SARS officials tend to fervently enforce internal guidelines however sometimes in doing so they ignore the law.This is by no means meant to be a criticism of SARS officials; they are simply trying to do their jobs to the best of their abilities.They do not fully understand the importance of the laws and would rather rigorously follow the internal guidelines than incur the wrath of their seniors.

The reality, however, is that a guideline can never trump the law. Where the Customs & Excise Act provides that Customs must conduct itself in a certain manner, then it is irrelevant that some official has interpreted the Act differently in a guideline. It is also important to know that a guideline cannot impose additional conditions or further define certain aspects beyond what has been defined in an Act. Any attempt to do so is simply unenforceable and invalid.

There are two examples that spring to mind. The first is that the Customs Act in Rule 49B allows that a certificate of origin can be issued retrospectively in certain exceptional circumstances provided that the certificate was not issued before the export of goods due to an error, involuntary omission or other special circumstances. Customs in an internal guideline sought to define what is to be regarded as "exceptional". The problem with the guideline is that it goes beyond what is provided for in the Act and as such, is unenforceable. Notwithstanding the guideline, Customs must issue the retrospective certificate if the provisions of Rule 49 B have been met.

The second example relates to a guideline on Alternate Dispute Resolution (ADR). The guideline provides that where certain technical decisions are made and the importer takes umbrage with the decision, then the matter can be sent to ADR. This is not correct. Section 76B(2) makes it quite clear that a matter can only be referred to ADR where a party is unhappy with the decision on internal administrative appeal or where legal proceedings have been instituted.

The primary source of legislation will always trump a guideline so when in doubt, get good advice.