Category: Chapter V – Clearance and origin of goods; liability for and payment of duties (Customs Act)

Section 51 (Customs Act) – Agreements with African territories

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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 50A (Customs Act) – Joint, one-stop or juxtaposed international land border posts

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50A.    Joint, one-stop or juxtaposed international land border posts

(1)     The Commissioner may by rule in accordance with any international agreement concerning joint, one-stop or juxtaposed international land border posts and places of entry for the Republic and an adjoining state –

(a)     in respect of such places situated in the territory of the Republic-


(i)      allow and appoint any such place as a place of entry for the adjoining state through which goods may be imported or exported and where goods may be entered for customs and excise purposes in accordance with the national legislation of the adjoining state; and


(ii)     allow officers of the competent customs authority of the adjoining state to perform such duties and functions and exercise such powers as may be required and prescribed by the national legislation of the adjoining state to effect entry and clearance of goods through such place and matters incidental thereto; and


(b)     in respect of such places situated in the territory of the adjoining state –


(i)      deem such a place to be a place of entry for the Republic through which goods may be imported or exported and where goods may be entered for customs and excise purposes; and


(ii)     allow officers to exercise their powers and perform their duties and functions under the Act in such places.

(2)     Notwithstanding anything to the contrary in any other law contained, for purposes of this Act –

(a)     any such place situated in the territory of an adjoining state shall be deemed to be a place situated in the Republic; and


(b)     whenever, within such a place, situated within an adjoining state-


(i)      any goods are detained for purposes of this Act, such goods shall as soon as practicable be removed to the State Warehouse or other place indicated by the Controller within the territory of the Republic; or


(ii)     any person is detained for purposes of this Act, such person shall without delay be secured in an office of the South African Police Service closest to such place.

(3)     Whenever such a place is situated within the territory of the Republic, and the national legislation of the adjoining state provides for the detention of goods or persons at such place, the Commissioner shall allow for the removal of such detained goods or persons by the competent customs authorities of the adjoining state from such a place to the territory of the adjoining state.

(4)     The Commissioner may in administering the provisions of this section, notwithstanding anything to the contrary in this Act or in any other law contained –

(a)     decide or determine any matter or perform any duty or impose any condition in connection with the provisions so administered;


(b)     make rules –


(i)      where reference is made in such agreement to customs or competent authorities, to domestic national or customs law or any other matter which requires either expressly or by implication application of customs legislation;


(ii)     in connection with the entry of goods imported or exported and documents to be produced in support thereof;


(iii)    prescribing forms or procedures or specifying any condition to be complied with to give effect to any agreement contemplated in this section;


(iv)    to delegate subject to section 3(2) any power, duty or function to any officer or any other person; and


(v)     regarding any other matter which may be necessary or useful for purposes of administering such places.

[Section 50A inserted by section 106 of Act 74 of 2002]

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

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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 48 (Customs Act) – Amendment of Schedule No. 1

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48. Amendment of Schedule No. 1

(1)     The Minister may from time to time by notice in the Gazette amend the General Notes to Schedule No. 1 and Part 1 of the said Schedule or substitute the said Part 1 and amend Part 2 of the said Schedule in so far as it relates to imported goods –

(a)     in order to give effect to any agreement amending any agreement approved by section 2 of the Geneva General Agreement on Tariffs and Trade Act, 1948 (Act No. 29 of 1948), or to any agreement or amendment of any agreement contemplated in section 49 and for the purposes of subsection (1)(a) or (b) of the said section 49;

[Paragraph (a) amended by section 11 of Act 112 of 1977 and substituted by section 10 of Act 98 of 1980 and section 54 of Act 53 of 1999]

(b)     in order to give effect to any request by the Minister of Trade and Industry and for Economic Co-ordination;

[Paragraph (b) substituted by section 4 of Act 61 of 1992]

(c)     in order to give effect to any amendment to the Explanatory Notes to the Harmonized System and to the Customs Co-operation Council Nomenclature referred to in section 47 (8) or to the Nomenclature set out in the annex to the Convention on Nomenclature for the Classification of Goods in Customs Tariffs signed in Brussels in 1950;

[Paragraph (c) substituted by section 1 of Act 68 of 73, section 8 of Act 105 of 1976 and section 7 of Act 68 of 1989]

(d)     by deleting any reference therein to any territory the government of which has cancelled without the consent of the Government of the Republic any preferential customs tariff rate applicable at the commencement of this Act to any goods produced or manufactured in the Republic, on their importation into such territory;

(e)     whenever he deems it expedient in the public interest otherwise to do so.

[Paragraph (e) added by section 11 of Act 112 of 1977]

[Subsection (1) amended by section 6 of Act 57 of 1966 and section 54 of Act 53 of 1999]

(1A) 

(a)     The Minister may, for the purposes of subsection (1)(a) and section 49(1)(a) or (b), by like notice amend the General Notes to Schedule No. 1 to incorporate as part of such Notes a schedule thereto entitled “Origin provisions of trade agreements”, containing the following in respect of any agreement contemplated in section 49:

(i)      In separate parts of such schedule, any such agreement or any protocol or other part or provision of such agreement, including any annex or appendix thereto, concerning the origin of goods;

(ii)     any instrument contemplated in section 49(1)(b);

(iii)    notes to any such agreement, protocol or other part or provision which may specify –

(aa)   the agreement, protocol or other part or provision or instrument which governs goods entered according to the provisions of a particular column of Part 1 of Schedule No. 1;

(bb)   definitions;

(cc)    interpretation of words or phases or substitutes for words or phrases;

(dd)   any condition or procedure or provision of this Act to be complied with to give effect to such provisions of origin;

(ee)    powers, duties or functions of the Commissioner or an officer;

(iv)    any amendment, with or without retrospective effect, to such schedule or notes for any reason as may be specified in such amendment.

(b)     No goods imported or exported shall qualify for the benefit of preferential tariff treatment in terms of such agreement unless they comply with such provisions of origin or any other provision of such agreement or of this Act governing the acquisition of origin, tariff quotas or any other condition which is to be fulfilled for the purposes of giving effect to such agreement.

[Subsection (1A) inserted by section 54 of Act 53 of 1999]

(2)     The Minister may from time to time by like notice amend or withdraw or, if so withdrawn, insert Part 2, Part 3, Part 4, Part 5A, Part 5B or Part 7 of Schedule No. 1, whenever he deems it expedient in the public interest to do so: Provided that the Minister may, whenever he deems it expedient in the public interest to do so, reduce any duty specified in the said Parts with retrospective effect from such date and to such extent as may be determined by him in such notice.

[Subsection (2) substituted by section 1(b) of Act 68 of 1973 and by section 8(b) of Act 105 of 1976, amended by section 11(1)(c) of Act 112 of 1977, by section 9(a) of Act 86 of 1982, by section 18(a) of Act 84 of 1987 and by section 23(a) of Act 59 of 1990 and substituted by section 140(a) of Act 45 of 2003, by section 91(1) of Act 31 of 2005 and by section 24(a) of Act 20 of 2022]

(2A)

(a)    

(i)      The Minister may from time to time by like notice, whenever he deems it expedient in the public interest to do so, authorize the International Trade Administration Commission or the Commissioner to withdraw, with or without retrospective effect, and subject to such conditions as the said Commission or Commissioner may determine, any duty specified in Part 2 or Part 4 of Schedule No. 1.

(ii)     The International Trade Administration Commission or the Commissioner may at any time cancel, amend or suspend any withdrawal referred to in subparagraph (i).

[Paragraph (a) amended by section 7 of Act 68 of 1989, section 23 of Act 59 of 1990 and section 39 of Act 45 of 1995 and substituted by section 140 of Act 45 of 2003]

(b)     Any application for such withdrawal, with retrospective effect, shall be submitted to the said International Trade Administration Commission or Commissioner, as the case may be, not later than six months from the date of entry for home consumption as provided in section 45 (2).

[Paragraph (b) substituted by section 7 of Act 68 of 1989 and section 140 of Act 45 of 2003]

[Subsection (2A) inserted by section 18 of Act 84 of 1987]

(3)     ……….

[Subsection (3) deleted by section 8 of Act 105 of 1976]

(3A)  ……….

[Subsection (3A) inserted by section 18 of Act 105 of 1969, amended by section 1 of Act 68 of 73 and deleted by section 8 of Act 105 of 1976]

(4)     The Minister may, whenever he deems it expedient in the public interest to do so, by notice in the Gazette—

(a)     impose an export duty, on such basis as he may determine, in respect of any goods intended for export or any class or kind of such goods or any goods intended for export in circumstances specified in such notice and any export duty so imposed shall be set out in the form of a schedule which shall be deemed to be incorporated in Schedule No. 1 as Part 6 thereof and to constitute an amendment of Schedule No. 1; or

(b)     amend Part 6 including to withdraw or reduce any export duty imposed in terms of paragraph (a) with or without retrospective effect, or increase such export duty, from a date and to such extent as may be determined by the Minister in such notice.

[Subsection (4) substituted by section 18(b) of Act 105 of 1969, by section 11(1)(d) of Act 112 of 1977, by section 18(c) of Act 84 of 1987 and by section 58(1) of Act 23 of 2020 effective on 1 March, 2021. Paragraph (b) substituted by section 24(b) of Act 20 of 2022]

(4A) 

(a)     Notwithstanding anything to the contrary in this Act contained, the Minister may, whenever he deems it expedient in the public interest to do so, by notice in the Gazette, insert Part 8 of Schedule No. 1, and if so inserted withdraw or amend that Part for the purpose of specifying that any duty leviable under any heading or item of Part 1, 2 or 4 of Schedule No. 1 shall not be leviable under that Part, but shall be leviable under the said Part 8 at the time of entry for home consumption for use by any person, government, department, administration or body as may be specified by him in such notice.

(b)     For the purposes of this subsection, any amount leviable under any item of the said Part 8, shall be called an ordinary levy.

(c)     Any such ordinary levy shall be paid for the benefit of the National Revenue Fund as specified in section 47 (1) and shall, for the purposes of that section, be deemed to be a duty paid in accordance with the provisions of Schedule No. 1.

[Paragraph (c) substituted by section 64 of Act 30 of 1998]

(d)     Notwithstanding the provisions of section 47(1), any ordinary levy paid in respect of any goods intended for consumption in any territory, other than the Republic, which forms part of the common customs area shall be paid by the Commissioner to the government of such territory at such times as he may determine.

(e)     The provisions of subsection (6) shall mutatis mutandis apply to any notice published under this subsection.

[Paragraph (e) substituted by section 3 of Act 19 of 1994]

[Subsection (4A) inserted by section 7 of Act 68 of 1989]

(5)    

(a)     Whenever any amendment made under this section has an effect which was not foreseen or intended, the Minister may, whether or not such amendment has ceased to have effect as such or has lapsed under subsection (6), after consultation with the Minister of Trade and Industry, by further notice in the Gazette, adjust such amendment, to the extent he deems fit, with effect from the date of such amendment or any later date, and any adjustment effected under this subsection shall be deemed to be an amendment under this section.

[Paragraph (a) substituted by section 4 of Act 61 of 1992 and section 39 of Act 45 of 1995]

(b)     The provisions of paragraph (a) shall, in so far as they can be applied, apply mutatis mutandis in respect of any amendment made by Parliament, which corresponds to an amendment made under this section, before the lapsing in terms of subsection (6) of such last-mentioned amendment.

[Subsection (5) substituted by section 6 of Act 57 of 1966]

(6)     Any amendment, withdrawal or insertion made under this section in any calendar year shall, unless Parliament otherwise provides, lapse on the last day of the next calendar year, but without detracting from the validity of such amendment, withdrawal or insertion before it has so lapsed.

[Subsection (6) substituted by section 18 of Act 105 of 1969, section 9 of Act 86 of 1982 and section 3 of Act 19 of 1994]

Section 47A (Customs Act) – Prohibition of certain acts in respect of goods not duly entered

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47A.   Prohibition of certain acts in respect of goods not duly entered

(1)     Subject to the provisions of this Act, no person shall remove, receive, take, deliver or deal with or in any imported or excisable goods or fuel levy goods unless such goods have been duly entered.

(2)     ………..

[Subsection (2) deleted by section 38 of Act 45 of 1995]

[Section 47A inserted by section 7 of Act 101 of 1985, amended by section 16 of Act 84 of 1987 and substituted by section 4 of Act 98 of 1993]

Section 47 (Customs Act) – Payment of duty and rate of duty applicable

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47. Payment of duty and rate of duty applicable

(1)     Subject to the provisions of this Act, duty shall be paid for the benefit of the National Revenue Fund on all imported goods, all excisable goods, all surcharge goods, all environmental levy goods, all fuel levy goods and all Road Accident Fund levy goods in accordance with the provisions of Schedule No. 1 at the time of entry for home consumption of such goods: Provided that the Commissioner may condone any underpayment of such duty where the amount of such underpayment in the case of –

(a)     goods imported by post is less than fifty cents;

(b)     goods imported in any other manner is less than five rand; or

(c)     excisable goods is less than two rand.

[Subsection (1) substituted by section 17 of Act 105 of 1969 and section 10 of Act 112 of 1977, amended by section 9 of Act 98 of 1980, section 15 of Act 84 of 1987, section 22 of Act 59 of 1990, section 37 of Act 45 of 1995 and section 63 of Act 30 of 1998 and substituted by section 138 of Act 45 of 2003 and section 90 of Act 31 of 2005 effective on 1 April 2006]

(2)     ……….

[Subsection (2) deleted by section 9 of Act 98 of 1980, inserted by section 53 of Act 53 of 1999 and deleted by section 94 of Act 60 of 2008]

(3)    

(a)     Any rate of duty other than the general rate specified in respect of any heading or subheading in any column of Part 1 of Schedule No. 1 shall apply to imported goods to which such heading or subheading relates if such goods qualify for the benefit of such rate in accordance with –

(i)      any provision of origin contained in any part of the schedule to the General Notes of Schedule No. 1 and any other provision referred to in section 48(1A) applicable to such column, any provision relating to tariff quotas, any applicable provision in the said Part 1 and any Note to such Part or schedule; and

(ii)     any rule made in terms of section 49 to give effect to any provision of origin of any agreement contemplated in the said section or in connection with any tariff quotas or any other condition or procedure that may be applicable to any goods specified in the said column;

(b)     The expression “any provision of origin” includes provisions relating to “originating products”, “originating status’, “rules of origin” or like expressions, and “goods obtained, produced or manufactured” in any part of the said schedule to the General Notes of Schedule No. 1 and, unless the context otherwise indicates, any provision in this Act in respect of the origin of goods.

(c)     Any reference in any agreement contemplated in section 49 or 51 to the “most-favoured-nation-rate of duty” or the “MFN tariff” or the “MFN rate of duty” or like expressions shall, unless otherwise specified in Part 1 of Schedule No. 1, for the purposes of this Act, be deemed to be a reference to the rates of duty specified in respect of any heading or subheading in the column for general rates of duty in the said Part 1 of Schedule No. 1.

[Subsection (3) substituted by section 2 of Act 7 of 1974, amended by section 9 of Act 98 of 1980 and section 4 of Act 69 of 1988 and substituted by section 53 of Act 53 of 1999]

(4)     ………..

[Subsection (4) substituted by section 9 of Act 98 of 1980 and deleted by section 4 of Act 69 of 1988]

(5)     Any export duty which may become payable in terms of section 48 (4) shall be paid for the benefit of the National Revenue Fund, at the time of entry for export, on such goods as may be specified in Part 6 of Schedule No. 1 in terms of the provisions of the said section.

[Subsection (5) substituted by section 17 of Act 105 of 1969, section 10 of Act 112 of 1977, section 15 of Act 84 of 1987 and section 63 of Act 30 of 1998]

(6)     Any duty payable in terms of section 53, any anti-dumping duty payable in terms of section 56, any countervailing duty payable in terms of section 56A and any safeguard duty payable in terms of section 57 shall be paid for the benefit of the National Revenue Fund in accordance with the provisions of the said sections.

[Subsection (6) substituted by section 8 of Act 86 of 1982, section 3 of Act 61 of 1992 and section 63 of Act 30 of 1998]

(7)     To the extent that any goods, classifiable under any tariff heading or subheading of Part 1 of Schedule No. 1 that is expressly quoted in any tariff item, environmental levy item, fuel levy item, Road Accident Fund levy item or item of Part 2, 3, 5A, 5B or 6 of the said Schedule or in any item in Schedule No. 2, are specified in any such tariff item, environmental levy item, fuel levy item, Road Accident Fund levy item or item, the item concerned shall be deemed to include only such goods classifiable under such tariff heading or subheading.

[Subsection (7) substituted by section 17 of Act 105 of 1969, section 10 of Act 112 of 1977, section 15 of Act 84 of 1987, section 22 of Act 59 of 1990, section 126 of Act 60 of 2001, section 138 of Act 45 of 2003 and section 90 of Act 31 of 2005 effective on 1 April 2006]

(8)    

(a)     The interpretation of –

(i)      any tariff heading or tariff subheading in Part 1 of Schedule No. 1;

(ii)    

(aa)    any tariff item or fuel levy item or item specified in Part 2, 3, 5, 6 or 7 of the said Schedule, and

[Item (aa) subtituted by section 16 of Act 14 of 2017 effective on 1 April 2018]

(bb)   any item specified in Schedule No. 2, 3, 4, 5 or 6;

(iii)    the general rules for the interpretation of Schedule No. 1; and

(iv)    every section note and chapter note in Part 1 of Schedule No. 1,

shall be subject to the International Convention on the Harmonized Commodity Description and Coding System done in Brussels on 14 June 1983 and to the Explanatory Notes to the Harmonised System issued by the Customs Co-operation Council, Brussels (now known as the World Customs Organisation) from time to time: Provided that where the application of any part of such Notes or any addendum thereto or any explanation thereof is optional the application of such part, addendum or explanation shall be in the discretion of the Commissioner.

(b)     The Commissioner shall obtain and keep in his office two copies of such Explanatory Notes and shall effect thereto any amendment of which he is notified by the said Council from time to time and shall record the date of effecting each such amendment and any such amendment shall, for the purposes of this Act, be effective from the date so recorded.

[Paragraph (b) added by section 3 of Act 10 of 2005 with effect from 12 December 2001]

(c)     Whenever in any legal proceedings any question arises as to the contents of such Explanatory Notes or as to the date upon which any amendment thereto was effected, a copy of such Explanatory Notes as amended in terms of this subsection shall be accepted as sufficient evidence of the contents thereof and of the effective date of any amendment thereto.

[Paragraph (c) added by section 3 of Act 10 of 2005 with effect from 12 December 2001]

[Subsection (8) amended by section 11 of Act 95 of 1965, section 7 of Act 105 of 1976 and section 15 of Act 84 of 1987, substituted by section 126 of Act 60 of 2001 and amended by section 104 of Act 74 of 2002]

(9)    

(a)    

(i)      The Commissioner may in writing determine –

(aa)   the tariff headings, tariff subheadings or tariff items or other items of any Schedule under which any imported goods, goods manufactured in the Republic or goods exported shall be classified; or

(bb)   whether goods so classified under such tariff headings, tariff subheadings, tariff items or other items of Schedule No. 3, 4, 5 or 6 may be used, manufactured, exported or otherwise disposed of or have been used, manufactured, exported or otherwise disposed of as provided in such tariff items or other items specified in any such Schedule.

[Subparagraph (i) substituted by section 6 of Act 68 of 1989 and section 126 of Act 60 of 2001]

(ii)     The acceptance by any officer of a bill of entry or the release of any goods as entered shall be deemed not to be any such determination.

(iii)  ………

[Sub­paragraph (iii) inserted by section 126(1)(c) of Act 60 of 2001 and deleted by section 14(a) of Act 33 of 2019]

(iv)

(aa)    For the purposes of this subparagraph ‘alcoholic beverages’ means alcoholic beverages as contemplated in Chapter 22 of Part 1 of Schedule No. 1.

(bb)   Notwithstanding anything to the contrary contained in this Act, every manufacturer or importer of an alcoholic beverage shall, irrespective of any existing tariff determination at the time this subparagraph comes into operation, apply for a tariff determination of that beverage in terms of this paragraph.

(cc)    An application for a tariff determination shall be accompanied by-

(A)    detailed information of the brand name, process of manufacture, the ingredients used, the proportion in which they are used, the alcoholic strength and such other particulars as the Commissioner may specify; and

(B)    if applicable, a letter from the administering officer referred to in section 3 of the Liquor Products Act, 1989 (Act No. 60 of 1989), confirming that the alcoholic beverage complies with that Act.

(dd)   Notwithstanding subsection (3) of section 4, but subject, with the necessary changes, to the proviso to subsection (3) and subsections (3A), (3C) and (3D) of that section, the Commissioner may disclose any information provided in terms of item (cc) to the Director General of the Department of Agriculture, Forestry and Fisheries.

(ee)    After the date this subparagraph comes into operation, application for a tariff determination shall be made for an alcoholic beverage-

(A)    before release of a clearance for home consumption of the first importation; or

(B)    before removal from the excise manufacturing warehouse for any purpose in terms of this Act,

as may be applicable in respect of that alcoholic beverage.

(ff)    The Commissioner may, for the purposes of implementation of this subparagraph, by rule-

(A)    specify a period after the date this subparagraph comes into operation within which and the order in which an application for a tariff determination in respect of any class or kind of alcoholic beverage manufactured or imported shall be submitted; and

(B)    prescribe any other matter as contemplated in subsection (13).

(gg)   If, for any alcoholic beverage, the brand name, process of manufacture, any ingredient or the proportion in which it is used, or the alcoholic strength changes, application for a new tariff determination shall be made before release of a clearance for home consumption or before removal from the excise manufacturing warehouse for any purpose in terms of this Act, as may be applicable in respect of that alcoholic beverage.

(ggA) Notwithstanding anything to the contrary contained in this subparagraph or the rules in relation thereto, application for a tariff determination shall not be made in respect of bulk removals between excise manufacturing warehouses of alcoholic beverages classified under any subheading of heading 22.04 or 22.05 of Part 1 of Schedule No. 1.

[Item (ggA) inserted by section 14(b) of Act 33 of 2019]

(hh)   This subparagraph may not be read as preventing any officer from performing any function contemplated in section 106.

[Subparagraph (iv) added by section 15 of Act 44 of 2014 effective on 20 January 2015]

(b)    

(i)      Whenever any determination is made under paragraph (a) or any determination is amended or withdrawn and a new determination is made under paragraph (d), any amount due in terms thereof shall, notwithstanding that such determination is being dealt with in terms of any procedure contemplated in Chapter XA or any proceedings have been instituted in any court in connection therewith, remain payable as long as such determination or amended or new determination remains in force: Provided that the Commissioner may on good cause shown, suspend such payment until the date of any final judgment by the High Court or a judgment by the Supreme Court of Appeal.

[Subparagraph (i) substituted by section 138 of Act 45 of 2003 and section 11 of Act 36 of 2007]

(ii)     Such determination, amendment of a determination or new determination shall cease to be in force from the date –

(aa)   of the amendment of or the withdrawal and insertion of any Schedule or any amendment of the Explanatory Notes as contemplated in subsection (8)(b) with the result that the said determination, amended determination or new determination no longer conforms to the interpretation of the relevant provisions of such Schedule or Explanatory Notes;

(bb)   when it is no longer compatible with a final judgment by the High Court or a judgment by the Supreme Court of Appeal, from the date of such judgment; or

(cc)    any amendment of a determination or new determination is made effective under paragraph (d) or as a result of the finalisation of any procedure contemplated in Chapter XA.

[Item (cc) substituted by section 138 of Act 45 of 2003 and section 11 of Act 36 of 2007]

[Paragraph (b) substituted by section 126 of Act 60 of 2001]

(c)     Whenever a court amends or orders the Commissioner to amend any determination made under subsection (9)(a) or (d) or any determination is amended or a new determination is made under paragraph (d) or as a result of the finalisation of any procedure contemplated in Chapter XA, the Commissioner shall not be liable to pay interest on any amount refundable which remained payable in terms of the provisions of paragraph (b)(i) for any period during which such determination remained in force.

[Paragraph (c) substituted by section 63 of Act 30 of 1998, section 126 of Act 60 of 2001, section 138 of Act 45 of 2003 and section 11 of Act 36 of 2007]

(d)    

(i)      The Commissioner shall –

(aa)    amend any determination or withdraw it and make a new determination with effect from the date it is no longer in force as provided in paragraph (b)(ii)(aa) or (bb);

(bb)   except where a determination is being dealt with in terms of any procedure contemplated in Chapter XA, amend any determination or withdraw it and make a new determination if it was made in error or any condition or obligation on which it was issued is no longer fulfilled or on any other good cause shown including any relevant ground for review contemplated in section 6 of the Promotion of Administrative Justice Act, 2000 (Act No. 3 of 2000).

[Item (bb) substituted by section 138 of Act 45 of 2003]

[Item (bb) substituted by section 11 of Act 36 of 2007]

(ii)     Any such amendment or new determination contemplated in paragraph (i)(bb) may be made with effect from –

(aa)   subject to the provisions of section 44(11)(c), the date of first entry of the goods in question in circumstances where a false declaration is made for the purposes of this Act;

(bb)   the date of first entry, if the determination was made –

(A)     by an officer who was biased or reasonably suspected of bias; or

(B)    for an ulterior purpose or motive, arbitrarily or capriciously or in bad faith;

(cc)   subject to subsection (12), the date of the determination made under paragraph (a) in circumstances where such determination was made in bona fide error of law or of fact; or

(dd)   the date of the amendment of the previous determination or the date of the new determination:

Provided that whenever any amendment of a determination or a new determination is effective from a date resulting in the person to whom the determination was issued –

(a)     being entitled to a refund of duty, such refund shall be subject to the provisions of section 76B;

(b)     retrospectively incurring an increased liability for duty, such liability shall, subject to the provisions of section 44(11)(c), be limited to goods entered for home consumption during a period of two years immediately preceding the date of such amendment or new determination.

[Paragraph (d) substituted section 126 of Act 60 of 2001]

(e)     An appeal against any such determination shall lie to the division of the High Court of South Africa having jurisdiction to hear appeals in the area wherein the determination was made, or the goods in question were entered for home consumption.

[Paragraph (e) amended by section 53 of Act 53 of 1999]

(f)     Such appeal shall, subject to section 96(1), be prosecuted within a period of one year from the date of the determination.

[Subsection (9) added by section 6 of Act 110 of 1979 and substituted by section 4 of Act 44 of 1996]

(10)   Save where –

(a)     a determination has been made under subsection (9)(a) or (d); or

(b)     subject to section 44(11)(c), any underpayment arises from the circumstances contemplated in the proviso to section 44(11)(a),

[Paragraph (b) substituted by section 68 of Act 32 of 2004]

there shall be no liability for any underpayment in duty on any goods, where such underpayment is due to the acceptance of a bill of entry bearing an incorrect tariff heading, tariff subheading or tariff item or other item of any Schedule, after a period of two years from the date of entry of such goods.

[Subsection (10) added by section 6 of Act 110 of 1979 and substituted by section 126 of Act 60 of 2001]

(11)  

(a)     Notwithstanding the provisions of subsection (10), any determination made under subsection (9)(a) as a result of or during the course of or following upon an inspection of the books, accounts and other documents of an importer, exporter, manufacturer or user of goods, shall, subject to the provisions of section 44(11)(c), be deemed to have come into operation in respect of the goods in question entered for the purposes of this Act two years prior to the date on which the inspection commenced.

(b)     The expression “inspection of any books, accounts and other documents”, or any other reference to an inspection in this Act shall be taken to include any act done by an officer in the exercise of any duty imposed or power conferred by this Act for the purposes of the physical examination of goods and documents upon or after or in the absence of entry, the issue of stop notes or other reports, the making of assessments and any pre- or post-importation audit, investigation, inspection or verification of any such books, accounts and other documents required to be kept under this Act.

[Subsection (11) added by section 6 of Act 52 of 1986 and substituted by section 126 of Act 60 of 2001]

(11A)  Any determination made under subsection (9) shall operate-

(a)     in respect of the person in whose name it is issued, the goods mentioned therein and in respect of identical goods entered by that person, whether before or after the date when the determination is issued; and

(b)     subject to the provisions of sections 44(11)(c) and 76B and subsections (10) and (11).

[Sub­section (11A) inserted by section 14(c) of Act 33 of 2019]

(12)   [Subsection (12) has been added by section 126 of Act 60 of 2001 and will be put into operation by proclamation]

(13)   The Commissioner may make rules in respect of –

(i)      all matters which are required or permitted in terms of this section to be prescribed by rule;

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

[Subsection (13) inserted by section 126 of Act 60 of 2001]

Section 46 (Customs Act) – Origin of goods

Posted on by admin_kmos

46. Origin of goods



(1)     For the purposes of this Act, except where any agreement contemplated in section 49 or 51 otherwise provides, goods shall not be regarded as having been produced or manufactured in any particular territory unless –



(a)     at least twenty-five per cent (or such other percentage as may be determined under subsection (2), (3) or (4)) of the production cost of those goods, determined in accordance with the rules, is represented by materials produced and labour performed in that territory;



(b)     the last process in the production or manufacture of those goods has taken place in that territory; and



(c)     such other processes as the Commissioner may, at the request of the International Trade Administration Commission, by rule prescribe in respect of any class or kind of goods, have taken place in the production or manufacture of goods of such class or kind in that territory.

[Paragraph (c) substituted by section 137 of Act 45 of 2003]

[Subsection (1) amended by section 2 of Act 61 of 1992, substituted by section 36 of Act 45 of 1995 and amended by section 52 of Act 53 of 1999]



(2)     The Commissioner may from time to time, at the request of the International Trade Administration Commission, by rule increase the percentage prescribed in subsection (1), in regard to any class or kind of imported goods, or in regard to any class or kind of such goods from a particular territory, to which that subsection applies;

[Subsection (2) substituted by section 5 of Act 68 of 1989, section 2 of Act 61 of 1992, section 36 of Act 45 of 1995 and section 137 of Act 45 of 2003]



(3)     The State President may, by agreement with the government of any territory, increase or reduce for the purposes of section 51 the percentage prescribed in subsection (1) of this section in so far as that territory is concerned, in regard to any class or kind of goods to which that subsection applies.



(4)     The Commissioner may –



(a)     in respect of any excisable or other goods produced or manufactured in the Republic or any class or kind of such goods or any such goods in respect of which circumstances specified by rule apply, increase or reduce by rule the percentage prescribed in subsection (1);



(b)     exclude by rule any goods or class or kind of goods referred to in paragraph (a) from the provisions of subsection (1);



(c)     prescribe by rule that any goods or class or kind of goods referred to in paragraph (a) shall not be regarded as having been produced or manufactured in the Republic unless such processes in connection with the production or manufacture as may be specified in such rule have taken place in the Republic.



(d)     for the purposes of any tariff preferences allowed by any country in respect of goods exported from the Republic other than tariff preferences provided in terms of agreements contemplated in section 49 or 51, prescribe by rule certificates of origin, the authority to print such certificates or other forms, the documents to be produced upon entry for exportation, particulars to be stated on such entry and any other requirements which may be necessary for the administration of such exports.

[Paragraph (d) added by section 52 of Act 53 of 1999]

(5)    

(a)     Any person entering any imported goods which are –



(i)      liable to any provisional payment as contemplated in section 57A or to anti-dumping duty imposed under section 56 or countervailing duty imposed under section 56A or safeguard measure imposed under section 57; or



(ii)     subject to any restriction in terms of any other law when imported from a specified country or specified countries; and



(iii)    imported from a country or countries other than the country or countries or supplier in respect of which such payment, duty or restriction is prescribed, shall produce to the Controller at the time of presenting the bill of entry a declaration of origin in respect of such goods.



(b)     The Commissioner may by rule prescribe for the purposes of this subsection –



(i)      a declaration or other forms; and



(ii)     any other matter which the Commissioner may consider reasonably necessary and useful to achieve the efficient and effective administration of this subsection.

[Subsection (5) deleted by section 36 of Act 45 of 1995, added by section 52 of Act 53 of 1999 and substituted by section 9 of Act 36 of 2007]

Section 44A (Customs Act) – Joint and several liability for duty or certain amounts

Posted on by admin_kmos

44A.   Joint and several liability for duty or certain amounts

 

Subject to the provisions of sections 36A(2)(b)(i) and 99(2)(b), whenever in terms of this Act liability for duty or any amount demanded under section 88(2)(a) devolves on two or more persons, each such person shall, unless he proves that his relevant liability has ceased in terms of this Act, be jointly and severally liable for such duty or amount, any one paying, the other or others to be absolved pro tanto.

[Section 44A inserted by section 14 of Act 84 of 1987 and substituted by section 34 of Act 45 of 1995]