‘Law-breakers must not expect leniency’

Those involved in the movement of goods into and out of South Africa need to be aware of the numerous laws governing this activity. The law many consider the most important in the governance of cross-border trade is the Customs & Excise Act 91 of 1964 (“the Act”). It is easy for a company to unintentionally fail to comply with certain provisions of the Act as well as other legislation administered by the Commissioner for Sars. Unfortunately, ignorance is no excuse for breaking the law. (It is difficult for Sars to differentiate between those who intentionally try to evade the payment of taxes and those who do so by genuine error.) The only way the Commissioner is able to ‘encourage’ compliance is through the issuance of penalties. He has been entrusted with the weighty responsibility of deciding a just, fair and reasonable amount. The punishment must of course fit the ‘crime’. Despite the provisions of the Act, the Commissioner must act in harmony with the provisions of the Constitution of the Republic of South Africa, the Promotion of Administrative Justice Act and the rules of natural justice. These laws draw attention to the fact that the imposition of a penalty must be reasonable, fair and just, taking the individual circumstances into account. A wise judge said that a penalty should not be used as a tool to swell the State coffers, but rather as a deterrent to any would-be offenders. If one is of the opinion that a penalty issued by Sars or a decision taken by Sars is unjust, the internal appeal process should be followed. The process surrounding the appeals against a decision taken by a Sars official is contained in section 77A – 77P to the Act and the rules thereto. Whilst the Commissioner is expected to be reasonable in the imposition of penalties, it is just as important that businesses act honestly and do all that is reasonably possible to acquaint themselves with the law – or at least engage those in the know. Anyone flagrantly breaking the law must not expect to receive any leniency from the Commissioner or the Courts. On whichever side of the fence we find ourselves, let us be committed to mutual co-operation.