How to avoid Sars sampling abuse

Quintus van der Merwe, partner and trade specialist at lawyers Shepstone and Wylie, agreed with the answers from his fellow advocates but was not quite as acquiescent about the unlikelihood of retribution by Sars officials. “Regrettably,” he told FTW, “the system of container and cargo examinations is open to abuse by officers.” But importers do have recourse. “In the first instance,” he added, “it is desirable to ensure that an agent is present when a customs examination is carried out to ensure that there is no abuse in the drawing of ‘samples’.” But, where high-value goods are involved, Van der Merwe suggested that there might be an option in requesting an embargo release. “That,” he said, “is a release to the client’s designated premises – mainly to avoid storage and demurrage costs, but equally where the customs examination can be carried out in an environment that may avoid pilfering.” He also listed the legal clauses that cover this. The taking of samples is dealt with in Sections 106 and 107 of the Customs & Excise Act 91 of 1964. Section 106 allows officers to take, without payment, samples for the purposes of examination. Rule 106.02 dictates that the officer removing the samples must issue a receipt reflecting the full details of the samples. “This receipt,” he said, “must clearly reflect the officer’s name and signature and should be dated with an official customs and excise stamp.” Section 107 provides that the cost of analysing any samples to ensure compliance will be for the importer’s account. “That said, obviously samples are to be dealt with in terms of the Act and are not intended to find their way into ‘garage stock’ of naughty officers,” Van der Merwe added. “If they do, then the importer may lay a charge of theft and, in my view, would have an action for damages against Sars for the dishonest actions of its employee(s).” There is a legal precedent supporting such an action. “The ‘TDN Diamond’ case,” he told FTW, “dealt with the loss of goods in the State’s warehouse and our courts held Sars liable for the loss of goods through the negligent or dishonest conduct of its employees while in the care of the State.” But here comes the crunch. Said Van der Merwe: “Obviously, as is often the case, the difficulty arises in proving the crime. And, sometimes, there is blackmail – in that clients do not want to be seen to oppose customs for fear of reprisals.” So, the answers are all there – but it’s very much a case of “you pays your money, and you takes your chance”. CAPTION Quintus van der Merwe ... ‘cargo examinations open to abuse by officers.’