Reproduced under Goverment Printer’s Authorisation (Authorisation No. 11779) dated 25 August 2017.

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CUSTOMS AND EXCISE ACT 91 OF 1964

(English text signed by the State President)

[Assented to: 27 July 1964]

[Commencement date: 1 January 1965 – unless otherwise indicated]

as amended by:

Tax Administration Laws Amendment Act 44 of 2014

Tax Administration Laws Amendment Act 23 of 2015

Taxation Laws Amendment Act 15 of 2016

Tax Administration Laws Amendment Act 16 of 2016

Tax Administration Laws Amendment Act 13 of 2017

Rates and Monetary Amounts and Amendment of Revenue Laws Act 14 of 2017

Tax Administration Laws Amendment Act 22 of 2018

Customs and Excise Amendment Act 13 of 2019

Carbon Tax Act 15 of 2019

Tax Administration Laws Amendment Act 33 of 2019

Taxation Laws Amendment Act 23 of 2020

Tax Administration Laws Amendment Act 24 of 2020

Tax Administration Laws Amendment Act 16 of 2022

Rates and Monetary Amounts and Amendment of Revenue Laws Act 19 of 2022

Taxation Laws Amendment Act 20 of 2022

Latest 2024 Live Updates: COMPLETED!

Taxation Laws Amendment Act 17 of 2023

Tax Administration Laws Amendment Act 18 of 2023

To report an issue, please contact us at service@hApp-e-tax.co.za

ACT

 

To provide for the levying of customs and excise duties and a surcharge; for a fuel levy, for a Road Accident Fund levy, for an air passenger tax, an environmental levy and a health promotion levy; the prohibition and control of the importation, export, manufacture or use of certain goods; and for matters incidental thereto.

[Long title substituted by section 40 of Act 112 of 1977, section 41 of Act 84 of 1987, section 42 of Act 59 of 1990, section 66 of Act 30 of 2000, section 72 of Act 32 of 2004 and section 28 of Act 32 of 2005 and section 14 of Act 14 of 2017 effective on 1 April 2018]

ARRANGEMENT OF SECTIONS

Shortcut: SCHEDULES 1 – 10

CHAPTER I

DEFINITIONS

Section 1 – Definitions

CHAPTER II

ADMINISTRATION, GENERAL DUTIES AND POWERS OF COMMISSIONER AND OFFICERS, AND APPLICATION OF ACT

Section 2 – Commissioner to administer Act

Section 3 – Delegation of duties and powers of Commissioners

Section 3A – Duties imposed and powers conferred on Director-General by this Act

Section 4 – General duties and powers of officers

Section 4A – Powers of arrest

Section 4B – Possession and use of firearms

Section 4C – Border Patrol

Section 4D – Officers’ powers relating to criminal prosecutions

Section 5 – Application of Act

CHAPTER III

IMPORTATION, EXPORTATION AND TRANSIT AND COASTWISE CARRIAGE OF GOODS

 

Section 6 – Appointment of places of entry, authorized roads and routes, etc

Section 6A – Special provisions in respect of customs controlled areas

Section 7 – Report of arrival or departure of ships or aircraft

Section 7A – Special provisions relating to Advance Passenger Information

Section 8 – Cargo reports

Section 9 – Sealing of goods on board ships or aircraft

Section 10 – When goods deemed to be imported

Section 11 – Landing of unentered goods

Section 12 – Goods imported or exported overland

Section 13 – Goods imported or exported by post

Section 14 – Coastwise traffic and coasting ships

Section 15 – Persons entering or leaving the Republic and smugglers

Section 16 – Opening of packages in absence of importer or exporter

Section 17 – State warehouse

Section 18 – Removal of goods in bond

Section 18A – Exportation of goods from customs and excise warehouse

CHAPTER IV

CUSTOMS AND EXCISE WAREHOUSES; STORAGE AND MANUFACTURE OF GOODS IN CUSTOMS AND EXCISE WAREHOUSES

 

Section 19 – Customs and excise warehouses

Seciton 19A – Special provision in respect of customs and excise warehouses in which excisable or fuel levy goods are manufactured or stored

Section 20 – Goods in customs and excise warehouses

Section 21 – Special customs and excise warehouses

Section 21A – Provision for administration of customs controlled areas within industrial development zones and special economic zones

Section 22 – Samples of goods in a customs and excise warehouse

Section 23 – Storage or manufacture of prohibited goods

Section 24 – Ships’ or aircraft stores consumed in the Republic

Section 25 – Sorting, packing, etc., in customs and excise storage warehouses

Section 26 – Transfer of ownership or pledging or hypothecation of warehoused goods

Section 27 – Special provisions in respect of customs and excise manufacturing warehouses

Section 28 – Ascertaining quantity of spirits by measuring the mass or volume

Section 29 – Classification of spirits

Section 30 – Control of the use of spirits for certain purposes

Section 31 – Repealed

Section 32 – Ascertaining the strength of spirits for duty purposes

Section 33 – Requirements in respect of stills

Section 34 – Special provisions regarding spirits manufactured by agricultural distillers

Section 35 – Special provisions regarding wine

Section 35A – Special provisions regarding cigarettes and cigarette tobacco

Section 36 – Specific provisions regarding beer

Section 36A – Special provisions in respect of manufacture of goods specified in Section B of Part 2 of Schedule No. 1 and collection of excise duty specified in Section B of Part 2 of Schedule No. 1

Section 37 – Duties applicable to goods manufactured in a customs and excise warehouse

Section 37A – Special provisions in respect of marked goods and certain goods that are free of duty

Section 37B – Provisions relating to the manufacture, storage, disposal and use of biofuel, biodiesel or bioethanol

CHAPTER V

CLEARANCE AND ORIGIN OF GOODS; LIABILITY FOR AND PAYMENT OF DUTIES

Section 38 – Entry of goods and time of entry

Section 38A – Special provisions in respect of storage and clearance and release of stores or spares and equipment supplied to foreign-going ships and aircraft

Section 39 – Importer and exporter to produce documents and pay duties

Section 39A – Sale in transit

Section 39B – Simplified clearance and release procedures

Section 39C – Simplified clearance and release procedures for authorised persons

Section 39D – Simplified procedures for immediate release of goods

Sectoin 40 – Validity of entries

Section 41 – Particulars on invoices

Section 42 – Entry by bill of sight

Section 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

Section 44 – Liability for duty

Section 44A – Joint and several liability for duty or certain amounts

Section 45 – Determination of duty applicable

Section 46 – Origin of goods

Section 46A – Non-reciprocal preferential tariff treatment of goods exported from the Republic

Section 47 – Payment of duty and rate of duty applicable

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

Section 47B – Air passenger tax

Section 48 – Amendment of Schedule No. 1

Section 49 – Agreements in respect of rates of duty lower than general rates of duty and other agreements providing for matters requiring customs administration

Section 50 – Provisions relating to the disclosure of information in terms of agreements

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

Section 51 – Agreements with African territories

Section 52 – Imposition of a fuel levy by any party to a customs union agreement

Section 53 – Discrimination by other countries

Section 54 – Special provisions regarding the importation of cigarettes

CHAPTER VA

ENVIRONMENTAL LEVIES

 

Section 54A – Imposition of Environmental Levy

Section 54AA – Provisions relating to carbon tax

Section 54B – Rate of Environmental Levy

Section 54C – Application of other provisions of this Act

Section 54D – Rebates, Refunds and Drawbacks

Section 54E – Licensing

Section 54EA – Exemption from licensing and payment of environmental levy

Section 54F – Rules

CHAPTER VB

HEALTH PROMOTION LEVIES

Section 54G – Imposition of health promotion levy

Section 54H – Rate of health promotion levy

Section 54I – Application of other provisions of this Act

Section 54J – Application of environmental levy provisions of this Act

CHAPTER VI

ANTI-DUMPING, COUNTERVAILING AND SAFEGUARD DUTIES AND OTHER MEASURES

Section 55 – General provisions regarding anti-dumping, countervailing and safeguard duties and measures

Section 56 – Imposition of anti-dumping duties

Section 56A – Imposition of countervailing duties

Section 57 – Imposition of safeguard measures

Section 57A – Imposition of provisional payment

CHAPTER VII

AMENDMENT OF DUTIES

Section 58 – Time when new or increased duties become payable

Section 59 – Contract prices may be varied to extent of alteration in duty.

CHAPTER VIII

REGISTRATION, LICENSING AND ACCREDITED CLIENTS

Section 59A – Registration of persons participating in activities regulated by this Act

Section 60 – Licencing

Section 61 – Customs and excise warehouse licences

Section 62 – Agricultural distillers

Section 63 – Stills to be licensed

Section 64 – Special warehouses for the manufacture of wine

Section 64A – Container depot licenses

Section 64B – Clearing agent licences

Section 64C – Licence to search wreck or to search for wreck

Section 64D – Licensing of remover of goods in bond

Section 64E – Accredited clients

Section 64F – Licensing of distributors of fuels obtained from the licensee of a customs and excise manufacturing warehouse

Section 64G – Licensing of degrouping depot

CHAPTER IX

VALUE

Sectoin 65 – Value for duty purposes on any goods imported into the Republic

Section 66 – Transaction value

Section 67 – Adjustments to price actually paid or payable

Section 68 – Repealed

Section 69 – Value for excise duty purposes on any goods manufactured in the Republic

Section 70 – Repealed

Section 71 – Value of certain specified goods

Section 72 – Value of goods exported

Section 73 – Currency conversion

Section 74 – Value of goods not liable to ad valorem duty

Section 74A – Interpretation of sections 65, 66 and 67

CHAPTER X

REBATES, REFUNDS AND DRAWBACKS OF DUTY

Section 75 – Specific rebates, drawbacks and refunds of duty

Section 75A – Circumstances in which imported goods free of duty are admissible under a rebate item of Schedule No. 4

Section 76 – General refunds in respect of imported goods, excisable goods and certain exported goods

Section 76A – Recovery of certain amounts not duly payable

Sectoin 76B – Limitation on the period for which refund and drawback claims will be considered and the period within which applications therefor must be received by the Controller

Sectoin 76C – Set-off of refund against amounts owing

Section 77 – Set-off of certain amounts

CHAPTER XA

INTERNAL ADMINISTRATIVE APPEAL; ALTERNATIVE DISPUTE RESOLUTION; DISPUTE SETTLEMENT

Part A: Internal Administrative Appeal Definitions

Section 77A – Definitions

Section 77B – Persons who may appeal

Section 77C – Submission of appeal

Section 77D – Request for reasons and time within which a request or an appeal must be considered

Section 77E – Appointment and function of appeal committee

Section 77F – Decision of Commissioner and Committee

Section 77G – Obligation to pay amount demanded

Section 77H – Rules

Section 77HA – Implementation of Part A in respect of decisions

 

Part B: Alternative Dispute Resolution

Section 77I – Alternative Dispute Resolution

Part C: Settlement of dispute

Section 77J – Definitions

Section 77K – Purpose of this Part

Section 77L – Circumstances where inappropriate to settle

Section 77M – Circumstances where appropriate to settle

Section 77N – Power to settle and conduct of officials

Section 77O – Procedure for settlement

Section 77P – Register of settlements and reporting

CHAPTER XI

PENAL PROVISIONS

Section 78 – Offences not expressly mentioned

Section 79 – Less serious offences and their punishment

Section 80 – Serious offences and their punishment

Section 81 – Non-declaration in respect of certain goods

Section 82 – Prohibition with regard to stamps

Section 83 – Irregular dealing with or in good

Section 84 – False documents and declarations

Section 85 – Beer of higher alcoholic strength than registered

Section 86 – Certain specified offences

Section 86A – Publication of names of offenders

Section 87 – Goods irregularly dealt with liable to forfeiture

Section 88 – Seizure

Section 89 – Notice of claim by owner in respect of seized goods

Section 90 – Disposal of seized goods

Section 91 – Administrative penalties

Section 92 – Payment and disposal of fines and penalties

Section 93 – Remission or mitigation of penalties and forfeiture

Section 94 – Recovery of penalties by process of law

Section 95 – Jurisdiction of courts

Section 96 – Notice of action and period for bringing action

CHAPTER XII

GENERAL

Section 96A – Approval of container operators

Section 97 – Master, container operator or pilot may appoint agent

Section 98 – Liability of principal for acts of agent

Section 99 – Liability of agent for obligations imposed on principal

Section 99A – Consultant and agent not being clearing agent required to register

Section 100 – Agent may be called upon to produce written authority

Section 101 – Business accounts, documents, etc., to be available for inspection

Section 101A – Electronic communication for the purposes of customs and excise procedures

Section 101B – Special provisions relating to the processing and protection of personal information

Section 102 – Sellers of goods to produce proof of payment of duty

Section 103 – Liability of company, partnership, etc.

Section 104 – Repealed

Section 105 – Interest on outstanding amounts

Section 106 – Sample

Section 107 – Expenses of landing, examination, weighing, analysis, etc

Section 107A – Control in respect of manufacturers of certain goods or materials and persons who carry out processes in connection with such goods or materials

Section 108 – Repealed

Section 109 – Destruction of goods and detention of ships or vehicles

Section 110 – Instruments and tables

Section 111 – Production of certificate of officer on registration of certain motor vehicles

Section 112 – Wreck

Section 113 – Prohibition and restrictions

Section 113A – Powers and duties of officers in connection with counterfeit goods

Section 114 – Duty constitutes a debt to the State

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

Section 114AA – Power to appoint agent

Section 114B – Remedies of Commissioner against agent or trustee

Section 115 – Entries, oaths, etc., made outside the Republic of full force and effect

Section 116 – Manufacture of excisable goods solely for use by the manufacturer thereof

Section 117 – Statistics

Section 118 – Delegation of powers and assignment of duties

Section 119 – Substitution of Schedules

Section 119A – Special provisions for customs modernisation

Section 119B – Arrangements for obtaining undue tax benefits

Section 120 – Regulations and rules

Section 121 – Repeal of laws

Section 122 – Short title and commencement

SCHEDULES 1 – 10

CHAPTER I

 

DEFINITIONS

1. Definitions

(1)     In this Act, unless the context otherwise indicates, any reference to customs and excise or matters relating thereto, shall be deemed to include a reference to-

(a)     surcharge and fuel levy or matters relating thereto;

(b)     air passenger tax or matters relating thereto in so far as those provisions can be applied and subject to the provisions of section 47B;

(c)     environmental levy or matters relating thereto in so far as those provisions can be applied and subject to the provisions of Chapter VA; and

(d)     health promotion levy or matters relating thereto in so far as those provisions can be applied and subject to the provisions of Chapter VB; and-

[Words preceding the definition of “agricultural distiller” substituted by section 15 of Act 14 of 2017 effective on 1 April 2018.]

“agricultural distiller” means any owner or occupier of a farm in the Republic who –

(a)     is licensed to keep a still on such farm; and

(b)     is licensed to distill spirits exclusively from prescribed fresh fruit grown by him on such farm;

[Definition of “agricultural distiller” substituted by section 1 of Act 59 of 1990, section 1 of Act 19 of 1994 and section 57 of Act 30 of 1998]

“bill of entry” includes any SAD form, except as otherwise provided in any Schedule, rule or the Schedule to the rules;

[Definition of “bill of entry” inserted by section 7 of Act 21 of 2006 with effect from 1 October 2006]

“Carbon Tax Act” means an Act of Parliament that makes provision for a carbon tax;

[Definition of “Carbon Tax Act” inserted by section 20 read with Sch. 3 of Act 15 of 2019]

“Commissioner” means the Commissioner for the South African Revenue Service;

[Definition of “Commissioner” inserted by section 1 of Act 98 of 1980 and substituted by section 34 of Act 34 of 1997]

“common customs area” means the combined areas of the Member States of SACU;

[Definition of “common customs area” inserted by section 1 of Act 84 of 1987 and substituted by section 66 of Act 32 of 2004]

“container depot” means any container depot contemplated in section 6 (1)(hB);

[Definition of “container depot” inserted by section 1 of Act 71 of 1975]

“container operator” means any person providing international transportation of containerized goods, and approved by the Commissioner, under section 96A, for operating containers in the Republic;

[Definition of “container operator” inserted by section 1 of Act 71 of 1975 and substituted by section 1 of Act 89 of 1984]

“container terminal” means any container terminal contemplated in section 6 (1)(hA);

[Definition of “container terminal” inserted by section 1 of Act 71 of 1975]

“Controller”, in relation to any area or any matter, means the officer designated by the Commissioner to be the Controller of Customs and Excise in respect of that area or matter and includes an officer acting under the control or direction of any officer so designated by the Commissioner;

[Definition of “Controller” inserted by section 1 of Act 57 of 1966]

“crew” includes every person (except the master or pilot) employed in any capacity on board any ship or aircraft;

“customs duty” means any duty leviable under Part 1 of Schedule No. 1 or Schedule No. 2 on goods imported into the Republic;

[Definition of “customs duty” substituted by section 1 of Act 105 of 1969, section 1 of Act 112 of 1977, section 1 of Act 84 of 1987, section 1 of Act 59 of 1990, section 66 of Act 32 of 2004 and section 90 of Act 35 of 2007 effective on 1 April 2012]

“degrouping  depot”  means  any  degrouping depot for air cargo contemplated in section 6(1)(hC) and licensed under the provisions of this Act;

[Definition of “degrouping depot” inserted by section 131 of Act 45 of 2003]

“degrouping operator” means the licensee of a degrouping depot;

[Definition of “degrouping operator” inserted by section 131 of Act 45 of 2003]

“depot operator” means the person having charge of any container depot;

[Definition of “depot operator” inserted by section 1 of Act 71 of 1975]

“duty” means any duty leviable under this Act and, subject to-

(a)     section 47B, any passenger tax leviable under that section;

(b)     Chapter VA, any environmental levy leviable under that Chapter; and

(c)     Chapter VB, any health promotion levy leviable under that Chapter;

[Definition of “duty” substituted by section 58 of Act 30 of 2000, section 131 of Act 45 of 2003 and section 15 of Act 14 of 2017 effective on 1 April 2018]

“entry for home consumption” includes entry under any item in Schedule No. 3, 4 or 6;

[Definition of “entry for home consumption” substituted by section 1 of Act 105 of 1969 and section 1 of Act 59 of 1990]

“environmental levy” means any duty leviable under Part 3 of Schedule No. 1 on any goods which have been manufactured in or imported into the Republic; and

[Definition of “environmental levy” inserted by section 131 of Act 45 of 2003]

“environmental levy goods” means any goods specified in Part 3 of Schedule No. 1 which have been manufactured in or imported into the Republic.

[Definition of “environmental levy goods” inserted by section 131 of Act 45 of 2003]

“excisable goods” means any goods specified in Part 2 of Schedule No. 1 imported into or manufactured in the Republic;

[Definition of “excisable goods” substituted by section 90 of Act 35 of 2007 effective on 1 April 2012]

“excise duty” means any duty leviable under Part 2 of Schedule No. 1 on any goods imported into or manufactured in the Republic;

[Definition of “excise duty” substituted by section 1 of Act 84 of 1987 and section 90 of Act 35 of 2007 effective on 1 April 2012]

“excise value” means value as defined in section 69;

“export duty” means any duty leviable under Part 6 of Schedule No. 1 on goods exported from the Republic;

[Definition of “export duty” inserted by section 11(a) of Act 33 of 2019]

“exporter” includes any person who, at the time of exportation –

(a)     owns any goods exported;

(b)     carries the risk of any goods exported;

(c)     represents that or acts as if he is the exporter or owner of any goods exported;

(d)     actually takes or attempts to take any goods from the Republic;

(e)     is beneficially interested in any way whatever in any goods exported;

(f)      acts on behalf of any person referred to in paragraph (a), (b), (c), (d) or (e),

and, in relation to imported goods, includes the manufacturer, supplier or shipper of such goods or any person inside or outside the Republic representing or acting on behalf of such manufacturer, supplier or shipper;

[Definition of “exporter” substituted by section 1 of Act 112 of 1977]

“fuel levy” means, subject to subsection (4), any duty leviable under Part 5A of Schedule No. 1 on any fuel levy goods which have been manufactured in or imported into the Republic;

[Definition of “fuel levy” inserted by section 1 of Act 84 of 1987 and substituted by section 85 of Act 31 of 2005 effective on 1 April 2006]

“fuel levy goods” means, subject to subsection (4), any goods specified in Part 5A of Schedule No. 1, except any goods specified in any item of that Part for which a free rate of duty is prescribed as contemplated in section 37A(1)(a), which have been manufactured in or imported into the Republic;

[Definition of “fuel levy goods” inserted by section 1 of Act 84 of 1987 and substituted by section 113 of Act 60 of 2001 and section 85 of Act 31 of 2005 effective on 1 April 2006]

“goods” includes-

(a)     anything classifiable within any heading or subheading of Part 1 of Schedule No. 1; and

(b)     generally all wares, articles, merchandise, animals, currency, matter or things;

[Definition of “goods” substituted by section 1 of Act 98 of 1970 and section 22 of Act 61 of 2008 effective on 21 October 2008]

“health promotion levy” means any duty leviable under Part 7 of Schedule No. 1 on any goods which have been manufactured in or imported into the Republic;

[Definition of “health promotion levy” inserted by section 15 of Act 14 of 2017 effective on 1 April 2018]

“health promotion levy goods” means any goods specified in Part 7 of Schedule No. 1 which have been manufactured in or imported into the Republic;

[Definition of “health promotion levy goods” inserted by section 15 of Act 14 of 2017 effective on 1 April 2018]

“home consumption” means consumption or use in the Republic;

“illicit goods”, in relation to imported or excisable goods, surcharge goods or fuel levy goods, means any such goods in respect of which any contravention under this Act has been committed, and includes any preparation or other product made wholly or in part from spirits or other materials which were illicit goods;

[Definition of “illicit goods” substituted by section 1 of Act 105 of 1969, section 1 of Act 112 of 1977, section 1 of Act 84 of 1987 and section 1 of Act 59 of 1990]

“importer” includes any person who, at the time of importation –

(a)     owns any goods imported;

(b)     carries the risk of any goods imported;

(c)     represents that or acts as if he is the importer or owner of any goods imported;

(d)     actually brings any goods into the Republic;

(e)      is beneficially interested in any way whatever in any goods imported; or

[Paragraph (e) amended by section 9 of Act 24 of 2020]

(f)      acts on behalf of any person referred to in paragraph (a), (b), (c), (d) or (e);

“International Trade Administration Commission” means the International Trade Administration Commission established by section 7 of the International Trade Administration Act, 2002 (Act No. 71 of 2002);

[Definition of “International Trade Administration Commission” inserted by section 131 of Act 45 of 2003]

“land” includes off-loading from any vehicle;

“L.C.L. container” means any container containing goods consigned from one or more exporters to more than one importer;

[Definition of “L.C.L. container” inserted by section 1 of Act 71 of 1975]

“manufacture”, when used as a noun, includes-

(a)     in the discretion of the Commissioner, any process-

(i)      in the manufacture or assembly of any excisable goods, environmental levy goods, fuel levy goods or Road Accident Fund levy goods;

(ii)     in the conversion of any goods into excisable goods, environmental levy goods, fuel levy goods or Road Accident Fund levy goods;

(iii)    whereby the dutiable quantity or value of any imported goods specified in section B of Part 2 of Schedule No. 1, excisable goods, environmental levy goods, fuel levy goods or Road Accident Fund levy goods is increased in any manner;

(iv)    in the recovery of excisable goods, environmental levy goods, fuel levy goods or Road Accident Fund levy goods from excisable goods or any other goods;

(v)     in the packing or measuring off of any imported goods specified in section B of Part 2 of Schedule No. 1, excisable goods, environmental levy goods, fuel levy goods or Road Accident Fund levy goods; or

(vi)    in the generation of electricity liable to environmental levy; or

(b)     any process as may be prescribed in any Part of Schedule No. 1 wherein such duty or levy is specified; or

(c)     any other process in respect of goods contemplated in paragraph (a) that the Commissioner may prescribe by rule,

and, when used as a verb, has a corresponding meaning; and ‘manufacturer’ has a corresponding meaning;

[Definition of “manufacture” substituted by section 1 of Act 105 of 1969, section 1 of Act 110 of 1979, section 1 of Act 84 of 1987, section 1 of Act 59 of 1990 and section 22 of Act 61 of 2008 effective on 21 Oct 2008]

“master”, in relation to any ship, means any person (other than a pilot) having charge of such ship;

“master”, in relation to any ship, means any person (other than a pilot) having charge of such ship;

“Office” means the Office of the Commissioner for Customs and Excise mentioned in section 1A;

[Definition of “Office” inserted by section 1 of Act 98 of 1980]

“officer” means a person employed on any duty relating to customs and excise by order or with the concurrence of the Commissioner, whether such order has been given or such concurrence has been expressed before or after the performance of the said duty;

[Definition of “officer” substituted by section 1 of Act 105 of 1969, section 1 of Act 112 of 1977, section 1 of Act 84 of 1987 and section 1 of Act 59 of 1990]

“owner” includes any person lawfully acting on behalf of the owner;

“package” means any container, wrapping or outer cover and its contents, or any bundle or single piece in the case of unpacked goods;

“person” includes an insolvent estate, the estate of a deceased person and any trust;

[Definition of “person” inserted by section 4 of Act 36 of 2007]

“pilot”, in relation to any aircraft, means any person having charge of such aircraft;

“plant” includes vessels, utensils, appliances and fittings;

“prescribed” means prescribed by this Act;

“regulation” means a regulation made by the Minister under this Act;

“Road Accident Fund levy” means, subject to subsection (4), any duty leviable under Part 5B of Schedule No. 1 on any Road Accident Fund levy goods which have been manufactured in or imported into the Republic;

[Definition of “Road Accident Fund levy” inserted by section 85 of Act 31 of 2005 effective on 1 April 2006]

“Road Accident Fund levy goods” means, subject to subsection (4), any goods specified in Part 5B of Schedule No. 1;

[Definition of “Road Accident Fund levy goods” inserted by section 85 of Act 31 of 2005 effective on 1 April 2006]

“rule” means a rule made by the Commissioner under this Act;

“SACU” means the Southern African Customs Union between the Republic of Botswana, the Kingdom of Lesotho, the Republic of Namibia, the Republic of South Africa and the Kingdom of eSwatini;

[Definition of “SACU” inserted by section 66(c) of Act 32 of 2004 and substituted by section 11(b) of Act 33 of 2019]

“SACU Agreement” means the Southern African Customs Union Agreement published in Schedule No. 10;

[Definition of “SACU Agreement” inserted by section 66 of Act 32 of 2004]

“ship” means any ship, vessel or boat (including a flying boat) of any kind whatsoever;

“South African Revenue Service” means the South African Revenue Service established by section 2 of the South African Revenue Service Act, 1997.

[Definition of “South African Revenue Service” inserted by section 34 of Act 34 of 1997]

“State warehouse” means any premises provided by the State for the deposit of goods for the security thereof and of the duties due thereon, or pending compliance with the provisions of any law in respect of such goods;

“still” means any apparatus for, or capable of, distilling spirits and includes any part thereof;

“still maker” means a person who manufactures or imports stills for sale and includes a person who repairs stills for reward;

“surcharge” means any duty leviable under Part 4 of Schedule No. 1 on any goods which have been imported into the Republic;

[Definition of “surcharge” inserted by section 1 of Act 112 of 1977]

“surcharge goods” means any goods specified in Part 4 of Schedule No. 1 which have been imported into the Republic;

[Definition of “surcharge goods” inserted by section 1 of Act 112 of 1977]

“Tax Administration Act” means the Tax Administration Act, 2011(Act 28 of 2011);

[Definition of “Tax Administration Act” inserted by section 11(c) of Act 33 of 2019]

“this Act” includes any proclamation, government notice, regulation or rule issued or made or agreement concluded or deemed to have been concluded thereunder, any agreement contemplated in section 49, or any taxation proposal contemplated in section 58 which is tabled in the National Assembly;

[Definition of “this Act” substituted by section 1 of Act 57 of 1966, section 46 of Act 53 of 1999 and section 60 of Act 59 of 2000]

“vehicle” means any aircraft, train, motor car, van, truck, cart, barrow or other conveyance of any kind whatsoever, and includes the fittings, furnishings and equipment thereof, and also pack animals and their harness and tackle;

“Wine and Spirit Board” means the board referred to in section 2 of the Liquor Products Act, 1989;

[Definition of “Wine and Spirit Board” inserted by section 32 of Act 60 of 1989]

“wine grower” means a farmer who cultivates vines on land in his own occupation and who produces on such land wine from grapes grown on such vines or delivers grapes grown on such vines to a wine-growers’ co-operative agricultural society for the manufacture of wine;

[Definition of “wine-grower” substituted by section 1 of Act 95 of 1965]

“worts” means any liquid substance containing saccharine matter before fermentation has commenced.

[Subsection (1) amended by section 1 of Act 112 of 1977, section 1 of Act 84 of 1987, section 1 of Act 59 of 1990 and section 58 of Act 30 of 2000]

(2)     In this section, except in the definition of “package”, and in sections 4, 6, 7, 18, 38, 44, 64A, 87(2) and 107,

“container” means transport equipment of tariff heading 86.09 –

(a)     having an internal volume of not less than one cubic metre; and

(b)     designed for the transport of goods by any means of carriage, without intermediate reloading,

and in this Act “containerized” has a corresponding meaning.

[Subsection (2) added by section 1 of Act 71 of 1975 and amended by section 46 of Act 53 of 1999 and section 10 of Act 9 of 2007]

(3)     For the purposes of the SACU Agreement-

(a)     “customs duty” includes, except for the purposes of articles 32, 33 and 34 of the said agreement, any duty leviable under Part 3, 5, 7 or 8 of Schedule No. 1 on goods imported; and

(b)     “excise duty” includes, except for the purposes of articles 32, 33 and 34 of the said agreement, any duty leviable under Part 3, 5, 7 or 8 of Schedule No. 1 on goods manufactured in the common customs area.

[Subsection (3) added by section 1 of Act 112 of 1977, substituted by section 1 of Act 84 of 1987, amended by section 1 of Act 68 of 1989 and section 1 of Act 59 of 1990 and substituted by section 66 of Act 32 of 2004 and section 15 of Act 14 of 2017 effective on 1 April 2018]

(4)     Except as otherwise provided in this section or in any other section or as may be provided in any Schedule or rule, any provision in this Act for fuel levy, fuel levy goods or Part 5 of Schedule No. 1 shall be deemed to include in that provision, in respect of –

(a)     fuel levy, the Road Accident Fund levy;

(b)     fuel levy goodsection Road Accident Fund levy goods; or

(c)     Part 5 of Schedule No. 1. Part 5A and Part 5B of that Schedule.

[Subsection (4) inserted by section 85 of Act 31 of 2005 effective on 1 April 2006]

(5)     The expression ‘goods under customs control’, ‘goods subject to customs control’ or ‘goods under control of the Commissioner’ and any cognate expression shall, unless the context otherwise indicates, be deemed to include, but is not limited to-

(a)     any ship, vehicle or container contemplated in section 1(2) that is entering or leaving the Republic;

(b)     any goods to which this Act relates that are-

(i)      on any ship or vehicle or in any container contemplated in section 1(2) that is entering or leaving the Republic;

(ii)     in, on or at any premises licensed, registered or approved, or which should have been so licensed, registered or approved, for any purpose in terms of this Act;

(iii)    in, on or at any premises or at any place appointed, prescribed or designated in terms of section 6;

(iv)    in transit within or through the Republic or conveyed for transhipment to any place outside the Republic in such manner as may be specified by rule;

(v)     in, on or at a State warehouse or any place deemed in terms of section 43(2) to be a State warehouse;

(vi)    in, on or at any place where goods are kept after having been detained or seized under the provisions of this Act; or

(vii)   deemed in terms of any provision of this Act to be under customs control,

whether or not declared in terms of any provision of this Act or, if so declared, whether or not release thereof has been granted.

[Subsection (5) added by section 7 of Act 21 of 2006 effective on 15 January 2008 and substituted by s.22 of Act 61 of 2008]

(5A)   A reference in—

(a)     section 4 to the expression “Department of Trade and Industry or the Economic Development Department” or “Department of Trade and Industry and Economic Development” must be read as a reference to “Department of Trade, Industry and Competition”;

(b)     sections 21A, 43, 48, 49, 53, 55, 56, 56A, 57, 75 and 114 to the expression “Trade and Industry” must be read as a reference to “Trade, Industry and Competition”; and

(c)     section 48 to the expression “Minister of Trade and Industry and for Economic Coordination” must be read as a reference to ‘‘Minister of Trade, Industry and Competition.

[Subsection (5A) inserted by section 11 of Act 21 of 2021 effective on 19 January, 2022]

CHAPTER II

 

ADMINISTRATION, GENERAL DUTIES AND POWERS OF COMMISSIONER AND OFFICERS, AND APPLICATION OF ACT

2. Commissioner to administer Act

(1)     The Commissioner shall, subject to the control of the Minister, be charged with the administration of this Act, including the interpretation of the Schedules thereto.

(1A)  The Commissioner may, for the purposes of the administration of this Act, make such arrangements or enter into such agreements with any railway, port, airline or postal authority, depot operator or container operator or any other person or authority as he may deem necessary.

[Subsection (1A) inserted by section 1 of Act 45 of 95]

(2)     The Controller shall perform his duties and exercise his powers under this Act with due regard to any instructions issued by the Commissioner.

3. Delegation of duties and powers of Commissioners

 

 (1)    Any duty imposed or power conferred on the Commissioner may be performed or exercised by the Commissioner personally or by an officer or any other person under a delegation from or under the control or direction of the Commissioner.

[Subsection (1) substituted by section 132 of Act 45 of 2003]

(2)    

         

(a) Any decision made and any notice or communication signed or issued by such officer or person may be withdrawn or amended by-

(i)      the officer or person concerned;

(ii)     the branch manager to whom the officer or person in (i) reports;

(iii)    the officer or person in charge of customs operations or excise operations; or

(iv)    the Commissioner personally,

with effect from the date of making such decision or signing or issuing such notice or communication or the date of withdrawal or amendment thereof and shall, until it has been so withdrawn, be deemed, except for the purposes of this subsection, to have been made, signed or issued by the Commissioner.

[Paragraph (a) substituted by section 27 of Act 21 of 2012 effective on 20 December 2012]

(b)     The Commissioner may make rules regarding any matter which the Commissioner considers reasonably necessary and useful for the purposes of administering the provisions of this section.

[Subsection (2) substituted by section 132 of Act 45 of 2003]

3A.      Duties imposed and powers conferred on Director-General by this Act

(1)     Any duty imposed or power conferred by this Act on a Director-General may be performed or exercised by him or her personally or by an officer under a delegation from or under the control or direction of that Director-General.

(2)     Any decision made under subsection (1) by any such officer may be withdrawn or amended by that Director-General or by the officer (with effect from the date of making such decision or the date of withdrawal or amendment thereof) and shall, until it has been so withdrawn, be deemed, except for the purposes of this subsection, to have been made by that Director-General.

[Section 3A inserted by section 3 of Act 59 of 1990 and substituted by section 23 of Act 61 of 2008]

4. General duties and powers of officers

(1)     Officers shall act under the control and direction of the Commissioner.

[Subsection (1) substituted by section 34 of Act 34 of 1997]

(2)     No officer shall have a direct financial interest in –

(a)     the importation or exportation of goods;

(b)     the manufacture of excisable goods, environmental levy goods, fuel levy goods or Road Accident Fund levy goods; or

(c)     the trade in imported goods, goods for export, excisable goods, environmental levy goods, fuel levy goods or Road Accident Fund levy goods.

[Subsection (2) substituted by section 2 of Act 105 of 1969, section 4 of Act 59 of 1990 and section 5 of Act 36 of 2007]

(3)     The Commissioner or any officer shall not disclose any information relating to any person, firm or business acquired in the performance of his duties, except in the performance of his or her duties under this Act or by order of a competent court:

Provided that the provisions of this subsection shall not be construed as preventing the Commissioner (in such form and under such procedural arrangements as the Commissioner may prescribe) from, on good cause shown –

(i)      disclosing such information in relation to any person as may be required by the Statistician General in connection with the collection of statistics in complying with the provisions of the Statistics Act, 1999 (Act No. 6 of 1999), or any regulation thereunder;

[Paragraph (i) substituted by section 5 of Act 36 of 2007]

(ii)     disclosing to the Director-General of the Department of Trade and Industry or the Economic Development Department such information in relation to imports and exports and importers and exporters as may be required by such Director-General for the determination and application of any trade policy;

[Paragraph (ii) substituted by section 11 of Act 13 of 2017 effective on 18 December 2017]

(iii)    applying ex parte to a judge in chambers for an order allowing the Commissioner to disclose to the National Commissioner of the South African Police Service, contemplated in section 6(1) of the South African Police Service Act, 1995 (Act No. 68 of 1995), or the National Director of Public Prosecutions, contemplated in section 5(2)(a) of the National Prosecuting Authority Act, 1998 (Act No. 32 of 1998), such information the disclosure of which may reveal evidence –

(a)     that an offence, other than an offence in terms of this Act or any other Act administered by the Commissioner or any other offence in respect of which the Commissioner is a complainant, has been or may be committed, or where such information may be relevant to the investigation or prosecution of such an offence, and such offence is a serious offence in respect of which a court may impose a sentence exceeding five years imprisonment; or

(b)     of an imminent and serious public safety or environmental risk,

and where the public interest in the disclosure of the information outweighs any potential harm to the person concerned should such information be disclosed: Provided that any information or document provided by any person in terms of this Act which is disclosed in terms of this subsection, shall not, unless a competent court otherwise directs, be admissible in any criminal proceedings against such person, to the extent that such information or document constitutes an admission by such person of the commission of an offence contemplated in paragraph (a);

[Paragraph (iii) amended by section 5 of Act 36 of 2007 and section 24 of Act 8 of 2010 effective on 1 June 2003]

(iv)    ………..

[Paragraph (iv) deleted by section 60 of Act 16 of 2004]

(ivA)  disclosing to the Director­General of the Department of Mineral Resources and Energy such information as may be required for the administration of the regulations in respect of carbon offsets in terms of the Carbon Tax Act, 2019 (Act 15 of 2019);

[Paragraph (ivA) inserted by section 12(a) of Act 33 of 2019]

(ivB)  disclosing to the Director­General of the Department of Environment, Forestry and Fisheries such information as may be required for the administration of the regulations in respect of greenhouse gas emissions reporting in terms of the National Environmental Management: Air Quality Act, 2004 (Act 39 of 2004);

[Paragraph (ivB) inserted by section 12(a) of Act 33 of 2019]

(ivC) disclosing to a public officer, as contemplated in section 246 of the Tax Administration Act, of an authorised dealer in foreign exchange appointed by the Minister of Finance for purposes of the Regulations issued under section 9 of the Currency and Exchanges Act, 1933 (Act 9 of 1933), such information as may be required by the authorised dealer for purposes of verification of applications for advance foreign exchange payments in respect of goods that are to be imported;

[Paragraph (ivC) inserted by section 12(a) of Act 33 of 2019 and substituted by section 10(a) of Act 24 of 2020]

(ivD) disclosing to the Director-General of the Department of International Relations and Co-operation such information in relation to purchases of goods free of duty, at premises licensed as special customs and excise warehouses in terms of section 21, as may be required to manage abuses in relation to privileges granted in terms of the Diplomatic Immunities and Privileges Act, 2001 (Act 37 of 2001);

[Paragraph (ivD) inserted by section 10(b) of Act 24 of 2020]

(v)    disclosing to the Governor of the South African Reserve Bank or any other person to whom the powers, functions and duties have been delegated by the Minister in terms of regulations issued in terms of section 9 of the Currency and Exchanges Act, 1933 (Act No. 9 of 1933), such information as may be required for purposes of exercising any power or performing any function or duty in terms of those regulations or the South African Reserve Bank Act, 1989 (Act No. 90 of 1989);

[Paragraph (v) amended by section 24 of Act 8 of 2010, section 3 of Act 25 of 2011 and substituted by section 11 of Act 13 of 2017 effective on 18 December 2017]

(vi)    disclosing to the Chief Commissioner of the International Trade Administration Commission such information in relation to imports and exports and importers and exporters as may be required by that Chief Commissioner for purposes of performing any function conferred the Chief Commissioner by or in terms of the International Trade Administration Act, 2002 (Act 71 of 2002);

[Paragraph (vi) added by section 24(1)(a) of Act 8 of 2010, amended by section 3(b) of Act 25 of 2011 and by section 12(b) of Act 33 of 2019]

(vii)   disclosing to the Director of the Financial Intelligence Centre, the information required for the performance of the functions of the Financial Intelligence Centre in terms of the Financial Intelligence Centre Act, 2001 (Act No. 38 of 2001); or

[Paragraph (vii) added by section 3 of Act 25 of 2011 effective on 14 December 2011]

(viii)  disclosing to the head of any organ of state administering legislation regulating the movement of goods or persons into or out of the Republic, the information necessary for enforcing that legislation:

[Paragraph (viii) added by section 3 of Act 25 of 2011 effective on 14 December 2011]

Provided further that the Commissioner shall disclose information in respect of any class of persons to the Director-General of the National Treasury, to the extent necessary for the purposes of tax policy design or revenue estimation.

[Subparagraph (v) added by section 39 of Act 12 of 2003]

[Subsection (3) amended by section 2 of Act 110 of 1979, section 3 of Act 98 of 1980, section 2 of Act 84 of 1987, section 34 of Act 34 of 1997 and section 58 of Act 30 of 1998 and substituted by section 115 of Act 60 of 2001]

(3A)      No person, including-

(a)      the Statistician ­General;

(b)     the Director ­General of the Department of Trade and Industry and Economic Development;

(c)     the Governor of the South African Reserve Bank;

(d)     the National Commissioner of the South African Police Service;

(e)     the National Director of Public Prosecutions;

(f)      the Director­ General of the National Treasury;

(g)     the Director ­General of the Department of Mineral Resources and Energy;

(h)     the Director­ General of the Department of Environment, Forestry and Fisheries;

(hA)  the Director-General of the Department of International Relations and Co-operation;

[Paragraph (hA) inserted by section 10(c) of Act 24 of 2020]

(i)      the public officer of an authorised dealer in foreign exchange;

(j)      the Chief Commissioner of the International Trade Administration Commission;

(k)     the Director of the Financial Intelligence Centre;

(l)      the head of any organ of state; or

(m)    any person acting under the direction and control of the persons referred to in paragraphs (a) to (l),

shall disclose any information supplied under the proviso to subsection (3) to any person or permit any person to have access thereto, except in the exercise of his or her powers or the carrying out of his or her duties under any Act from which such powers or duties are derived.

[Sub­section (3A) inserted by section 1 of Act 105 of 1992, substituted by section 58(b) of Act 30 of 1998, by section 115(1)(a) of Act 60 of 2001, by section 5(1)(d) of Act 36 of 2007, by section 24(1)(b) of Act 8 of 2010, by section 3(d) of Act 25 of 2011, by section 11(c) of Act 13 of 2017 and by section 12(c) of Act 33 of 2019]

(3B)  The provisions of subsection (3) shall not be construed as preventing the Commissioner from using any information obtained by him in the exercise of his powers or the performance of his duties under this Act for the purposes of any other law administered by him.

[Subsection (3B) inserted by section 1 of Act 98 of 1993, deleted by section 2 of Act 45 of 1995, re-inserted by section 34 of Act 34 of 1997 and substituted by section 43 of Act 30 of 2002]

(3C)  For the purposes of the proviso to subsection (3), the Commissioner may, subject to the provisions of section 3 (2), delegate the powers vested in him by that proviso, to any officer.

[Subsection (3C) inserted by section 115 of Act 60 of 2001]

(3D)  The prohibition on the disclosure of information by the Commissioner or any officer, referred to in subsection (3), shall not apply in respect of information relating to-

(a)     a person licensed or registered in terms of this Act in an anonymised form;

(b)     any person, where that person has consented that such information may be published or made known to any other person; and

(c)     tariff determinations: Provided that publication of such information shall take place in accordance with rules prescribed by the Commissioner which may include the circumstances in which publication may take place, the kind of information that may be published and the manner in which the information must be published.

[Subsection (3D) inserted by section 115(1)(b) of Act 60 of 2001 and substituted by section 12(d) of Act 33 of 2019 and by section 10(d) of Act 24 of 2020]

(3E)   Notwithstanding anything to the contrary contained in subsection (3), the Auditor-General shall in the performance of the Auditor-General’s duties in terms of section 3 of the Auditor-General Act, 1995 (Act No. 12 of 1995) have access to the documents in the possession or custody of the Commissioner or a Controller.

[Subsection (3E) inserted by section 133 of Act 45 of 2003]

(4)

(a)     An officer may, for the purposes of this Act subject to the other provisions of this section.

(aA)  An officer may enter premises in terms of paragraph (a) only on authority of a warrant issued by a magistrate or judge, provided that in the case of the following categories of premises an officer may enter the premises without a warrant:

(i)      Premises managed or operated by the State or a public entity within the meaning of the Public Finance Management Act, 1999 (Act No 1 of 1999) as part of a port, airport, railway station or land border post and on which an activity to which this Act applies is carried out or allowed;

(ii)     premises licensed or registered in terms of this Act;

(iii)    premises occupied by a person licensed or registered in terms of this Act and used for purposes of the business for which that person is licensed or registered; and

(iv)    premises entered by an officer with the consent of the owner or person in physical control of the premises after that owner or person was informed that there is no obligation to admit the officer in the absence of a warrant.

(aB)  An officer may without a warrant enter any premises for which a warrant is required in terms of paragraph (aA) if the officer on reasonable grounds believes-

(i)      that a warrant will be issued by a magistrate or judge if a warrant is applied for; and

(ii)     that the delay in obtaining the warrant is likely to defeat the purpose for which the officer seeks to enter the premises.

(aC)  An officer may for purposes of this Act-

(i)      after having gained entry to any premises in terms of this subsection, conduct an inspection, examination, enquiry or a search;

(ii)     while the officer is on the premises or at any other time require from any person the production then and there, or at a time and place fixed by the officer, of any book, document or thing which by this Act is required to be kept or exhibited or which relates to or which the officer has reasonable cause to suspect of relating to matters dealt with in this Act and which is or has been on the premises or in the possession or custody or under the control of any such person or his employee;

(iii)    at any time and at any place require from any person who has or is believed to have the  possession or custody or control of any book, document or thing relating to any matter dealt with in this Act, the production thereof then and there, or at a time and place fixed by the officer; and

(iv)    examine and make extracts from and copies of any such book or document and may require from any person an explanation of any entry therein and may attach any such book, document or thing as in the opinion of the officer may afford evidence of any matter dealt with in this Act.

(b)     An officer may take with him or her on to any premises an assistant or a member of the police force, provided that only those assistants and members of the police force whose presence, in the reasonable opinion of the officer, is necessary for purposes of conducting the inspection,   examination, enquiry or search on the premises may enter the premises.

(c)     When entering any premises in terms of paragraph (aB), the officer shall comply with the following requirements:

(i)      The officer may enter the premises only during ordinary business hours unless in the reasonable opinion of the officer entry at any other time is necessary for purposes of this Act;

(ii)     the officer shall, upon seeking admission to the premises, inform the person in charge of the premises of the purpose of the entry;

(iii)    if the purpose of the entry is, or if the officer after having gained entry decides, to search the premises for goods, records or any other things in respect of which an offence in terms of this Act is suspected to have been committed or that may be used as evidence for the prosecution of such an offence-

(aa)   the officer shall hand to the person in charge a written statement signed by the officer stating that a search of the premises is to be conducted unless, in the officer’s reason able opinion, there are circumstances of urgency which may result in the search being frustrated if its commencement is delayed until such a statement can be prepared;

(bb)   the officer’s actions shall be confined to such searching, inspection, enquiries and examination as are reasonably necessary for the purpose of the search;

(cc)   the officer may, either before or after complying with item (aa), take such steps as the officer considers necessary to prevent persons present on the premises from concealing, destroying or tampering with any documents, data or things located on the premises;

(dd)   the person in charge shall have the right to be present, or to appoint a delegate to be present, during and to observe the search;

(ee)   the officer shall compile an inventory of all items removed from the premises and shall, prior to leaving the premises, sign the inventory and hand a copy thereof to the person in charge: Provided that if it is not possible in the circumstances to compile, sign and hand such inventory to the person in charge before leaving the premises, the officer shall seal the items to be removed and as soon as possible after removal of the items from the premises, compile the inventory in the presence of the person in charge of the premises, if that person requested to be present, and sign and hand a copy of the inventory to that person;

(ff)    the officer shall compile a schedule of all copies and extracts made in the course of the search and shall, prior to leaving the premises, sign and hand a copy thereof to the person in charge; and

(gg)   the officer must conduct the search with strict regard for decency and order.

(d)     A judge or magistrate may issue a warrant referred to in paragraph (aA) only on written   application by an officer setting out under oath or affirmation the grounds why it is necessary for an officer to gain access to the relevant premises.

(e)     If the purpose of the entry is to conduct a search of the premises for goods, records or any other things in respect of which an offence in terms of this Act is suspected to have been committed or that may be used as evidence for the prosecution of such an offence, the magistrate or judge may issue such warrant if it appears from the information on oath that-

(i)     there are reasonable grounds for suspecting that an offence in terms of this Act has been committed;

(ii)    a search of the premises is likely to yield such goods, records or other things; and

(iii)   the search is reasonably necessary for the purposes of this Act.

[Subsection (4) amended by section 2 of Act 84 of 1987 and substituted by section 16 of Act 39 of 2013 effective on 16 January 2014]

(5)     Any person in connection with whose business any premises are occupied or used, and any person employed by him shall at any time furnish such facilities as may be required by the officer for entering the premises and for the exercise of his powers under this section.

(6)

(a)     If an officer, after having declared his or her official capacity and his or her purpose and having demanded admission into any premises and having complied with any applicable requirements of subsection (4), is not immediately admitted, the officer and any person assisting the officer may at any time, but at night only in the presence of a member of the police force, break open any door or window or break through any wall on the premises for the purpose of entry and search.

(b)     An officer or any person assisting the officer may at any time break up any ground or   flooring on any premises for the purpose of a search if the officer in his or her reasonable opinion considers such breaking up to be necessary for the purposes of this Act; and if any room, place, safe, chest, box or package is locked and the keys thereof are not produced on demand, may open such room, place, safe, chest, box or package in any manner.

[Subsection (6) subsituted by section 16 of Act 39 of 2013 effective on 16 January 2014]

(7)     An officer may require any person to appear before him at any time and place fixed by the officer and may then and there question that person, either alone or in the presence of any other person, as he thinks fit, with respect to any matter dealt with in this Act.

(8)     An officer may question, either alone or in the presence of any other person, as he thinks fit, with respect to any matter dealt with in this Act, any person whom he finds on any premises entered in terms of this section or whom he has reasonable grounds for believing to be or to have been employed on any premises in respect of which any provision of this Act is applicable, or whom he has reasonable grounds for believing to be or to have been in possession, custody or control of anything, in respect of which any such provision is applicable.

(8A)

(a)     An officer may stop and detain and examine any goods while under customs control in order to determine whether the provisions of this Act or any other law have been complied with in respect of such goods as contemplated in section 107(2)(a).

[Paragraph (a) substituted by section 10 of Act 10 of 2006 and section 9 of Act 21 of 2006 effective on 15 January 2008]

(b)

(i)      The release of goods may be stopped at any time while such goods are under customs control.

(ii)

(aa)

(A)    For the purposes of this subsection, unless the context otherwise indicates, “examine” includes using an X-ray scanner or any other non-intrusive inspection methods.

(B)    No person shall enter any restricted area where non-intrusive equipment is operated unless authorised by the Controller.

(bb)   The Commissioner may by rule prescribe-

(A)    any requirement any person must comply with in connection with such non-intrusive inspection;

(B)    notwithstanding the provisions of section 8, any additional advance information required in respect of any goods that will be imported or exported in such form and at such time as may be specified in such rule;

(C)    any other matter which the Commissioner considers necessary and useful for the purpose of the effective and efficient use of such equipment and the results obtained from its operation.

(cc)    Notwithstanding anything to the contrary in this Act, any non-intrusive or other examination may take place in the absence of any importer, exporter, port or airport authority, container operator, agent or any licensee or any other person having control of the goods concerned.

(dd)   Any person who-

(A)    without authorisation by the Controller enters any restricted area where non-intrusive equipment is operated;

(B)    with the intent to deceive, does anything to prevent equipment from producing a true image of the contents of any container or package,

shall be guilty of an offence and liable on conviction-

(C)    in the case of item (A) to a fine not exceeding R10 000 or imprisonment for a period not exceeding three years or both such fine or imprisonment; and

(D)    in the case of item (B) 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 imprisonment for a period not exceeding five years or both such fine and imprisonment and the goods concerned shall be liable to forfeiture in accordance with the provisions of this Act.

[Subparagraph (ii) substituted by section 9 of Act 21 of 2006]

(c)

(i)      Whenever any goods are stopped as contemplated in this paragraph the goods may be detained under the control of a Controller for any reasonable period required to determine whether the goods comply with the provisions of this Act or such other law.

(ii)     Any detention under this section is not subject to the provisions of section 93 and the officer or Controller must release the goods if found to comply with the provisions of this Act or such other law.

(iii)    Where at any time during such detention the officer or Controller decides that it is necessary to establish whether the goods are liable to forfeiture, a detention under section 88(1)(a) may be substituted for the detention under this subsection.

(d)     The provisions of this subsection shall not be construed as affecting any other provision of this Act, including the provisions of this section, relating to the detention, examination, or seizure of goods.

[Subsection (8A) added by section 133 of Act 45 of 2003]

(9)  

(a)     An officer-

(i)

(aa)   commanding any customs patrol boat referred to in section 4C, may stop any ship within the territorial waters or contiguous zones of the Republic;

(bb)   may board that ship or any other ship in the Republic; and

(ii)     may stop and board any vehicle in the Republic, and may search any such ship or vehicle or any person found therein or thereon –

(aa)   for goods that should have been entered or otherwise declared, but have not been so entered or declared; or

(bb)   for goods on which the duty should have, but has not, been paid;

(cc)   in respect of which he or she has reasonable cause to believe that there has been a contravention of any provision of this Act or any provision of any other law relating to the importation or exportation of goods,

and may freely remain on such ship or vehicle in pursuance of his or her duties.

[Paragraph (a) substituted by section 25 of Act 61 of 2008]

(b)     If any vehicle, room, cabin, place, safe, chest, box, package or container as defined in section 1(2), is locked and the keys thereof are not produced on demand, the officer may open such vehicle, room, cabin, place, safe, chest, box, package or container in any manner.

(c)     An officer shall have free access to and the right to rummage every part of any such ship or vehicle and to examine all goods on board, with power to fasten down hatchways and to mark any goods before landing and to lock up, seal, mark or otherwise secure any goods on board that ship or vehicle, including any apparatus thereof, and he may also demand from the master of such ship or the pilot of any aircraft concerned or the person in charge of any other vehicle the production of any document to which any provision of this Act relates.

(d)     If any lock, seal or mark placed upon any goods on board a ship or vehicle by an officer in terms of the provisions of this section is wilfully opened, broken, obliterated or altered or if any goods which have been locked, sealed, marked or otherwise secured in terms of this section are removed or if the hatchways of any such ship are, after having been fastened down by an officer, opened without his consent, the master of any such ship, the pilot of any aircraft concerned or the person in charge of any other such vehicle, as the case may be, shall be guilty of an offence unless he proves that it was not possible for him to have prevented the act in question.

[Subsection (9) substituted by section 4 of Act 59 of 1990]

(10)

(a)     An officer may stop any person whom he has reason to suspect of having dutiable goods or goods in respect of which a contravention under this Act has been committed, secreted about him or in his possession and he may search such person.

(b)     If such person fails to stop, the officer may take such action, including the use of force, as he may deem necessary to stop such person.

[Paragraph (b) added by section 4 of Act 59 of 1990]

(10A)

(a)     When conducting an external search of a person an officer may, subject to paragraph (b), make use of-

(i)      any mechanical, electrical, imaging or electronic equipment that can produce an indication that the person may be concealing any specific thing or substance on or in his or her body or in any goods that that person has with him or her;

(ii)     sniffer dogs or other animals trained to use their senses for the detection of any specific thing or substance; or

(iii)    any other search aid that may be prescribed by rule.

(b)     A search aid referred to in paragraph (a) may only be used by an officer trained to use such aid in the conduct of a search.

[Subsection (10A) inserted by section 21 of Act 23 of 2015 effective on 8 January 2016]

(11)

(a)     Any person may, before being searched in terms of this section, require the officer concerned to take him before the Controller, who may in his discretion discharge such person or direct that he be searched: Provided that the provisions of this paragraph shall apply only if such person is stopped within a harbour or airport control area and during the prescribed working hours of the Controller.

(b)     A female shall only be searched by a female.

(12)   An officer may lock up, seal, mark, fasten or otherwise secure any warehouse, store, room, cabin, place, vessel, appliance, utensil, fitting, vehicle or goods if he has reason to believe that any contravention under this Act has been or is likely to be committed in respect thereof or in connection therewith.

(12A)

(a)     Where, on the exportation of any goods from the Republic, any certificate, declaration or other proof has been furnished regarding the origin of such goods to comply with the provisions of any agreement contemplated in section 46, 49 or 51 or any other requirement or any practice, an officer may, for the purposes of verifying or investigating such certificate, declaration or other proof, require –

(i)      the exporter; or

(ii)     any other person appearing to the officer to have been concerned in any way with –

(aa)    the production or manufacture or exportation of such goods;

(bb)   any goods from which directly or indirectly such goods have been produced or manufactured; or

(cc)    the furnishing of such certificate, declaration or other proof,

to furnish such information in such a manner and within such time as the officer may determine, and to produce on demand for inspection and to allow the making of copies or extracts from such invoices, bills of lading, bills of entry, books of account or other documents in whatever form, as the officer may specify.

(b)     No person may, without good cause shown, refuse to comply with any such requirement of an officer.

[Subsection (12A) inserted by section 47 of Act 53 of 1999]

(13)   No person shall be entitled to any compensation for any loss or damage arising out of any bona fide action of an officer under this section.

[Subsection (13) added by section 4 of Act 59 of 1990]

4A.      Powers of arrest

 

(1)     Notwithstanding anything to the contrary contained in this Act, the Commissioner –

 

(a)     may determine a category of officers who have the power to carry out an arrest for the purposes of enforcing this Act; and

(b)     must furnish each such officer with an appropriate certificate and identification card stating that the officer is authorised to carry out an arrest for the purpose of enforcing this Act.

 

(2)     In exercising the powers of arrest contemplated in subsection (1), an officer shall be deemed to be a peace officer as defined in section 1 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), and such officer shall be subject to any relevant provision in Chapter 5 of that Act applicable to a peace officer.

 

(3)     Any person arrested by an officer must as soon as possible be brought to a police station or, in the case of an arrest by warrant, to any other place expressly mentioned in the warrant and further be dealt with in the manner contemplated in section 50 and other provisions of the Criminal Procedure Act, 1977 (Act No. 51 of 1977).

[Section 4A inserted by section 26 of Act 61 of 2008 effective on 31 Mar 2009]

4B.      Possession and use of firearms

 

(1)

 

(a)     The Commissioner may determine a category of officers authorised to possess firearms for the purposes of enforcing this Act.

(b)     The possession and use of firearms by officers shall be subject to the provisions of sections 95 to 101 of the Firearms Control Act, 2000 (Act No. 60 of 2000), and the regulations made thereunder, to the extent that those provisions relate to an Official Institution.

 

(2)     Any power conferred or duty imposed in the Firearms Control Act, 2000 (Act No. 60 of 2000), on the head of an Official Institution or on an Official Institution shall be deemed to be conferred or imposed on the Commissioner.

 

(3)

 

(a)     An officer to whom the Commissioner issues a permit to possess a firearm, must carry such permit on his or her person when he or she is in possession of a firearm.

(b)     The permit contemplated in paragraph (a) is proof that such an officer is authorised to possess an official firearm.

(c)     If, for any reason, an officer is unable to produce such a permit when required to do so, a statement by the Commissioner to the effect that such a permit has been issued is sufficient proof that the officer is authorised to have the firearm in his or her possession.

 

(4)     The Commissioner may authorise the use of non-lethal weapons by officers in such  circumstances and in such a manner as may be prescribed by rule.

 

(5)     The Commissioner may make rules to facilitate the administration of this section, including rules-

 

(a)     concerning the acquisition, record-keeping, issuing of permits, carrying, possession, use, safe-keeping, transport, theft, loss and disposal of firearms and ammunition;

(b)     concerning the manner of reporting the firing of an official firearm and the procedures to be followed in respect thereof;

(c)     concerning the type of non-lethal weapons that may be used by officers, the manner of their use and the safety and control measures that must be complied with in respect of such weapons;

(d)     prescribing the manner in which official firearms, ammunition and related equipment must be marked and identified;

(e)     regarding the training of officers contemplated in this section, including-

(i)      the training and the certification requirements for the safe use of firearms and ammunition;

(ii)     the levels of training; and

(iii)    the standards required to ensure competency and certification in respect of any particular task; or

(f)     in respect of any other matter which the Commissioner may consider reasonably necessary and useful for the efficient and effective administration of the provisions contained in this section.

[Section 4B inserted by section 26 of Act 61 of 2008 effective on 31 Mar 2009]

4C.      Border Patrol

 

(1)

 

(a)     Notwithstanding anything to the contrary contained in any other law, the Commissioner may patrol the borders of the Republic and acquire any equipment necessary for patrolling the land and sea borders of the Republic, including any-

(i)      patrol boats, aircraft and other vehicles; and

(ii)     arms and ammunition required to equip or supply any customs patrol boat, aircraft or other vehicle.

(b)     When patrolling the borders of the Republic an officer may arrest any person in accordance with the provisions of section 4A.

 

(2)

 

(a)     The customs officer commanding any customs patrol boat having hoisted and carrying or displaying the South African Revenue Service (SARS) customs ensign or flag may pursue any vessel where-

(i)      that vessel does not immediately come to a stop when signalled, ordered or required to do so; or

(ii)     the operator of the vessel refuses to permit the vessel to be boarded.

(b)     The customs officer commanding any customs patrol boat involved in pursuing a vessel as contemplated in paragraph (a) may, as a last resort and after having fired a warning, fire at or into the vessel to compel it to come to a stop.

 

(3)

 

(a)     Any customs patrol boat may exercise on behalf of the Republic, or on behalf of a foreign state, the right of hot pursuit of any vessel in accordance with Article 111 of the United Nations Convention on the Law of the Sea.

(b)     The seizure of such a vessel and the arrest of any person on board such a vessel may be effected by any customs officer on board a customs patrol boat.

 

(4)     Notwithstanding anything to the contrary contained in any other law-

 

(a)     customs patrol boats, aircraft and vehicles are exempted from any-

(i)      registration, licensing or other requirement or any related fee normally applicable to the possession or movement of vessels, aircraft or vehicles, if clearly marked and identifiable as a customs patrol boat, aircraft or vehicle; or

(ii)     mooring, docking, landing or road toll fee, or any similar charge, whilst used for official duties; and

(b)     officers serving on board customs patrol boats are exempted from any provisions in any other law relating to their competency or certification if adequately trained and tested in accordance with the standards prescribed by rule in order to ensure their competency and certification.

 

(5)     The Commissioner may make rules-

 

(a)     as to all matters required or permitted by this section to be prescribed by rule;

(b)     in respect of any other matter which the Commissioner may consider reasonably necessary and useful for the efficient and effective administration of the provisions contained in this section.

[Section 4C inserted by section 26 of Act 61 of 2008 effective on 31 Mar 2009]

 4D.     Officers’ powers relating to criminal prosecutions

  

An officer may-

(a)     investigate for purposes of a criminal prosecution whether an offence in terms of this Act has been committed;

(b)     lay criminal charges for the prosecution of any such offence; and

(c)     provide such assistance as may be required by the prosecuting authority for the prosecution of any such offence.

[Section 4D inserted by section 17 of Act 39 of 2013 effective on 16 January 2014]

5. Application of Act

 

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

 

(a)     ……….

[Paragraph (a) deleted by section 5 of Act 59 of 1990]

(b)     the continental shelf as referred to in section 8 of the Maritime Zones Act, 1994 (Act No. 15 of 1994),

[Paragraph (b) substituted by section 1 of Act 44 of 1996]

shall be deemed to be part of the Republic.

(c)     Any installation or device of any kind whatever, including any floating or submersible drilling or production platform, constructed or operating upon, beneath or above the said continental shelf for the purpose of exploring it or exploiting its natural resources shall be deemed to be constructed or operating within the Republic.

(d)     Any goods mined or produced in the operation of such installation or device and conveyed therefrom to the shore whether by pipeline or otherwise and any person or other goods conveyed by any means to and from such installation or device shall be deemed to be so conveyed within the Republic.

[Section 5 substituted by section 2 of Act 68 of 1989]

CHAPTER III

 

IMPORTATION, EXPORTATION AND TRANSIT AND COASTWISE CARRIAGE OF GOODS

6. Appointment of places of entry, authorized roads and routes, etc.

(1)     The Commissioner may, subject to such conditions as he may specify, by rule appoint or prescribe –

(a)     places to be places of entry for the Republic, through which goods may be imported or exported or where goods may be landed for transit or coastwise carriage, where foreign-going ships may call, where persons entering or leaving the Republic may disembark or embark or where goods may be entered for customs and excise purposes;

(b)     the roads or routes (including railways) over which persons may enter or leave the Republic or imported goods or goods intended for export or transit carriage may enter or leave the Republic or may be carried from any one point to any other point or means of carriage of such goods;

(c)     places as warehousing places where customs and excise warehouses may be established;

(d)     places for such particular and limited purposes and for such periods as may be specified;

(e)     places to be customs and excise airports at which aircraft entering the Republic shall first land, from which aircraft leaving the Republic shall finally depart, through which goods may be imported or exported or where goods may be landed for transit or coastwise carriage or where persons entering or leaving the Republic may disembark or embark;

(f)     places at appointed places of entry or at customs and excise airports for the landing or embarkation of persons and the landing, loading or examination of goods (including baggage);

(g)     places where secure premises to be known as transit sheds may be established into which goods before due entry thereof, may be removed from a ship, aircraft or vehicle or to which such goods may be removed after removal from such ship, aircraft or vehicle.

[Paragraph (g) substituted by section 116 of Act 60 of 2001 and section 134 of Act 45 of 2003]

(gA)  wharfs on which goods imported or exported which are not containerised, including goods in bulk, may be landed from or loaded into any ship by, and be under the control of, a wharf operator;

[Paragraph (gA) inserted by section 116 of Act 60 of 2001]

(h)     entrances and exits, general or special, to or from any dock or wharf area or customs and excise airport;

(hA)  container terminals where containers may be landed for transit, coastwise carriage, delivery to a container depot or, after their contents have been duly entered, delivery to importers, or where containers may be shipped for export;

[Paragraph (hA) inserted by section 2 of Act 71 of 1975]

(hB)  places where container depots may be established for the storage, detention, unpacking or examination of containers or the contents of containers, for the delivery to importers of the contents of containers after such contents have been duly entered or for the packing of containers for export;

[Paragraph (hB) inserted by section 2 of Act 71 of 1975]

(hC)  places where degrouping depots may be established to which air cargo may be removed before due entry thereof, for purposes of-

(i)      the storage, detention, unpacking or examination of consolidated packing or its contents;

(ii)     the removal to another such degrouping depot or the delivery to importers of such contents after due entry thereof;

(iii)     the packing or consolidation and removal thereof to a transit shed for export; and

(iv)     such other activities as may be specified by rule;

[Para. (hC) inserted by section 116(1)(c) of Act 60 of 2001 and substituted by section 134(b) of Act 45 of 2003 and by section 12 of Act 21 of 2021 effective on 19 January 2022]

(i)      the hours during which any place, road, route, shed, entrance or exit appointed or prescribed under any paragraph of this subsectionection may be used for the purposes specified in such paragraph.

(1A)  Any place outside the Republic may be deemed by the Commissioner to be a place of entry for the Republic through which goods may be imported or exported, where goods may be landed for transit or coastwise carriage or where goods may be entered for customs and excise purposes.

[Subsection (1A) inserted by section 1 of Act 52 of 1986]

(2)     If any places, roads, routes, means of carriage, sheds, entrances, exits or container terminals, as the case may be, have been appointed or prescribed by the Commissioner under any paragraph of subsection (1), only such places, roads, routes, means of carriage, sheds, entrances, exits or container terminals so appointed or prescribed may, subject to the provisions of subsection (3), be used or employed for the purposes for which they have been so appointed or prescribed under such paragraph, and if any hours have been prescribed under paragraph (i) of subsection (1) during which any place, road, route, shed, entrance or exit referred to in the said paragraph (i) may be used, such place, road, route, shed, entrance or exit shall be used only during such hours.

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

(3)     ……….

[Subsection (3) deleted by section 6 of Act 59 of 1990]

(4)     ……….

[Subsection (4) deleted by section 6 of Act 59 of 1990]

(5)     The owner or occupier of a transit shed appointed in terms of this section shall, if required by the Commissioner, provide accommodation for any officer whom the Commissioner considers it necessary to station at such shed.

[Subsection (5) substituted by section 3 of Act 45 of 1995]

6A.      Special provisions in respect of customs controlled areas

 

(1)     The Commissioner may control the importation, exportation, manufacture or use of goods and the movement of persons or goods in a customs controlled area.

 

(2)     The Commissioner may after consultation with any person or authority who administers any activity in any customs controlled area, determine the manner in which any such controlled area –

 

(a)     must be secured; and

(b)     must be signposted so as to give persons present in the area a clear indication that it is an area under customs control.

 

(3)    

 

(a)     An officer stationed at an entrance or exit contemplated in section 6(1)(h) may stop any person from entering or leaving a customs controlled area and he or she may search such person or a vehicle under the control of such person.

 

(b)     If such person fails to stop, the officer may take such action, including the use of force, as may reasonably be necessary to stop such person or vehicle.

 

(4)     Any person entering, leaving or present in a customs controlled area must comply with such controls and procedures as the Commissioner may prescribe by rule.

 

(5)     The Commissioner may by rule –

 

(a)     specify the limits of any customs controlled area;

(b)     prescribe –

(i)      any conditions relating to the entry or exit of goods and persons into or from a customs controlled area;

(ii)     measures relating to the appropriate identification of persons entering, present in or leaving a customs controlled area;

(iii)    any other matter which is necessary to prescribe or useful to achieve the efficient and effective control of goods and persons in a customs controlled area.

[Section 6A inserted by section 11 of Act 21 of 2006]

7. Report of arrival or departure of ships or aircraft

 

(1)     The master of any ship arriving at any place of entry appointed in terms of section 6, whether laden or in ballast, shall within 24 hours after the ship’s arrival, unless the Controller has given permission to the contrary, and the pilot of any aircraft arriving in the Republic, whether with or without goods or passengers, shall within three hours after landing at any place appointed as a customs and excise airport in terms of the said section 6 or within such further time as the Controller may allow –

 

(a)     make due report in writing as may be prescribed by rule of the arrival, with as many duplicates or extracts as the Controller may require;

[Paragraph (a) substituted by section 4 of Act 45 of 1995]

(b)     make and subscribe to a declaration as to the truth of the report before the Controller and answer all such questions concerning the ship or aircraft, the cargo and stores, and the crew, passengers and voyage or flight as may be put to him by the Controller; and

(c)     produce, if required, the official log books for the voyage or flight, the stowage plans and any other documents in his possession relating to the cargo, stores, crew, passengers and voyage or flight.

[Subsection (1) amended by section 4 of Act 98 of 1980]

 

(1A) 

 

(a)     The master of a foreign-going ship shall not call at any place in the Republic other than a place of entry appointed in terms of section 6 and the pilot of an aircraft arriving in the Republic shall, unless the Commissioner has granted him special permission to land elsewhere, make his first landing at a place appointed as a customs and excise airport in terms of section 6: Provided that the provisions of this subsection shall not apply if the master or pilot, as the case may be, is forced by circumstances beyond his control to call or land at a place not so appointed and he reports to the Controller nearest to the place where he was so forced to call or land or to the Controller at the first place of entry or customs and excise airport appointed in terms of section 6 at which he next arrives.

(b)     Such master or pilot who is forced by circumstances beyond his control to call or land at a place in the Republic not appointed as a place of entry in terms of section 6 shall take all precautions necessary to prevent any contravention of this Act in respect of any goods on or in such ship or aircraft.

[Subsection (1A) inserted by section 7 of Act 59 of 1990]

 

(1B)  Notwithstanding subsections (1) and (1A), an arrival report and a schedule report or departure report relating to any foreign-going ship or aircraft calling at any place in the Republic shall be submitted electronically by such persons at such times as may be prescribed by rule.

[Subsection (1B) inserted by section 12 of Act 21 of 2006]

 

(2)      ……….

[Subsection (2) amended by section 3 of Act 71 of 1975 and section 1 of Act 101 of 1985 and deleted by section 4 of Act 45 of 1995]

 

(2A)  Subject to the provisions of section 9, any goods which have not been recorded in any manifest or list of containers as may be prescribed by rule shall be declared to the Controller and delivered to him.

[Subsection (2A) inserted by section 3 of Act 105 of 1969 and substituted by section 4 of Act 45 of 1995]

 

(3)     The master of any ship and the pilot of any aircraft bound from any place within to any place outside the Republic shall appear before the Controller and deliver to him a report outwards as may be prescribed by rule together with a full account of the cargo laden on board that ship or aircraft and shall make and subscribe to a declaration as to the truth of such report and account and answer all such questions as may be put to him by the Controller.

[Subsection (3) substituted by section 3 of Act 105 of 1969, section 1 of Act 105 of 1976 and section 4 of Act 45 of 1995]

 

(4)      ……….

[Subsection (4) deleted by section 1 of Act 105 of 1976]

 

(5)     The provisions which shall apply in connection with the departure of any ship or foreign-going aircraft from any place within to any other place within the Republic shall be as prescribed by rule.

[Subsection (5) substituted by section 4 of Act 45 of 1995]

 

(6)    

 

(a)     The master of a ship or the pilot of a foreign-going aircraft shall not cause or permit the ship or aircraft to depart from any appointed place of entry or any place appointed as a customs and excise airport without first obtaining a certificate of clearance as may be prescribed by rule or transire for the intended voyage or flight from the Controller, and the master or pilot, as the case may be, shall not after departure call or land at any place in the Republic other than an appointed place of entry or a place appointed as a customs and excise airport, unless forced to do so by stress of weather, accident or other circumstances beyond his control.

(b)     The provisions which shall apply where such master or pilot has been so forced to call or land at a place other than an appointed place of entry or a place appointed as a customs and excise airport shall be as prescribed by rule.

[Subsection (6) substituted by section 4 of Act 45 of 1995]

 

(7)     If a ship or aircraft in respect of which a clearance has been issued at any place in terms of this section does not depart from that place within thirty-six hours of the time when the clearance was issued, or within such further time as the Controller may allow, such clearance shall lapse and the master or pilot shall obtain fresh clearance before causing or permitting the ship or aircraft to depart.

 

(8)     ……….

[Subsection (8) deleted by section 4 of Act 45 of 1995]

 

(9)     The master of a ship or the pilot of an aircraft may, with the permission of the Controller and subject to such conditions as he may impose, retain on board goods consigned to any port or airport for landing at any other port or airport or land at any port or airport goods not consigned thereto.

[Subsection (9) substituted by section 4 of Act 45 of 1995]

 

(10)  

 

(a)     The Controller may grant transires, on such conditions as he may impose, in respect of any ship exclusively engaged in activities as may be prescribed by rule.

(b)     The Controller may by notice to the master or owner of the ship or any member of the crew on board such ship revoke any such transire.

[Subsection (10) substituted by section 4 of Act 45 of 1995]

 

(11)   The Commissioner may exempt by rule any ship or aircraft or any class or kind of ship or aircraft from all or any of the provisions of this section.

[Subsection (11) substituted by section 4 of Act 45 of 1995]

7A.      Special provisions relating to Advance Passenger Information

(1)     In this section and the rules thereto, unless the context indicates otherwise-

“Advance Passenger Information” means an electronic message, including any updated or revised version thereof, transmitted to the Commissioner by an operator within the periods and containing the particulars the Commissioner may prescribe by rule;

“airline” means any air transport enterprise offering or operating an international air passenger service to and from the Republic;

“operator” means the person having the management of an aircraft at any time, and includes any airline or the person who owns or hires such aircraft or in whose name the aircraft is registered in terms of the regulations made under the Aviation Act, 1962 (Act No. 74 of 1962);

“operator system information” means any information an operator keeps electronically relating to-

(a)     any flights scheduled by the operator (including information about schedules, aircraft arrival and departure terminals and routes);

(b)     persons taking, or proposing to take, any flights scheduled by the operator;

(c)     baggage, cargo or anything else carried, or proposed to be carried, on any flights scheduled by the operator and the tracking and handling of those things;

“passenger” means a person arriving on an aircraft from a place outside the Republic or departing on an aircraft to a place outside the Republic and includes, unless the context otherwise indicates, a crew member.

(2)     The operator of any aircraft referred to in section 7(1) or (3) shall transmit electronically Advance Passenger Information which may be used by the Commissioner for the purposes of-

(a)     facilitating the processing of passengers arriving or departing on such aircraft;

(b)     preventing, detecting, investigating or punishing any offences committed under this Act or any other law by such passengers;

(c)     facilitating any border security measures at an international airport; or

(d)     protecting the health and safety of passengers and members of the public.

(3)     Any Advance Passenger Information shall be subject to compliance with section 101B.

(4)     The operator shall communicate Advance Passenger Information within the periods the Commissioner may prescribe by rule.

(5)

(a)     An operator of an aircraft contemplated in subsection (2), may apply to the Commissioner for an extension regarding the obligation to communicate electronically Advance Passenger Information to the Commissioner if-

(i)      such an application is delivered to the Commissioner-

(aa)   within a period of one month from the date this section comes into operation; or

(bb)   if the first flight to or from the Republic is after that date, within one month from the date of such flight;

(ii)     the operator shows good cause as to why the extension is necessary;

(iii)    the operator demonstrates when he or she will be able to comply with this section; and

(iv)    the operator complies with such conditions and interim measures as the Commissioner may impose.

(b)     An operator who has been granted an extension as contemplated in paragraph (a), shall provide officers with ongoing access to that operator’s operator system information for the duration of the extension.

(6)     Nothing in this section-

(a)     affects any existing obligation imposed under this Act on a person to report or declare the arrival or departure of an aircraft (whether scheduled or actual) and any goods carried on, or passengers travelling on, such an aircraft;

(b)     limits or alters any of the powers conferred on officers under this Act.

(7)     Any person who-

(a)     is required by this section to submit and fails to submit Advance Passenger Information in respect of a flight or a passenger on that flight;

(b)     dishonestly or fraudulently prepares, transmits or alters any Advance Passenger Information; or

(c)     is a passenger and furnishes passenger information which he or she knows is false in a material respect,

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 a fine and such imprisonment.

(8)     The Commissioner may make rules-

(a)     as to all matters required or permitted by this section to be prescribed by rule;

(b)     in respect of any other matter which the Commissioner may consider reasonably necessary and useful for the efficient and effective administration of the provisions contained in this section.

[Section 7A inserted by section 27 of act 61 of 2008]

“Advance Passenger Information” means an electronic message, including any updated or revised version thereof, transmitted to the Commissioner by an operator within the periods and containing the particulars the Commissioner may prescribe by rule;

“airline” means any air transport enterprise offering or operating an international air passenger service to and from the Republic;

“operator system information” means any information an operator keeps electronically relating to-

(a)     any flights scheduled by the operator (including information about schedules, aircraft arrival and departure terminals and routes);

(b)     persons taking, or proposing to take, any flights scheduled by the operator;

(c)     baggage, cargo or anything else carried, or proposed to be carried, on any flights scheduled by the operator and the tracking and handling of those things;

“operator” means the person having the management of an aircraft at any time, and includes any airline or the person who owns or hires such aircraft or in whose name the aircraft is registered in terms of the regulations made under the Aviation Act, 1962 (Act No. 74 of 1962);

“passenger” means a person arriving on an aircraft from a place outside the Republic or departing on an aircraft to a place outside the Republic and includes, unless the context otherwise indicates, a crew member.

7A.      Special provisions relating to Advance Passenger Information

(1)     In this section and the rules thereto, unless the context indicates otherwise-

(2)     The operator of any aircraft referred to in section 7(1) or (3) shall transmit electronically Advance Passenger Information which may be used by the Commissioner for the purposes of-

(a)     facilitating the processing of passengers arriving or departing on such aircraft;

(b)     preventing, detecting, investigating or punishing any offences committed under this Act or any other law by such passengers;

(c)     facilitating any border security measures at an international airport; or

(d)     protecting the health and safety of passengers and members of the public.

(3)     Any Advance Passenger Information shall be subject to compliance with section 101B.

(4)     The operator shall communicate Advance Passenger Information within the periods the Commissioner may prescribe by rule.

(5)

(a)     An operator of an aircraft contemplated in subsection (2), may apply to the Commissioner for an extension regarding the obligation to communicate electronically Advance Passenger Information to the Commissioner if-

(i)      such an application is delivered to the Commissioner-

(aa)   within a period of one month from the date this section comes into operation; or

(bb)   if the first flight to or from the Republic is after that date, within one month from the date of such flight;

(ii)     the operator shows good cause as to why the extension is necessary;

(iii)    the operator demonstrates when he or she will be able to comply with this section; and

(iv)    the operator complies with such conditions and interim measures as the Commissioner may impose.

(b)     An operator who has been granted an extension as contemplated in paragraph (a), shall provide officers with ongoing access to that operator’s operator system information for the duration of the extension.

(6)     Nothing in this section-

(a)     affects any existing obligation imposed under this Act on a person to report or declare the arrival or departure of an aircraft (whether scheduled or actual) and any goods carried on, or passengers travelling on, such an aircraft;

(b)     limits or alters any of the powers conferred on officers under this Act.

(7)     Any person who-

(a)     is required by this section to submit and fails to submit Advance Passenger Information in respect of a flight or a passenger on that flight;

(b)     dishonestly or fraudulently prepares, transmits or alters any Advance Passenger Information; or

(c)     is a passenger and furnishes passenger information which he or she knows is false in a material respect,

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 a fine and such imprisonment.

(8)     The Commissioner may make rules-

(a)     as to all matters required or permitted by this section to be prescribed by rule;

(b)     in respect of any other matter which the Commissioner may consider reasonably necessary and useful for the efficient and effective administration of the provisions contained in this section.

[Section 7A inserted by section 27 of act 61 of 2008]

8. Cargo reports

(1)     Notwithstanding the provisions of sections 7 and 12, the Commissioner may by rule prescribe requirements in respect of the report of cargo and may prescribe that-

(a)     any report including any manifest or other report listing and describing cargo carried by or loaded or to be loaded on to any ship, or vehicle arriving at or departing from any place in the Republic, as the case may be; or

(b)     any outturn report or other report concerning goods landed from or unpacked from or packed into or loaded on to or to be packed into or to be loaded on to any such ship or vehicle, as the case may be; or

(c)     any outturn report or other report in respect of any imported goods received or unpacked while under the control of any person after landing thereof at any place licensed in terms of this Act,

shall be in such form containing such particulars and shall be submitted to the Controller by such person in such circumstances and at such times as may be specified in such rule.

(2)     Where the Commissioner prescribes that any report must be submitted prior to cargo for export being packed into or loaded on to a ship or vehicle, no cargo shall be so packed or loaded before-

 

(a)     such report is received by the Controller; and

(b)     release of the cargo has been granted as prescribed in the rules.

 

(3)    

(a)     Any such outturn report or other report shall reflect full particulars concerning any excess or deficiency in respect of any goods landed, received, unpacked, packed or loaded, as the case may be, according to any manifest or other report contemplated in subsection (1).

 

(b)     Where any imported goods reported in any manifest or other report are not landed or-

 

(i)      any such goods not reported are landed; or

(ii)     any container or package is landed with visible evidence of tampering or any deficiency is suspected,

 

any person completing any outturn report on landing of the goods shall examine and report on such goods in the presence of the carrier or the agent of the carrier, as my be prescribed by rule.

 

(4)    

(a)     Any exporter who-

 

(i)      packs or loads cargo or causes cargo to be packed or loaded in contravention of subsection (2); or

 

(ii)     fails to report cargo or makes any false or misleading statement in connection with any report to which this section relates,

 

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.

 

(b)     Such cargo shall be liable to forfeiture in accordance with the provisions of this Act.

[Section 8 repealed by section 8 of Act 59 of 1990 and inserted by section 36 of Act 19 of 2001 and substituted by section 11 of Act 9 of 2007]

9. Sealing of goods on board ships or aircraft

(1)     On arrival of any ship at any place in the Republic –

(a)     the master thereof shall declare as prescribed by rule all sealable goods on board the ship which are unconsumed stores of such ship; and

(b)     the master and every member of the crew thereof shall declare as prescribed by rule all sealable goods which are his personal property or in his possession,

and the Controller may seal up all such sealable goods.

[Subsection (1) substituted by section 2 of Act 101 of 1985 and section 5 of Act 45 of 1995]

(2)     The Controller may permit surplus stores to be entered for home consumption or for warehousing.

(3)     For the purposes of this section “sealable goods” means any goods which are prescribed by rule to be saleable goods.

[Subsection (3) substituted by s.5 of Act 45 of 1995]

(4)     The Controller may, by direction of the Commissioner, in addition to sealable goods, seal up any goods which are unconsumed stores of any ship or aircraft or which are in the possession of the master or pilot of such ship or aircraft or of any member of the crew thereof or of any passenger on board thereof.

(5)     While the ship or aircraft in question remains at any place in the Republic, no person shall, except in accordance with the rules break or disturb any seal placed by the Controller on any goods in terms of this section.

(6)     Except as provided in subsectionection (2), no stores of any nature may be landed without the permission of the Controller and all goods acquired on a ship or aircraft shall, if landed, be declared to the Controller for purposes of payment of any duty due thereon.

(7)     The Commissioner may exempt any ship or aircraft or exempt by rule any class or kind of ship or aircraft from all or any of the provisions of this section.

[Subsection (7) inserted by section 5 of Act 45 of 1995]

10. When goods deemed to be imported

 

(1)     For the purposes of this Act all goods consigned to or brought into the Republic shall be deemed to have been imported into the Republic –

 

(a)     in the case of goods consigned to a place in the Republic in a ship or aircraft, at the time when such ship or aircraft on the voyage or flight in question, first came within the control area of the port or airport authority at that place, or at the time of the landing of such goods at the place of actual discharge thereof in the Republic if such ship or aircraft did not on that voyage or flight call at the place to which the goods were consigned or if such goods were discharged before arrival of such ship or aircraft at the place to which such goods were consigned;

(b)     in the case of goods not consigned to a place in the Republic but brought thereto by and landed therein from a ship or aircraft, at the time when such goods were so landed;

(c)     subject to the provisions of subsectionection (2), in the case of goods brought to the Republic overland, at the time when such goods entered the Republic;

(d)     in the case of goods brought to the Republic by post, at the time of importation in terms of paragraph (a), (b) or (c) according to the means of carriage of such goods; and

(e)     in the case of goods brought to the Republic in any manner not specified in this section, at the time specified in the General Notes to Schedule No. 1 or, if no such time is specified in the said General Notes in respect of the goods in question, at the time such goods are considered by the Commissioner to have entered the Republic.

[Paragraph (e) added by section 2 of Act 57 of 1966]

 

(2)     For the purposes of subsection (1), a place outside the Republic deemed by the Commissioner under section 6(1A) or 50A to be a place of entry for goods consigned to the Republic, shall be deemed to be a place in the Republic in respect of goods consigned to or entered at such place for removal to the Republic overland.

[Subsection (2) substituted by section 2 of Act 52 of 1986 and section 6 of Act 36 of 2007]

11. Landing of unentered goods

(1)     All goods imported into the Republic by ship or aircraft shall, if landed before due entry thereof, be placed in a transit shed, container terminal, container depot or State warehouse, or removed to any other place approved by the Controller.

(2)     All goods landed from a ship or aircraft before due entry of such goods and placed in a transit shed or other approved place in accordance with the provisions of subsection (1) shall be deemed to be still in the ship or aircraft, and as long as such goods remain in such shed or place, the master or pilot, as the case may be, shall remain responsible therefor in all respects and liable for the duty thereon as if the goods had not been removed from such ship or aircraft.

[Section 11 amended by section 2 of Act 105 of 1976 and substituted by section 6 of Act 45 of 1995]

12. Goods imported or exported overland

(1)    

(a)     Where any goods are imported by train the railway authority concerned shall furnish the Controller with which documents as may be prescribed by rule relating to such goods.

(b)     The station master or other person in control of railway premises shall not permit any such goods to be removed from such premises before due entry thereof unless the Controller allows such goods to be so removed, subject to such conditions as he may in each case impose, before such entry.

[Subsection (1) amended by section 10 of Act 59 of 1990 and substituted by section 7 of Act 45 of 1995]

(2)     The conductor, guard or other person in charge of a train shall on demand by any officer furnish him with all information at his disposal in respect of any goods on such train.

(3)    

(a)     The person in charge of any vehicle (other than an aircraft or a railway train) whether or not conveying any goods, which arrives by land at any place in the Republic shall come to the office of the Controller nearest to the point at which he crossed the border or the office of the Controller which is most conveniently situated in relation to that point before unloading any goods or in any manner disposing of such vehicle or goods, and make a full written report to such Controller concerning the vehicle or goods, the journey and the destination of the goods, and shall make and subscribe to a declaration as to the truth of the report.

(b)     Such persons shall fully and truthfully answer all questions put to him and produce any way-bills or other documents demanded of him by such Controller.

(4)     No person shall remove a vehicle referred to in subsection (3) from the office referred to in that subsection until due entry has been made of such vehicle and the goods carried thereon or until permission for removal has been granted by the Controller.

(5)    

(a)     Every person arriving in the Republic overland, on foot or otherwise shall, whether or not he has any goods in his possession, come to the office of the Controller nearest to the point at which he crossed the border or the office of the Controller which is most conveniently situated in relation to that point, and there report to the Controller the circumstances in which he entered the Republic.

(b)     If he has any goods in his possession, he shall furnish the said Controller with full particulars thereof, and shall fully and truthfully answer all questions put to him by such Controller.

(c)     Such person shall not in any manner dispose of any goods in his possession until they have been released by the Controller.

(6)     The provisions of subsection (5) shall not apply to persons arriving in the Republic by train or by air who pass through or disembark at a place where a Controller is stationed.

(7)     No person in charge of any vehicle (other than an aircraft or a train), whether or not conveying any goods for exportation overland shall remove any such vehicle or goods beyond the borders of the Republic unless due entry has been made of such vehicle and the goods carried thereon or permission for removal has been granted by the Controller.

[Subsection (7) substituted by section 7 of Act 45 of 1995]

(8)     The controller may grant a general permission to any person referred to in subsections (4) and (7) in respect of such vehicles.

[Subsection (8) added by section 7 of Act 45 of 1995]

13. Goods imported or exported by post

 

(1)     For the purposes of entry and collection of duty on goods imported into the Republic by post, any form or label completed by the sender in respect of the postal item in question and on which the particulars necessary for the assessment of duty are set forth, shall be deemed to be an entry made under the provisions of this Act, and the particulars on any such form or label shall, for the purposes of this Act, be taken as the declaration to be made by the importer under section 38: Provided that the Commissioner may by rule exclude from the provisions of this subsection any goods of a class or kind specified in such rule or any such goods imported in circumstances so specified.

[Subsection (1) substituted by section 3 of Act 101 of 1985 and section 8 of Act 45 of 1995]

 

(2)     ……….

[Subsection (2) substituted by section 2 of Act 112 of 1977 and deleted by section 3 of Act 101 of 1985]

 

(3)    

 

(a)     Notwithstanding anything contained in subsection (1), any goods imported by post which the addressee desires to enter for warehousing, or for removal or export in bond, or under any heading or item of Schedule No. 1 which requires that a certificate be given or a condition be complied with, or under any item of Schedule No. 3, or under any item of Schedule No. 2 or 4 unless exempted by the Commissioner by rule, shall be so entered at a customs and excise office before a Controller.

(b)     Notwithstanding anything contained in subsection (1), any goods imported by post by such class of addressee, or any goods imported by post and of such class or kind, as may be prescribed by the Commissioner by rule, shall be entered at a customs and excise office before a Controller.

[Subsection (3) substituted by section 3 of Act 57 of 1966, section 5 of Act 105 of 1969 and section 3 of Act 101 of 1985, amended by section 3 of Act 52 of 1986 and section 11 of Act 59 of 1990 and substituted by section 8 of Act 45 of 1995]

 

(4)    

 

(a)     In the case of goods exported by post, any form or label affixed to or completed in respect of a postal item and on which a description of the contents and their value are set forth, shall be deemed to be a bill of entry for export as required by this Act.

(b)     Notwithstanding the provisions of paragraph (a), the Commissioner may prescribe by rule goods which shall be entered for export at a customs and excise office before a Controller.

[Subsection (4) substituted by section 3 of Act 101 of 1985 and section 8 of Act 45 of 1995]

 

(5)     Notwithstanding anything contained in subsection (1) or in any other law but subject to the provisions of subsection (3), any person importing goods by post shall submit the invoice in respect of such goods to the postmaster concerned, and no person shall receive, remove, take, deliver or in any manner deal with or in such goods unless the correct duty has been paid to that postmaster.

[Subsection (5) added by section 3 of Act 52 of 1986]

 

(6)     Any postmaster may at any time detain any imported postal item under his control and cause such postal item to be removed to the Controller, who may examine such postal item, and if the goods therein are found not to agree in all respects with the particulars relating to the value, description or quantity appearing on the form or label referred to in subsection (1) or the invoice concerned, such goods shall notwithstanding anything to the contrary in any other law contained be liable to forfeiture.

[Subsection (6) added by section 3 of Act 52 of 1986 and substituted by section 8 of Act 45 of 1995]

14. Coastwise traffic and coasting ships

(1)     The conveyance of goods by ship between the coastal ports of the Republic shall be deemed to be coastwise traffic and all ships employed in such traffic shall be deemed to be coasting ships: Provided that no ship arriving from a place outside the Republic, although bound for more than one coastal port in the Republic and no ship clearing from any coastal port in the Republic for a port outside the Republic, although bound for one or more intermediate coastal ports in the Republic, shall be deemed a coasting ship nor shall its voyage between ports in the Republic be deemed a coastwise voyage.

(2)     A foreign-going ship may also carry coastwise goods while on a voyage between ports in the Republic subject to the rules relating to such goods.

[Subsection (2) substituted by section 9 of Act 45 of 1995]

(3)      ……….

[Subsection (3) deleted by section 9 of Act 45 of 1995]

(4)     Any dutiable goods which have not been entered for home consumption shall –

(a)     not be loaded on board any ship for carriage coastwise unless they have been entered for removal or deemed to have been so entered in terms of this Act; and

(b)     be reported by the master to the Controller at the port of discharge in the Republic as prescribed by rule.

[Subsection (4) added by section 9 of Act 45 of 1995]

15. Persons entering or leaving the Republic and smugglers

(1)     Any person entering or leaving the Republic shall, in such a manner as the Commissioner may determine, unreservedly declare –

(a)     at the time of such entering, all goods (including goods of another person) upon his person or in his possession which-

[Words preceding subparagraph (i) substituted by section 29 of Act 61 of 2008]

(i)      were purchased or otherwise acquired abroad or on any ship, vehicle or in any shop selling goods on which duty has not been paid;

(ii)     were remodelled, processed or repaired abroad;

(iii)    are prohibited, restricted or controlled under any law; or

(iv)    were required to be declared before leaving the Republic as contemplated in paragraph (b).

[Subparagraph (iv) inserted by section 20 of Act 34 of 2004]

(b)     before leaving, all goods which he or she proposes taking with him or her beyond the borders of the Republic, including goods which are-

(i)      carried on behalf of another person;

(ii)     intended for remodel, process or repair abroad;

(iii)    prohibited, restricted or controlled under any law; or

(iv)    goods which a person who temporarily entered the Republic was required to declare upon entering the Republic as contemplated in paragraph (a)(iv).

[Paragraph (b) substituted by section 29 of Act 61 of 2008]

[Subsection (1) substituted by section 2 of Act 98 of 1970, section 2 of Act 89 of 1984, section 4 of Act 101 of 1985 and section 12 of Act 59 of 1990]

(1A)  Any declaration made in terms of subsection (1) shall, for the purposes of this Act, be deemed to be an entry for home consumption or export, as the case may be.

[Subsection (1A) inserted by section 4 of Act 101 of 1985]

(2)     The Controller shall have the power, in all cases where a person is detected or is concerned in or is suspected by the Controller of an attempt to import, export, land, ship or remove goods illegally or to evade the payment of duties on any goods, forthwith to take the person concerned before a magistrate’s court to be summarily or otherwise dealt with, or to secure such person in a police station or other suitable place, until he can be taken before such court.

16. Opening of packages in absence of importer or exporter

The Controller may in the absence of the importer or exporter of any package imported into or landed in or exported from or suspected by the Controller to have been imported into or landed in or exported from the Republic, open and examine such package at the importer’s or exporter’s risk and expense: Provided that wherever possible the Controller shall first make all reasonable efforts to ascertain the whereabouts of such importer or exporter and afford the said importer or exporter the opportunity of himself appearing before the Controller and opening the package in question.

[Section 16 substituted by section 3 of Act 68 of 1989]

17. State warehouse

(1)

(a)     Whenever any goods are taken to and secured in any State warehouse, the Commissioner may require rent to be paid for such period as the goods remain therein, at the rates fixed by rule.

(b)     Goods removed from the State warehouse shall be subject to the rate in force at the time of payment of the rent.

[Subsection (1) substituted by section 86 of Act 31 of 2005]

(1A)     Whenever any goods are taken to and secured in any State warehouse, the Commissioner may require rent to be paid for such period as the goods remain therein, at the rates fixed by rule.

(2)     Any officer who has the custody of any goods in any State warehouse may refuse delivery thereof from such warehouse until he has been furnished with proof that –

(a)     the person claiming the goods is lawfully entitled to such goods;

(b)     all relevant provisions of this Act or any law relating to the importation or exportation or transit or coastwise carriage of goods have been complied with;

(c)     freight and other charges (including landing and wharfage charges) and rent due in respect of the goods have been paid.

[Subsection (2) amended by section 10 of Act 45 of 1995]

(3)     The State or any officer shall in no case be liable in respect of any loss or diminution of or damage to any goods in a State warehouse or in respect of any loss or damage sustained by reason of wrong delivery of such goods.

[Subsection (3) substituted by section 3 of Act 110 of 1979]

(4)     If a warrant or permission for the removal of any goods from a State warehouse has been granted by the Controller, and the person to whom such warrant or permission has been granted does not immediately remove the said goods from the warehouse, they may, notwithstanding any other provisions of this Act, be dealt with as if they were goods in respect of which entry has not been made under the provisions of this Act.

[Subsection (4) substituted by section 10 of Act 45 of 1995]

18. Removal of goods in bond

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

(a)     except as otherwise prescribed by rule –

(i)      the importer or owner of any imported goods landed in the Republic;

(ii)     the licensee of any customs and excise manufacturing ware house in which excisable or fuel levy goods are manufactured;

(iii)    the licensee of any storage warehouse in which excisable or fuel levy goods are stored;

(iv)    the licensee or owner of any imported goods stored in a customs and excise storage warehouse; or

(v)     any clearing agent licensed in terms of section 64B appointed by such importer, owner of licensee,

may enter such goods for removal in bond and may remove such goods or cause such goods to be removed –

(aa)   in the case of goods contemplated in subparagraph (i), to any place in the Republic appointed as a place of entry or warehousing under this Act or to any place outside the Republic: Provided that any goods which are in transit through the Republic as contemplated in subsection (1A), may only be so entered and removed or caused to be so removed by such licensed clearing agent; or

(bb)   in the case of goods contemplated in subparagraphs (ii), (iii) or (iv), to any warehousing place in the Republic or to any place in any other country in the common customs area appointed as a warehousing place for rewarehousing at that place in another such warehouse.

[Paragraph a) substituted by section 6 of Act 105 of 1969 and section 4 of Act 84 of 1987, amended by section 13 of Act 59 of 1990 and substituted by section 37 of Act 19 of 2001 and section 102 of Act 74 of 2002]

(b)     the master of a ship or pilot of an aircraft from which any goods were landed at a place in the Republic to which such goods were not consigned may remove such goods in bond to the place to which they were consigned provided evidence is produced to the Controller before entry for removal of the identity of such goods and that the goods in question were consigned to the place to which they are proposed to be removed;

[Paragraph (b) substituted by section 37 of Act 19 of 2001]

(c)     except if the Commissioner determines otherwise by rule, the owner of or any person beneficially interested in any goods which are in transit through the Republic from any other territory in Africa to any place outside the Republic may remove such goods in bond from the place where they entered the Republic to the place where they are destined to leave the Republic;

[Paragraph (c) substituted by section 37 of Act 19 of 2001]

(d)     a container operator may remove any container in bond to the container depot licensed in terms of section 64A, or to the container terminal contemplated in section 6(1)(hA), to which it was consigned, without furnishing the security provided for in subsection (6) of this section, and the manifest of the goods packed in such container shall be deemed to be due entry for removal in bond of that container;

[Paragraph (d) added by section 4 of Act 71 of 1975 and substituted by section 3 of Act 112 of 1977, by section 11(a) of Act 45 of 1995 and by section 11 of Act 24 of 2020]

(e)     the pilot of any aircraft may remove in bond any goods landed from any aircraft at a place in the Republic and for which an air cargo transfer manifest has been completed, to their place of entry for the Republic, without furnishing the security provided for in subsection (6), and such air cargo transfer manifest shall be deemed to be due entry for removal in bond of such goods.

[Paragraph (e) added by section 4 of Act 71 of 1975 and substituted by section 11 of Act 45 of 1995]

(f)     Any goods entered for removal in bond may, except if exempted by rule, when carried by road only be transported b a licensed remover of goods in bond contemplated in section 64D whether or not the goods are wholly or partly transported by road.

[Paragraph (f) added by section 102 of Act 74 of 2002]

(1A)  For the purposes of subsection (1)(a) imported goods landed in the Republic includes goods in transit through the Republic which are destined for removal to a consignee in any country outside the Republic.

[Subsection (1A) inserted by section 48 of Act 53 of 1999]

(2)     In addition to any liability for duty incurred by any person under any provision of this Act, but subject to the provisions of section 99(2), the person who enters any goods for removal in bond or who may remove in bond an goods contemplated in subsection (1) and who removes or causes such goods to be so removed, shall subject to the provisions of subsection (3), be liable for the duty on all goods which are so entered and so removed in bond.

[Subsection (2) substituted by section 102 of Act 74 of 2002]

(3)

(a)     Subject to subsection (4), any liability for duty in terms of subsection (2) shall cease if –

(i)      goods destined for a place in the common customs area, have been duly entered at that place; or

(ii)

(aa)   goods destined for a place beyond the borders of the common customs area have been duly taken out of that area; or

(bb)   in circumstances and in accordance with procedures which the Commissioner may determine by rule the goods have been duly accounted for in the country of destination.

(b)     Any person who is liable for duty as contemplated in subsection (2) must –

(i)      obtain valid proof that liability has ceased as specified in paragraph (a)(i) or (ii) within the period and in compliance with such requirements as may be prescribed by rule;

(ii)     keep such proof and other information and documents relating to such removal as contemplated in section 101 and the rules made thereunder available for inspection by an officer; and

(iii)    submit such proof and other information and documents to the Commissioner at such time and in such form and manner as the Commissioner may require; or

(iv)

(aa)   notify the Commissioner immediately if liability has not ceased as required in terms of paragraph (a)(i) or (ii) or valid proof has not been obtained as contemplated in subparagraph (i); and

(bb)   submit payment of duty and value-added tax payable in terms of the Value-Added Tax Act, 1991 (Act No. 89 of 1991), together with such notification as if the goods were entered for home consumption on the date of entry for removal in bond.

(c)     Subject to subsection (4), there shall be no liability for duty on any goods where such liability was discovered as a result of, or following upon any such inspection by an officer or a request by the Commissioner as contemplated in paragraph (b)(ii) and (iii), respectively, where that liability occurred on a date earlier than two years prior to the date on which such inspection commenced or such request was made.

[Subsection (3) amended by section 4 of Act 84 of 1987, section 11 of Act 45 of 1995 and section 119 of Act 60 of 2001 and substituted by section 26 of Act 18 of 2009]

(4)     If –

(a)     liability has not ceased as contemplated in subsection (3)(a); or

(b)     the goods have been diverted or deemed to have been diverted as contemplated in subsection (13), such person shall, except if payment has been made as contemplated in subsection (3)(b)(iv), upon demand pay –

(i)      the duty and value-added tax due in terms of the Value-Added Tax Act, 1991 (Act No. 89 of 1991), as if the goods were entered for home consumption on the date of entry for removal in bond;

(ii)     any amount that may be due in terms of section 88(2); and

(iii)    any interest due in terms of section 105:

Provided that such payment shall not indemnify a person against any fine or penalty provided for in this Act.

[Subsection (4) substituted by section 3 of Act 105 of 1976, section 11 of Act 45 of 1995 and section 26 of Act 18 of 2009]

(5)     No goods shall be removed in bond in terms of this section from the place where they were landed in the Republic or where they entered the Republic until they have been entered for removal in bond and such entry shall be deemed to be due entry in respect of such goods at that place for the purposes of this Act.

(6)     No entry for removal in bond shall be tendered by or may be accepted from a person who has not furnished such security as the Commissioner may require and the Commissioner may at any time require that the form, nature or amount of such security shall be altered in such manner as he may determine.

(7)     The removal in bond of goods shall be subject to the rules and such conditions as the Commissioner may impose in respect of such goods or any class or kind of such goods or goods removed in circumstances specified by him and the Controller may refuse to accept entry for the removal in bond of goods from a remover who has failed to comply with such rules or conditions or who has committed an offence referred to in section 80.

[Subsection (7) substituted by section 11 of Act 45 of 1995]

(8)     Goods removed in bond shall not be delivered or removed from the control of the Controller at the place of destination in the Republic except upon due entry according to the first account taken of such goods on landing or on entry for removal in bond thereof or according to the contents of the packages containing such goods as reflected on the invoice issued by the supplier in respect of such goods, and payment of any duty due, including, subject to the provisions of section 75(18), any duty due on any deficiency.

[Subsection (8) substituted by section 2 of Act 95 of 1965 and section 21 of Act 34 of 2004]

(9)     ……….

[Subsection (9) deleted by section 11 of Act 45 of 1995]

(10)   The State or any officer shall in no case be liable for any loss of or damage of whatever nature to any goods removed in bond or for any loss or damage sustained by reason of wrong removal or delivery.

(11)   Notwithstanding the provisions of this section, the Commissioner may, subject to such conditions as he may impose, in respect of goods in transit through the Republic from any other territory in Africa to any destination outside the Republic, or any class or kind of such goods or any such goods removed in bond in circumstances specified by him, allow such goods to be entered for removal in bond at a place other than the place where the goods entered the Republic.

(12)   The Commissioner may determine the roads and routes and the means of carriage of any goods removed in bond or any class or kind of such goods or any such goods carried in circumstances specified by him.

(13)

(a)

(i)      No person shall, without the permission of the Commissioner, divert any goods removed in bond to a destination other than the destination declared on entry for removal in bond or deliver such goods or cause such goods to be delivered in the Republic except into the control of the Controller at the place of destination.

(ii)     Goods shall be deemed to have been so diverted where-

(aa)   no permission to divert such goods has been granted by the Commissioner as contemplated in subparagraph (i) and the person concerned fails to produce valid proof and other information and documents for inspection to an officer or to submit such proof, information and documents to the Commissioner as required in terms of subsection (3)(b)(ii) and (iii), respectively;

(bb)   any such proof is the result of fraud, misrepresentation or non-disclosure of material facts; or

(cc)    such person makes a false declaration for the purpose of this section.

(iii)    Where any person fails to comply with or contravenes any provision of this subsection the goods shall be liable to forfeiture in accordance with this Act.

[Paragraph (a) substituted by section 26 of Act 18 of 2009]

(b)

(i)      Notwithstanding the provisions of paragraph (a), the Commissioner may, in such circumstances and subject to such conditions as the Commissioner may prescribe by rule permit goods in transit through the Republic or any class or kind of such goods to be delivered to any place approved by him for the purposes of –

(aa)   carrying out activities for the purpose of preserving or maintaining the goods;

(bb)   inspection of the goods;

(cc)   cleaning the goods;

(dd)   sorting the goods;

(ee)   tallying the goods;

(ff)    re-packing the goods;

(gg)   sealing the goods or the transport unit;

(hh)   exercising control over the movement of goods into, in and from such place; and

(ii)     any other activity that may be necessary to prepare and forward the goods for transit.

[Subparagraph (i) substituted by section 26 of Act 18 of 2009]

(ii)     The goods shall not be removed from such place to the place where they are destined to leave the Republic unless the duty on any deficiency has been paid to the Controller.

[Paragraph (b) added by section 11 of Act 45 of 1995]

(14)   The Commissioner may specify the particulars to be reflected on the entry for removal in bond and the documents to be produced by the remover upon entry for removal in bond in respect of any goods removed in bond, or any class or kind of such goods or any such goods removed in circumstances or to a destination specified by him.

18A.     Exportation of goods from customs and excise warehouse

 

(1)     Notwithstanding any liability for duty incurred thereby by any person in terms of any other provision of this Act, any person who exports any goods from a customs and excise warehouse to any place outside the common customs area shall, subject to the provisions of subsection (2), be liable for the duty on all goods which he or she so exports.

[Subsection (1) substituted by section 27 of Act 18 of 2009]

 

(2)

 

(a)     Subject to the provisions of subsection (3), any liability for duty in terms of subsection (1) shall cease if –

(i)      the said goods have been duly taken out of the common customs area; or,

(ii)     in circumstances and in accordance with procedures which the Commissioner may determine by rule, the goods have been duly accounted for in the country of destination.

(b)     An exporter who is liable for duty as contemplated in subsection (1) must –

(i)      obtain valid proof that liability has ceased as specified in paragraph (a)(i) or (ii) within the period and in compliance with such requirements as may be prescribed by rule;

(ii)     keep such proof and other information and documents relating to such export as contemplated in section 101 and the rules made thereunder available for inspection by an officer; and

(iii)    submit such proof and other information and documents to the Commissioner at such time and in such form and manner as the Commissioner may require; or

(iv)

(aa)    notify the Commissioner immediately if liability has not ceased as required in terms of paragraph (a)(i) or (ii) or valid proof has not been obtained as contemplated in subparagraph (i); and

(bb)   submit payment of duty and value-added tax payable in terms of the Value-Added Tax Act, 1991 (Act No. 89 of 1991), together with such notification as if the goods were entered for home consumption on the date of entry for export.

(c)     Subject to subsection (3), there shall be no liability for duty on any goods where such liability was discovered as a result of, or following upon, any such inspection by an officer or a request by the Commissioner as contemplated in paragraph (b)(ii) and (iii), respectively, where that liability occurred on a date earlier than two years prior to the date on which such inspection commenced or such request was made.

[Subsection (2) substituted by section 12 of Act 45 of 1995, section 120 of Act 60 of 2001 and section 27 of Act 18 of 2009]

 

(3)     If –

 

(a)     the liability has not ceased as contemplated in subsection (2)(a); or

(b)     the goods have been diverted or deemed to have been diverted as contemplated in subsection (9),

such person shall, except if payment has been made as contemplated in subsection (2)(b)(iv), upon demand pay –

(i)      the duty and value-added tax due in terms of the Value-Added Tax Act 1991 (Act No. 89 of 1991), as if the goods were entered for home consumption on the date of entry for export;

(ii)     any amount that may be due in terms of section 88(2); and

(iii)    any interest due in terms of section 105:

Provided that such payment shall not indemnify a person against any fine or penalty provided for in this Act.

[Subsection (3) substituted by section 12 of Act 45 of 1995 and section 27 of Act 18 of 2009]

 

(4)     No goods shall be exported in terms of this section –

 

(a)     until they have been entered for export; and

(b)     unless, except as otherwise provided in the rules, they are removed for export by a licensed remover in bond as contemplated in section 64D.

[Subsection (4) substituted by section 38 of Act 19 of 2001]

 

(5)     No such entry for export shall be tendered by or may be accepted from a person who has not furnished such security as the Commissioner may require, and the Commissioner may at any time require that the form, nature or amount of that security be altered in such manner as he may determine.

 

(6)     The said exportation of goods shall be subject to the rules and such conditions as the Commissioner may impose in respect of the goods concerned or any class or kind of those goods or those goods exported in circumstances specified by him, and the Controller may refuse to accept bills of entry for the said exportation of goods from an exporter who has failed to comply with the said rules or conditions or who has committed an offence referred to in section 80.

[Subsection (6) substituted by section 12 of Act 45 of 1995]

 

(7)     ……….

[Subsection (7) deleted by section 12 of Act 45 of 1995]

 

(8)     The Commissioner may determine the roads and routes and the means of carriage of any goods so exported or any class or kind of those goods or any such goods carried in circumstances specified by him.

 

(9)

 

(a)     No person shall, without the permission of the Commissioner, divert any goods for export to a destination other than the destination declared on entry for export or deliver such goods or cause such goods to be delivered in the Republic or any other country in the common customs area.

(b)     Goods shall be deemed to have been so diverted where –

(i)      no permission to divert such goods has been granted by the Commissioner as contemplated in paragraph (a) and the person concerned fails to produce valid proof and other information and documents for inspection to an officer or to submit such proof, information and documents to the Commissioner as required in terms of subsection (2)(b)(ii) and (iii), respectively;

(ii)     any such proof is the result of fraud, misrepresentation or non-disclosure of material facts; or

(iii)    such person makes a false declaration for the purpose of this section.

(c)     Where any person fails to comply with or contravenes any provision of this subsection the goods shall be liable to forfeiture in accordance with this Act.

[Subsection (9) substituted by section 27 of Act 18 of 2009]

 

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

[Section 18A inserted by section 5 of Act 84 of 1987]

CHAPTER IV

 

CUSTOMS AND EXCISE WAREHOUSES; STORAGE AND MANUFACTURE OF GOODS IN CUSTOMS AND EXCISE WAREHOUSES

19. Customs and excise warehouses

(1)     The Commissioner may license at any place appointed for that purpose under the provisions of this Act, warehouses (to be known as customs and excise warehouses) approved by him for the storage of such dutiable imported or such dutiable locally-produced goods or for the manufacture of such dutiable goods from such imported or such locally-produced materials or such imported and such locally-produced materials as he may approve in respect of each such warehouse.

[Subsection (1) substituted by section 7 of Act 105 of 1969]

(2)     Such warehouses may be licensed either for the storage of dutiable goods (to be known as customs and excise storage warehouses) or for the manufacture of dutiable goods (to be known as customs and excise manufacturing warehouses), but the Commissioner may license a storage and a manufacturing warehouse on the same premises provided they are separated in a manner approved by him.

(3)     The Controller may, in addition to any lock used by the licensee, cause any customs and excise warehouse to be locked with a State lock for such period as he deems fit, and no person shall remove or break such lock or enter such warehouse or remove any goods therefrom without the permission of the Controller while it is so locked.

(4)    

(a)     The Controller may at any time take stock of the goods in any customs and excise warehouse and duty shall, subject to the provisions of subsection (5) of section 20, forthwith be paid upon any deficiency.

(b)     If the stock is found to be greater than the quantity which should be in such warehouse, the excess shall, subject to the provisions of subsection (18) of section 75, be debited to stock and the duty thereon paid on entry for home consumption.

[Paragraph (b) substituted by section 3 of Act 95 of 1965]

(5)     The State or any officer shall in no case be liable for any loss of or damage of whatever nature to any goods in a customs and excise warehouse or for any loss or damage sustained by reason of wrong delivery of such goods.

(6)     In addition to any liability for duty incurred by any person under any other provision of this Act, the licensee of a customs and excise warehouse shall, subject to the provisions of subsection (7), be liable for the duty on all goods stored or manufactured in such warehouse from the time of receipt into such warehouse of such goods or the time of manufacture in such warehouse of such goods, as the case may be.

(7)     Subject to the provisions of subsection (8), any liability for duty in terms of subsection (6) shall cease when it is proved by the licensee concerned that the goods in question have been duly entered in terms of section 20(4) and have been delivered or exported in terms of such entry.

[Subsection (7) substituted by section 13 of Act 45 of 1995]

(8)     If the licensee concerned fails to submit any such proof as is referred to in subsection (7) within the period for which goods of that class or kind may be stored or kept in a customs and excise warehouse or if the licensee commits an offence under this Act in respect of any goods stored or kept in such warehouse he shall upon demand by the Controller forthwith pay the duty due on such goods.

[Subsection (8) substituted by section 13 of Act 45 of 1995]

(9)    

(a)     Except with the permission of the Commissioner, which shall only be granted in circumstances which he on good cause shown considers to be reasonable and subject to such conditions as he may impose in each case, no imported goods entered for storage or excisable or fuel levy goods manufactured in a customs and excise warehouse, excluding spirits or wine in the process of maturation or maceration, shall be retained in any customs and excise warehouse for a period of more than two years from the time the imported goods were first entered for storage or from the time the excisable or fuel levy goods were deemed to have been manufactured in terms of section 44(2).

(b)     ……….

[Subsection (b) deleted by section 30 of Act 61 of 2008]

[Subsection (9) added by section 13 of Act 45 of 1995 and substituted by section 39 of Act 19 of 2001]

(10)   Notwithstanding anything to the contrary contained in this Act, the Commissioner may permit the licensee of a customs and excise storage or manufacturing warehouse to make use of a computer system to record and control the manufacture of goods, goods stored or manufactured in, received into and removed from such warehouse, if the-

(a)     licensee of such warehouse is accredited in terms of section 64E; and

(b)     Commissioner is satisfied that the licensee’s computer system is capable of recording and controlling goods manufactured or stored, received and removed and identifying those goods by clear references to-

(i)      relative bills of entry processed in connection therewith;

(ii)     a prescribed certificate, invoice or other prescribed or approved document issued in respect thereof as contemplated in section 38(4) or (5); and

(c)     licensee is able to comply with any reasonable requirements the Commissioner may prescribe by rule or impose in a specific case to ensure the information contained in such a computer system is secure and is preserved in such a manner that it is readily available to be accessed by an officer for audit purposes.

[Subsection (10) added by section 30 of Act  61 of 2009 – commencement date to be proclaimed]

19A.  Special provision in respect of customs and excise warehouses in which excisable or fuel levy goods are manufactured or stored

 

(1)    

(a)     Notwithstanding anything to the contrary contained in this Act the Commissioner may by rule, in respect of any excisable goods specified in Section A of Part 2 of Schedule No. 1 or fuel levy goods or any class or kind of such goods manufactured in the Republic –

(i)      determine whether any such goods specified in such rule shall be entered or deemed to have been entered for home consumption at the time of issuing any prescribed document and removal from, or on receipt in, or at any time determined in such rule in respect of –

[Words preceding item (aa) substituted by section 64 of Act 30 of 2002]

(aa)   any customs and excise manufacturing warehouse;

(bb)   any customs and excise manufacturing warehouse to which the goods have been removed from any other such warehouse after a particular stage of manufacture during the process of manufacture of any such goods; or

(cc)    any customs and excise storage warehouse licensed by the Commissioner for any special or limited purpose to which such goods are allowed to be removed by the Commissioner after manufacture;

(ii)     restrict the licensing of customs and excise storage warehouses in respect of such goods or any class or kind of such goods to such persons and for such special or limited purposes as may be specified in such rule;

(iii)    prescribe –

(aa)   the time and manner of payment of duty in respect of goods so entered or deemed to have been so entered;

(bb)   any deferment of payment of duty, the conditions on which such deferment is granted and the period, or differentiated periods of deferment, in respect of any licensee or any class or kind of such goods;

(cc)   the accounts to be kept and the accounts and other documents to be submitted with such payment;

(dd)   any procedures or requirements or documents relating to the entry and removal of goods from and to any such customs and excise warehouse or for export or for use under rebate of duty;

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

(eeA) simplified procedures for any person or a category of persons in respect of any matter contemplated in items (aa) to (ee) or (ff), or in any other provision of this Act relating to such goods;

[Item (eeA) inserted by section 31 of Act 61 of 2008 – commencement date to be proclaimed]

(ff)    any other matter which the Commissioner may consider necessary and useful to achieve the effective and efficient administration of the provisions of this section.

(b)     Except as otherwise provided in this section or in any such rule, the provisions of section 38(4) shall apply mutatis mutandis to any goods removed from any customs and excise warehouse as contemplated in paragraph (a).

(c)     Notwithstanding anything to the contrary in this Act contained, goods in a customs and excise manufacturing warehouse which have been entered or deemed to have been entered for home consumption on the date of receipt in such warehouse or at the time prescribed as contemplated in paragraph (a)(i) or any goods manufactured from such goods may, subject to such conditions and procedures as the Commissioner may prescribe by rule, be removed in bond or exported from such warehouse by the licensee, as if such goods have not been so entered or deemed to have been so entered for home consumption.

[Paragraph (c) added by section 64 of Act 30 of 2002]

[Commencement date of Subsection (1): 1 October 2002 – in respect of tobacco products liable to excise duty as specified in items 104.30 and 104.35 of Section A of Part 2 of Schedule No. 1 of the Act]

[Commencement date of Subsection (1): 26 February 2003 – in respect of beer and spirits liable to excise duty as specified respectively in items 104.10 and 104.20 of Section A of Part 2 of Schedule No. 1 of the Act]

[Commencement date of Subsection (1): 2 April 2003 – in respect of petroleum and other goods liable to excise duty as specified in item 105.10 of Section A of Part 2 of Schedule No. 1 of the Customs and Excise Act, 1964, and liable to fuel levy (as specified in item 195.10 of Part 5 of that Schedule]

(2)     If any duty is not paid on the date prescribed in the rules for this section, the amount unpaid shall constitute a debt due to the State, and –

(a)     the Commissioner may, without prior notice to the licensee –

(i)      where payment is not made on or before the prescribed date on two occasions in a calendar year, prohibit for any reasonable period the removal of any goods from such warehouse unless the goods are duly entered and the duty paid prior to such removal;

(ii)     claim the amount from the surety where security is furnished in the form of a surety bond or take such legal steps, including enforcement of the provisions of the Act, as the Commissioner may deem necessary and appropriate in the circumstances;

(b)     the licensee shall –

(i)      notwithstanding the provisions of section 91, but subject to the provisions of section 93, be liable to payment of an amount not exceeding 10 per cent of the duty concerned as a penalty;

(ii)     be liable to interest from the day following the date on which payment should have been made as contemplated in section 105;

(c)     the Commissioner may impose any reasonable conditions when removing the prohibition referred to in paragraph (a)(i).

[Commencement date of Subsection (2): 1 October 2002 – in respect of tobacco products liable to excise duty as specified in items 104.30 and 104.35 of Section A of Part 2 of Schedule No. 1 of the Act]

[Commencement date of Subsection (2): 26 February 2003 – in respect of beer and spirits liable to excise duty as specified respectively in items 104.10 and 104.20 of Section A of Part 2 of Schedule No. 1 of the Act]

[Commencement date of Subsection (2): 2 April 2003 – in respect of petroleum and other goods liable to excise duty as specified in item 105.10 of Section A of Part 2 of Schedule No. 1 of the Customs and Excise Act, 1964, and liable to fuel levy (as specified in item 195.10 of Part 5 of that Schedule]

(3)   

(a)     When this section comes into operation the excisable or fuel levy goods concerned shall not be removed to any customs and excise warehouse unless such warehouse is another such manufacturing warehouse or a storage warehouse licensed for any special or limited purpose as contemplated in subsection (1).

(b)     The Commissioner may –

(i)      approve any existing licence for any customs and excise storage warehouse as a storage warehouse for such special or limited purposes;

(ii)     cancel the licence of any customs and excise storage warehouse which is not licensed for such special or limited purpose within three months after the date upon which this section comes into operation or within any longer period as the Commissioner may on good cause shown consider reasonable.

[Commencement date of Subsection (3): 1 October 2002 – in respect of tobacco products liable to excise duty as specified in items 104.30 and 104.35 of Section A of Part 2 of Schedule No. 1 of the Act]

[Commencement date of Subsection (3): 26 February 2003 – in respect of beer and spirits liable to excise duty as specified respectively in items 104.10 and 104.20 of Section A of Part 2 of Schedule No. 1 of the Act]

[Commencement date of Subsection (3): 2 April 2003 – in respect of petroleum and other goods liable to excise duty as specified in item 105.10 of Section A of Part 2 of Schedule No. 1 of the Customs and Excise Act, 1964, and liable to fuel levy as specified in item 195.10 of Part 5 of that Schedule]

(4)   

(a)     The Commissioner may allow any imported goods to be mixed with locally produced excisable or fuel levy goods of the same class or kind in a customs and excise manufacturing warehouse licensed for the manufacture of such locally-produced goods on payment of any difference in duty between the duty leviable on such imported goods and locally-produced goods.

(b)     Notwithstanding anything to the contrary in this Act contained, any such goods when so mixed shall be subject to the duties leviable and the manufacturing, accounting and removal procedures prescribed in terms of this Act in respect of excisable goods or fuel levy goods, as the case may be, manufactured in such warehouse.

[Commencement date of Subsection(4): 1 October 2002]

[Section 19A inserted by section 40 of Act 19 of 2001]

20. Goods in customs and excise warehouses

 

(1)  

 

(a)     Any dutiable imported or dutiable locally-produced goods and any beverages produced from excisable spirits in pursuance of any permission granted under the provisions of section 31(2), being goods or beverages of a class or kind approved by the Commissioner in respect of each warehouse, may be entered for storage in a customs and excise warehouse with deferment of payment of duty and no such goods or beverages shall be removed to or placed in a customs and excise warehouse until they have been so entered.

[Paragraph (a) substituted by section 4 of Act 95 of 1965 and section 8 of Act 105 of 1969]

 

(b)     Such entry shall be deemed to be due entry in respect of such goods at the place of importation or manufacture for the purposes of this Act.

 

(2)    

 

(a)    

 

(i)      Upon the entry and landing of imported goods for storage in or the transfer of dutiable locally-produced goods to a customs and excise warehouse or the transfer of dutiable manufactured goods from a customs and excise manufacturing warehouse to a customs and excise storage warehouse, the licensee of any such warehouse in which such goods are stored or to which such goods are so transferred shall take and record an accurate account of such goods, which shall include, subject to any deduction that may be allowed under section 75(18), the debiting to stock of any excess found on receipt of such goods at such warehouse.

(ii)     The said licensee shall immediately upon the receipt of such goods report to the Controller any such excess so found.

[Paragraph (a) substituted by section 8 of Act 105 of 1969 and section 1 of Act 86 of 1982]

 

(b)     Subject to the provisions of subsection (18) of section 75 and of subsection (5), no allowance for loss or diminution of any nature which occurs while such goods are being transported to or kept in any such warehouse or transported from one warehouse to another or removed in bond shall be allowed.

[Paragraph (b) substituted by section 4 of Act 95 of 1965]

 

(3)     Goods on which no duty is payable and of a class or kind approved by the Commissioner in respect of each warehouse, may, subject to such conditions and to the keeping of such records as the Commissioner may in each case determine, without entry, be taken into a customs and excise warehouse for the purpose of being used in the manufacture of or in conjunction with dutiable goods.

[Subsection (3) substituted by section 4 of Act 95 of 1965]

 

(4)     Subject to section 19A, no goods which have been stored or manufactured in a customs and excise warehouse shall be taken or delivered from such warehouse except in accordance with the rules and upon due entry for one or other of the following purposes –

 

(a)     home consumption and payment of any duty due thereon;

(b)     rewarehousing in another customs and excise warehouse or removal in bond as provided in section 18;

[Paragraph (b) substituted by section 6 of Act 84 of 1987]

(c)     ……….

[Paragraph (c) deleted by section 6 of Act 84 of 1987]

(d)     export from customs and excise warehouse (including supply as stores for foreign-going ships or aircraft).

[Subsection (4) amended by section 14 of Act 45 of 1995 and section 41 of Act 19 of 2001]

 

(4)bis No person shall, without the written permission of the Controller, divert any goods entered for removal from or delivery to a customs and excise warehouse, except goods entered for payment of the duty due thereon, to a destination other than the destination declared on entry of such goods or deliver or cause such goods to be delivered in the Republic except in accordance with the provisions of this Act.

[Subsection (4)bis inserted by section 4 of Act 95 of 1965 and substituted by section 14 of Act 45 of 1995]

 

(5)     Subject to the provisions of any item in any Schedule, the duty on any deficiency in a customs and excise warehouse shall be paid forthwith on demand after detection of such deficiency.

[Subsection (5) substituted by section 4 of Act 95 of 1965 and section 8 of Act 105 of 1969, amended by section 14 of Act 59 of 1990, section 14 of Act 45 of 1995 and section 59 of Act 30 of 1998 and substituted by section 88 of Act 31 of 2005]

 

(6)     Goods packed for retail sale shall not be entered for storage in a storage warehouse unless they are packed in outer containers normally used in the wholesale trade in respect of such goods.

 

(7)     ……….

[Subsection (7) deleted by section 1 of Act 86 of 1982]

21. Special customs and excise warehouses

 

(1)     The Commissioner may, subject to such conditions as he may in each case impose, license at any place in the Republic special customs and excise warehouses for such special purposes and for such period as he may specify, provided such security as he may require, is furnished.

 

(2)     Unless the Commissioner otherwise indicates when licensing a special customs and excise warehouse for the storage or manufacture of goods, the provisions of this Act in respect of customs and excise storage or manufacturing warehouses or the storage or manufacture of goods in such warehouses, shall apply to such special warehouse and to the storage or manufacture of goods therein, as the case may be.

[Subsection (2) added by section 9 of Act 105 of 1969]

 

(3)    

 

(a)     Notwithstanding anything to the contrary contained in this Act, the Commissioner may, subject to such exception or adaptation prescribed in this subsection or as the Commissioner may prescribe by rule, licence a special customs and excise storage warehouse in terms of the provisions of this Act for the storage –

(i)      for export of any imported goods which are free of duty; or

(ii)     of any other goods for such purposes as may be prescribed by rule.

(b)     Notwithstanding anything to the contrary contained in any other provision of this Act, imported goods free of duty stored in such warehouse shall, for the purposes of the application of any provision of this Act, be deemed to be goods liable to duty.

(c)     For the purposes of paragraph (a) only importers accredited in terms of section 64E may store goods which are free of duty in such warehouse,

(d)    

(i)      Notwithstanding the provisions of section 19(9)(a), no goods to which this subsection relates shall be stored in such warehouse for a period of longer than 6 months from the time the goods were first entered for storage.

(ii)     The Commissioner may, on application by the importer before the period of 6 months expires, on good cause shown extend such period for not longer than 3 months.

(iii)    Where the importer fails to export the goods before the period of 6 months or any extended period lapses, the importer shall be guilty of an offence and shall –

(aa)   cause such goods to be abandoned or destroyed as provided in this Act; or

(bb)   enter such goods for export or such purposes as may be authorised under the rules for this section or any other provision of this Act, unless those goods are restricted or prohibited under any law.

[Item (bb) substituted by section 17 of Act 21 of 2006]

[Subparagraph (iii) substituted by section 1 of Act 10 of 2005]

(e)     The Commissioner may prescribe by rule –

(i)      the goods and activities that are allowed in such warehouse;

(ii)     the person, other than the importer of duty free goods, who may store the goods specified in these rules in such warehouse;

(iii)    the requirements to be complied with by applicants and licensees;

(iv)    the procedures applicable to the operation of and removal of goods from such warehouse;

(v)     the rules of conduct to be observed by the licensee;

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

(vii)   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 subsection.

[Subsection (3) added by section 44 of Act 30 of 2002 and substituted by section 22 of Act 34 of 2004]

21A.  Provision for administration of customs controlled areas within industrial development zones and special economic zones

[Heading of section 21A substituted by section 18 of Act 39 of 2012 effective on the date on which the Special Economic Zones Act comes into operation, 9 February 2016]

(1)     For the purposes of this section, unless the context otherwise indicates –

‘Customs Controlled Area’ or ‘CCA’ means an area within an SEZ, designated by the Commissioner in concurrence with the Director General: Trade and Industry, which area is controlled by the Commissioner;

[Definition of ‘Customs Controlled Area’ or ‘CCA’ amended by section 16 of Act 16 of 2016 effective on 19 January 2017]

‘SEZ operator’, ‘CCA enterprise’ or any other expression as may be necessary, relating to any activity inside or outside an SEZ or a CCA shall have the meaning assigned thereto in any Schedule or rule;

[Definition of ‘SEZ operator’, ‘CCA enterprise’ inserted by section 16 of Act 16 of 2016 effective on 19 January 2017]

‘Special Economic Zone’ or ‘SEZ’ means-

(a)     an area designated by the Minister of Trade and Industry in terms of the Manufacturing Development Act, 1993 (Act No. 187 of 1993), as an industrial development zone and which is in terms of section 39(2) of the Special Economic Zones Act regarded to be an SEZ designated under that Act; or

(b)     an area designated as a Special Economic Zone in terms of section 23(6) of the Special Economic Zones Act;

[Definition of ‘Special Economic Zone’ or ‘SEZ’ inserted by section 16 of Act 16 of 2016 effective on 19 January 2017]

‘Special Economic Zones Act’ means the Special Economic Zones Act, 2014 (Act No. 16 of 2014).

[Definition of ‘Special Economic Zones Act’ inserted by section 16 of Act 16 of 2016 effective on 19 January 2017]

(2)     Any reference in this section, any Schedule or any rule to ‘regulations’ or ‘regulation’ shall, unless otherwise specified, be a reference to the Industrial Development Zone Programme published by Government Notice No. R.1224 of 1 December 2000 and any amendment thereto.

[Subsection (2) substituted by section 2 of Act 10 of 2005 and section 18 of Act 21 of 2006]

(3)     Where any provision of the Manufacturing Development Act, 1993, or the Special Economic Zones Act or any regulation made under those Acts for the purpose of the SEZ is inconsistent or in conflict with any provision of this Act governing the administration of a CCA, including any matter relating to the liability or levying of duty or any rebate, refund or drawback of duty, the provision of this Act shall prevail over the provision of the Manufacturing Development Act, 1993, or of the Special Economic Zones Act, or the regulations made under those Acts.

[Subsection (3) substituted by section 16 of Act 16 of 2016 effective on 19 January 2017]

(4)     Notwithstanding anything to the contrary contained in this section or any other provision of this Act, goods to which subsection (7) relates shall, subject to any exception or adaptation prescribed in any Schedule or rule even if free of duty, be deemed to be goods liable to duty for the purposes of the application of any provision of this Act.

(5)     ……….

[Subsection (5) deleted by section 16 of Act 16 of 2016 effective on 19 January 2017]

(6)     A CCA shall be subject to such controls and procedures, as the Commissioner may prescribe by rule.

(7)     Any goods to which this section or any other provision of this Act relates, whether or not such goods are free of duty, which are –

(a)     brought into a CCA;

(b)     produced or manufactured, stored, or moved for any purpose therein; or

(c)     removed therefrom,

shall, except to the extent that this section, any Schedule or any rule may otherwise provide, be subject to the provisions of this Act and any procedure that may be prescribed in terms of such provisions.

(8)     Any person, including, where relevant, a CCA enterprise or an SEZ operator, who for the purposes of any activity within a CCA –

[Words preceding paragraph (a) substituted by section 16 of Act 16 of 2016 effective on 19 January 2017]

(a)     brings any goods to which this section or any other provision of this Act relates into or receives any such goods in the CCA, including any licensed or registered premises therein;

(b)     produces or manufactures any goods therein;

(c)     removes any goods therefrom; or

(d)     otherwise deals with goods to which this section relates, shall, except where any provision of this Act otherwise provides –

(i)      be liable for the fulfilment of all obligations imposed in terms of this section or any other provision of this Act in respect of such goods;

(ii)     in addition to any liability incurred by any other person in terms of the provisions of this Act, be liable for the duty on such goods.

(9)     The liability for duty in respect of any goods to which this section relates of an SEZ operator or a CCA enterprise or such other person shall cease –

[Words preceding paragraph (a) substituted by section 16 of Act 16 of 2016 effective on 19 January 2017]

(a)     if the SEZ operator or CCA enterprise or such other person proves that, as the case may be-

(i)      the duty on the goods concerned has been paid;

(ii)     the goods have been duly exported;

(iii)    any goods brought temporarily into the CCA are removed therefrom in accordance with the provisions of this Act and any conditions imposed by the Commissioner; or

(iv)    the goods have been used in the manufacture or production of any goods by the CCA enterprise in accordance with any relevant provision of this Act and such goods have been removed and received on other licensed or registered premises for manufacture or production of any other goods by the licensee or registrant in accordance with any relevant provision of this Act;

[Paragraph (a) amended by section 18 of Act 21 of 2006 and section 16 of Act 16 of 2016 and substituted by section 14 of Act 13 of 2017 effective on 18 December 2017]

(b)     where liability otherwise ceases in terms of any provision of this Act, including in terms of any provision of any Schedule or rule made for the purposes of this section;

(c)     where the goods are abandoned or destroyed under the provisions of this Act.

(9A) The liability for duty in respect of any imported goods that have been used in the manufacture or production of goods as referred to in paragraph (a)(iv) of subsection (9), that ceased as contemplated in that paragraph in respect of a CCA enterprise, shall-

(a)     be assumed by the receiving licensee or registrant referred to in paragraph (a)(iv) of that subsection; and

(b)     cease in accordance with any relevant provision of this Act pertaining to such licensee or registrant.

[Subsection (9A) inserted by section 14 of Act 13 of 2017 effective on 18 December 2017]

(10)   Notwithstanding anything to the contrary contained in this Act or the Manufacturing Development Act, 1993 (Act No. 187 of 1993), or any regulation or any other law, the Minister may, at the request of the Minister of Trade and Industry, in respect of any goods produced or manufactured in or removed for home consumption or exported from or brought into or used in any activity in the CCA, by notice in the Gazette –

(a)     in a schedule which shall be deemed to be incorporated in Schedule No. 1 as Part 9 thereof and to constitute an amendment of Schedule No. 1, specify the duty leviable on goods manufactured or produced in, or any other goods brought into a CCA on entry for home consumption;

(b)     in any item in a separate Part of each of Schedule No. 3, 4, 5 or 6, as the case may be, which shall be deemed to be an amendment of such Schedule, provide for a rebate, refund or drawback of duty in respect of any goods brought into, produced or manufactured or used in or removed from a CCA, in the circumstances and for the purposes and on compliance with any conditions that may be specified in  such Part or item.

(11)   Any amendment contemplated in subsection (10) may be made with retrospective effect from such date as may be specified in such notice.

[Subsection (11) substituted by section 2 of Act 10 of 2005]

(12)  Notwithstanding the provisions of sections 48 and 75(15) any amendment to the said Part 9 or Schedule No. 3, 4, 5 or 6 shall unless otherwise specified in any amendment to any Schedule be made under the provisions of this section.

(13)   The provisions of section 48(6) shall apply mutatis mutandis to any amendment to which subsections (10), (11) and (12) relates.

[Subsection (13) substituted by section 2 of Act 10 of 2005]

(14)   The Commissioner may make rules –

(a)     to designate an area within an SEZ as a CCA, provided that such designation takes place on application by-

(i)      the holder of a Special Economic Zone licence issued in terms of the Special Economic Zones Act in respect of that SEZ;

(ii)     the entity established in terms of section 25(1) of the Special Economic Zones Act for the management of that SEZ; or

(iii)    the SEZ operator in respect of that SEZ;

[Paragraph (a) substituted by section 16 of Act 16 of 2016 effective on 19 January 2017]

(b)     to ensure the security and control of a CCA;

(c)     to regulate the customs and excise administration of a CCA in connection with goods received or removed or manufactured or produced or consumed or any other activity to which this section or any other provisions of this Act relates;

(d)     notwithstanding anything contained to the contrary in this section or any other provision of this Act, requiring that –

(i)      any person who participates in any activity within or having access to a CCA must be licensed or registered in terms of this Act;

(ii)     any premises or area in the CCA used for any activity specified in such rule must be licensed as a customs and excise warehouse;

(e)     to prescribe after consultation with the Director-General: Trade and Industry conditions and procedures regulating the activities and registration or licensing in respect of any enterprise or any other person partaking in any activity in, or having access to a CCA;

(f)     after consultation with the Director-General: Trade and Industry in addition to or in substitution of any power, duty or function relating to the South African Revenue Service or any officer thereof or any procedure or process prescribed in the regulations;

(g)     after consultation with the Director-General: Trade and Industry regarding duties or functions of an SEZ operator or a CCA enterprise;

[Paragraph (g) substituted by section 16 of Act 16 of 2016 effective on 19 January 2017]

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

(i)      regarding any other matter which may be necessary and useful for the purpose of the effective and efficient administration of a CCA.

(15)  

(a)     The Commissioner may refuse any application for a licence or registration required in terms of this section or cancel or suspend any such licence or registration.

(b)     The provisions of sections 59A(2) or 60(2), as the case may be, shall apply mutatis mutandis for the purposes of paragraph (a).

(16)  Any person who, in connection with any activity to which this section relates –

(a)     makes any false statement or makes use of any declaration or document containing such statement; or

(b)     contravenes or fails to comply with any provision of this section or any other provision of the Act,

shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding 5 years, or to both such fine and such imprisonment and the goods in respect of which the offence was committed shall be liable to forfeiture in accordance with this Act.

[Section 21A inserted by section 121 of Act 60 of 2001 as substituted by section 202 of Act 45 of 2003 and amended by section 112 of Act 32 of 2004]

‘Customs Controlled Area’ or ‘CCA’ means an area within an SEZ, designated by the Commissioner in concurrence with the Director General: Trade and Industry, which area is controlled by the Commissioner;

[Definition of ‘Customs Controlled Area’ or ‘CCA’ amended by section 16 of Act 16 of 2016 effective on 19 January 2017]

‘SEZ operator’, ‘CCA enterprise’ or any other expression as may be necessary, relating to any activity inside or outside an SEZ or a CCA shall have the meaning assigned thereto in any Schedule or rule;

[Definition of ‘SEZ operator’, ‘CCA enterprise’ inserted by section 16 of Act 16 of 2016 effective on 19 January 2017]

‘Special Economic Zones Act’ means the Special Economic Zones Act, 2014 (Act No. 16 of 2014).

[Definition of ‘Special Economic Zones Act’ inserted by section 16 of Act 16 of 2016 effective on 19 January 2017]

‘Special Economic Zone’ or ‘SEZ’ means-

(a)     an area designated by the Minister of Trade and Industry in terms of the Manufacturing Development Act, 1993 (Act No. 187 of 1993), as an industrial development zone and which is in terms of section 39(2) of the Special Economic Zones Act regarded to be an SEZ designated under that Act; or

(b)     an area designated as a Special Economic Zone in terms of section 23(6) of the Special Economic Zones Act;

[Definition of ‘Special Economic Zone’ or ‘SEZ’ inserted by section 16 of Act 16 of 2016 effective on 19 January 2017]

21A.  Provision for administration of customs controlled areas within industrial development zones and special economic zones

[Heading of section 21A substituted by section 18 of Act 39 of 2012 effective on the date on which the Special Economic Zones Act comes into operation, 9 February 2016]

(1)     For the purposes of this section, unless the context otherwise indicates –

(2)     Any reference in this section, any Schedule or any rule to ‘regulations’ or ‘regulation’ shall, unless otherwise specified, be a reference to the Industrial Development Zone Programme published by Government Notice No. R.1224 of 1 December 2000 and any amendment thereto.

[Subsection (2) substituted by section 2 of Act 10 of 2005 and section 18 of Act 21 of 2006]

(3)     Where any provision of the Manufacturing Development Act, 1993, or the Special Economic Zones Act or any regulation made under those Acts for the purpose of the SEZ is inconsistent or in conflict with any provision of this Act governing the administration of a CCA, including any matter relating to the liability or levying of duty or any rebate, refund or drawback of duty, the provision of this Act shall prevail over the provision of the Manufacturing Development Act, 1993, or of the Special Economic Zones Act, or the regulations made under those Acts.

[Subsection (3) substituted by section 16 of Act 16 of 2016 effective on 19 January 2017]

(4)     Notwithstanding anything to the contrary contained in this section or any other provision of this Act, goods to which subsection (7) relates shall, subject to any exception or adaptation prescribed in any Schedule or rule even if free of duty, be deemed to be goods liable to duty for the purposes of the application of any provision of this Act.

(5)     ……….

[Subsection (5) deleted by section 16 of Act 16 of 2016 effective on 19 January 2017]

(6)     A CCA shall be subject to such controls and procedures, as the Commissioner may prescribe by rule.

(7)     Any goods to which this section or any other provision of this Act relates, whether or not such goods are free of duty, which are –

(a)     brought into a CCA;

(b)     produced or manufactured, stored, or moved for any purpose therein; or

(c)     removed therefrom,

shall, except to the extent that this section, any Schedule or any rule may otherwise provide, be subject to the provisions of this Act and any procedure that may be prescribed in terms of such provisions.

(8)     Any person, including, where relevant, a CCA enterprise or an SEZ operator, who for the purposes of any activity within a CCA –

[Words preceding paragraph (a) substituted by section 16 of Act 16 of 2016 effective on 19 January 2017]

(a)     brings any goods to which this section or any other provision of this Act relates into or receives any such goods in the CCA, including any licensed or registered premises therein;

(b)     produces or manufactures any goods therein;

(c)     removes any goods therefrom; or

(d)     otherwise deals with goods to which this section relates, shall, except where any provision of this Act otherwise provides –

(i)      be liable for the fulfilment of all obligations imposed in terms of this section or any other provision of this Act in respect of such goods;

(ii)     in addition to any liability incurred by any other person in terms of the provisions of this Act, be liable for the duty on such goods.

(9)     The liability for duty in respect of any goods to which this section relates of an SEZ operator or a CCA enterprise or such other person shall cease –

[Words preceding paragraph (a) substituted by section 16 of Act 16 of 2016 effective on 19 January 2017]

(a)     if the SEZ operator or CCA enterprise or such other person proves that, as the case may be-

(i)      the duty on the goods concerned has been paid;

(ii)     the goods have been duly exported;

(iii)    any goods brought temporarily into the CCA are removed therefrom in accordance with the provisions of this Act and any conditions imposed by the Commissioner; or

(iv)    the goods have been used in the manufacture or production of any goods by the CCA enterprise in accordance with any relevant provision of this Act and such goods have been removed and received on other licensed or registered premises for manufacture or production of any other goods by the licensee or registrant in accordance with any relevant provision of this Act;

[Paragraph (a) amended by section 18 of Act 21 of 2006 and section 16 of Act 16 of 2016 and substituted by section 14 of Act 13 of 2017 effective on 18 December 2017]

(b)     where liability otherwise ceases in terms of any provision of this Act, including in terms of any provision of any Schedule or rule made for the purposes of this section;

(c)     where the goods are abandoned or destroyed under the provisions of this Act.

(9A) The liability for duty in respect of any imported goods that have been used in the manufacture or production of goods as referred to in paragraph (a)(iv) of subsection (9), that ceased as contemplated in that paragraph in respect of a CCA enterprise, shall-

(a)     be assumed by the receiving licensee or registrant referred to in paragraph (a)(iv) of that subsection; and

(b)     cease in accordance with any relevant provision of this Act pertaining to such licensee or registrant.

[Subsection (9A) inserted by section 14 of Act 13 of 2017 effective on 18 December 2017]

(10)   Notwithstanding anything to the contrary contained in this Act or the Manufacturing Development Act, 1993 (Act No. 187 of 1993), or any regulation or any other law, the Minister may, at the request of the Minister of Trade and Industry, in respect of any goods produced or manufactured in or removed for home consumption or exported from or brought into or used in any activity in the CCA, by notice in the Gazette –

(a)     in a schedule which shall be deemed to be incorporated in Schedule No. 1 as Part 9 thereof and to constitute an amendment of Schedule No. 1, specify the duty leviable on goods manufactured or produced in, or any other goods brought into a CCA on entry for home consumption;

(b)     in any item in a separate Part of each of Schedule No. 3, 4, 5 or 6, as the case may be, which shall be deemed to be an amendment of such Schedule, provide for a rebate, refund or drawback of duty in respect of any goods brought into, produced or manufactured or used in or removed from a CCA, in the circumstances and for the purposes and on compliance with any conditions that may be specified in  such Part or item.

(11)   Any amendment contemplated in subsection (10) may be made with retrospective effect from such date as may be specified in such notice.

[Subsection (11) substituted by section 2 of Act 10 of 2005]

(12)  Notwithstanding the provisions of sections 48 and 75(15) any amendment to the said Part 9 or Schedule No. 3, 4, 5 or 6 shall unless otherwise specified in any amendment to any Schedule be made under the provisions of this section.

(13)   The provisions of section 48(6) shall apply mutatis mutandis to any amendment to which subsections (10), (11) and (12) relates.

[Subsection (13) substituted by section 2 of Act 10 of 2005]

(14)   The Commissioner may make rules –

(a)     to designate an area within an SEZ as a CCA, provided that such designation takes place on application by-

(i)      the holder of a Special Economic Zone licence issued in terms of the Special Economic Zones Act in respect of that SEZ;

(ii)     the entity established in terms of section 25(1) of the Special Economic Zones Act for the management of that SEZ; or

(iii)    the SEZ operator in respect of that SEZ;

[Paragraph (a) substituted by section 16 of Act 16 of 2016 effective on 19 January 2017]

(b)     to ensure the security and control of a CCA;

(c)     to regulate the customs and excise administration of a CCA in connection with goods received or removed or manufactured or produced or consumed or any other activity to which this section or any other provisions of this Act relates;

(d)     notwithstanding anything contained to the contrary in this section or any other provision of this Act, requiring that –

(i)      any person who participates in any activity within or having access to a CCA must be licensed or registered in terms of this Act;

(ii)     any premises or area in the CCA used for any activity specified in such rule must be licensed as a customs and excise warehouse;

(e)     to prescribe after consultation with the Director-General: Trade and Industry conditions and procedures regulating the activities and registration or licensing in respect of any enterprise or any other person partaking in any activity in, or having access to a CCA;

(f)     after consultation with the Director-General: Trade and Industry in addition to or in substitution of any power, duty or function relating to the South African Revenue Service or any officer thereof or any procedure or process prescribed in the regulations;

(g)     after consultation with the Director-General: Trade and Industry regarding duties or functions of an SEZ operator or a CCA enterprise;

[Paragraph (g) substituted by section 16 of Act 16 of 2016 effective on 19 January 2017]

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

(i)      regarding any other matter which may be necessary and useful for the purpose of the effective and efficient administration of a CCA.

(15)  

(a)     The Commissioner may refuse any application for a licence or registration required in terms of this section or cancel or suspend any such licence or registration.

(b)     The provisions of sections 59A(2) or 60(2), as the case may be, shall apply mutatis mutandis for the purposes of paragraph (a).

(16)  Any person who, in connection with any activity to which this section relates –

(a)     makes any false statement or makes use of any declaration or document containing such statement; or

(b)     contravenes or fails to comply with any provision of this section or any other provision of the Act,

shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding 5 years, or to both such fine and such imprisonment and the goods in respect of which the offence was committed shall be liable to forfeiture in accordance with this Act.

[Section 21A inserted by section 121 of Act 60 of 2001 as substituted by section 202 of Act 45 of 2003 and amended by section 112 of Act 32 of 2004]

22. Samples of goods in a customs and excise warehouse

The Controller may, in accordance with the rules, permit samples of goods in a customs and excise warehouse to be taken by the owner of such goods and may permit payment of duty thereon to be deferred until the goods from which such samples have been taken are entered for delivery from that warehouse for any purpose.

23. Storage or manufacture of prohibited goods

The Commissioner may allow the storage or manufacture in a customs and excise warehouse of goods the importation, manufacture or disposal of which is prohibited or restricted under any law, provided such goods are stored or manufactured in such warehouse for export or supply as stores for foreign-going ships or aircraft only.

24. Ships’ or aircraft stores consumed in the Republic

If any goods shipped as stores for any foreign-going ship or aircraft from a customs and excise warehouse under the provisions of section 20(4) or any goods shipped as stores for such ship or aircraft outside the Republic (except any such goods which are used for the operation of such ship and are, save as provided in the rules, not for consumption by or for sale or disposal to the master or members of the crew or passengers of or visitors to such ship) are consumed, sold or disposed of on such ship in any port in the Republic or on such aircraft at any place in the Republic when the aircraft is not airborne or on such aircraft on a flight between any places in the Republic, the master of such ship or the pilot of such aircraft, as the case may be, shall be liable for the duty on such goods so consumed, sold or disposed of and shall, upon demand by the Controller forthwith pay the duty due on such goods: Provided that the Commissioner may by rule exempt any class or kind of stores or ship or aircraft or any stores or ship or aircraft to which circumstances specified in such rule apply from any provision of this section.

[Section 24 substituted by section 5 of Act 95 of 1965 and amended by section 15 of Act 45 of 1995]

25. Sorting, packing, etc., in customs and excise storage warehouses

 

Subject to the provisions of this Act, the Controller may permit the licensee of a customs and excise storage warehouse or the owner of any goods in such warehouse to sort, separate, pack or repack any goods in such warehouse and to make such alterations therein or such arrangements as may be necessary for the preservation of those goods or for the sale, exportation or other lawful disposal thereof.

[Section 25 substituted by section 6 of Act 95 of 1965 and section 16 of Act 45 of 1995]

26. Transfer of ownership or pledging or hypothecation of warehoused goods

(1)     Except with the prior permission of the Commissioner and subject to such conditions as may be prescribed by rule –

(a)     the owner of any dutiable goods in a customs and excise warehouse may not enter into any agreement whereby –

(i)      his ownership of such goods is transferred to any other person;

(ii)     such goods are pledged or otherwise hypothecated in favour of any other person;

(b)     any person in whose favour such goods have been pledged or hypothecated may not enter into any agreement whereby any rights obtained by him by virtue of such pledging or hypothecation are ceded to any other person.

[Subsection (1) amended by section 17 of Act 45 of 1995]

(2)     Any agreement entered into contrary to the provisions of subsection (1) shall for the purposes of this Act be deemed to be null and void.

[Section 26 substituted by section 1 of Act 89 of 1983]

27. Special provisions in respect of customs and excise manufacturing warehouses

 

 

(1)    Subject to the provisions of this Act, goods liable to excise duty or fuel levy may not be manufactured except in terms of this section and except in a customs and excise manufacturing warehouse licensed under this Act: Provided that spirits distilled by agricultural distillers shall be excluded from the requirement of manufacture in a customs and excise manufacturing warehouse and that excisable goods may with the permission of the Commissioner be manufactured in a special customs and excise warehouse licensed under this Act.

[Subsection (1) substituted by section 10 of Act 105 of 1969, amended by section 7 of Act 84 of 1987 and substituted by section 15 of Act 59 of 1990]

(2)     Subject to the provisions of this Act, the Commissioner may, on such conditions as he may impose, permit the manufacture under the provisions of this Chapter of any goods in any customs and excise manufacturing warehouse if any of the goods used in such manufacture are liable to duty or if the goods so manufactured are dutiable.

(3)     Any dutiable goods brought into and intended for use in a customs and excise manufacturing warehouse in the manufacture of goods liable to excise duty or fuel levy shall be entered for home consumption and any duty due thereon shall be paid prior to such use.

[Subsection (3) substituted by section 10 of Act 105 of 1969, section 7 of Act 84 of 1987 and section 15 of Act 59 of 1990]

(4)     No manufacturing of goods shall take place in a customs and excise manufacturing warehouse until all premises and plant intended for use in connection with such manufacturing and the purpose for which they are to be used have been approved by and registered with the Commissioner.

(5)     ……….

[Subsection (5) deleted by section 18 of Act 45 of 1995]

(6)     All operations in customs and excise manufacturing warehouses are subject to the right of supervision by officers.

(7)    

(a)     Every licensee of a customs and excise manufacturing warehouse shall, if required by the Commissioner, provide suitable office accommodation and board and lodging for any officer stationed at or visiting such warehouse for the purposes of this Act.

[Paragraph (a) substituted by section 18 of Act 45 of 1995]

(b)     A person so providing board and lodging for an officer shall be entitled to fair remuneration therefor.

(8)      ……….

[Subsection (8) deleted by section 18 of Act 45 of 1995]

(9)     No licensee shall, without the written permission of the Controller in a customs and excise manufacturing warehouse, carry on any business except that for which the warehouse is licensed and the premises and plant are registered.

[Subsection (9) substituted by section 18 of Act 45 of 1995]

(10)   No person shall, except with the written permission of the Controller –

(a)     use any premises or plant required to be registered in terms of the provisions of this Chapter for any purpose other than that detailed in such registration;

(b)     effect any alteration to any structure on such premises or to any such plant;

(c)     bring into or have in such premises, any plant other than that detailed in such registration or remove any plant from such premises;

(d)     place below the surface of the ground any pipe or tube for conveying any material or product in a warehouse unless such pipe or tube is enclosed in casing capable of being easily opened so that the pipe or tube is exposed to view.

[Subsection (10) amended by section 18 of Act 45 of 1995]

(11)   The Commissioner may by rule prescribe the days on which and the hours during which all or any of the operations in a customs and excise manufacturing warehouse (including the removal of goods) shall be carried out.

(12)   No distilling operation shall be commenced until the whole or any part of the distilling system or plant, as the Commissioner may require, has been provided, at the expense of the licensee, with fittings and requirements to permit of the insertion or affixing of customs and excise meters, gauges, rods, locks and seals according to the rules for the purpose of securing such system or plant, and until such system or plant has been duly secured by the Controller.

[Subsection (12) substituted by section 18 of Act 45 of 1995]

(13)   If any meter, rod, lock or fitting is tampered with or damaged, or if any pipe, cock, fastening or fitting connected with a still or vessel is pierced or damaged, the licensee shall forthwith repair or renew the article in question or an officer may effect the repair or renewal at the expense of the licensee.

[Subsection (13) substituted by section 18 of Act 45 of 1995]

(14)   If any such tampering, damage or piercing has been directly or indirectly caused by the wilful act, or by the neglect or with the connivance of the licensee or his employee, such licensee, in addition to liability for the cost of the repair or renewal, shall be guilty of an offence.

(15)   The burden of showing that any such tampering, damage or piercing was not caused as aforesaid shall rest upon the licensee.

(16)   The Commissioner may, subject to such conditions as he may impose, exempt the manufacture of any class or kind of goods from any provision of this section.

[Subsection (16) inserted by section 10 of Act 105 of 1969]

28. Ascertaining quantity of spirits by measuring the mass or volume

(1)     The quantity of spirits in any container may be calculated by measuring the mass or volume.

(2)     The quantity must be calculated and may be adjusted by a tolerance of 0.25% in accordance with such procedures as may be prescribed by rule and the quantity so calculated and so adjusted shall be deemed to be the true quantity of such spirits for the purposes of this Act.

[Subsection (2) substituted by section 19 of Act 45 of 1995 and section 89 of Act 31 of 2005]

 [Section 28 substituted by section 1 of Act 103 of 72]

29. Classification of spirits

No spirits distilled in the Republic shall, for the purposes of this Act, be classed as being spirits of the product of the vine until such spirits have been so certified by the Controller, and any spirits not so certified shall be deemed to be spirits other than of the product of the vine.

30. Control of the use of spirits for certain purposes

(1)     No person shall use spirits, distilled from the product of the vine, in the manufacture of alcoholic beverages unless such spirits have been certified by the Wine and Spirit Board to be suitable for use as aforesaid: Provided that if the Board declines to certify any spirits as suitable for such use as aforesaid, the manufacturer may redistil such spirits or treat the same by any method approved by the Board, and thereafter the Board may certify the spirits as suitable for use in the manufacture of alcoholic beverages.

[Subsection (1) amended by section 32 of Act 60 of 1989 and section 20 of Act 45 of 1995]

(2)     The blending of brandy in terms of section 9 (1)(b) of the Wine and Spirits Control Act, 1970 (Act No. 47 of 1970), and the production from spirits of any other beverage or any other non-excisable goods shall be subject to such supervision by an officer as the Commissioner may in each case consider necessary.

[Subsection (2) substituted by section 2 of Act 86 of 1982]

(3)     The provisions of subsection (1) shall not apply to an agricultural distiller or a wine-grower who manufactures alcoholic beverages under the provisions of this Act for his private use.

31. ……….

[Section 31 amended by section 7 of Act 95 of 1965 and section 4 of Act 57 of 1966 and repealed by section 19 of Act 21 of 2006]

31. Ascertaining the strength of spirits for duty purposes

The strength of any spirits or spirituous preparations shall, for duty purposes, be ascertained in the manner prescribed by the Commissioner.

[Section 32 amended by section 2 of Act 103 of 1972 and substituted by section 1 of Act 7 of 1974 and section 5 of Act 98 of 1980]

33. Requirements in respect of stills

 

Subject to the provisions of section 63, no person shall distil spirits in a still which does not comply with the requirements prescribed by rule as to use, capacity or construction: Provided that the Commissioner may by rule exempt any person or still from all or any of the provisions of this section.

[Section 33 substituted by section 21 of Act 45 of 1995]

34. Special provisions regarding spirits manufactured by agricultural distillers

 

(1)     The manufacture of spirits by an agricultural distiller shall be subject to such supervision by an officer as the Controller may in each case consider necessary.

[Subsection (1) substituted by section 22 of Act 45 of 1995]

 

(2)     An allowance may be made by the Controller for natural waste and evaporation on all spirits of his own distillation stored by an agricultural distiller on his farm, to the extent specified in Schedule No. 6, if no part of such loss was wilfully or negligently caused.

[Subsection (2) substituted by section 22 of Act 45 of 1995]

 

(3)     No agricultural distiller shall use his still for distilling spirits from any material other than produce grown on the farm of which he is the owner or occupier and which is of a kind prescribed by rule in respect of the class of agricultural distiller to which he belongs.

[Subsection (3) substituted by section 22 of Act 45 of 1995]

 

(4)     Subject to the provisions of this Act and the Liquor Act 1989 (Act No. 27 of 1989), the provisions of section 20(4) of this Act shall mutatis mutandis apply in respect of spirits manufactured from grapes by any class of agricultural distiller specified by the Commissioner by rule, and for the purpose of such application any reference in the said subsection to a customs and excise warehouse shall be deemed to be a reference to the farm on which such spirits are manufactured.

[Subsection (4) substituted by section 3 of Act 86 of 1982 and section 22 of Act 45 of 1995]

 

(5)     Spirits manufactured by an agricultural distiller in the Republic from any prescribed fruit shall be solely for his private use on the farm where such fruit was produced and such spirits were manufactured.

[Subsection (5) substituted by section 2 of Act 19 of 1994 and section 60 of Act 30 of 1998]

 

(6)     Notwithstanding the provisions of subsection (5), the Commissioner may allow spirits so manufactured to be used or disposed of in such circumstances and at such places as he may deem fit and subject to such conditions as he may impose in each case.

[Subsection (6) added by section 1 of Act 69 of 1988]

35. Special provisions regarding wine

(1)    

(a)     The Commissioner may, subject to such conditions as he may impose in each case, license the premises of a wine-grower, wine-growers’ co-operative agricultural society, the Deciduous Fruit Board or a person who holds a licence under any law to deal in wine in wholesale quantities, as a special customs and excise warehouse for the purpose of manufacturing wine.

(b)     Special warehouses licensed under this subsection shall, for the purposes of this Chapter be deemed to be customs and excise manufacturing warehouses.

(2)     ……….

[Subsection (2) substituted by section 3 of Act 103 of 1972 and deleted by section 23 of Act 45 of 1995]

35A.   Special provisions regarding cigarettes and cigarette tobacco

(1)     The Commissioner may prescribe by rule-

(a)     the sizes and types of containers which may be used by a manufacturer for the packing of cigarettes and cigarette tobacco;

(b)     distinguishing marks or numbers in addition to the stamp impression referred to in subsection (2) which must or must not appear on containers of cigarettes and cigarette tobacco removed from a customs and excise warehouse for home consumption or for export;

(c)     any other matter which is necessary to prescribe and useful to achieve the efficient and effective administration of this section.

[Subsection (1) substituted by section 24 of Act 45 of 1995 and section 135 of Act 45 of 2003]

(2)     No licensee may remove any cigarettes or allow any cigarettes to be removed from a customs and excise warehouse unless-

(a)     if removed for home consumption, a stamp impression determined by the Commissioner has been made on their containers; or

(b)     if removed for export, such stamp impression does not appear on the containers; and

(c)     the cigarettes otherwise comply in every respect with the requirements prescribed by rule.

[Subsection (2) substituted by section 135 of Act 45 of 2003]

(3)     No cigarettes or cigarette tobacco shall be sold or disposed of or removed from the customs and excise manufacturing warehouse in question in partly or completely manufactured condition except in accordance with the provisions of this Act.

(4)     No person shall –

(a)     counterfeit or make any facsimile of any die or impression stamp determined under subsection (2);

(b)     be in possession of, use or offer for sale or for use –

(i)      any die or impression stamp counterfeited in contravention of paragraph (a); or

(ii)     any facsimile of any die or impression stamp made in contravention of that paragraph.

[Section 35A inserted by section 5 of Act 112 of 1977]

36. Specific provisions regarding beer

(1)     For the purposes of this section, “beer” means beer made from malt classified under the specified in tariff item 104.10 of Part 2 of Schedule No. 1.

[Subsection (1) substituted by section 49 of Act 53 of 1999]

(2)    

(a)     Every manufacturer shall, in respect of beer manufactured by the manufacturer in the Republic, register with the Commissioner the brand names whereunder such beer will be sold or disposed of for home consumption, together with the alcoholic strength by volume and the quantity which will be indicated on each container size of the beer so sold or disposed of under any such name, and no beer shall be so sold or disposed of unless so registered.

(b)    

(i)      The provisions of paragraph (a) shall apply mutatis mutandis if any of such registered particulars should change.

(ii)     Any such change shall be registered within the time prescribed by rule.

(c)     Where beer is subject to further fermentation after being packaged, the alcoholic strength by volume to be registered and indicated on the container shall be the strength which the beer is reasonably expected to have when consumed.

(d)     No brew of beer shall be packaged for home consumption if the alcoholic strength by volume thereof exceeds such registered strength after deduction of any tolerance prescribed by rule.

(e)     If beer in bulk is removed in bond from a customs and excise manufacturing warehouse the alcoholic strength by volume shall be tested before removal and recorded on all documents of removal and reflected in the records required to be kept in terms of the rules.

[Subsection (2) substituted by section 2 of Act 44 of 1996 and section 49 of Act 53 of 1999]

(3)     No beer shall be sold or disposed of by any manufacturer for home consumption except in a container which indicates the brand name, the alcoholic strength by volume and quantity of such beer, and any invoice or other document relating to such sale or disposal of such beer shall indicate the registered brand name thereof.

[Subsection (3) substituted by section 49 of Act 53 of 1999]

(4)     Any description on any container of beer bearing an indication of a brand name, alcoholic strength by volume and quantity registered with the Commissioner shall be deemed to be a declaration for the purpose of assessment of duty.

[Subsection (4) substituted by section 49 of Act 53 of 1999]

(5)     The Commissioner may exempt beer of any class or kind from any or all of the provisions of subsections (2) and (3).

(6)    

(a)     If the actual alcoholic strength by volume of any beer in any container not intended for export as contemplated in subsection (9), bearing an indication of a name and alcoholic strength by volume registered with the Commissioner under this section is ascertained, after deduction of any tolerance prescribed by rule, to be higher than the alcoholic strength by volume registered in relation to beer of such name the manufacturer shall be liable for the duty on the full quantity of the brew or blend of brews of beer from which such container was filled according to the actual strength as ascertained in respect of the contents of such container.

[Paragraph (a) substituted by section 2 of Act 44 of 1996 and section 49 of Act 53 of 1999]

(b)     If the Commissioner is unable to establish such full quantity from the records of the manufacturer he may determine a quantity which shall be deemed to be such full quantity.

(c)     Any beer of any brew or blend of brews of beer referred to in paragraph (a) and not delivered from the stocks of such manufacturer shall be liable to forfeiture.

(7)    

(a)     Every manufacturer shall –

(i)      test the alcoholic strength by volume of each brew using a method approved by the Commissioner and record the results of each test as prescribed by rule;

(ii)     keep a record of the actual quantity of beer in each container size packaged for sale or disposal for home consumption.

(b)    

(i)      Where the average of the test results for any registered brand name over any two successive periods of three months show that the average alcoholic strength by volume, although within any tolerance prescribed by rule, exceeds the registered strength after deduction of any average allowance as may be prescribed by rule, duty shall, if the Commissioner so determines, be payable in respect of such excess strength on all the beer accounted for during such periods.

(ii)     Payment of such duty shall be shown separately on, and included with, the first account presented to the Controller after the end of such period.

(iii)    Where the average alcoholic strength by volume so exceeds the registered strength, the manufacturer shall change the registration within the time prescribed by rule.

(c)    

(i)      Where the actual total quantity of beer of each container size sold or disposed of for home consumption during any period of three months exceeds the calculated total quantity, according to the registration for such container size, and after deduction of any average allowance as may be prescribed by rule, duty shall be payable on the excess quantity.

(ii)     Such excess quantity shall be shown separately on, and payment of duty thereon included with, the first account presented to the Controller after the end of such period.

(d)     A manufacturer shall not be entitled to any refund of duty if the alcoholic strength referred to in paragraph (b) or the quantity referred to in paragraph (c) is less than the registered strength or quantity, as the case may be.

[Subsection (7) added by section 49 of Act 53 of 1999]

(8)    

(a)     An officer may take samples of any beer at any time and send such samples for analysis to a person designated under paragraph (b).

(b)     The Commissioner may designate any person to analyse such samples.

[Subsection (8) added by section 49 of Act 53 of 1999]

(9)     Any beer intended for export shall only be exported in containers with a distinguishing mark approved by the Commissioner.

[Subsection (9) added by section 49 of Act 53 of 1999]

(10)   The Commissioner may be rule prescribe the following in relation to beer:

(a)     The manner in which alcoholic strength by volume and quantity are determined for the purposes of registration;

(b)     the tolerance allowable on registered alcoholic strength by volume;

(c)     the average allowances for the purposes of subsection (7)(b)(i) and (c)(i);

(d)     records to be kept and reports to be furnished of ingredients used, production, test results of the alcoholic strength by volume of brews, quantities manufactured and put in containers, losses and beer returned;

(e)     the procedure or method for the taking of samples by an officer; the method of analysis of such sample; the form for reporting on the analysis of such sample by a designated person; the results of such analysis; and any other particulars as may be required on such form;

(f)     the time and circumstances within which any change of the alcoholic strength by volume or quantity is required to be registered;

(g)     any other reasonable measure for controlling the manufacturing processes or the removal of beer for home consumption or export.

[Subsection (10) added by section 49 of Act 53 of 1999]

[Section 36 amended by section 4 of Act 103 of 1972 and section 6 of Act 98 of 1980 and substituted by section 25 of Act 45 of 1995]

36A.  Special provisions in respect of manufacture of goods specified in Section B of Part 2 of Schedule No. 1 and collection of excise duty specified in Section B of Part 2 of Schedule No. 1

(1)     Every manufacturer of excisable goods specified in Section B of Part 2 of Schedule No. 1, and every owner of excisable goods specified in Section B of Part 2 of Schedule No. 1 manufactured for him partly or wholly from materials owned by such owner, shall license his premises as a special customs and excise warehouse for purposes of excise duty specified in Section B of Part 2 of Schedule No. 1 in terms of the provisions of this Act, and no such manufacturer or owner shall manufacture or deal in or with excisable goods specified in Section B of Part 2 of Schedule No. 1 unless he has so licensed his premises.

[Subsection (1) substituted by section 2 of Act 98 of 1993 and amended by section 26 of Act 45 of 1995]

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

(a)     where the value added by any process in the manufacture of excisable goods specified in Section B of Part 2 of Schedule No. 1 is, in the opinion of the Commissioner, low in relation to the manufacturer’s selling price of such goods, or where any process in the manufacture of excisable goods specified in Section B of Part 2 of Schedule No. 1 presents in his opinion exceptional difficulties in the collection of excise duty specified in Section B of Part 2 of Schedule No. 1 in respect of such goods, the provisions of subsection (1) shall apply, and due entry of such goods shall be effected, at such stage in the manufacture of the said goods as he may determine, and the processes which shall be deemed to be included for the purposes of calculating the value for purposes of excise duty specified in Section B of Part 2 of Schedule No. 1 of such goods shall be as determined by him;

[Paragraph (a) substituted by section 26 of Act 45 of 1995]

(b)     the Commissioner may, subject to such conditions as he may impose in each case –

(i)      where the production and disposal of any excisable goods specified in Section B of Part 2 of Schedule No. 1 are performed by different persons, or under other circumstances rendering it expedient in his opinion to do so, issue one licence under the provisions of this Act in respect of the premises of two or more persons concerned, and thereupon each such person shall be jointly and severally liable for the excise duty specified in Section B of Part 2 of Schedule No. 1 on all the excisable goods specified in Section B of Part 2 of Schedule No. 1 concerned, any one paying, the other or others to be absolved pro tanto;

(ii)     include in a special customs and excise warehouse licence issued under this Act in respect of the premises of any manufacturer of excisable goods specified in Section B of Part 2 of Schedule No. 1, any warehouse, depot, agency, branch or other storage place approved by the Commissioner and in which any such goods owned by such manufacturer are stored, and thereupon such goods so stored shall, for the purposes of this Act, be deemed to be in the licensed special customs and excise warehouse of such manufacturer, and the licensee concerned shall be liable as such in all respects for compliance with the requirements of this Act and for the excise duty specified in Section B of Part 2 of Schedule No. 1 on such goods so stored;

(iii)    in such circumstances as he may deem expedient, license the premises of any dealer in excisable goods specified in Section B of Part 2 of Schedule No. 1 as a special customs and excise warehouse under the provisions of this Act, and thereupon such dealer shall comply with the requirements of this Act relating to the collection of excise duty specified in Section B of Part 2 of Schedule No. 1 on such excisable goods specified in Section B of Part 2 of Schedule No. 1 as the Commissioner may determine, and be liable for the excise duty specified in Section B of Part 2 of Schedule No. 1 on such goods;

(iv)    make such temporary or permanent adjustment to the excise duty value of excisable goods specified in Section B of Part 2 of Schedule No. 1 as he may deem reasonable in circumstances which are in his opinion exceptional.

(3)     Excisable goods specified in Section B of Part 2 of Schedule No. 1 manufactured in the Republic by any person for his own use and not for sale or disposal and in circumstances which in the opinion of the Commissioner do not constitute a business venture, may, subject to such conditions as he may impose in each case, be exempted by the Commissioner from the payment of excise duty specified in Section B of Part 2 of Schedule No. 1 thereon.

[Subsection (3) substituted by section 26 of Act 45 of 1995]

(4)     Excisable goods specified in Section B of Part 2 of Schedule No. 1 manufactured in the Republic by any person for sale or disposal and in the circumstances which in the opinion of the Commissioner constitute a business venture, or any class or kind of such goods, may, subject to such conditions as he may impose by rule, be exempted by the Commissioner from the payment of excise duty specified in Section B of Part 2 of Schedule No. 1 thereon if –

(a)     the average value for purposes of excise duty specified in Section B of Part 2 of Schedule No. 1 of such goods or such class or kind of such goods has during such period or periods as the Commissioner may prescribe by rule, not exceeded such amount as he may so prescribe; or

(b)     the value for purposes of excise duty specified in Section B of Part 2 of Schedule No. 1 of such goods or such class or kind of such goods is in the opinion of the Commissioner not likely to exceed the amount referred to in paragraph (a) during one calendar year; or

(c)     such circumstances as may be prescribed by rule apply.

[Subsection (4) substituted by section 26 of Act 45 of 1995]

[Section 36A inserted by section 11 of Act 105 of 1969, substituted by section 4 of Act 52 of 1986, amended by section 2 of Act 69 of 1988 and substituted by section 16 of Act 59 of 1990]

37. Duties applicable to goods manufactured in a customs and excise warehouse

(1)     In respect of any goods manufactured in a customs and excise warehouse there shall be paid, subject to the provisions of section 75, on entry for home consumption thereof, duty at the undermentioned rates, namely –

(a)     if such manufactured goods are not liable to excise duty, the customs rate of duty applicable in terms of Schedules Nos. 1 and 2 on any imported goods used in the manufacture of such manufactured goods and the excise rate of duty applicable in terms of Schedule No. 1 on any excisable goods used in the manufacture of such manufactured goods; and

(b)     if such manufactured goods are liable to excise duty, the excise rate of duty applicable in terms of Schedule No. 1 on such manufactured goods.

(2)     Notwithstanding the provisions of subsection (1), but subject to the provisions of subsection (4), the Commissioner may, on such conditions as he may in each case impose, for the purpose of preserving any goods in a customs and excise storage warehouse or of reconditioning such goods which, as a result of contamination or deterioration or for any other reason, have become unsaleable or not readily saleable or for the purpose of fulfilling special orders, permit such goods, excluding any marked goods referred to in section 37A, to be reconditioned or to be mixed or blended in such warehouse with other goods, and in that event duty shall be paid, in lieu of the duties prescribed in subsection (1), according to the first account taken of any such goods or the total quantity of such reconditioned, mixed or blended goods, whichever quantity is the greater, as follows, namely –

(a)     if such reconditioned, mixed or blended goods are not liable to excise duty, at the customs rate of duty applicable in terms of Schedules Nosection 1 and 2, on any imported goods contained in such reconditioned, mixed or blended goods, and at the excise rate of duty applicable in terms of Schedule No. 1, on any excisable goods contained in such reconditioned, mixed or blended goods; and

(b)     if such reconditioned, mixed or blended goods are liable to excise duty, at the excise rate of duty applicable in terms of Schedule No. 1, on the total quantity of such reconditioned, mixed or blended goods, and, in addition thereto, duty in an amount equal to the amount by which the customs duty at the rate applicable in terms of Schedules Nosection 1 and 2, on any imported goods contained in such reconditioned, mixed or blended goods, exceeds the excise duty at the rate applicable in terms of this paragraph on such proportion of such reconditioned, mixed or blended goods as is represented by such imported goods contained therein:

Provided that such reconditioned, mixed or blended goods shall, in either case, qualify for any rebate of duty specified in respect of such goods in any applicable item of Schedule No. 3, 4 or 6.

[Subsection (2) amended by section 8 of Act 84 of 1987 and section 61 of Act 30 of 1998]

(3)     Where the Commissioner has permitted any goods to be reconditioned or to be mixed or blended in a customs and excise storage warehouse with other goods, such warehouse shall, without being licensed as a customs and excise manufacturing warehouse and without approval of the premises or plant thereon, be regarded for the purposes of this Act as a licensed customs and excise manufacturing warehouse: Provided that no rebate for any loss or deficiency in respect of petrol and any distillate fuel so reconditioned, mixed or blended exceeding the rebate specified in section 75(18)(d) and (f), respectively, shall be allowed on such goods.

[Subsection (3) amended by section 8 of Act 84 of 1987]

(4)    

(a)     Notwithstanding anything to the contrary in this Chapter contained, the Commissioner may, on such conditions as he may in each case impose, permit the mixing or blending in such circumstances and at such place as he may specify of any mineral oil products, including fuel levy goods, but excluding any marked goods referred to in section 37A, with one another or with other goods whether or not such products or goods are in a customs and excise warehouse or have been entered for home consumption and have passed out of customs and excise control for any purpose, including that of rendering such goods saleable or more readily saleable or of fulfilling special orders.

[Paragraph (a) substituted by section 8 of Act 84 of 1987 and section 61 of Act 30 of 1998]

(b)     The provisions of subsection (2) in so far as they relate to the duty payable and the rebate of duty shall mutatis mutandis apply in respect of mineral oil products mixed or blended under this subsection.

(c)     Any duty paid in respect of any goods so used for mixing or blending shall be deemed to have been paid in respect of any duty payable in accordance with the provisions of paragraph (b) in respect of the mineral oil products obtained by such mixing or blending.

(d)     Nothing in this section contained shall be construed as authorizing a refund of any amount by which any duty already paid or assessed in respect of any goods so used for mixing or blending exceeds the duty payable under this subsection.

(e)     Any such mineral oil product used in such mixing or blending shall be deemed to consist entirely of imported goods unless it is proved that it consists entirely of excisable goods or it is proved that it contains such a small proportion of imported goods that the Commissioner considers it negligible, in which event such mineral oil product shall be deemed to consist entirely of excisable goods.

[Paragraph (e) substituted by section 27 of Act 45 of 1995]

(5)      ……….

[Subsection (5) deleted by section 8 of Act 84 of 1987]

(6)     If any goods to which this Act relates have become mixed by an act or omission which by the exercise of reasonable care could not have been avoided, the Commissioner may apply the provisions of subsection (2), in so far as that subsection relates to the duty payable and any rebate of duty, as if such goods were mixed in a customs and excise storage warehouse with his permission.

[Subsection (6) substituted by section 7 of Act 98 of 1980 and section 27 of Act 45 of 1995]

(7)     Notwithstanding anything to the contrary in this Act contained, the Commissioner may, subject to such conditions as he may in each case impose, regard the mixing of mineral oil products of different classes or kinds as a result of transport by pipeline (except a pipeline used in connection with the loading or discharge of ships or vehicles) or the mixing of imported and locally manufactured mineral oil products of the same class or kind in the ordinary course of transport or storage or distribution in the Republic as not constituting manufacture of a new product, provided the quantities of the constituent products entered before they became so mixed are separately accounted for.

[Subsection (7) added by section 8 of Act 95 of 1965 and substituted by section 27 of Act 45 of 1995]

(8)     There shall be paid on entry for home consumption, in addition to any duty payable in terms of this section and subject to the provisions of sections 27 (3) and 75, surcharge or fuel levy at the rate applicable in terms of Schedule No. 1 on any surcharge goods or fuel levy goods used or incorporated in the manufacture, reconditioning, mixing or blending of any goods to which this section relates and on any such manufactured, reconditioned, mixed or blended goods which are liable to surcharge or fuel levy in terms of the said Schedule.

[Subsection (8) added by section 12 of Act 105 of 1969 and substituted by section 8 of Act 84 of 1987 and section 17 of Act 59 of 1990]

(9)     No person shall recondition, mix or blend any fuel levy goods otherwise than in terms of the provisions of this section.

[Subsection (9) added by section 8 of Act 84 of 1987]

37A. Special provisions in respect of marked goods and certain goods that are free of duty

 

(1)    

 

(a)     Notwithstanding anything to the contrary in this Act contained, where –

(i)      any goods are classified under and specified in any heading or subheading of Chapter 27 of Part 1 of Schedule No. 1;

(ii)     such goods are also classified under and specified in any item of Part 2 and Part 5 of Schedule No. 1;

(iii)    such heading or subheading has been expressly quoted in any such item; and

(iv)    a free rate of duty is prescribed in respect of each such heading or subheading and such item,

such goods shall, as may be prescribed by rule, on importation into or manufacture in the Republic or on being marked, be accounted for in any customs and excise warehouse licensed in terms of this Act.

(b)     For the purposes of this section the Commissioner may, on such conditions as he may impose in each case in order to ensure the proper control over the storage, marking and removal of the goods contemplated in paragraph (a), approve any such warehouse and any licensee or class of licensee of such warehouse;

(c)     Unless so approved by the Commissioner, no person shall deal with any such goods in any manner contemplated in paragraph (b).

 

(2)    

 

(a)     If any goods are described in any heading or subheading or item referred to in subsection (1)(a) as marked, the unmarked goods concerned shall be marked by the approved licensee in the approved warehouse by the addition of such marker, in such proportion which is equal to or exceeds, and in accordance with such procedure and control measures, as may in each case be prescribed by rule.

(b)     Any goods contemplated in subsection (1) shall each be stored separately from all other goods and shall be subject mutatis mutandis to the provisions of this Act relating to dutiable goods stored in and removed from a customs and excise warehouse, as may be prescribed by rule.

(c)    

(i)      Subject to the provisions of subparagraph (iii), any reference to “marked goods” or “marker” in this or any other section or any heading or subheading of Chapter 27 of Part 1 or in any item of Part 2 or Part 5 of Schedule No. 1 or in any note to such Chapter or Part or in any rule, shall be deemed to be a reference to unmarked goods referred to in subparagraph (ii) which have been marked and the marker which is required to be added as contemplated in paragraph (a);

(ii)     Any reference to “unmarked goods” in this or any other section or in any heading or subheading of Chapter 27 of Part 1 or in any item of Part 2 or Part 5 of Schedule No. 1 or in any note to such Chapter or Part or in any rule, shall be deemed to be a reference to goods which, except for the reference to marked, are of the same description as marked goods and are specified as unmarked goods of such description in any such heading, subheading or item;

(iii)    Whenever it is necessary for the purpose of establishing any contravention of any provision of this section, any goods shall be deemed to contain marked goods when such goods contain a proportion of the marker equal to or exceeding that as may be prescribed by rule.

(d)     Such addition of a marker shall be deemed not to constitute mixing or blending for the purposes of –

(i)      section 37; or

 

(ii)     the classification of any goods under any heading, subheading or item of Schedule No. 1, except as provided in this section.

(e)     The application of the free rate of duty specified in any heading or subheading of Chapter 27 of Part 1 or in any item of Part 2 and Part 5 of Schedule No. 1 in respect of any goods described as marked goods, shall be subject to the provisions of this section.

 

(3)    

 

(a)     Any person who sells or disposes of in any manner, whether or not for any consideration, any marked goods at any one time in excess of the quantity prescribed by rule, shall issue an invoice to the purchaser, or to any other person to whom the goods are so disposed of, containing such particulars as may be prescribed by rule.

(b)     Any person who so sells or disposes of marked goods shall keep a copy of such invoice and any person to whom such invoice is issued shall keep such invoice for such period as may be prescribed by rule.

(c)     Any person referred to in paragraph (a) and any other person who is at any time in possession of or has under his control any marked goods in excess of the quantity prescribed by rule, shall complete and keep such books, accounts and other documents in such form, reflecting such particulars and for such period and shall comply with any such other requirements, as may be prescribed by rule.

(d)     The provisions of paragraph (a) shall not apply to stock loan transactions between approved licensees of customs and excise warehouses.

 

(4)    

 

(a)     No person shall –

(i)      mix any marked goods in any proportion with distillate fuel or petrol;

(ii)     mix any marked goods in any proportion with any lubricity agent for use as fuel in any engine;

(iii)    mix any marked goods in any proportion with any lubricity agent, or be in possession of any marked goods mixed in any proportion with any lubricity agent, or be in possession of marked goods for mixing with any lubricity agent in any circumstances or for any purpose, otherwise than in accordance with this section and the rules;

(iv)    use any marked goods, whether or not mixed with any other goods in any proportion, as fuel in any engine;

(v)     sell or dispose of in any manner whether or not for any consideration or acquire any marked goods or any marked goods mixed with any lubricity agent, for use as fuel in any engine;

(vi)    be in possession of or sell any marked goods mixed in any proportion with distillate fuel or petrol;

[Subparagraph (vi) substituted by section 122 of Act 60 of 2001]

(vii)   be in possession of any marked goods or marked goods mixed in any proportion with any lubricity agent for use as fuel in any engine;

(viii)  remove or neutralise or attempt to remove or neutralise any marker in any marked goods;

(ix)    add any substance to any marked goods which can prevent or impede the detection of the marker;

(x)     be in possession of any marked goods or sell or dispose of in any manner whether or not for any consideration or acquire any marked goods in which is present any substance which or the colour of which can prevent or impede the detection of the marker;

(xi)    mix any unmarked goods with any marked goods; or

(xii)   unless approved by, and subject to such conditions as may be imposed by, the Commissioner, import any goods containing the marker.

(b)     Any person who so mixes or uses or sells or disposes or acquires or possesses any marked goods or so adds any substance to any marked goods or so removes or neutralises or attempts to remove or to neutralise any marker or any person to whom any invoice referred to in subsection (3)(a) has been issued in respect of the marked goods concerned, shall, in addition to any other liability incurred in terms of this Act, be liable, as the Commissioner may determine, for the payment of an amount not exceeding the duty that may be leviable on any distillate fuel, petrol, lubricity agent or unmarked goods in accordance with the provisions of Schedule No. 1, whichever yields the greatest amount of duty, in respect of all marked goods which –

(i)      are in the possession or under the control of such person or on any premises in the possession or under the control of such person; and

(ii)     were previously sold or disposed of or purchased or were in the possession or under the control of such person or on any premises in the possession or under the control of such person at any time, unless it is shown within 30 days from the date of any demand for payment of any amount in terms of this section that the goods concerned have not been dealt with contrary to the provisions of paragraph (a).

(c)    

(i)      If different rates of duty on such distillate fuel, petrol, lubricity agents or unmarked goods were in force during any period in respect of which the duties are calculated for the purposes of the payment referred to in paragraph (b), the highest rate in force at the relevant time shall be applied for the purposes of calculating the duty payable as provided in paragraph (b).

(ii)     For the purposes of calculating the duty payable on any marked goods mixed with distillate fuel, petrol, unmarked goods or lubricity agent in any tank, including the fuel tank of any engine, such duty shall be calculated, on the total quantity of such mixed goods, in accordance with the provisions of paragraph (b).

(d)     Notwithstanding anything to the contrary in this Act contained, any person who, contrary to subsection (3) and the rules, fails to –

(i)      keep any invoice issued or a copy thereof;

(ii)     issue any invoice;

(iii)    complete and keep the books, accounts and documents; or

(iv)    forthwith furnish any officer at such officer’s request with such invoice or copy thereof and the books, accounts and documents, required to be completed and kept,

shall, in addition to any other liability incurred in terms of this Act, in respect of the goods to which such failure relates, be liable, as the Commissioner may determine, for the payment of an amount not exceeding the duty that may be leviable on any distillate fuel, petrol, lubricity agents or unmarked goods in accordance with the provisions of Schedule No. 1, whichever yields the greatest amount of duty, unless it is shown within 30 days of the date of any demand for payment of such amount in terms of this section that the goods concerned have not been dealt with contrary to the provisions of this section.

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

(f)     Payment of any amount in respect of the marked goods referred to in paragraph (b)(i) shall not absolve the person concerned from compliance with the provisions of paragraph (a).

 

(5)    

 

(a)     For the purposes of this section an officer may –

(i)      take samples of any goods in any tank or other container or in any fuel tank of any engine;

(ii)     analyse such samples or send them for analysis to any person designated under paragraph (c)(ii);

(iii)    stop and detain any vehicle or mobile apparatus with or without the assistance of any traffic officer or member of the South African Police Service or the South African National Defence Force;

(iv)    detain any ship with or without the assistance of any member of the South African Police Service or the South African National Defence Force.

(b)     The provisions of section 106 (2) shall mutatis mutandis apply to any sample taken under this subsection.

(c)     The Commissioner may –

(i)      by rule prescribe the form for reporting on any vehicle or mobile apparatus stopped or premises visited, or any person concerned with such vehicle, mobile apparatus or premises; or on any procedure or method for the taking or analysis of any sample by an officer; or on the results of such analysis and any other particulars as may be required on such form;

(ii)     designate any person to analyse any such sample;

(iii)    by rule prescribe the form for reporting on the analysis of such sample by such designated person, the results of such analysis and any other particulars as may be required on such form;

(iv)    by rule prescribe the method for sealing any tank or container.

(d)     Any person who is any way concerned with any marked goods or any vehicle or mobile apparatus or any premises where any tank or other container is situated, shall furnish an officer on demand with any particulars which he is able to provide for the purposes of the completion of the report referred to in paragraph (c).

 

(6)    

(a)     Whenever an officer has detained any ship, vehicle, mobile, apparatus, engine, tank or other container or goods in terms of this Act for the purposes of investigating any matter to which this section relates, he shall not, if any goods are tested for the presence of a marker, take any action to enforce any other provision of this Act, unless he is in possession of a report by the person designated under subsection (5)(c)(ii) or by any person in the employ of and authorised by such designated person, on the prescribed form, which contains particulars indicating that the goods concerned have been dealt with contrary to the provisions of this section.

(b)     Any person who is any way concerned with such goods as contemplated in subsection (4)(b) shall be liable in respect thereof for payment of an amount calculated on the same basis as provided in that subsection.

(c)     Any goods otherwise found by an officer to have been dealt with contrary to the provisions of this section and any goods which have been used in so dealing with those goods shall be liable to forfeiture in accordance with this Act

(d)     The owner or whoever has possession or control of any goods, ship, vehicle, mobile apparatus, engine, tank or other container, shall be liable for any reasonable costs and expenses, including the costs of analysing any sample, incurred by, and charges due to, the Commissioner in the handling of and dealing with any such goods, ship, vehicle, mobile apparatus, engine, tank or other container for the purposes of this section.

 

(7)    

 

(a)     Notwithstanding the provisions of subsection (4) and anything to the contrary in any other provision of this Act, whenever any marked goods have become mixed with or contaminated by unmarked goods or any other goods, by an act or omission which by the exercise of reasonable care could not have been avoided, such mixing or contamination shall, in the event that the proportion of the marker present in such mixed or contaminated goods is less than the proportion prescribed by rule in terms of subsection (2)(a), but is equal to or exceeds the proportion prescribed by rule in terms of subsection (2)(c)(iii), be reported immediately to the Commissioner, unless such mixing or contamination occurs within a licensed customs and excise warehouse, and the licensee complies with the provisions of subparagraphs (i) and (ii) of paragraph (b), and a report of each such event is prepared and kept available for inspection by an officer.

(b)     Such goods shall, subject to the approval of the Commissioner and to such conditions as the Commissioner may in each case impose –

(i)      be mixed or blended with other goods by the licensee of a customs and excise warehouse until the proportion of the marker is less than the proportion prescribed by rule in terms of subsection (2)(c)(iii), in which case the total quantity of such mixed or blended goods shall be liable to the duty applicable to such goods in terms of Schedule No. 1 on removal from such warehouse; or

(ii)     be delivered to any person who is registered as required by the rules, for mixing or blending with other goods where such mixed or blended goods are not capable of use as fuel in any engine.

(c)     If the Commissioner for any reason finds that such mixed or contaminated marked goods cannot be dealt with as contemplated in paragraph (b) within any reasonable period determined by the Commissioner, such goods shall on expiry of such period be regarded as having been abandoned to the Commissioner and may thereafter be disposed of in such manner as the Commissioner considers reasonable in the circumstances.

(d)     The licensee of the customs and excise warehouse, the purchaser or any other person to whom the marked goods were disposed of or whoever had control thereof when such mixing or contamination occurred shall be liable for any reasonable costs and expenses incurred by and charges due to the Commissioner in respect of any handling of and dealing with such goods in accordance with the provisions of paragraph (b) or (c).

(e)    Any person who deals with such mixed or contaminated goods contrary to the provisions of paragraph (b), shall, in addition to any other liability incurred in terms of this Act, be liable in respect of the total quantity of such goods for payment of an amount calculated on the same basis as provided in subsection (4)(b).

 

(8)    

 

(a)     Where any goods may be disposed of in terms of section 90, the Commissioner may, notwithstanding the provisions of that section, but subject to such conditions as the Commissioner may in each case impose, which may include conditions requiring payment of any amount determined by the Commissioner –

(i)      dispose of such goods for mixing or blending with other goods as contemplated in subsection (7)(b);

(ii)     dispose of such goods in any other manner which the Commissioner considers reasonable in the circumstances; or

(iii)    order the destruction of such goods.

(b)     The person from whom the goods were seized shall be liable for any reasonable costs and expenses incurred by and charges due to the Commissioner in respect of the handling of and dealing with such good as contemplated in paragraph (a).

 

(9)    

 

(a)     No person may acquire or sell or dispose of in any manner, whether or not for any consideration, or be in possession of or have under his control or use –

(i)      any goods, other than marked goods, for which provision is made free of duty in Schedule No. 1 as contemplated in subsection (1)(a); or

(ii)     any marked goods mixed with any lubricity agent,

except in accordance with the provisions of this section and the rules.

(b)     In addition to the provisions of this subsection and any rule made thereunder, except as otherwise provided in any rule, any marked goods mixed or intended to be mixed with any lubricity agent shall be subject to the provisions of this section and the rules relating to marked goods.

(c)     Where any person is required by any rule made under paragraph (d) to register with the Commissioner, the Commissioner may –

(i)      require before registration that such person furnishes security in such form, nature or amount as the Commissioner may determine;

(ii)     at any time require that such security be altered or renewed in such manner as the Commissioner may determine;

(iii)    determine the particulars to be furnished on application for registration and the requirements to be complied with before such application is considered;

(iv)    register such person subject to such conditions as the Commissioner may in each case impose;

(v)     refuse to register any person or class of persons and cancel the registration of any person who has dealt with any goods contrary to the provisions of this section or the rules or any other provision of this Act and refuse re-registration of such person.

(d)     The Commissioner may for the purposes of this section, by rule, prescribe the following:

(i)      The persons who are required to register and the goods and activities in respect of which they are required to register;

(ii)     quantities which shall be subject to any such rule;

(iii)    the conditions on which and the purposes for which any marked goods may be mixed with any lubricity agent;

(iv)    the conditions on which and the purposes for which any person may sell or dispose of in any manner, whether or not for any consideration, or be in possession of or use, any goods contemplated in this section;

(v)     any invoice to be issued, the particulars on such invoice, the person who shall keep such invoice or copy thereof, the persons who are required to complete and keep books, accounts and other documents, the form in which they shall be kept, the particulars to be reflected therein and the period for which they are required to be kept;

(vi)    restrictions in respect of the removal and export of any goods to which this section applies;

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

(viii)  any other matter which the Commissioner may consider necessary and useful to regulate the lawful and prevent the unlawful distribution and consumption of any goods to which this section applies.

(e)    

(i)      No goods referred to in paragraph (a)(i) shall be used for any other purpose than that for which they are removed from a customs and excise warehouse and in accordance with the conditions imposed by the Commissioner and those prescribed in the rules, except with the prior permission of the Commissioner and on payment of the duties leviable in terms of Schedule No. 1 in respect of unmarked goods: Provided that if the Commissioner so permits, the goods may be mixed or blended with other goods in which case the provisions of subsection (7) shall mutatis mutandis apply to such goods.

(ii)     If any goods referred to in paragraph (a)(i) are dealt with contrary to the provisions of this section and the rules, any person who had possession or control of such goods at the time they were so dealt with, shall, in addition to any other liability incurred in terms of this Act, be liable in respect of such goods for payment of an amount calculated on the same basis as provided in subsection (4)(b).

 

(10)   No person shall be entitled to any compensation for any loss or damage arising out of any bona fide action of an officer or any person who assists him under the provisions of this section.

 

(11)   The provisions of section 44A shall mutatis mutandis apply in respect of the liability incurred by any person in terms of this section.

(12)   For the purposes of this section –

“engine” referred to in subsection (4)(a) and (c)(ii), (5)(a)(i) and (6)(a) means any engine in any machine, machinery, plant, equipment, apparatus, vehicle or ship, classifiable under any heading or subheading of Chapters 84 to 87 and 89 of Part 1 of Schedule No. 1;

[Definition of “engine” substituted by section 122 of Act 60 of 2001]

“invoice” means a document, whether in its original form or in a form approved by the Commissioner, and which contains such particulars as may be prescribed by rule;

“ship” includes any ship classifiable under any heading or subheading of Chapter 89 of Part 1 of Schedule No. 1;

“vehicle” includes any vehicle classifiable under any heading or subheading of Chapters 86 and 87 of Part 1 of Schedule No. 1.

[Section 37A inserted by section 62 of Act 30 of 1998 and substituted by section 50 of Act 53 of 1999]

(12)   For the purposes of this section –

“engine” referred to in subsection (4)(a) and (c)(ii), (5)(a)(i) and (6)(a) means any engine in any machine, machinery, plant, equipment, apparatus, vehicle or ship, classifiable under any heading or subheading of Chapters 84 to 87 and 89 of Part 1 of Schedule No. 1;

[Definition of “engine” substituted by section 122 of Act 60 of 2001]

“invoice” means a document, whether in its original form or in a form approved by the Commissioner, and which contains such particulars as may be prescribed by rule;

“ship” includes any ship classifiable under any heading or subheading of Chapter 89 of Part 1 of Schedule No. 1;

“vehicle” includes any vehicle classifiable under any heading or subheading of Chapters 86 and 87 of Part 1 of Schedule No. 1.

[Section 37A inserted by section 62 of Act 30 of 1998 and substituted by section 50 of Act 53 of 1999]

37A. Special provisions in respect of marked goods and certain goods that are free of duty

 

(1)    

 

(a)     Notwithstanding anything to the contrary in this Act contained, where –

(i)      any goods are classified under and specified in any heading or subheading of Chapter 27 of Part 1 of Schedule No. 1;

(ii)     such goods are also classified under and specified in any item of Part 2 and Part 5 of Schedule No. 1;

(iii)    such heading or subheading has been expressly quoted in any such item; and

(iv)    a free rate of duty is prescribed in respect of each such heading or subheading and such item,

such goods shall, as may be prescribed by rule, on importation into or manufacture in the Republic or on being marked, be accounted for in any customs and excise warehouse licensed in terms of this Act.

(b)     For the purposes of this section the Commissioner may, on such conditions as he may impose in each case in order to ensure the proper control over the storage, marking and removal of the goods contemplated in paragraph (a), approve any such warehouse and any licensee or class of licensee of such warehouse;

(c)     Unless so approved by the Commissioner, no person shall deal with any such goods in any manner contemplated in paragraph (b).

 

(2)    

 

(a)     If any goods are described in any heading or subheading or item referred to in subsection (1)(a) as marked, the unmarked goods concerned shall be marked by the approved licensee in the approved warehouse by the addition of such marker, in such proportion which is equal to or exceeds, and in accordance with such procedure and control measures, as may in each case be prescribed by rule.

(b)     Any goods contemplated in subsection (1) shall each be stored separately from all other goods and shall be subject mutatis mutandis to the provisions of this Act relating to dutiable goods stored in and removed from a customs and excise warehouse, as may be prescribed by rule.

(c)    

(i)      Subject to the provisions of subparagraph (iii), any reference to “marked goods” or “marker” in this or any other section or any heading or subheading of Chapter 27 of Part 1 or in any item of Part 2 or Part 5 of Schedule No. 1 or in any note to such Chapter or Part or in any rule, shall be deemed to be a reference to unmarked goods referred to in subparagraph (ii) which have been marked and the marker which is required to be added as contemplated in paragraph (a);

(ii)     Any reference to “unmarked goods” in this or any other section or in any heading or subheading of Chapter 27 of Part 1 or in any item of Part 2 or Part 5 of Schedule No. 1 or in any note to such Chapter or Part or in any rule, shall be deemed to be a reference to goods which, except for the reference to marked, are of the same description as marked goods and are specified as unmarked goods of such description in any such heading, subheading or item;

(iii)    Whenever it is necessary for the purpose of establishing any contravention of any provision of this section, any goods shall be deemed to contain marked goods when such goods contain a proportion of the marker equal to or exceeding that as may be prescribed by rule.

(d)     Such addition of a marker shall be deemed not to constitute mixing or blending for the purposes of –

(i)      section 37; or

 

(ii)     the classification of any goods under any heading, subheading or item of Schedule No. 1, except as provided in this section.

(e)     The application of the free rate of duty specified in any heading or subheading of Chapter 27 of Part 1 or in any item of Part 2 and Part 5 of Schedule No. 1 in respect of any goods described as marked goods, shall be subject to the provisions of this section.

 

(3)    

 

(a)     Any person who sells or disposes of in any manner, whether or not for any consideration, any marked goods at any one time in excess of the quantity prescribed by rule, shall issue an invoice to the purchaser, or to any other person to whom the goods are so disposed of, containing such particulars as may be prescribed by rule.

(b)     Any person who so sells or disposes of marked goods shall keep a copy of such invoice and any person to whom such invoice is issued shall keep such invoice for such period as may be prescribed by rule.

(c)     Any person referred to in paragraph (a) and any other person who is at any time in possession of or has under his control any marked goods in excess of the quantity prescribed by rule, shall complete and keep such books, accounts and other documents in such form, reflecting such particulars and for such period and shall comply with any such other requirements, as may be prescribed by rule.

(d)     The provisions of paragraph (a) shall not apply to stock loan transactions between approved licensees of customs and excise warehouses.

 

(4)    

 

(a)     No person shall –

(i)      mix any marked goods in any proportion with distillate fuel or petrol;

(ii)     mix any marked goods in any proportion with any lubricity agent for use as fuel in any engine;

(iii)    mix any marked goods in any proportion with any lubricity agent, or be in possession of any marked goods mixed in any proportion with any lubricity agent, or be in possession of marked goods for mixing with any lubricity agent in any circumstances or for any purpose, otherwise than in accordance with this section and the rules;

(iv)    use any marked goods, whether or not mixed with any other goods in any proportion, as fuel in any engine;

(v)     sell or dispose of in any manner whether or not for any consideration or acquire any marked goods or any marked goods mixed with any lubricity agent, for use as fuel in any engine;

(vi)    be in possession of or sell any marked goods mixed in any proportion with distillate fuel or petrol;

[Subparagraph (vi) substituted by section 122 of Act 60 of 2001]

(vii)   be in possession of any marked goods or marked goods mixed in any proportion with any lubricity agent for use as fuel in any engine;

(viii)  remove or neutralise or attempt to remove or neutralise any marker in any marked goods;

(ix)    add any substance to any marked goods which can prevent or impede the detection of the marker;

(x)     be in possession of any marked goods or sell or dispose of in any manner whether or not for any consideration or acquire any marked goods in which is present any substance which or the colour of which can prevent or impede the detection of the marker;

(xi)    mix any unmarked goods with any marked goods; or

(xii)   unless approved by, and subject to such conditions as may be imposed by, the Commissioner, import any goods containing the marker.

(b)     Any person who so mixes or uses or sells or disposes or acquires or possesses any marked goods or so adds any substance to any marked goods or so removes or neutralises or attempts to remove or to neutralise any marker or any person to whom any invoice referred to in subsection (3)(a) has been issued in respect of the marked goods concerned, shall, in addition to any other liability incurred in terms of this Act, be liable, as the Commissioner may determine, for the payment of an amount not exceeding the duty that may be leviable on any distillate fuel, petrol, lubricity agent or unmarked goods in accordance with the provisions of Schedule No. 1, whichever yields the greatest amount of duty, in respect of all marked goods which –

(i)      are in the possession or under the control of such person or on any premises in the possession or under the control of such person; and

(ii)     were previously sold or disposed of or purchased or were in the possession or under the control of such person or on any premises in the possession or under the control of such person at any time, unless it is shown within 30 days from the date of any demand for payment of any amount in terms of this section that the goods concerned have not been dealt with contrary to the provisions of paragraph (a).

(c)    

(i)      If different rates of duty on such distillate fuel, petrol, lubricity agents or unmarked goods were in force during any period in respect of which the duties are calculated for the purposes of the payment referred to in paragraph (b), the highest rate in force at the relevant time shall be applied for the purposes of calculating the duty payable as provided in paragraph (b).

(ii)     For the purposes of calculating the duty payable on any marked goods mixed with distillate fuel, petrol, unmarked goods or lubricity agent in any tank, including the fuel tank of any engine, such duty shall be calculated, on the total quantity of such mixed goods, in accordance with the provisions of paragraph (b).

(d)     Notwithstanding anything to the contrary in this Act contained, any person who, contrary to subsection (3) and the rules, fails to –

(i)      keep any invoice issued or a copy thereof;

(ii)     issue any invoice;

(iii)    complete and keep the books, accounts and documents; or

(iv)    forthwith furnish any officer at such officer’s request with such invoice or copy thereof and the books, accounts and documents, required to be completed and kept,

shall, in addition to any other liability incurred in terms of this Act, in respect of the goods to which such failure relates, be liable, as the Commissioner may determine, for the payment of an amount not exceeding the duty that may be leviable on any distillate fuel, petrol, lubricity agents or unmarked goods in accordance with the provisions of Schedule No. 1, whichever yields the greatest amount of duty, unless it is shown within 30 days of the date of any demand for payment of such amount in terms of this section that the goods concerned have not been dealt with contrary to the provisions of this section.

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

(f)     Payment of any amount in respect of the marked goods referred to in paragraph (b)(i) shall not absolve the person concerned from compliance with the provisions of paragraph (a).

 

(5)    

 

(a)     For the purposes of this section an officer may –

(i)      take samples of any goods in any tank or other container or in any fuel tank of any engine;

(ii)     analyse such samples or send them for analysis to any person designated under paragraph (c)(ii);

(iii)    stop and detain any vehicle or mobile apparatus with or without the assistance of any traffic officer or member of the South African Police Service or the South African National Defence Force;

(iv)    detain any ship with or without the assistance of any member of the South African Police Service or the South African National Defence Force.

(b)     The provisions of section 106 (2) shall mutatis mutandis apply to any sample taken under this subsection.

(c)     The Commissioner may –

(i)      by rule prescribe the form for reporting on any vehicle or mobile apparatus stopped or premises visited, or any person concerned with such vehicle, mobile apparatus or premises; or on any procedure or method for the taking or analysis of any sample by an officer; or on the results of such analysis and any other particulars as may be required on such form;

(ii)     designate any person to analyse any such sample;

(iii)    by rule prescribe the form for reporting on the analysis of such sample by such designated person, the results of such analysis and any other particulars as may be required on such form;

(iv)    by rule prescribe the method for sealing any tank or container.

(d)     Any person who is any way concerned with any marked goods or any vehicle or mobile apparatus or any premises where any tank or other container is situated, shall furnish an officer on demand with any particulars which he is able to provide for the purposes of the completion of the report referred to in paragraph (c).

 

(6)    

(a)     Whenever an officer has detained any ship, vehicle, mobile, apparatus, engine, tank or other container or goods in terms of this Act for the purposes of investigating any matter to which this section relates, he shall not, if any goods are tested for the presence of a marker, take any action to enforce any other provision of this Act, unless he is in possession of a report by the person designated under subsection (5)(c)(ii) or by any person in the employ of and authorised by such designated person, on the prescribed form, which contains particulars indicating that the goods concerned have been dealt with contrary to the provisions of this section.

(b)     Any person who is any way concerned with such goods as contemplated in subsection (4)(b) shall be liable in respect thereof for payment of an amount calculated on the same basis as provided in that subsection.

(c)     Any goods otherwise found by an officer to have been dealt with contrary to the provisions of this section and any goods which have been used in so dealing with those goods shall be liable to forfeiture in accordance with this Act

(d)     The owner or whoever has possession or control of any goods, ship, vehicle, mobile apparatus, engine, tank or other container, shall be liable for any reasonable costs and expenses, including the costs of analysing any sample, incurred by, and charges due to, the Commissioner in the handling of and dealing with any such goods, ship, vehicle, mobile apparatus, engine, tank or other container for the purposes of this section.

 

(7)    

 

(a)     Notwithstanding the provisions of subsection (4) and anything to the contrary in any other provision of this Act, whenever any marked goods have become mixed with or contaminated by unmarked goods or any other goods, by an act or omission which by the exercise of reasonable care could not have been avoided, such mixing or contamination shall, in the event that the proportion of the marker present in such mixed or contaminated goods is less than the proportion prescribed by rule in terms of subsection (2)(a), but is equal to or exceeds the proportion prescribed by rule in terms of subsection (2)(c)(iii), be reported immediately to the Commissioner, unless such mixing or contamination occurs within a licensed customs and excise warehouse, and the licensee complies with the provisions of subparagraphs (i) and (ii) of paragraph (b), and a report of each such event is prepared and kept available for inspection by an officer.

(b)     Such goods shall, subject to the approval of the Commissioner and to such conditions as the Commissioner may in each case impose –

(i)      be mixed or blended with other goods by the licensee of a customs and excise warehouse until the proportion of the marker is less than the proportion prescribed by rule in terms of subsection (2)(c)(iii), in which case the total quantity of such mixed or blended goods shall be liable to the duty applicable to such goods in terms of Schedule No. 1 on removal from such warehouse; or

(ii)     be delivered to any person who is registered as required by the rules, for mixing or blending with other goods where such mixed or blended goods are not capable of use as fuel in any engine.

(c)     If the Commissioner for any reason finds that such mixed or contaminated marked goods cannot be dealt with as contemplated in paragraph (b) within any reasonable period determined by the Commissioner, such goods shall on expiry of such period be regarded as having been abandoned to the Commissioner and may thereafter be disposed of in such manner as the Commissioner considers reasonable in the circumstances.

(d)     The licensee of the customs and excise warehouse, the purchaser or any other person to whom the marked goods were disposed of or whoever had control thereof when such mixing or contamination occurred shall be liable for any reasonable costs and expenses incurred by and charges due to the Commissioner in respect of any handling of and dealing with such goods in accordance with the provisions of paragraph (b) or (c).

(e)    Any person who deals with such mixed or contaminated goods contrary to the provisions of paragraph (b), shall, in addition to any other liability incurred in terms of this Act, be liable in respect of the total quantity of such goods for payment of an amount calculated on the same basis as provided in subsection (4)(b).

 

(8)    

 

(a)     Where any goods may be disposed of in terms of section 90, the Commissioner may, notwithstanding the provisions of that section, but subject to such conditions as the Commissioner may in each case impose, which may include conditions requiring payment of any amount determined by the Commissioner –

(i)      dispose of such goods for mixing or blending with other goods as contemplated in subsection (7)(b);

(ii)     dispose of such goods in any other manner which the Commissioner considers reasonable in the circumstances; or

(iii)    order the destruction of such goods.

(b)     The person from whom the goods were seized shall be liable for any reasonable costs and expenses incurred by and charges due to the Commissioner in respect of the handling of and dealing with such good as contemplated in paragraph (a).

 

(9)    

 

(a)     No person may acquire or sell or dispose of in any manner, whether or not for any consideration, or be in possession of or have under his control or use –

(i)      any goods, other than marked goods, for which provision is made free of duty in Schedule No. 1 as contemplated in subsection (1)(a); or

(ii)     any marked goods mixed with any lubricity agent,

except in accordance with the provisions of this section and the rules.

(b)     In addition to the provisions of this subsection and any rule made thereunder, except as otherwise provided in any rule, any marked goods mixed or intended to be mixed with any lubricity agent shall be subject to the provisions of this section and the rules relating to marked goods.

(c)     Where any person is required by any rule made under paragraph (d) to register with the Commissioner, the Commissioner may –

(i)      require before registration that such person furnishes security in such form, nature or amount as the Commissioner may determine;

(ii)     at any time require that such security be altered or renewed in such manner as the Commissioner may determine;

(iii)    determine the particulars to be furnished on application for registration and the requirements to be complied with before such application is considered;

(iv)    register such person subject to such conditions as the Commissioner may in each case impose;

(v)     refuse to register any person or class of persons and cancel the registration of any person who has dealt with any goods contrary to the provisions of this section or the rules or any other provision of this Act and refuse re-registration of such person.

(d)     The Commissioner may for the purposes of this section, by rule, prescribe the following:

(i)      The persons who are required to register and the goods and activities in respect of which they are required to register;

(ii)     quantities which shall be subject to any such rule;

(iii)    the conditions on which and the purposes for which any marked goods may be mixed with any lubricity agent;

(iv)    the conditions on which and the purposes for which any person may sell or dispose of in any manner, whether or not for any consideration, or be in possession of or use, any goods contemplated in this section;

(v)     any invoice to be issued, the particulars on such invoice, the person who shall keep such invoice or copy thereof, the persons who are required to complete and keep books, accounts and other documents, the form in which they shall be kept, the particulars to be reflected therein and the period for which they are required to be kept;

(vi)    restrictions in respect of the removal and export of any goods to which this section applies;

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

(viii)  any other matter which the Commissioner may consider necessary and useful to regulate the lawful and prevent the unlawful distribution and consumption of any goods to which this section applies.

(e)    

(i)      No goods referred to in paragraph (a)(i) shall be used for any other purpose than that for which they are removed from a customs and excise warehouse and in accordance with the conditions imposed by the Commissioner and those prescribed in the rules, except with the prior permission of the Commissioner and on payment of the duties leviable in terms of Schedule No. 1 in respect of unmarked goods: Provided that if the Commissioner so permits, the goods may be mixed or blended with other goods in which case the provisions of subsection (7) shall mutatis mutandis apply to such goods.

(ii)     If any goods referred to in paragraph (a)(i) are dealt with contrary to the provisions of this section and the rules, any person who had possession or control of such goods at the time they were so dealt with, shall, in addition to any other liability incurred in terms of this Act, be liable in respect of such goods for payment of an amount calculated on the same basis as provided in subsection (4)(b).

 

(10)   No person shall be entitled to any compensation for any loss or damage arising out of any bona fide action of an officer or any person who assists him under the provisions of this section.

 

(11)   The provisions of section 44A shall mutatis mutandis apply in respect of the liability incurred by any person in terms of this section.

37B.  Provisions relating to the manufacture, storage, disposal and use of biofuel, biodiesel or bioethanol

(1)     For the purposes of this Act, unless the context otherwise indicates –

“biofuel” means any goods used as liquid fuel manufactured from any vegetable or other material, not being any material from which mineral fuels, oils or other goods are obtained as provided in Chapter 27 of Part 1 of Schedule No. 1;

“biodiesel” means a biofuel as specified in and described in any note to any heading or in any subheading of Part 1 of Schedule No. 1, any item of Section A of Part 2 or Part 5 of the said Schedule No. 1 or any item of Schedule No. 3, 4, 5 or 6 capable of use as a substitute for or an additive to distillate fuel;

“bioethanol” means a biofuel as specified in and described in any note to any heading or in any subheading of Part 1 of Schedule No. 1, any item of Section A of Part 2 or Part 5 of the said Schedule no. 1 or any item of Schedule No. 3, 4, 5 or 6 capable of use as a substitute for or additive to petrol;

“distillate fuel” or “diesel” means distillate fuel defined in the Notes to Chapter 27 of Part 1 of Schedule No 1 and liable to customs duty as specified in the said Part 1 and to excise duty and fuel levy as specified in Section A of Part 2 and Part 5, respectively, of Schedule No. 1;

“manufacture” in relation to biofuel includes mixing biofuel with distillate fuel or petrol;

“petrol” means petrol as defined in the Notes to Chapter 27 of Part 1 of Schedule No 1 and liable to customs duty as specified in the said Part 1 and to excise duty and fuel levy as specified in Section A of Part 2 and Part 5, respectively, of Schedule No. 1.

(2)    

 

(a)            

(i)      Except where otherwise provided-

(aa)    in this section;

(bb)   by the Minister in any amendment of any Schedule in terms of any provision of this Act: or

(cc)    by the Commissioner in any rule,

the provisions of this Act governing the administration of excisable goods or fuel levy goods, including the manufacture, levying of duty and granting of any rebate or refund of duty on such goods, shall apply mutatis mutandis to biofuel.

(ii)     For the purposes of paragraph (i) unless otherwise specified in any Schedule or rule such provisions relating to distillate fuel or petrol shall be deemed to include respectively a reference to biodiesel or bioethanol or any mixtures thereof with distillate fuel or petrol.

[Paragraph (a) substituted by section 114 of Act 32 of 2004 effective on 1 April 2006]

(b)     The Commissioner may, by rule exempt any person or class of persons from licensing in respect of any manufacturing process in the production of biofuel or any goods used in the production of biofuel.

[Paragraph (b) substituted by section 20 of Act 21 of 2006 with effect from 29 March 2006]

 

(c)     The Commissioner may, except if any provision of this Act otherwise provides, in respect of biofuel manufactured in the Republic by any person registered for such a purpose under section 59A –

(i)     

(aa)   by rule exempt for any period such person from payment of duty in respect of any quantity of biofuel manufactured by him or her;

(bb)   cancel any such exemption under circumstances prescribed by rule;

(ii)     prescribe, subject to paragraph (b), conditions and other requirements in respect of such exemption;

(iii)    prescribe procedures relating to the manufacture and removal of biofuel for home consumption.

[Paragraph (c) inserted by section 114 of Act 32 of 2004 effective on 1 April 2006 and substituted by section 20 of Act 21 of 2006 effective on 29 March 2006]

 

(3)     Notwithstanding anything to the contrary contained in this Act, the Minister may, in any amendment of any Schedule under any provision of this Act, specify –

 

(a)     in which proportion distillate fuel and biodiesel or petrol and bioethanol may be mixed to be classifiable under any tariff heading or item;

(b)     a different rate of duty and extent of rebate or refund on the basis of the proportionate content of distillate fuel or biodiesel or petrol or bioethanol in any such mixture.

 

(4)     The Commissioner may –

 

(a)     require any manufacturer or seller of biofuel to register in terms of section 59A;

[Paragraph (a) substituted by section 114 of Act 32 of 2004 effective on 1 April 2006 and section 20 of Act 21 of 2006 with effect from 7 February 2007]

(b)     make rules –

(i)      to exempt any person who is required to licence under any provision of this Act from furnishing security;

(ii)     concerning payment of duty, accounts to be kept and procedures regulating the manufacture, storage, disposal or use of biofuel;

(iii)    to delegate, subject to section 3(2), any power which may be exercised and assign any duty that shall be performed by the Commissioner in terms of this Act to any officer;

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

(v)     in respect of any other matter which is necessary to prescribe and useful to achieve the efficient and effective administration of this section.

[Section 37B inserted by section 103 of Act 74 of 2002 effective on 1 April 2006]

“biodiesel” means a biofuel as specified in and described in any note to any heading or in any subheading of Part 1 of Schedule No. 1, any item of Section A of Part 2 or Part 5 of the said Schedule No. 1 or any item of Schedule No. 3, 4, 5 or 6 capable of use as a substitute for or an additive to distillate fuel;

“bioethanol” means a biofuel as specified in and described in any note to any heading or in any subheading of Part 1 of Schedule No. 1, any item of Section A of Part 2 or Part 5 of the said Schedule no. 1 or any item of Schedule No. 3, 4, 5 or 6 capable of use as a substitute for or additive to petrol;

“biofuel” means any goods used as liquid fuel manufactured from any vegetable or other material, not being any material from which mineral fuels, oils or other goods are obtained as provided in Chapter 27 of Part 1 of Schedule No. 1;

“distillate fuel” or “diesel” means distillate fuel defined in the Notes to Chapter 27 of Part 1 of Schedule No 1 and liable to customs duty as specified in the said Part 1 and to excise duty and fuel levy as specified in Section A of Part 2 and Part 5, respectively, of Schedule No. 1;

“manufacture” in relation to biofuel includes mixing biofuel with distillate fuel or petrol;

“petrol” means petrol as defined in the Notes to Chapter 27 of Part 1 of Schedule No 1 and liable to customs duty as specified in the said Part 1 and to excise duty and fuel levy as specified in Section A of Part 2 and Part 5, respectively, of Schedule No. 1.

37B.  Provisions relating to the manufacture, storage, disposal and use of biofuel, biodiesel or bioethanol

(1)     For the purposes of this Act, unless the context otherwise indicates –

(2)    

 

(a)            

(i)      Except where otherwise provided-

(aa)    in this section;

(bb)   by the Minister in any amendment of any Schedule in terms of any provision of this Act: or

(cc)    by the Commissioner in any rule,

the provisions of this Act governing the administration of excisable goods or fuel levy goods, including the manufacture, levying of duty and granting of any rebate or refund of duty on such goods, shall apply mutatis mutandis to biofuel.

(ii)     For the purposes of paragraph (i) unless otherwise specified in any Schedule or rule such provisions relating to distillate fuel or petrol shall be deemed to include respectively a reference to biodiesel or bioethanol or any mixtures thereof with distillate fuel or petrol.

[Paragraph (a) substituted by section 114 of Act 32 of 2004 effective on 1 April 2006]

(b)     The Commissioner may, by rule exempt any person or class of persons from licensing in respect of any manufacturing process in the production of biofuel or any goods used in the production of biofuel.

[Paragraph (b) substituted by section 20 of Act 21 of 2006 with effect from 29 March 2006]

 

(c)     The Commissioner may, except if any provision of this Act otherwise provides, in respect of biofuel manufactured in the Republic by any person registered for such a purpose under section 59A –

(i)     

(aa)   by rule exempt for any period such person from payment of duty in respect of any quantity of biofuel manufactured by him or her;

(bb)   cancel any such exemption under circumstances prescribed by rule;

(ii)     prescribe, subject to paragraph (b), conditions and other requirements in respect of such exemption;

(iii)    prescribe procedures relating to the manufacture and removal of biofuel for home consumption.

[Paragraph (c) inserted by section 114 of Act 32 of 2004 effective on 1 April 2006 and substituted by section 20 of Act 21 of 2006 effective on 29 March 2006]

 

(3)     Notwithstanding anything to the contrary contained in this Act, the Minister may, in any amendment of any Schedule under any provision of this Act, specify –

 

(a)     in which proportion distillate fuel and biodiesel or petrol and bioethanol may be mixed to be classifiable under any tariff heading or item;

(b)     a different rate of duty and extent of rebate or refund on the basis of the proportionate content of distillate fuel or biodiesel or petrol or bioethanol in any such mixture.

 

(4)     The Commissioner may –

 

(a)     require any manufacturer or seller of biofuel to register in terms of section 59A;

[Paragraph (a) substituted by section 114 of Act 32 of 2004 effective on 1 April 2006 and section 20 of Act 21 of 2006 with effect from 7 February 2007]

(b)     make rules –

(i)      to exempt any person who is required to licence under any provision of this Act from furnishing security;

(ii)     concerning payment of duty, accounts to be kept and procedures regulating the manufacture, storage, disposal or use of biofuel;

(iii)    to delegate, subject to section 3(2), any power which may be exercised and assign any duty that shall be performed by the Commissioner in terms of this Act to any officer;

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

(v)     in respect of any other matter which is necessary to prescribe and useful to achieve the efficient and effective administration of this section.

[Section 37B inserted by section 103 of Act 74 of 2002 effective on 1 April 2006]

CHAPTER V

 

CLEARANCE AND ORIGIN OF GOODS; LIABILITY FOR AND PAYMENT OF DUTIES

38. Entry of goods and time of entry

(1)    

(a)     Every importer of goods shall within seven days of the date on which such goods are, in terms of section ten deemed to have been imported except in respect of goods in a container depot as provided for in section 43(1)(a) or within such time as the Commissioner may prescribe by rule in respect of any type of cargo, means of carriage or any person having control thereof after landing, make due entry of those goods as contemplated in section 39: Provided that, subject to the permission of the Controller-

(i)      containers temporarily imported;

(ii)     human remains;

(iii)    goods which in the opinion of the Commissioner are of no commercial value;

(iv)    goods imported under an international carnet; and

(v)     goods of a value for duty purposes not exceeding R500, and on which no duty is payable in terms of Schedule No. 1,

[Paragraph (a) amended by section 5 of Act 71 of 1975, by section 123(a) of Act 60 of 2001 and by section 9 of Act 16 of 2022]

need not be so entered.

[Paragraph (a) amended by section 5 of Act 71 of 1975 and section 123 of Act 60 of 2001]

(aA)  The Commissioner may, in respect of dutiable goods imported by air of a value for duty purposes not exceeding R500 and for which immediate clearance is requested, allow a licensee of any premises licensed under the provisions of this Act to remove such goods for home consumption and to pay the duties due at such time on compliance with such conditions as the Commissioner may specify by rule and impose in each case.

[Paragraph (aA) inserted by section 123 of Act 60 of 2001]

(b)    

(i)      Any importer may, at any place appointed under the provisions of this Act for the entry of goods, make such entry of goods which have been loaded on a ship or delivered to the carrier which conveys the goods by vehicle to the Republic for discharge at that place, notwithstanding the fact that such ship or vehicle has not yet arrived at that place.

(ii)     If any goods referred to in subparagraph (i) have not been so loaded at the time of entry as provided in section 45(2), the importer shall be guilty of an offence and those goods shall be deemed not to have been entered.

[Paragraph (b) substituted by section 18 of Act 59 of 1990]

(2)     ……….

[Subsection (2) substituted by section 18 of Act 59 of 1990 and deleted by section 123 of Act 60 of 2001]

(3)    

(a)     Every exporter of any goods shall, before such goods are exported from the Republic, deliver, during the hours of any day prescribed by rule, to the Controller a bill of entry in the prescribed form, but the Commissioner may –

(i)      if no export duty is payable on and no obligation or condition is to be fulfilled or complied with under any law in respect of such goods; or

(ii)     in the case of goods to be exported overland by way of a vehicle (excluding an aircraft and a train) which are loaded for export at a place other than a place appointed under section 6 where goods may be entered for customs and excise purposes,

allow such a bill of entry to be delivered at such time as he deems reasonable.

[Paragraph (a) amended by section 18 of Act 59 of 1990 and section 28 of Act 45 of 1995]

(b)     For the purposes of paragraph (a), in relation to the delivery of a bill of entry, the goods referred to therein shall be deemed to have been exported from the Republic –

(i)      in the case of goods to be exported in a ship, at the time when such goods are delivered to the port authority, a depot operator, the master of the ship concerned or a container operator, as the case may be;

[Subparagraph (i) substituted by section 28 of Act 45 of 1995]

(ii)     in the case of goods to be exported in an aircraft, at the time when such goods are delivered to the pilot of the aircraft concerned or are brought within the control area of the airport authority concerned, as the case may be;

(iii)    in the case of goods to be exported in a train, at the time when such goods are delivered to the railway authority;

[Subparagraph (iii) substituted by section 28 of Act 45 of 1995]

(iv)    in the case of goods to be exported overland in a vehicle (excluding an aircraft and a train), subject to the provisions of paragraph (a), at the time when such goods are loaded on the vehicle concerned.

[Subsection (3) substituted by section 2 of Act 89 of 1983]

(4)    

(a)     The Commissioner may by rule permit any excisable goods or fuel levy goods and any class or kind of imported goods, which he may specify by rule, to be removed from a customs and excise warehouse on the issuing by the owner of such goods of a prescribed certificate or an invoice or other document prescribed or approved by the Commissioner, and the payment of duty on such goods at a time and in a manner specified by rule, and such certificate, invoice or other document, shall for the purposes of section 20(4), and subject to the provisions of section 39(2A), be deemed to be a due entry from the time of removal of those goods from the customs and excise warehouse.

[Paragraph (a) substituted by section 9 of Act 84 of 1987, section 18 of Act 59 of 1990 and section 28 of Act 45 of 1995]

(b)     No such goods may be removed from a customs and excise warehouse or appropriated for use by the owner prior to or without the issuing of such certificate, invoice or other document.

[Subsection (4) substituted by section 13 of Act 105 of 1969]

(5)

(a)     Notwithstanding anything to the contrary contained in this Act, the Commissioner may by rule permit the removal of any dutiable imported goods from a licensed customs and excise storage warehouse on the issuing by the licensee of such warehouse of a certificate, an invoice or such other document as the Commissioner may prescribe or approve by rule, if-

(i)      both the licensee of the customs and excise storage warehouse and the importer of the goods are accredited in terms of section 64E;

(ii)     the licensee of the storage warehouse and the importer of the goods both comply with such conditions as the Commissioner may prescribe generally by rule or determine in a specific instance;

(iii)    the licensee of the warehouse keeps such accounts or records of such receipts and removals as the Commissioner may require;

(iv)    the goods are removed from the warehouse for home consumption or such other purpose as the Commissioner may allow; and

(v)     the duty on such goods is paid at the time and in a manner specified by rule.

(b)     Any document referred to in paragraph (a) and issued by a licensee contemplated in that paragraph shall, for the purposes of section 20(4), and subject to the provisions of section 39(2A), be deemed to be a due entry from the time of removal of those goods from the customs and excise storage warehouse.

[Subsection (5) inserted by section 38 of Act 60 of 2008 – commencement date of subsection (5) to be proclaimed]

(6)

(a)     Notwithstanding anything to the contrary contained in this Act, if liquid bulk goods, as may be prescribed by rule, are stored in a special customs and excise storage warehouse licensed as contemplated in section 21(3), the licensee of that warehouse may, subject to compliance with such conditions and procedures as the Commissioner may prescribe by rule, deduct from the quantity received in the warehouse, the actual losses arising from the storage in or removal of goods from that warehouse.

(b)     Notwithstanding paragraph (a), the Minister may determine a maximum percentage loss in respect of any class or kind of such goods by notice in the Gazette.

[Subsection (6) inserted by section 38 of Act 60 of 2008 – commencement date of subsection (6) to be proclaimed]

38A. Special provisions in respect of storage and clearance and release of stores or spares and equipment supplied to foreign-going ships and aircraft

(1)

(a)     This section applies to stores or spares and equipment –

(i)      stored in a licensed special customs and excise storage warehouse contemplated in section 21(1) and supplied by the licensee; or

(ii)     if goods in free circulation, supplied by any person, including a person who is the licensee of such warehouse (referred to in this section as the ‘exporter’), to foreign-going ships or aircraft.

(b)     Notwithstanding anything to the contrary contained in this Act, stores or spares and equipment free of duty may be stored in such a warehouse as may be prescribed by rule.

(c)     Unless otherwise specified by rule, stores or spares and equipment in such a warehouse may only be removed and delivered by the licensee.

(d)     Except as otherwise provided in this section or any rules made thereunder, any provision relating to a special customs and excise storage warehouse contemplated in section 21(1) and of sections 18A, 38, 59A, 60, 64E and 101 shall, as may be applicable, apply mutatis mutandis to the storage in, and the removal of goods from, such warehouse.

(e)

(i)      In this section and any provision of any Schedule or rule relating to stores or stores or spares and equipment for foreign-going ships or aircraft, ‘foreign-going ship’, ‘foreign-going aircraft’, ‘goods in free circulation’, ‘spares and equipment’, ‘stores’ and any other expression required to be defined shall, unless the context otherwise indicates, have the meaning assigned thereto in the rules for this section.

(ii)     In this section, unless the context otherwise indicates, ‘goods’ means the ‘stores or spares and equipment’ contemplated in this section.

(2)

(a)     Notwithstanding anything to the contrary contained in this Act, the Commissioner may by rule permit the licensee of such a warehouse or an exporter to supply goods to foreign-going ships or aircraft on the issuing by that licensee or exporter of a dispatch and delivery note or such other document as the Commissioner may prescribe or approve by rule, if the licensee or exporter-

(i)           . . . . . . ;

[Subparagraph (i) deleted by section 13 of Act 21 of 2021 effective on 19 January, 2022]

(ii)     for the purpose of electronic communication with the Commissioner, is a registered user in accordance with the provisions of section 101A and the rules made thereunder;

(iii)    complies with such conditions as the Commissioner may prescribe generally by rule or require in a specific instance; and

(iv)    keeps such books, accounts or other documents or data created by a computer of goods received, including goods returned, and removals as the Commissioner may prescribe generally by rule or require in a specific instance.

(b)     Any document issued by the licensee or exporter as contemplated in paragraph (a) shall, for the purpose of section 20(4) and subject to paragraph (c), be deemed to be due entry for export from the time of removal of such goods from the special customs and excise storage warehouse or the place from where the goods in free circulation are exported, as the case may be.

(c)

(i)      Any licensee who removes such goods from such a warehouse, or an exporter who exports such goods, by means of the issuing of a dispatch and delivery note or other document referred to in paragraph (a) shall deliver to the Controller a validating bill of entry export declaring those goods at the time, in the manner and containing such particulars as may be specified by rule in respect of such dispatch and delivery note or other document.

(ii)     Where any goods for which such a dispatch and delivery note or other document is issued is lost, destroyed, stolen or damaged after removal the licensee or exporter must at the same time pay the duty due on the goods.

(3)     The Commissioner may –

(a)     permit the return of stores or spares and equipment supplied by the licensee or exporter as contemplated in this section to the licensed premises or other place, as the case may be;

(b)     require the submission of dispatch and delivery notes or other documents electronically by such a person or class of persons in respect of such goods, in such circumstances and on such conditions and subject to compliance with such procedures as may be prescribed by rule.

(4)     The Commissioner may by rule prescribe for the purposes of this section or section 21(1)-

(a)     definitions as contemplated in subsection (1);

(b)     goods to which this section relates and any requirement to control the storage, removal and return of such goods;

(c)

(i)      the form of and the particulars to be slated on the dispatch and delivery note, any invoice or other document;

(ii)     the documents that must accompany the movement in each case of any stores, spares and equipment when removed for delivery by the licensee or exporter;

(d)     books, accounts and other documents and data to be kept;

(e)     all matters required or permitted by this section to be prescribed by rule;

(f)     any other matter which the Commissioner may consider reasonably necessary and useful for the effective administration of the provisions contained in this section.

[Section 38A inserted by section 28 of Act 18 of 2009]

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]

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]

39B.   Simplified clearance and release procedures

 

(1)     In this section and for the purposes of sections 39C and 39D, unless the context indicates otherwise-

‘incomplete bill of entry’ means a bill of entry containing at least the particulars as specified in subsection (5)(a) and prescribed by rule or determined in a specific instance;

‘periodic bill of entry’ means a supplementary bill of entry in respect of a previously delivered provisional or an incomplete bill of entry, which is delivered to the Commissioner periodically within the period prescribed in section 39C;

‘provisional bill of entry’ means a bill of entry containing all the particulars as set out on the prescribed form, but provisionally declaring certain particulars subject to delivery of a supplementary bill of entry by means of which the provisional particulars are corrected; and

‘supplementary bill of entry’ means a bill of entry that corrects a provisional bill of entry or completes an incomplete bill of entry and which, as contemplated in subsection (10), together with the provisional or incomplete bill of entry, complies with the requirements of section 39 and any other provision of this Act relating to the entry of the goods concerned.

(2)     Notwithstanding anything to the contrary contained in this Act, the Commissioner may, in accordance with the provisions of this section, generally and for a specific period or in a specific instance allow an importer or exporter to deliver a provisional or an incomplete bill of entry where the said person does not have all the information or documents required to make due entry.

 

(3)     An application for a provisional or an incomplete bill of entry may be made in respect of-

 

(a)     any imported goods to be entered for-

(i)      home consumption (including entry under any item of Schedule No. 3, 4 or 6);

(ii)     removal in bond; or

(iii)    placing in a licensed customs and excise warehouse; or

(b)     goods intended to be exported from the Republic.

(4)     Notwithstanding anything to the contrary contained in this Act, any approval by the Commissioner for the use of a provisional or an incomplete bill of entry in respect of goods to be removed in bond, shall be subject to such special procedures and conditions as the Commissioner may specify by rule or determine in a specific instance.

 

(5)

 

(a)     Except where the Commissioner otherwise determines, an incomplete bill of entry shall-

(i)      contain at least-

(aa)   the purpose for which the goods are being entered according to the prescribed purpose code;

(bb)   the name of the consignor, consignee and any applicable learing agent;

(cc)    the value of the goods;

(dd)   the origin of the goods;

(ee)   the quantity of the goods;

(ff)    a sufficiently precise description of the goods to determine the tariff heading and whether the importation or exportation thereof is prohibited or restricted under any law and, if so restricted, shall be accompanied by the required documentation authorising the importation or exportation of the goods concerned;

(gg)   applicable marks and numbers;

(hh)   container numbers;

(ij)     container seal numbers;

(kk)   cargo reference or cargo tracking numbers;

(ll)     Unique Consignment Reference (UCR) numbers referred to in the rules for section 38; and

(mm) the transport document number and date; and

(ii)     contain such other particulars as the Commissioner may prescribe by rule and that are required to-

(aa)   calculate the amount of security that may be required to be lodged in respect of such goods;

(bb)   identify the consignment and achieve effective customs control over the goods concerned; and

(cc)    release the goods.

(b)     The Commissioner may, on good cause shown, allow an importer or exporter, who is not able to declare the correct value of the goods, to declare a provisional value considered reasonable by the Commissioner.

(c)     The Commissioner may prescribe generally by rule or determine in a specific instance the supporting documentation that must accompany an application for an incomplete bill of entry.

 

(6)     A provisional bill of entry shall set forth the full particulars as indicated on the form and shall-

 

(a)     reflect the purpose for which the goods are being entered according to the prescribed purpose code;

(b)     contain a declaration by the importer or exporter stating the particulars that are only provisional;

(c)     be supported by the documents referred to in section 39 and, where applicable, by any documentation required under any other law authorising the importation or exportation of the goods.

 

(7)     An importer or exporter must, unless the Commissioner grants an extension under section 38(1)(a)(iii) or (3)(a)(ii), deliver any application for a provisional or an incomplete bill of entry within the periods contemplated in section 38(1)(a) or (3)(a).

 

(8)

 

(a)     The Commissioner may require any person applying for a provisional or an incomplete bill of entry to furnish the amount of security that the Commissioner may require in respect of any duties that may be payable, or become payable on such goods, pending the delivery of the supplementary bill of entry.

(b)     Notwithstanding anything to the contrary contained in this Act, any goods entered on a provisional or an incomplete bill of entry, shall be subject to-

(i)      the duty leviable thereon at the time; and

(ii)     the fulfilment of any obligation in terms of this Act in respect of any procedure under which the goods are entered, from the time of entry of those goods.

(c)     For the purposes of this section ‘time of entry’ shall be deemed to be the time when the provisional or incomplete bill of entry is delivered as contemplated in subsection (12), and where the goods concerned are released in terms of that subsection.

 

(9)

 

(a)     An importer shall, within seven days from the date of the delivery of a provisional or an incomplete bill of entry, and an exporter before the goods are exported unless exempted as contemplated in section 38(3)(a), deliver a supplementary bill of entry and pay any duty that may be due in respect thereof in compliance with the requirements of section 39(1) and (2), but any document authorising the importation or exportation of goods and presented with the application for a provisional or an incomplete bill of entry need not again be produced unless the Controller so requires.

(b)     A supplementary bill of entry shall include a reference to the relevant provisional or incomplete bill of entry.

(c)     A supplementary bill of entry shall be delivered to the same office where the provisional or incomplete bill of entry to which it relates was delivered.

(d)     The Commissioner may, on application by the importer or exporter before expiry of the period specified in paragraph (a), extend that period by not more than seven days where the Commissioner is satisfied that reasonable grounds exist on which the importer or exporter is not able to obtain the necessary information or documents in order to deliver the supplementary bill of entry.

 

(10)   Any supplementary bill of entry and any provisional or incomplete bill of entry preceding it and in respect of which it is made, shall be deemed to constitute a single indivisible bill of entry taking effect on the date of delivery of the provisional or incomplete bill of entry and shall on acceptance of the supplementary bill of entry for the purposes of this Act, be deemed to be due entry made of the goods concerned from that date.

 

(11)

 

(a)     The Commissioner may refuse an application for a provisional or an incomplete bill of entry in terms of this section where-

(i)      the importer or exporter concerned-

(aa)   has been convicted of a serious offence or repeated less serious offences under this Act;

(bb)   has failed to provide valid reasons for not being in possession of the information or documents contemplated in section 39 and any other provision of this Act;

(cc)    is not able to comply with subsection (5);

(dd)   is not registered as an importer or exporter as contemplated in section 59A and the rules made thereunder; or

(ee)   has failed to lodge the amount of security required by the Commissioner;

(ii)     the importation or exportation of the goods concerned is restricted under any other law and the importer or exporter is not in possession of the required documentation authorising the importation or exportation of the goods;

(iii)    the importer or exporter has not applied for a provisional or an incomplete bill of entry within the period specified in subsection (7).

(b)     Where the Commissioner has refused an application for a provisional or an incomplete bill of entry, the importer or exporter concerned shall, where the relevant period prescribed in section 38(1)(a) or (3)(a)-

(i)      has not yet expired, make due entry of the goods before the expiry of such a period;

(ii)     has expired, or will expire within three days from the date of refusal, make due entry of the goods within five days from the date of refusal and such period shall be deemed to be an extension granted by the Commissioner as contemplated in section 38(1)(a) or (3)(a).

 

(12)   The delivery of a provisional or an incomplete bill of entry to the Commissioner or a Controller, as appropriate, shall be deemed for the purposes of this section to be a finalised application for a provisional or an incomplete bill of entry by the importer or exporter concerned and the release of the goods entered on such a bill of entry by the Commissioner or a Controller shall be deemed to be the authorisation contemplated in subsection (2).

 

(13)   The Commissioner may by rule-

 

(a)     designate the customs offices authorised to accept applications for provisional or incomplete bills of entry;

(b)     limit the application of the provisions of this section to a certain class or kind of goods or exclude certain classes or kinds of goods if such goods-

(i)      present an undue risk to revenue;

(ii)     are entered for a purpose that will not be facilitated by the subsequent delivery of a supplementary bill of entry;

(iii)    are of a nature not suitable for control by a supplementary bill of entry or post-importation audit;

(c)     prescribe the manner in which the release of goods entered on a provisional or an incomplete bill of entry may be authorised; and

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

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

‘incomplete bill of entry’ means a bill of entry containing at least the particulars as specified in subsection (5)(a) and prescribed by rule or determined in a specific instance;

‘periodic bill of entry’ means a supplementary bill of entry in respect of a previously delivered provisional or an incomplete bill of entry, which is delivered to the Commissioner periodically within the period prescribed in section 39C;

‘provisional bill of entry’ means a bill of entry containing all the particulars as set out on the prescribed form, but provisionally declaring certain particulars subject to delivery of a supplementary bill of entry by means of which the provisional particulars are corrected; and

‘supplementary bill of entry’ means a bill of entry that corrects a provisional bill of entry or completes an incomplete bill of entry and which, as contemplated in subsection (10), together with the provisional or incomplete bill of entry, complies with the requirements of section 39 and any other provision of this Act relating to the entry of the goods concerned.

39B.   Simplified clearance and release procedures

 

(1)     In this section and for the purposes of sections 39C and 39D, unless the context indicates otherwise-

(2)     Notwithstanding anything to the contrary contained in this Act, the Commissioner may, in accordance with the provisions of this section, generally and for a specific period or in a specific instance allow an importer or exporter to deliver a provisional or an incomplete bill of entry where the said person does not have all the information or documents required to make due entry.

 

(3)     An application for a provisional or an incomplete bill of entry may be made in respect of-

 

(a)     any imported goods to be entered for-

(i)      home consumption (including entry under any item of Schedule No. 3, 4 or 6);

(ii)     removal in bond; or

(iii)    placing in a licensed customs and excise warehouse; or

(b)     goods intended to be exported from the Republic.

(4)     Notwithstanding anything to the contrary contained in this Act, any approval by the Commissioner for the use of a provisional or an incomplete bill of entry in respect of goods to be removed in bond, shall be subject to such special procedures and conditions as the Commissioner may specify by rule or determine in a specific instance.

 

(5)

 

(a)     Except where the Commissioner otherwise determines, an incomplete bill of entry shall-

(i)      contain at least-

(aa)   the purpose for which the goods are being entered according to the prescribed purpose code;

(bb)   the name of the consignor, consignee and any applicable learing agent;

(cc)    the value of the goods;

(dd)   the origin of the goods;

(ee)   the quantity of the goods;

(ff)    a sufficiently precise description of the goods to determine the tariff heading and whether the importation or exportation thereof is prohibited or restricted under any law and, if so restricted, shall be accompanied by the required documentation authorising the importation or exportation of the goods concerned;

(gg)   applicable marks and numbers;

(hh)   container numbers;

(ij)     container seal numbers;

(kk)   cargo reference or cargo tracking numbers;

(ll)     Unique Consignment Reference (UCR) numbers referred to in the rules for section 38; and

(mm) the transport document number and date; and

(ii)     contain such other particulars as the Commissioner may prescribe by rule and that are required to-

(aa)   calculate the amount of security that may be required to be lodged in respect of such goods;

(bb)   identify the consignment and achieve effective customs control over the goods concerned; and

(cc)    release the goods.

(b)     The Commissioner may, on good cause shown, allow an importer or exporter, who is not able to declare the correct value of the goods, to declare a provisional value considered reasonable by the Commissioner.

(c)     The Commissioner may prescribe generally by rule or determine in a specific instance the supporting documentation that must accompany an application for an incomplete bill of entry.

 

(6)     A provisional bill of entry shall set forth the full particulars as indicated on the form and shall-

 

(a)     reflect the purpose for which the goods are being entered according to the prescribed purpose code;

(b)     contain a declaration by the importer or exporter stating the particulars that are only provisional;

(c)     be supported by the documents referred to in section 39 and, where applicable, by any documentation required under any other law authorising the importation or exportation of the goods.

 

(7)     An importer or exporter must, unless the Commissioner grants an extension under section 38(1)(a)(iii) or (3)(a)(ii), deliver any application for a provisional or an incomplete bill of entry within the periods contemplated in section 38(1)(a) or (3)(a).

 

(8)

 

(a)     The Commissioner may require any person applying for a provisional or an incomplete bill of entry to furnish the amount of security that the Commissioner may require in respect of any duties that may be payable, or become payable on such goods, pending the delivery of the supplementary bill of entry.

(b)     Notwithstanding anything to the contrary contained in this Act, any goods entered on a provisional or an incomplete bill of entry, shall be subject to-

(i)      the duty leviable thereon at the time; and

(ii)     the fulfilment of any obligation in terms of this Act in respect of any procedure under which the goods are entered, from the time of entry of those goods.

(c)     For the purposes of this section ‘time of entry’ shall be deemed to be the time when the provisional or incomplete bill of entry is delivered as contemplated in subsection (12), and where the goods concerned are released in terms of that subsection.

 

(9)

 

(a)     An importer shall, within seven days from the date of the delivery of a provisional or an incomplete bill of entry, and an exporter before the goods are exported unless exempted as contemplated in section 38(3)(a), deliver a supplementary bill of entry and pay any duty that may be due in respect thereof in compliance with the requirements of section 39(1) and (2), but any document authorising the importation or exportation of goods and presented with the application for a provisional or an incomplete bill of entry need not again be produced unless the Controller so requires.

(b)     A supplementary bill of entry shall include a reference to the relevant provisional or incomplete bill of entry.

(c)     A supplementary bill of entry shall be delivered to the same office where the provisional or incomplete bill of entry to which it relates was delivered.

(d)     The Commissioner may, on application by the importer or exporter before expiry of the period specified in paragraph (a), extend that period by not more than seven days where the Commissioner is satisfied that reasonable grounds exist on which the importer or exporter is not able to obtain the necessary information or documents in order to deliver the supplementary bill of entry.

 

(10)   Any supplementary bill of entry and any provisional or incomplete bill of entry preceding it and in respect of which it is made, shall be deemed to constitute a single indivisible bill of entry taking effect on the date of delivery of the provisional or incomplete bill of entry and shall on acceptance of the supplementary bill of entry for the purposes of this Act, be deemed to be due entry made of the goods concerned from that date.

 

(11)

 

(a)     The Commissioner may refuse an application for a provisional or an incomplete bill of entry in terms of this section where-

(i)      the importer or exporter concerned-

(aa)   has been convicted of a serious offence or repeated less serious offences under this Act;

(bb)   has failed to provide valid reasons for not being in possession of the information or documents contemplated in section 39 and any other provision of this Act;

(cc)    is not able to comply with subsection (5);

(dd)   is not registered as an importer or exporter as contemplated in section 59A and the rules made thereunder; or

(ee)   has failed to lodge the amount of security required by the Commissioner;

(ii)     the importation or exportation of the goods concerned is restricted under any other law and the importer or exporter is not in possession of the required documentation authorising the importation or exportation of the goods;

(iii)    the importer or exporter has not applied for a provisional or an incomplete bill of entry within the period specified in subsection (7).

(b)     Where the Commissioner has refused an application for a provisional or an incomplete bill of entry, the importer or exporter concerned shall, where the relevant period prescribed in section 38(1)(a) or (3)(a)-

(i)      has not yet expired, make due entry of the goods before the expiry of such a period;

(ii)     has expired, or will expire within three days from the date of refusal, make due entry of the goods within five days from the date of refusal and such period shall be deemed to be an extension granted by the Commissioner as contemplated in section 38(1)(a) or (3)(a).

 

(12)   The delivery of a provisional or an incomplete bill of entry to the Commissioner or a Controller, as appropriate, shall be deemed for the purposes of this section to be a finalised application for a provisional or an incomplete bill of entry by the importer or exporter concerned and the release of the goods entered on such a bill of entry by the Commissioner or a Controller shall be deemed to be the authorisation contemplated in subsection (2).

 

(13)   The Commissioner may by rule-

 

(a)     designate the customs offices authorised to accept applications for provisional or incomplete bills of entry;

(b)     limit the application of the provisions of this section to a certain class or kind of goods or exclude certain classes or kinds of goods if such goods-

(i)      present an undue risk to revenue;

(ii)     are entered for a purpose that will not be facilitated by the subsequent delivery of a supplementary bill of entry;

(iii)    are of a nature not suitable for control by a supplementary bill of entry or post-importation audit;

(c)     prescribe the manner in which the release of goods entered on a provisional or an incomplete bill of entry may be authorised; and

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

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

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]

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]

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]