[Heading substituted by section 13(a) of the Tax Administration Laws Amendment Act, 2020 (Act No. 24 of 2020), GG44080, dated 20 January 2021 - pending its repeal by the Customs and Excise Amendment Act, 2014 (Act No. 32 of 2014)]
| (1) | If entry of any goods imported or goods to be exported on which an export duty is payable has not been made under the provisions of section 38— |
[Words preceding section 43(1)(a) substituted by section 13(b) of the Tax Administration Laws Amendment Act, 2020 (Act No. 24 of 2020), GG44080, dated 20 January 2021 - pending its repeal by the Customs and Excise Amendment Act, 2014 (Act No. 32 of 2014)]
| (a) | in the case of goods in a container depot within 28 days from the date the goods were landed; or |
| (b) | in the case of any other goods, on expiry of the period stated in, or prescribed in any rule contemplated in, subsection (1) or (3)(b) of the said section, |
the master, pilot or other carrier, container operator, depot operator, person in control of a container terminal or transit shed or other person who has control of such goods in terms of any provision of this Act shall furnish a list thereof together with all available documents to the Controller and shall remove the goods to—
| (ii) | such other place indicated by the Controller; or |
(c) the Controller may—
| (i) | where any such person fails to remove the goods as required in terms of subparagraph (i) or (ii), at the risk and expense of such person, so remove the goods; or |
| (ii) | allow the goods, subject to such conditions as the Controller may impose, to remain under the control of such person. |
(2)
| (a) | Whenever any goods are so removed to or allowed to remain at any place other than the State warehouse such a place shall, subject to the provisions of this section, be deemed to be a State warehouse for the purposes of this Act. |
| (b) | Any person who has control of any premises where such goods are stored shall— |
| (i) | be responsible for such goods as if the goods were kept in a State warehouse from the date the Controller so indicates or so allows the goods to remain at such place; |
| (ii) | be liable for the duty on such goods as long as the goods remain at such place; |
| (iii) | be entitled to payment of the outstanding amount due in respect of the storage of those goods at the time of sale from the proceeds of the sale of those goods as charges according to the order contemplated in subsection (3). |
| (i) | Where any person who has control of premises as contemplated in paragraph (b) is entitled to payment in terms of that paragraph, that person may not, whether or not he or she receives any amount from the proceeds of sale as contemplated in that paragraph, collect any storage charges from the purchaser of the goods on a sale. |
| (ii) | Where the goods are cleared and delivery granted by the Controller before the time of sale of the goods as contemplated in paragraph (b), the person having control thereof is entitled to collect his or her storage charges in respect of the goods and no State warehouse rent is payable for the time the goods remained under control of that person. |
(c)
| (i) | The Commissioner shall compile a list of all the goods in the State warehouse or deemed to be in the State warehouse as provided in this section reflecting the date of importation or intended export, the distinguishing marks and numbers, a description of the goods, the name and address of the importer or exporter, if known, the name of the carrier and any other relevant person contemplated in subparagraph (ee), the location of the goods and any other information available and shall— |
[Words preceding section 43(2)(c)(i)(aa) substituted by section 13(d) of the Tax Administration Laws Amendment Act, 2020 (Act No. 24 of 2020), GG44080, dated 20 January 2021 - pending its repeal by the Customs and Excise Amendment Act, 2014 (Act No. 32 of 2014)]
| (aa) | obtain and keep a copy of the manifest, transport document, outturn report and any other document available relating to the exportation, carriage and importation of the goods; |
| (bb) | update the list weekly; |
| (cc) | display the list on a notice board in the office of the Controller and at the State warehouse; |
| (dd) | place the list on the SARS website specified by rule and keep a print–out of such list and every amendment thereof; |
| (ee) | notify by facsimile transmission or other means the the importer or exporter, where the importer or exporter and the address of the importer or exporter are known, and any other person known to the Commissioner to be involved or who may reasonably be expected to be involved in the exportation or importation including, where relevant, the container operator, any port authority, a transit shed operator, any other person in control of freight landed from any carrier, the carrier or agent for the carrier, the clearing agent and the exporter or supplier of the goods. |
[Words in section 43(2)(c)(i)(ee) substituted by section 13(e) of the Tax Administration Laws Amendment Act, 2020 (Act No. 24 of 2020), GG44080, dated 20 January 2021 - pending its repeal by the Customs and Excise Amendment Act, 2014 (Act No. 32 of 2014)]
| (ii) | The contents of the list so displayed and included in the website shall be deemed to be sufficient notification to the importer, exporter or any other person who has any right or interest in the goods concerned that unless the goods are duly entered in accordance with the provisions of this Act they will be disposed of in terms of this section. |
[Words in section 43(2)(c)(ii) substituted by section 13(f) of the Tax Administration Laws Amendment Act, 2020 (Act No. 24 of 2020), GG44080, dated 20 January 2021 - pending its repeal by the Customs and Excise Amendment Act, 2014 (Act No. 32 of 2014)]
| (2A) | The Commissioner may— |
| (a) | by rule amend or substitute any requirement or prescribe any additional requirement relating to any document or procedure contemplated in subsection (2); |
| (b) | notwithstanding anything to the contrary contained in section 4(3) or in any other law, for the purposes of this section, disclose by publication or otherwise any information acquired regarding any person, goods, firm or business to which this section relates. |
| (3) | If after the expiration of 60 days from the date of removal to the State warehouse or other place indicated by the Controller or, where no such removal has taken place, from the date of expiry of the period prescribed in section 38(1) or (3)(b), any goods remain unentered the Commissioner may cause them, except if they have been imported in contravention of any law, to be sold, and if so sold the proceeds thereof shall be applied in discharge of any duty, expenses incurred by the Commissioner, charges due to the Commissioner (including any State warehouse rent), a port or railway authority, the Department of Transport, a container operator or a depot operator, or any person other than a container operator or depot operator who had control over premises where the goods were so stored as contemplated in subsection(2), freight and salvage as provided for in section 16 of the Wreck and Salvage Act, 1996 (Act No. 94 of 1996), in that order, and the surplus if any, shall, upon application be paid to the owner of the said goods: Provided that— |
[Words preceding section 43(3)(a) substituted by section 13(g) of the Tax Administration Laws Amendment Act, 2020 (Act No. 24 of 2020), GG44080, dated 20 January 2021 - pending its repeal by the Customs and Excise Amendment Act, 2014 (Act No. 32 of 2014)]
| (a) | if any goods cannot be sold at a price regarded by the Commissioner as reasonable having regard to the duty, expenses and charges in respect of such goods, the Commissioner may direct that the goods concerned be destroyed or appropriated to the State without payment of any duty; |
| (b) | where any goods are sold at a price which is insufficient to cover the duty, such expenses, charges and freight, the Commissioner may apply the proceeds in discharge thereof in the order mentioned. |
| (c) | no payment of overplus in respect of goods sold shall be made to the owner of the goods, unless the application for such payment is supported by proof of ownership of the goods and is received by the Commissioner within two years from the date of sale of the goods. |
| (4) | Notwithstanding anything to the contrary in this Act contained— |
| (a) | if any goods referred to in subsection (3) are of a perishable or dangerous nature, or if the Commissioner considers that, unless the goods are sold at once, the proceeds would not be sufficient to cover the duties and charges due or charges which may become due in respect of those goods, he may forthwith direct the sale thereof and apply the proceeds as provided in subsection (3); |
| (b) | if any goods are sold in terms of this section subject to compliance by the purchaser with any condition, and the purchaser fails to comply with such condition within a period of three months from the date of sale of such goods, such sale shall be null and void and the net proceeds of sale may be refunded to the purchaser and the Commissioner may direct that the goods in question be destroyed or appropriated to the State or be dealt with in such manner as he may deem fit. |
(5)
| (a) | Where the Commissioner on reasonable grounds determines that any goods to which this section relates or any goods which are detained as contemplated in section 113(8), have been imported or exported in contravention of any law other than this Act, the Commissioner may, except in the case of goods detained under section 113A for the purposes of the Counterfeit Goods Act, 1997 (Act No. 37 of 1997), request the South African Police Service or the authority administering such law— |
| (i) | to take delivery of such goods for the purposes of instituting any civil proceedings or criminal prosecution or to take any other action in terms of such law within 60 days or such further time as the Commissioner may specify in such request; |
| (ii) | if it is not intended to act as contemplated in subparagraph (i) to advise the reasons therefor within such period; or |
| (iii) | to authorise the Commissioner, as contemplated in paragraph (e), to deal with such goods under the provisions of this section. |
| (b) | When delivery is taken as contemplated in paragraph (a), such goods shall not be allowed to enter into home consumption in the Republic unless they have been duly entered, and any duty and value-added tax payable thereon have been paid to the Controller under whose control they were at the time of such delivery. |
(c)
| (i) | The Commissioner shall at the time of such request notify any relevant person contemplated in subsection (2)(c)(i)(ee) of such request and that if delivery of the goods is not taken the goods will be disposed of as provided for in this section. |
(ii)
| (aa) | Particulars of such goods shall be included in a separate section of the list contemplated in subsection (2)(c)(i) and cross-referenced to any other unentered goods included in such list. |
| (bb) | The provisions of subsection (2)(c)(i) shall otherwise mutatis mutandis apply to the goods to which this subsection relates. |
| (cc) | Notwithstanding subparagraph (i), the contents of the list so displayed and placed on the website shall be deemed to be sufficient notification to the importer, exporter or any other person who has any right or interest in the goods concerned that the goods will be disposed of in terms of this section. |
[Words in section 43(5)(c)(ii)(cc) substituted by section 13(h) of the Tax Administration Laws Amendment Act, 2020 (Act No. 24 of 2020), GG44080, dated 20 January 2021 - pending its repeal by the Customs and Excise Amendment Act, 2014 (Act No. 32 of 2014)]
| (d) | If the South African Police Service or such authority fails to take such delivery or after taking delivery does not institute civil proceedings or criminal prosecution or take any other action under the relevant law within any reasonable period allowed by the Commissioner or has authorised the Commissioner to deal with such goods under the provisions of this section as contemplated in paragraph (e) and no person has given notice of intention to claim release of the goods within 60 days after inclusion thereof in the list referred to in paragraph (c), such goods shall notwithstanding anything to the contrary in this Act or in the relevant other law contained, be deemed to be condemned and forfeited under the provisions of this Act and the Commissioner may dispose thereof as provided in this section. |
| (e) | Notwithstanding the provisions of any other law, the authority administering such other law or the South African Police, may authorise the Commissioner to deal with any goods imported or exported in contravention of such law in terms of the provisions of this section. |
(6)
| (a) | Where any goods are seized and detained under the Counterfeit Goods Act, 1997, as contemplated in section 113A of this Act and the importer is not known or cannot despite reasonable efforts be located and no criminal or civil proceedings are instituted or no instruction is received for the release of the goods as contemplated in section 9(2) of the Counterfeit Goods Act, 1997, such goods shall, notwithstanding anything to the contrary in this Act or the said Counterfeit Goods Act, 1997, contained, be subject to this section. |
| (b) | Where goods are seized and detained in the circumstances contemplated in paragraph (a), such goods shall, notwithstanding anything to the contrary contained in the Counterfeit Goods Act, 1997, be removed for detention to the State warehouse |
| (c) | Subsection (5)(c) shall apply mutatis mutandis in respect of goods to which this subsection relates. |
| (d) | If no person gives any notice of the intention to claim release of the goods within 60 days after inclusion in the list referred to in paragraph (c), such goods shall be deemed to be condemned and forfeited under the provisions of this Act. |
(7)
| (a) | Any goods appropriated to the State as contemplated in subsection (3)(a), any goods condemned and forfeited as contemplated in subsections (5) and (6), any goods condemned and forfeited as contemplated in sections 89 and 90 and any goods referred to in subsection (10)(a), may be disposed of as provided in paragraph (b) by the Commissioner in consultation with the Directors-General of the National Treasury and of Trade and Industry or, where appropriate, with a Director-General of any other department. |
| (aa) | except any goods appropriated to the State or goods which have been imported in contravention of any other law, be sold by public auction or by tender for home consumption in the Republic; |
| (bb) | be sold by public auction or by tender for export to a destination outside the common customs area; |
| (iii) | be transferred for use to any organ of State on payment of any expenses incurred by the Commissioner in connection with such goods; |
| (iv) | be made available at the premises where they are kept to the Department of Welfare or any other body determined by the Commissioner for the purposes of providing disaster relief or basic human necessities for indigent persons in the Republic or for donation to any country in need of aid for such persons; or |
| (v) | be disposed of for any other purpose or in any other manner which the Commissioner considers to be in the public interest. |
| (c) | If the Commissioner so determines, the importer or exporter, as the case may be, or if the importer or exporter cannot be found or is unable to pay, the South African Police Service or any authority administering the other laws referred to in subsection (5) shall reimburse the Commissioner for expenses incurred in storing and disposing of or otherwise dealing with such goods. |
| (d) | Except for the liability for duty in terms of the proviso to section 87(1), no duty shall be payable on any goods to which this subsection relates on disposal as contemplated in paragraph (b), but any duty paid on such goods shall not be refundable. |
[Section 43(7)(d) amended by section 14 of Act No. 44 of 2014]
| (8) | The provisions of subsections (5), (6) and (7) shall, subject to the provisions of sections 89 and 90, mutatis mutandis apply to any goods detained or seized under this Act that were imported, exported, manufactured or used, or otherwise dealt with in contravention of the provisions of this Act and any other law: Provided that where the Commissioner is satisfied on reasonable grounds that the owner did not know that the goods were imported in contravention of this Act and such other law and the Commissioner is satisfied that the goods do not constitute a danger to public health or the public and complies with any compulsory specification contemplated in the Standards Act, 1993, the Commissioner may, instead of disposing of the goods as contemplated in subsection (7), deliver the goods to the owner in accordance with the provisions of section 93. |
| (9) | The provisions of subsection (7)(b)(iv) shall apply to any goods donated to the Commissioner by the owner of any intellectual property right after an appropriate order of court as contemplated in section 10 of the Counterfeit Goods Act, 1997. |
(10)
| (a) | The provisions of subsection (3), (4), (5) or (6), as the case may be, and subsection (7) shall mutatis mutandis apply in respect of any goods abandoned to the Commissioner under any provision of this Act and any goods referred to in section 42 or 107(1)(b). |
| (b) | The provisions of sections 89, 90 and 96 shall notwithstanding anything to the contrary contained in the laws concerned, mutatis mutandis apply in respect of any claim for the release of goods to which subsection (5) or (6) relates. |
| (11) | The Commissioner may make rules— |
| (a) | to delegate or assign, subject to section 3(2), any of the powers that may be exercised or assign any of the duties that shall be performed by the Commissioner under this section to any officer; |
| (b) | regarding all matters which are required or permitted in this section to be prescribed by rule; |
| (c) | to regulate any matter that the Commissioner may consider reasonably necessary and useful for the purposes of administering the provisions of this section. |
