Before leaving, all goods which a traveler is taking with them beyond the borders of the Republic, including goods which are:

• Carried on behalf of another person
• Intended for remodel, process or repair abroad
• Prohibited, restricted or controlled under any law
• Goods that a person, who temporarily entered the Republic, was required to declare upon entering the Republic

Travelers must, upon request by a Customs Officer, provide the officer with full particulars related to the goods such as invoices, transport documents, proof of payment to supplier, letter of authority and any permits applicable to such goods. Further, travelers must answer fully and truthfully all questions put to him by such officer and, if required by such officer to do so, produce and open such goods for inspection by the said officer, and shall pay the duty and taxes assessed by such officer, if any.

What are your Duty-Free allowances?

The duty-free allowance only applies to goods for personal use or to dispose of as gifts in accompanied travelers’ baggage declared by returning residents and non-residents visiting the Republic.

The following imported goods declared by travelers in their accompanied baggage may be exempted from paying any import duties and Value-Added Tax (VAT):

• New or used goods of a total value not exceeding R5 000 per person
• Wine not exceeding 2 litres per person
• Spirituous and other alcoholic beverages, a total quantity not exceeding 1 litre per person
• Cigarettes not exceeding 200 and cigars not exceeding 20 per person
• 250 g cigarette or pipe tobacco per person
• Perfumery not exceeding 50 ml and eau de toilette not exceeding 250 ml per person

Wine, spirituous and other alcoholic beverages, tobacco products and perfumery imported in excess of the quantities specified must be cleared at the rates of duty specified in Schedule No.1 (“Tariff”) to the Customs and Excise Act No.91 of 1964. The aforementioned goods are commonly referred to as consumables or luxury goods and the rate of duty can be considerably high if travelers exceed the above quantities and must clear those excess quantities and pay the import duties at the rates of duty specified in the tariff.

Even if goods are bought at an inbound duty-free shop, the duty-free allowance still applies upon arrival.

Note: The duty-free allowance applicable to new or used goods to the value of R5000 person, is applicable in addition to the duty-free allowance applicable to consumable goods.

What is your flat-rate assessment allowance?

• If you have goods in excess of the R5 000 duty free allowance but not exceeding R20 000, you may elect to pay customs duty at a rate of full duty less 20% (flat-rate) with VAT exempted instead of clearing the goods at the rates of duty specified in Schedule No. 1 (“tariff”) to the Customs and Excise Act No.91 of 1964
• Goods in excess of the R20 000 flat-rate assessment threshold, pay import duties and VAT in accordance with the Harmonised System description and originating status of goods

Conditions for duty-free allowances:

• The duty-free allowances related to new or used goods is only allowed once per person during a period of 30 days, following an absence of not less than 48 hours from South Africa
• The flat rate assessment allowance is only allowed during a period of 30 days and shall not apply to goods imported by persons returning after an absence of less than 48 hours
• The duty-free allowances related to wine, spirituous and other alcoholic beverages, tobacco products and perfumery is only allowed once per person during a period of 30 days, following an absence of not less than 48 hours from South Africa
• The goods must be carried as accompanied baggage
• The tobacco or alcoholic beverage allowance is not applicable to persons under the age of 18 years

The liability that is incurred in terms of section 77 is joint and several with any other person who may be held liable for the same act. Any person with a claim can bring it against all the directors or any one particular director. A single director can therefore be held liable for the totality of damages suffered by a third party as a result of a breach of fiduciary duties. An action to recover loss, damages or costs may not commence more than three years after the act or omission.

Specific Statutory Liability

Section 77(3) lists specific instances when a director is liable for loss, damages or costs sustained by the company as a direct or indirect consequence of him having acted in the name of the company despite knowing he did not have the authority to do so, or agreeing to the carrying on of company’s business despite knowing that it was being conducted recklessly, or being party to an act or omission by the company despite knowing that it was calculated to defraud a creditor, employee or shareholder, or had another fraudulent purpose, or even for signing or consenting to the publication of any financial statements that were false or misleading in a material respect despite knowing that the statement was false or misleading or untrue (conditions apply). He can also be held liable for being present at a meeting of the board and failing to vote against certain actions which in are contravention of the provisions of the Act [as listed in Section 77(3)(e)], such as voting in favour of providing financial assistance to a director despite knowing that the providing of such financial assistance would have been inconsistent with the Act or the company’s MOI.

Section 20 (4) and (5): Restraining Orders
One or more shareholders, directors or prescribed officers or the trade union representing employees of the company may apply to the High Court for an appropriate order to restrain a company from doing anything inconsistent with the Act, or from doing anything that is inconsistent with any of the limits, restrictions, or qualifications of the MOI.

Each shareholder may have a personal claim for damages against any person, including a director, who intentionally, fraudulently, or due to gross negligence causes the company to do anything inconsistent with the Act, or to do anything that is inconsistent with any of the limits, restrictions or qualifications of the MOI (unless the action does not contravene the Act and has been ratified by shareholders).

Section 218: Civil Actions
A shareholder (and any other stakeholder) can also have a claim against the directors or any person who contravenes the Act for damages for any loss or damaged suffered as a result of that contravention. The action does not need to be fraudulent or carried out with gross negligence for a valid claim in terms of this Section.

The Act does however provide some form of relief to directors – by way of Indemnity and Insurance for Directors.

In terms of the Act, a possible defense is open to a director who asserts that he/she had no financial conflict, was reasonably informed and made a rational business decision in the circumstances. This is known as “the business judgement rule”.

Sections 20 and 218 of the Act enable shareholders to sue directors/officers for civil damages, or any losses suffered by them.

If a company is a personal liability company, the directors (including past directors) are jointly and severally liable together with the company for any debts and liabilities of the company that contracted during their respective periods of office.

What has made NFTs valuable?

Though digital files can be copied and distributed over and over, an NFT provides proof of ownership of a single file. For example, though there are many print copies of the Mona Lisa there is still only one original. Thus, users have been collecting NFTs much like individuals would collect an art collection in the hopes that one day the pieces will increase in value.

We hope that this article has given you a better understanding of what NFTs are. If you have any queries, please do not hesitate to contact our offices.

Making it easy
To attend to this in an easy and convenient manner we would like to draw your attention to the following important information that you need to know. This is:

• Employers and Payroll Administrators need to download the latest e@syFile™ Employer version 7.1.0 which was released on 15 December 2020. This can be done via SARS eFiling
• Employers must submit outstanding monthly declarations (EMP201) and annual reconciliations (EMP501) to SARS prior to submitting the EMP501 for 2021
• Employers must register employees for income tax purposes using Single (“Individual ITREG”) and bundle IT Registration (“Bundled ITREG”) for existing tax numbers as well as new registrations available on e@syfile™
• First-time job seekers can register for income tax via eFiling or on the SARS MobiApp
• Employers must issue IRP5/IT3(a)’s to employees on time
• Employees need to check and verify if their details on their IRP5/IT3(a)’s are correct

Penalties for Non-Compliance
An employer who files their EMP501 late will be penalised under the provisions of paragraph 14(6) of the Fourth Schedule of the Income Tax Act. The penalty will equal 1% of the year’s PAYE, for each month that the return is late, up to 10% of the year’s PAYE.

Criminal charges for failure to submit a return
Any employer who wilfully or negligently fails to submit a return to SARS is guilty of an offence and is therefore liable, upon conviction, to a fine or to imprisonment for a period of up to two years. This applies to EMP201’s as well as EMP501’s.

Accuracy and on-time filing is critical
It is very important for employers to file accurate and complete EMP501’s. The information received through your submission of an EMP501 is used to populate auto-assessments and income tax returns on behalf of your employees. Incomplete or inaccurate information will negatively affect your employees’ ability to meet their tax obligations. In practice, your incomplete or inaccurate information may result in significant delays of refunds to your employees when these refunds are due.

Should you require professional assistance in this regard do not hesitate to contact our offices.

However, the records may be retained for longer, but only where:

• The retention is required or authorised by law
• The Responsible Party reasonably requires the record for lawful purposes related to its functions or activities
• The retention is required by a contract between the parties
• The data subject or a competent person (where the data subject is a minor child), has consented to the retention of the record for a longer period
• For historical, statistical or research purposes if the Responsible Party has established appropriate safeguards against the records being used for any other purposes

The Regulations
The POPIA Regulations are final and commence on 1 July 2021 with the exception of:

• Regulation 4 (Responsibilities of Information officers) which will be effective on 1 May 2021
• Regulation 5 (Application for issuing code of conduct) which was effective on 1 March 2021

The Regulations are largely administrative in nature and deal with:

How a data subject can object to the processing of their personal information.

• How a data subject can request the correction or deletion of information
• The responsibilities of an Information Officer. Regulation 4 sets out more of the duties and responsibilities of the Information Officer
• How to apply for the regulator to issue a code of conduct
• How to request marketing consent. Form 4 of the Regulations sets out how to get consent to the direct marketing (by electronic communications) of a data subject
• How to submit a complaint to the Information Regulator
• How the Information Regulator will act as a conciliator in investigations
• What the Information Regulator must do before it investigates you
• How the Information Regulator will try to settle complaints
• How the Information Regulator will conduct assessments
• How the Information Regulator will notify people during investigations

There are two people who have the power to make Regulations. The Information Regulator is one – the other is the Minister of Justice and Constitutional Development – who has the limited power to make Regulations (under section 112(1)) but only about establishing the Information Regulator, and the fees that data subjects must pay to a Responsible Party for accessing the personal information it processes, and to the Information Regulator when lodging a complaint with it.

Enforcement and Remedies:

The process of lodging a complaint with the Information Regulator, is set out in Chapter 10 of the Act, and may be summarized as follows:

Investigation by IR

1. Issue of Warrants
2. Requirements for issuing a Warrant
3. Execution of Warrants
4. Matters exempt from Search and Seizure
5. Communication between legal adviser and client are exempt

Complaints

1. Action on receipt of complaint
2. IR may decide to take no action
3. Or referral to Regulatory Body
4. Pre-investigation proceedings of IR
5. Settlement of Complaints

Objections to search and seizure

1. Return of Warrants
2. Assessment
3. Information Notice
4. Parties informed of result of assessment
5. Matters referred to Enforcement Committee

Functions of Enforcement Committee

1. Parties to be informed during and result of investigation
2. Enforcement Notice
3. Cancellation of Enforcement Notice
4. Right of Appeal
5. Consideration of Appeal
6. Civil remedies

Offences, Penalties and administrative fines:

Chapter 11 lists the offences under POPIA as follows:

• Obstruction of the Information Regulator
• Breach of confidentiality (Section 54)*
• Obstruction of the Execution of a Warrant
• Failure to comply with an Enforcement or Information Notice
• Offences by Witnesses**
• Unlawful acts by Responsible Party in connection with account number
• Unlawful acts by third parties in connection with account number

*Breach of confidentiality (breach of Section 54 – where a person acting on behalf of or under the direction of the Information Regular must keep all personal information that he or she is privy to during the course of his or her duties, as confidential).

**Offences by witnesses (e.g. failure to attend and give evidence when summoned to do so).

Penalties: Any person convicted of an offence in terms of this Act (as listed above), will be liable to penalties which range from R1 million and/or 1year imprisonment to R10 million and/or 10 year’s imprisonment – depending on the severity of the offence.

Administrative fines of up to R10 million may be imposed by the Information Regulator on the Responsible Party – as set out in an infringement notice.

A Responsible Party may also be subject to civil claim for damages brought by data subjects as well as reputational damage.

POPIA, a few important points to remember:

In summary, we recommend that a Responsible Party (RP) take cognisance of the following important points:

1. The RP has to ensure compliance with the Act and must ensure that an Information Officer is appointed
2. Personal information must be collected directly from the data subject (some exceptions apply here)
3. Personal information may only be processed if it is fair and lawful to do so, and with the data subject’s consent
4. The RP should also:
   • a) Keep a record of what information is being held, its purpose, and on which date it must be destroyed. This can be called a “Records Retention Register”, and
   • b) State the reason for collecting information and only use that information for that specific purpose – after that, the information must be destroyed
5. The process to destroy personal information must prevent its reconstruction
6. The RP should not process personal information for a secondary purpose unless it is compatible with the original purpose. If the RP wishes to use the personal information for a secondary purpose, it will need to obtain the consent from the data subject again
7. The RP must ensure that at all times, the personal information collected is complete, accurate, not misleading and updated where necessary
8. The RP must check to see if its activities fall into the ambit of “direct marketing” as it is widely defined in the Act, to include “any approach” to a data subject, “for the direct or indirect purpose of…promoting or offering to supply, in the ordinary course of business, any goods or services to the data subject.” A RP can, as a general rule, market to existing customers in respect of similar products or services (there are limits and recipients must be able to “opt-out” at any stage), potential new customers can only be marketed with their consent, i.e. on an “opt-in” basis
9. The RP must keep personal information secure against the risk of loss, unlawful access, interference, modification, unauthorised destruction and disclosure, and must:
10. Process information in a transparent manner – have a Privacy Policy, which is available for perusal – which sets out its data processing procedure
11. Train its staff on POPIA, the new procedures, and the implementation thereof
12. Review its agreements, letters of engagement (where applicable), contracts, and employment contracts, and amend these in order to so as to align them with POPIA
13. Where there is a data breach, the RP and the Operator must provide notification thereof. The RP must formulate a ‘Breach Plan’ and ‘Breach Incident Management Process’
14. Allow data subjects to access their personal information and to request that it be corrected or deleted. Data subjects may also decline to share their information

Sincerely,