| (i) |
Any amount of any duty, interest, fine, penalty or forfeiture incurred under this Act and which is payable in terms of this Act, shall, when it becomes due or is payable, be a debt due to the State by the person concerned and shall be recoverable by the Commissioner in the manner hereinafter provided. |
| (ii) |
If any person fails to pay any amount of any duty, interest, fine, penalty or forfeiture incurred under this Act, when it becomes due or is payable by such person, the Commissioner may file with the clerk or registrar of any competent court a statement certified by him as correct and setting forth the amount thereof so due or payable by that person, and such statement shall thereupon have all the effects of, and any proceedings may be taken thereon as if it were a civil judgement lawfully given in that court in favour of the Commissioner for a liquid debt of the amount specified in the statement. |
(iii)
| (aa) |
The Commissioner may by notice in writing addressed to the clerk or registrar, withdraw the statement referred to in subparagraph (ii), and such statement shall thereupon cease to have any effect: Provided that the Commissioner may institute proceedings afresh under that subsection in respect of any duty, interest, fine, penalty or forfeiture referred to in the withdrawn statement. |
| (bb) |
Notwithstanding anything contained in the Magistrates' Courts Act, 1944 (Act 32 of 1944), a statement for any amount whatsoever may be filed in terms of subparagraph (ii) with the clerk of the magistrate's court having jurisdiction in respect of the person by whom such amount is payable in accordance with the provisions of this Act. |
| (cc) |
Pending the conclusion of any proceedings, whether internally or in any court, regarding a dispute as to the amount of any duty, interest, fine, penalty or forfeiture payable, the statement filed in terms of subparagraph (ii) shall, for purposes of recovery proceedings contemplated in subparagraph (ii), be deemed to be correct. |
| (A) |
Any imported or excisable goods, vehicles, machinery, plant or equipment, any goods in any customs and excise warehouse, any goods in a rebate store room, any goods in the custody or under the control of the Commissioner and any goods in respect of which an excise duty or fuel levy is prescribed, and any materials for the manufacture of such goods, of which such person is the owner, whether imported, exported or manufactured before or after the debt became so due and whether or not such goods are found in or on any premises in the possession or under the control of the person by whom the debt is due, may be detained in accordance with the provisions of subsection (2) and shall be subject to a lien until such debt is paid. |
| (B) |
Whenever a person alleges that he or she is not the owner of goods as contemplated in subitem (A), he or she must furnish proof thereof to the Commissioner within 14 days from the date of the detention of the goods. |
| (C) |
Where the person concerned proves that he or she is not the owner of the goods as contemplated in subitem (B), the Commissioner must without delay release such goods from the operation of the lien. |
| (D) |
Any person who, without reasonable cause, fails to comply with subitem (B), shall be guilty of an offence and liable on conviction to a fine not exceeding R20 000 or to imprisonment for a period not exceeding five years or to both such fine and such imprisonment. |
| (E) |
In the absence of evidence to the contrary which raises a reasonable doubt, proof by the Commissioner of the failure by the person concerned to comply with subitem (B) shall be sufficient evidence of the absence of reasonable cause. |
| (bb) |
Any imported or excisable goods, vehicles, machinery, plant or equipment, in the possession or under the control of such person or in or on any premises in the possession or under the control of such person and in respect of which such person has entered into any credit agreement as contemplated in the National Credit Act, 2005 (Act 34 of 2005) and of which the right, title or interest of such person may be readily established and excussed, may be detained in accordance with the provisions of subsection (2) and shall, subject to subparagraph (vi)(cc), be subject to a lien until such debt is paid. |
| (v) |
Whenever any of the goods mentioned in subparagraph (iv)(bb) are subject to a lien the person concerned shall without delay advise the Commissioner, or the officer detaining and subjecting such goods to a lien, of the existence of any such agreement setting forth at least the following— |
| (aa) |
The name and address of the credit provider as intended in the said National Credit Act, 2005 (Act 34 of 2005); |
| (bb) |
The amount of the principal debt as intended in the National Credit Act, 2005 (Act 34 of 2005) in respect of the applicable credit agreement; |
| (cc) |
The duration of the agreement; |
| (dd) |
The outstanding balance due; and |
| (ee) |
A copy of such agreement. |
| (aa) |
The Commissioner shall without delay advise the credit provider concerned of such detention and lien and shall enquire as to the right, title or interest of such person in such goods. |
| (bb) |
The credit provider concerned shall, where such right, title or interest is determinable, without delay advise the Commissioner of such right, title or interest of the person concerned in the goods, expressed as a liquid amount, and the lien shall thereafter serve as security for such liquid amount and such amount may be recovered as provided for in paragraph (ii). |
| (cc) |
In circumstances where such credit provider advises the Commissioner that the right, title or interest of the person concerned is economically insignificant or does not exist, the Commissioner shall without delay remove such goods from the operation of the lien. |
| (dd) |
Any person who, without reasonable cause fails to advise the Commissioner of the existence of any credit agreement contemplated in subparagraph (v) shall be guilty of an offence and liable on conviction to a fine not exceeding R20 000,00 or to imprisonment for a period not exceeding five years or to both such fine and such imprisonment. |
| (ee) |
In the absence of evidence to the contrary which raises a reasonable doubt, proof by the Commissioner of the failure to advise the Commissioner of the existence of such credit agreement shall be sufficient evidence of the absence of reasonable cause. |
| (aA) |
Any plant and stills for the manufacture of any goods in respect of which an excise duty or fuel levy is prescribed which are in the possession or under the control of such person or on any premises in the possession or under the control of such person shall be subject to a lien from the time when the liability for the duty or levy payable as contemplated in paragraph (a) in respect of any goods so manufactured commences until the debt in question is paid, as if such plant and stills are detained in accordance with the provisions of subsection (2): Provided that the Commissioner may allow any such plant or still to be used under such conditions as he may impose in each case. |
| (aB) |
Any capital goods in respect of which any surcharge has been withdrawn in terms of any permit issued by the Director-General: Trade and Industry shall be subject to a lien as security for the surcharge so withdrawn until the conditions specified in such permit have been complied with to the satisfaction of the said Director-General, as if such goods are detained in accordance with the provisions of subsection (2) unless other security is furnished to the satisfaction of the Commissioner. |
| (aC) |
Any dutiable goods of whatever nature, which are stored in any customs and excise warehouse licensed for any purpose under this Act shall be subject to a lien, as if the goods are detained in accordance with the provisions of subsection (2), as security for the duty on such goods from the time of receipt of such goods in such warehouse until such goods have been duly entered for any purpose under this Act and any liability for duty of the licensee of such warehouse in respect of such goods has ceased in terms of this Act. |
| (i) |
The claims of the State shall have priority over the claims of all persons upon anything subject to a lien contemplated in paragraph (a), (aA), (aB) or (aC) and may be enforced in accordance with the provisions of this section if the debt is not paid upon demand after the person by whom the debt is due is in writing advised of such debt and of the date on which such debt becomes due and is payable. |
| (ii) |
The Commissioner and the credit provider concerned may, notwithstanding anything to the contrary in this Act or any other law contained, and subject to such conditions as may be agreed upon, agree to dispose of any goods contemplated in paragraph (a)(iv)(bb) in order to preserve and secure the interests of all parties in such goods and in the proceeds of the disposal of such goods pending the resolution of any dispute in respect of which an interest in such goods is secured by such lien. |
| (iii) |
In the event of any goods subjected to a lien being attached pursuant to a warrant of execution, such goods shall, notwithstanding anything to the contrary contained in the said Magistrates' Court Act, 1944 (Act 32 of 1944) or its rules, where such goods are not detained in the State Warehouse, be removed by an officer to the State Warehouse and such goods may thereupon be disposed of in accordance with the provisions of this section. |
| (iv) |
Where, in addition to any amount of duty which is due or is payable by any person in terms of this Act, any fine, penalty, forfeiture or interest is incurred under this Act and is payable by such person, any payment made by that person or any amount recovered pursuant to any sale of such goods as contemplated in this section shall be utilised by the Commissioner to discharge such payment or amount in the order of— |
| (aa) |
any penalty, fine, interest, forfeiture, duty and expenses incurred by or charges due to the Commissioner; and |
| (bb) |
payment of the overplus, on application, if any, to the person by whom the debt was due. |
(c) Any refund of duty or a deposit or any other amount due to such person in respect of any matter whatsoever, may be set off against such debt.
(2)
| (a) |
The Commissioner or an officer may detain anything referred to in subsection (1)(a) by sealing, marking, locking, fastening or otherwise securing or impounding it on the premises where it is found or by removing it to a place of security determined by the Commissioner: Provided that the Commissioner may allow any such thing to be used under such conditions as he may impose in each case which conditions shall include that the person who is allowed to use such thing shall not enter into any agreement whereby— |
| (i) |
ownership or possession of such thing is transferred or relinquished in any manner whatsoever to any other person; |
| (ii) |
such thing is pledged or otherwise hypothecated in favour of any other person. |
| (i) |
Any agreement entered into contrary to those conditions shall be null and void. |
| (ii) |
If such person so enters into any such agreement or otherwise deals with such thing contrary to any conditions imposed by the Commissioner, an officer may detain such thing wheresoever and in possession of whomsoever found and remove it to a place of security, whereafter the Commissioner may dispose thereof at any time as contemplated in subsection (1)(b) if the debt has not been paid. |
| (iii) |
The person by whom the debt is due shall be liable for all reasonable costs and expenses incurred by and charges due to the Commissioner in respect of such detention or removal of the thing concerned; and |
| (2A) |
Except with the permission of the Commissioner, no person shall remove— |
| (a) |
any plant or stills, subject to a lien in terms of subsection (1)(aA), from the place indicated by an officer; |
| (b) |
anything detained under subsection (2) from the premises referred to in that subsection or from the place of security to which it may have been removed under that subsection. |
| (3) |
Any reference to goods in this section shall be deemed to include a reference to the containers of such goods. |
Public Service Commission Act, 1997
