be used in ascertaining the mass, quantity, strength, relative density, temperature, pressure or any other characteristic of any goods for the purposes of this Act.

(2)     For calculating the full quantity of any goods which have been manufactured or used under the provisions of this Act, the Commissioner may by rule prescribe tables indicating the quantity of goods which shall be deemed to have been manufactured from any given quantity of any goods or the quantity of goods which shall be deemed to have been used in the manufacture of any given quantity of any goods manufactured therefrom.

[Section 110 amended by section 10 of Act 103 of 1972 and substituted by section 69 of Act 45 of 1995]

Section 111 (Customs Act) – Production of certificates of officer on registration of certain motor vehicles

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111. Production of certificate of officer on registration of certain motor vehicles

(1)     Any motor vehicle registering authority in the Republic shall not register any imported motor vehicle unless a certificate issued by an officer is produced stating that the requirements of this Act in respect of such vehicle have been complied with.

(2)     For the purposes of subsection (1) the expression “imported motor vehicle” includes any motor vehicle manufactured in the Republic which is re-imported into the Republic.

[Subsection (2) substituted by section 20 of Act 36 of 2007]

[Section 111 substituted by section 11 of Act 71 of 1975 and section 19 of Act 52 of 1986]

Section 112 (Customs Act) – Wreck

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112. Wreck

(1)     For the purposes of this section ‘wreck’ includes any –

(a)     flotsam, jetsam, lagan or derelict;

(b)     portion of a ship or aircraft lost, abandoned, stranded or in distress;

(c)     portion of the cargo, stores or equipment of any such ship or aircraft; and

(d)     portion of the personal property on board such ship or aircraft when it was lost, abandoned, stranded or in distress.

[Subsection (1) substituted by section 34 of Act 34 of 2004]

(2)     Any person who has in his possession any wreck, shall without delay give notice thereof to the nearest Controller and shall (unless he is the owner of such wreck or the duly authorized agent of the owner) if required, forthwith deliver that wreck or permit it to be delivered to the said Controller, and unless it is necessary for the preservation or safe-keeping thereof, no person shall without the permission of the said Controller remove or alter in quantity or quality any such wreck.

(3)     Wreck found in or brought into the Republic may, at any time after it has come under the control of the Controller, be disposed of by him in the manner set forth in section 43(3), but shall otherwise be subject to the provisions of this Act.

[Subsection (3) substituted by section 21 of Act 85 of 1968, section 70 of Act 45 of 1995 and section 34 of Act 34 of 2004]

Section 113A (Customs Act) – Powers and duties of officers in connection with counterfeit goods

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113A. Powers and duties of officers in connection with counterfeit goods

 

(1)     An officer may –

 

(a)     detain any goods to ascertain whether such goods are counterfeit goods as contemplated in the Counterfeit Goods Act, 1997 (Act No. 37 of 1997); or

(b)     notwithstanding anything to the contrary contained in the said Act, while acting as an inspector as defined in that Act

 

(i)      seize and detain any goods when requested to do so in accordance with the provisions of section 15 of the said Act whether or not such goods are under customs control;

(ii)     seize and detain any goods in accordance with the provisions of the said Act where such officer has reasonable cause to believe that such goods are prima facie counterfeit goods as defined in that Act while such goods are under customs control; or

(iii)    seize and detain any goods while such goods are in transit through the Republic or transit goods found in the area of control of any Controller where such officer has reasonable cause to believe that such goods are prima facie counterfeit goods as defined in the said Act.

 

(2)     An officer –

 

(a)     may refuse to detain any goods as contemplated in subsection (1)(h)(i) in Circumstances where the request to do so does not conform with the requirements of the said Act; and

(b)     shall not seize or detain any counterfeit goods where the Commissioner is not indemnified against claims of any nature which may result from such seizure and detention.

 

(3)     Subject to section 43(6), no goods seized or detained by an officer acting as an inspector as contemplated in the Counterfeit Goods Act, 1997, may be stored in a State warehouse except where such goods are detained or seized for purposes of this Act.

 

(4)     Notwithstanding anything to the contrary contained in any other law, no person shall be entitled to any compensation for any loss or damage to any goods to which this section relates or any loss or damage sustained resulting from any bona fide act of any officer in respect of such goods.

 

(5)     The Commissioner may make rules-

 

(a)     regarding the procedures to be followed by an officer when exercising any power or performing any duty in connection with the detention of any goods under the provisions of subsection (1)(a) or the seizure and detention of counterfeit goods;

(b)     prescribing such forms as may be required to be completed for purposes of this section; and

(c)     concerning any other matter which the Commissioner may consider reasonably necessary and useful for the purpose of administering the provisions of this section.

[Section 113A inserted by section 52 of Act 30 of 2002]

Section 114 (Customs Act) – Duty constitutes a debt to the State

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114. Duty constitutes a debt to the State

(1)    


(a)    


(i)      An amount of an duty, interest, penalty or forfeiture incurred under this Act and which is payable in terms of this Act, shall, when it becomes due or is payable, be a debt due to the State by the person concerned and shall be recoverable by the Commissioner in the manner hereinafter provided.

[Subparagraph (i) substituted by section 73 of Act 20 of 2006]

(ii)     If any person fails to pay any amount of any duty, interest, fine, penalty or forfeiture incurred under this Act, when it becomes due or is payable by such person, the Commissioner may file with the clerk or registrar of any competent court a statement certified by him as correct and setting forth the amount thereof so due or payable by that person, and such statement shall thereupon have all the effects of, and any proceedings may be taken thereon as if it were a civil judgement lawfully given in that court in favour of the Commissioner for a liquid debt of the amount specified in the statement.

(iii)   


(aa)   The Commissioner may by notice in writing addressed to the clerk or registrar, withdraw the statement referred to in subparagraph (ii), and such statement shall thereupon cease to have any effect: Provided that the Commissioner may institute proceedings afresh under that subsection in respect of any duty, interest, penalty or forfeiture referred to in the withdrawn statement.

[Item (aa) substituted by section 73 of Act 20 of 2006]

(bb)   Notwithstanding anything contained in the Magistrates’ Courts Act, 1944 (Act No. 32 of 1944), a statement for any amount whatsoever may be filed in terms of subparagraph (ii) with the clerk of the magistrate’s court having jurisdiction in respect of the person by whom such amount is payable in accordance with the provisions of this Act.

(cc)   Pending the conclusion of any proceedings, whether internally or in any court, regarding a dispute as to the amount of any duty, interest, fine, penalty or forfeiture payable, the statement filed in terms of subparagraph (ii) shall, for purposes of recovery proceedings contemplated in subparagraph (ii), be deemed to be correct.

(iv)   


(aa)  


(A)    Any imported or excisable goods, vehicles, machinery, plant or equipment, any goods in any customs and excise warehouse, any goods in a rebate store room, any goods in the custody or under the control of the Commissioner and any goods in respect of which an excise duty or fuel levy is prescribed, and any materials for the manufacture of such goods, of which such person is the owner, whether imported, exported or manufactured before or after the debt became so due and whether or not such goods are found in or on any premises in the possession or under the control of the person by whom the debt is due, may be detained in accordance with the provisions of subsection (2) and shall be subject to a lien until such debt is paid.

(B)    Whenever a person alleges that he or she is not the owner of goods as contemplated in subitem (A), he or she must furnish proof thereof to the Commis­sioner within 14 days from the date of the detention of the goods.

(C)    Where the person concerned proves that he or she is not the owner of the goods as contemplated in subitem (B), the Commissioner must without delay release such goods from the operation of the lien.

(D)    Any person who, without reasonable cause, fails to comply with subitem (B),  shall be guilty  of an offence  and  liable  on  conviction  to  a  fine  not exceeding R20 000 or to imprisonment for a period not exceeding five years or to both such fine and such imprisonment.

(E)     In the absence of evidence to the contrary which raises a reasonable doubt, proof by the Commis­sioner of the failure by the person concerned to comply with subitem (B) shall be sufficient evidence of the absence of reasonable cause.

(bb)   Any imported or excisable goods, vehicles, machinery, plant or equipment, in the possession or under the control of such person or in or on any premises in the possession or under the control of such person and in respect of which such person has entered into any credit agreement as contem­plated in the National Credit Act, 2005 and of which the right, title or interest of such person may be readily established and excussed, may be detained in accordance with the provisions of subsection (2) and shall, subject to subparagraph (vi)(cc), be subject to a lien until such debt is paid.

[Item (bb) amended by section 172 of Act 34 of 2005]

[Subparagraph (iv) substituted by section 94 of Act 31 of 2005]

(v)     Whenever any of the goods mentioned in subparagraph (iv)(bb) are subject to a lien the person concerned shall without delay advise the Commissioner, or the officer detaining and subjecting such goods to a lien, of the existence of any such agreement setting forth at least the following –

(aa)   The name and address of the credit provider as intended in the said National Credit Act, 2005;

[Item (aa) amended by section 172 of Act 34 of 2005]

(bb)   The amount of the principal debt as intended in the National Credit Act, 2005 in respect of the applicable credit agreement;

[Item (bb) amended by section 172 of Act 34 of 2005]

(cc)   The duration of the agreement;

(dd)   The outstanding balance due; and

(ee)   A copy of such agreement.

(vi)   


(aa)   The Commissioner shall without delay advise the credit provider concerned of such detention and lien and shall enquire as to the right, title or interest of such person in such goods.

[Item (aa) amended by section 172 of Act 34 of 2005]

(bb)   The credit provider concerned shall, where such right, title or interest is determinable, without delay advise the Commissioner of such right, title or interest of the person concerned in the goods, expressed as a liquid amount, and the lien shall thereafter serve as security for such liquid amount and such amount may be recovered as provided for in paragraph (ii).

[Item (bb) amended by section 172 of Act 34 of 2005]

(cc)   In circumstances where such credit provider advises the Commissioner that the right, title or interest of the person concerned is economically insignificant or does not exist, the Commissioner shall without delay remove such goods from the operation of the lien.

[Item (cc) amended by section 172 of Act 34 of 2005]

(dd)   Any person who, without reasonable cause fails to advise the Commissioner of the existence of any credit agreement contemplated in subparagraph (v) shall be guilty of an offence and liable on conviction to a fine not exceeding R20 000,00 or to imprisonment for a period not exceeding five years or to both such fine and such imprisonment.

(ee)   In the absence of evidence to the contrary which raises a reasonable doubt, proof by the Commissioner of the failure to advise the Commissioner of the existence of such credit agreement shall be sufficient evidence of the absence of reasonable cause.

[Paragraph (a) substituted by section 33 of Act 105 of 1969, section 12 of Act 71 of 1975, section 13 of Act 101 of 1985, section 32 of Act 84 of 1987 and section 37 of Act 59 of 1990, amended by section 34 of Act 34 of 1997 and substituted by section 112 of Act 74 of 2002]

(aA)  Any plant and stills for the manufacture of any goods in respect of which an excise duty or fuel levy is prescribed which are in the possession or under the control of such person or on any premises in the possession or under the control of such person shall be subject to a lien from the time when the liability for the duty or levy payable as contemplated in paragraph (a) in respect of any goods so manufactured commences until the debt in question is paid, as if such plant and stills are detained in accordance with the provisions of subsection (2): Provided that the Commissioner may allow any such plant or still to be used under such conditions as he may impose in each case.

[Paragraph (aA) inserted by section 12 of Act 71 of 1975, substituted by section 32 of Act 84 of 1987 and amended by section 37 of Act 59 of 1990]

(aB)  Any capital goods in respect of which any surcharge has been withdrawn in terms of any permit issued by the Director-General: Trade and Industry shall be subject to a lien as security for the surcharge so withdrawn until the conditions specified in such permit have been complied with to the satisfaction of the said Director-General, as if such goods are detained in accordance with the provisions of subsection (2) unless other security is furnished to the satisfaction of the Commissioner.

[Paragraph (aB) inserted by section 37 of Act 59 of 1990]

(aC)  Any dutiable goods of whatever nature, which are stored in any customs and excise warehouse licensed for any purpose under this Act shall be subject to a lien, as if the goods are detained in accordance with the provisions of subsection (2), as security for the duty on such goods from the time of receipt of such goods in such warehouse until such goods have been duly entered for any purpose under this Act and any liability for duty of the licensee of such warehouse in respect of such goods has ceased in terms of this Act.

[Paragraph (aC) added by section 140 of Act 60 of 2001]

(b)    


(i)      The claims of the State shall have priority over the claims of all persons upon anything subject to a lien contemplated in paragraph (a), (aA), (aB) or (aC) and may be enforced in accordance with the provisions of this section if the debt is not paid upon demand after the person by whom the debt is due is in writing advised of such debt and of the date on which such debt becomes due and is payable.

(ii)     The Commissioner and the credit provider concerned may, notwithstanding anything to the contrary in this Act or any other law contained, and subject to such conditions as may be agreed upon, agree to dispose of any goods contemplated in paragraph (a)(iv)(bb) in order to preserve and secure the interests of all parties in such goods and in the proceeds of the disposal of such goods pending the resolution of any dispute in respect of which an interest in such goods is secured by such lien.

[Subparagraph (ii) amended by section 172 of Act 34 of 2005]

(iii)    In the event of any goods subjected to a lien being attached pursuant to a warrant of execution, such goods shall, notwithstanding anything to the contrary contained in the said Magistrates’ Court Act, 1944 (Act No. 32 of 1944) or its rules, where such goods are not detained in the State Warehouse, be removed by an officer to the State Warehouse and such goods may thereupon be disposed of in accordance with the provisions of this section.

(iv)    Where, in addition to any amount of duty which is due or is payable by any person in terms of this Act, any penalty, forfeiture or interest is incurred under this Act and is payable by such person, any payment made by that person or any amount recovered pursuant to any sale of such goods as contemplated in this section shall be utilised by the Commissioner to discharge such payment or amount in the order of –

(aa)   any penalty, interest, forfeiture, duty and expenses incurred by or charges due to the Commissioner; and

[Item (aa) substituted by section 73 of Act 20 of 2006]

(bb)   payment of the overplus, on application, if any, to the person by whom the debt was due.

[Subparagraph (iv) substituted by section 94 of Act 31 of 2005 and amended by section 98 of Act 35 of 2007]

[Paragraph (b) substituted by section 12 of Act 71 of 1975, amended by section 71 of Act 53 of 1999 and substituted by section 112 of Act 74 of 2002]

(c)     Any refund of duty or a deposit or any other amount due to such person in respect of any matter whatsoever, may be set off against such debt.

(2)    


(a)     The Commissioner or an officer may detain anything referred to in subsection (1)(a) by sealing, marking, locking, fastening or otherwise securing or impounding it on the premises where it is found or by removing it to a place of security determined by the Commissioner: Provided that the Commissioner may allow any such thing to be used under such conditions as he may impose in each case which conditions shall include that the person who is allowed to use such thing shall not enter into any agreement whereby –

(i)      ownership or possession of such thing is transferred or relinquished in any manner whatsoever to any other person;

(ii)     such thing is pledged or otherwise hypothecated in favour of any other person.

(b)    


(i)      Any agreement entered into contrary to those conditions shall be null and void.

(ii)     If such person so enters into any such agreement or otherwise deals with such thing contrary to any conditions imposed by the Commissioner, an officer may detain such thing wheresoever and in possession of whomsoever found and remove it to a place of security, whereafter the Commissioner may dispose thereof at any time as contemplated in subsection (1)(b) if the debt has not been paid.

(iii)    The person by whom the debt is due shall be liable for all reasonable costs and expenses incurred by and charges due to the Commissioner in respect of such detention or removal of the thing concerned.

[Subsection (2) substituted by section 33 of Act 105 of 1969, section 12 of Act 71 of 1975 and section 71 of Act 53 of 1999]

(2A)  Except with the permission of the Commissioner, no person shall remove –

(a)     any plant or stills, subject to a lien in terms of subsection (1)(aA), from the place indicated by an officer;

(b)     anything detained under subsection (2) from the premises referred to in that subsection or from the place of security to which it may have been removed under that subsection.

[Subsection (2A) inserted by section 36 of Act 112 of 1977 and amended by section 71 of Act 53 of 1999]

(3)     Any reference to goods in this section shall be deemed to include a reference to the containers of such goods.

Section 114B (Customs Act) – Power to appoint an agent

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114B. Remedies of Commissioner against agent or trustee

The Commissioner shall have the same remedies against all property of any kind vested in or under the control or management of any agent or person acting in a fiduciary capacity as the Commissioner would have against the property of any person liable to pay any duty, interest, penalty or forfeiture payable under this Act and in as full and ample a manner.

[Section 114B inserted by section 154 of Act 45 of 2003 and substituted by section 23 of Act 36 of 2007]

Section 115 (Customs Act) – Entries, oaths, etc., made outside the Republic of full force and effect

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115. Entries, oaths, etc., made outside the Republic of full force and effect

Any entry, writing, oath or declaration required to be made under this Act shall, if made outside the Republic to or before an officer of the Republic, be binding and of full force and effect in the Republic.