A case finalised last month shows just how much evidence a court needs before it can decide that you’ve proved your case. According to FTW’s legal eagle, Quintus van der Merwe, of Durban-based lawyers, Shepstone & Wylie, this case related to what is required of a clearing and forwarding agent to show that it is no longer liable for payment of duties. “In this instance the case fell under sections 18 and 18A of the Customs Act. But the same principles will apply to the many other instances where, in terms of section 102 of the Act, an importer or exporter bears the onus of proving compliance.” Although he expressed respect for the many customs officials who are tasked with the job of ensuring compliance, he still finds that one of the most misunderstood principles is “the onus of proof on the customer” in terms of section 102 or any other provision of the Act. However, the recent court case clearly defined just how much a clearing agent or importer would have to do to provide the onus of proof. “For one thing, the onus of proof can be discharged on a preponderance of probabilities. In other words, the party that bears the onus does not have to show beyond all doubt, or as some SA Revenue Service (Sars) officials think, to their subjective satisfaction. “Put differently, if the evidence indicates that the version is probable, then the onus is discharged.” The court also found that, where evidence is produced, that evidence must stand unless Sars is able to lead evidence to the contrary. “A final point to note is where Sars alleges fraud, falsification of documents or the like. It is not incumbent on the importer, exporter, clearing agent, to prove that there was not fraud. Sars must prove there was.”
