AMI Forwarding (Pty) Ltd v Government of the Republic of South Africa (Department of Customs and Excise) and Another

AMI Forwarding (Pty) Ltd was a clearing and forwarding agent that, between 1990 and 1998, removed goods in bond or in transit for export from South Africa. SARS later demanded payment of customs duties exceeding R5.9 million, alleging that numerous bills of entry had not been acquitted and that certain acquittals were falsified. AMI contended that all goods had been duly removed and acquitted at the relevant times but that documentary proof could no longer be produced due to the lapse of time, mergers, destruction and loss of records, and deficiencies in SARS’s own record‑keeping. AMI relied on contemporaneous registers and bond books showing credits and acquittals, as well as evidence that SARS had later discovered many acquittals it initially claimed were missing.

The appeal was upheld with costs. The High Court order was set aside and replaced with an order declaring that AMI was not liable for any of the customs duties and charges reflected in Annexure B to the particulars of claim, and directing SARS to pay the costs of the action, including the costs of two counsel.

The case clarifies the evidentiary burden on clearing and forwarding agents under ss 18 and 18A of the Customs and Excise Act and confirms that liability for customs duties can be rebutted by circumstantial and probabilistic evidence where original documents are no longer available. It also affirms that allegations of fraud must be proved by the party alleging them, notwithstanding the statutory presumptions in s 102(4).