Category: Customs and Excise Act No. 91 of 1964

Section 77K (Customs Act) – Purpose of this Part

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77K.    Purpose of this Part

(1)     The basic principle in law is that it is the duty of the Commissioner to assess and collect taxes, duties, levies, charges and other amounts according to the laws enacted by Parliament and not to forgo any such taxes, duties, levies, charges or other amounts properly chargeable and payable.

(2)     Circumstances may, however, require that the strictness and rigidity of this basic principle be tempered where it would be to the best advantage of the state.

(3)     The purpose of this Part is to prescribe the circumstances whereunder it would be inappropriate and whereunder it would be appropriate that the basic rule be tempered and for a decision to be taken to settle a dispute.

Section 77L (Customs Act) – Circumstances where inappropriate to settle

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77L.    Circumstances where inappropriate to settle

 

It will be inappropriate and not to the best advantage of the state to settle a dispute, where, in the opinion of the Commissioner-

 

(a)     the action on the part of the person concerned which relates to the dispute, constitutes intentional tax evasion or fraud and no circumstances contemplated in section 77M exist;

 

(b)     the settlement would be contrary to the law or a clearly established practice of the Commissioner on the matter, and no exceptional circumstances exist to justify a departure from the law or practice;

 

(c)     it is in the public interest to have judicial clarification of the issue and the case is appropriate for this purpose;

 

(d)     the pursuit of the matter through the courts will significantly promote compliance of the tax laws and the case is suitable for this purpose; or

 

(e)     the person concerned has not complied with the provisions of any Act administered by the Commissioner and the Commissioner is of the opinion that the non-compliance is of a serious nature.

[Section 77L effective on 22 December 2003]

Section 77M (Customs Act) – Circumstances where appropriate to settle

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77M.   Circumstances where appropriate to settle

The Commissioner may, where it will be to the best advantage of the state, settle a dispute, in whole or in part, on a basis that is fair and equitable to both the person concerned and SARS, having regard to inter alia–

(a)     whether that settlement would be in the interest of good management of the tax system, overall fairness and the best use of the Commissioner’s resources;

(b)     the cost of litigation in comparison to the possible benefits with reference to-

(i)      the prospects of success in a court;

(ii)     the prospects of collection of the amounts due; and

(iii)    the costs associated with collection;

(c)     whether there are any-

(i)      complex factual or quantum issues in contention; or

(ii)    evidentiary difficulties, which are sufficient to make the case problematic in outcome or unsuitable for resolution through the alternative dispute resolution procedures or the courts;

(d)     a situation where a participant or a group of participants in a tax avoidance arrangement has accepted the Commissioner’s position in the dispute, in which case the settlement may be negotiated in an appropriate manner required to unwind existing structures and arrangements; or

(e)     whether the settlement of the dispute will promote compliance of the tax laws by the person concerned or a group of taxpayers or a section of the public in a cost-effective way.

[Section 77M effective on 22 December 2003]

Section 77N (Customs Act) – Power to settle and conduct of officials

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77N.    Power to settle and conduct of officials

(1)     A dispute may be settled, as contemplated in this Part, by the Commissioner personally or any official delegated by the Commissioner for that purpose.

(2)     The Commissioner or the relevant delegated official must ensure that he or she does not have, or did not at any stage have, a personal, family, social, business, professional, employment or financial relationship with the person concerned.

[Section 77N effective on 22 December 2003]

Section 77O (Customs Act) – Procedure for settlement

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77O.    Procedure for settlement

 

(1)     The person concerned should at all times disclose all relevant facts in discussions during the process of settling a dispute.

 

(2)     Any settlement will be conditional upon full disclosure of material facts known to the person concerned at the time of settlement.

 

(3)     All disputes settled in whole or in part, as contemplated in this Part, must be evidenced by a written agreement between the parties in the format as may be prescribed by the Commissioner and must include details on-

 

(a)     how each particular issue was settled;

(b)     relevant undertakings by the parties;

(c)     treatment of that issue in future years;

(d)     withdrawal of appeals; and

(e)     arrangements for payment.

 

(4)     The written agreement will represent the final agreed position between the parties and will be in full and final settlement of all the specified aspects of the dispute in question between the parties.

 

(5)     The Commissioner must, where the dispute is not ultimately settled, explain the further rights regarding the institution of judicial proceedings to the person concerned.

 

(6)     Subject to section 77P, the Commissioner and delegated official must adhere to the secrecy provisions with regard to the information relating to the person concerned and may not disclose the terms of any agreement to third parties unless authorised by law or by the person concerned.

 

(7)     The Commissioner must adhere to the terms of the agreement, unless it emerges that material facts were not disclosed to it or there was fraud or misrepresentation of the facts.

 

(8)     The Commissioner has the right to recover any outstanding amounts in full where the person concerned fails to adhere to any agreed payment arrangement.

[Section 77O effective on 22 December 2003]

Section 77P (Customs Act) – Register of settlements and reporting

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77P.     Register of settlements and reporting

 

(1)     The Commissioner must-

 

(a)     maintain a register of all disputes settled in the circumstances contained in this Part; and

(b)     fully document the process in terms of which each dispute was settled, which document must be signed on behalf of the Commissioner and the person concerned.

 

(2)     The Commissioner must on an annual basis provide to the Auditor-General and to the Minister of Finance a summary of all disputes which were settled in whole or in part during the period of 12 months covered by that summary, which must-

 

(a)     be in such format which, subject to section 4(3E), does not disclose the identity of the person concerned, and be submitted at such time as may be agreed between the Commissioner and the Auditor-General or Minister of Finance, as the case may be; and

[Paragraph (a) substituted by section 34 of Act 16 of 2004]

(b)     contain details of the number of disputes settled or part settled, the amount of revenue forgone and estimated amount of savings in costs of litigation, which must be reflected in respect of main classes of persons or sections of the public.

[Section 77P effective on 22 December 2003]

[Chapter XA inserted by section 147 of Act 45 of 2003]

Section 78 (Customs Act) – Offences not expressly mentioned

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78. Offences not expressly mentioned

(1)     Any person who contravenes any provision of this Act or who fails to comply with any such provision with which it is his duty to comply, shall, even where such contravention or failure is not elsewhere declared an offence, be guilty of an offence.

(2)     Any person guilty of an offence under this Act shall, where no punishment is expressly provided for such offence, be liable on conviction to a fine not exceeding R8 000 or treble the value of the goods in respect of which such offence was committed, whichever is the greater, or to imprisonment for a period not exceeding two years, or to both such fine and such imprisonment.

[Subsection (2) amended by section 10 of Act 52 of 1986 and section 6 of Act 105 of 1992]

(3)     A person who is convicted of an offence referred to in subsection (2) within a period of three years after he was convicted of any offence referred to in that subsection shall be liable to a fine not exceeding R16 000 or treble the value of the goods in respect of which such offence was committed, whichever is the greater, or to imprisonment for a period not exceeding four years, or to both such fine and such imprisonment.

[Subsection (3) amended by section 10 of Act 52 of 1986 and section 6 of Act 105 of 1992]

Section 8 (Customs Act) – Cargo reports

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8. Cargo reports

(1)     Notwithstanding the provisions of sections 7 and 12, the Commissioner may by rule prescribe requirements in respect of the report of cargo and may prescribe that-

(a)     any report including any manifest or other report listing and describing cargo carried by or loaded or to be loaded on to any ship, or vehicle arriving at or departing from any place in the Republic, as the case may be; or

(b)     any outturn report or other report concerning goods landed from or unpacked from or packed into or loaded on to or to be packed into or to be loaded on to any such ship or vehicle, as the case may be; or

(c)     any outturn report or other report in respect of any imported goods received or unpacked while under the control of any person after landing thereof at any place licensed in terms of this Act,

shall be in such form containing such particulars and shall be submitted to the Controller by such person in such circumstances and at such times as may be specified in such rule.

(2)     Where the Commissioner prescribes that any report must be submitted prior to cargo for export being packed into or loaded on to a ship or vehicle, no cargo shall be so packed or loaded before-

 

(a)     such report is received by the Controller; and

(b)     release of the cargo has been granted as prescribed in the rules.

 

(3)    


(a)     Any such outturn report or other report shall reflect full particulars concerning any excess or deficiency in respect of any goods landed, received, unpacked, packed or loaded, as the case may be, according to any manifest or other report contemplated in subsection (1).

 

(b)     Where any imported goods reported in any manifest or other report are not landed or-

 

(i)      any such goods not reported are landed; or

(ii)     any container or package is landed with visible evidence of tampering or any deficiency is suspected,

 

any person completing any outturn report on landing of the goods shall examine and report on such goods in the presence of the carrier or the agent of the carrier, as my be prescribed by rule.

 

(4)    


(a)     Any exporter who-

 

(i)      packs or loads cargo or causes cargo to be packed or loaded in contravention of subsection (2); or

 

(ii)     fails to report cargo or makes any false or misleading statement in connection with any report to which this section relates,

 

shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding five years or to both such fine and imprisonment.

 

(b)     Such cargo shall be liable to forfeiture in accordance with the provisions of this Act.

[Section 8 repealed by section 8 of Act 59 of 1990 and inserted by section 36 of Act 19 of 2001 and substituted by section 11 of Act 9 of 2007]

Section 80 (Customs Act) – Serious offences and their punishment

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80. Serious offences and their punishment

(1)     Any person who –

(a)     has upon his premises or in his custody or under his control, or purchases, sells or otherwise disposes of any illicit goods knowing the same to be illicit goods;

(b)     not being a licensed manufacturer or dealer, without lawful authority has in his possession or custody or under his control any partly manufactured excisable goods or fuel levy goods or excisable goods or fuel levy goods upon which duty has not been paid;

[Paragraph (b) substituted by section 27 of Act 105 of 1969, section 27 of Act 84 of 1987 and section 32 of Act 59 of 1990]

(c)     removes or assists in or permits the removal of goods in contravention of any provision of this Act;

(d)     deodorizes, clarifies or, prior to sale, reduces the strength of methylated spirits to a strength below a strength of 91,4 per cent absolute alcohol by volume, or prepares or sells or offers for sale or consumption, as a beverage, any preparation containing methylated spirits or spirits recovered from methylated spirits;

(e)     removes or breaks or interferes with any lock, meter, gauge, rod, seal, mark or fastening placed on or fitted to any warehouse, vessel, package, container or other article, place or plant, by an officer under any provision of this Act;

(f)     damages, destroys or disposes of any goods to prevent the securing or seizure thereof under the provisions of this Act by any officer or other person authorized to secure or seize the same, or takes back any goods which are being detained or have been seized;

(g)     ……….

[Paragraph (g) deleted by section 28 of Act 112 of 1977]

(h)     without lawful excuse (the proof of which shall lie upon him), brings into the Republic, produces or has in his possession any blank or incomplete invoice or any billhead or other similar document capable of being completed and used as an invoice for goods from outside the Republic;

[Paragraph (h) substituted by section 12 of Act 52 of 1986 and section 68 of Act 30 of 1998]

(i)      makes improper use of a licence, permit or other document issued in respect of goods to which this Act relates;

(j)      claims or receives any rebate, drawback, refund or payment or sets off any amount in terms of the provisions of section 77(a) to which he knows he is not entitled under this Act;

[Paragraph (j) substituted by section 22 of Act 86 of 1982 and section 8 of Act 98 of 1993]

(k)     not being authorized to do so, gives or promises to give, directly or indirectly, any reward to an officer or any person employed by the Government, in respect of the performance or non-performance by any such officer or person of his duty or employment under this Act or agrees with or proposes to any such officer or person to do or permit anything in contravention or evasion of this Act;

(l)      being an officer or a person employed by the Government, demands or receives, except from or through the Government, any reward in respect of the performance or non-performance of his duty or employment under this Act or by any wilful act, neglect or default does or permits or agrees to do or permit anything in contravention or evasion of this Act;

(m)    attempts to commit or assists in committing any offence mentioned in this section;

(n)     from any goods made from or containing excisable goods or fuel levy goods extracts or recovers such excisable goods or fuel levy goods in contravention of the provisions of this Act;

[Paragraph (n) substituted by section 27 of Act 84 of 1987]

(o)     contravenes the provisions of section 4(12A)(b), 18(13), 18A(9), 20(4)bis, 21(3)(d), 35A(2), (3) and (4), 37(9), 37A(1)(c), 37A(4)(a), 48(1A)(b), 54(2), (3) and (4), 60(1), 63(1), 75(7A), 75(19), 88(1)(bA), 99A, 113(2), 113(8)(c), 114(2A) or 114(2B);

[Paragraph (o) substituted by section 10 of Act 85 of 1968, section 28 of Act 112 of 1977, section 27 of Act 84 of 1987, section 8 of Act 98 of 1993, section 68 of Act 30 of 1998, section 63 of Act 53 of 1999, section 29 of Act 21 of 2006 and section 18 of Act 36 of 2007]

(p)     fails to comply with any condition determined under section 107(2)(a);

[Paragraph (p) added by section 7 of Act 89 of 1984]

(q)     contravenes or fails to comply with any provision of any agreement contemplated in section 49 or 51;

[Paragraph (q) added by section 63 of Act 53 of 1999 and substituted by section 62 of Act 59 of 2000]

(r)     without lawful cause fails to comply with a notice of appointment as agent in terms of section 114A within the period specified in such notice.

[Paragraph (r) inserted by section 148 of Act 45 of 2003]

shall be guilty of an offence and liable on conviction to a fine not exceeding R20 000 or treble the value of the goods in respect of which such offence was committed, whichever is the greater, or to imprisonment for a period not exceeding five years, or to both such fine and such imprisonment.

[Subsection (1) amended by section 12 of Act 52 of 1986 and section 8 of Act 105 of 1992]

(2)     When any person is charged with a contravention of paragraph (a) of subsection (1) he shall, until the contrary is proved, be presumed to have known that the goods in question were illicit goods.

(3)     When any person is charged with a contravention of paragraph (j) of subsection (1) he shall, until the contrary is proved, be presumed to have known that he was not entitled to the rebate, drawback, refund or payment concerned.

[Subsection (3) added by section 27 of Act 84 of 1987]