Legal Environment

The legal framework under which the freight forwarder and/or clearing agent operates is extensive.

The Law

The first and foremost Act in a South African context is the Customs & Excise Act, No.91 of 1964 as amended and its associated Rules. The Act is currently being re-written by SA Revenue Services and is due for circulation and comment in 2007. This Act is not published on any website. Hard and electronic copies are obtainable from a few commercial sources.

There are various Schedules to the Customs & Excise Act, the most prominent being the Customs Tariff. The Schedules can be accessed on the SARS website (www.sars.gov.za). (Follow the path Legislation > Schedules to the Act)

Value Added Tax Act No.89 of 1991 (www.acts.co.za). Associated with the VAT Act are Interpretation Notes No 10 of 1992, No.30 (Issue 2) of 2006, and No.31 of 2005; and the VAT Export Incentive Scheme (Part 2, Regulation 2761, Government Gazette No.10471 of 1998). Key issues under this Act include documentary proof for the zero rating of export transactions, and the VAT treatment of international transport.

National Road Traffic Act No.93 of 1996 as amended (www.acts.co.za). This Act governs the maximum loads by weight and forwarders need to ensure that trucks and containers are loaded within the legal limits. Chapter VIII of the Act deals with the risky transport of dangerous goods.

Financial Advisory Intermediary Services Act (FAIS) No. 37 of 2002 as amended (www.acts.co.za). See the Circulars for more details.

National Credit Act No. 34 of 2005. See the Circulars for more details
Financial Intelligence Centre Act (FICA) No. 38 of 2001 (www.acts.co.za).
Counterfeit Goods Act No.37 of 1997
Merchandise Marks Act No.17 of 1941
National Ports Act No.12 of 2005, and the Harbour Regulations as amended.

Other elements of the legal framework

• a forwarder may act as agent or principal. There are laws which govern the relationship between an agent and his principal.
• the forwarder's trading conditions (SAAFF's Trading Conditions are given elsewhere on the website)
• conditions of carriage of airlines, shipping lines, road transport companies, railway organisations
• conditions under which groupage operators and airfreight consolidators operate
• Warsaw Convention
• Hague Rules, Hague Visby Rules and the Hamburg Rules
• forwarders' house bills of lading
• trading conditions of warehousemen and container depot operators
• agreements with appointed agents in other countries
• IATA's Dangerous Goods Regulations (www.iata.com)
• IATA's Live Animals Regulations (www.iata.com)
• The International Maritime Dangerous Goods Code
• General Agreement on Tariffs & trade (GATT)
• Incoterms

At present there is no marine insurance act in South Africa. Where appropriate the British Marine Insurance Act is used as a "persuasive" reference. However the Institute Cargo Clauses issued under the auspices of the Institute of London Underwriters form the basis of many marine insurance policies and these clauses describe the contractual obligations between the insured and the insurer. In a South African context, legislation includes the:

• Merchant Shipping Act No. 57 of 1951
• Carriage of Goods by Sea Act No.1 of 1986 which makes the Hague Rules applicable in the country
• Admiralty Jurisdiction Regulation Act No. 105 of 1983 which includes forwarders' claims in the definition of a maritime claim and this means, for example, that forwarders can have goods arrested as security against a debt
• English "Bills of Lading Act 1855" which is applied here although it has been superseded by the Carriage of Goods by Sea Act 1992 in the United Kingdom
• Wrecks and Salvage Act No.94 of 1996
• Sea Transport Documents Act which has not yet entered into force.

There are many other international laws which may at some time impact on the South African forwarder. The American "maritime" law incorporates the Carriage of Goods by Sea Act (COGSA) and the statutes administered by the Federal Maritime Commission (FMC) which are the Shipping Act of 1984, the Foreign Shipping Practices Act of 1988 and Section 19 of the Merchant Marine Act of 1920. These affect surface shipments to and from the USA. In Europe the CMR Convention governs the movement of goods by road.

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