Category: Customs and Excise Act No. 91 of 1964

Section 91 (Customs Act) – Administrative penalties

Posted on by admin_kmos

91. Administrative penalties

[Heading substituted by section 25 of Act 32 of 2005]

 

(1)    

 

(a)     If any person –

(i)      has contravened any provision of this Act or failed to comply with any such provision with which it was his duty to comply; and

[Subparagraph (i) substituted by section 12 of Act 105 of 1976 and section 60 of Act 45 of 1995]

(ii)     agrees to abide by the Commissioner’s decision; and

(iii)    deposits with the Commissioner such sum as the Commissioner may require of him but not exceeding the maximum fine which may be imposed upon a conviction for the contravention or failure in question or makes such arrangements or complies with such conditions with regard to securing the payment of such sum as the Commissioner may require,

the Commissioner may, after such enquiry as he deems necessary, determine the matter summarily and may, without legal proceedings, order forfeiture by way of penalty of the whole or any part of the amount so deposited or secured.

(b)     Anything done for the purposes of paragraph (a) by an agent generally or specially authorized thereto by any person, shall be deemed to have been duly done by that person in terms of that paragraph.

[Subsection (1) substituted by section 14 of Act 85 of 1968]

 

(2)     ………..

[Subsection (2) substituted by section 12 of Act 105 of 1976, amended by section 29 of Act 84 of 1987, substituted by section 60 of Act 45 of 1995 and deleted by section 133 of Act 60 of 2001]

 

(3)     Subject to the provisions of subsection (4) of section 62, the imposition of a penalty under subsection (1) shall not be regarded as a conviction in respect of a criminal offence, but no prosecution for the relevant offence shall thereafter be competent.

 

(4)     Nothing in this section shall in any way affect liability to forfeiture of goods or payment of duty or other charges thereon.

Section 92 (Customs Act) – Payment and disposal of fines and penalties

Posted on by admin_kmos

92. Payment and disposal of fines and penalties

(1)     Any penalty recovered under this Act shall be paid to the Controller in the area where such penalty is recovered, and shall be paid by him into the national Revenue Fund, and the proceeds of sale of anything forfeited, or seized and condemned under this Act shall also be paid into the said fund.

[Subsection (1) amended by section 11 of Act 98 of 1993 and section 61 of Act 45 of 1995 and substituted by section 70 of Act 30 of 1998 and section 96 of Act 35 of 2007]

Section 93 (Customs Act) – Remission or mitigation of penalties and forfeiture

Posted on by admin_kmos

93. Remission or mitigation of penalties and forfeiture

(1)     The Commissioner may, on good cause shown by the owner thereof, direct that any ship, vehicle container or other transport equipment, plant, material or other goods detained or seized or forfeited under this Act be delivered to such owner, subject to-

(a)     payment of any duty that may be payable in respect thereof;

(b)     payment of any charges that may have been incurred in connection with the detention or seizure or forfeiture thereof; and

(c)     such conditions as the Commissioner may determine, including conditions providing for the payment of an amount not exceeding the value for duty purposes of such ship, vehicle container or other transport equipment, plant, material or goods plus any unpaid duty thereon.

(2)     The Commissioner may, on good cause shown mitigate or remit any penalty incurred under this Act on such conditions as the Commissioner may determine.

(3)    


(a)     Any person who, for the purposes contemplated in this section alleges ownership of any ship, vehicle, container or other transport equipment, plant material or other goods shall have the burden of proving such ownership to the satisfaction of the Commissioner; and

(b)     Where two or more persons claim ownership of the same ship, vehicle, container or other transport equipment, plant, material or other goods, ownership must be decided by a competent court and the Commissioner shall only grant release thereof to the person or persons as ordered by such court.

[Section 93 substituted by section 14 of Act 95 of 1965 and section 15 of Act 85 of 1968, amended by section 31 of Act 112 of 1977 and substituted by section 67 of Act 53 of 1999 and section 150 of Act 45 of 2003]

Section 94 (Customs Act) – Recovery of penalties by process of law

Posted on by admin_kmos

94. Recovery of penalties by process of law

(a)     Without derogation from any powers conferred upon the Commissioner any penalty or forfeiture incurred under this Act may be recovered either by civil action or upon criminal prosecution in any court of competent jurisdiction, and in the case of a criminal prosecution the court passing sentence may also make an order regarding any unpaid duty or charge and impose civil penalties or enforce forfeiture.

[Paragraph (a) substituted by section 97 of Act 35 of 2007]

(b)     Any civil proceedings under this section may be instituted in the name of the Commissioner.

Section 95 (Customs Act) – Jurisdiction of courts

Posted on by admin_kmos

95. Jurisdiction of courts

 

(1)     A court shall have jurisdiction to try any person for an offence under this Act whenever the thing in respect of which such offence was committed was found within or was conveyed from, to or through the area of jurisdiction of that court.

 

(1A)  Any person who at any place deemed under section 6(1A) or 50A to be a place of entry for the Republic or in any territory with the government of which an agreement has been concluded under section 51, performs any act which constitutes an offence under this Act, shall be guilty of such offence, which shall, for purposes in relation to jurisdiction of a court to try the offence, be deemed to have been committed at any place where the accused happens to be.

[Subsection (1A) inserted by section 18 of Act 52 of 1986 and substituted by section 19 of Act 36 of 2007]

 

(2)    

 

(a)     Notwithstanding anything to the contrary in any other law contained, a magistrate’s court shall have jurisdiction to impose any punishment prescribed by or make any order of court provided for in this Act.

(b)     ……….

[Paragraph (b) deleted by section 18 of Act 52 of 1986]

[Subsection (2) added by section 16 of Act 85 of 1968]

 

(3)     Notwithstanding anything to the contrary in any other law contained, a magistrate’s court shall have jurisdiction to give judgment for any amount claimed under this Act, together with the costs of obtaining such judgment.

[Subsection (3) added by section 10 of Act 93 of 1978]

Section 96 (Customs Act) – Notice of action and period for bringing action

Posted on by admin_kmos

96. Notice of action and period for bringing action



(1)    

(a)    

(i)      No process by which any legal proceedings are instituted against the State, the Minister, the Commissioner or an officer for anything done in pursuance of this Act may be served before the expiry of a period of one month after delivery of a notice in writing setting forth clearly and explicitly the cause of action, the name and place of abode of the person who is to institute such proceedings (in this section referred to as the “litigant”) and the name and address of his or her attorney or agent, if any.



(ii)     Such notice shall be in such form and shall be delivered in such manner and at such places as may be prescribed by rule.



(iii)    No such notice shall be valid unless it complies with the requirements prescribed in this section and such rules.

[Paragraph (a) substituted by section 26 of Act 32 of 2005]



(b)    Subject to the provisions of section 89, the period of extinctive prescription in respect of legal proceedings against the State, the Minister, the Commissioner or an officer on a cause of action arising out of the provisions of this Act shall be one year and shall begin to run on the date when the right of action first arose : Provided that where any proceedings are instituted concerning any decision defined in section 77A(1), such date shall begin to run on the date-



(i)      of a final decision as contemplated in the rules for Part A of Chapter XA;



(ii)     when the Commissioner advises the person who made use of the alternative dispute resolution procedures contemplated in the rules for Part B of Chapter XA that agreement has not been achieved at the conclusion or termination of such procedures: or



(iii)    on the date a dispute is not settled and the Commissioner advises the person concerned as contemplated in section 77O(5) of Part C of Chapter XA.

[Paragraph (b) substituted by section 30 of Act 34 of 2004 and section 26 of Act 32 of 2005]



(c)    

(i)      The State, the Minister, the Commissioner or an officer may on good cause shown reduce the period specified in paragraph (a) or extend the period specified in paragraph (b) by agreement with the litigant.



(ii)     If the State, the Minister, the Commissioner or an officer refuses to reduce or to extend any period as contemplated in subparagraph (i), a High Court having jurisdiction may, upon application of the litigant, reduce or extend any such period where the interest of justice so requires.



(2)     This section does not apply to the recovery of a debt contemplated in any law providing for the recovery from an organ of state of a debt described in such law.



(3)     Notwithstanding the provisions of the Admiralty Jurisdiction Regulations Act, 1983 (Act No. 105 of 1983), when any person applies to the High Court for an order for the sale of any arrested property, such person shall deliver a notice of such an application at the place prescribed in the rules.

[Subsection (3) inserted by section 30 of Act 21 of 2006]

[Section 96 substituted by section 136 of Act 60 of 2001]

Section 96A (Customs Act) – Approval of container operators

Posted on by admin_kmos

96A.   Approval of container operators

The Commissioner may, with the concurrence of the Director-General: Transport, subject to such conditions as the Commissioner may generally or in respect of a particular case determine, approve, for operating containers in the Republic, any person providing international transportation of containerized goods.

[Section 96A inserted by section 6 of Act 98 of 1970, substituted by section 9 of Act 103 of 1972, repealed by section 23 of Act 86 of 1982 and inserted by section 9 of Act 89 of 1984]

Section 97 (Customs Act) – Master, container operator or pilot may appoint agent

Posted on by admin_kmos

97. Master, container operator or pilot may appoint agent

Notwithstanding anything to the contrary in this Act contained, the master of a ship, a container operator or the pilot of an aircraft, instead of himself performing any act, including the answering of questions required by or under any provision of this Act to be performed by him, may at his own risk, appoint an agent to perform any such act, and any such act performed by such agent shall in all respects and for all purposes be deemed to be the act of the master, container operator or pilot, as the case may be: Provided that the personal attendance of the master or pilot may be demanded by the Controller.

[Section 97 substituted by section 32 of Act 112 of 1977]

Section 98 (Customs Act) – Liability of principal for acts of agent

Posted on by admin_kmos

98. Liability of principal for acts of agent

Every importer, exporter, master, container operator, pilot, manufacturer, licensee, remover of goods in bond or other principal shall, for the purposes of this Act, be responsible for any act done by an agent acting on his behalf, whether within or outside the Republic.

[Section 98 substituted by section 33 of Act 112 of 1977]

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

Posted on by admin_kmos

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]