Section 8 (Customs Act) – Cargo reports

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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]

Section 6A (Customs Act) – Special provisions in respect of customs controlled areas

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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]

Section 4B (Customs Act) – Possession and use of firearms

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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]

Section 4 (Customs Act) – General duties and powers of officers

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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]

(iiiA)  disclosing information to a person to whom access to such information has been granted in accordance with section 46 of the Promotion of Access to Information Act, 2000 (Act 2 of 2000);

[Paragraph (iiiA) inserted by section 5(a) of Act 43 of 2024]

(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, Industry and Competition;

(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 Forestry, Fisheries and the Environment;

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

(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;

(lA)    a person contemplated in paragraph (iiiA) of the first proviso to subsection (3); or

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

shall disclose any information supplied under any 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, or in circumstances where the information has been obtained in accordance with section 46 of the Promotion of Access to Information Act, 2000 (Act 2 of 2000).

[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, by section 12(c) of Act 33 of 2019 and by section 5(b) of Act 43 of 2024]

(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]

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

Posted on by admin_kmos

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]

Section 77E (Customs Act) – Appointment and function of appeal committee

Posted on by admin_kmos

77E.    Appointment and function of appeal committee

(1)     The Commissioner may appoint a committee of officers or a committee of officers and other persons to consider and decide appeals or make recommendations in relation to such appeals to the Commissioner.

(2)     An appeal committee may-

(a)     consider and decide; or

(b)     make recommendations to the Commissioner on matters prescribed by rule.

(3)     Any decision signed by the chairperson of the appeal committee shall be regarded as a decision of the committee and to have been made by an officer.

(4)     The chairperson of the appeal committee must maintain a record of the proceedings prescribed by rule.

[Section 77E effective on 4 June 2007]

Section 77C (Customs Act) – Submission of appeal

Posted on by admin_kmos

77C.    Submission of appeal

(1)     Any person who submits an appeal provided for in this Part must submit such appeal in accordance with the requirements prescribed by rule.

[Subsection (1) substituted by section 21 of Act 32 of 2005 and section 15 of Act 36 of 2007]

(2)     The appeal may be brought by the person concerned or a duly authorized representative.

[Section 77C effective on 4 June 2007]

Section 75 (Customs Act) – Specific rebates, drawbacks and refunds of duty

Posted on by admin_kmos

75. Specific rebates, drawbacks and refunds of duty

(1)     Subject to the provisions of this Act and to any conditions which the Commissioner may impose –

(a)     any imported goods described in Schedule No.   3 shall be admitted under rebate of any customs duties or excise duty applicable in respect of such goods at the time of entry for home consumption thereof, to the extent and for the purpose or use stated in the item of Schedule No. 3 in which they are specified;

[Paragraph (a) substituted by section 95 of Act 35 of 2007 effective on 1 April 2012]

(b)     any imported goods described in Schedule No. 4 shall be admitted under rebate of any customs duties, excise duty, fuel levy or Road Accident Fund levy applicable in respect of such goods at the time of entry for home consumption thereof, or if duly entered for export and exported in accordance with such entry, to the extent stated in, and subject to compliance with the provisions of the item of Schedule No. 4 in which such goods are specified;

[Paragraph (b) substituted by section 13 of Act 68 of 1989, section 61 of Act 30 of 2000, section 130 of Act 60 of 2001, section 92 of Act 31 of 2005 and section 95 of Act 35 of 2007 effective on 1 April 2012]

(c)     a drawback or a refund of the customs duty, excise duty, surcharge, fuel levy and Road Accident Fund levy actually paid on entry for home consumption on any imported goods described in Schedule No. 5 shall be paid to the person who paid such duties or any person indicated in the notes to the said Schedule, subject to compliance with the provisions of the item of the said Schedule in which those goods are specified; and

[Paragraph (c) substituted by section 27 of Act 112 of 1977, section 23 of Act 84 of 1987, section 13 of Act 61 of 1992, section 50 of Act 19 of 2001,section 92 of Act 31 of 2005 and section 95 of Act 35 of 2007 effective on 1 April 2012]

(d)     in respect of any excisable goods or fuel levy goods manufactured in the Republic described in Schedule No. 6, a rebate of the excise duty specified in Part 2 of Schedule No. 1 or of the fuel levy and of the Road Accident Fund levy specified respectively in Part 5A and Part 5B of Schedule No. 1 in respect of such goods at the time of entry for home consumption thereof, or if duly entered for export and exported in accordance with such entry, or a refund of the excise duty, fuel levy or Road Accident Fund levy actually paid at the time of entry for home consumption shall be granted to the extent and in the circumstances stated in the item of Schedule No. 6 in which such goods are specified, subject to compliance with the provisions of the said item and any refund under this paragraph may be paid to the person who paid the duty or any person indicated in the notes to the said Schedule No. 6:

Provided that any rebate, drawback or refund of Road Accident Fund levy as contemplated in paragraph (b), (c) or (d), shall only be granted as expressly provided in Schedule No. 4, 5 or 6 in respect of any item of such Schedule.

[Paragraph (d) substituted by section 23(b) of Act 84 of 1987, by section 50(1)(a) of Act 19 of 2001, by section 130(1)(b) of Act 60 of 2001, by section 92(1)(c) of Act 31 of 2005, by section 95(1)(a) of Act 35 of 2007 and by section 16(1)(a) of Act 21 of 2021 effective on 19 January 2022]

(e)     ……….

[Paragraph (e) added by section 24 of Act 105 of 1969 and deleted by section 29 of Act 59 of 1990]

(f)     ……….

[Paragraph (f) added by section 23 of Act 84 of 1987, amended by section 8 of Act 69 of 1988, section 29 of Act 59 of 1990, section 13 of Act 61 of 1992 and section 53 of Act 45 of 1995 and deleted by section 50 of Act 19 of 2001]

(g)     ……….

[Paragraph (g) added by section 23 of Act 84 of 1987, amended by section 8 of Act 69 of 1988 and deleted by section 53 of Act 45 of 1995]

(1A)  Notwithstanding anything to the contrary contained in this Act or any other law –

(a)    

(i)      a refund of the fuel levy leviable on distillate fuel in terms of Part 5A of Schedule No. 1; and

(ii)     a refund of the Road Accident Fund levy leviable on distillate fuel in terms of Part 5B of Schedule No. 1; or

(iii)    only a refund of such Road Accident Fund levy,

shall be granted in accordance with the provisions of this section and of item 670.04 of Schedule No. 6 to the extent stated in that item;

[Paragraph (a) substituted by section 92 of Act 31 of 2005 and amended by section 70 of Act 20 of 2006 and section 95 of Act 35 of 2007]

(b)     such refunds shall be granted to any person who –

(i)      has purchased and used such fuel in accordance with the provisions of this section and the said item of Schedule No. 6; and

[Subparagraph (i) substituted by section 95 of Act 35 of 2007]

(ii)     is registered, in addition to any other registration required under this Act, for value-added tax purposes under the provisions of the Value-Added Tax Act, 1991 (Act No. 89 of 1991), and for diesel refund purposes on compliance with the requirements determined by the Commissioner for the purposes of this Act and the Value-Added Tax Act;

 (c)    the Commissioner may withdraw money from the National Revenue Fund for refunding the amount of such Road Accident Fund levy as if it were a fuel levy leviable and paid under this Act and refundable in terms of the said item of Schedule No. 6;

[Paragraph (c) substituted by section 95 of Act 35 of 2007]

(d)     the Commissioner may –

(i)      pay any such refund upon receipt of a duly completed return from any person who has purchased distillate fuel for use as contemplated in the said item of Schedule No. 6;

[Subparagraph (i) substituted by section 95 of Act 35 of 2007]

(ii)     pay any such refund by means of the system in operation for refunding value-added tax; and

(iii)    for the purposes of payment, set off any amount refundable to any person in terms of the provisions of this section and the said items against any amount of value-added tax payable by such person;

(e)     any such payment or set-off by the Commissioner shall be deemed to be a provisional refund for the purpose of this section and the said item of Schedule No. 6 subject to the production of proof by the user referred to in subsection (1C)(b) at such time and in such form as the Commissioner may determine that the distillate fuel has been –

(i)      purchased as claimed on the application for a diesel refund; and

(ii)     used in accordance with the provisions of this section and the said item of Schedule No. 6;

[Paragraph (e) substituted by section 95 of Act 35 of 2007]

(f)     the provisions of the Value-Added Tax Act, 1991 (Act No. 89 of 1991), shall mutatis mutandis apply in respect of the payment of interest on any amount of fuel levy or Road Accident Fund levy which is being recovered as it is in excess of the amount due or is not duly refundable.

[Subsection (1A) inserted by section 8 of Act 69 of 1988, amended by section 53 of Act 45 of 1995 and substituted by section 50 of Act 19 of 2001]

(1B) 

(a)     The Commissioner shall, at the end of each calendar month, furnish an audited statement, as may be agreed upon between the Commissioner and the Chief Executive Officer of the Road Accident Fund referred to in section 12 of the Road Accident Fund Act, 1996 (Act No. 56 of 1996), to the said Chief Executive Officer, reflecting the quantity of diesel in litres and the amount of the Road Accident Fund levy refunded thereon during such month.

(b)     The Chief Executive Officer of the Road Accident Fund shall repay to the Commissioner the amount of the Road Accident Fund levy refunded by the Commissioner not later than the last working day of each calendar month immediately succeeding the calendar month covered by the statement furnished by the Commissioner.

(c)     Any amount so repaid by the Road Accident Fund shall be paid into the National Revenue Fund as if it were a recovery of fuel levy refunded under this section.

(d)     For the purposes of this Act, any refund of Road Accident Fund levy by the Commissioner to any applicant shall be deemed to be a refund of duty and any amount paid which was not duly payable or in excess of the amount due to the applicant shall be recoverable as provided in section 76A and shall, when recovered, be repaid to the Road Accident Fund by the Commissioner each calendar month.

(e)     The Commissioner may enter into a written agreement with the Chief Executive Officer of the Road Accident Fund to regulate any incidental matter which it may be necessary or expedient to regulate in order to achieve or promote the objects of this subsection.

[Subsection (1B) added by section 50 of Act 19 of 2001]

(1C) 

(a)     Notwithstanding the provision of subsection (1A), the Commissioner may investigate any application for a refund of such levies on distillate fuel to establish whether the fuel has been –

(i)      duly entered or is deemed to have been duly entered in terms of this Act;

(ii)     purchased in the quantities stated in such return;

(iii)    delivered to the premises of the user and is being stored and used or has been used in accordance with the purpose declared on the application for registration and the said item of Schedule No. 6.

[Subparagraph (iii) substituted by section 95 of Act 35 of 2007]

Section 67 (Customs Act) – Adjustments to price actually paid or payable

Posted on by admin_kmos

67. Adjustments to price actually paid or payable

(1)     In ascertaining the transaction value of any imported goods in terms of section 66(1), there shall be added to the price actually paid or payable for the goods –

(a)     to the extent that they are incurred by the buyer but are not included in the price actually paid or payable –

(i)      any commission other than a buying commission;

(ii)     brokerage;

(iii)    the cost of packing, including that of the labour and materials concerned;

(iv)    the cost of containers which are dealt with as being for customs purposes one with the goods;

(b)     the value, apportioned to the imported goods as deemed appropriate by the Commissioner, of any of the following goods and services if supplied directly or indirectly by the importer free of charge or at reduced cost, for use in connection with the production and sale for export of the imported goods, to the extent that such value has not been included in the price actually paid or payable, namely –

(i)      materials, components, parts and similar articles forming part of the goods;

(ii)     tools, dies, moulds and similar articles used in the production of the goods;

(iii)    materials consumed in the production of the goods;

(iv)    engineering, development work, art work, design work, plans and sketches undertaken elsewhere than in the Republic and necessary for the production of the goods;

(c)     royalties and licence fees in respect of the imported goods, including payments for patents, trade marks and copyright and for the right to distribute or resell the goods, due by the buyer, directly or indirectly, as a condition of sale of the goods for export to the Republic, to the extent that such royalties and fees are not included in the price actually paid or payable, but excluding charges for the right to reproduce the imported goods in the Republic;

(d)     the value of any part of the proceeds of any subsequent resale, disposal or use of the imported goods that accrues directly or indirectly to the seller; and

(e)     to the extent that they are not included in the price actually paid or payable for the goods, the cost of transportation, loading, unloading, handling and insurance and associated costs incidental to delivery of the goods at the port or place of export in the country of exportation and placing those goods on board ship or on any vehicle at that port or place.

[Paragraph (e) substituted by section 6 of Act 69 of 1988, section 11 of Act 68 of 1989, section 27 of Act 59 of 1990 and section 98 of Act 60 of 2008]

(2)     In ascertaining the transaction value of any imported goods in terms of section 66(1), there shall be deducted from the price actually paid or payable for the goods, to the extent that they are included therein, amounts equal to –

(a)     the cost of transportation and the cost of loading, unloading, handling, insurance and associated costs incidental to the transportation of the goods from the port or place of export in the country of exportation to the port or place of importation in the Republic;

(b)     any of the following costs, charges or expenses if identified separately from the balance of the price actually paid or payable for the goods, namely –

(i)      any expenditure incurred for the construction, erection, assembly or maintenance of, or technical assistance provided in respect of, the goods after they are imported;

(ii)     the cost of transport and insurance of the goods within the Republic;

(iii)    any duties or taxes paid or payable by reason of the importation of the goods or sale of the goods in the Republic;

(iv)    any duty or tax applicable in the country of exportation from which the goods have been or will be relieved by way of refund, drawback, rebate or remission;

(v)     ………..

[Subparagraph (v) deleted by section 98 of Act 60 of 2008]

(vi)    interest charged in respect of the price payable for the goods;

(vii)   any charge for the right to reproduce the imported goods in the Republic.

(3)     For the purposes of subsection (1)(e) or (2)(a), goods which are exported to the Republic from any country but pass in transit through another country shall, subject to such conditions as may be prescribed by rule, be deemed to have been exported direct from the first-mentioned country.

[Subsection (3) substituted by section 50 of Act 45 of 1995]

(4)     For the purposes of subsection (1)(e) or (2)(a), the port or place of export referred to therein shall be the place in the country of exportation where the goods in question –

(a)     are placed on board ship or on any vehicle which conveys them from or across the border of that country; or

[Paragraph (a) substituted by section 98 of Act 60 of 2008]

(b)     if they are ships or vehicles moving under their own power, finally leave that country for the Republic.

[Subsection (4) amended by section 11 of Act 68 of 1989 and substituted by section 27 of Act 59 of 1990]

[Section 67 substituted by section 6 of Act 85 of 1968, repealed by section 22 of Act 112 of 1977 and inserted by section 15 of Act 86 of 1982]


68. ……….

[Section 68 repealed by section 22 of Act 112 of 1977]