South Africa’s new customs
legislation has been more than
1000 days in the making.
It has been a massive and
complex undertaking trying to
bring South African customs
law in line with international
standards, including the revised
Kyoto Convention and the
World Customs Organisation’s
SAFE Framework, while at
the same time ensuring that
the legislation is in line with
the technological advances
that have been made since
since 1964 when the current
legislation was drafted.
The legislation and the
process of
writing it has
been under
scrutiny
since the very
beginning.
FTW set out
to determine
what has been
accomplished
and what still
lies ahead in
this long and
arduous process.
The first
rewrite of the current Customs
and Excise Act, 1964 officially
began in 2003.
“The Sars Modernisation
Programme was an integral
part of this process which
eventually led to the Customs
Control Act being published on
10 July 2014 and the Duty Act
and the Excise Amendment Act
on 23 July 2014,” said Clifford
Evans, a Cape Town based
customs expert who has been
closely involved in the process
from the beginning.
They are referred to as the
New Customs Act Programme
or NCAP – and industry has
waited with bated breath for
these pieces of legislation which
officially split the customs and
excise aspects of the law as is
currently the practice.
Concerns over the impact
of the new acts increased
substantially in the initial days
following publication. Not only
was the legislation far more
in-depth and longer than the
current act, but it also brought
massive changes to the customs
landscape.
“It became clear at the time
that industry needed to see
the rules to the acts to fully
understand and comprehend
the impact of the new
legislation,” said Evans. “In
a parliamentary hearing in
2013 the standing committee
on finance agreed that the
acts would only take effect
on a date determined by the
president by proclamation
once the final draft of the rules
and regulations had been
published.”
It was at
this stage, said
Evans, that
Sars undertook
to engage
with industry
stakeholders
– a process
that has been
ongoing since
2014.
The first
set of draft
rules to the
Control Act were published
for comment in mid-2014
and completed in April 2015
after which a second draft
of the rules was published in
December 2015 and completed
in April 2016.
“Currently, commentary has
been halted on these rules and
the third draft is being written.
This has yet to be published
and viewed by industry,” said
Evans.
The rules to the duty act
were published for comment in
March 2015 and a second draft
was published in September
2016. A third draft is also in the
process of being written and
there will be an opportunity to
comment on both third drafts.
It remains unclear when this
will be done, but expectations
are that the process will be
completed by the end of the
year. The rules to the excise
amendment act have yet to be
published.
Once the rules are all
completed the legislation can be
made effective. Implementation
of the new law, according to
Sars, will be done in phases, the
first of which is registration,
licensing and accreditation
(RLA). Whilst this was
expected to start in April
this year it has since become
apparent that before RLA can
take place, each and every
customs customer has to write
and pass a Customs Sufficient
Knowledge (CSK) test.
“The rules commentary
process alone has taken almost
three years and is yet to be
completed, so the only real
answer to the question where
we are today is that we are ‘in
limbo’,” said Evans. “We await
the third draft of the rules,
we await the implementation
of the Customs Sufficient
Knowledge test, and we
await the implementation of
Registration, Licensing and
Accreditation (RLA).
The proposed
implementation scheduled for
April 2017 has been postponed.
This was because the Sars
system was only 70-80% ready
at the time of going to press.
There was also uncertainty
regarding Sars implementing
the new acts without the final
rules having been published
– and the possible impact
this would have on trade, said
Evans.
“This is of concern as there
are still unresolved issues
under discussion as a result of
the commentary process and
these may have significant
implications in the clearing and
logistics sectors.”
He said a formal notification
from Sars on the CSK was yet
to be issued followed by one
relating to the RLA process.
According to Sars, complete
implementation of NCAP is
scheduled for no later than
2019 but even this date is
questionable, as none of the
deadlines set for 2017 have as
yet been met.
INSERT AND CAPTION
The new law will be
phased in, starting
with registration,
licensing and
accreditation.
– Clifford Evans
