The South African Revenue Service (Sars) announced on August 22 that its Contravention List published on August 13 had been withdrawn and that, as a result, the previous list remains in effect. Therefore, any person who contravenes or fails to comply with any provisions of the Customs and Excise Act 1964 will be deemed to have committed a customs offence. In such cases, a deposit for a possible contravention can be charged by the relevant authority.

A person can decide to lodge a dispute against the customs offence or penalty imposed. Deposits for various contraventions under the Act can be called for, not only where goods are imported or exported but also if a licensee or registrant fails to comply.

The offences, penalties, disputes, and appeals are explained in terms of Administrative Penalties (AP), Internal Administrative Appeals (IAA) and Alternative Dispute Resolution (ADR).

AP

Section 91 of the Act outlines a procedure that is an alternative to criminal prosecution. The procedure may be considered when it has been established that the person in question “has contravened any provision of the Act or failed to comply with any such provision with which it was his duty to comply”.

The person has the right to choose to be dealt with in terms of the section. However, it is the Sars commissioner’s prerogative to decide whether to proceed with this alternative procedure or to initiate prosecution. The amount that the Sars commissioner may require may not exceed the maximum fine that could be imposed upon conviction for the contravention or failure in question, as provided for in the penal provisions of the Act. An amount demanded cannot be deposited under protest. The penal provisions (sections 78 to 86) of the Act outline the offences and potential sanctions if convicted in a court of law.

IAA

If a person disagrees with a decision made by a customs officer, he or she should first approach that officer’s immediate supervisor to clarify the decision and resolve any uncertainties. If the matter remains unresolved, the person may institute a formal IAA. If still dissatisfied with any decision taken by officers under the Act, the person has the right to appeal that decision to the relevant appeal committee. Appeals must be submitted using Form DA51 to the office that communicated the decision, or, where the decision relates to the declaration process, to the office indicated on the customs clearance declaration as the office of destination or departure.

Form DA51 must be delivered within 30 days from the date the person became aware of the decision or received reasons for the decision. Customs is required to provide the reasons for a decision in writing within 45 days from the date of acknowledgment of receipt or indicate if the reasons have already been provided.

Should the person be dissatisfied with a decision made by an appeal committee, he or she may lodge an application for an ADR with the appeal committee that made the decision. The committee will add its comments and forward the application to the ADR unit. It is important to note that an extension of 20 days may be granted if such extension is applied for prior to the 30-day period. If this period is exceeded, the IAA process cannot be followed, and the person’s only recourse will then be litigation.

ADR

In addition to the IAA process, the ADR process can be used as a recourse against a final decision made under the IAA process. The ADR process may be initiated by either the aggrieved person or Sars. However, it is up to Sars to determine the suitability of the ADR process for a specific case.

To apply for ADR, Form DA 52, ‘Application for ADR – External Form’, accompanied by supporting documents, must be submitted to the chairperson of the appeal committee. The chairperson will then inform the applicant of the decision within 30 days of the date of application. The Sars commissioner will decide whether the matter is appropriate for ADR and notify the person of this decision.