Burden of proof on agent

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.”