ARRANGEMENT OF SECTIONS
SECTION
PART I
Preliminary
1. Short title
2. Interpretation
3. Territorial application
4. Application of this Act in relation to SACU member states
PART II
Powers and Duties of Commissioner General
5. Powers and duties of Commissioner General
6. Identification of customs officers
7. Ethics
8. Customs controls
9. Types of customs controls
10. Use of risk management
11. Audit-based customs controls
12. Right to inspect goods, means of transport, etc.
13. Right to stop and interview
14. Right to stop and search means of transport
15. Right of access to areas, premises and facilities
16. Request for information
17. Search of persons
18. Internal bodily search
19. Reporting of personal searches
20. Right to detain or seize goods, etc.
21. Duty to comply with demands of customs officer
22. No right to compensation
23. Disclosure of confidential information
24. Co-operation between Government agencies
25. Authority to participate in controlled deliveries
PART III
General Provisions
A – Right to representation
26. Representation before Revenue Service
B – Information of general nature
27. Information to be made readily available
C – Decisions relative to application of customs legislation
28. Revocation or modification of decision
D – Advance binding rulings
29. Advance binding ruling
30. Binding effect of ruling
31. Exception to issuance of advance binding ruling
32. Validity period
E – Record keeping
33. Record keeping
34. Request for information, accounts, records, etc.
F – Prohibitions and restrictions
35. Prohibited goods
36. Additional cases of prohibited or restricted goods
37. Actions by customs officer
G – Marking of goods
38. Marking to indicate origin
39. Other marking requirements
H – Prohibitions relative to protection of intellectual property rights
40. Application for suspension of release of goods
41. Suspension of release of suspected goods by Revenue Service
42. Provision of guarantee for suspension
43. Revenue Service right to act
44. Duration of suspension
45. Right to inspect
46. Provision of information
47. Disposal of infringing goods
48. Liability
49. De minimis imports
I – External trade, foreign exchange and external financial relationships
50. Application of external trade
J – Transitional application
51. Burden of proof in relation to information provided
52. Exceptions
PART IV
Places of Entry and Exit
A – Scope of customs activity
53. Designation of places of entry and exit
54. Places of entry or exit in terms of international agreements
B – Customs controlled areas
55. Customs controlled areas
C – Organisation and operation of customs offices and customs patrols
56. Operation of customs offices
57. Customs office signs
58. Customs patrol teams
PART V
Arrival and Departure of Means of Transport, Goods, etc.
A – Advance information
59. Advance notice and manifest
60. Containerised cargo destined to Botswana to be discharged at port outside Botswana
B – Transport by land
61. Designated places of entry
62. Report of arrival by land or inland waterway
63. Report of arrival by rail
64. Arrival on foot or otherwise
65. Arrival of goods by cross-border pipeline, transmission line, conveyor belt or cable car
C – Transport by air
66. Arrival by air
D: General provisions prior to arrival and upon arrival
67. Obligations on arrival
68. Obligations on arrival outside hours of operation
69. Manifest
70. Force majeure
E – Unloading and removal of imported goods
71. Permission to unload goods
72. Unloading operations
73. Outturn reports
74. Goods remaining on board
F – Temporary storage of goods
75. Temporary storage
76. Admission of goods to temporary stores
77. Duration of temporary storage
78. Authorised operations in temporary storage
79. Goods deteriorated, spoiled or damaged in temporary storage
80. Responsibilities of temporary store operator
G – Departure
81. Exit formalities
82. Departure at designated place of exit
83. Advance notice of scheduled departure from Botswana
84. Report of departure of vehicle or vessel
85. Report of departure by rail
86. Goods exported by cross-border pipeline, transmission line, etc.
H – Transport by air
87. Aircraft departing Botswana
88. Advance notice of departure by air
89. Permission to depart
90. Loading goods for departure
91. Departure by air
92. Notification of goods not loaded
93. Permission to re-land goods
94. Departure reports
I – General provisions
95. Incomplete information
PART VI
Customs Clearance Operations
A – Customs declaration
96. Obligation to declare goods
B – Persons authorised to lodge customs declaration
97. Lodgement of customs declaration
98. Customs clearing agent
99. Liability and rights of declarant
C – Form and content of customs declaration
100. Method of lodgement
101. Form and content of customs declaration
102. Documents supporting customs declaration
103. Provisional or incomplete declaration
104. Supplementary declaration
D – Lodgement, acceptance and registration of customs declaration
105. Processing fee
106. Time of lodgement of customs declaration
107. Lodgement prior to arrival of goods
108. Acceptance and registration of customs declaration
109. Date of registration
110. Amendment of customs declaration
111. Withdrawal of customs declaration
E – Verification and examination of customs declaration
112. Verification of customs declaration
113. Examination of goods
114. Sampling of goods by Revenue Service
115. Partial examination
116. Presence of declarant
117. Time of examination
118. Priority examination
119. Co-ordinated examination
120. Identification measures
121. Assessment of comingled goods
122. Application of results of verification of declaration
123. Application of tariff and rate of exchange
124. Notification of amount of duties and taxes
F – Release of goods
125. General principles governing release of goods
126. Conditional release before clearance
127. When goods are deemed cleared
128. Release notification
129. Delivery of released goods
130. Removal of goods after release or clearance
G – Clearance for export
131. Clearance for export
132. Abandonment of goods
PART VII
Customs Procedures
A – General provisions
133. General provisions
134. Requirement for customs declaration
135. Use of an alternative to customs declaration
136. Home use procedure
137. Clearance at zero rate or reduced duties and taxes
138. Loss of home use status
B – Home use of goods
139. Goods that qualify for re-importation
140. Identification of goods re-imported in the same State
141. Customs declaration for goods re-imported in the same State
142. Time limit for re-importation
143. Goods exported with notification of intended return
C – Outright export
144. Customs declaration for outright export
145. Clearance of goods exported through cross-border transmission lines, etc.
146. Failure to export goods cleared for outright export
D – Customs warehouses
147. Classes of customs warehouses
148. Licensing of customs warehouse
149. Admissibility of goods to customs warehouse
150. Time limit for storage
151. Responsibilities of customs warehouse operator and declarant
152. Keeping of records
153. Submission of report
154. Establishment of public customs warehouse
155. Storage of goods in public customs warehouse
156. Liability for goods in customs warehouse
157. Authorised operations
158. Transfer of ownership of goods
159. Hazardous goods
160. Removal of goods
161. Applicable rate of duties and taxes
162. Deteriorated or damaged goods
163. Expiration of time limit
164. Closure of customs warehouse
165. Customs warehouse charges
E – Customs transit
166. Customs transit procedure
167. Transport of goods under customs transit procedure
168. Responsibility under customs transit procedure
169. Time limit for customs transit
170. Customs transit movements
171. Customs seals
172. Seals affixed by foreign customs administration
173. Changes en route
174. Prohibited actions en route
175. Presentation of goods and transit documents upon request
176. Termination of customs transit
177. Loss of goods under customs transit
178. Goods deteriorated or damaged while under customs transit
F – Transshipment
179. Goods that may be admitted to customs transshipment procedure
180. Customs declaration for transshipment
181. Identification of transshipped goods
182. Time limit for transshipment
183. Authorised operations
G – Temporary admission
184. Requirement for identification of goods
185. Clearance of goods for temporary admission
186. Guarantee for goods under temporary admission
187. Operations allowed for temporary procedure
188. Duration of temporary admission
189. Temporary admission with conditional relief
190. Transfer of benefit of temporary admission
191. Goods damaged under temporary admission
192. Termination of temporary admission
193. Expiration of time limit
194. Proof of re-export of goods
195. Temporary admission of means of transport for commercial use
196. Documentation for means of transport for commercial use
H – Common provisions for inward processing of goods for home use
197. Approval of procedure by Revenue Service
198. Approval of premises for inward processing, etc.
199. Movement of imported goods under inward processing, etc.
200. Transfer of processing operations under inward processing, etc.
201. Transfer of ownership of goods under inward processing, etc.
202. Record keeping
I – Inward processing procedure
203. Inward processing operations
204. Placement of goods under inward processing procedure
205. Rate of yield
206. Equivalent goods and compensating products
207. Identification measures
208. Origin of goods obtained under inward processing procedure
209. Occurrence of customs debt
210. Termination of inward processing procedure
J – Processing of goods for home use
211. Conditions for approval to process goods for home use procedure
212. Placement of goods under processing for home use procedure
213. Occurrence of customs debt
214. Termination of processing of goods for home use procedure
K – Drawback
215. Scope of drawback
216. Customs declaration when goods intended for drawback are imported
217. Time limit for drawback
218. Claims for drawback
219. Payment of drawback
220. Recovery of amount not paid
L – Outward processing procedure
221. Outward processing operations
222. Rate of yield
223. Identification measures
224. Exemption from import duties and taxes under outward processing procedure
225. Determination of exemption from import duties and taxes under outward processing procedure
226. Repairs abroad on temporarily exported goods
227. Outward processing using replacement system
228. Conditions for replacement products
229. Prior importation of replacement products
230. Termination of outward processing procedure
PART VIII
Special Procedures
A – Travellers
231. Place of customs formalities
232. Declaration
233. Facilitation of travellers
234. Returning residents
235. Non-residents
236. Exemptions and flat rate assessment
237. Searching of traveller
B – Duty free shops
238. Duty free shop procedure
239. Application for duty free shop licence
240. Operation of duty free shop
241. Responsibility of duty free shop operator
242. Placement of goods under duty free shop procedure
243. Goods admitted to duty free shop
244. Buying from duty free shop
245. Off-site outlet
246. Duration for keeping duty free goods
C – Postal traffic
247. Presentation of postal items before Revenue Service
248. Declaration of postal items
249. Access to postal facilities
250. Undelivered postal items
D – Stores
251. Status of goods under stores procedure
252. Stores on board arriving aircraft and train
253. Stores placed on board departing aircraft and train
254. Supply of stores exempted from duties and taxes
255. Prohibited or restricted goods as stores on board aircraft or train
256. Disposal of stores
257. Stores arrival and departure reports
E – Relief consignments
258. Relief consignment for Revenue Service
PART IX
Relief From Duties and Taxes
259. Relief from duties and taxes
260. Goods under another customs procedure
PART X
State Warehouse
261. Licensing of State warehouse
262. Goods in State warehouse
263. Removal of goods to other premises
264. Failure to remove goods
265. Redirection of goods
266. Accounting
267. Reporting
268. Risks in connection with goods
269. Time limit for storage
PART XI
Disposal of Goods by Revenue Service
270. Disposal of goods by Revenue Service
271. Publication of lists of goods
272. Urgent disposal
273. Proceeds of sale
274. Disposal of goods otherwise than by sale
PART XII
Authorised Economic Operator
275. Types of authorisations
276. Application to be authorised economic operator
277. Responsibility of authorised economic operator
278. Reciprocity outside Common Customs Area
279. Suspension or revocation of authorised economic operator status
PART XIII
Third Parties
A – Agents
280. Issuance of licence
281. Grounds for refusal to register or licence
282. Appointment of agent
283. Liability of principal for acts of agent
284. Liability of agent for obligations imposed on principal
285. Agent to produce proof of authority
B – Registration and licensing
286. Application to be registered or licensed
287. Provision of guarantee
288. Transfer of certificate or licence
289. Suspension or revocation of licence
290. Liability of agent
C – Customs clearing agent
291. Customs clearing agent
292. Obligation of customs clearing agent
293. Issuance of licence to company or partnership
294. Revocation
D – Specified customs controlled areas
295. Application for licence of specified customs controlled area
296. Issuance of licence
297. Obligation of licensee
298. Keeping of records
299. Relocation of premises
300. Surrender of licence
301. Effect of revocation or suspension of licence
E – Bonded carriers
302. Application for bonded carrier licence
303. Issuance of licence
PART XIV
Duties, Taxes and Other Measures
A – Customs tariff
304. Goods entering Botswana
305. Amendment of Customs Tariff Schedules
306. Application of tariff rate
307. Provisional anti-dumping or countervailing duty
B – Origin of goods
308. Origin of goods
C – Non-preferential origin of goods
309. Non-preferential Rules of Origin
310. Goods wholly obtained or produced in country
311. Substantial transformation
312. Accessories, spare parts, etc.
313. Unassembled or disassembled articles contained in more than one consignment
314. Packaging
315. Energy, plant, machinery, etc.
D – Proof of Origin
316. Proof of origin
317. Proof of origin for goods of Botswana origin
318. Proof of origin for imported goods
319. Language
E – Control of proof of origin
320. Requests for assistance regarding proof of origin
321. Assistance received from another customs administration
322. Release of goods pending verification of proof of origin
F – Preferential tariff treatment
323. Application of preferential tariff
324. Application of non-reciprocal Generalised System of Preferences
325. Conditions for benefiting from non-reciprocal Generalised System of Preferences
G – Value of goods
326. Transaction value
327. Transaction value of identical goods
328. Transactional value of similar goods
329. Sequence of application of valuation methods
330. Deductive method
331. Computed value
332. Fall-back method
333. Value of re-imported goods
334. Adjustment of price paid or payable
335. Value of re-imported goods under re-importation
336. Value of imported used goods
337. Customs value of goods for export
338. Conversion of price expressed in foreign currency
339. Determination of customs value, tariff classification, etc.
340. Release of goods prior to determination of customs value, etc.
341. Re-determination of previous customs value, etc.
342. Correction of error in customs value, etc.
343. Time limit on customs value, etc.
344. Request for information for customs value, etc.
345. Customs value, tariff classification or origin determination or re-determination
PART XV
Guarantee
346. Guarantee
347. Eligibility for guarantee
348. Compulsory guarantee
349. Optional guarantee
350. Form of guarantee
351. Release of guarantee
PART XVI
Liability for Customs Debt
352. Liability for customs debt upon importation
353. Liability for customs debt upon unlawful entry, removal and non-compliance
354. Liability for customs debt upon recovery from guarantee
PART XVII
General Provisions Relating to Customs Debt
A – Assessment of duties and taxes
355. Assessment of duties
356. Self-assessment of duties by declarant
357. Re-assessment of duties by Revenue Service
358. Time limit for re-assessment of duties and taxes
B – Procedure for payment of duties and taxes
359. Payment of duties and taxes
360. Method of payment
361. Payment prior to due date
362. Underpayment of duties and taxes
363. Late payment of duties and taxes
364. Recovery of unpaid duties and taxes
C – Collection on behalf of third parties
365. Revenue Service to collect on behalf of agencies
D – Lien and other mechanisms to secure payment of customs debt
366. Establishing lien to secure customs debt
367. Attachment of goods
368. Attachment of goods where debtor has no ownership
369. Attachment of goods where debtor is co-owner
370. Effect of lien
371. Termination of lien
E – Extinguishment of customs debt
372. Extinguishment of customs debt
373. Non-extinguishment of customs debt
PART XVIII
Refund or Remission of Duties and Taxes
374. Refund or remission of duties and taxes
PART XIX
Seizure, Detention or Forfeiture of Goods
375. Power to detain or seize goods
376. Notice of detention, seizure or forfeiture
377. Termination of seizure
PART XX
Voluntary Disclosure
378. Voluntary disclosure of errors or omission
379. Withdrawal of voluntary disclosure
PART XXI
Appeals
380. Appeals
PART XXII
Miscellaneous Provisions
381. Prescription period for bringing action by Revenue Service
382. Prescription period for bringing action against Commissioner General or customs officer
383. Publication of offenders
384. Regulations
385. Offences and penalties
Act 33, 2018,
S.I. 135, 2018.
An Act to provide for imposition of customs duty, the prohibition and control of the importation, export or manufacture of certain goods; and for its matters incidental thereto.
[Date of Commencement: 27th August, 2018]
PART I
Preliminary
This Act may be cited as the Customs Act.
In this Act, unless the context otherwise provides—
"advance binding ruling" means a written decision provided by Commissioner General to an applicant prior to importation of goods covered by the applicant that sets forth the treatment that shall be provided to the goods at the time of importation, based upon the facts presented by the applicant;
"ATA or CPD carnet" means an internationally accepted document that may in terms of the Convention on Temporary Admission be—
(a) used in Botswana as a customs declaration for clearance of goods, excluding means of transport, identified in the document for the temporary admission procedure;
(b) covered by a guarantee for duties and taxes that may be payable on goods;
"Botswana" means the Republic of Botswana, including its territorial waters and air space;
"clearance" means the accomplishment of the customs formalities necessary to allow goods to be placed under a customs procedure;
"Common Customs Area" has the same meaning assigned to it under the Botswana Trade Commission Act (Cap. 42:14);
"duties and taxes" means customs duties and other duties and taxes or various charges collected on or in connection with the importation of goods, with the exception of the fees and charges which are limited to the approximate cost of the service rendered or those which are collected by Revenue Service on behalf of another entity;
"goods" means—
(a) merchandise, articles, products, supplies, commodities, substances, documents;
(b) paper money and coin of a country that is designated as legal tender and customarily used and accepted as a medium of exchange in the country of issuance;
(c) a bearer negotiable instrument intended to enable the person to whom it is issued to obtain paper money or coin or a right to credit or balance at a bank or with another person; or
(d) any other thing capable of being transported;
"goods in free circulation" means goods which can be disposed of without customs restrictions;
"office of departure" means a customs office at which a customs transit operation commences;
"office of destination" means a customs office at which a customs transit operation is terminated;
"outright export" means a customs procedure applicable to goods in free circulation that leave Botswana and that are intended to remain definitively outside Botswana;
"postal service" has the same meaning assigned to it under the Botswana Postal Services Act;
"Revenue Service" has the same meaning assigned to it under the Botswana Unified Revenue Service Act (Cap. 72:01);
"SACU" means the Southern African Customs Union;
"stores" means goods taken on board an aircraft or cross-border train, whether in Botswana or elsewhere, exclusively for the purpose of meeting the reasonable needs for the next journey of the aircraft or train, including stopovers, and includes goods intended to be used—
(a) as provision for passengers and crew on board an aircraft or train during the journey;
(b) for the operation of the aircraft or train during the journey;
(c) for the maintenance of the aircraft or train during the journey; or
(d) as items for sale on board an aircraft or train to passengers and crew;
"transport-unit" means—
(a) a container having an internal volume of one-cubic metre or more, including demountable bodies;
(b) road vehicles, including trailers and semi-trailers;
(c) railway coaches or wagons;
(d) lighters, barges and other vessels; and
(e) an aircraft; and
"WTO" means the World Trade Organisation.
This Act shall apply to goods imported into, transiting through or exported from Botswana.
4. Application of this Act in relation to SACU member states
(1) This Act shall apply to all goods imported into Botswana from a SACU member state and to all goods destined for export from Botswana to a SACU member state, subject to any rules as may be prescribed.
(2) Unless otherwise provided in the SACU Agreement, no import duty shall be payable on goods in free circulation in a SACU member state if the goods imported into Botswana are—
(a) cleared for use in Botswana or for a customs procedure; or
(b) for tax purposes, regarded as cleared for use in Botswana.
PART II
Powers and Duties of Commissioner General
5. Powers and duties of Commissioner General
The Commissioner General shall—
(a) administer and enforce this Act;
(b) establish and maintain administrative, financial, technological, electronic and communicative systems and procedures necessary for the implementation and enforcement of this Act;
(c) co-ordinate and consult with other Government agencies to establish the most effective methods of working together and sharing information in order to simplify and facilitate the requirements of national legislation;
(d) conclude Memoranda of Understanding with other Government agencies, trade entities or other institutions to enhance the enforcement of customs and other relevant legislation;
(e) co-operate with other customs administrations and seek to conclude mutual administrative assistance agreements to enhance customs controls and simplify customs requirements; and
(f) determine the conditions and category of customs officers who shall have the power to carry out an arrest for the purpose of implementation and enforcement of this Act.
6. Identification of customs officers
The Commissioner General shall—
(a) provide customs officers with identity cards, which they are required to exhibit in the exercise of their duties under this Act and upon request;
(b) determine the official uniform of customs officers; and
(c) designate those customs officers who shall wear the uniform.
(1) The Revenue Service shall have a code of conduct for customs officers and employees.
(2) A customs officer or employee of the Revenue Service shall while employed by the Revenue Service not serve as—
(a) a director or employee of a company registered or licensed in terms of this Act; or
(b) a consultant to a company registered or licensed in terms of this Act.
(3) A customs officer or employee of the Revenue Service shall have no direct or indirect proprietary or financial interest in a company registered or licensed in terms of this Act.
(4) A customs officer or employee of the Revenue Service shall not—
(a) own or operate, in whole or in part, any place used as a customs warehouse or customs controlled area; or
(b) enter into any contract or agreement for the lease or use of any place with a view to its subsequent use as a customs warehouse or customs controlled area.
A customs officer may carry out all the customs controls it deems necessary on goods, including means of transport, and on persons that enter or leave Botswana, regardless of whether the goods or means of transport is liable to duties and taxes.
Customs controls referred to in this Act include—
(a) conducting audit-based controls;
(b) examination of goods;
(c) verifying information, declarations, reports, applications, documents or communications;
(d) searching means of transport;
(e) inspecting baggage and other goods carried by a person;
(f) search of a person;
(g) carrying out official investigations; or
(h) any other similar activities for the purpose of enforcing this Act.
Customs controls, other than random checks, shall be based on risk management techniques, which include risk analysis and risk criteria.
11. Audit-based customs controls
(1) A customs officer may inspect any data and documents relating to the operations of the import, export, movement or storage of goods—
(a) after releasing the goods in order to ascertain the accuracy of the particulars contained in the customs declaration; or
(b) prior to commercial operations involving such goods.
(2) A customs officer may examine goods and take samples where it is possible for them to do so.
(3) Customs controls may be carried out at the premises of—
(a) the holder of the goods or his or her representative;
(b) any other person directly or indirectly involved in operations at the premises in a business capacity; or
(c) any other person in possession of the goods, data or documents for business purposes.
12. Right to inspect goods, means of transport, etc.
A customs officer may carry out an inspection of goods, means of transport and persons for the purposes of application and enforcement of this Act with respect to the goods.
13. Right to stop and interview
(1) Notwithstanding the generality of section 12, a customs officer may at any time, stop or interview a person and request the person to produce goods, information, accounts, documents or records in his or her possession with respect to the goods.
(2) A customs officer may take any action, including the use of force, as may be deemed necessary, to stop a person who refuses to stop.
(3) A customs officer may require a person to appear before him or her at a time and place determined by the officer and may question the person, either alone or in the presence of another person, as the officer may deem fit, with respect to any matter dealt with in this Act.
(4) For the purpose of the prevention, investigation and repression of offences under this Act, a customs officer may verify the identity of persons entering or leaving Botswana or who are within a customs controlled area.
14. Right to stop and search means of transport
(1) A customs officer may stop and board any means of transport in Botswana to search the means of transport or any person found thereon and remain on the means of transport in pursuance of his or her duties under this Act.
(2) If a means of transport, or a place, hatch, safe, chest, box, package or container thereon is locked and is not opened upon demand, a customs officer may open the means of transport, place, hatch, safe, chest, box, package or container by any means necessary in the circumstances.
(3) A customs officer shall have the power to—
(a) mark goods before offloading the goods;
(b) lock up, seal, mark or otherwise secure goods on board a means of transport, including any apparatus; and
(c) demand from the person in charge of the means of transport the production of information, accounts, documents or records with respect to the goods.
(4) A person in charge of a means of transport shall not—
(a) wilfully open, break, obliterate or alter a lock, seal or mark placed upon goods on board by a customs officer; or
(b) remove goods which have been locked, sealed, marked or otherwise secured,
unless the person proves, to the satisfaction of a customs officer that it was necessary for him or her to have done the act in question.
(5) A customs officer may erect a roadblock in order to carry out customs controls, in compliance with this Act.
(6) A customs officer may use all appropriate devices to immobilise a means of transport when the persons in charge of the means of transport does not stop on the order of the customs officer.
15. Right of access to areas, premises and facilities
(1) A customs officer may—
(a) at any time and without previous notification, have unlimited access to any area, premises or facility;
(b) search any area, premises or facility as he or she deems necessary;
(c) require a person at an area, premises or facility to produce information, accounts, documents, records or goods which relate to any matter dealt with under this Act;
(d) examine any information, accounts, documents, records, or goods in any area, premises or facility;
(e) require from a person referred to under paragraph (c) an explanation of an entry in the information, accounts, documents or records; and
(f) in the presence of and after due notification to the person in any area, premises or facility, take samples of goods or make copies of the information, accounts, documents or records with respect to the goods.
(2) A person or an employee of the person whose business occupies or uses an area, premises or facility shall furnish such assistance as may be required by the customs officer for entering the area, premises or facility and for the exercise of customs powers.
(3) A customs officer may lock up, seal, mark, fasten or otherwise secure an area, premises, or facility, and any goods or means of transport found in an area, premises or facility, if he or she has reason to believe that a breach of this Act has been or is likely to be committed.
(1) A customs officer may request to be furnished with information, accounts, documents and records relating to goods that are the subject of customs formalities by—
(a) a declarant of goods;
(b) an importer or exporter of the goods;
(c) a person who—
(i) is liable for duties and taxes that are payable on the goods, or
(ii) has paid duties and taxes on goods;
(d) the owner of the goods that are imported or exported; or
(e) any other person involved in an activity regulated under this Act.
(2) Any person who—
(a) knowingly submits false or fraudulent information; or
(b) forges any information, accounts or documents,
for purposes of evading of duties or taxes, commits an offence and shall be liable to a fine not exceeding P1 000 000 or to imprisonment for a term not exceeding five years, or to both or to treble the value of the goods in respect of the offence, whichever is greater and the goods and the container in respect of which the offence is committed shall be liable to forfeiture.
(1) A customs officer may search a person only in exceptional circumstances where the customs officer has reasonable grounds to suspect that the person is concealing goods, information, documents or records in respect of which a breach of this Act is being or is likely to be committed.
(2) A customs officer may, subject to subsection (1) and to the extent necessary in the circumstances, conduct—
(a) a search of any goods a person may have in his or her possession;
(b) a frisk search of the person; or
(c) an external bodily search of the person, which may include the use of mechanical or electrical imaging or electronic equipment which can produce an indication that such person is concealing a prohibited substance or any goods in his or her body.
(3) A child may be searched in terms of subsection (2)—
(a) in the presence of that child’s parent or guardian; or
(b) if the child is travelling without a parent or guardian, person who is responsible for such child during travel.
(4) A personal search under this section shall be carried out by a customs officer of the same gender as the person being searched, except in the case of a concern for immediate threat to the customs officer or public safety.
(5) A person being subjected to an external bodily search may request the presence of another person during the search.
(6) A customs officer may take such action on a person who refuses to be searched, including the use of force to the extent necessary in the circumstances to search the person.
(1) When a customs officer has, after conducting an external bodily search, reasonable grounds to suspect that a person is internally concealing goods or if the person admits to internally concealing such goods, the officer may detain the person and arrange for an internal bodily search to be conducted.
(2) An internal bodily search under subsection (1) shall be performed at a place equipped for such bodily search and under the supervision of a registered medical practitioner.
(3) Any removal of goods or contraband from a person under this section shall be conducted—
(a) by a registered medical practitioner at a place equipped for the carrying out of such medical procedures; and
(b) with the written consent of the person to be subjected to such removal.
19. Reporting of personal searches
The results of any search under this Act shall be recorded in an official report indicating—
(a) the actions carried out;
(b) the persons present;
(c) the results of the search; and
(d) if applicable, the results of an examination provided by the registered medical practitioner.
20. Right to detain or seize goods, etc.
(1) A customs officer may detain any goods, means of transport, information, accounts, documents, records, at any place for the purpose of establishing compliance with this Act.
(2) If any goods, means of transport, information, accounts, documents, records, or currency are liable to forfeiture, a customs officer may seize such goods, means of transport, information, accounts, documents, records or currency.
21. Duty to comply with demands of customs officer
(1) A person shall comply with any requirement of a customs officer in the exercise of his or her duties, unless the person can show good cause that is deemed valid by the customs officer.
(2) A person shall not obstruct a customs officer in the exercise of his or her duties.
(3) Any person who hinders or obstructs a customs officer in the execution of his or her duties under this Act commits an offence and shall be liable to a fine not exceeding P200 000 or to imprisonment for a term not exceeding one year, or to both.
A person shall not be entitled to compensation for any loss or damage arising out of a bona fide action of a customs officer under this Part.
23. Disclosure of confidential information
(1) A customs officer, an employee of the Revenue Service, a person contracted by the Revenue Service to work otherwise than as an employee, a person designated to carry out the provisions of this Act or a person, upon termination of employment, shall not disclose, exchange or allow access to any information relating to any person, firm or business acquired in the performance of their duties, unless authorised or required to do so—
(a) for the purposes of this Act;
(b) in connection with legal proceedings;
(c) by the consent, in writing, of the person that will be affected by the disclosure; or
(d) by a law enforcement agency of Botswana or any other Government agency as provided for in a memorandum of understanding.
(2) Notwithstanding subsection (1), the Commissioner General may, in accordance with an international convention or agreement in respect of customs co-operation to which Botswana is a party, disclose or exchange, or authorise a customs officer to disclose or exchange information relating to a person or business acquired by the customs officer in the performance of his or her duties under this Act.
(3) Any person, including a third party, to whom such information is disclosed or exchanged shall use the information only for the purpose for which it was disclosed or exchanged.
24. Co-operation between Government agencies
(1) Where, in respect of the same goods, controls other than customs controls, are to be performed by competent Government agencies other than the Revenue Service, the Revenue Service shall, in close co-operation with those other agencies, endeavour to have those controls, wherever possible, performed at the same time and place as customs controls, with the Revenue Service having the co-ordinating role in achieving this.
(2) In the framework of customs controls, the Revenue Service and other competent Government agencies may, in order to facilitate the processing of goods moved between Botswana and other territories, and to minimise risk and combat fraud, exchange with other customs administrations and competent agencies data received in the context of the movement or storage of goods, and the results of any control.
25. Authority to participate in controlled deliveries
(1) For the purposes of—
(a) ascertaining the commission of an offence under this Act with regard to the import, export, transit or possession of narcotic drugs and psychotropic substances, contraband and other prohibited items;
(b) identifying the perpetrators, sponsors and accomplices of the offences under paragraph (a) as well as those who participated in any way; and
(c) seizing goods subject to a customs offence,
a customs officer may, after determining whether or not to inform an officer of the Botswana Police Service, monitor the delivery of the items under the conditions determined by the Commissioner General.
(2) Subject to subsection (1), a customs officer shall not be held criminally liable if he or she—
(a) acquires, possesses, transports or delivers narcotic drugs and psychotropic substances, contraband or other prohibited items; or
(b) makes available the means that enable a person who is in possession of these items to commit a customs offence, as well as means of transport, storage and communication.
(3) Subsections (1) and (2) shall also apply to—
(a) substances that are used for the illicit manufacture of narcotic drugs and psychotropic substances as well as equipment used for their manufacture; and
(b) the production of other contraband and prohibited items.
(4) A customs officer who carries out the actions referred to in subsections (1) and (2) shall not be criminally liable in relation to the funds that are the proceeds of the offences, provided that he or she reports such funds to the Commissioner General.
PART III
General Provisions
A – Right to representation
26. Representation before Revenue Service
(1) A person may represent himself or herself before the Revenue Service or designate an agent to act on his or her behalf.
(2) A person and his or her agent shall have the same rights before the Revenue Service, and shall be treated equally in the accomplishment of customs formalities.
(3) An agent shall—
(a) be established in Botswana; and
(b) meet the relevant requirements and obligations required under this Act.
B – Information of general nature
27. Information to be made readily available
The Revenue Service shall ensure that all information of general application pertaining to customs is readily available to any interested person on the Revenue Service website and by any other manner as may be determined by the Commissioner General.
C – Decisions relative to application of customs legislation
28. Revocation or modification of decision
(1) A decision favourable to a person concerned may be revoked by the Revenue Service if it was taken on the basis of incorrect or incomplete information and where—
(a) the person knew or should reasonably have known that the information submitted was inaccurate or incomplete; and
(b) the decision would not have been taken on the basis of accurate and complete information.
(2) A decision favourable to a person concerned may be revoked by the Revenue Service where—
(a) its recipient does not conform to an obligation, if any, imposed upon him or her as a result of the decision; or
(b) the Revenue Service discovers that the decision was made in error.
D – Advance binding rulings
(1) The Revenue Service shall, upon an application by an importer, exporter or any interested person, issue an advance binding ruling regarding—
(a) the tariff classification of goods;
(b) the origin of goods in accordance with applicable rules of origin;
(c) a customs valuation;
(d) whether goods are subject to a duty exemption;
(e) drawback, quotas or fees; or
(f) any other matter as may be prescribed.
(2) Notwithstanding subsection (1), an advance binding ruling shall not be issued where—
(a) the request concerns a completed transaction; or
(b) the transaction is pending before courts.
An advance binding ruling shall bind the Revenue Service with the recipient of the ruling for the respective determination of the particular goods or matter stated in the ruling.
31. Exception to issuance of advance binding ruling
An advance binding ruling shall not be issued by the Revenue Service where the request—
(a) concerns a current or completed customs transaction;
(b) presents questions or transactions that are hypothetical in nature;
(c) presents a question that is pending before a court; or
(d) is the subject of an appeal.
(1) An advance binding ruling shall be valid for a period of three years from the date of its issue.
(2) An advance binding ruling shall cease to be valid when—
(a) in a case of a tariff ruling following a modification of the Tariff Nomenclature—
(i) it is no longer in conformity with this Act,
(ii) it becomes incompatible with the interpretation of the Tariff Nomenclature, or
(iii) it is revoked or modified; or
(b) in a case concerning origin following a decision by Commissioner General, or an agreement concluded—
(i) it is not in conformity with the legal measures so established,
(ii) it becomes incompatible on an international level with the Agreement on Rules of Origin of the WTO or with the explanatory notes or opinions on origin adopted for the interpretation of that Agreement, or
(iii) it is revoked.
(3) A recipient of an advance binding ruling that ceases to be valid may continue to benefit from the ruling for a period of three months after the date of publication or notification, in the case where the recipient has concluded, on the basis of the advance binding ruling and before the adoption of the measures in question, firm and definitive contracts relative to the purchase or the sale of goods to which the ruling relates.
E – Record keeping
(1) A person carrying business in Botswana shall keep records, documents and accounts relating to the business in such form and manner as may be prescribed.
(2) The information under subsection (1) shall be kept for a period of five years.
(3) The Commissioner General may, subject to such conditions as he or she may determine, allow a person referred to in subsection (1) to retain, in lieu of any information, accounts, documents and records—
(a) an electronic version of the information, accounts, documents and records; or
(b) an authenticated copy of the information, accounts, documents and records.
34. Request for information, accounts, records, etc.
(1) The Commissioner General shall, with respect to goods, request to be furnished with information, accounts, documents and records within a period as may be determined by the Commissioner General by—
(a) a declarant of the goods;
(b) an importer or exporter of the goods;
(c) the owner of the goods;
(d) a person liable to pay duties and taxes;
(e) any other person as may be determined by the Revenue Service; or
(f) the transporter of the goods.
(2) The Commissioner General may, subject to any conditions he or she may specify, allow a person to produce, in lieu of information, accounts, documents and records required to be furnished in terms of subsection (1), an electronic version or an authenticated copy thereof, and the electronic version or copy shall have all the effects of the original information, accounts, documents and records concerned.
(3) Any person who fails to comply with subsection (1) commits an offence and shall be liable to a fine not exceeding P1 000 000 or treble the value of the goods in respect of such offence, whichever is greater, and the goods and the container in respect of which the offence is committed shall be liable to forfeiture.
F – Prohibitions and restrictions
(1) Goods shall be prohibited where their import or export is against—
(a) public order;
(b) public security;
(c) public morality;
(d) public health;
(e) the protection of national treasures;
(f) the protection of intellectual property;
(g) the protection of consumers;
(h) combating money laundering, combating financing of terrorism and combating proliferation of arms of war or NBC weapon; and
[S.I. 135/2018.]
(i) any other interest as may be prescribed.
(2) Goods shall be restricted where their import or export is conditional upon compliance with specific conditions or formalities restricting the import or export of the goods, other than the obligation to present the goods to Revenue Service and lodge a customs declaration.
(3) Except as otherwise provided for in this Act, goods that are prohibited shall not be cleared for any customs procedure.
(4) For the purposes of this section—
(a) "arms of war" has the same meaning assigned to it under the Arms and Ammunition Act (Cap. 24:01);
(b) "NBC" has the same meaning assigned to it under the Counter-Terrorism Act (Cap. 08:08);
(c) "proliferation" has the same meaning assigned to it under the Financial Intelligence Act (Cap. 08:07).
[S.I. 135/2018.]
36. Additional cases of prohibited or restricted goods
The Minister may, by Notice published in the Gazette, specify goods that are prohibited or subject to restrictions in accordance with any other applicable legislation.
37. Actions by customs officer
A customs officer may, in accordance with this Part or any other legislation in force, while the goods are under customs control—
(a) detain any restricted goods subject to their compliance with the applicable conditions or formalities; or
(b) seize any prohibited goods.
G – Marking of goods
38. Marking to indicate origin
(1) Any foreign product, whether natural or manufactured, shall not be imported into or transit Botswana if it bears either on itself or on packing, cases, packages, envelopes, bands or labels, a mark of manufacture or trade, a name, a sign or any indication likely to make the ultimate purchaser believe—
(a) that they have been manufactured in Botswana; or
(b) that they originate from Botswana.
(2) Any foreign product, whether natural or manufactured, acquired in a place with the same name as a place in Botswana, shall bear—
(a) the name of the country of origin or manufacture, along with the name of such place; and
(b) the word "Imported" in visible characters.
(3) Any foreign product that does not meet the requirements specified in subsections (1) and (2) shall be prohibited from importation, exportation, entry into a customs warehouse, transit and free circulation within Botswana.
39. Other marking requirements
Any foreign product, whether natural or manufactured, shall comply with obligations imposed by this Act regarding labelling of the product, and any such goods that do not comply shall be prohibited from importation, exportation, entry into a customs warehouse, transit, and free circulation within Botswana.
H – Prohibitions relative to protection of intellectual property rights
40. Application for suspension of release of goods
(1) A holder of an intellectual property right who has valid reasons to suspect that the importation or exportation of goods with counterfeit or pirate marks, which his or her right, is envisaged or infringes in progress, may apply to the Revenue Service for the suspension of release of the goods.
(2) An applicant under subsection (1) shall—
(a) submit an application to the Revenue Service;
(b) provide adequate evidence to satisfy the Revenue Service that there appears to be an infringement of the right holder’s intellectual property right; and
(c) supply a sufficiently detailed description of the goods in question to facilitate the determination of the alleged infringement.
41. Suspension of release of suspected goods by Revenue Service
(1) The Revenue Service shall determine whether there are reasonable grounds to suspect that the goods to be imported or exported infringe the right holder’s intellectual property rights.
(2) If, upon inspection of the goods that are the subject of an application under section 40, the Revenue Service is satisfied that there may be an infringement of a right holder’s intellectual property, it shall—
(a) suspend the release of such goods;
(b) notify the intellectual property right holder of the suspension; and
(c) notify the applicant of the reasons for the suspension.
42. Provision of guarantee for suspension
The Revenue Service shall require the intellectual property right holder, at the time of presenting the application for suspension of release of suspected goods under section 40, to—
(a) indemnify the Revenue Service against any liability that may arise from actions, proceedings, claims or demands that may be made or taken against the Commissioner General in providing the required assistance; and
(b) provide a guarantee sufficient to pay any costs or expenses incurred by, and any charges due to, the Commissioner General in providing the required assistance.
43. Revenue Service right to act
(1) The Revenue Service shall, of its own initiative, suspend the release of goods for which it has evidence that an intellectual property right may be infringed.
(2) If, in accordance with subsection (1), the Revenue Service suspends the release of suspected infringing goods, the Revenue Service shall notify—
(a) the applicant;
(b) the right holder; and
(c) the Companies and Intellectual Property Authority established under the Companies and Intellectual Property Authority Act (Cap. 42:13).
(1) A holder of an intellectual property right may institute proceedings leading to a decision on the merits of the claim before the courts.
(2) If, within 14 days after the holder of an intellectual property right was notified of the suspension, the Revenue Service is not informed by the holder of the intellectual property right that proceedings have been instituted leading to a decision on the merits of the case, the Revenue Service may—
(a) for reasons deemed valid by Revenue Service extend the period of suspension of release of the goods; or
(b) release the goods, provided that all other conditions for importation or exportation have been met.
(3) Notwithstanding subsection (2), in the case of perishable goods that cannot be stored for a long period, the period of suspension of release shall be no longer than three days.
(4) The time limit referred to in subsection (2) may be extended by the Revenue Service in appropriate cases for an additional 14 days.
(5) In the event of a suspension ordered by a court, the time limit referred to in subsections (2), (3) and (4) shall be determined by that court.
(6) If proceedings leading to a decision on the merits of the case have been initiated, the declarant may request a review, including a right to be heard, with a view to deciding, within a reasonable period, whether these measures shall be modified, revoked or confirmed.
Without prejudice to the protection of confidential information, the Revenue Service may allow the holder of an intellectual property right and the declarant to inspect the goods for the purpose of determining the merits of their respective claims.
Where the proceedings instituted by a holder of the intellectual property right have determined that the goods in question are infringing goods, the Revenue Service shall, at the right holder’s request, inform the right holder of the names and addresses of the importer, the exporter, the consignee, and the consignor of the quantity of the goods.
47. Disposal of infringing goods
(1) Notwithstanding the other rights of action open to a holder of an intellectual property right and subject to the declarant’s right to appeal, once a determination has been made by the Companies and Intellectual Property Authority that the goods are infringing goods, the Revenue Service shall dispose of the goods in accordance with this Act.
(2) The Revenue Service shall not allow the re-exportation of goods in the same State with counterfeit trademarks or their placement under another customs procedure, other than in exceptional circumstances.
The Revenue Service shall not be liable for any action taken or not taken in good faith in regard to suspension of the release of suspected infringing goods.
The provisions of this Part shall not apply to small quantities of goods of a non-commercial nature contained in a traveller’s personal baggage or sent in small consignments.
I – External trade, foreign exchange and external financial relationships
50. Application of external trade
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