50. Provisions relating to the disclosure of information in terms of agreements

 

(1)     Notwithstanding the provisions of section 4(3) or any other law relating to confidentiality or secrecy, but subject to section 101B, the Commissioner may, in accordance with-

 

(a)     any international agreement in respect of mutual administrative assistance and cooperation or exchange of information in customs matters which is in force and binds the Republic in terms of section 231 of the Constitution of the Republic of South Africa, 1996, hereinafter referred to as the ‘Constitution’; or

(b)     any other international agreement which is in force and binds the Republic in terms of section 231 of the Constitution, and in circumstances where the Commissioner is on good cause shown, satisfied that the international or regional interest or national public interest in the disclosure of information outweighs any potential harm to the person, firm or business to whom or to which such information relates-

(i)      disclose, or for the purpose of paragraph (a), in writing authorise any officer to disclose, any information relating to any person, firm or business acquired by an officer in carrying out any duty under this Act;

(ii)     render mutual and technical assistance in accordance with any agreement contemplated in paragraph (a); and

(iii)    in writing authorise any officer to exercise any power under this Act which may be considered necessary for the purpose of rendering such assistance or obtaining such information.

 

(2)

 

(a)

(i)      If any agreement referred to in subsection (1)(a) provides for the automatic exchange of information of the cross-border movement of means of transport, goods and persons the Commissioner may determine the information, including the  contents of any documents relating to clearance declarations for such movement, that will be allowed to be disclosed as contemplated in subsection(1)(b)(i).

(ii)     Notwithstanding subsection (1) and subparagraph (i), the Commissioner may not disclose information in terms of this section where any of the grounds for refusal referred to in Chapter 4 of the Promotion of Access to Information Act, 2000 (Act No. 2 of 2000), applies except if disclosure is authorised for the purposes contemplated in section 46 of that Act.

(b)     For the purposes of this subsection automatic exchange of information may include the systematic supply of clearance information in terms of the agreement by the customs authority of the sending party to the customs authority of the receiving party in an agreed electronic or other structured format in advance of the arrival of the persons, goods or means of transport in the territory of the receiving party.

(c)     Any information automatically exchanged shall be treated as confidential by the receiving party and may only be used for the purposes of risk analysis by the customs authority of that party except if the party providing the information in writing authorises its use for other purposes or by other authorities in terms of the provisions of the agreement regulating the exchange of such information.

(d)     The Commissioner may, in respect of the automatic exchange of information-

(i)      authorise the use for other purposes or by other authorities of the information provided by the other party to the agreement as contemplated in paragraph (c);

(ii)     specify conditions on which any information will be exchanged and on which it may be used for any other purpose or by any other authority;

(iii)    refuse the exchange of information with a party to any agreement if the information will not be afforded in the territory of that party a level of protection that satisfies the requirements of this Act.

(e)     For the purposes of this subsection any reference to the ‘Commissioner’ includes any officer contemplated in subsection (1)(b).

 

(3)     The Commissioner may for the purposes of subsection (1)(b)-

 

(a)     disclose information or authorise disclosure to a person authorised to act on behalf of any international agency, institution or organisation with which an agreement has been entered into with the Republic; and

(b)     specify the purpose for which such disclosure is authorised and the manner in which or the conditions under which such disclosure is to be made.

 

(4)     The Commissioner may make rules in respect of any matter which the Commissioner reasonably considers to be necessary and useful to achieve the efficient and effective administration of this section.

[Section 50 repealed by section 4 of Act 7 of 1974, inserted by section 66 of Act 30 of 1998 and substituted by section 105 of Act 74 of 2002 and section 50 of Act 44 of 2014 effective on 20 January 2015]