Category: Customs and Excise Act No. 91 of 1964

Section 9 (Customs Act) – Sealing of goods on board ships or aircraft

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9. Sealing of goods on board ships or aircraft

(1)     On arrival of any ship at any place in the Republic –

(a)     the master thereof shall declare as prescribed by rule all sealable goods on board the ship which are unconsumed stores of such ship; and

(b)     the master and every member of the crew thereof shall declare as prescribed by rule all sealable goods which are his personal property or in his possession,

and the Controller may seal up all such sealable goods.

[Subsection (1) substituted by section 2 of Act 101 of 1985 and section 5 of Act 45 of 1995]

(2)     The Controller may permit surplus stores to be entered for home consumption or for warehousing.

(3)     For the purposes of this section “sealable goods” means any goods which are prescribed by rule to be saleable goods.

[Subsection (3) substituted by s.5 of Act 45 of 1995]

(4)     The Controller may, by direction of the Commissioner, in addition to sealable goods, seal up any goods which are unconsumed stores of any ship or aircraft or which are in the possession of the master or pilot of such ship or aircraft or of any member of the crew thereof or of any passenger on board thereof.

(5)     While the ship or aircraft in question remains at any place in the Republic, no person shall, except in accordance with the rules break or disturb any seal placed by the Controller on any goods in terms of this section.

(6)     Except as provided in subsectionection (2), no stores of any nature may be landed without the permission of the Controller and all goods acquired on a ship or aircraft shall, if landed, be declared to the Controller for purposes of payment of any duty due thereon.

(7)     The Commissioner may exempt any ship or aircraft or exempt by rule any class or kind of ship or aircraft from all or any of the provisions of this section.

[Subsection (7) inserted by section 5 of Act 45 of 1995]

Section 90 (Customs Act) – Disposal of seized goods

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90. Disposal of seized goods

 

(a)     Whatever is seized as being liable to forfeiture under this Act, shall forthwith be delivered to the Controller at the customs and excise office nearest to the place where it was seized or it may be secured by the Controller 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 Controller.

 

(b)     Where any seized goods are of a perishable or dangerous nature, the Commissioner may, whenever it is not reasonably possible to obtain storage or according to the circumstances not possible to obtain storage at a reasonable cost for the preservation or safe keeping of such goods, cause such goods before being condemned and forfeited as contemplated in section 89(4) to be sold by any appropriate procedure or destroyed, whichever is, and at the time is, reasonably practicable in the circumstances.

[Paragraph (b) substituted by section 132 of Act 60 of 2001]

 

(c)     Notwithstanding the provisions of section 89, the provisions of section 43(5), (6), (7) and (8) shall mutatis mutandis apply in respect of goods which are imported, exported, manufactured or used, or otherwise dealt with in contravention of this Act and any other law: Provided that such goods shall be deemed to be condemned and forfeited in accordance with the relevant provisions of section 43(5) or (6) and the provisions of section 89(4).

[Paragraph (c) inserted by section 132 of Act 60 of 2001]

 

(d)     Any person claiming the goods which were imported, exported or manufactured in contravention of any other law shall, for the purposes of sections 43, 89 and 96, join the authority administering such law in any proceedings.

[Paragraph (d) inserted by section 132 of Act 60 of 2001]

 

(e)     The provisions of section 43(7) shall mutatis mutandis apply in respect of goods which are condemned and forfeited as contemplated in section 89(4).

[Paragraph (e) inserted by section 132 of Act 60 of 2001]

 

(f)      The provisions of section 89(4) shall not affect the operation of section 93 in respect of the goods concerned which are condemned and forfeited as contemplated in that section.

[Paragraph (f) inserted by section 132 of Act 60 of 2001]

Section 91 (Customs Act) – Administrative penalties

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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

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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

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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

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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

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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

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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

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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

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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]