Sars shifts blame in smuggling cases

ALAN PEAT
THE FORWARDING industry has heaved a sigh of relief following a decision by SA Revenue Service (Sars) customs to shift the point of blame in smuggling cases. According to Brian Kalshoven, MD of Beitbridge Border Clearing Agency and regional representative for the SA Association of Freight Forwarders (Saaff), Sars will be implementing “a radical shift” in the prevention of and prosecution of parties involved in the smuggling of goods in November this year. “Previously customs always went after the clearing agent who had submitted the “declaration” (the new term for a bill of entry once the introduction of the SAD 500 is complete) which was presented for clearance of the load in question.” But in future customs legal eagles have told Saaff that they will – from November – pursue the “owner” of the goods. Under the current regime that word “owner” is open to a rather wide range of interpretation. In terms of Section 1 of Chapter 1 of the Customs and Excise Act, “owner” includes “any person lawfully acting on behalf of the owner”. “As may be imagined,” said Kalshoven, “this would include almost anyone who has anything to do with the consignment in question – that is clearing agent, banker, insurance agent, indent agent, transporter, transport broker, and the like.” Given this definition, customs is able to penalise - and even prosecute - the clearing agent who had made the declaration. “It was then up to that agency to fight the good fight,” said Kalshoven. “Even though, in 99.9% of cases, they would have had no knowledge of the illicit goods - the covert or even overt loading of the items having taken place hundreds or even thousands of kilometres away from their place of landing in the Republic.” But the clearing and forwarding industry has now been left out of the target zone. Customs’ aim now, according to the Sars legal team, is to hit - in terms of Section 93 of the act - the party more closely resembling the “owner” of the illicit goods; the “owner” of the legitimate goods carried with the illicit goods; and the transport operator of the vehicle carrying the illicit goods. “Section 93 allows the commissioner to, “on good cause shown”, remit or mitigate penalties or forfeiture of the vehicle and other goods,” said Kalshoven. “This means that if the transporter or owner of the legal goods can show that he was in no way responsible for the placement of the illicit
goods, he may not be held responsible for the penalties and/or lose the vehicle or goods.” Under the new interpretation of the rules related to smuggling, clearing agents will only be able to get involved on behalf of clients if they can produce a mandate or power of attorney from the cargo owners enabling them to do so. Said Kalshoven: “It is, therefore, clear that the fairly loose arrangement by which importers and exporters instruct their agents to act on their behalf must be formalised forthwith.” He also warns importers, exporters and transporters to make certain that their own houses are in order. “Then,” Kalshoven told FTW, “should illicit goods be found with their legitimate consignment, they would be able to prove “good care” or “good cause” had been taken in educating or warning their employees, drivers, invoicing clerks and the like of the ramifications and consequences of carelessness or deliberate falsification of information.