CHAPTER XI
PENAL PROVISIONS
Category: Chapter XI – Penal provisions (Customs Act)
Section 78 (Customs Act) – Offences not expressly mentioned
78. Offences not expressly mentioned
(1) Any person who contravenes any provision of this Act or who fails to comply with any such provision with which it is his duty to comply, shall, even where such contravention or failure is not elsewhere declared an offence, be guilty of an offence.
(2) Any person guilty of an offence under this Act shall, where no punishment is expressly provided for such offence, be liable on conviction to a fine not exceeding R8 000 or treble the value of the goods in respect of which such offence was committed, whichever is the greater, or to imprisonment for a period not exceeding two years, or to both such fine and such imprisonment.
[Subsection (2) amended by section 10 of Act 52 of 1986 and section 6 of Act 105 of 1992]
(3) A person who is convicted of an offence referred to in subsection (2) within a period of three years after he was convicted of any offence referred to in that subsection shall be liable to a fine not exceeding R16 000 or treble the value of the goods in respect of which such offence was committed, whichever is the greater, or to imprisonment for a period not exceeding four years, or to both such fine and such imprisonment.
[Subsection (3) amended by section 10 of Act 52 of 1986 and section 6 of Act 105 of 1992]
Section 79 (Customs Act) – Less serious offences and their punishment
79. Less serious offences and their punishment
(1) Any person who –
(a) supplies the means or materials for, or assists in establishing, repairing, maintaining or working any still being made or made, imported, used, set up or in the possession or custody of any person without lawful authority;
(b) is found without lawful excuse in any place where distillation is illegally carried on;
(c) ……….
[Paragraph (c) deleted by section 56 of Act 45 of 1995]
(d) ……….
[Paragraph (d) deleted by section 2 of Act 64 of 1974]
(e) falsely holds himself or herself out to be an officer, or possesses or wears a customs uniform without being entitled to possess or wear such a uniform;
[Para. (e) substituted by section 17 of Act 21 of 2021 effective on 19 January, 2022]
(f) resists or hinders an officer in the exercise of his powers or the performance of his functions under this Act; or
(g) rescues any persons apprehended for any offence under this Act, or prevents the apprehension of any person who has committed any such offence,
shall be guilty of an offence and liable on conviction to a fine not exceeding R8 000 or to imprisonment for a period not exceeding two years, or to both such fine and such imprisonment.
[Subsection (1) amended by section 11 of Act 52 of 1986 and section 7 of Act 105 of 1992]
(2) A person who is convicted of an offence referred to in subsection (1) within a period of three years after he was convicted of any offence referred to in that subsection shall be liable to a fine not exceeding R16 000 or to imprisonment for a period not exceeding four years, or to both such fine and such imprisonment.
[Subsection (2) amended by section 11 of Act 52 of 1986 and section 7 of Act 105 of 1992]
Section 80 (Customs Act) – Serious offences and their punishment
80. Serious offences and their punishment
(1) Any person who –
(a) has upon his premises or in his custody or under his control, or purchases, sells or otherwise disposes of any illicit goods knowing the same to be illicit goods;
(b) not being a licensed manufacturer or dealer, without lawful authority has in his possession or custody or under his control any partly manufactured excisable goods or fuel levy goods or excisable goods or fuel levy goods upon which duty has not been paid;
[Paragraph (b) substituted by section 27 of Act 105 of 1969, section 27 of Act 84 of 1987 and section 32 of Act 59 of 1990]
(c) removes or assists in or permits the removal of goods in contravention of any provision of this Act;
(d) deodorizes, clarifies or, prior to sale, reduces the strength of methylated spirits to a strength below a strength of 91,4 per cent absolute alcohol by volume, or prepares or sells or offers for sale or consumption, as a beverage, any preparation containing methylated spirits or spirits recovered from methylated spirits;
(e) removes or breaks or interferes with any lock, meter, gauge, rod, seal, mark or fastening placed on or fitted to any warehouse, vessel, package, container or other article, place or plant, by an officer under any provision of this Act;
(f) damages, destroys or disposes of any goods to prevent the securing or seizure thereof under the provisions of this Act by any officer or other person authorized to secure or seize the same, or takes back any goods which are being detained or have been seized;
(g) ……….
[Paragraph (g) deleted by section 28 of Act 112 of 1977]
(h) without lawful excuse (the proof of which shall lie upon him), brings into the Republic, produces or has in his possession any blank or incomplete invoice or any billhead or other similar document capable of being completed and used as an invoice for goods from outside the Republic;
[Paragraph (h) substituted by section 12 of Act 52 of 1986 and section 68 of Act 30 of 1998]
(i) makes improper use of a licence, permit or other document issued in respect of goods to which this Act relates;
(j) claims or receives any rebate, drawback, refund or payment or sets off any amount in terms of the provisions of section 77(a) to which he knows he is not entitled under this Act;
[Paragraph (j) substituted by section 22 of Act 86 of 1982 and section 8 of Act 98 of 1993]
(k) not being authorized to do so, gives or promises to give, directly or indirectly, any reward to an officer or any person employed by the Government, in respect of the performance or non-performance by any such officer or person of his duty or employment under this Act or agrees with or proposes to any such officer or person to do or permit anything in contravention or evasion of this Act;
(l) being an officer or a person employed by the Government, demands or receives, except from or through the Government, any reward in respect of the performance or non-performance of his duty or employment under this Act or by any wilful act, neglect or default does or permits or agrees to do or permit anything in contravention or evasion of this Act;
(m) attempts to commit or assists in committing any offence mentioned in this section;
(n) from any goods made from or containing excisable goods or fuel levy goods extracts or recovers such excisable goods or fuel levy goods in contravention of the provisions of this Act;
[Paragraph (n) substituted by section 27 of Act 84 of 1987]
(o) contravenes the provisions of section 4(12A)(b), 18(13), 18A(9), 20(4)bis, 21(3)(d), 35A(2), (3) and (4), 37(9), 37A(1)(c), 37A(4)(a), 48(1A)(b), 54(2), (3) and (4), 60(1), 63(1), 75(7A), 75(19), 88(1)(bA), 99A, 113(2), 113(8)(c), 114(2A) or 114(2B);
[Paragraph (o) substituted by section 10 of Act 85 of 1968, section 28 of Act 112 of 1977, section 27 of Act 84 of 1987, section 8 of Act 98 of 1993, section 68 of Act 30 of 1998, section 63 of Act 53 of 1999, section 29 of Act 21 of 2006 and section 18 of Act 36 of 2007]
(p) fails to comply with any condition determined under section 107(2)(a);
[Paragraph (p) added by section 7 of Act 89 of 1984]
(q) contravenes or fails to comply with any provision of any agreement contemplated in section 49 or 51;
[Paragraph (q) added by section 63 of Act 53 of 1999 and substituted by section 62 of Act 59 of 2000]
(r) without lawful cause fails to comply with a notice of appointment as agent in terms of section 114A within the period specified in such notice.
[Paragraph (r) inserted by section 148 of Act 45 of 2003]
shall be guilty of an offence and liable on conviction to a fine not exceeding R20 000 or treble the value of the goods in respect of which such offence was committed, whichever is the greater, or to imprisonment for a period not exceeding five years, or to both such fine and such imprisonment.
[Subsection (1) amended by section 12 of Act 52 of 1986 and section 8 of Act 105 of 1992]
(2) When any person is charged with a contravention of paragraph (a) of subsection (1) he shall, until the contrary is proved, be presumed to have known that the goods in question were illicit goods.
(3) When any person is charged with a contravention of paragraph (j) of subsection (1) he shall, until the contrary is proved, be presumed to have known that he was not entitled to the rebate, drawback, refund or payment concerned.
[Subsection (3) added by section 27 of Act 84 of 1987]
Section 81 (Customs Act) – Non-declaration in respect of certain goods
81. Non-declaration in respect of certain goods
Any person who contravenes or fails to comply with the provisions of section 15, shall be guilty of an offence and liable on conviction to a fine not exceeding R8 000 or treble the value of the goods in question, whichever is the greater, or to imprisonment for a period not exceeding two years, or to both such fine and such imprisonment, and the goods in question and any other goods contained in the same package as well as the package itself shall be liable to forfeiture.
[Section 81 substituted by section 9 of Act 93 of 1978, amended by section 13 of Act 52 of 1986, substituted by section 33 of Act 59 of 1990 and amended by section 9 of Act 105 of 1992]
Section 82 (Customs Act) – Prohibition with regard to stamps
82. Prohibition with regard to stamps
(1) Any person who without lawful excuse (the onus of proof of which shall be upon him) uses, or has under his control or in his possession, any stamp or makes available to another person any stamp –
(a) which is used under the authority of the Commissioner;
[Paragraph (a) substituted by section 34 of Act 34 of 1997]
(b) the imprint of which is identical to or resembles the imprint of a stamp referred to in paragraph (a) or of any stamp used by a governmental authority in a foreign country under any law of such country relating to customs or excise or to the import or export of goods,
shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding five years or to both such fine and such imprisonment.
(2) Any person who without lawful excuse (the onus of proof of which shall be upon him) manufactures or has in his possession or under his control any stamp the imprint of which depicts the name of a company, firm or other business entity in a foreign country, or any signs or letters which could be reasonably understood to be a reference to such company, firm or business entity, shall be guilty of an offence and liable on conviction to a fine or imprisonment for a period not exceeding five years, or to both such fine and such imprisonment.
[Section 82 repealed by section 8 of Act 89 of 1984 and inserted by section 9 of Act 98 of 1993]
Section 83 (Customs Act) – Irregular dealing with or in goods
83. Irregular dealing with or in goods
Any person who –
(a) deals or assists in dealing with any goods contrary to the provisions of this Act; or
(b) knowingly has in his possession any goods liable to forfeiture under this Act; or
(c) makes or attempts to make any arrangement with a supplier, manufacturer, exporter or seller of goods imported or to be imported into or manufactured or to be manufactured in the Republic or with any agent of any such supplier, manufacturer, exporter or seller, regarding any matter to which this Act relates, with the object of defeating or evading the provisions of this Act,
shall be guilty of an offence and liable on conviction to a fine not exceeding R20 000 or treble the value of the goods in respect of which such offence was committed, whichever is the greater, or to imprisonment for a period not exceeding five years, or to both such fine and such imprisonment, and the goods in respect of which such offence was committed shall be liable to forfeiture.
[Section 83 amended by section 14 of Act 52 of 1986 and by section 10 of Act 105 of 1992]
Section 84 (Customs Act) – False documents and declarations
84. False documents and declarations
(1) Any person who makes a false statement in connection with any matter dealt with in this Act, or who makes use for the purposes of this Act of a declaration or document containing any such statement shall, unless he proves that he was ignorant of the falsity of such statement and that such ignorance was not due to negligence on his part, be guilty of an offence and liable on conviction to a fine not exceeding R40 000 or treble the value of the goods to which such statement, declaration or document relates, whichever is the greater, or to imprisonment for a period not exceeding ten years, or to both such fine and such imprisonment, and the goods in respect of which such false statement was made or such false declaration or document was used shall be liable to forfeiture.
[Subsection (1) amended by section 15 of Act 52 of 1986 and section 11 of Act 105 of 1992]
(2) For the purposes of subsection (1), any invoice or other document relating to any denomination, description, class, grade or quantity of goods shall be deemed to contain a false statement if the price charged by the exporter or any value, price, commission, discount, cost, charge, expense, royalty, freight, duty, tax, drawback, refund, rebate, remission or other information whatever declared therein which has a bearing on value for the purposes of payment of any duty or on classification in terms of any Schedule to this Act or on anti-dumping duty, countervailing duty or safeguard duty or on extent of rebate, refund or drawback of duty –
(a) is not, except in so far as may be otherwise specified, exclusively related to goods of the denomination, description, class, grade or quantity declared in such invoice or document;
(b) is influenced, adjusted or amended as a result of any separate transaction, arrangement, agreement or other consideration of any nature whatever particulars of which are not specified in such invoice or document;
(c) represents any average or adjustment or amendment, particulars of which are not disclosed in such invoice or document, of such values, prices, commissions, discounts, costs, charges, expenses, royalties, freight, duties, taxes, drawbacks, refunds, rebates, remissions or other information in respect of goods of the same or of different denominations, descriptions, classes, grades or quantities supplied by the same supplier.
[Subsection (2) added by section 11 of Act 57 of 1966, amended by section 28 of Act 105 of 1969 and section 29 of Act 112 of 1977 and substituted by section 14 of Act 61 of 1992]
Section 85 (Customs Act) – Beer of higher alcoholic strength than registered
85. Beer of higher alcoholic strength than registered
Any manufacturer of beer of whom or which any container of beer not marked for export as contemplated in section 36(9) is found to contain beer of an alcoholic strength by volume higher than the strength registered in terms of section 36(2), after deduction of any tolerance provided in the rules relating to that section, shall be guilty of an offence and liable on conviction to a fine not exceeding R8 000 or treble the value of the goods in respect of which such offence was committed, whichever is the greater, or to imprisonment for a period not exceeding two years, or to both such fine and such imprisonment, and the goods in respect of which such offence was committed shall be liable to forfeiture.
[Section 85 substituted by section 4 of Act 68 of 1973, amended by section 16 of Act 52 of 1986 and section 12 of Act 105 of 1992 and substituted by section 57 of Act 45 of 1995, section 7 of Act 44 of 1996 and section 64 of Act 53 of 1999]
Section 86 (Customs Act) – Certain specified offences
86. Certain specified offences
Any person who –
(a) fails to advise the Controller of the receipt of any amended prescribed invoice or any credit note or debit note or of any change in the circumstances or particulars of whatever nature as declared in any prescribed invoice or in any other document or of any refund of money or deferred or secret discount, commission or other credit or debit which relates to any goods and which would increase the duty on such goods or exclude them from any rebate or refund or other privilege under this Act;
(b) fails to declare in or omits from any prescribed invoice any particulars (including value and origin) in respect of the goods to which such invoice relates and which would increase the duty on such goods or exclude them from any rebate or refund or other privilege under this Act;
(c) applies any money or credit received by or due to him as a commission in such a manner as to avoid or evade any duty or obligation or to obtain any rebate or other privilege in respect of any goods under this Act;
(d) issues two or more different prescribed invoices or certificates in respect of the same goods or fails to issue an amended prescribed invoice or certificate where any particulars declared in any prescribed invoice or certificate in respect of any goods have changed in any manner whatever;
(e) makes or attempts to make or assists in making or attempting to make any arrangement of whatever nature with any person inside or outside the Republic in connection with any goods imported or to be imported into the Republic with the object of or having the effect of defeating or evading the provisions of any agreement entered into between the Republic and any exporting territory which provides for the restriction of or control over the exportation to the Republic of any goods in any manner or any restriction of or control over the exportation of any goods to the Republic imposed by any exporting territory in any manner by arrangement with or at the instance or suggestion of or with the approval of the Republic;
(f) produces to the Controller, for the purposes of section 39(1)(d), any sample which is not a sample of the goods of which it purports to be a sample or who so produces any copy of any invoice or other document or of any blueprint, illustration, drawing, plan or illustrated and descriptive literature which does not relate to the goods to which it purports to relate or which is incorrect or incomplete or misleading in any respect;
(g) allocates the same identification number, code, description, character or other mark referred to in section 41(2) to goods of different classes or kinds or allocates more than one such identification number, code, description, character or other mark to goods of the same class or kind or who quotes or reproduces any such identification number, code, description, character or other mark in any invoice or document relating to goods to which such number, code, description, character or other mark has not been allocated; or
(h) contravenes or fails to comply with the provisions of section 101 or of any rule made in terms of section 73 or 101,
[Paragraph (h) substituted by section 58 of Act 45 of 1995]
shall be guilty of an offence and liable on conviction to a fine not exceeding R40 000 or treble the value of the goods in respect of which such offence was committed, whichever is the greater, or to imprisonment for a period not exceeding ten years, or to both such fine and such imprisonment, and the goods in respect of which such offence was committed shall be liable to forfeiture.
[Section 86 substituted by section 11 of Act 85 of 1968 and amended by section 17 of Act 52 of 1986 and section 13 of Act 105 of 1992]