Category: Chapter XII – General (Customs Act)

Section 114A (Customs Act) – Application of Tax Administration Act for write off or compromise of debt

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114A. Application of Tax Administration Act for write off or compromise of debt

Chapter 14 of the Tax Administration Act, including any criminal and other sanctions contained in that Act for the enforcement of that Chapter, applies, with any necessary changes as the context may require, to the writing off or compromise of any duty, interest, penalty or forfeiture incurred under this Act and owed to the Commissioner for the benefit of the National Revenue Fund.

[Section 114A inserted by section 6 of Act 22 of 2018]

“Dealing at arm’s length” definition of section 119B of Customs Act

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“dealing at arm’s length” means a transaction in the open market in which two or more independent persons acting in good faith, without regard to the liability for any tax, duty or levy, would freely and without conflict of interest agree to transact in the ordinary course of business; and

“Tax benefit” definition of section 119B of Customs Act

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“tax benefit” includes-

(a)     any reduction in the liability of any person to pay any duty;

(b)     any increase in the entitlement of any person to a refund of any duty; or

(c)     any other avoidance, postponement or reduction of any liability for the payment of any tax, duty or levy imposed under this Act or by any other law administered by the Commissioner.

[Section 119B inserted by section 81 of Act 15 of 2016 effective on 19 January 2017]

“Personal information” definition of section 101B of Customs Act

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“personal information” has the meaning assigned to it in section 1 of the Protection of Personal Information Act, 2013 (Act 4 of 2013).

[Definition of “personal information” substituted by section 17(b) of Act 44 of 2014 and by section 21 of Act 18 of 2023]

Subsections (2) to (12) of section 101B of Customs Act

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(2)     This section-

 

(a)     applies-

(i)      to the Commissioner, an officer, or any person acting under a delegation from or under control or direction of the Commissioner; and

(ii)     subject to section 4(3), (3A), (3B), (3C), (3D) and (3E), to any personal information in possession of or under the control of the Commissioner;

[Paragraph (a) substituted by section 17 of Act 44 of 2014 effective on 20 January 2015]

(b)     prohibits the unauthorised recording and further processing of personal information;

(c)     regulates the manner in which personal information must be processed and protected by the Commissioner.

 [Paragraph (c) substituted by section 17 of Act 44 of 2014 effective on 20 January 2015]

 

(3)

(a)     The Commissioner or an officer may, subject to subsection (6), obtain and use personal information, if-

(i)      Advance Passenger Information, for the purpose specified in section 7A(2);

(ii)     any other personal information obtained from any other source as contemplated in section 4(3), for the administration of any other provision of this Act, including any international agreement contemplated in section 50; or

(iii)    provided by a party to an international agreement, in accordance with the provisions of that agreement and section 50.

[Paragraph (a) substituted by section 17 of Act 44 of 2014 effective on 20 January 2015]

(b)     A person acting under a delegation from or under the control or direction of the Commissioner may only process personal information with the knowledge and consent of the Commissioner and subject to the provisions of this section.

 

(4)     A person to whom this section applies, shall not-

 

(a)     record or deal with personal information other than in the manner prescribed in this section; or

(b)     further process any personal information except as authorised by this section.

(5)

 

(a)     No records containing personal information which allows a person to be identified shall be retained for longer than necessary for achieving the purpose of personal information processing, unless-

[Words preceding subparagraph (i) substituted by section 17 of Act 44 of 2014 effective on 20 January 2015]

(i)      the person authorises such retention;

[Subparagraph (i) substituted by section 17 of Act 44 of 2014 effective on 20 January 2015]

(ii)     the Commissioner, on good cause, for the purposes of this Act, requires the retention of the record for a longer period;

(iii)    another law requires or authorises the retention of the record for a longer period;

(iv)    the retention is for historical or statistical reasons, if the Commissioner has established appropriate safeguards against the use of such records for other purposes; or

(v)     the personal information has been used to make a decision about a person and the record must be retained for such a period as may be reasonably required for the person to request access to the record.

[Subparagraph (v) substituted by section 17 of Act 44 of 2014 effective on 20 January 2015]

(b)     Personal information that is not retained for any of the longer periods contemplated in paragraph (a) shall, as soon as practicable after its retention is no longer  authorised under that paragraph, be promptly-

(i)      de-identified; or

(ii)     deleted or destroyed,

by the Commissioner.

 

(6)     Personal information may not be further processed in a manner that is not compatible with the purpose for which that information is obtained and used as contemplated in subsection (3)(a) by the Commissioner, unless-

[Words preceding paragraph (a) substituted by section 17 of Act 44 of 2014 effective on 20 January 2015]

 

(a)     the person authorises such further processing;

[Paragraph (a) substituted by section 17 of Act 44 of 2014 effective on 20 January 2015]

(b)     non-compliance is necessary-

(i)      for the prevention, detection, investigation, prosecution and punishment of an offence under this Act or any other law;

(ii)     for the protection of the public revenue; or

(iii)    to prevent an imminent and serious threat to public safety or the life or health of the person; or

[Subparagraph (iii) substituted by section 17 of Act 44 of 2014 effective on 20 January 2015]

(c)     the use of the data is only for historical or statistical reasons and the Commissioner has established appropriate safeguards to ensure that any further processing is only carried out for such reasons.

 

(7)     The Commissioner must-

 

(a)     whether at the request of a person or on own initiative, ensure that all records relating to personal information are complete, not misleading, up to date and accurate;

[Paragraph (a) substituted by section 17 of Act 44 of 2014 effective on 20 January 2015]

(b)     implement appropriate technical and other measures to-

(i)      secure the integrity of personal information by safeguarding against the risk of loss of, or damage to, or destruction of personal information; and

(ii)     prevent the unauthorised or unlawful access to, or processing of, personal information;

(c)     take measures to identify all readily foreseeable internal and external threats to personal information in the possession of, or under the control of, the Commissioner; and

(d)

(i)      establish and maintain appropriate safeguards against the risks identified;

(ii)     regularly verify that the safeguards are effectively implemented; and

(iii)    ensure that the safeguards are continuously updated in response to new risks or deficiencies in previously implemented safeguards.

 

(8)

 

(a)     The Commissioner must-

(i)      where an information security compromise or suspected compromise of personal information has taken place; and

(ii)     if the identity of a person affected by the compromise can be established,

notify that person of such compromise or suspected compromise and provide him or her with such information as may be relevant to allow the person to protect himself or herself against the potential consequences of the compromise.

(b)     The Commissioner may delay any notification contemplated in paragraph (a), where the Commissioner determines that such notification will impede or otherwise adversely affect any criminal investigation.

 

(9)

 

(a)     Any person is entitled to-

[Words preceding subparagraph (i) substituted by section 17 of Act 44 of 2014 effective on 20 January 2015]

(i)      obtain from the Commissioner free of charge confirmation of whether the Commissioner holds personal information about him or her;

(ii)     request the Commissioner, after having produced adequate proof of identity, to provide the particulars of the personal information held, and information as to the identity of all persons who have had access to his or her personal record-

(aa)    within a reasonable time;

(bb)   at a charge as may be prescribed by the Commissioner by rule;

(cc)    in a reasonable manner;

(dd)   in a form that is generally understandable.

(b)     Where a person makes a request contemplated in paragraph (a), the Commissioner must inform the person that he or she may request the correction of any such information.

[Paragraph (b) substituted by section 17 of Act 44 of 2014 effective on 20 January 2015]

(c)     Where the Commissioner receives a request for the correction of personal information from a person, the Commissioner must-

[Words preceding subparagraph (i) substituted by section 17 of Act 44 of 2014 effective on 20 January 2015]

(i)      correct the information concerned;

(ii)     in instances where the Commissioner decides on good cause not to correct the information, attach at the request of the person a statement to the information concerning the correction sought but not made in such a manner that it will always be read together with the information;

[Subparagraph (ii) substituted by section 17 of Act 44 of 2014 effective on 20 January 2015]

(iii)

(aa)   where the information was further processed as contemplated in subsection(6)(b), advise, if reasonable practicable, each person to whom the information was disclosed as a result of the further processing of the steps taken in terms of subparagraphs (i) and (ii); and

(bb)   inform the person of the actions taken as a result of the request for correction.

[Item (bb) substituted by section 17 of Act 44 of 2014 effective on 20 January 2015]

 

(10)   The Commissioner may not-

 

(a)     process personal information concerning a person’s religion or philosophy of life, race, political persuasion or health or sexual life, except where the person has given his or her explicit consent to the processing of the information;

[Paragraph (a) substituted by section 17 of Act 44 of 2014 effective on 20 January 2015]

(b)     transfer any personal information about a person to a foreign government other than in the manner contemplated in section 50: Provided that the Commissioner is satisfied that the recipient of that information is subject to a law which effectively upholds principles for fair handling of personal information that are substantially similar to the information protection principles set out in this section.

[Paragraph (b) substituted by section 17 of Act 44 of 2014 effective on 20 January 2015]

 

(11)   If any person of whom personal information is held in terms of this section is dissatisfied with any decision by the Commissioner or an officer in respect thereof that person may, before  instituting any judicial proceedings, make use of any of the procedures contemplated in Chapter XA.

 

(12)   Any person who-

 

(a)     causes any personal information to be compromised as contemplated in subsection (8); or

(b)     without authority gains access to personal information or interferes with the protection of personal information,

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 imprisonment.

[Section 101B inserted by section 38 of Act 61 of 2008]

Subparagraphs (2) to (16) of section 101A of Customs Act

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(2)    

(a)     The Commissioner may, notwithstanding anything to the contrary in this Act contained, establish and maintain a computer system for the purposes of the electronic processing of any document and procedure to which this Act relates and matters incidental thereto, which may include –

(i)      the receipt and processing of reports and other documents relating to the arrival and departure of ships, aircraft, vehicles and railway trains and their passengers and cargo and the control of such passengers or cargo;

(ii)     the accounting for the receipt, clearance and release of goods, the storage of goods in customs and excise warehouses or other places and the removal or carriage of goods for any purpose under this Act; and

(iii)    the production or manufacture of any goods and the accounting therefor in compliance with any procedure prescribed under this Act.


(b)     No person shall communicate with the Commissioner, a Controller or any officer for any purpose to which this section relates by computer unless such person is a registered user who has entered into a user agreement and complies with any other requirements prescribed under this Act.


(c)     Any such user may access the computer system of the Commissioner for purposes of electronically communicating with the Commissioner, a Controller or an officer to the extent specified in the user agreement provided the computer system of the Commissioner can accept the communication.


(d)     The Commissioner may require by rule any person or class of persons, participating in any activity regulated by this Act, unless exempted in such rule, to communicate electronically and register as a user in accordance with the provisions of this section.

[Paragraph (d) added by section 33  of Act 21 of 2006]


(3)    

(a)     Application for registration as a user shall be in the form and shall be accompanied by a practice statement and the completed user agreement prescribed by rule.


(b)     The applicant shall comply with –

(i)      all the requirements specified in such form and in subsection (5);

(ii)     any additional requirements that may be prescribed in the rules and as may be determined by the Commissioner;

(iii)    the requirements specified in the user agreement.


(4)     The Commissioner may set out in such agreement –

(a)     any terms and conditions for regulating computer communication with and by a registered user, including conditions that –

(i)      the user will use computer equipment and facilities of a class or kind specified in the agreement;

(ii)     the user, when assigned a digital signature by the Commissioner, will ensure the security of the signature in the manner agreed to in the agreement;

(iii)    where electronic data is received by the Commissioner from the registered user authenticated by electronic signature –

(aa)   without the authority of the user to whom such signature was allocated; and

(bb)   before notification to the Commissioner by the user of a breach of security,

such data shall be taken by the Commissioner to have been communicated by the registered user of such digital signature, as the case may be;

(b)     whether the applicant has complied with the provisions of subsection (5);

(c)     any other requirement, including reasonable access to the computer system of the registered user by the Commissioner for such verification and audit purposes as may be required in terms of any provision of this Act;

(d)     the method and period for which electronic records shall be kept.

(5)    

(a)     Any applicant for registration shall produce proof in support of the application that –

(i)      adequate measures have been introduced to exercise reasonable care to –

(aa)   retain control of the digital signature allocated by the Commissioner and for the prevention of its disclosure to any person not authorised to affix such signature;

(bb)   ensure that information remains complete and unaltered apart from the addition of any change which may occur in the normal course of communication storage and display;

(ii)     the standard of reliability is in accordance with the standard required in the user agreement and the provisions of this section and the rules.


(b)     If the digital signature has been compromised in any manner the applicant shall inform the Commissioner without delay in the manner prescribed by rule.


(6)    

(a)     The Commissioner may, after due consideration of the application and the practice statement and after making such enquiries as he may deem necessary, approve the application subject to any reasonable conditions as he may impose in each case.


(b)     The Commissioner may, subject to review by the High Court –

(i)      refuse any application for registration if –

(aa)    the applicant –

(A)    does not comply in respect of such application with the requirements contemplated in subsection (3);

(B)    has made a false or misleading statement with respect to any material fact or omits to state any material fact which was required to be stated in the application for registration;

(bb)   the applicant or any employee of such applicant –

(A)    has contravened or failed to comply with the provisions of this Act;

(B)    has been convicted of an offence under this Act;

(C)    has been convicted of an offence involving dishonesty; or

(D)    has failed to comply with any condition or obligation imposed by the Commissioner in respect of such registration:

Provided that subparagraphs (A) to (C) shall not apply in respect of an employee if the applicant proves that he was not a party to or could not prevent any such act or omission by such employee; or

(ii)     cancel or suspend for a specified period any registration –

(aa)    if the registered user –

(A)    is sequestrated or liquidated;

(B)    no longer carries on the business for which the registration was issued;

(C)    is no longer qualified according to the qualifications prescribed in the rules; or

(D)    fails to meet in respect of the computer system used all the compliance requirements and the operational standards required in terms of the user agreement and prescribed by the Commissioner as contemplated in this section;

(bb)   if the registered user or the employee of such user has –

(A)       contravened or failed to comply with the provisions of this Act;

(B)        been convicted of an offence under this Act;

(C)        been convicted of an offence involving dishonesty; or

(D)    failed to comply with any condition or obligation imposed by this Act or by the Commissioner in respect of such registration:

Provided that subparagraphs (A) to (C) shall not apply in respect of an employee except an employee to whom a digital signature was allocated, if the holder proves that he was not a party to or could not prevent any such act or omission by such employee: Provided further that before a registration is cancelled or suspended, the Commissioner shall –


(a)     give 21 days notice to the registered user of the proposed cancellation or suspension;

(b)     provide reasonable information concerning any allegation and grounds for the proposed cancellation or suspension;

(c)     provide a reasonable opportunity to respond and make representations as to why the registration should not be cancelled or suspended.

(7)    

(a)     When the Commissioner so registers a person or cancels or suspends such registration, the registration, cancellation or suspension shall have effect from the day on which the notice was signed.


(b)     The Commissioner may prescribe a registration fee or fee for the issuance of a digital signature by rule.


(c)     The Commissioner shall, on registering a user, allocate to the user –

(i)      if the user is a natural person, a digital signature or sufficient digital signatures for the user and each employee of the user nominated in the agreement; or

(ii)     if the user is not a natural person, sufficient digital signatures for each employee of the user nominated in the agreement.


(d)     Where the registered user is a clearing agent, licensed under this Act no employee of such agent who is not licensed as a clearing agent shall be allocated a digital signature.


(8)    

(a)     For the purposes of section 101(2B), where any provision of this Act prescribes or requires that documents, records, information or the like shall be retained for a specific period, that requirement shall be deemed to have been satisfied if such documents, records, information or the like are so retained in electronic form, if –

(i)      the information contained therein remains accessible so as to be subsequently usable;

(ii)     the electronic record is retained in the format in which it was originally generated, sent or received or in a format which can be demonstrated to represent accurately the information originally generated, sent or received;

(iii)    the details which will facilitate the identity of the origin, destination, date and time of dispatch or receipt of such electronic record are available in the electronic record.


(b)     An electronic communication or the record of such communication shall be attributed to the originator –

(i)      if it was sent by the originator;

(ii)     if it was sent by a person who had the authority to act on behalf of the originator in respect of that communication or record; or

(iii)    if it was sent by a computer system programmed by or on behalf of the originator to operate automatically.

(9)    

(a)     Where the Commissioner and a registered user have not agreed that an acknowledgment of receipt of electronic communication be given in any particular form or by any particular method, an acknowledgement may be given by –

(i)      any communication by the Commissioner, electronic or otherwise; or

(ii)     conduct by the Commissioner or any officer sufficient to indicate to the registered user that the electronic communication has been received.


(b)     Where the Commissioner and the registered user have agreed that an electronic communication shall be binding only on the receipt of an acknowledgement of such electronic communication, then, unless such acknowledgement has been so received within such time as agreed upon, such electronic communication shall be deemed not to have been sent.


(c)    

(i)      The dispatch of an electronic communication occurs when it enters a computer resource outside the control of the originator.


(ii)     The time of receipt of an electronic communication shall be when the electronic communication enters the designated computer –

(aa)   where the electronic communication is by a registered user, at any office of a Controller set out in item 202.00 of the Schedule to the rules, or of the Commissioner, to whichever it was addressed, and such office shall be the place of receipt; or

(bb)   if the electronic communication is by the Commissioner or any Controller or officer to a registered user, at the place of receipt that is stipulated in the “user agreement” referred to in subsection (4).

(10)  

(a)     Whenever any registered user is authorised to submit and sign electronically any manifest, bill of entry, return, prescribed form, document, schedule, application, declaration, statement, report, notice or the like, which is required to be submitted and signed in terms of the provisions of this Act, such signature electronically affixed to such electronic communication and communicated to the Commissioner, a Controller or any officer, shall, for the purposes of this Act, have the force and effect as if it was affixed thereto in manuscript and acceptance thereof, shall not be denied if it is in conformity with the electronic signature agreed to by and between the Commissioner and the registered user.


(b)     The signature and authentication of any electronic communication referred to in paragraph (a) shall be effected as prescribed by rule.


(c)     For the purposes of the definition of digital signature, a digital signature is an electronic signature created by computer, intended by the registered user using it and by the Commissioner accepting it to have the same force and effect as the use of a manual signature and which is –

(i)      unique to the registered user;

(ii)     capable of verification;

(iii)    linked or attached to electronically transmitted data in such a manner so as to authenticate the attachment of the signature to particular data and the integrity of the data transmitted so that if the data is changed the electronic signature is invalidated;

(iv)    under the sole control of the registered user; and

(v)     conforms in all respects to the requirements prescribed by the Commissioner by rule and contained in the user agreement.


(d)    

(i)      The Commissioner may, notwithstanding anything to the contrary contained in this section, permit, as prescribed by rule, any person who is registered as a user and has entered into a user agreement as contemplated in subsection (3), to submit electronically any communication referred to in paragraph (a), by using the Internet.

[Subparagraph (i) substituted by section 32 of Act 34 of 2004]


(ii)     Subject to such exceptions, adaptations or additional requirements as the Commissioner may prescribe by rule, the provisions of this section shall apply to the submission of such communication.

[Subparagraph (ii) substituted by section 32 of Act 34 of 2004]


(iii)    ‘Internet’ shall have the meaning assigned thereto in the Electronic Communications and Transactions Act, 2002 (Act. No. 25 of 2002).

[Paragraph (d) inserted by section 153 of Act 45 of 2003]


(11)   Where in any proceedings or prosecution under this Act or in any dispute in which the State, the Minister, the Commissioner or any officer is a party, the question arises whether an electronic signature affixed to any electronic communication to the Commissioner was used in such communication with or without the consent and authority of the registered user, it shall, in the absence of proof to the contrary, for purposes of this Act be assumed that such signature was, subject to the provisions of subsection (4), so used with the consent and authority of the registered user.


(12)  

(a)     Notwithstanding anything to the contrary in this Act or in any other law contained, whenever in any proceedings or prosecution under this Act or in any dispute in which the State, the Minister, the Commissioner or any officer is a party, it is necessary to prove the authenticity, the veracity, the origin, the contents, an electronic signature or any other aspect of any electronic communication transmitted to and received by the Commissioner under this section, the provisions and conditions of the user agreement referred to in subsection (4) shall establish the basis upon which any court of competent jurisdiction shall determine such issues.


(b)     Notwithstanding anything to the contrary contained in any other law, nothing in the application of the rules of evidence shall be applied so as to deny the admissibility of any electronic communication under this section for purposes of this Act in evidence –

(i)      on the sole grounds that it is an electronic data message; or

(ii)     if it is the best evidence that the person adducing it could reasonably be expected to obtain, on the grounds that it is not in original form.


(c)    

(i)      Information in the form of a data message shall be given due evidential weight.


(ii)     In assessing the evidential weight of a data message a court shall have regard to –

(aa)   the reliability of the manner in which the data message was generated, stored and communicated;

(bb)   the reliability of the manner in which the integrity of the information was maintained;

(cc)    the manner in which its originator was identified;

(dd)   whether these functions were in compliance with the user agreement; and

(ee)    the requirements of this section, and any other relevant factor.


(13)   Whenever, because a computer system is inoperative, a registered user or the Commissioner cannot transmit or receive an electronic transmission required for purposes of this Act, the registered user and the Commissioner shall communicate with each other by paper document as prescribed by rule.


(14)   The Commissioner may at any time require from any registered user who transmitted any electronic communication under this section for purposes of this Act the production of any original document required to be produced under any of the provisions of the Act.


(15)  

(a)     Any person, other than the registered user of an electronic signature, using such signature in any electronic communication to the Commissioner for any purpose under this Act without the consent and authority of such registered user, shall be guilty of an offence and liable on conviction for every time such signature was so used to a fine not exceeding R100 000 or treble the value of the goods in respect of which the offence was committed, whichever is the greater, or to imprisonment for a period not exceeding 10 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 under this Act.


(b)     Any person who –

(i)      makes a false electronic record or a part of an electronic record or who makes a false entry in any electronic record or who makes a false statement in such electronic record; or

(ii)     dishonestly or fraudulently –

(aa)    makes, signs or executes an electronic record;

(bb)   makes or transmits any electronic record or part of any electronic record;

(cc)    affixes any digital signature on any electronic record; or

(iii)    without lawful authority dishonestly and fraudulently alters any electronic record in any material part thereof after it had been made, executed or affixed with digital signature; or

(iv)    dishonestly or fraudulently causes any other person to sign, execute or alter an electronic record or to affix a digital signature on any electronic record,


shall be guilty of an offence and liable on conviction for every such offence to a fine not exceeding R100 000 or treble the value of the goods in respect of which the offence was committed, whichever is the greater, or to imprisonment for a period not exceeding 10 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 under this Act.


(16)   The Commissioner may make rules –

(a)     to delegate, subject to section 3(2), any power which may be exercised or assign any of the duties which shall be performed in terms of this Act to any officer or any other person;

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

(c)     in respect of any other matter which the Commissioner may reasonably consider to be necessary and useful to achieve the efficient and effective administration of the provisions of this section.

[Section 101A inserted by section 51 of Act 19 of 2001]