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

Section 44 (Customs Act) – Liability for duty

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44. Liability for duty

(1)    

(a)     Liability for duty on any goods to which section 10 relates shall commence from the time when such goods are in terms of that section deemed to have been imported into the Republic: Provided that, subject to the provisions of subsection (7), any such liability shall cease if it is proved that such goods (excluding, save in so far as the rules otherwise provide, goods which are missing from any individual package and in respect of which any customs duty, surcharge or fuel levy, each taken separately, does not exceed twenty-five rand) were not landed at any place in the Republic.

[Paragraph (a), previously subsection (1) substituted by section 5(a) of Act 57 of 1966 and by section 16(a) of Act 105 of 1969, amended by section 8(a) of Act 112 of 1977, substituted by section 13(a) of Act 84 of 1987 and amended by section 21(1)(a) of Act 59 of 1990, by section 33(a) of Act 45 of 1995 and by section 14(a) of Act 24 of 2020]

(b)     Liability for export duty on any goods specified in Part 6 of Schedule No. 1 shall commence-

(i)      when the export bill of entry in respect of such goods is submitted before export in terms of section 38(3)(a); or

(ii)     in circumstances where no export bill of entry is submitted before export, when the goods are deemed to have been exported in terms of section 38(3)(b).

[Paragraph (b) added by section 14(a) of Act 24 of 2020]

(2)     Any excisable goods or fuel levy goods shall, for the purposes of this Act, be deemed to have been manufactured at that stage in the manufacturing process when the said goods have acquired the essential characteristics of and are in the opinion of the Commissioner capable of use as such excisable goods or fuel levy goods, and liability for duty shall commence at the said stage.

[Subsection (2) substituted by section 16 of Act 105 of 1969, section 13 of Act 84 of 1987 and section 21 of Act 59 of 1990]

(3)     The master of a ship or pilot of an aircraft or carrier of goods by means of any other vehicle shall be liable for the duty on all goods which are removed from that ship, aircraft or vehicle at a place in the Republic to which they are not consigned, and such liability shall continue until the goods have been duly entered or otherwise accounted for.

[Subsection (3) substituted by section 33 of Act 45 of 1995]

(4)     The master, pilot or carrier concerned shall be liable for the duty on all goods deemed in terms of section 10 to have been imported, except goods in respect of which a bill of lading, air consignment note or other document was issued on loading of such goods onto the ship, aircraft or vehicle by means of which they were imported stating that the said goods were accepted for conveyance at the risk of the owner thereof in all respects and not only as regards risk in respect of damage to such goods, provided such goods have not been landed and placed in a transit shed appointed or prescribed under section 6(1).

[Subsection (4) substituted by section 5 of Act 110 of 1979]

(5)     The liability of the master or pilot or other carrier for duty in terms of subsection (4) shall cease –

(a)     upon lawful delivery of the goods, after due entry thereof has been made, to the importer or his agent; or

(b)     if due entry of the goods has not been made-

(i)      upon delivery thereof to the State Warehouse or other place indicated for the purposes of this section by the Controller; or

(ii)     in the case of air cargo, upon receipt thereof by a degrouping operator;

[Paragraph (b) substituted by section 136 of Act 45 of 2003]

(c)     upon delivery of the goods, if containerized, to a container operator; or

[Paragraph (c) added by section 7 of Act 71 of 1975 and substituted by section 8 of Act 112 of 1977]

(d)     ……….

[Paragraph (d) added by section 7 of Act 71 of 1975 and deleted by section 136 of Act 45 of 2003]

(e)     upon delivery of the goods, if containerized, to a licensed remover of goods in bond for transporting the goods for purposes of examination as contemplated in section 4(8A);

[Paragraph (e) added by section 14(b) of Act 24 of 2020]

(5A)  The liability of a container operator for duty in terms of subsection (6)(a) shall cease –

(a)     in respect of goods which are containerized, upon lawful delivery thereof, after due entry thereof has been made, to the importer or his agent; or

(b)     in respect of goods containerized in –

(i)      L.C.L. containers; and

(ii)     other containers delivered to a container operator as contemplated in subsection (5)(c) and specified in a list to be compiled by the container operator concerned,

upon delivery thereof to a depot operator; or

[Paragraph (b) substituted by section 3 of Act 89 of 1984]

(c)     in respect of any of such goods of which due entry has not been made, upon delivery thereof to the State warehouse or other place indicated for the purposes of this section by the Controller.

[Subsection (5A) inserted by section 7 of Act 71 of 1975]

(5AA) The liability of a licensed remover of goods in bond for duty in terms of subsection (6)(bA) shall cease-

(a)     in respect of goods which are containerized, upon lawful delivery thereof, after due entry thereof has been made, to the importer or his or her agent; or

(b)     in respect of containers delivered to a licensed remover of goods in bond as contemplated in subsection (5)(e) and specified in a list to be compiled by the licensed remover of goods in bond concerned, upon delivery thereof, to a depot operator.

[Subsection (5AA) inserted by section 14(c) of Act 24 of 2020]

(5B)  The liability of a depot operator for duty in terms of subsection (6)(b) shall cease –

(a)     in respect of goods containerized in L.C.L. containers and the other containers referred to in subsection (5A)(b)(ii), upon lawful delivery thereof, after due entry thereof has been made, to the importer or his agent; or

[Paragraph (a) substituted by section 3 of Act 89 of 1984]

(b)     in respect of any of such goods of which due entry has not been made, upon delivery thereof to the State warehouse or other place indicated for the purposes of this section by the Controller.

[Subsection (5B) inserted by section 7 of Act 71 of 1975]

(5C)

(a)     The degrouping operator shall be liable for the duty on all goods received by the-

(i)      degrouping operator at the degrouping depot;

(ii)     degrouping operator from the transit shed operator (as defined by rule) where the degrouping operator takes delivery from the transit shed operator at the transit shed;

(iii)    degrouping operator from another degrouping operator.

(b)     The liability for duty of the degrouping operator shall cease-

(i)      upon receipt of such goods by any other degrouping operator in accordance with the procedures prescribed by rule in terms of section 64G;

(ii)     upon lawful delivery after due entry thereof to the importer or the importer’s agent;

(iii)    in respect of any goods of which due entry has not been made upon delivery thereof to the state warehouse or other place indicated for the purposes of this section by the Controller;

(iv)    on complying with any condition or procedure prescribed by rule in terms of section 64G.

[Subsection (5C) inserted by section 136 of Act 45 of 2003]

(6)     In all cases where the master, pilot or other carrier is not liable for the duty on any imported goods or where the liability of the said master, pilot or other carrier has ceased in respect of such goods in terms of this section, liability for duty thereon shall, subject to the provisions of Chapter VII, rest –

(a)     in the case contemplated in subsection (5)(c), on the container operator concerned;

(b)     in the case contemplated in subsection (5A)(b), on the depot operator concerned;

[Paragraph (b) amended by section 14(d) of Act 24 of 2020]

(bA)  in the case contemplated in subsection (5)(e), on the licensed remover of goods in bond concerned; and

[Paragraph (bA) inserted by section 14(d) of Act 24 of 2020]

(c)     in any other case, on the importer or the owner of such goods or any person who assumes such liability for any purpose under the provisions of this Act, subject to the approval of the Commissioner and such conditions as he may determine.

[Paragraph (c) substituted by section 21 of Act 59 of 1990]

[Subsection (6) substituted by section 10 of Act 95 of 1965 and section 7 of Act 71 of 1975]

(7)     Notwithstanding anything to the contrary in this section contained, no importer shall be granted a refund of customs duty, excise duty, surcharge or fuel levy paid in respect of any goods missing from any individual imported package, if such customs duty, excise duty, surcharge or fuel levy, each taken separately, does not exceed twenty-five rand.

[Subsection (7) substituted by section 5 of Act 57 of 1966, section 16 of Act 105 of 1969, section 8 of Act 112 of 1977, section 13 of Act 84 of 1987, section 21 of Act 59 of 1990 and section 91 of Act 35 of 2007 effective on 1 April 2012]

(8)     The manufacturer, owner, seller or purchaser of any excisable goods or fuel levy goods shall, subject to the provisions of Chapter VII, be liable for the duty on such goods, and his liability shall continue until such goods have been duly entered and the duty due thereon paid.

[Subsection (8) substituted by section 10 of Act 95 of 1965, section 16 of Act 105 of 1969, section 5 of Act 110 of 1979, section 5 of Act 52 of 1986, section 13 of Act 84 of 1987 and section 21 of Act 59 of 1990]

(8A)  Notwithstanding anything to the contrary in this Act contained, any person who owns, purchases, removes, receives, takes, delivers or deals with or in any imported goods or excisable goods or fuel levy goods which should have been duly entered, in terms of any agreement in any territory with the government of which such an agreement has been concluded under section 51, any other Member State of SACU, shall be liable for the duty on such goods brought into the Republic from such territory State, and if the question arises whether such goods have been duly entered, it shall be presumed, unless the contrary is proved, that such goods have not been so entered, and such goods shall be subject to the provisions of this Act as if they were goods which have, contrary to the provisions of subsection 47A (1), not been duly entered in the Republic.

[Subsection (8A) inserted by section 5 of Act 52 of 1986 and substituted by section 13 of Act 84 of 1987, section 3 of Act 98 of 93 and section 91 of Act 35 of 2007]

(9)     For the purposes of subsection (5) an entry by bill of sight shall be deemed to be due entry.

(10)   Any duty for which any person is liable in terms of this section shall be payable upon demand by the Commissioner.

(11)  

(a)     Notwithstanding anything to the contrary contained in this Act, but subject to the provisions of sections 47(10) and (11), 65(7) and (7A) and 69(6) and (7) and subsection (12) of this section, except where this subsection otherwise provides in respect of any matter to which any of such provisions relate, there shall be no liability for any underpayment of duty on any goods –

(i)      after a period of two years from the date of acceptance of a bill of entry; or

(ii)     where such underpayment was discovered as a result of, during the course of, or following upon, an inspection and that underpayment occurred on a date earlier than two years prior to the date on which such inspection commenced:

[Subparagraph (ii) substituted by section 12 of Act 9 of 2005]

Provided that such liability shall, subject to paragraph (c), not cease even if an underpayment is discovered after an earlier assessment and payment of an amount in respect of any inspection during the period concerned, where such underpayment is the result of-

(aa)   fraud;

(bb)   misrepresentation;

(cc)   non-disclosure of any material facts; or

(dd)   any false declaration for the purposes of the Act.

[Paragraph (a) substituted by section 67 of Act 32 of 2004]

(b)     Where any period is prescribed in this Act for books, accounts or other documents in whatever form to be kept available for production to or inspection by an officer, any such period shall, subject to the provisions of paragraph (c), be calculated from a date prior to the date on which production is demanded or the inspection commences.

(c)     Except where the Commissioner may otherwise determine in exceptional circumstances, where any underpayment arises from the circumstances contemplated in the proviso to paragraph (c), there shall be no limitation on the period of liability for underpayment of duty or die period for which any books, accounts or any other documents, in whatever form available, are required to be produced to or may be inspected by an officer.

[Paragraph (c) substituted by section 67 of Act 32 of 2004]

[Subsection (11) added by section 51 of Act 53 of 1999]

(11A) Notwithstanding anything to the contrary contained in this Act, there shall be no liability for any underpayment on any goods if the duty which should have been paid was, in accordance with the practice generally prevailing at the time of entry for home consumption, not paid or the full amount of duty which should have been paid at the time of entry for home consumption was, in accordance with such practice, not paid, unless the Commissioner is satisfied that the amount of duty which should have been paid was not paid, or that the full amount of duty was not paid due to fraud or misrepresentation or non-disclosure of material facts or any false declaration for purposes of this Act.

[Subsection (11A) inserted by section 93 of Act 60 of 2008]

(12)   Any person who makes a false statement concerning the origin of goods or who makes use of any declaration or document containing any such statement as a result of which such person obtains entry of imported goods at a preferential rate of duty as specified in Part 1 of Schedule No. 1 in accordance with the provisions of any agreement contemplated in section 49 or 51 shall, for a period of three years prior to the date on which such false statement was made or made use of, in addition to any other liability incurred in terms of this Act, be liable for the payment of duties at the general rate specified in Part 1 of Schedule No. 1 in respect of the goods at the time of entry: Provided that the Commissioner may on good cause shown reduce such period.

[Subsection (12) added by section 51 of Act 53 of 1999]

Section 43 (Customs Act) – Disposal of goods on failure to make due entry, goods imported in contravention of any other law and seized or abandoned goods

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43. Disposal of goods on failure to make due entry, goods imported or to be exported in contravention of any other law and seized and abandoned goods

(1)     If entry of any goods imported or goods to be exported on which an export duty is payable has not been made under the provisions of section 38-

(a)     in the case of goods in a container depot within 28 days from the date the goods were landed; or

(b)     in the case of any other goods, on expiry of the period stated in, or prescribed in any rule contemplated in, subsection (1) or (3)(b) of the said section,

[Paragraph (b) amended by section 13(c) of Act 24 of 2020]

the master, pilot or other carrier, container operator, depot operator, person in control of a container terminal or transit shed or other person who has control of such goods in terms of any provision of this Act shall furnish a list thereof together with all available documents to the Controller and shall remove the goods to-

(i)      the State warehouse; or

(ii)     such other place indicated by the Controller; or

(c)     the Controller may –

(i)      where any such person fails to remove the goods as required in terms of subparagraph (i) or (ii), at the risk and expense of such person, so remove the goods; or

(ii)     allow the goods, subject to such conditions as the Controller may impose, to remain under the control of such person.

[Subsection (1) substituted by section 32(a) of Act 45 of 1995, by section 124(a) of Act 60 of 2001 and amended by section 45(a) of Act 30 of 2002 and by section 13(b) of Act 24 of 2020]

(2)    

(a)     Whenever any goods are so removed to or allowed to remain at any place other than the State warehouse such a place shall, subject to the provisions of this section, be deemed to be a State warehouse for the purposes of this Act.

(b)     Any person who has control of any premises where such goods are stored shall –

(i)      be responsible for such goods as if the goods were kept in a State warehouse from the date the Controller so indicates or so allows the goods to remain at such place;

(ii)     be liable for the duty on such goods as long as the goods remain at such place;

(iii)    be entitled to payment of  the outstanding amount due in respect of the storage of those goods at the time of sale from the proceeds of the sale of those goods as charges according to the order contemplated in subsection (3).

[Subparagraph (iii) substituted by section 92 of Act 60 of 2008]

(bA)

(i)      Where any person who has control of premises as contemplated in paragraph (b) is entitled to payment in terms of that paragraph, that person may not, whether or not he or she receives any amount from the proceeds of sale as contemplated in that paragraph, collect any storage charges from the purchaser of the goods on a sale.

(ii)     Where the goods are cleared and delivery granted by the Controller before the time of sale of the goods as contemplated in paragraph (b), the person having control thereof is entitled to collect his or her storage charges in respect of the goods and no State warehouse rent is payable for the time the goods remained under control of that person.

[Paragraph (bA) inserted by section 92 of Act 60 of 2008]

(c)    

(i)      The Commissioner shall compile a list of all the goods in the State warehouse or deemed to be in the State warehouse as provided in this section reflecting the date of importation or intended export, the distinguishing marks and numbers, a description of the goods, the name and address of the importer or exporter, if known, the name of the carrier and any other relevant person contemplated in subparagraph (ee), the location of the goods and any other information available and shall-

(aa)   obtain and keep a copy of the manifest, transport document, outturn report and any other document available relating to the exportation, carriage and importation of the goods;

(bb)   update the list weekly;

(cc)    display the list on a notice board in the office of the Controller and at the State warehouse;

(dd)   place the list on the SARS website specified by rule and keep a printout of such list and every amendment thereof;

(ee)   notify by facsimile transmission or other means the importer or exporter, where the importer or exporter and the address of the importer or exporter are known, and any other person known to the Commissioner to be involved or who may reasonably be expected to be involved in the exportation or importation including, where relevant, the container operator, any port authority, a transit shed operator, any other person in control of freight landed from any carrier, the carrier or agent for the carrier, the clearing agent and the exporter or supplier of the goods.

[Subparagraph (i) amended by section 13(d)(i)-(ii) of Act 24 of 2020. Item (ee) amended by section 13(e) of Act 24 of 2020]

(ii)     The contents of the list so displayed and included in the website shall be deemed to be sufficient notification to the importer, exporter or any other person who has any right or interest in the goods concerned that unless the goods are duly entered in accordance with the provisions of this Act they will be disposed of in terms of this section

[Subsection (2) amended by section 6 of Act 86 of 1982, by section 32(b) of Act 45 of 1995 and substituted by section 124(a) of Act 60 of 2001. Subparagraph (ii) amended by section 13(f) of Act 24 of 2020]

(2A)  The Commissioner may –

(a)     by rule amend or substitute any requirement or prescribe any additional requirement relating to any document or procedure contemplated in subsection (2);

(b)     notwithstanding anything to the contrary contained in section 4(3) or in any other law, for the purposes of this section, disclose by publication or otherwise any information acquired regarding any person, goods, firm or business to which this section relates.

[Subsection (2A) inserted by section 124 of Act 60 of 2001]

(3)     If after the expiration of 60 days from the date of removal to the State warehouse or other place indicated by the Controller or, where no such removal has taken place, from the date of expiry of the period prescribed in section 38(1) or (3)(b), any goods remain unentered the Commissioner may cause them, except if they have been imported in contravention of any law, to be sold, and if so sold the proceeds thereof shall be applied in discharge of any duty, expenses incurred by the Commissioner, charges due to the Commissioner (including any State warehouse rent), a port or railway authority, the Department of Transport, a container operator or a depot operator, or any person other than a container operator or depot operator who had control over premises where the goods were so stored as contemplated in subsection (2), freight and salvage as provided for in section 16 of the Wreck and Salvage Act, 1996 (Act 94 of 1996), in that order, and the surplus if any, shall, upon application be paid to the owner of the said goods: Provided that-

(a)     if any goods cannot be sold at a price regarded by the Commissioner as reasonable having regard to the duty, expenses and charges in respect of such goods, the Commissioner may direct that the goods concerned be destroyed or appropriated to the State without payment of any duty;

[Paragraph (a) substituted by section 124 of Act 60 of 2001]

(b)     where any goods are sold at a price which is insufficient to cover the duty, such expenses, charges and freight, the Commissioner may apply the proceeds in discharge thereof in the order mentioned

[Paragraph (b) substituted by section 32 of Act 45 of 1995 and section 124 of Act 60 of 2001]

(c)     no payment of overplus in respect of goods sold shall be made to the owner of the goods, unless the application for such payment is supported by proof of ownership of the goods and is received by the Commissioner within two years from the date of sale of the goods.

[Subsection (3) amended by section 6 of Act 105 of 1976, by section 7 of Act 112 of 1977, by section 32(c) of Act 45 of 1995, by section 34(1) of Act 34 of 1997, by section 124(c) of Act 60 of 2001, by section 23 of Act 34 of 2004, by section 92(1)(e) of Act 60 of 2008 and by section 13(g) of Act 24 of 2020]

(4)     Notwithstanding anything to the contrary in this Act contained –

(a)     if any goods referred to in subsection (3) are of a perishable or dangerous nature, or if the Commissioner considers that, unless the goods are sold at once, the proceeds would not be sufficient to cover the duties and charges due or charges which may become due in respect of those goods, he may forthwith direct the sale thereof and apply the proceeds as provided in subsection (3);

(b)     if any goods are sold in terms of this section subject to compliance by the purchaser with any condition, and the purchaser fails to comply with such condition within a period of three months from the date of sale of such goods, such sale shall be null and void and the net proceeds of sale may be refunded to the purchaser and the Commissioner may direct that the goods in question be destroyed or appropriated to the State or be dealt with in such manner as he may deem fit.

(5)    

(a)     Where the Commissioner on reasonable grounds determines that any goods to which this section relates or any goods which are detained as contemplated in section 113(8), have been imported or exported in contravention of any law, the Commissioner may, except in the case of goods detained under section 113A for the purposes of the Counterfeit Goods Act, 1997 (Act No. 37 of 1997), request the South African Police Service or the authority administering such law –

(i)      to take delivery of such goods for the purposes of instituting any civil proceedings or criminal prosecution or to take any other action in terms of such law within 60 days or such further time as the Commissioner may specify in such request;

(ii)     if it is not intended to act as contemplated in subparagraph (i) to advise the reasons therefor within such period; or

(iii)    to authorise the Commissioner, as contemplated in paragraph (e), to deal with such goods under the provisions of this section.

(b)     When delivery is taken as contemplated in paragraph (a), such goods shall not be allowed to enter into home consumption in the Republic unless they have been duly entered, and any duty and value-added tax payable thereon have been paid to the Controller under whose control they were at the time of such delivery.

(c)    

(i)    The Commissioner shall at the time of such request notify any relevant person contemplated in subsection (2)(c)(i)(ee) of such request and that if delivery of the goods is not taken the goods will be disposed of as provided for in this section.

(ii)    

(aa)   Particulars of such goods shall be included in a separate section of the list contemplated in subsection (2)(c)(i) and cross-referenced to any other unentered goods included in such list.

(bb)   The provisions of subsection (2)(c)(i) shall otherwise mutatis mutandis apply to the goods to which this subsection relates.

(cc)   Notwithstanding subparagraph (i), the contents of the list so displayed and placed on the website shall be deemed to be sufficient notification to the importer, exporter or any other person who has any right or interest in the goods concerned that the goods will be disposed of in terms of this section

[Item (cc) amended by section 13(h) of Act 24 of 2020]

(d)     If the South African Police Service or such authority fails to take such delivery or after taking delivery does not institute civil proceedings or criminal prosecution or take any other action under the relevant law within any reasonable period allowed by the Commissioner or has authorised the Commissioner to deal with such goods under the provisions of this section as contemplated in paragraph (e) and no person has given notice of intention to claim release of the goods within 60 days after inclusion thereof in the list referred to in paragraph (c), such goods shall notwithstanding anything to the contrary in this Act or in the relevant other law contained, be deemed to be condemned and forfeited under the provisions of this Act and the Commissioner may dispose thereof as provided in this section.

(e)     Notwithstanding the provisions of any other law, the authority administering such other law or the South African Police, may authorise the Commissioner to deal with any goods imported or exported in contravention of such law in terms of the provisions of this section.

[Subsection (5) added by section 124 of Act 60 of 2001]

(6)

(a) Where any goods are seized and detained under the Counterfeit Goods Act, 1997, as contemplated in section 113A of this Act and the importer is not known or cannot despite reasonable efforts be located and no criminal or civil proceedings are instituted or no instruction is received for the release of the goods as contemplated in section 9 (2) of the Counterfeit Goods Act, 1997, such goods shall, notwithstanding anything to the contrary in this Act or the said Counterfeit Goods Act, 1997, contained, be subject to this section.

[Paragraph (a) substituted by section 45 of Act 30 of 2002 and section 92 of Act 60 of 2008]

(b)     Where goods air, seized and detained in the circumstances contemplated in paragraph (a), such goods shall, notwithstanding anything to the contrary contained in the Counterfeit Goods Act, 1997, be removed for detention to the State warehouse.

[Paragraph (b) substituted by section 45 of Act 30 of 2002]

(c)     Subsection (5)(c) shall apply mutatis mutandis in respect of goods to which this subsection relates.

[Paragraph (c) substituted by section 45 of Act 30 of 2002]

(d)     If no person gives any notice of the intention to claim release of the goods within 60 days after inclusion in the list referred to in paragraph (c), such goods shall be deemed to be condemned and forfeited under the provisions of this Act.

[Subsection (6) added by section 124 of Act 60 of 2001]

(7)    

(a)     Any goods appropriated to the State as contemplated in subsection (3)(a), any goods condemned and forfeited as contemplated in subsections (5) and (6), any goods condemned and forfeited as contemplated in sections 89 and 90 and any goods referred to in subsection (10)(a), may be disposed of as provided in paragraph (b) by the Commissioner in consultation with the Directors-General of the National Treasury and of Trade and Industry or, where appropriate, with a Director-General of any other department.

(b)     Such goods may –

(i)     

(aa)   except any goods appropriated to the State or goods which have been imported in contravention of any other law, be sold by public auction or by tender for home consumption in the Republic;

(bb)   be sold by public auction or by tender for export to a destination outside the common customs area;

(ii)     be destroyed;

(iii)    be transferred for use to any organ of State on payment of any expenses incurred by the Commissioner in connection with such goods;

(iv)    be made available at the premises where they are kept to the Department of Welfare or any other body determined by the Commissioner for the purposes of providing disaster relief or basic human necessities for indigent persons in the Republic or for donation to any country in need of aid for such persons; or

(v)     be disposed of for any other purpose or in any other manner which the Commissioner considers to be in the public interest.

(c)     If the Commissioner so determines, the importer or exporter, as the case may be, or if the importer or exporter cannot be found or is unable to pay, the South African Police Service or any authority administering the other laws referred to in subsection (5) shall reimburse the Commissioner for expenses incurred in storing and disposing of or otherwise dealing with such goods.

(d)     Except for the liability for duty in terms of the proviso to section 87(1), no duty shall be payable on any goods to which this subsection relates on disposal as contemplated in paragraph (b), but any duty paid on such goods shall not be refundable.

[Paragraph (d) substituted  by section 14 of Act 44 of 2014 effective on 20 January 2015]

[Subsection (7) added by section 124 of Act 60 of 2001]

(8)     The provisions of subsections (5), (6) and (7) shall, subject to the provisions of sections 89 and 90, mutatis mutandis apply to any goods detained or seized under this Act that were imported, exported, manufactured or used, or otherwise dealt with in contravention of the provisions of this Act and any other law: Provided that where the Commissioner is satisfied on reasonable grounds that the owner did not know that the goods were imported in contravention of this Act and such other law and the Commissioner is satisfied that the goods do not constitute a danger to public health or the public and complies with any compulsory specification contemplated in the Standards Act, 1993, the Commissioner may, instead of disposing of the goods as contemplated in subsection (7), deliver the goods to the owner in accordance with the provisions of section 93.

[Subsection (8) added by section 124 of Act 60 of 2001]

(9)     The provisions of subsection (7)(b)(iv) shall apply to any goods donated to the Commissioner by the owner of any intellectual property right after an appropriate order of court as contemplated in section 10 of the Counterfeit Goods Act, 1997.

[Subsection (9) added by section 124 of Act 60 of 2001]

(10)  

(a)     The provisions of subsection (3), (4), (5) or (6), as the case may be, and subsection (7) shall mutatis mutandis apply in respect of any goods abandoned to the Commissioner under any provision of this Act and any goods referred to in section 42 or 107 (1)(b).

(b)     The provisions of sections 89, 90 and 96 shall notwithstanding anything to the contrary contained in the laws concerned, mutatis mutandis apply in respect of any claim for the release of goods to which subsection (5) or (6) relates.

[Subsection (10) added by section 124 of Act 60 of 2001]

(11)   The Commissioner may make rules –

(a)     to delegate or assign, subject to section 3(2), any of the powers that may be exercised or assign any of the duties that shall be performed by the Commissioner under this section to any officer;

(b)     regarding all matters which are required or permitted in this section to be prescribed by rule;

(c)     to regulate any matter that the Commissioner may consider reasonably necessary and useful for the purposes of administering the provisions of this section.

[Subsection (11) added by section 124 of Act 60 of 2001]

[Section 43 amended by section 13(a) of Act 24 of 2020. Subsection (11) added by section 124(d) of Act 60 of 2001]

Section 42 (Customs Act) – Entry by bill of sight

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42. Entry by bill of sight

 

(1)     If any importer makes and subscribes to a declaration that he cannot for want of full information make due entry of any goods, the Controller may accept an entry by bill of sight for those goods by the best description which can be given, and may grant a warrant in respect thereof so that the same may be landed and brought to a place indicated by the Controller at the risk and expense of the importer for the purpose of being seen and examined by him there in the presence of the Controller.

 

(2)    

 

(a)     The importer shall make due entry of those goods within three days of the date on which they were brought to the place of examination which shall be regarded as a special State warehouse for the purpose of securing the duties thereon until the goods are duly entered and removed or delivered in accordance with this Act.

(b)     In default of due entry such goods may after three months of the date of receipt thereof into the said place of examination be disposed of in the manner described in section 43.

 

(3)     No goods entered by bill of sight in terms of this section shall be removed without due entry after sight, and the penalties prescribed in this Act in respect of the incorrect or false entry of goods are also applicable in respect of the said due entry after sight.

Section 41 (Customs Act) – Particulars on invoices

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41. Particulars on invoices

(1)     The exporter of any goods imported into or exported from the Republic or the owner of any excisable goods or fuel levy goods manufactured in any customs and excise warehouse shall render a true, correct and sufficient invoice, certificate of value and certificate of origin of such goods in such form and declaring such particulars of such goods as may be prescribed in the rules and as may be necessary to make a valid entry of such goods and shall furnish such additional information in connection with such invoice, certificate, particulars or goods as the Commissioner may, for the purposes of this Act, require at any time: Provided that different requirements may be prescribed in the rules in respect of invoices and certificates relating to goods of different classes or kinds or goods to which different circumstances specified in the rules apply.

[Subsection (1) substituted by section 15 of Act 105 of 1969, amended by section 12 of Act 84 of 1987 and section 20 of Act 59 of 1990 and substituted by section 31 of Act 45 of 1995]

(2)     Every exporter or manufacturer shall allocate to any goods of a class or kind specified in the rules for the purposes of this subsection and exported to or from or manufactured in the Republic a distinctive and permanent identification number, code, description, character or other mark in such manner and in accordance with such method as may be prescribed in the rules and such number, code, description, character or other mark shall be quoted or reproduced in all prescribed invoices relating to such goods and in all such other documents relating to such goods as may be specified in the rules.

[Subsection (2) substituted by section 41 of Act 45 of 1995]

(3)     All particulars in any prescribed invoice and certificate in respect of imported goods shall relate to the goods in the condition in which they are imported into the Republic and for the purposes of section 107(2) no change in such condition shall be deemed to have taken place between the time of importation and the time of any examination or analysis decided upon by the Controller or the Commissioner unless the importer is able to satisfy the Commissioner of any such change and the extent thereof: Provided that the Commissioner may refuse to act upon the result of any such examination or analysis if the particulars in such invoice are thereby proved to be incorrect.

[Subsection (3) amended by section 41 of Act 45 of 1995]

(4)   

(a)     All particulars necessary to make a valid entry and all particulars in respect of the transaction value or of any commission, discount, cost, charge, expense, royalty, freight, duty, tax, drawback, refund, rebate, remission or other information whatever which relates to and has a bearing on such value shall be declared by the exporter in any prescribed invoice in respect of any imported goods and such particulars shall, except where the Commissioner otherwise determines, relate to the final amount of such transaction value or commission, discount, cost, charge, expense, royalty, freight, duty, tax, drawback, refund, rebate or remission and to the final particulars or information regarding such goods.

[Paragraph (a) substituted by section 6 of Act 112 of 1977, section 3 of Act 93 of 1978 and section 5 of Act 86 of 1982]

(b)                    

(i)   Any particulars referred to in paragraph (a) and declared in any prescribed invoice or certificate in respect of any imported goods shall be subject to any amount credited or debited on the transaction by the exporter or to any refund on the transaction made or becoming due by the exporter or any amount paid or becoming due to the exporter (directly or indirectly, in money or in kind or in any other manner) or to any change of any nature whatever in such particulars in respect of such goods after the date of issue of such invoice or certificate.

(ii)   Whenever an event referred to in subparagraph (i) occurs-

(aa)   the exporter shall effect an amendment to the invoice or certificate by issuing-

(A)     an amended invoice or certificate replacing the previous one; or

(B)     a credit or debit note, if an amount reflected on the invoice is amended; and

(bb)   the importer shall produce such amended invoice or certificate or credit or debit note to the Controller within one month of receipt thereof and report the circumstances to him.

[Paragraph (b) substituted by section 13 of Act 33 of 2019]

(c)     If any particulars referred to in paragraph (a) of any imported goods are not declared in the prescribed invoice or certificate in respect thereof or if any change in the particulars declared in any prescribed invoice or certificate relating to any imported goods which occurs after the date of issue of any such invoice or certificate is not forthwith reported to the Controller by the importer of such goods or if the Commissioner has reason to believe that an offence referred to in section 86(f) or (g) has been committed in respect of any imported goods the Commissioner may determine a transaction value, origin, date of purchase, quantity, description or the characteristics of such goods according to the best information available to him, which shall, subject to the provisions of this Act, be deemed to be the transaction value, origin, date of purchase, quantity, description or the characteristics of such goods.

[Paragraph (c) substituted by section 6 of Act 112 of 1977, section 5 of Act 86 of 1982 and section 17 of Act 32 of 2005]

(d)     ……….

[Paragraph (d) added by section 6 of Act 112 of 1977 and deleted by section 22 of Act 21 of 2006]

[Section 41 substituted by section 2 of Act No. 85 of 1986]

Section 40 (Customs Act) – Validity of entries

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40. Validity of entries

(1)     No entry shall be valid unless –

(a)     in the case of imported or exported goods, the description and particulars of the goods and the marks and particulars of the packages declared in that entry correspond with the description and particulars of the goods and the marks and particulars of the packages as reported in terms of section 7 or 12 or in any certificate, permit or other document, by which the importation or exportation of those goods is authorized;

(b)     the goods have been properly described in the entry by the denomination and with the characters, tariff heading and item numbers and circumstances according to which they are charged with duty or are admitted under any provision of this Act or are permitted to be imported or exported;

(c)     the true value of the goods on which duty is leviable or which is required to be declared under the provisions of this Act and the true territory of origin, territory of export and means of carriage have been declared;

(d)     in the case of goods purchased by or sold, consigned or disposed of to any person in or outside the Republic, a correct and sufficient invoice thereof, as prescribed, has been produced to the Controller;

[Paragraph (d) substituted by section 2 of Act 93 of 1978 and by section 35(1)(a) of Act 61 of 2008 effective on 1 June, 2021]

(e)     the correct duty due has been paid: Provided that no bill of entry shall be invalid by reason of any deferment referred to in the proviso to section 39 (1)(b).

[Paragraph (e) amended by section 11 of Act 84 of 1987]

(2)     Goods taken or delivered or removed by virtue of an entry which is not valid out of any ship, aircraft, vehicle, transit shed, container terminal, container depot, customs and excise warehouse or other place where they have been deposited with the sanction of the Controller, shall be deemed to be goods landed or taken without due entry thereof: Provided that if such goods are included in any entry embracing more than one package, and it is shown that the invalidity arose without wilful default or negligence of anyone connected with the goods, and that such invalidity does not exist as to all the packages in that entry then only the packages not validly entered shall be deemed to have been landed or taken without due entry.

[Subsection (2) amended by section 6 of Act 71 of 1975]

(3)    

(a)     Subject to the provisions of sections 76 and 77 and on such conditions as the Commissioner may impose and on payment of such fees as he may prescribe by rule –

(i)      an importer or exporter or a manufacturer of goods shall on discovering that a bill of entry delivered by him or her-

(aa)    does not in every respect comply with section 39; or

(bb)    is invalid in terms of subsection (1) of this section,

adjust that bill of entry without delay by means of-

(A)    a voucher of correction; or

(C)    in such other manner as the Commissioner may prescribe; or

[Subparagraph (i) substituted by. section 35(1)(b) of Act 61 of 2008 and by section 12(a) of Act 24 of 2020]

(ii)     if-

(aa)   a bill of entry has been passed in error by reason of duty having been paid on goods intended for storage or manufacture in a customs and excise warehouse under section 20 or for purposes of use under rebate of duty under section 75; or

(bb)   an importer, exporter or manufacturer on good cause shown, requests substitution thereof by another bill of entry in circumstances other than those contemplated in item (aa),

the Commissioner may allow the importer, exporter or manufacturer concerned to adjust that bill of entry by substitution of a fresh bill of entry and cancellation of the original bill of entry, provided such goods, where a rebate of duty is being claimed, qualified at the time the duty was paid in all respects for that rebate

[Subparagraph (ii) substituted by section 3 of Act 89 of 1983 and section 35 of Act 61 of 2008]

Provided that where the purpose for which the goods are entered as specified on a bill of entry is not correct, such bill of entry must be adjusted in terms of subparagraph (ii),

and provided further that acceptance of such voucher or fresh bill of entry shall not indemnify such importer or exporter or manufacturer against any fine or penalty provided for in this Act.

[Paragraph (a) substituted by section 4 of Act 86 of 1982 and amended by section 30 of Act 45 of 1995 and by section 12(b) of Act 24 of 2020]

(aA)  The provisions of paragraph (a)(ii) shall apply mutatis mutandis in respect of a bill of entry in which goods have according to the tariff heading, tariff subheading, item or circumstances according to which such goods are charged with duty, been described in error as goods other than goods intended for –

(i)      storage or manufacture in a customs and excise warehouse under section 20; or

(ii)     purposes or use under rebate of duty under section 75,

in consequence of the fact that –

(aa)   a determination of any such tariff heading, tariff subheading or item is, under section 47(9)(d), amended with retrospective effect as from a date before or on the date on which the goods described in such bill of entry have been entered for home consumption;

(bb)   any such determination is, under the said section 47(9)(d), withdrawn with such retrospective effect, and a new determination is thereunder made with effect from such withdrawal; or

(cc)    any Schedule is amended with such retrospective effect,

and in which such goods, if such amendment or new determination had been in operation on the date on which such goods were so entered, would have been described as goods intended for the said storage or manufacture or the said purposes or use.

[Paragraph (aA) inserted by section 3 of Act 89 of 1983]

(b)     No application for such substitution as is referred to in paragraph (a)(ii) or in that paragraph as read with paragraph (aA) shall be considered by the Commissioner unless it is received by the Controller, supported by the necessary documents and other evidence to prove that such substitution is justified where the application relates to-

(i)     a substitution contemplated in paragraph (a)(ii)(aa), within a period of six months-

(aa)   from the date of entry for home consumption as provided in section 45(2), of the goods to which the application relates; or

(bb)   in the case of any amendment of a determination referred to in item (aa) of paragraph (aA) or of a new determination referred to in item (bb) of the said paragraph (aA), from the date on which such amendment is effected or such new determination is made or, if such amendment or new determination is published by notice in the Gazette, the date on which such amendment or new determination is so published; or (cc) in the case of an amendment referred to in item

(cc)   of the said paragraph (aA), from the date on which such amendment is published by notice in the Gazette; and

(ii)    a substitution contemplated in paragraph (a)(ii)(bb), within a period of one month from the date the goods were entered on the bill of entry for which substitution is required or within such longer period as the Commissioner may prescribe by rule or determine in a specific instance.

[Paragraph (b) added by section 5 of Act 105 of 1976, substituted by section 3 of Act 89 of 1983 and amended by section 11 of Act 84 of 1987 and section 4 of Act 68 of 1989 and substituted by section 35 of Act 61 of 2008 ]

 [Subsection (3) amended by section 9 of Act 95 of 1965]

Section 39D (Customs Act) – Simplified procedures for immediate release of goods

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39D.   Simplified procedures for immediate release of goods

 

(1)     Notwithstanding anything to the contrary contained in any provision of this Act, the Commissioner may-

 

(a)     subject to such conditions as the Commissioner may prescribe generally by rule or may determine in a specific instance;

(b)     in respect of a class or kind of goods specified in such rule; and

(c)     for which immediate clearance and release are requested,

authorise the clearance and release of such goods on the basis of-

(i)     the information affixed to documents and parcels contained in a consignment of postal goods not imported through the South African Post Office Limited if the Commissioner records such information, or is satisfied that such information is being recorded for purposes of record and audit;

(ii)    a transport document containing the minimum information as specified by the Commissioner and presented electronically by the responsible carrier or cargo reporter referred to in the rules contemplated in section 8, within such a period prior to the arrival or departure of the ship, aircraft or vehicle carrying such goods as may be prescribed by rule; or

(iii)

(aa)   an incomplete bill of entry contemplated in section 39B containing the information required in terms of that section; or

(bb)   other information or documents as may be prescribed by the Commissioner by rule,

and, if true and correct, such information or documents shall, subject to payment of any duty due on such goods in such a manner and within such a period as may be specified by rule, be deemed to be a due entry of the goods for the purposes of this Act from the date of delivery of such documents where the Commissioner authorises clearance and release of those goods.

[Commencement date of subsection (1) to be proclaimed]

 

(2)

 

(a)     The provisions of subsection (1) do not apply to-

(i)     goods of which the importation or exportation is prohibited or restricted in terms of any law;

(ii)    goods of a customs value exceeding a limit specified by rule;

(iii)   dutiable goods liable to duty in excess of a limit specified by rule;

(iv)    any class or kind of goods that the Commissioner consider-

(aa)    to be a high risk to revenue; or

(bb)   not suitable for clearance and release as contemplated in subsection (1).

(b)     An importer or exporter of goods contemplated in paragraph (a), must make due entry of such goods as required in terms of sections 38 and 39.

[Commencement date of subsection (2) to be proclaimed]

 

(3)

(a)     Notwithstanding anything to the contrary contained in this Act, an importer who is unable to make due entry of goods imported may apply to the Commissioner for the immediate release of such goods as contemplated in paragraph (b), if the-

(i)     importer provides sufficient reasons why immediate release of the goods is required;

(ii)    importer applies for such immediate release within the periods contemplated in section 38(1)(a);

(iii)   Commissioner is satisfied that the importer will subsequently make due entry of the goods as required by section 39;

(iv)    importer satisfies the Commissioner that the importation of the goods concerned is not prohibited or restricted in terms of any other law, or if so restricted, provides the Commissioner with the required documentation authorising the importation thereof;

(v)     importer or agent lodges such security as the Commissioner may require in respect of any duties due on such goods pending the delivery of the bill of entry contemplated in subparagraph (iii) and payment of such duties; and

(vi)    application for immediate clearance is accompanied by such essential documentation as may be prescribed by rule or determined by the Commissioner in a specific instance; or

(vii)   importer complies with such other requirements as may be prescribed by rule.

(b)     Application for immediate release in the circumstances contemplated in paragraph (a), shall be  made on a bill of entry, in the prescribed form endorsed in a manner prescribed by rule to-

(i)     indicate that its purpose is solely to apply to the Commissioner for immediate release of the goods described therein; and

(ii)    furnish an undertaking to comply with the provisions of this section and the rules made thereunder.

(c)     A bill of entry endorsed in the manner contemplated in paragraph (b) shall be deemed not to be due entry.

(d)     An importer who has been granted immediate release of goods in terms of the provisions in this subsection must make due entry of such goods within the period contemplated in section 38(1)(a) and such bill of entry shall be deemed to be effective from the date that release is granted.

(e)     The Commissioner may prescribe by rule the manner of release and conditions in terms of which release of such goods may be authorised.

(f)     Where the importer applies to the Commissioner for an extension before expiry of the period contemplated in section 38(1)(a), the Commissioner may extend that period by not more than seven days where the Commissioner is satisfied that reasonable grounds exist on which the importer is not able to obtain the necessary information or documents to make due entry of the goods.

 

(4)

 

(a)     The Commissioner may refuse any application for immediate release of goods in a manner contemplated in subsection (3) where the importer has failed to comply with any condition prescribed therein or the rules or any condition imposed by the Commissioner.

(b)     Where the Commissioner has refused such an application, the importer concerned shall, within five days of such refusal-

(i)      make due entry of the goods as contemplated in section 39; or

(ii)     otherwise deal with the goods as the Commissioner may direct,

failing which the goods shall be regarded as uncleared.

[Section 39D inserted by section 34 of Act 61 of 2008]

Section 39C (Customs Act) – Simplified clearance and release procedures for authorised persons

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39C.    Simplified clearance and release procedures for authorised persons

 

(1)     Notwithstanding anything to the contrary contained in this Act, the Commissioner may, in accordance with this section, allow an importer or exporter accredited in terms of section 64E, or a category of authorised persons specified by rule, to-

 

(a)     obtain release of goods imported or for export on delivery of an incomplete bill of entry as the Commissioner may prescribe generally by rule or determine in a specific instance;

(b)     periodically deliver a supplementary bill of entry in respect of a specific preceding incomplete bill of entry as may be specified in such rule.

 

(2)     Unless the context otherwise indicates, the provisions of section 39B(1), (2), (3), (4), (5), (7), (9), (10), (11), (12) and (13) apply mutatis mutandis to this section.

 

(3)     An authorised importer or exporter shall, within a period of seven days from the last day of the preceding month, deliver a supplementary bill of entry in respect of each incomplete bill of entry delivered during that month and pay any duties due on such goods in accordance with the requirements of section 39(1) and (2).

[Section 39C inserted by section 34 of Act 61 of 2008 – commencement date of section 39C o be proclaimed]

Section 39A (Customs Act) – Sale in transit

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39A.   Sale in transit

Notwithstanding anything to the contrary in this Act contained, the importer of any goods purchased from any South African consignee after shipment of those goods but before the date of entry thereof, shall produce to the Controller the invoice relating to such purchase, and the price actually paid or payable for those goods by virtue of such purchase shall, for the purposes of section 65 (1), be the transaction value of those goods.

[Section 39A inserted by section 5 of Act 101 of 1985]

Section 39 (Customs Act) – Importer and exporter to produce documents and pay duties

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39. Importer and exporter to produce documents and pay duties

 

(1)

 

(a)     The person entering any imported goods for any purpose in terms of the provisions of this Act shall deliver, during the hours of any day prescribed by rule, to the Controller a bill of entry in the prescribed form, setting forth the full particulars as indicated on the form and as required by the Controller, and according to the purpose (to be specified on such bill of entry) for which the goods are being entered, and shall make and subscribe to a declaration in the prescribed form, as to the correctness of the particulars and purpose shown on such bill of entry.

[Paragraph (a) substituted by section 4 of Act 110 of 1979, section 19 of Act 59 of 1990 and section 29 of Act 45 of 1995]

(b)     At the same time the said person shall deliver such duplicates of the bill of entry as may be prescribed or as may be required by the Controller and shall pay all duties due on the goods: Provided that the Commissioner may, on such conditions, including conditions relating to security, as may be determined by him, allow the deferment of payment of duties due in respect of such relevant bills of entry and for such periods as he may specify.

[Paragraph (b) amended by section 10 of Act 84 of 1987]

(c)     The said person shall further produce the transport document or such other document in lieu thereof as may be approved by the Commissioner, invoices as prescribed, shipper’s statement of expenses incurred by him, copy of the confirmation of sale or other contract of purchase and sale, importer’s written clearing instructions, unless exempted by rule, and such other documents relating to such goods as the Controller may require in each case and answer all such questions relating to such goods as may be put to him by the Controller, and furnish in such manner as the Commissioner may determine such information regarding the tariff classification of such goods as the Commissioner may require.

[Paragraph (c) substituted by section 1 of Act 85 of 1968, section 1 of Act 93 of 1978, section 4 of Act 110 of 1979 and section 29 of Act 45 of 1995]

(cA)  The Commissioner may, subject to such conditions as he may determine, allow the said person to produce in lieu of any document required to be produced in terms of paragraph (c), a document purporting to be a copy of any such document and obtained by means of microfilming or any other process, and which shall, subject to compliance with such conditions, for all purposes have all the effects of the original document concerned.

[Paragraph (cA) inserted by section 8 of Act 98 of 1980]

(d)     The said person shall also, in respect of any such class or kind of goods as may be specified by the Commissioner by rule or any goods to which circumstances so specified apply, produce to the Controller for retention by him, such a sample as may be so specified and a true copy of any invoice or other document relating to such goods or of any blueprint, illustration, drawing, plan or illustrated and descriptive literature so specified in respect of such goods and relating to such goods.

[Paragraph (d) substituted by section 1 of Act 85 of 1968]

 

(2)    

 

(a)     If any goods intended for export are liable to any export duty under this Act, the amount thereof shall be stated in the bill of entry relating to such goods and shall be payable upon presentation of such entry to the Controller.

(b)     No such bill of entry shall be valid, nor shall any person export such goods, until the duty has been paid to the Controller.

 

(2A)

 

(a)     Any person who removes goods from a customs and excise warehouse by means of the issuing of a certificate, invoice or other document referred to in section 38(4) shall present to the Controller a validating bill of entry in the prescribed form at the time and in the manner specified by rule in respect of any such certificate, invoice or other document, and shall pay at the prescribed time to the Controller the duty due on the goods to which such certificate, invoice or other document relates.

[Paragraph (a) substituted by section 29 of Act 45 of 1995]

(b)     The said person shall present to the Controller such validating bill of entry setting forth the full particulars indicated thereon, and the declaration shall be duly signed by the prescribed person and there shall be as many duplicates and such supporting documents as may be prescribed or as may be required by the Controller.

[Subsection (2A) inserted by section 14 of Act 105 of 1969]

 

(2B)  The Commissioner may specify the documents to be produced by the exporter upon entry for exportation in respect of any goods exported or any class or kind of goods exported or any goods exported in circumstances or to a destination specified by him.

[Subsection (2B) inserted by section 3 of Act 69 of 1988]

 

(3)     The Commissioner may by rule specify the manner in which bills of entry for goods of any such class or kind as may be specified in such rule, or goods imported or exported in such manner or such circumstances as may be so specified, shall be delivered.

[Subsection (3) substituted by section 1 of Act 85 of 1968]