The Commissioner of the South African Revenue Service v Formalito (Pty) Ltd

Formalito (Pty) Ltd, a licensed firearms and ammunition dealer since 1964, imported firearms into South Africa. In November 2000, SARS received information from a former employee that Formalito had under-declared the value of imported goods. Investigation by Ms Denyssen of SARS's Special Investigations Unit revealed that firearms were reflected on bills of entry under incorrect tariff codes, resulting in underpayment of customs duties, ad valorem duties and VAT totaling R696,652.95 for the period 1998-2000. SARS demanded payment of the underpaid duties and forfeiture of goods (or amount in lieu) valued at R3,792,912, later reduced to 50% (R1,896,456). Engelbrecht, Formalito's managing director, had instructed clearing agents to use specific tariff codes despite lacking expertise. Different clearing agents used different tariff codes for the same goods, and goods often entered bonded warehouses under one tariff code but exited under another. Descriptions of firearms were also sometimes altered on bills of entry.

• What is the proper interpretation of 'false declaration' in section 44(11)(a)(i) of the Customs and Excise Act 91 of 1964 - does it mean objectively incorrect or untrue to the knowledge of the declarant?
• Whether Formalito made a false declaration to SARS regarding the imported goods
• Whether the penalty imposed by SARS (50% of the value of goods, amounting to R1,896,456) was reasonable given SARS's own Customs Offences and Penalty Policy

The appeal succeeded with costs. The order of the High Court was set aside and replaced with: (a) dismissal of the application to review SARS's decision to claim customs duty, ad valorem duty and VAT of R695,652.95; (b) the decision that Formalito forfeit R1,896,456 under section 88(2)(a) was set aside and remitted to SARS for reconsideration; (c) SARS was ordered to pay the costs of the application (in the court below).

The binding legal principle established is that under section 44(11)(a)(i) of the Customs and Excise Act 91 of 1964, a 'false declaration' means a declaration that is untrue to the knowledge of the person making it, not merely one that is objectively incorrect. This narrower, subjective interpretation is required by: (1) the distinction in the statute between 'incorrect information' and 'false declaration'; (2) the ordinary meaning of 'false' when applied to statements; and (3) the principle that interpreting 'false' as synonymous with 'incorrect' would be absurd and contrary to legislative intent. Additionally, where an administrative body has adopted penalty guidelines or policies, substantial deviation from those policies without justification is grossly unreasonable and reviewable.

The court made observations about the pattern of conduct by Formalito that pointed to deliberate misconduct rather than innocent error: the absence of any discernible pattern consistent with genuine misapplication of tariff codes; the fact that Engelbrecht ventured opinions on tariff codes despite professed ignorance; the careful selection of codes to maximize financial benefit; the instruction to 'test the attitude of SARS'; the use of different codes by different clearing agents for identical goods; goods entering under one code and exiting under another; and alterations to firearm descriptions apparently designed to achieve consistency and reduce detection risk. The court also noted that pricing disparities resulting from incorrect tariff codes over several years would have been inconceivable to miss, though this observation was not strictly necessary for the decision.

This case is significant in South African customs law for establishing the authoritative interpretation of 'false declaration' under section 44(11)(a)(i) of the Customs and Excise Act. It clarifies that liability for duty beyond the two-year limitation period requires a subjective element - knowledge of the falsity - not merely objective incorrectness. The case also reinforces administrative law principles that require state organs to follow their own policies and guidelines, and that unreasonable deviations from such policies will be set aside on review. It demonstrates the courts' willingness to scrutinize administrative penalties for reasonableness and consistency with published policy.