The constitutionality of sections 88 and 90 of the Customs and Excise Act 91 of 1964

Abstract

This dissertation attempts to determine to what extent sections 88 and 90 of the Customs and Excise Act 91 of 1964 comply with the constitutional right to just administrative action, read with the provisions of the Promotion of Administrative Justice Act 3 of 2000. As international trade increases, it is increasingly important that the provisions of the Customs and Excise Act 91 of 1964 which regulate the industry are regarded as constitutional as potential trade between South Africa and other countries may be lost if the said provisions are not seen as promoting administrative justice. As wide and far-reaching powers are conveyed upon an administrator acting in accordance with the provisions of sections 88 and 90 of the Customs and Excise Act 91 of 1964, it is important that the said provisions are regarded as constitutional. As not only goods, but also vessels, vehicles and other property used in connection with the suspected goods may be seized in terms of the aforementioned sections, the danger of potential large-scale pecuniary losses to the trader immediately becomes evident. As the current provisions do not allow an affected party to state his or her case before the action in terms of sections 88 and 90 is taken by an administrator, nor require the administrator to provide reasons for his or her action, the legality of the said provisions are tested against the provisions of the Constitution of the Republic of South Africa, 1996, as effected by the Promotion of Administrative Justice Act 3 of 2000. The remedies available to an affected party of an action in terms of the relevant sections of the Customs and Excise Act 91 of 1964 are discussed in depth, together with the issue of the determination of the procedural fairness of such action. Certain practical guidelines in the exercising of powers in terms of the aforementioned sections are also given, providing an administrator with a minimum framework of responsibilities and guidelines in order to ensure that the legality of his or her action cannot be brought into dispute. As is evident from the content of this paper, the constitutionality of any action in terms of the relevant sections of the Customs and Excise Act 91 of 1964 will almost always depend on the circumstances of the individual case. It is therefore of the utmost importance that an administrator applies his or her mind in a reasonably acceptable manner in order to ensure compliance with the administrative justice provisions of the Constitution of the Republic of South Africa, 1996. The dissertation consists of a literary study, focusing on the latest developments regarding the promotion of justice in the international trade industry in South Africa, taking into account statutory provisions, case law, text books, journal articles as well as internet sources.