How do I Legally Distill at Home in South Africa? - Part 1: Stills

PLEASE NOTE: This is the first Article of Three, dealing with the Process of Legal Home Distilling. Please read all three Articles for a full idea on how it works.

   

Probably the most common question we get from clients visiting our store: Is it Legal to Distill at Home?

This is followed closely by the second most common question: How do I Register to Distill at Home?

There is a lot of information on this topic doing the rounds from different sources, so this article will attempt to clear away all the false and incorrect information out there, and give you the correct process to be a Legal Home Distiller.

DISCLAIMER: This article is based, not only on the relevant SARS Legislation (to be found in the SARS Rules) but is also the result of several meetings we have had with SARS Officials and the SARS EXCO - both as Distillique and SACDI. All information here is correct and verified as per these discussions and several submissions, HOWEVER, SARS does change their interpretation of these Rules and Regulations from time to time, and due to breakdowns in communication between higher levels and lower level SARS Offices, it does sometimes happen that officials on the ground does not have the same clarity or information. We are doing our best to rectify this situation, but for now, please be aware that the process will not always work the way it is supposed to work.

  

Can I Legally Distill at Home in South Africa?

Yes.

South African Law allows for the manufacture of Excisable Goods, solely for own use by the Manufacturer. In other words, you are allowed to Legally Distill at Home, but you are NOT allowed to sell the goods produced.

This falls under Article 116 of the law, hence we talk about an Article 116 registration.

In order to do Legally Distill at Home, you first need to register both your still and yourself - in other words, you need permission to own a still (this is true even if the still is not in use, and just being used as decor) and you need permission to use the still (registering yourself as a Manufacturer of Excisable Goods.

   

Can I use any Still as a Home Distiller?

No.

Only Legal and Serialized Stills are allowed to be registered. 

Now please note, this does not refer to Manufacturing Serial Numbers, but to SARS Serial Numbers. South African Law clearly states that only a Registered Still Manufacturer is allowed to Sell Stills, Build Stills, Repair Stills or Import Stills. 

So if whomever is selling you a still cannot produce the relevant License, they are operating illegally.

Now, as a Registered Still Manufacturer, which Distillique obviously is, SARS has certain requirements:

63.01 Every still maker and still importer shall:

1. permanently affix the registration number obtained in terms of the registration under paragraph (b) to such still, together with his name, address and the capacity of the still; and
2. keep a register with the following information in respect of any still-

                   (i) registration number contemplated in paragraph (c);
                   (ii) date of manufacture, where applicable;
                   (iii) date of importation, where applicable;
                   (iv) type, brand and capacity; and
                   (v) the following information on the sale of such still-

                                       (aa) sales invoice number;
                                       (bb) date of sale;
                                       (cc) value of sale;
                                       (dd) name and address of purchaser;
                                       (ee) delivery note number; and
                                       (ff) delivery address.

This is why, with every still you buy from Distillique, you have to fill out a Registration Form, or alternatively, a Client Registration on our Website, as we are legally required to keep these records. We submit these records on a monthly basis to our SARS Controllers, and we are audited regularly to ensure that we comply with these regulations.

Now, what if you already own a still that does not have SARS Serial number? Or what if you want to build your own Still?

   

63.04 Every still maker, still importer or person in possession of any still that was not marked in accordance with rule 63.01 shall immediately-

        (a) advise the nearest customs and excise office;
        (b) provide that customs and excise office with the following information, where available, in respect of such still-
                   (i) type, brand and capacity;
                   (ii) name and address of the manufacturer; and
                   (iii) manufacturer’s serial number;
        (c) apply on form DA 185 and the appropriate annexure to register such still; and
        (d) permanently affix the registration number obtained in terms of the registration under paragraph (c) to such still, together with his name, address and the capacity of the still.

This section means that Distillique, as a registered Still Manufacturer, is allowed to serialize Stills on behalf of our clients to allow those stills to be legally registered. The section is however misleading, as it can be interpreted (and is interpreted by some SARS officials) to mean that a SARS office can issue a Serial Number. 

According to SARS EXCO, this is NOT the case, as the issuing authority of a Serial Number carries the responsibility for the still on which that Serial Number is applied - in other words, the entity issuing the Serial Number is liable for whatever happens when that still is used. This means before a still can be serialized, it must be inspected, tested and checked. These checks and tests include a Materials Test (to ensure no lead, aluminium or other dangerous metals or materials were used), a capacity test (as the capacity must be listed on the serial number) and a safety check (structurally and for leaks and other dangerous design or construction flaws). 

As SARS offices and officials are not equipped for these tests, they cannot accept liability, and therefore they cannot issue Serial Numbers.

But it does happen.

The question now becomes, what is going to happen the day something goes wrong with one of these SARS Serialized Stills?

In addition to the requirements above, a Registered Still Manufacturer must also comply to the following regulations:

27.10 Every licensee of a customs and excise manufacturing warehouse (including a registered Still Maker) shall, unless exempted by the Controller, keep a stock record, in a form approved by the Controller, in which such licensee shall record daily such particulars of receipts of materials, nature and quantities of excisable goods manufactured (if applicable), nature and quantities of by-products or other goods manufactured and disposal of goods manufactured and such other particulars as the Controller may require in each case. Such stock record shall, when not in use, be kept in a fire-proof safe.

27.11 Every licensee of a customs and excise manufacturing warehouse (including a registered Still Maker) shall furnish to the Controller such returns showing such particulars and at such times and under such conditions as he may decide. 

Can I buy a Secondhand Still?

Yes, but only if done according to the correct procedure. 

63.03 No person may sell, remove or otherwise dispose of a still unless the nearest customs and excise office has granted approval in writing.

So, the only way you can legally sell or buy a still secondhand, is if the current owner of the still has cancelled his registration of the still with SARS, and then changed the registration details to your details.

It is a question of Checks and Balances - the sale of the still creates a record of the Still being linked to you as an individual. This record of sale then needs to be matched to your Registration of the Still. Why?  

Why are Stills and Still Use so tightly controlled?

The official SARS position - and I am quoting now from an actual meeting with SARS - is that all Stills belong to them.

It does not matter who built it, paid for it, imported it. If it can produce alcohol through distillation, it belongs to SARS. 

They are just allowing us or permitting us to use the stills. And because it belongs to them, they need to know where all the stills are located.

   

What will happen if I do not Register my Still or myself?

Now, let us be clear here, Still Registration is not a voluntary process. It is required by the law:

   

63.02 Every person who owns, possesses or keeps a still shall apply for a license on form DA 185 and the appropriate annexure, unless such still is used solely for distilling water or any other purpose for which a license is not required.

  

If you fail to register, and you are then caught owning and unregistered still (even if you have not been using it), the following can happen:

1. You will be fined
2. You may be charged Excise Tax on the assumption of full-time use of the still for the entire period that it has been in your possession
3. You will have a Liquor Related Offence linked to your name, prohibiting you from obtaining any form of Liquor Related License or Registration for a minimum of three years, and longer if the Controllers deem fit.

  

SO, long story short, make sure you buy a legal still, register it and yourself, and use it correctly, to avoid any problems.

The next Article in this series will handle the actual registration process.

   

What Type of Still can I use as a Home Distiller?

Technically speaking there are 7 different still types in the world.

1. Pot Stills
2. Alembic Stills
3. Adjustable Reflux Column Stills
4. Fractionating Reflux Column Stills
5. Multi Column Stills
6. Hybrid Stills
7. Continuous Stills

With the exception of Continuous Stills, any of these Stills can be used as a Hobby or Home Distiller. It comes down to Budget (of course) and what type of Product or Products you wish to produce.

Under South African Legislation there are no regulations that govern Still Types for home use, so all are legally allowed.

   

What Size of Still can I use as a Home Distiller?

There is no legislation that limits a Home Distiller to a certain Still Size.

The only mention of Still Size in South African Law refers too Commercial Operations. where it stated in Section 33 of the SARS Rules that no Commercial Operation could use a Still smaller than 680lt.

In October 2018, Distillique and SACDI engaged with SARS regarding this requirement, arguing against it as a barrier to entry for entrepreneurs and previously disadvantages distillers, thereby limiting diversification of ownership within liquor manufacturing, and reducing job creation, exports, investments, and a whole host of other opportunities in the marketplace.

At the beginning of 2019, this Still Size Requirement was scrapped By the deletion of rules 33.01, 33.02 and 33.04 and the renumbering of rule 33.03 as rule 33.01.

It has however happened that SARS officials has used this requirement to deny registrations - both not being aware that the Rules were scrapped, and not applying the rule correctly.

You can legally use a still of ANY size as a Home Distiller.

However ...

SARS has the right to inspect any Home Distilling operation, but they do not have the manpower to do this. They have therefore arbitrarily decided that any Home Distiller with a Still larger than 100lt will be inspected. The reasoning being that the use of a still of larger capacity for Home Distilling is suspect. That being said though, this decision does in no way diminish or negate SARS authority and rights to inspect a Home Distiller using a smaller still, or multiple small stills.