47B. Air passenger tax
(1) For the purposes of this section, unless the context otherwise indicates –
Category: Customs and Excise Act No. 91 of 1964
Section 49 (Customs Act) – Agreements in respect of rates of duty lower than general rates of duty and other agreements providing for matters requiring customs administration
49. Agreements in respect of rates of duty lower than general rates of duty and other agreements providing for matters requiring customs administration
[Heading substituted by section 24 of Act 34 of 2004]
(1)
(a) Whenever any international agreement which binds the Republic as contemplated in section 231 of the Constitution of the Republic of South Africa, 1996, is an agreement –
(i) which includes the granting of preferential tariff treatment of goods and provisions of origin governing such treatment;
(ii) concerning customs co-operation, including for the exchange of information and the rendering of mutual and technical assistance in respect of customs co-operation;
[Subparagraph (ii) substituted by section 12 of Act 36 of 2007]
(iii) regulating transit trade and transit facilities; or
(iv) which is a customs union agreement with the government of any territory in Africa;
[Subparagraph (iv) substituted by section 46 of Act 30 of 2002]
(v) which provides for any other matter which either expressly or by implication requires to be administered by customs legisation;
[Subparagraph (v) added by section 46 of Act 30 of 2002]
such agreement or any protocol or other part or provision thereof is enacted into law as part of this Act when published by notice in the Gazette in accordance with the provisions of subsections (1) and (1A) of section 48 or subsection (5) or (5B) of this section.
[Paragraph (a) amended by section 60 of Act 30 of 2000, section 127 of Act 60 of 2001 and section 12 of Act 9 of 2007]
(b)
(i) Any amendment of such agreement or any protocol or other part or provision thereof, any regulations for facilitating implementation, any agreed list of processing relating to originating status of goods, any annex or appendix or other addition to such agreement or protocol or any other matter agreed upon between governments or by any committee of, or a body established by, the parties to such agreement or any decision or condition imposed by such committee or body, is likewise enacted into law as part of this Act when published in accordance with the provisions of subsections (1) and (1A) of section 48 or subsection (5) or (5B) of this section by notice in the Gazette as an amendment of such agreement or protocol or part or provision, as the case may be, with effect from any date that may be specified in such notice.
[Subparagraph (i) substituted by section 60 of Act 30 of 2000 and section 46 of Act 30 of 2002]
(ii) In this section and in section 48 “instrument” includes, according to the context, any agreement or any amendment of such agreement or any protocol or other part or provision thereof or any document containing any regulation, list, decision or any matter agreed upon as contemplated in subparagraph (i).
(c) In this section and in sections 47 and 48 “agreement” includes, unless the context otherwise indicates, any international agreement, treaty or convention.
[Paragraph (c) substituted by section 127 of Act 60 of 2001]
(2)
(a) The Commissioner shall obtain and keep two copies of such agreement, effect any amendments referred to in section 1 (b) thereto, record the date the agreement or any such amendment entered into force and the date of any publication referred to in subsection (1).
(b) Whenever in any legal proceedings any question arises as to the contents of such agreement or as to the date on which such agreement or amendment entered into force or the date of such publication, a copy of such agreement as so amended and the record of such dates, shall be accepted as sufficient proof of the contents thereof and the date of publication or the date on which such agreement or amendment entered into force.
(c) If the context so requires, the interpretation and application of any provision of any protocol or other part of such agreement referred to in this section or section 48(1A) shall be subject to other applicable provisions of such agreement.
(3) Notwithstanding anything to the contrary in this Act contained –
(a) the application of any provision of this Act relating to any importer, exporter, remover in bond, manufacturer, licensee or other principal or any agent or the importation or exportation of goods, the preferential tariff treatment of goods, goods obtained, produced or manufactured, goods in transit or removed in bond, due entry or security in respect of goods imported, exported, removed in bond or in transit, or any other provision or customs procedure or any power, duty or function in connection therewith, shall, for the purposes of giving effect to any agreement contemplated in section 49 or any protocol or other part or provision thereof, be subject to compliance with the provisions of such agreement or such protocol or other part or provision thereof, as the case may be;
(b) any reference in this Act to any protocol or other part or provision of such agreement shall be deemed to include a reference to any instrument referred to in section 49 (1)(b) applicable thereto and any provision of such agreement governing such protocol or other part or provision or instrument, as the case may be.
(4)
(a) If any reference is made in such agreement to any convention, treaty or other agreement which is to be observed in ascertaining the originating status of goods obtained, produced or manufactured and imported or exported in specified instances, the Commissioner shall obtain and keep two copies of such convention, treaty or agreement, effect any amendment thereto and record the date the convention, treaty or agreement entered into force as advised by the Director-General: Trade and Industry.
(b) The provisions of subsection (2)(b) shall apply mutatis mutandis to the copies of such convention, treaty or other agreement.
(c) To the extent that any provision of such convention, treaty or other agreement requires to be so observed, it shall be deemed to be incorporated in the agreement concerned.
(5) Where any such agreement or protocol or other part or provision thereof does not relate to the origin of goods as envisaged in section 48(1A), but otherwise by reference to customs or competent authorities or customs or domestic or national legislation or like expressions or in any other way expressly or by implication requires that it should be administered in terms of this Act, the Minister may by notice in the Gazette in Schedule No. 10 to this Act under the title “Agreement or protocols or other parts or provisions thereof contemplated in section 49 (5)” publish –
(a) in separate parts of such Schedule, any such agreement or any protocol or other part or provision of such agreement, including any annexure or appendix thereto for the purposes of subsection (1)(a);
[Paragraph (a) substituted by section 24 of Act 34 of 2004]
(b) any instrument contemplated in, and for the purposes of; subsection (1)(b);
(c) notes to such Schedule No. 10 wherein may be specified –
(i) definitions;
(ii) interpretations of words and phrases or substitutes for words and phrases;
(iii) any condition or procedure or provision of this Act to be complied with in order to give effect to such agreement or protocol or part or provision of such agreement;
(iv) powers, duties or functions of the Commissioner or an officer;
(d) any amendment of Schedule No. 10 and any note thereto with or without retrospective effect for any reason as may be specified in such amendment.
(5A) The provisions of section 48(6) shall apply mutatis mutandis in respect of any amendment made under the provisions of subsection (5)(d).
(5B) Notwithstanding the provisions of subsection (5), the Minister may include in any notice published under that subsection, the full text of any such agreement or protocol except any protocol or other part thereof, as the case may be, published under subsection 48(1A), and if so included, the whole agreement or protocol, as the case may be, shall be enacted into law as part of this Act as contemplated in subsection (1)(a).
[Subsection (5B) inserted by section 60 of Act 30 of 2000]
(6) In administering the provisions of any agreement, including any protocol or other part or provision thereof or any other instrument contemplated in this section, and the application of any procedure to give effect thereto, the Commissioner may, notwithstanding anything to the contrary in this Act contained –
(a) decide on or determine any matter or perform any duty or function or impose any condition in connection with the provisions so administered, including any decision on or determination or the performance of any duty or function or the imposing of any condition in respect of –
(i) any heading in Part 1 or any item of any other Part of Schedule No. 1 applicable to any goods imported or exported, obtained, produced or manufactured or used in the production or manufacture of any goods, or the customs value of any such imported goods;
(ii) the first ascertainable price of goods where the customs value is not known or cannot be ascertained;
(iii) any provision which governs or specifies any procedure concerning –
(aa) the origin or proof of origin of goods imported or exported;
(bb) the importation or exportation or production or manufacture of goods and the ex-factory price of goods;
(cc) tariff quotas;
(dd) rendering mutual and technical assistance in respect of customs co-operation;
(ee) transit carriage of goods, transit trade and transit facilities;
(ff) requirements in connection with agency where any person is represented in the importation or exportation of any goods involving proof of origin or in any matter relating to the transit carriage of goods, transit trade or transit facilities;
(gg) the approval of exporters to issue invoice declarations or withdrawal or refusal of such approval;
(iv) any other power, duty or function or procedure provided in any such agreement or protocol or other part or provision thereof which requires either expressly or by implication customs administration action to give effect thereto;
(v) the convention, treaty or agreement referred to in subsection (4);
(vi) a binding origin determination and any procedure in connection therewith;
(b) make rules –
(i) concerning any matter referred to in paragraph (a), including such convention, treaty or agreement;
(ii) where reference is made to customs or competent authorities, to domestic, national or customs law or any like reference or any other matter which requires either expressly or by implication application of customs legislation;
(iii) in connection with the entry of goods imported or exported and documents to be produced in support thereof;
(iv) to regulate the application, determination, entry of goods and other procedures in connection with binding origin determinations;
(v) prescribing forms or procedures or specifying any condition or provision of this Act to be complied with to give effect to such agreement, protocol or other part or provision thereof;
(vi) to delegate, subject to section 3(2), any power, duty or function to any officer or other person;
(vii) regarding any other matter which may be necessary or useful for the purposes of administering such provisions;
(c) subject to such conditions as the Commissioner may in each case impose, enter into any agreement with any person, with the concurrence of any exporter, producer or manufacturer, as the case may be, to perform any function or provide any service for the purposes of establishing and reporting on the origin of goods or issuance of any proof of origin to give effect to such agreement.
(7)
(a) Notwithstanding the provisions of section 47(9), 65(4) or 66(9), any determination of any heading or item or the customs value of goods imported shall, if such determination concerns goods used in the production or manufacture of any goods, or goods produced or manufactured therefrom, or any other goods, of which the origin is being determined, be made in terms of this section.
(b) For the purposes of any appeal against a decision or determination of the Commissioner in administering any of the provisions referred to in this section –
(i) any decision or determination shall, subject to appeal to court, be deemed to be correct for the purposes of this Act, and where any amount is payable in consequence thereof, such amount shall remain payable as long as such decision or determination remains in force: Provided that if it involves disputes with foreign customs authorities, the processes for dispute settlement provided in the agreement shall be followed;
(ii) subject to the provisions of subsection (8), any decision or determination may be amended or withdrawn and a new decision or determination made from the date the decision or determination was given, but such a decision or determination shall mutatis mutandis be subject to the provisions of section 76B if any refund of duty is involved;
(iii) an appeal against any such decision or determination shall be to the division of the High Court having jurisdiction to hear appeals in the area wherein the decision or determination was made or the goods in question were entered for home consumption or exported.
(c) Such appeal shall, subject to section 96(1), be prosecuted within a period of one year from the date of the decision or determination.
(8)
(a) For the purposes of any binding origin determination, unless the context otherwise indicates –
Section 4A (Customs Act) – Powers of arrest
4A. Powers of arrest
(1) Notwithstanding anything to the contrary contained in this Act, the Commissioner –
(a) may determine a category of officers who have the power to carry out an arrest for the purposes of enforcing this Act; and
(b) must furnish each such officer with an appropriate certificate and identification card stating that the officer is authorised to carry out an arrest for the purpose of enforcing this Act.
(2) In exercising the powers of arrest contemplated in subsection (1), an officer shall be deemed to be a peace officer as defined in section 1 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), and such officer shall be subject to any relevant provision in Chapter 5 of that Act applicable to a peace officer.
(3) Any person arrested by an officer must as soon as possible be brought to a police station or, in the case of an arrest by warrant, to any other place expressly mentioned in the warrant and further be dealt with in the manner contemplated in section 50 and other provisions of the Criminal Procedure Act, 1977 (Act No. 51 of 1977).
[Section 4A inserted by section 26 of Act 61 of 2008 effective on 31 Mar 2009]
Section 4B (Customs Act) – Possession and use of firearms
4B. Possession and use of firearms
(1)
(a) The Commissioner may determine a category of officers authorised to possess firearms for the purposes of enforcing this Act.
(b) The possession and use of firearms by officers shall be subject to the provisions of sections 95 to 101 of the Firearms Control Act, 2000 (Act No. 60 of 2000), and the regulations made thereunder, to the extent that those provisions relate to an Official Institution.
(2) Any power conferred or duty imposed in the Firearms Control Act, 2000 (Act No. 60 of 2000), on the head of an Official Institution or on an Official Institution shall be deemed to be conferred or imposed on the Commissioner.
(3)
(a) An officer to whom the Commissioner issues a permit to possess a firearm, must carry such permit on his or her person when he or she is in possession of a firearm.
(b) The permit contemplated in paragraph (a) is proof that such an officer is authorised to possess an official firearm.
(c) If, for any reason, an officer is unable to produce such a permit when required to do so, a statement by the Commissioner to the effect that such a permit has been issued is sufficient proof that the officer is authorised to have the firearm in his or her possession.
(4) The Commissioner may authorise the use of non-lethal weapons by officers in such circumstances and in such a manner as may be prescribed by rule.
(5) The Commissioner may make rules to facilitate the administration of this section, including rules-
(a) concerning the acquisition, record-keeping, issuing of permits, carrying, possession, use, safe-keeping, transport, theft, loss and disposal of firearms and ammunition;
(b) concerning the manner of reporting the firing of an official firearm and the procedures to be followed in respect thereof;
(c) concerning the type of non-lethal weapons that may be used by officers, the manner of their use and the safety and control measures that must be complied with in respect of such weapons;
(d) prescribing the manner in which official firearms, ammunition and related equipment must be marked and identified;
(e) regarding the training of officers contemplated in this section, including-
(i) the training and the certification requirements for the safe use of firearms and ammunition;
(ii) the levels of training; and
(iii) the standards required to ensure competency and certification in respect of any particular task; or
(f) in respect of any other matter which the Commissioner may consider reasonably necessary and useful for the efficient and effective administration of the provisions contained in this section.
[Section 4B inserted by section 26 of Act 61 of 2008 effective on 31 Mar 2009]
Section 4C (Customs Act) – Border Patrol
4C. Border Patrol
(1)
(a) Notwithstanding anything to the contrary contained in any other law, the Commissioner may patrol the borders of the Republic and acquire any equipment necessary for patrolling the land and sea borders of the Republic, including any-
(i) patrol boats, aircraft and other vehicles; and
(ii) arms and ammunition required to equip or supply any customs patrol boat, aircraft or other vehicle.
(b) When patrolling the borders of the Republic an officer may arrest any person in accordance with the provisions of section 4A.
(2)
(a) The customs officer commanding any customs patrol boat having hoisted and carrying or displaying the South African Revenue Service (SARS) customs ensign or flag may pursue any vessel where-
(i) that vessel does not immediately come to a stop when signalled, ordered or required to do so; or
(ii) the operator of the vessel refuses to permit the vessel to be boarded.
(b) The customs officer commanding any customs patrol boat involved in pursuing a vessel as contemplated in paragraph (a) may, as a last resort and after having fired a warning, fire at or into the vessel to compel it to come to a stop.
(3)
(a) Any customs patrol boat may exercise on behalf of the Republic, or on behalf of a foreign state, the right of hot pursuit of any vessel in accordance with Article 111 of the United Nations Convention on the Law of the Sea.
(b) The seizure of such a vessel and the arrest of any person on board such a vessel may be effected by any customs officer on board a customs patrol boat.
(4) Notwithstanding anything to the contrary contained in any other law-
(a) customs patrol boats, aircraft and vehicles are exempted from any-
(i) registration, licensing or other requirement or any related fee normally applicable to the possession or movement of vessels, aircraft or vehicles, if clearly marked and identifiable as a customs patrol boat, aircraft or vehicle; or
(ii) mooring, docking, landing or road toll fee, or any similar charge, whilst used for official duties; and
(b) officers serving on board customs patrol boats are exempted from any provisions in any other law relating to their competency or certification if adequately trained and tested in accordance with the standards prescribed by rule in order to ensure their competency and certification.
(5) The Commissioner may make rules-
(a) as to all matters required or permitted by this section to be prescribed by rule;
(b) in respect of any other matter which the Commissioner may consider reasonably necessary and useful for the efficient and effective administration of the provisions contained in this section.
[Section 4C inserted by section 26 of Act 61 of 2008 effective on 31 Mar 2009]
Section 4D (Customs Act) – Officers’ powers relating to criminal prosecution
4D. Officers’ powers relating to criminal prosecutions
An officer may-
(a) investigate for purposes of a criminal prosecution whether an offence in terms of this Act has been committed;
(b) lay criminal charges for the prosecution of any such offence; and
(c) provide such assistance as may be required by the prosecuting authority for the prosecution of any such offence.
[Section 4D inserted by section 17 of Act 39 of 2013 effective on 16 January 2014]
Section 5 (Customs Act) – Application of Act
5. Application of Act
Notwithstanding anything to the contrary in any other law contained, for the purposes of this Act –
(a) ……….
[Paragraph (a) deleted by section 5 of Act 59 of 1990]
(b) the continental shelf as referred to in section 8 of the Maritime Zones Act, 1994 (Act No. 15 of 1994),
[Paragraph (b) substituted by section 1 of Act 44 of 1996]
shall be deemed to be part of the Republic.
(c) Any installation or device of any kind whatever, including any floating or submersible drilling or production platform, constructed or operating upon, beneath or above the said continental shelf for the purpose of exploring it or exploiting its natural resources shall be deemed to be constructed or operating within the Republic.
(d) Any goods mined or produced in the operation of such installation or device and conveyed therefrom to the shore whether by pipeline or otherwise and any person or other goods conveyed by any means to and from such installation or device shall be deemed to be so conveyed within the Republic.
[Section 5 substituted by section 2 of Act 68 of 1989]
Section 50 (Customs Act) – Provisions relating to the disclosure of information in terms of agreements
50. Provisions relating to the disclosure of information in terms of agreements
(1) Notwithstanding the provisions of section 4(3) or any other law relating to confidentiality or secrecy, but subject to section 101B, the Commissioner may, in accordance with-
(a) any international agreement in respect of mutual administrative assistance and cooperation or exchange of information in customs matters which is in force and binds the Republic in terms of section 231 of the Constitution of the Republic of South Africa, 1996, hereinafter referred to as the ‘Constitution’; or
(b) any other international agreement which is in force and binds the Republic in terms of section 231 of the Constitution, and in circumstances where the Commissioner is on good cause shown, satisfied that the international or regional interest or national public interest in the disclosure of information outweighs any potential harm to the person, firm or business to whom or to which such information relates-
(i) disclose, or for the purpose of paragraph (a), in writing authorise any officer to disclose, any information relating to any person, firm or business acquired by an officer in carrying out any duty under this Act;
(ii) render mutual and technical assistance in accordance with any agreement contemplated in paragraph (a); and
(iii) in writing authorise any officer to exercise any power under this Act which may be considered necessary for the purpose of rendering such assistance or obtaining such information.
(2)
(a)
(i) If any agreement referred to in subsection (1)(a) provides for the automatic exchange of information of the cross-border movement of means of transport, goods and persons the Commissioner may determine the information, including the contents of any documents relating to clearance declarations for such movement, that will be allowed to be disclosed as contemplated in subsection(1)(b)(i).
(ii) Notwithstanding subsection (1) and subparagraph (i), the Commissioner may not disclose information in terms of this section where any of the grounds for refusal referred to in Chapter 4 of the Promotion of Access to Information Act, 2000 (Act No. 2 of 2000), applies except if disclosure is authorised for the purposes contemplated in section 46 of that Act.
(b) For the purposes of this subsection automatic exchange of information may include the systematic supply of clearance information in terms of the agreement by the customs authority of the sending party to the customs authority of the receiving party in an agreed electronic or other structured format in advance of the arrival of the persons, goods or means of transport in the territory of the receiving party.
(c) Any information automatically exchanged shall be treated as confidential by the receiving party and may only be used for the purposes of risk analysis by the customs authority of that party except if the party providing the information in writing authorises its use for other purposes or by other authorities in terms of the provisions of the agreement regulating the exchange of such information.
(d) The Commissioner may, in respect of the automatic exchange of information-
(i) authorise the use for other purposes or by other authorities of the information provided by the other party to the agreement as contemplated in paragraph (c);
(ii) specify conditions on which any information will be exchanged and on which it may be used for any other purpose or by any other authority;
(iii) refuse the exchange of information with a party to any agreement if the information will not be afforded in the territory of that party a level of protection that satisfies the requirements of this Act.
(e) For the purposes of this subsection any reference to the ‘Commissioner’ includes any officer contemplated in subsection (1)(b).
(3) The Commissioner may for the purposes of subsection (1)(b)-
(a) disclose information or authorise disclosure to a person authorised to act on behalf of any international agency, institution or organisation with which an agreement has been entered into with the Republic; and
(b) specify the purpose for which such disclosure is authorised and the manner in which or the conditions under which such disclosure is to be made.
(4) The Commissioner may make rules in respect of any matter which the Commissioner reasonably considers to be necessary and useful to achieve the efficient and effective administration of this section.
[Section 50 repealed by section 4 of Act 7 of 1974, inserted by section 66 of Act 30 of 1998 and substituted by section 105 of Act 74 of 2002 and section 50 of Act 44 of 2014 effective on 20 January 2015]
Section 51 (Customs Act) – Agreements with African territories
51. Agreements with African territories
(1) The National Executive may conclude an agreement with the government of any territory in Africa in which it is provided that, notwithstanding anything to the contrary in this Act contained –
(a) goods produced or manufactured in or imported into the Republic shall be admitted into that territory free of duty or at special rates of duty and goods produced or manufactured in or imported into that territory shall be admitted into the Republic free of duty or at special rates of duty;
(b) such arrangements (including arrangements providing for the prohibition or quantitative or other limitation or restriction of the importation of any goods) as may be agreed upon between the parties to the agreement shall apply in respect of the admission of any goods into the territory of one of the parties from the territory of the other party and in respect of the entry of and the collection of duty on goods on importation into the territory of any party from a territory other than the territory of the other party;
[Paragraph (b) substituted by section 7 of Act 57 of 1966]
(c) each party to the agreement shall be compensated in respect of duty on such goods to the extent and in the manner agreed upon between the parties to the agreement.
[Subsection (1) amended by section 13 of Act 27 of 1997]
(2) Payments made by the government of any territory to the Government of the Republic in terms of any agreement concluded under the provisions of subsection (1) shall accrue to the National Revenue Fund and payments by the Government of the Republic to the government of any territory in terms of any such agreement shall be made as a drawback of revenue as a charge to the National Revenue Fund.
[Subsection (2) substituted by section 1 of Act 12 of 1977 and section 13 of Act 27 of 1997]
(3) For the purposes of this Act, any agreement which purports to have been concluded in terms of any law relating to customs and which was being observed by the Republic immediately prior to the coming into operation of this Act as being in force between the Republic and any territory in Africa, shall be deemed to have been concluded in terms of and to be and at all relevant times to have been within the powers conferred by this section.
[Subsection (3) substituted by section 7 of Act 57 of 1966 and section 5 of Act 103 of 1972]
(4) Notwithstanding the provisions of any agreement concluded with Southern Rhodesia under subsection (1) –
(a) goods produced or manufactured in or imported into that territory shall not, by virtue of any such agreement, be exempt on importation into the Republic from any increased rate of customs duty payable after the commencement of this subsection, and such goods shall be liable to the full difference between such duty calculated at such increased rate and the most favoured nation rate applicable on the date immediately prior to the date on which this subsection comes into operation; and
(b) the Minister may vary the quantitative or other limitation or restriction of the importation of any goods agreed upon under paragraph (b) of the said subsection (1).
[Subsection (4) added by section 1 of Act 89 of 1971]
Section 52 (Customs Act) – Imposition of a fuel levy by any party to a customs union agreement
52. Imposition of a fuel levy by any party to a customs union agreement
(a) Notwithstanding anything to the contrary in this Act contained, any fuel levy goods which are removed to the territory of a party to any customs union agreement concluded in terms of section 49 or brought into the Republic from any such territory, shall, if a fuel levy has not been imposed by such party, be deemed to be goods exported from and goods imported into the Republic, respectively, and the provisions of this Act relating to the exportation from and importation of goods into the Republic shall, subject to such arrangements as the Commissioner may determine, apply to those goods until such time as such fuel levy is imposed by that party as provided in this Act.
[Paragraph (a) substituted by section 41 of Act 45 of 1995 and section 13 of Act 36 of 2007]
(b) If any such party to such customs union agreement imposes such fuel levy as provided in this Act, the Commissioner may, notwithstanding the provisions of section 47 (1), in respect of any fuel levy paid in the Republic on any petrol or distillate fuel entered or removed for consumption in the territory of any such party pay such fuel levy for any period it remains so imposed, if the Minister approves, to such party.
(c) For the purposes of paragraph (b), the Commissioner may pay the fuel levy concerned on the basis of any documents, relating to the movement of such petrol or distillate fuel, in possession of any person as may be determined by him.
[Section 52 repealed by section 4 of Act 7 of 1974 and inserted by section 24 of Act 59 of 1990]