Association of Meat Importers and Exporters and Others v International Trade Administration Commission and Others (769, 770, 771/12) [2013] ZASCA 108; [2013] 4 All SA 253 (SCA); 2014 (4) BCLR 439 (SCA) (13 September 2013)

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[2013] ZASCA 108
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Association of Meat Importers and Exporters and Others v International Trade Administration Commission and Others (769, 770, 771/12) [2013] ZASCA 108; [2013] 4 All SA 253 (SCA); 2014 (4) BCLR 439 (SCA); 76 SATC 9 (13 September 2013)

THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 769, 770, 771/12
REPORTABLE
In the matter between:
ASSOCIATION OF MEAT IMPORTERS
AND
EXPORTERS AND OTHERS
........................................................
Appellants
and
INTERNATIONAL TRADE
ADMINISTRATION COMMISSION
AND OTHERS
...............................................................................
Respondents
Neutral citation:
Association of Meat Importers v ITAC
(769, 770, 771/12)
[2013]
ZASCA 108
(13 SEPTEMBER 2013)
Coram:
NUGENT, LEWIS,
THERON, WALLIS and SALDULKER JJA
Heard:
15 AUGUST 2013
Delivered: 13 SEPTEMBER 2013
Summary: Anti-dumping duties
imposed under the Customs and Excise Act 91 of 1964 –
termination – effect of World Trade
Organisation Agreement –
effect of regulations promulgated under the
International Trade
Administration Act 71 of 2002
.
___________________________________________________________
ORDER
___________________________________________________________
On appeal from North Gauteng High
Court (Raulinga J sitting as court of first instance). The order
appears at page 32 of the judgment.
1. The appeals all succeed with
costs to be paid by the respondents jointly and severally. All the
orders of the high court, other
than its order of condonation and the
associated costs order, are set aside.
2. The following orders are
substituted:
(a) It is declared that the
anti-dumping duties reflected in the notice of motion were extant at
the time the sunset reviews were
initiated in each case.
(b) The counter-application is
dismissed.
(c) The applicants jointly and
severally are to pay the costs of all the respondents who opposed the
application.
3. The costs in this court and
the court below are to include the costs of two counsel.
___________________________________________________________
JUDGMENT
___________________________________________________________
NUGENT
JA (LEWIS, THERON and SALDULKER JJA CONCURRING)
[1] This appeal concerns the
validity of various anti-dumping duties imposed under the Customs and
Excise Act 91 of 1964. The proceedings
were prompted by the decision
of this court in
Progress
Office Machines CC v The South African Revenue Service,
1
which has caused some concern to
the customs and revenue authorities. They say the decision has
significant and far-reaching implications
for the discharge of their
statutory powers and functions, and that its implications for South
Africa’s international obligations
are considerable. Those
sentiments are echoed in a critical commentary on the case by G F
Brink, who describes it as having ‘far-reaching
implications
for the administration of the law of unfair international trade’.
2
The reason for the present
proceedings, say the authorities, rather euphemistically, was to
‘regularise’ the position.
I think it is more accurate to
say its purpose was to overcome the consequences of that decision.
[2] The means by which the
customs and revenue authorities have sought to do so are rather
complex and I think it is helpful to
trace the background to the case
in some detail before turning to the orders sought in and granted by
the court below.
[3] ‘Dumping’ occurs
when goods are exported from one country to another at an export
price that is lower than the price
of the goods when sold for
consumption in the exporting country. The practice gives the imported
goods an unfair advantage over
those produced domestically and it is
common internationally for ‘anti-dumping duties’ to be
levied by the importing
country so as to neutralise the advantage.
[4] In this country the various
customs statutes over many years have allowed for the imposition of
anti-dumping duties. The current
provisions are contained in Chapter
VI of the Customs and Excise Act. The provisions have altered since
the statute was enacted
but at the time relevant to this appeal they
existed substantially in their current form. The provisions need to
be read together
with the Board on Tariffs and Trade Act 107 of 1986,
until its repeal with effect from 1 June 2003, and thereafter with
the repealing
statute, the
International Trade Administration Act 71
of 2002
.
[5] Goods upon which anti-dumping
duties are imposed are specified in Schedule 2 to the Customs and
Excise Act. Under s 55(1) goods
specified in that schedule are, upon
entry for home consumption, liable to the specified anti-dumping duty
if they are imported
from a supplier, or originate in a territory,
specified in respect of the goods.
[6] The Board on Tariffs and
Trade was formerly the body charged with investigating dumping.
3
Once having conducted an
investigation it would report and make recommendations to the
Minister of Trade and Industry and for Economic
Co-ordination. If the
Minister accepted the report and recommendations of the Board he
could request the Minister of Finance to
amend Schedule 2
appropriately, which the Minister of Finance was permitted to do by
notice in the Gazette.
4
[7] Whenever the Board on Tariffs
and Trade published a notice in the Gazette to the effect that it was
investigating the imposition
of an anti-dumping duty, it was
permitted to request the Commissioner of the South African Revenue
Service to impose a provisional
payment in respect of the goods in
question, for such period, and in such amount, as the Board might
specify. If so requested the
Commissioner was obliged to impose the
provisional payment by notice in the Gazette.
5
When amending Schedule 2 so as to
impose an anti-dumping duty the Minister was entitled to ante-date
the duty to the date the provisional
payment was imposed.
6
[8] If a provisional payment was
imposed, it was required to be paid on the goods, at the time of
entry for home consumption, as
security for any anti-dumping duty
that might later be imposed and ante-dated, and could then be set off
against liability for
the duty. If no anti-dumping duty was imposed
before expiry of the period for which the provisional payment was
imposed then the
provisional payment would be refunded. If the
provisional payment exceeded the amount of the ante-dated duty the
excess was to
be refunded. If it was less the difference could not be
collected.
7
[9] The Customs and Excise Act
places no limit on the duration of an anti-dumping duty. No doubt the
Minister of Finance, in his
notice amending the schedule, was
entitled to limit the duration of the duty, if that was requested,
but without that an anti-dumping
duty would endure until it was
withdrawn or revised by further amendment to the schedule.
[10] South Africa is a member of
the World Trade Organisation (WTO) and party to the WTO Agreement
1994, which incorporates the
General Agreement on Tariffs and Trade
1947, to which this country was also a party. Part of the WTO
Agreement is the Agreement
on Implementation of Article VI of the
General Agreement on Tariffs and Trade 1994, which deals with
anti-dumping measures. I will
refer to it for simplicity as the WTO
Agreement.
[11] The principle underlying the
WTO Agreement is that anti-dumping duties are exceptional measures
that are to be imposed only
in an amount, and for so long as, they
may be required to counter injury to the domestic industry. It
contains a comprehensive
regime, in considerable detail, for the
imposition of anti-dumping duties, which includes the basis upon
which they are to be calculated,
the grounds upon which injury to the
domestic industry is to be shown, the circumstances in which
investigations may be initiated
and the manner in which they are to
be conducted, the duration and review of anti-dumping duties, and
provisional measures that
may be taken to counter dumping once an
investigation has been commenced.
[12] The duration of anti-dumping
duties, and an obligation to review them periodically, is provided
for in Article 11 as follows:
‘
11.1
An anti-dumping duty shall remain in force only as long as and to the
extent necessary to counteract dumping which is causing
injury.
11.2 The authorities
shall review the need for the continued imposition of the duty, where
warranted, on their own initiative or,
provided that a reasonable
period of time has elapsed since the imposition of the definitive
anti-dumping duty, upon request by
any interested party which submits
positive information substantiating the need for a review. …
If, as a result of the review
under this paragraph, the authorities
determine that the anti-dumping duty is no longer warranted, it shall
be terminated immediately.
11.3 Notwithstanding
the provisions of paragraphs 1 and 2, any definitive anti-dumping
duty shall be terminated on a date not later
than five years from its
imposition (or from the date of the most recent review under
paragraph 2 if that review has covered both
dumping and injury, or
under this paragraph), unless the authorities determine, in a review
initiated before that date …
that the expiry of the duty would
be likely to lead to the continuation or recurrence of dumping and
injury. The duty may remain
in force pending the outcome of such a
review.
11.4 The provisions
of Article 6 regarding evidence and procedure shall apply to any
review carried out under this Article. Any
such review shall be
carried out expeditiously and shall normally be concluded within 12
months of the date of initiation of the
review.’
[13] The regime that prevailed
after 1 June 2003, when the Board on Tariffs and Trade Act was
replaced by the
International Trade Administration Act, remained
much
the same as the earlier regime I have described, but with some
important changes that were clearly aimed at giving effect
to the
obligations assumed by this country under the WTO Agreement.
[14] From that date the
International Trade Administration Commission (ITAC) succeeded the
former Board on Tariffs and Trade as
the body charged with
responsibility for investigating dumping. A person may now apply to
ITAC for the imposition of an anti-dumping
duty and ITAC is then
required to evaluate the merits of the application.
8
Various sections of the
International Trade Administration Act are
to come into effect only
when the Southern African Customs Union Agreement becomes law in the
Republic, which has yet to occur.
Until then,
s 2(1)
of the
transitional provisions requires ITAC to investigate applications
made to it as if the Board on Tariffs and Trade Act is
still in
existence.
[15] Other changes were
introduced in regulations promulgated under the
International Trade
Administration Act on
14 November 2003.
9
The regulations provide, again in
considerable detail, for the investigation of allegations of
injurious dumping, the procedures
to be followed in investigations,
the manner in which anti-dumping duties are to be determined, and
their review from time to time,
including what are called ‘sunset’
reviews, no doubt called that because they are initiated as an
anti-dumping duty
is reaching its end.
[16] In summary, the regulations
allow for an anti-dumping investigation to be initiated, generally
only upon application by or
on behalf of the relevant Southern
African Customs Union (SACU) industry.
10
Where an investigation is to be
held it must be formally initiated by notice in the Gazette.
11
ITAC will at first make a
preliminary finding, which is subject to comment by interested
parties,
12
and the process will culminate in
its final recommendation to the Minister of Trade and Industry.
[17] The regulations allow for
interim reviews to be conducted from time to time but generally not
earlier than a year after the
publication of ITAC’s final
finding in the original investigation or a previous review. ITAC will
initiate an interim review
only if the party requesting the review
can prove that circumstances have since changed significantly.
13
[18] Approximately six months
before the lapsing of an anti-dumping duty ITAC is enjoined by
regulation 54
to forewarn known interested parties by direct
communication, and the public at large through notice in the Gazette,
that it will
lapse unless a sunset review is initiated. The SACU
industry may then apply for the anti-dumping duty to be maintained,
upon information
establishing prima facie that the removal of the
duty is likely to lead to the continuation or recurrence of injurious
dumping.
Where no such request is made, or such information is not
provided within the specified time, ITAC ‘will recommend that
the
anti-dumping duty lapse on the date indicated in the notice’.
I think that means, more accurately, that ITAC will recommend
that
the anti-dumping duty be permitted to lapse, because in truth, under
regulations I come to, it terminates by operation of
law in the
absence of a sunset review.
[19] Two regulations deal with
the duration of anti-dumping duties –
regulations 38.1
and
53
.
I deal with
regulation 38.1
presently. For the moment I need recite
only
regulation 53:
0in;
line-height: 150%">
‘
53.1
Anti-dumping duties shall remain in place for a period not exceeding
5 years from the imposition or the last review thereof.
53.2 If a sunset
review has been initiated prior to the lapse of an anti-dumping duty,
such anti-dumping duty shall remain in force
until the sunset review
has been finalised’.
[20] This case concerns a number
of anti-dumping duties that were imposed by amendment of Schedule 2
before the
International Trade Administration Act came
into effect.
14
Only three were the subject of
contestation before us although the others are also relevant to the
order that was made.
[21] The first is an anti-dumping
duty imposed on chicken meat portions emanating from the United
States of America. An investigation
into dumping was initiated by the
former Board on Tariffs and Trade on 5 November 1999
15
and a provisional payment was
imposed on 5 July 2000.
16
The anti-dumping duty was
introduced into Schedule 2, with effect from that date, by notice
published in the Gazette on 27 December
2000.
17
A sunset review of the
anti-dumping duty was initiated by ITAC on 16 September 2005,
18
and on 27 October 2006 ITAC gave
notice in the Gazette that it had recommended that the anti-dumping
duty be maintained, and that
the Minister of Trade and Industry had
approved the recommendation.
19
[22] The second is an
anti-dumping duty imposed on garlic imported from China after an
investigation by the former Board on Tariffs
and Trade. A provisional
payment was imposed on 24 March 2000.
20
The anti-dumping duty was
introduced into Schedule 2, with effect from that date, by notice
published in the Gazette on 20 October
2000.
21
A sunset review of the
anti-dumping duty was initiated by ITAC on 23 September 2005,
22
ITAC gave notice in the Gazette
on 10 March 2006 that it had recommended that the anti-dumping duty
be maintained, and that the
Minister of Trade and Industry had
approved the recommendation.
23
[23] What I have called the third
is really more than one duty but because they share the same material
characteristics I have treated
them for convenience as one. It is an
anti-dumping duty imposed on various categories of glass from China
and India.
24
On 5 June 1998 the Board on
Tariffs and Trade initiated an enquiry,
25
and provisional payments were
imposed on 27 November 1998.
26
Anti-dumping duties were
introduced into Schedule 2, with effect from that date, by notice
published in the Gazette on 28 May 1999.
27
On 19 March 2004 ITAC initiated a
sunset review. On 5 November 2004 ITAC gave notice in the Gazette
that it had recommended that
the anti-dumping duty be maintained and
that the Minister of Trade and Industry had approved the
recommendation.
28
[24] A second sunset review of
this duty was initiated by ITAC on 21 August 2009.
29
It recommended that some of the
duties be maintained, and that others be increased. Its
recommendations were approved by the Minister
of Trade and Industry,
and notice to that effect was given on 16 April 2010.
30
The duties that were to be
increased were amended in Schedule 2 by notice given by the Minister
of Finance in the Gazette on 26
March 2010.
31
[25] All those anti-dumping
duties have certain features in common. First, they were all
introduced into Schedule 2 by notice in
the Gazette before the
International Trade Administration Act and
the regulations came into
effect. Secondly, they were all introduced with effect from the date
provisional payments had been imposed.
Thirdly, in each case a sunset
review was initiated more than five years after the anti-dumping duty
took effect, but within five
years of it being introduced into
Schedule 2 by notice in the Gazette. Fourthly, a sunset review was
initiated in each case, which
culminated in each case with a
recommendation by ITAC that the anti-dumping duty be maintained, the
approval of that recommendation
by the Minister of Trade and
Industry, and notice to that effect in the Gazette.
[26] A further anti-dumping duty
indirectly relevant to this case shares those four characteristics.
It is an anti-dumping duty
on paper from Indonesia, which was
introduced into Schedule 2 by notice in the Gazette on 28 May 1999,
with effect from 27 November
1998. A sunset review was initiated by
ITAC on 28 November 2003 – more than five years after the
anti-dumping duty took effect,
but within five years of it being
introduced into the schedule.
[27] The fate of that
anti-dumping duty came under consideration in
Progress
Office Machines.
In
that case it was found by this court that the date of ‘imposition’
of the anti-dumping duty as that term is used
in Article 11.3 of the
WTO Agreement was the date it took effect – in that case 27
November 1998 – and it declared
the anti-dumping duty to have
no force or effect five years later.
[28] Until then the authorities
had conducted their affairs in the belief that an anti-dumping duty
terminated five years from the
date it was introduced by notice in
the Gazette, and not the date it took effect where it was ante-dated.
Acting in that belief
sunset reviews of other anti-dumping duties
were initiated more than five years after the duty took effect (but
within five years
of the duty being introduced by notice in the
Gazette). The effect of the decision in
Progress
Office Machines,
as
the authorities see it, is that in consequence of their mistaken
belief, those duties inadvertently lapsed, notwithstanding that

injurious dumping was still occurring or threatened. The duties in
issue in this case all fall within that category.
[29] In an attempt to overcome
what they saw to be those consequences the authorities commenced the
present proceedings in the North
Gauteng High Court. The authorities
concerned are ITAC, the South African Revenue Service, and the state
nominally represented
by the Minister of Trade and Industry and the
Minister of Finance, who were the applicants in the court below, and
are the respondents
in the appeal. For convenience I will call them
collectively the authorities.
[30] A plethora of respondents
were cited in the application
32
but only some joined in the
proceedings. Those who joined in the proceedings fall into two camps.
[31] In the first camp are
parties with an interest in the importation of the relevant goods, to
whom there is advantage if the
duties have expired. Amongst them are
parties who have an interest in the importation of chicken portions
from the United States,
led by the Association of Meat Importers and
Exporters (I will call them collectively AMIE
33
),
and two parties with an interest in importing garlic (I will call
them Shoprite
34
).
In addition to opposing the application one of the Shoprite parties
also counterclaimed for recovery of a little less than R9
million in
duty it had paid.
35
[32] In the second camp are
parties connected with the local production of goods subject to the
anti-dumping duties, to whom there
is advantage if the duties have
not expired. In this camp is a party connected with the domestic
production of glass
36
and parties connected with the
domestic poultry industry.
37
All these parties have joined
together to present a common front and I call them collectively the
glass and poultry industries.
[33] The principal relief sought
by the authorities was granted by the high court (Raulinga J) and is
reflected in orders that were
made in the following terms:
38
‘
C.
In terms of Section 172(1)(a) of the Constitution, Schedule 2 to the
Customs [and Excise] Act is declared invalid to the extent
that from
the dates mentioned against each affected product as listed in the
[notice of motion] shall be of no force and effect.
D. The order in C
above is to operate with retrospective effect in relation to the
affected products from the date listed against
each product in the
amended notice of motion.
E. The Minister of
Finance is given a period of 3 years within which the defect must be
rectified.’
[34] The ‘affected
products’ are the various products I described earlier,
39
and the date referred to in each
case is five years from the date the anti-dumping duty took effect
(the date upon which the anti-dumping
duty was believed to have
terminated on an application of
Progress
Office Machines
).
[35] Various orders were also
sought as an alternative to each of the orders preceding it. The
first was little more than a repetition
of the main order cast in
different form. The second was an order ‘reviewing, setting
aside and declaring as invalid, the
failure by the Minister of
Finance to withdraw the anti-dumping duties in respect of the
affected products’ from the dates
I have referred to, coupled
with an order suspending the declaration for three years. The next
was an order in the same terms,
but applicable to the failure of the
Minister of Trade and Industry to request the withdrawal of the
anti-dumping duties. And finally,
an order was sought ‘reviewing,
setting aside and declaring invalid [ITAC’s] initiation of
sunset reviews’, coupled
with suspension of the order.
[36] AMIE, Shoprite, and also the
glass and poultry industries, appeal the orders with the leave of the
court below. The terms on
which leave was granted were restricted to
a degree, but for the moment the restriction is not material, and I
deal with it later
in this judgment. At first sight it might seem
curious that the glass and poultry industries, whose interests
coincide with those
of the authorities, have appealed the orders. The
explanation is that their appeal is directed not against the
objective the authorities
sought to achieve, but against the remedy
that was pursued to achieve it.
[37] Returning to the principal
relief that was sought and granted it will be seen that it was in two
parts that operate together.
The first part was an order declaring
the relevant parts of Schedule 2 to be invalid and of no force or
effect. The second part
was an order suspending the declaration. By
that combination, so the authorities believe, the anti-dumping duties
they thought
had lapsed will be resurrected. Their belief is
conceptually misconceived.
[38] When a court makes a
declaration it is declaring the existence of a state of affairs. The
state of affairs that exists before
a law is declared invalid is that
it purports to have the force of law but in truth it does not. For so
long as it purports to
have the force of law it commands obedience,
no matter that in truth it is invalid, but upon being declared
invalid it no longer
purports to have the force of law and may be
ignored with impunity.
40
When such a declaration is made,
and then suspended, naturally the state of affairs remains as it was
before the declaration –
the law purports to have the force of
law and commands obedience.
[39] When there is nothing
purporting to have the force of law in the first place, a court might
declare that state of affairs,
but the declaration does not bring
about any change. Before the declaration there was nothing purporting
to have the force of law,
and after the declaration there is also
nothing purporting to have the force of law. Suspending the
declaration has no effect on
the position because no change in the
state of affairs was brought about by the declaration.
[40] The fatal defect in the case
for the authorities, and the orders granted, is that they equate the
absence of a law with the
invalidity of a law. The case advanced by
the authorities is that the anti-dumping duties are invalid –
but the only ground
for saying so is that they are said to have
lapsed.
[41] It is a singular feature of
this case that the authorities have yet to identify the means by
which the anti-dumping duties
are said to have terminated. But if
they have indeed terminated, which is the foundation for their case,
the only means that has
ever been suggested for having brought that
about, is by operation of Article 11.3 of the WTO Agreement, whether
directly or indirectly,
or by operation of regulation 53.1. In either
event the authorities’ case ought to have failed.
[42] The language used in Article
11.3 to describe the fate of the anti-dumping duties upon expiry of
the specified time is ‘terminated’
and ‘expiry’
and there is no reason not to give those words their ordinary
meaning. Used in their present context they
mean the duties cease to
exist.
41
The language in regulation 53.1
is that the duties ‘lapse’, which means the same thing.
42
In
Dawood
v Abdoola
43
Selke J took the word to have a
more limited meaning in
s 75(1)
of the
Insolvency Act 24 of 1936
–
he took it to be the equivalent of ‘fall into abeyance’ –
but as pointed out by Thirion J in
Minister
of Law and Order v Zondi
:
44
‘
This
conclusion Selke J reached however as a result of the peculiar way in
which the provision there in question was worded; namely
that,
despite the fact that it provided that on the happening of a certain
event the proceedings would lapse, it nonetheless referred
to such
‘lapsed’ proceedings as being still ‘pending’.
[43] Whether the anti-dumping
duties came to an end by operation of Article 11.3 or by operation of
regulation 53.1 – if they
came to an end at all – they
have ceased to exist and there is nothing that purports to command
obedience. That being the
state of affairs a declaration of
invalidity was not competent, because that is a different state of
affairs. There would also
be no purpose in declaring the anti-dumping
duties to have ceased to exist, and then to suspend it, because that
declaration brings
about no change in the former state of affairs.
[44] Counsel for the authorities
submitted that because the anti-dumping duties remain reflected in
Schedule 2 they still purport
to exist but that is not correct. It is
not the writing in the schedule that brought the anti-dumping duties
into existence –
they were brought into existence by the act of
the Minister of Finance in publishing the amendment to the schedule.
The writing
then inserted in the schedule merely recorded that
amendment. Once the anti-dumping duties recorded in the schedule
cease to exist,
the writing remains only as an historical record that
they once existed. The authorities need no assistance from a court if
they
wish to expunge that historical record. They need only ask the
government printer to do so when next the schedule is printed.
[45] The court below ought not to
have declared the anti-dumping duties to be invalid, because that was
not the state of affairs
that existed. On the case advanced by the
authorities the state of affairs was that no anti-dumping duties
existed, which is something
else. The orders of the court below were
not competent on any basis and they must be set aside.
[46] But that is not the end of
the matter. There remains the curious appeal of the glass and poultry
industries. I call it curious
because their interests coincide with
those of the authorities, yet they appeal the order sought by and
granted to the authorities.
[47] The explanation is that when
the orders are stripped of their form, to expose their reality, they
were intended to have the
effect of a declaration that the
anti-dumping duties were extant when the sunset reviews were
initiated, and would continue to
exist for a further three years.
That was the effect the authorities intended the orders to have, all
the parties knew it was intended
to have that effect, and the court
below granted it believing that was its effect. The orders might just
as well have had a footnote
explaining that was its intended effect
for the difference it would have made to the conduct of the case.
[48] The purpose for which the
glass and poultry industries have appealed is to preserve the first
part of that intended outcome
should the orders of the authorities go
awry in this court. They say the intended outcome in the high court
was the proper one,
but they reach that conclusion on conventional
lines.
[49] There is no reason not to
hear the case advanced by the glass and poultry industries, and it is
appropriate to decide the matter
on that basis if their submissions
are correct. All the parties came to this court well aware of the
case that would be advanced
by the glass and poultry industries,
which was comprehensively dealt with in their counsel’s heads
of argument. And lest
any of the parties were minded to brush that
case aside, they were forewarned by this court, well in advance, that
they would be
called upon to address various pertinent questions that
it raised. Indeed, the parties all agreed that if the case advanced
for
the glass and poultry industries is found to be correct, we
should make a declaration to that effect so as to avoid further
uncertainty.
[50] The position taken by Mr
Cockrell SC for the glass and poultry industries is straightforward.
He submitted that the fate of
the anti-dumping duties is governed by
regulation 53 and not by Article 11.3 of the WTO Agreement. On the
plain meaning of article
53.1 – so he submitted – the
duties lapsed five years from the date they were introduced into
Schedule 2 by notice
in the Gazette. That being so – the
submission continued – the duties remained extant under
regulation 53.2 because
the sunset reviews were initiated before that
date.
[51] Before considering the
submission I think it is necessary to be clear on what was decided –
and what was not decided
– by
Progress
Office Machines
. And
for that it is best to start at the beginning.
[52] The applicant in that case
sought an order declaring the anti-dumping duty on paper from
Indonesia to be of no force or effect
from 27 November 2003.
45
It was brought upon the written
advice of counsel, whose advice was founded solely upon the effect of
Article 11 of the WTO agreement,
which he said ‘is part of our
law’.
46
It is apparent from the judgment
of Gyanda J in the high court
47
that the authorities shared that
view, because the learned judge recorded the dispute that called for
decision as follows:
‘
The
dispute between the parties relates to the calculation of the five
(5) year period provided for in Article 11.3 of the World
Trade
Organisation Agreement, which, it is common cause, is equivalent to a
National Act of the Republic of South Africa’.
[53] On that basis the only
question submitted for his decision was when the ‘imposition’
of the anti-dumping duty occurred,
within the meaning of the word in
Article 11.3 of the WTO Agreement. The learned judge found the
anti-dumping duty had been imposed
when it was introduced into
Schedule 2 by notice in the Gazette and the application was
dismissed.
[54] In this court the case was
once again presented on the basis of agreement between the parties –
or at least concession,
which amounts to much the same thing –
but on this occasion their agreement was stated more cryptically. The
judgment records
it as follows:
‘
It
is common cause between the parties and was conceded on behalf of
[ITAC] that the duration of the definitive anti-dumping duty
imposed
by the Minister of Finance is a period of five years’.
[55] Although not expressly
stated in that sentence it is clear from the reasoning of the court,
from the genesis of the dispute,
from the stance that had been taken
in the high court, and from the heads of argument filed in this
court, that what was meant
by ‘a period of five years’
was once again that period calculated from the date of ‘imposition’
of the
duty within the meaning of that word in Article 11.3 of the
WTO Agreement.
[56] Thus the question for
decision by this court was decidedly narrow. It was confined to the
meaning of ‘imposition’
of an anti-dumping duty as it is
used in Article 11.3. The court said as much:
‘
[The]
narrow issue for decision in this case is whether the duration of the
anti-dumping duty imposed ‘retrospectively’
is calculated
from the retrospective date or from the date of ‘imposition’’.
[57] If the authorities forewent
anti-dumping duties upon the meaning this court gave to the word in
Article 11.3 – which
the order of the court demonstrates they
did – that is only because they chose to do so. I do not say
that as a criticism
of the authorities. I say it only because this
court certainly did not decide that to be the case. It decided only
the narrow question
what was meant by ‘imposition’ in
Article 11.3, and made its order on that basis because that was what
the parties
agreed it should do.
[58] In the course of its
judgment two opinions were expressed that were not necessary for its
decision, and are not binding. The
first was its opinion that Article
11.3 of the WTO Agreement is not domestic law, and for that reason
does not operate directly
to bring an anti-dumping duty to an end,
and I agree with that opinion.
48
The second was its opinion that
Article 11.3 governed the matter indirectly, because the duration of
the anti-dumping duty, when
it was first imposed, must be taken to
have been limited to a ‘reasonable time’, which was then
taken to be the period
in Article 11.3. I disagree with that opinion,
but need express my principal reasons for doing so only briefly,
because I do not
understand that proposition to have been contended
for in that case, nor is it contended for in the case before us.
[59] The authority of the
Minister of Finance to impose anti-dumping duties emanates from the
Customs and Excise Act. There is not
the slightest indication in the
statute that anti-dumping duties imposed by the Minister would endure
only for a reasonable time.
Indeed, had that been the case, it can be
expected that many anti-dumping duties expired since the statute was
enacted in 1964,
but that has never been suggested. That being so,
there is no basis upon which a restriction on the duration of an
anti-dumping
duty was capable of somehow infusing itself into the
statute osmotically after its enactment, whether through conclusion
of the
WTO Agreement or through other means. There is also no
indication in any of the notices that the Minister restricted the
duration
of an anti-dumping duty to a reasonable time by implication.
Indeed, a restriction of its duration on those terms, whether in the

statute or in the notices, would leave the authorities and importers
in such uncertainty as to the duration of an anti-dumping
duty that
it simply cannot be inferred.
[60] It is as well to repeat for
clarity what was not decided by
Progress Office Machines
. It
did not decide that Article 11.3 operated directly to terminate an
anti-dumping duty after the specified time. On the contrary,
it
expressed itself against it. It also did not decide authoritatively
that Article 11.3 operated indirectly to bring that about
on the
basis suggested, and I think that proposition can be discounted.
Progress Office Machines
also decided nothing at all
concerning the effect of the regulations. Indeed, the regulations
received only passing reference,
and then only as ‘indicative’
of an intention on the part of government to give
effect to the WTO Agreement,
49
and an ‘indication’
that the period referred to in Article 11.3 was ‘reasonable’
.
50
[61] That being so, it seems to
me that
Progress Office
Machines
has little
bearing on this case, other than to explain its genesis. It becomes
relevant only if the meaning of ‘imposition’
in
regulation 53 is uncertain. Section 233 of the Constitution then
requires us to prefer an interpretation that is consistent
with the
meaning given to it in Article 11.3 over an alternative
interpretation that is inconsistent with that meaning.
51
Beyond that,
Progress
Office Machines
is
confined to the specific context in which it was decided.
[62] The validity of the
regulations has not been challenged in this case. Even if their
validity had been challenged that does
not seem to me to be material.
The only basis they have been suggested to be invalid is a technical
one that can easily be corrected,
and a court that declares a law
invalid is entitled to suspend the declaration so as to enable the
authorities to do so. If the
validity of the regulations had been
before us, and the challenge had been successful, I would have had no
hesitation suspending
the declaration of invalidity for that purpose,
if only to ensure continuity of a regime that was designed to fulfil
this country’s
obligations to its WTO partners.
[63] The regulations create a
regime for the imposition of anti-dumping duties from the time the
regulations took effect. Included
in that regime are the restrictions
placed on their duration by Articles 38.1 and 53. Both must be taken
to have been inserted
for a purpose and neither can simply be ignored
if the language allows for each to be given a meaning.
[64] Article 11 of the WTO
Agreement does not contain an equivalent of regulation 38.1 and the
reason is obvious. It does not purport
to direct the means by which
contracting countries should bring about the termination of
anti-dumping duties. It merely obliges
them to bring that about. This
country has chosen to do so by the means provided for in the two
regulations.
[65] Regulation 38.1 reads as
follows:
‘
38.1
Definitive anti-dumping duties will remain in place for a period of
five years from the date of the publication of the Commission’s

final recommendation unless otherwise specified or unless reviewed
prior to the lapse of the five-year period’.
For convenience of comparison I
repeat regulation 53:
‘
53.1
Anti-dumping duties shall remain in place for a period not exceeding
5 years from the imposition or the last review thereof.
53.2 If a sunset
review has been initiated prior to the lapse of an anti-dumping duty,
such anti-dumping duty shall remain in force
until the sunset review
has been finalised’.
[66] What is meant by a
‘definitive’ anti-dumping duty in regulation 38.1 is not
explained in the regulations but I
think the term can be taken to
have been borrowed from the WTO Agreement, in which it is used to
describe an anti-dumping duty
that is imposed finally after an
investigation, in contra-distinction to a provisional duty, which is
one of the permitted provisional
measures that may be taken while an
investigation is in progress.
52
The word is superfluous in the
regulations, because the provisional measures that have been chosen
are not a provisional duty, but
instead security for an ante-dated
duty.
53
[67] I think the word
‘imposition’ can also be taken to have been borrowed from
Article 11.3. Once a word has been judicially
defined it can usually
be assumed that it was used with that meaning in later legislation,
but that does not apply in this case,
in which the draftsman was not
to know, at the time the regulations were drafted, what this court
said was its meaning in Article
11.3.
[68] Viewed in isolation the word
‘imposition’ in regulation 53 is quite capable of meaning
the date upon which liability
for payment of duties came into being –
which is when the ante-dated liability arose by amendment to Schedule
2 – contrary
to what was found to be the case in
Progress
Office Machines.
The fact that the case was fought in two courts
demonstrates that it is capable of that meaning. But language is
always to be construed
in its context and in the regulations –
unlike in Article 11.3 – that includes regulation 38.1. If that
is its clear
meaning in regulation 53.1 then that is the meaning it
must be given, albeit that it conflicts with what was said to be the
meaning
of the word in Article 11.3.
[69] Both regulations limit the
duration of anti-dumping duties but there is a significant
distinction – regulation 38.1 allows
for exceptions while
regulation 53.1 does not. That seems to me to point inexorably to the
fact that they perform separate functions.
[70] I have said before that when
introducing an anti-dumping duty into Schedule 2 by notice in the
Gazette the Minister of Finance
is entitled to limit the duration of
the duty. So is the Minister of Trade and Industry entitled to limit
its duration if he or
she continues the anti-dumping duty after a
review. The effect of doing so is to set the duration of the
anti-dumping duty at the
time it comes into being or continues.
[71] It seems to me that
regulation 38.1 functions to impose a default period for which an
anti-dumping duty comes into being, or
continues, in the absence of
such a period being specified at the time. If none is specified then
the anti-dumping comes into existence,
or continues, for five years
from the time ITAC’s final recommendation is published in the
Gazette. Because it imposes that
period when the duty is brought into
existence, or made to continue, its operation must necessarily be
confined to anti-dumping
duties that come into existence, or
continue, only after the regulations took effect.
[72] Regulation 53.1 has a
different function. It functions to bring down a guillotine on an
anti-dumping duty that would otherwise
endure beyond the period it
specifies. As such it ensures any period specified by the Minister of
Finance, or the Minister of Trade
and Industry, as the case may be,
does not exceed that period.
[73] But the regulation does not
purport to bring down the guillotine only on anti-dumping duties
introduced after the regulation
took effect. Article 11.3 of the WTO
Agreement clearly contemplates that all anti-dumping duties must be
terminated upon expiry
of the relevant period, not only those that
came into being after the agreement was concluded. It would be absurd
if a regime introduced
well after this country assumed that
obligation, and designed to fulfil that obligation, was intended to
terminate only some anti-dumping
duties and leave others to continue
indefinitely. Indeed, it seems to me it was intended primarily to
terminate anti-dumping duties
that existed at the time the
regulations were promulgated.
[74] That is not to give
regulation 53 retrospective effect. It does not purport to impose a
period upon which the anti-dumping
duty came into existence. It
purports only to bring down a guillotine on anti-dumping duties that
would otherwise continue beyond
the stipulated time.
[75] I think it is clear the two
regulations function at opposite ends of the lifetime of an
anti-dumping duty. Regulation 38.1
functions to introduce a default
period at the start of its life – regulation 53.1 functions to
bring down a guillotine to
end an anti-dumping duty that purports to
endure beyond that period. That is supported by the fact they appear
in different parts
of the regulations. Regulation 38.1 appears under
the part that contemplates their creation. Regulation 53 appears in
the part
that contemplates their end.
[76] Those being their respective
functions one might expect the duration provided for in both
regulations to coincide – though
that need not necessarily be
so.
[77] In its terms the default
period in regulation 38.1 commences on the date of publication of
ITAC’s final recommendation.
Neither the regulations nor the
statutes expressly require publication of ITAC’s final
recommendation, but I think that must
be implied, not only by
regulation 38.1 itself, but also to be consistent with the WTO
agreement.
54
[78] Mr Cockrell submitted that
ITAC’s final recommendation is published, in effect, when the
Minister of Finance or the Minister
of Trade and Industry, introduces
or continues an anti-dumping duty by their respective notices in the
Gazette.
55
If that is so the periods in both
regulations coincide precisely, which is what one might expect.
[79] It is not necessary to
decide whether or not that is so, nor is that essential to the
co-existence of the two regulations.
If regulation 38.1 contemplates
independent publication by ITAC, that will necessarily occur before
the respective notices of the
Minister of Finance and the Minister of
Trade and Industry are published. The effect will be that the default
period in regulation
38.1 will always expire before the guillotine
comes down under regulation 53.1.
[80] It should be apparent that
if the date upon which an anti-dumping duty is ‘imposed’
for purposes of regulation
53.1 is the ante-date from which there is
liability, the regulation would be hopelessly inconsistent with
regulation 38.1 –
the default period under regulation 38.1
would always exceed the maximum period for its existence under
regulation 53.1. That could
never have been intended and would be
absurd. On the other hand, if the date of ‘imposition’ is
the date the schedule
is amended by notice in the Gazette, the two
regulations are consistent – the default period will never
expire after the
guillotine comes down. Indeed, they would harmonise
perfectly if the publication of ITAC’s final recommendation is
to be
taken as the date it is given effect by the relevant Minister –
as submitted by Mr Cockrell.
[81] It is a well established
principle of construction (in truth an inference that might be drawn)
that legislation must be construed
in favour of consistency, and
against inconsistency, if the language allows it. The only sensible
construction that brings about
consistency is if ‘imposition’
in regulation 53 means the date upon which Schedule 2 is amended by
notice in the Gazette.
[82] To give the regulation that
meaning will not mean this country is in breach of its obligations
under Article 11.3 of the WTO
Agreement. The meaning given to Article
11.3 in
Progress Office
Machines
is
authoritative only so far as that Article is applied domestically,
but is immaterial so far as this country’s relations
with its
WTO partners are concerned. Perhaps they might see things in the same
way as this court did in
Progress
Office Machines
–
in
which case the regulations no doubt call for amendment – but
perhaps they might not – in which case all is well and
good. It
is not for us to speculate on how the WTO members understand their
agreement.
[83] It is common cause that
sunset reviews were initiated in the case of all the anti-dumping
duties now in issue before the period
stipulated in regulation 53.1
expired and thus they remained extant under regulation 53.2 until
finalisation of the review. Their
fate thereafter is not before us to
decide.
[84] There are two further
matters I need deal with only briefly.
[85] Leave to appeal was granted
by the court below only so far as its orders concerned the
anti-dumping duties pertinent to the
various parties. This court is
not confined to the terms on which leave to appeal were granted, and
the parties agreed it would
be undesirable to do so. It would be
anomalous, and misleading, if the orders were to be set aside only so
far as they relate to
those duties, when the conclusion I have come
to applies also to the rest. All parties who might be expected to be
affected by
those duties were cited in the proceedings and can be
taken to have no interest in the matter.
[86] Second, there is the matter
of our jurisdiction to entertain this appeal. None of the parties
mounted a jurisdictional challenge,
but the question was raised by
the court before the hearing, and the parties were invited to submit
written argument on the issue.
The response from all the parties was
to eschew any such challenge. But even where no challenge is mounted,
a court should decline
to entertain proceedings if it is clear it has
no jurisdiction to do so.
[87] I will assume the orders of
the court below had no force unless confirmed by the Constitutional
Court but it remains nonetheless
an order of the high court. Section
21(1) of the Supreme Court Act 59 of 1959 confers jurisdiction on
this court to ‘hear
and determine an appeal from any decision
of [a high court]’ and I find nothing in the Constitution to
override that provision.
Nor do I think there are necessarily
procedural incongruities, bearing in mind that an order of a high
court is suspended when
leave to appeal is granted. In
President
of the Republic of South Africa v South African Rugby Football Union
56
Chaskalson P voiced the opinion
that the Constitutional Court might possibly be the only court
competent to deal with appeals against
orders of this kind. But s 34
of the Constitution guarantees to every person the right of access to
a court, and I would be most
reluctant to turn litigants away from a
court to which they claim, and ostensibly have, a right of access, in
the absence of clear
authority from a higher court.
[88] There remains the matter of
costs. The glass and poultry industries had an interest common with
that of the authorities. They
have succeeded in their objective of
rescuing the authorities should their orders go awry and I think the
authorities must pay
their costs. AMIE and Shoprite have succeeded in
having the orders of the court below set aside, but in one sense
theirs has been
a pyrrhic victory. Nonetheless, they were brought to
court by the authorities, and have succeeded in opposing the orders
sought,
and I think they should receive their costs.
[89] All parties agreed that if
we should find as I have found, a declaration reflecting that finding
ought to be granted so as
to avoid uncertainty. The order dismissing
the counter-application was correctly made but I think it is
convenient to set aside
all the orders, other than the order of
condonation and its associated order for costs, and express them
afresh. The counter-application
played little role in the proceedings
and I do not think a separate costs order is warranted. The following
orders are made:
The appeals all succeed with
costs to be paid by the respondents jointly and severally. All the
orders of the high court, other
than its order of condonation and
the associated costs order, are set aside.
The following orders are
substituted:
It is declared that the
anti-dumping duties reflected in the notice of motion were extant at
the time the sunset reviews were
initiated in each case.
The counter-application is
dismissed.
The applicants jointly and
severally are to pay the costs of all the respondents who opposed
the application.
The costs in this court and the
court below are to include the costs of two counsel.
__________________
R W NUGENT
JUDGE OF APPEAL
WALLIS JA
(concurring in
part, dissenting in part)
[90] If it is permissible for
this court to reach the merits of these appeals, then I agree with
Nugent JA for the reasons given
in paras 37 to 45 of the main
judgment that the application by the authorities
57
was misconceived.
58
I also agree with the manner in
which he disposes of the appeals, although the declaration I would
grant would be in narrower terms
and I would make a different order
in respect of costs. However, I do not share his view that this court
has jurisdiction to hear
the appeal and I reach my view on its merits
by a different route. Hence the need for this judgment.
[91] On the issue of jurisdiction
s 168(3) of the Constitution provides that this court may decide
appeals ‘in any matter’.
That is reinforced by the
provisions of s 21(1) of the Supreme Court Act,
59
which provides that this court
‘shall … have jurisdiction to hear and determine an
appeal from any decision of the
court of a provincial or local
division’. Had the matter rested there it would be beyond
dispute that this court has jurisdiction
to hear this appeal, the
necessary leave having been given by the court below. However, in my
view, the matter does not rest there,
because of the nature of the
relief sought and granted by the court below and other relevant
provisions of the Constitution.
[92] The authorities deliberately
framed their case in such a way as to be able to ask the court to
grant a just and equitable remedy
in terms of s 172(1)
(b)
of the Constitution.
Their aim in bringing the application was to obtain an order under
that section that would legitimise the charging
and collecting of
anti-dumping duties on a range of products in the past and would
enable them in the future to continue charging
and collecting such
duties. To this end they sought an order declaring the Second
Schedule to the Customs and Excise Act,
60
(‘the Act’),
constitutionally invalid and asking the court to suspend the
operation of that order, both retrospectively
and prospectively. The
effect of the suspension, so they thought, would be to legitimise the
charging and collection of the relevant
duties.
[93] The court below granted an
order in those terms. In relevant part it reads:
‘
C
In terms of Section 172(1)
(a)
of
the Constitution, Schedule 2 to the Customs Act is declared invalid
to the extent that from the dates mentioned against each
affected
product as listed in the amended notice of motion shall be of no
force and effect.
D The order in (C)
above is to operate with retrospective effect in relation to the
affected products from the date listed against
each product in the
amended notice of motion.
E The Minister of
Finance is given a period of 3 years within which the defect must be
rectified.’
[94] The purpose and effect of
this order was to declare a portion of an Act of Parliament invalid
on the grounds of its inconsistency
with the Constitution. The
reference to s 172(1)
(a)
makes that clear beyond question.
Whether it was correct to grant that order is a separate issue. The
order was one that, in terms
of s 172(2)
(a)
of the Constitution, would have
‘no force or effect unless … confirmed by the
Constitutional Court.’ Section
172(2)
(c)
of the Constitution provides that
national legislation must be passed to provide for the referral of an
order of constitutional
invalidity. That legislation is the
Constitutional Court Complementary Act,
61
s 8(1)
(a)
whereof reads:
‘
Whenever
the Supreme Court of Appeal, a High Court or a court of similar
status declares an Act of Parliament, a provincial Act
or conduct of
the President invalid as contemplated in section 172(2)
(a)
of
the Constitution of the Republic of South Africa, 1996 (Act No.
108 of 1996), that court shall, in accordance with the rules,
refer
the order of constitutional invalidity to the Court for
confirmation.’
Constitutional Court rule 16(1)
requires the registrar of a court that makes an order of
constitutional invalidity in terms of s 172(1)
(a)
to refer the order to
the registrar of the Constitutional Court within 15 days of its being
made. In addition to these requirements
s 172(2)
(d)
of the Constitution
provides that any person having a sufficient interest may appeal or
apply directly to the Constitutional Court
to confirm or vary –which
would include setting aside – an order of constitutional
invalidity.
[95] All of the parties, bar the
fourth and fifth appellants, accepted that these provisions were
applicable in relation to the
order made by the court below. However,
they contended that these requirements and the need to comply
therewith
62
do not oust the jurisdiction of
this court to hear this appeal. The fourth and fifth appellants
adopted the stance that the Second
Schedule to the Act is not a law
for the purposes of s 172(1)
(a)
of the Constitution
and therefore they contended that the confirmation provisions of the
Constitution are inapplicable. For the
reasons that follow I regard
this contention as incorrect.
[96] There is no definition in
the Constitution of what constitutes a law for the purposes
of 172(1)
(a)
.
The Constitutional Court has held
63
that this gap is filled by
reference to the provisions of s 2 of the Interpretation Act
64
and for present purposes a law is
an Act of Parliament. The fourth and fifth appellants contend that,
although the affected provision
is a schedule to an Act of
Parliament, it is not itself an Act of Parliament or a part of an Act
of Parliament. They rely on a
passage in the judgment of Chaskalson P
in
Executive Council,
Western Cape Legislature & others v President of the Republic of
South Africa & others
65
that deals with conflicts between
a provision in the body of an Act and a provision in a schedule and
held that the provision in
the body of the Act should in those
circumstances prevail. However, that is not the present situation.
More pertinent for present
purposes is that Chaskalson P went on to
cite a passage from the Seventh Edition of Craies
Statute
Law
containing the
following sentence:
‘
The
schedule is as much a part of the statute, and is as much an
enactment, as any other part.’
66
I have no doubt that this is a
correct statement of the legal position. Whether statutory matter
appears in the body of the Act
or the schedule is a matter of
drafting convenience. See for example the Income Tax Act,
67
the Carriage of Goods by Sea Act
68
and the Criminal Procedure Act.
69
[97] The Second Schedule to the
Act came into existence as a result of requests by the Minister of
Trade and Industry to the Minister
of Finance to impose anti-dumping
duties and the publication by the latter in the Government Gazette of
the contents of the schedule.
Within one year after any change was
made to the schedule it was affirmed by Parliament, sometimes in a
Revenue Laws Amendment
Act and sometimes in a
Taxation Laws Amendment
Act. That
is in compliance with s 56(3) of the Act. Accordingly
the circumstances in which the schedule came into existence and was
amended from time to time do not alter its fundamental character as
an integral part of an Act of Parliament. I accordingly reject
the
contention by the fourth and fifth appellants.
[98] Reverting to the
constitutional requirement that a declaration that a law is
constitutionally invalid is only effective once
it has been confirmed
by the Constitutional Court, its effect on the jurisdiction of this
court to hear an appeal against such
an order was considered by the
Constitutional Court in
President
of the Republic of South Africa & others v South African Rugby
Football Union & others (SARFU)
70
where Chaskalson P said:
‘
[37]
This is the only Court with jurisdiction to deal with a referral of
an order of invalidity. There is much to be said for the
view that on
a proper construction of the Constitution it is also the only Court
competent to deal with appeals against such orders.
It would be an
unusual procedure which requires an order to be referred to this
Court for confirmation and at the same time permits
an appeal against
the order to be made to another Court, particularly where such order
has no force or effect unless confirmed
by this Court. That would
contemplate two Courts being seized of the same issues at the same
time - one of them with authority
only to reverse the order but with
no power to make a binding order of confirmation, and the other with
authority to confirm, vary
or refuse to confirm the order.’
The court did not however find it
necessary to determine finally whether the jurisdiction of this court
to hear appeals in such
cases is excluded on a proper construction of
the Constitution.
[99] In my view the
construction suggested by
Chaskalson P is correct. Otherwise it results in substantial
anomalies and considerable potential for
procedural confusion, all of
which is illustrated by this case. The point must be tested by having
regard to what should have occurred,
not by making allowances for
non-compliance with the requirement that the order be referred to the
Constitutional Court. Here an
order of constitutional invalidity was
granted that would only be effective if confirmed by the
Constitutional Court. It should
have been referred to the registrar
of that court by the registrar of the North Gauteng High Court within
15 days of being granted.
Assuming that it was, as it should have
been, the correctness of the judgment of the court below would have
been before the Constitutional
Court at the same time as the appeal
to this court was before us. In those circumstances it is unclear
what effect, if any, our
order would have. If we upheld the order of
the court below then the Constitutional Court would remain seized of
the question whether
to confirm the order of constitutional
invalidity. If we set it aside the position is entirely unclear.
Could the Constitutional
Court nonetheless consider the matter as it
was already properly before it and uphold the order of the court
below? Would our order
cause the matter before the Constitutional
Court to disappear, even though that court was properly seized of it?
What would happen
to the appeal before us if the Constitutional Court
heard the confirmation proceedings, but reserved judgment, and then
the appeal
in this court was set down? The possibility of conflicting
judgments would necessarily be present in that situation.
[100] These issues arise
pertinently in the present case because leave to appeal against the
orders set out in para 93
supra
was granted only in
relation to four of the eleven items in the Second Schedule affected
by the order. In regard to the other seven,
confirmation of the order
is still a requirement. Counsel for ITAC suggested that if we were to
set aside the order of the court
below, but on terms that upheld the
validity of the relevant anti-dumping duties, then no steps would be
taken to pursue the confirmation
proceedings in respect of the
remaining items. That approach would involve the disregard of
obligations resting on the registrar
of the North Gauteng High Court.
It is not an approach that we can endorse.
[101] All of these anomalies
disappear once it is accepted that the Constitutional Court is the
only court that can hear an appeal
against an order of constitutional
invalidity made in terms of s 172(1)
(a)
of the Constitution.
In addition the purpose of requiring confirmation of such orders will
be appropriately served by such a construction.
That purpose is to
provide finality and certainty on the question of constitutional
invalidity and to do so expeditiously.
71
It is for this reason that the
Constitutional Court has held that the fact that a case has been
settled between the parties or that
the declaration of invalidity was
made without jurisdiction is not necessarily a reason for it not to
deal with confirmation proceedings.
72
[102] It was submitted that not
permitting an appeal to this court where an order of constitutional
invalidity has been made is
anomalous, when it is clear that the
refusal by the high court to make such an order is appealable and the
decision of the high
court can be overruled and an order of
constitutional invalidity made by this court.
73
This is less of an anomaly than
it may seem. It enables some claims of constitutional invalidity to
be resolved without the need
to engage the Constitutional Court,
because finality may be achieved as a result of this court holding
that there is no invalidity,
possibly by way of a construction of a
statutory provision in a constitutionally compliant manner in
accordance with s 39(2)
of the Constitution. Any attempt to take
the matter further would then be considered by the Constitutional
Court with the advantage
of the views of this court on the matter.
That would enable that court to regulate its own roll by granting or
refusing leave to
appeal against a refusal of an order of
constitutional invalidity. Where an order of constitutional
invalidity has been made in
the high court the need for certainty
within a relatively short period dictates that the matter should
proceed forthwith to the
Constitutional Court.
[103] The other submission
advanced before us was that in the absence of a specific ouster of
this court’s jurisdiction such
an ouster should not be inferred
from the provisions relating to confirmation proceedings and appeals
against orders of invalidity.
An ouster of the jurisdiction possessed
by our superior courts is not lightly inferred.
74
That is especially the case where
that jurisdiction emerges from a provision of the Constitution itself
as in this case (s 168(3)).
Stress was also laid on the fact
that elsewhere, where the Constitution makes the jurisdiction of the
Constitutional Court exclusive,
this is said expressly. (See s 167(4)
and s 172(2)
(a).
)
These are powerful arguments but in my view they are outweighed by
consideration of the procedural nightmare that arises from

recognising an appellate jurisdiction vested in this court in these
circumstances.
[104] If my colleagues had agreed
with my approach to the issue of this court’s jurisdiction the
proper order to make would
have been one striking the appeals from
the roll with an appropriate order for costs. However, as they hold
that this court has
jurisdiction, the case must be decided on its
merits and it is therefore appropriate for me to express my views in
that regard.
I start with a brief review of the relevant statutory
provisions underpinning the impugned duties.
[105] Anti-dumping duties are
imposed under s 56(1) of the Act. The Minister of Finance
imposes them by publishing an amendment
to the Second Schedule to the
Act in the Government Gazette. The Minister of Finance acts in
accordance with a request by the Minister
of Trade and Industry. When
withdrawing or reducing, with or without retrospective effect, any
such duty or otherwise amending
the Second Schedule (s 56(2))
the Minister of Finance likewise acts in accordance with such a
request. Any amendment to the
schedule, whatever its nature or
effect, made in any calendar year will lapse on the last day of the
following calendar year unless
Parliament otherwise provides (s 56(3)
read with s 48(6)).
75
All of the anti-dumping duties in
issue in this case were imposed initially in this way. Insofar as
some of them have subsequently
been amended in regard either to their
scope or their amount, the same procedure was followed. All of them
are reflected in the
Second Schedule, as it exists at present.
[106] All of the disputed
anti-dumping duties were imposed prior to 1 June 2003. That
means that they came into operation before
ITAC was established under
the
International Trade Administration Act (the
ITAC Act),
76
At that time these issues were
dealt with by the Board on Tariffs and Trade (the Board), under the
Board on Tariffs and Trade Act
(the BTT Act).
77
Under s 4 of the BTT Act the
Board would investigate allegations of dumping and report and make
recommendations to the Minster
of Trade and Industry. If the Minister
accepted the Board’s recommendations a request would be made to
the Minister of Finance
to implement those recommendations by way of
an appropriate amendment to the Second Schedule.
78
[107] When one reads the Second
Schedule there is no indication that the anti-dumping duties
contained therein are of limited duration.
However, in terms of South
Africa’s international obligations under the Agreement on
Implementation of Article VI of the
General Agreement on Tariffs and
Trade 1994 (‘the Anti-Dumping Agreement’) ‘any
definitive anti-dumping duty
shall be terminated on a date not later
than five years from its imposition’.
79
Accordingly when the duties in
issue in this case were imposed South Africa was under a binding
international obligation to limit
their duration to a date not later
than five years from their imposition. This court held in
Progress
Office Machines CC v South African Revenue Service & others
,
80
that South Africa’s
obligations under the Anti-Dumping Agreement were binding and the
Constitutional Court endorsed that in
Scaw
Metals
.
81
Accordingly when the duties in
issue in this case were imposed South Africa was under an obligation
in international law to terminate
them by not later than five years
from their imposition. This was so even though the duties, as
embodied in the Second Schedule,
appeared on their face to be of
indefinite duration. As this court held in
Progress
Office Machines
it
would have been contrary to South Africa’s international
obligations to continue to enforce payment of the duties after
the
five years from their imposition had expired. While this is not
essential to my conclusion it seems to me that a person faced
with a
claim for payment of such duties after the elapse of five years from
their imposition could resist such a claim on the footing
that the
attempt at enforcement breached the principle of legality.
82
Be that as it may, however, it is
not relevant because SARS, which is the agency responsible for
collecting the duties, has always
endeavoured to do so within the
framework of South Africa’s international obligations.
[108] When something expires
after five years the date of expiration is determined by ascertaining
the date of commencement of the
five year period. In relation to
anti-dumping duties that is the date of imposition of the duties in
terms of the Anti-Dumping
Agreement. That follows from the words
‘from their imposition’. Ordinarily there would be no
difficulty in determining
when the five year period in the
Anti-Dumping Agreement would expire, because the date of imposition
would correspond with the
date on which the Second Schedule was
amended to incorporate a particular duty, unless some other date was
specified in the relevant
Government Notice. However, both the
Anti-Dumping Agreement (Article 10.2) and the Act (s 55(2)
(b)
read with s 57A),
permit such duties to be imposed retrospectively.
Where
a duty is imposed retrospectively that raises the question whether
the five year limit on its duration is to be calculated
from the date
of its retrospective application or the date of the proclamation that
brought the duty into existence. That was the
simple issue that this
court had to decide in
Progress
Office Machines
.
[109] It is unnecessary for me to
explore the arguments in relation to this question. Clearly a court
called upon to answer the
question would be faced with two
possibilities. It could say that the date of imposition is the date
from which the duty is payable
or it could say that it is the date of
the legislative act that brought the duty into existence. In
Progress
Office Machines
this
court answered it by holding that the date of imposition of the duty
is the date from which the duty became payable, that is,
the date of
its retrospective application. That decision binds us. It is plainly
not open to us on a straightforward issue of construction,
where the
court was faced with two possibilities and selected one of them, to
depart from that finding simply because we would
now reach a
different conclusion. That would fly in the face of the doctrine of
stare decisis
most recently reaffirmed in this
court in
Steve Tshwete
Local Municipality v Fedbond Participation Mortgage Bond Managers
(Pty) Ltd & another,
83
where the position was summarised
in the following terms:
‘
In
1937 Stratford JA said the following in
Bloemfontein
Town Council v Richter
:
“
The
ordinary rule is that this Court is bound by its own decisions and
unless a decision has been arrived at on some manifest oversight
or
misunderstanding, that is there has been something in the nature of a
palpable mistake, a subsequently constituted Court has
no right to
prefer its own reasoning to that of its predecessors — such
preference, if allowed, would produce endless uncertainty
and
confusion. The maxim
stare
decisis
should,
therefore, be more rigidly applied in this the highest Court in the
land, than in all others.”
And in 1989 Corbett
CJ in
Catholic
Bishops Publishing Co v State President and Another
stated:
“
The
reluctance of this Court to depart from a previous decision of its
own is well-known. Where the decision represents part of
the
ratio
decidendi
and
is a considered one (as is the position in this case) then it should
be followed unless, at the very least, we are satisfied
that it is
clearly wrong.”
Today it is
recognised that the principle that finds application in the maxim of
stare
decisis
is
a manifestation of the rule of law itself, which in turn is a
founding value of the Constitution.’
[110] The only parties to
challenge the correctness of the decision in
Progress
Office Machines
were
the 6
th
to 21
st
appellants, who were concerned to
maintain the anti-dumping duties in respect of the importation of
clear drawn and float glass
from India and China and frozen chicken
pieces from the United States of America. Alive to the obstacle posed
by the doctrine of
stare
decisis
they argued
that the judgment could be distinguished because it had not taken
account of regulation 38.1 of the anti-dumping regulations

promulgated under the ITAC Act. Only alternatively did they contend
that the decision was incorrect and should be overruled because
the
court did not have proper regard to regulation 38.1; various
provisions of the Anti-Dumping Agreement; ss 57A(5) and 48(6)
of
the Act.
[111] Both arguments are
dependent upon the proposition that this court in
Progress
Office Machines
should
have taken account of regulation 38.1 of the anti-dumping regulations
in determining the date of imposition of the duty in
issue in that
case. The regulation provides that:
‘
Definitive
anti-dumping duties will remain in place for a period of five years
from the date of the publication of the Commission’s
final
recommendation unless otherwise specified or unless reviewed prior to
the lapse of the five year period.’
The argument is fallacious. As
explained above, the duty under consideration in that case, as with
all the duties in this case,
was not imposed by virtue of a
recommendation by ITAC under the ITAC Act, but by virtue of a
recommendation by the Board under
the BTT Act. It had been in
existence, as with the other duties in this case, for several years
prior to the enactment of the ITAC
Act and the subsequent
promulgation on 14 November 2003 of the anti-dumping
regulations. Regulation 38.1 was not in existence
when these
duties were first implemented and therefore had nothing to do with
their duration. The hypothesis that the regulations
were applicable
to these duties from the date of their imposition is incorrect. It
appears that the fact that the regulations were
not in existence when
the anti-dumping duties were initially imposed and accordingly did
not apply in determining the period of
application of those duties
was overlooked in preparing the argument for the 6
th
to 21
st
appellants, as it was not
mentioned in the heads of argument.
[112] As there appears to be some
confusion about the basis for the judgment in
Progress
Office Machines
it is
as well to clarify this. An examination of the record in that case
shows that the appellant submitted that all anti-dumping
duties
lapsed five years from their imposition. That submission was advanced
on two bases. The primary basis was that this was
what was provided
by article 11.3 of the Anti-Dumping Agreement and that agreement
bound South Africa. The second, which supplemented
the first, was
that regulation 53.1 of the anti-dumping regulations provided that
duties would remain in place for a period not
exceeding five years
from their imposition. The heads of argument for the appellant were
based on the five year period in article
11.3 determining the
duration of the duty and the date of imposition of the duty being
relevant in order to determine when that
period would begin to run.
There is only a passing reference at the end of the heads of argument
to the regulations. In regard
to regulation 38.1 it was submitted
that it ‘relates to an occurrence which did not and does not
occur’ and is not
intelligible. As to regulation 53.1 it was
said to echo the provisions of article 11.3. It was submitted that
the date of imposition
of the duty was the date from which it was
first payable, that is, the retrospective date of its imposition.
[113] The argument on behalf of
ITAC in that case was that the five year limit to the duration of
anti-dumping duties flowed from
the provisions of article 11.3. It
said that regulation 53.1 was a necessary step under the Anti-Dumping
Agreement to secure compliance
with South Africa’s obligations
under that agreement. It submitted that the date of imposition of the
duty, from which date
the five year period would start to run, would
be the date of proclamation of the duty not the retrospective date
from which it
was first payable.
[114] Against that background it
can be seen that the court in
Progress
Office Machines
was
asked to determine when the five year period of operation of the
anti-dumping duty would commence. The concession by ITAC’s

counsel reflected in para 11 of the judgment was a concession
consistent with his heads of argument that the duties, whilst
outwardly
appearing to have been imposed without any limitation as to
their duration, would only be applicable for five years. That
concession
was held to be correct and for the reasons given above,
which largely mirror those of Malan AJA in
Progress
Office Machines
, it
was correct. In order to calculate when that period would expire it
was necessary to determine the commencing date, which was
the date of
imposition of the duty as emerges from article 11.3. The court was
then faced with the two alternatives set out in
para 109 and decided
that the date of retrospective application of the duty was the
correct date.
[115] Reverting to regulation
38.1, it could only be relevant if, once those regulations were
promulgated, it was to be taken to
determine the duration of
anti-dumping duties already in force. Indeed, in the light of the
contention as to its meaning, the proposition
is that regulation 38.1
had the effect of altering the duration of duties already in force.
84
There is not the slightest
indication in the regulations that this was its purpose.
Regulation 68.1 to which we were referred
provides that:
‘
These
regulations shall apply to all investigations and reviews initiated
after the promulgation
of
the regulations.’
Not only is that a provision that
operates prospectively, and not retrospectively to alter the status
of duties already in existence,
but it is confined to the conduct of
investigations and reviews after the regulations come into force. It
accordingly did not provide
for regulation 38.1 to extend the
duration of existing anti-dumping duties. Regulation 68.1 simply
gives effect to para 4(1) of
Schedule 2 to the BTT Act. Significantly
para 4(2) provides that recommendations made by the Board under the
BTT Act before the
ITAC Act came into operation are to be dealt with
as if the BTT Act had not been repealed. That suggests that
substantive matters,
already in existence when the ITAC Act came into
force, such as the duration of existing duties, would not be affected
by the ITAC
Act or any regulations made thereunder.
[116] I accordingly reject the
contention that this court in
Progress
Office Machines
erroneously
disregarded the provisions of regulation 38.1 and any other
provisions of the anti-dumping regulations dealing with
the duration
of anti-dumping duties. It is accordingly unnecessary for me to
address the issue raised by this argument of whether
it was
permissible for the Minister of Trade and Industry, in making those
regulations, to fix the duration of anti-dumping duties
by way of
these regulations. I merely record that I am by no means satisfied
that the power of the Minister to make regulations
under s 59 of
the ITAC Act includes a power to fix by way of regulation the
duration of such duties. That does not appear
to me to be a power
falling within the proceedings and functions of the Commission or one
to give effect to the objects of the
ITAC as set out in s 2
thereof, nor is it a matter that the ITAC Act requires to be dealt
with by way of regulation. However,
it is unnecessary to express a
final view on this point.
[117] I did not understand
counsel to contend that, if regulation 38.1 was inapplicable, the
other provisions to which he referred,
namely the provisions of the
anti-dumping agreement and ss 57A(5) and 48(6) of the Act
justified a departure from the decision
in
Progress
Office Machines
. Any
such argument fails to address s 57A(3) of the Act, which
appears to have been decisive in the reasons for the decision
in
Progress Office
Machines
.
85
It relies on s 57A(5), which
provides that if an anti-dumping duty is imposed retrospectively in
an amount greater than the
amount of any provisional payment under
that section then the excess cannot be recovered. However, that is
merely a question of
fairness to the importer who will have imported
the goods, made the provisional payment and then proceeded to deal
with the goods,
probably by way of resale,
86
on the basis that its costs of
importation had been fixed. On the basis of those costs it would have
determined its selling price
and a claim for further duty would
render commercial life intolerably uncertain. That is the reason for
s 57A(5), which mirrors
article 10.3 of the Anti-Dumping
Agreement. As far as s 48(6) of the Act is concerned the fact
that the court erroneously
referred to the anti-dumping duties as
derived from subordinate legislation does not affect the analysis of
their duration. In
regard to the terms of the Anti-Dumping Agreement
not only is it clear from the affidavit of Mr Vermulst, a Belgian
lawyer who
deposed to an affidavit on behalf of the 6
th
to 21
st
appellants, that there is no
settled international construction of the relevant provisions, but it
is open to any country to adopt
a regime in regard to the duration of
such duties that is more stringent than that in the Anti-Dumping
Agreement. That is the effect
of the construction placed by this
court on s 55(2)
(b)
and s 57A(3) of
the Act.
[118] I am accordingly satisfied
that there is no basis upon which we can hold that
Progress
Office Machines
is
either distinguishable from the present case or that we can properly
hold it to have been incorrectly decided. That brings me
back to the
reason for the present application. The reasoning in
Progress
Office Machines
applied
not only to the anti-dumping duties imposed on the importation of
paper products in issue in that case, but to all eleven
products that
were the subject of anti-dumping duties in this case. In each case
ITAC calculated the duration of the duties initially
imposed as a
result of the Board’s recommendations under the BTT Act on the
basis that the starting point for the calculation
was the date of
promulgation of the duties and not the date from which they were
retrospectively made payable. This created the
problem that the
authorities sought to resolve by the orders they sought in this
litigation.
[119] That problem arises from
the fact that the Anti-Dumping Agreement recognises that, while such
duties are primarily directed
at short term problems of dumping and
should remain in force only so long as and to the extent necessary to
counteract dumping
which is causing injury,
87
dumping sometimes continues after
the expiry of the initial period of anti-dumping duties. In order to
prevent the recurrence of
the harm against which they were originally
imposed it may be necessary for them to be continued. Accordingly the
Anti-Dumping
Agreement provides for a review of whether the expiry of
the duty may lead to a continuation or recurrence of the dumping. If
such
a review is initiated before the expiry of the original five
year period then the duty will remain in force while the review is

being conducted.
88
The review must normally be
completed within a period of 12 months from its initiation.
89
[120] All of the duties in issue
in this case owe their present existence, if they enjoy one, to what
are referred to in the anti-dumping
regulations as sunset reviews,
that is, reviews of whether the expiry of a duty may lead to a
continuation or recurrence of dumping
and therefore warrant the
continued imposition of anti-dumping duties. In each case, as those
reviews took place after the ITAC
Act and the anti-dumping
regulations came into operation, they were conducted in accordance
with those regulations. In each case
the review resulted in a
recommendation by ITAC to the Minister of Trade and Industry either
to maintain the existing proclaimed
duty or to amend it in some
respect, either by deleting countries to which it related or by an
adjustment of the amount of the
duty. In each case the Minister
accepted that recommendation and, where some change was recommended,
the Minister of Finance duly
amended the Second Schedule. In turn
those amendments were kept in force by Parliament by the mechanism
described in para 97
supra
.
In two instances
90
two sunset reviews had been
completed and the recommendations of ITAC acted upon before the case
was argued in the high court. In
three instances
91
a second sunset review was
underway when the case was argued and had resulted in one instance in
the partial withdrawal of the duty.
92
We have not been told the results
of these reviews although they should by now have been completed. In
other cases notices of the
possible expiry of anti-dumping duties had
been published and may for all we know have resulted in further
sunset reviews. Where
second sunset reviews were instituted they were
commenced within five years of the previous review. In one case –
garlic
from China – there was also an interim review that
resulted in an increase in the anti-dumping duty.
[121] I have described this in
some detail because it is only if the steps taken to maintain,
increase or amend the scope of these
anti-dumping duties were of no
force and effect that it can be said that the duties were no longer
in force when this application
was brought and argued. By that stage
the initial period for which they had been imposed had long since
expired. Accordingly the
foundation for the continued imposition of
the duties had to lie in the sunset reviews and the steps taken by
ITAC, the two Ministers
and Parliament pursuant thereto. If the
following steps were effective for that purpose, namely:
ITAC initiating and conducting a
sunset review of the duties;
ITAC making recommendations to
the Minister of Trade and Industry pursuant to such review; and
the Minister accepting their
recommendations and either giving notice of that fact when what was
recommended was the continuation
of the duty or requesting the
Minister of Finance to amend the duties by way of an amendment to
the Second Schedule; and
the Minister of Finance amending
the Second Schedule where requested to do so; and
Parliament providing that such
amendments would remain in force;
then the fact that the initial
period of operation of the duties had expired before the commencement
of the first sunset review
is irrelevant.
[122] The assumption underpinning
the present application is that all these steps were ineffective
because the sunset reviews were
commenced after the expiry of the
initial period for which the duties in issue in this case were in
operation. In the founding
affidavit the Minster of Trade and
Industry said that this was due to an error of law in computing the
relevant period and pointed
out that on the basis of computation
adopted by ITAC all the sunset reviews would have been commenced
timeously. He went on to
submit that the effect of the error was that
the initiation of the sunset reviews was invalid and that the
relevant Ministers erroneously
failed to cause the Second Schedule to
the Act to be amended to reflect the withdrawal of the duties.
Accordingly he submitted
that the initiation of the sunset reviews
and the failure of the two Ministers to cause the Second Schedule to
be amended fell
to be set aside. He based this submission first on
the proposition that both the initiation of the sunset reviews and
the failures
by the two Ministers constituted invalid administrative
action and second on the principle of legality.
[123] In argument counsel for the
authorities accepted that steps taken by these two Ministers in
relation to the contents of the
Second Schedule are legislative and
not administrative in character. The Constitutional Court described
these ministerial powers
as legislative in
Scaw
Metals
,
93
and in my view counsel’s
concession was correctly made. In any event I do not regard this as
material for present purposes
because the submission that the
Ministers had acted contrary to the principle of legality was itself
dependent upon the prior submission
that the initiation of the sunset
reviews was invalid.
Both
the 1
st
to 4
th
appellants
94
and the 5
th
and 6
th
appellants
95
disputed this submission on
various grounds. They contended that the initiation of the reviews
was not administrative action; that
it was a wasteful, but not
invalid, exercise and that, in any event, given the passage of time
it was inappropriate to grant an
order setting aside the initiation
of sunset reviews in their cases.
[124] In my view the fundamental
premise of the application that the sunset reviews were invalid was
erroneous. These reviews take
place under South African law in terms
of the anti-dumping regulations. Regulation 53.2 provides that:
‘
If
a sunset review has been initiated prior to the lapse of an
anti-dumping duty, such anti-dumping duty shall remain in force until

the sunset review has been finalised.’
However, this speaks only to the
continued application of the duty while the sunset review is being
conducted, not to the validity
of a sunset review commenced after the
lapse of an anti-dumping duty. The only regulation dealing with the
latter issue is regulation
54.5, which reads:
‘
if
the Commission decides to initiate a sunset review,
it
shall publish an initiation notice in the Government Gazette prior to
the lapse of such duties
.
Such notice shall contain the information as contemplated in section
41.’(Emphasis added.)
The initiation of the various
sunset reviews in issue in this case was only invalid if invalidity
followed from the admittedly bona
fide failure to initiate them
timeously as provided by this regulation. That depends upon a proper
construction of the regulations
in context, which includes the
provisions of the Anti-Dumping Agreement.
96
[125] Even where a statute or
regulation is couched in imperative terms prescribing that something
‘must’ or ‘shall’
be done, it does not follow
that non-compliance renders an act done without complying with the
specified condition invalid and
ineffective to give rise to legal
consequences.
97
Whether the act will be invalid
depends upon the proper interpretation of the provision in question
and in interpreting it ‘an
important consideration is whether
“greater inconveniences and impropriety would result from the
rescission of what was done,
than would follow the act itself done
contrary to the law”’.
98
[126] There is nothing in the
regulations that invalidates a sunset review that was initiated out
of time. It is true that the regulations
are couched on the
assumption that the sunset review will be initiated prior to the
lapse of the duty, but the reason for that
is to maintain the
existing duty in operation. It has nothing to do with the nature,
content or validity of the sunset review itself.
In terms of Article
11.4 of the Anti-Dumping Agreement such a review (not referred to as
a sunset review) is to be conducted in
accordance with the same
requirements in respect of evidence and procedure as an initial
investigation into the possible imposition
of anti-dumping duties.
Its purpose is no different from an initial investigation into
dumping. An initial investigation considers
whether there is evidence
of dumping and whether injury will be caused to local industry by
that dumping.
99
In a sunset review ITAC
determines by exactly the same standards whether there will be a
continuation or recurrence of dumping if
the duty is lifted and, in
the light of the injury that it anticipates will be caused thereby,
recommends either the continuation
of the anti-dumping duty at its
existing level or its adjustment.
[127] It was suggested in the
founding affidavit, and in argument, that causality formed no part of
this latter inquiry, but that
cannot be correct. It is only material
injury to local industry caused by dumping that can attract
anti-dumping duties. One cannot
investigate material injury to local
industry in the absence of a causal relationship between the
anticipated continuation or recurrence
of dumping and its impact on
local industry. The fact that the material originally considered by
ITAC as establishing such causal
link is again relied on by
‘assuming’ a causal connection does not remove this from
consideration. If there is no causality
the continuation of the
duties is impermissible. To continue to impose anti-dumping duties in
the absence of any causal connection
between the dumping and the
material injury would conflict with the basis on which the
Anti-Dumping Agreement was concluded and
its fundamental purpose. As
stated in Article VI.1 of the GATT:
‘
The
contracting parties recognize that dumping, by which products of one
country are introduced into the commerce of another country
at less
than the normal value of the products, is to be condemned if it
causes
or
threatens material injury to an established industry in the territory
of a contracting party or materially retards the establishment
of a
domestic industry.’ (Emphasis added.)
The
continuation of anti-dumping duties after the initial period for
which they were imposed, whether because of a continuation
or
recurrence of dumping, serves the same purpose and emphatically
requires causality, however that may be established and whatever

material is taken into account for that purpose.
[128]
The result of a sunset review in terms of regulation 59 is that ITAC
recommends the withdrawal, amendment or reconfirmation
of ‘the
original anti-dumping duty’. When it recommends the
reconfirmation of the original duty all that the Minister
of Trade
and Industry does is publish a notice in the Government Gazette that
this recommendation has been made and that the Minister
accepts it.
Nothing more is necessary for the duty to continue in force. No
amendment to the Second Schedule needs to be made.
If anyone is
concerned whether the duty remains in force they will have regard to
both the original proclamation by which the Minister
of Finance
incorporated the duty in the Second Schedule and to the later
Government Notice in which the Minister of Trade and Industry
states
that the recommendation of ITAC pursuant to a sunset review that the
existing duty be ‘reconfirmed’ has been
accepted.
[129]
In those circumstances it does not seem to me to matter whether the
notice of reconfirmation of a duty relates to a duty that
remains in
force because the sunset review was initiated before the expiry of
five years from its imposition, or to a duty that
has lapsed because
of a failure to initiate a sunset review timeously. The duty will
remain in force or be reconfirmed and revive
by precisely the same
process. It will continue to appear in the Second Schedule, which is
the statutory source for the imposition
and collection of such
duties. Nor does this undermine the provisions of s 48(6) of the
Act. If the duty can remain in force
by virtue of a timeous sunset
review and the acceptance of a recommendation by ITAC to that effect
by the Minister of Trade and
Industry without the intervention of
Parliament there is no reason why it should not do so by virtue of a
non-timeous review.
[130]
A consideration of whether ‘
greater
inconveniences and impropriety would result from the rescission of
what was done, than would follow the act itself done
contrary to the
law’, by
holding
the late initiation of a sunset review to be invalid points firmly in
the direction of validity and not invalidity. Otherwise
bona fide
failures to commence sunset reviews timeously will not only cause the
duties to lapse but will mean that they can only
be reinstated by way
of a fresh imposition. If the publication of the relevant notice of
initiation is one day late, because of
a strike at the Government
Printer or an official’s inadvertent miscalculation, the entire
sunset review process will be
rendered invalid. This may only be
discovered some time later after the sunset review has run its course
and the duty has been
reconfirmed.
[131]
The affidavits in this case on behalf of the authorities and the 6
th
to
21
st
appellants
demonstrate that to invalidate these anti-dumping duties would be
extremely harmful to South African industry and our
economy. It might
also give rise to claims against SARS for refunds of duties collected
bona fide and paid without objection. That
is illustrated by the
claim by the fifth and sixth appellants for a refund of duties paid
by them on the importation of garlic
during part of the relevant
period. It would also be a lengthy process to commence afresh a
consideration of whether anti-dumping
duties are necessary in respect
of these products during which incalculable harm may be caused to our
domestic industries. On the
other side of the coin there is no
prejudice. Importers brought goods into the country on the basis that
anti-dumping duties were
payable and paid such duties. Presumably it
was profitable for them to do so notwithstanding the existence of the
duties. To hold
the duties invalid at this stage ten or so years
after the problem first manifested itself and six years after the
judgment in
Progress
Office Machines
would
at most provide a windfall to importers. There is no prejudice in not
affording them that windfall.
[132]
In an endeavour to contend that the duties remained in force
notwithstanding the expiry of the five year period it was argued
on
behalf of the 6
th
to
21
st
appellants
that regulation 58.1 contemplates that duties will only lapse once
the Commission has made a recommendation to this effect
and such
recommendation has been carried into effect by the Minister of
Finance by amending the Second Schedule pursuant to a request
by the
Minister of Trade and Industry. I do not think this is correct. For
the reasons already canvassed the duties lapse after
the expiry of
the five year period from date of imposition and that is so even if
there has been no amendment to the Second Schedule.
That is the only
conclusion consistent with what this court held in
Progress
Office Machines
,
where that was in fact the situation.
[133]
Anti-dumping duties may therefore be reflected in the Second
Schedule, but be of no force or effect because the five year
period
of validity has expired. If a fresh investigation was initiated in
relation to such duties and resulted in a recommendation
by ITAC that
the duties be reinstated there would be no need to amend the Second
Schedule. All that would be required would be
the acceptance of that
recommendation by the Minister of Trade and Industry. Any other
approach would involve the Minister of Finance
engaging in a solemn,
but absurd, process of amending the Schedule by withdrawing the duty
reflected there and immediately (perhaps
in the same Government
Notice
100
)
re-imposing it. That places form over substance. There is no
effective difference between the Minister of Trade and Industry
reconfirming a duty that has lapsed and accepting a recommendation to
re-impose the same duty. Such a decision follows from the
identical
review process undertaken by ITAC and would be reflected in the
Second Schedule in exactly the same way.
[134]
It may be objected that if the original anti-dumping duties lapsed
they cannot be revived in this way and that once they have
lapsed
they can only be restored by a fresh imposition of anti-dumping
duties. I do not think this objection is sound. The ordinary
meaning
of ‘reconfirmation’, which is the word used in regulation
59 is to ‘confirm, ratify or establish anew’.
101
That
clearly encompasses the revival of a lapsed duty. Accordingly I see
nothing in the language of the regulations that precludes
the
conclusion I have expressed.
[135]
For those reasons I do not think that the initiation of the sunset
reviews in issue in this case was invalid, notwithstanding
the fact
that they were initiated after the duties in question had lapsed.
That conclusion entirely undermines the foundation of
the case as
advanced by ITAC. The case was not concerned with the consequences of
there having been, in relation to these duties,
brief interregnum
periods at different stages between 2003 and 2006, depending on the
particular duties, when they had lapsed and
ceased in law to be
payable or recoverable. It was concerned with the validity in 2010 of
the duties as embodied in the Second
Schedule at that time and in the
light of the entire history of those duties. In my opinion each of
those duties was validly in
place from the time that the Minister of
Trade and Industry accepted the recommendations of ITAC for the
reconfirmation of that
duty as a result of a sunset review. Where
that resulted in an amendment of the Second Schedule that merely
reinforces this conclusion.
[136]
Had I not reached the conclusion that the anti-dumping duties in
issue in this case were valid and in force when these proceedings

were commenced, it would have been necessary to consider whether a
challenge to them could validly have been brought without an

application to set aside not only the initiation of the sunset
reviews but also the steps taken pursuant to the recommendations
of
ITAC following upon such reviews. It is readily conceivable that a
court asked to review and set aside the initiation of the
sunset
reviews would in the exercise of its discretion have held that there
had been undue delay in bringing review proceedings.
102
The
appropriateness of setting aside these duties in the exercise of any
discretion vested in the court would have had to be considered.
103
I
mention this merely to indicate that even if my view on the validity
of these anti-dumping duties had been different that would
not
necessarily have meant that the duties would have been set aside.
[137]
It is unnecessary to address the consequences of any periods when
there were no duties in place during the subsistence of
a sunset
review, save in respect of the counter application by the fifth and
sixth appellants for repayment of the anti-dumping
duties paid by
them during the period from 16 August 2005 to 8 March 2010. The claim
was originally advanced for a longer period,
but the claim was
limited in the light of these appellants accepting that an increase
in anti-dumping duty pursuant to an interim
review and effected by an
amendment to the Second Schedule effected on 26 March 2010 was
valid.
104
Most
of the claim relates to the period after 10 March 2006 when the
Minister of Trade and Industry published a notice approving
ITAC’s
recommendation after the first sunset review that the anti-dumping
duty on garlic imports from China be maintained.
As in my opinion the
duties were lawfully in place from 10 March 2006 that portion of the
claim falls away. It leaves only a claim
for R378 700,19 in respect
of two consignments of garlic imported by the fifth appellant on 16
and 30 August 2005 respectively.
[138]
The basis for any claim to recover these amounts would be a
condictio
indebiti
.
Such a claim can be made if a payment is made in respect of a
non-existent debt but in the bona fide but mistaken belief that
the
payment is due.
105
A
claim for repayment can be defeated if the claimant was inexcusably
slack in making the payment
106
and
a defence of prescription may also be available. In order to advance
the claim it is accordingly necessary for evidence to be
led as to
the circumstances in which the payment was made and how the error
arose. As Hefer JA pointed out in
Willis
Faber
much
will depend on the relationship between the parties and their state
of knowledge in relation to the cause of the payment as
well as the
reasons for making it. However, no such evidence has been placed
before us in the affidavits on behalf of the fifth
and sixth
appellants. Instead they appear to have adopted the stance that if
the duties had lapsed they were entitled as of right
to reclaim them.
Mr du Preez who deposed to the affidavit on their behalf simply said
that the levying of duties after the expiry
of the initial period ‘is
ultra
vires
and
void and entitles Shoprite to reclaim anti-dumping duties since that
date’. Whilst it may be correct that a properly formulated

claim supported by appropriate evidence would have given rise to a
condictio
indebiti
,
the
manner in which it was formulated in this application falls short of
what was necessary. This is not mere technicality. Had
a proper claim
been formulated and supported by evidence a proper reply could have
been formulated including very possibly a defence
of prescription.
For those reasons I think that the balance of this claim has not been
properly proved in these proceedings and
it was correctly dismissed.
However, in the light of my reasons for rejecting this portion of the
claim that dismissal amounts
to no more than a judgment of absolution
from the instance.
[139]
For those reasons I concur with Nugent JA that the appeals be upheld
and that a declaratory order be issued. I would confine
that order to
one declaring that at the time these proceedings were commenced the
anti-dumping duties in issue in this case as
incorporated in the
Second Schedule to the Customs and Excise Act were valid and of full
force and effect. As to costs the 6
th
to
21
st
appellants
have been largely successful in securing the dismissal of the
application and an order that the duties they sought to
support are
valid and of full force and effect. The authorities should be ordered
to pay their costs including the costs of two
counsel, where two
counsel were employed. As regards the remaining appellants whilst
they have been successful in having the application
dismissed, they
have failed to do so for the reasons they advanced and the
declaratory order that we grant is fundamentally contrary
to their
submissions and their aim in participating in these proceedings. In
fairness I think it appropriate that they and the
authorities should
each be liable for their own costs.
__________________
M
J D WALLIS
JUDGE
OF APPEAL
APPEARANCES:
For
1
st
,
2
nd
&
3
rd
appellants
: C Puckrin SC
K
Pillay
Instructed
by:
Shepstone & Wylie, Durban
Matsepes,
Bloemfontein
For
4
th
& 5
th
appellants: J Heunis SC
M
Osborne
Instructed
by:
Werksmans Incorporated, Bellville
McIntyre
& Van der Post, Bloemfontein
For
6
th
to 26
th
appellants: A Cockrell SC
Instructed
by:
Webber Wentzel, Johannesburg
Lovius
Block, Bloemfontein
For
respondents: G J Marcus SC
K
Hofmeyr
Instructed
by:
The State Attorney, Pretoria
The
State Attorney, Bloemfontein
1
Progress
Office Machines CC v South African Revenue Service
2008 (2) SA
13
(SCA).
2
2008
(41)
De Jure
643.
3
Section
4(1)(
a
) of the Board on Tariffs and Trade Act.
4
Section
55(2) of the Customs and Excise Act.
5
Section
57A(1) of the Customs and Excise Act.
6
Section
55(2)(
b
) of the Customs and Excise Act.
7
Sections
57A(3), (4) and (5) of the Customs and Excise Act.
8
Sections
26(1)
and
26
(2) of the
International Trade Administration Act.
9
Government
Notice 3197 in GG 25684 of 14 November 2003.
10
Regulation
3.1
with an exception provided for in 3.3.
11
Regulation
28.1.
12
">
12
Regulations
34
and
35
.
13
">
13
Regulations
44
and
45.1
.
14
Anti-dumping
duties on acetampinophenol from China and the USA, acrylic blankets
from China and Turkey, carbon black from Thailand,
chicken meat
portions from the USA, door locks and door handles from China, flat
glass from China and India, float glass from
China and India, garlic
from China, lysine from the USA, bolts and nuts of iron or steel
from China, paper insulated lead covered
electrical cable from
India.
15
Notice
2445 in GG 20599 of 5 November 1999.
16
Notice
R 689 in GG 21356 of 5 July 2000.
17
Notice
R 1427 in GG 21947 of 27 December 2000
18
Notice
1737 in GG 28011 of 16 September 2005.
19
Notice
1504 in GG 29319 of 27 October 2006.
20
Notice
R 269 in GG 20997 of 24 March 2000, subsequently amended by Notices
R 455 and R 778 in GG 21152 and 21414 of 5 May 2000
and 4 August
2000 respectively.
21
GG
21650 of 20 October 2000.
22
Notice
1750 in GG 28038 of 23 September 2005.
23
Notice
378 in GG 28583 of 10 March 2006.
24
One
duty applied as well to glass from Israel but it was later withdrawn
in relation to that country and need not concern so far
as that is
concerned.
25
Notice
934 in GG 18966 of 5 June 1998.
26
Notice
565 in GG 19547 of 27 November 1998.
27
Notice
R 686 in GG 20126 of 28 May 1999.
28
Notice
2463 in GG 26937 of 5 November 2004.
29
Notice
1148 in GG 32499 of 21 August 2009.
30
Notice
310 in GG 33102 of 16 April 2010.
31
Notice
R 219 in GG 33042 of 26 March 2010.
32
Seventy
five respondents were cited, including various companies and trade
associations connected with the goods in question,
and the embassies
of the countries from which the goods emanated.
33
Association
of Meat Importers and Exporters, Mercantile Logistics (Pty) Ltd t/a
Merlog Foods, USA Poultry and Egg Export Council.
34
Freshmark
(Pty) Ltd and Shoprite Checkers (Pty) Ltd, which are associated
companies.
35
Shoprite
Checkers (Pty) Ltd.
36
PFG
Building Glass (Pty) Ltd.
37
Rainbow
Chickens Limited, Astral Operations Limited, Pioneer Voedsel (Pty)
Ltd, Daybreak Farms (Pty) Ltd, Fourie’s Poultry
Farm (Pty)
Ltd, Donkerhoek Kuikens CC, CC Chickens (Edms) Bpk, Mike’s
Chickens (Pty) Ltd, SPIF Investments (Pty) Ltd, Newcon
Investments
(Pty) Ltd, Crown Chickens (Pty) Ltd, Argyle Poultry Farms (Pty) Ltd,
KZN Farming Enterprise (Pty) Ltd, South African
Poultry Association.
38
Concomitantly,
the counterclaim by Shoprite for return of anti-dumping duties that
had been paid was dismissed.
39
Listed
in footnote 14.
40
A
declaration of invalidity is usually accompanied by an order setting
the purported law aside, which extinguishes the law altogether,
but
that is not essential.
41
Terminate
:
Oxford English Dictionary: ‘To come to an end; to end, cease,
conclude, close’. Webster’s Third International

Dictionary: ‘To come to an end in time: cease to be’ and
‘to become nil or void after reaching a term or limit’.
Expire
:
Oxford: ‘To become void through lapse of time’ and ‘To
cease, come to an end, become extinct’. Webster’s:
To
become void through the passage of time’ and ‘to become
extinct: die out’.
42
Oxford
English Dictionary: ‘The termination of a right’ and ‘To
become void’. Webster’s: ‘The
termination of a
right’.
43
Dawood
v Abdoola
1955 (2) SA 365 (N).
44
Minister
of Law and Order v Zondi
1992 (1) SA 468
(N) at 470J-471B.
45
Five
years from the date it took effect.
46
Para
12 of Counsel’s opinion attached to the founding affidavit in
that case.
47
Progress
Office Machines CC v The South African Revenue Services
, Case
No. 4373/05, Durban and Coast Local Division, delivered on 11
October 2005.
48
See,
in addition to the authorities cited by the court, EC Schlemmer ‘Die
grondwetlike hof en die ooreenkoms ter vestiging
van die
wêreldhandelsorganisasie’
2010
TSAR
749.
49
Para
6: ‘[The] passing of the International Trade Administration
Act 71 of 2002 (ITAA) creating ITAC and the promulgation
of the
Anti-Dumping Regulations made under s 59 of ITAA are indicative of
an intention to give effect to the provisions of the
treaties
binding on the Republic in international law’.
50
Para
11: ‘[The regulations] may be regarded as an indication that
the remaining-in-force of the notice imposing the anti-dumping
duty
beyond five years would be unreasonable and to that extent invalid’.
51
Section
233: ‘When interpreting any legislation, every court must
prefer any reasonable interpretation of the legislation
that is
consistent with international law over any alternative
interpretation that is inconsistent with international law’.
52
Article
7.2.
53
Article
7.2 of the Agreement allows for provisional measure to ‘take
the form of a provisional duty or, preferably, a security
[for
payment of an ante-dated duty]’.
54
Article
12.2.
55
The
various notices purporting to extend the lifetime of the
anti-dumping duties in this case combine notice of ITAC’s
final recommendation and notice of the Minister’s acceptance
of the recommendation.
56
President
of the Republic of South Africa v South African Rugby Football Union
1999 (2) SA 14
(CC) para 37.
57
I
adopt the nomenclature in the main judgment to describe the
respondents.
58
I
am unable to see on what basis the respondents can ask the court,
even by way of an exercise of the wide powers in s 172(1)
(b)
of the Constitution, to impose an anti-dumping duty or any other
tax on the citizens of the country. The taxing power is one for

Parliament to exercise not for the courts.
59
Act
59 of
1959.
60
Act
91
of 1964.
61
Act
13 of 1995.
62
The
record is silent on whether there has been such compliance but, from
the approach taken by the different counsel in the matter,
it seems
not. Such a failure was deprecated by the Constitutional Court in
Janse van Rensburg NO & another v Minister of Trade and
Industry & another NNO
2001 (1) SA 29
(CC) paras 4 and 5.
There was an appeal to this court in that case but it was by the
applicants who had obtained the order for
constitutional invalidity
against the refusal of other relief. The issue in the present case
did not arise.
63
Zantsi
v Council of State, Ciskei & others
[1995] ZACC 9
;
1995 (4) SA 615
(CC)
para 36;
Minister of Home Affairs v Liebenberg
2002 (1) SA 33
(CC) para 11.
64
Act
33 of 1957.
65
[1995] ZACC 8
;
1995
(4) SA 877
(CC) para 33.
66
The
passage is repeated in the current edition. Daniel Greenberg
Craies
on Legislation
(9
th
ed, 2008) relying on the
following statement by Brett LJ in
Attorney-General v Lamplough
(1877-78) L R 3
Ex D 214 (CA) at 219: ‘With respect to
calling it a schedule, a schedule in an Act of Parliament is a mere
question of
drafting – a mere question of words. The schedule
is as much a part of the statute, and is as much an enactment as any

other part.’ F A R Bennion
Statutory Interpretation
(3
rd
ed, 1997) 555 is to the same effect.
67
Act
58 of
1962.
68
Act
1
of
1986.
69
Act
51
of 1977.
70
1999
(2) SA 14
(CC).
71
S
v Manyonyo
[1999] 12 BCLR 1438
(CC) para 8.
72
Khosa
& others v Minister of Social Development & others: Mahlaule
& others v Minister of Social Development &
others
[2004] ZACC 11
;
2004
(6) SA 505
(CC) para 35;
Director of Public Prosecutions,
Transvaal v Minister of Justice and Constitutional Development &
others
2009 (4) SA 222
(CC) paras 60-61.
73
Such
an order is itself subject to confirmation by the Constitutional
Court.
74
Paper,
Printing, Wood & Allied Workers’ Union v Pienaar NO &
others
[1993] ZASCA 98
;
1993 (4) SA 621
(A) at 635A-C.
75
In
the present case Parliament has always so provided in relation to
every relevant amendment to the Second Schedule.
76
Act
71 of
2002.
77
Act
107
of 1986.
78
International
Trade Administration Commission v Scaw South Africa (Pty) Ltd
2012
(4) SA 618
(SCA) 626, fn 12.
79
Article
11.3 of the Anti-Dumping Agreement. This is subject to any review of
the duty, a matter to which I will return.
80
2008
(2) SA 13
(SCA) para 6.
81
Para
25 ‘In
Progress Office Machines
the Supreme Court of
Appeal correctly concluded that the Anti-Dumping Agreement is
binding on the Republic in international law,
even though it has not
been specifically enacted in municipal law.’
82
This
appears to be the view of Professor Dugard. See
Progress Office
Machines
para 11, fn 28.
83
2013
(3) SA 611
(SCA) para 14.
84
This
was not a contention advanced in
Progress Office Machines.
There
is no indication in ITAC’s heads of argument in that case that
regulation 38.1 was regarded as particularly relevant.
85
Para
17 of the judgment.
86
The
duties in issue in this case deal with products such as paper,
glass, blankets, screws and bolts, garlic, chicken pieces,
carbon
black, pharmaceutical products and chemicals all of which would be
sold or incorporated in manufactured products.
87
Article
11.1.
88
Article
11.3.
89
Article
11.4.
90
In
relation to acrylic blankets from China and Turkey and float and
flat glass from China and India.
91
Garlic
from China, bolts and nuts of iron and steel from China and Chinese
Taipei and paper insulated lead covered electric cable
from India.
92
In
relation to bolts and nuts of iron and steel from Chinese Taipei.
93
Para
99.
94
Those
seeking to import frozen chicken pieces from the United States of
America free of anti-dumping duties.
95
Those
seeking to import garlic from China free of anti-dumping duties.
96
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012 (4) SA
593
(SCA) paras 18 and 19.
97
Standard
Bank v Estate Van Rhyn
1925 AD 266
at 274;
Swart v Smuts
1971 (1) SA 819
(A) at 829C – 830C;
Oilwell (Pty) Ltd v
Protec International Ltd & others
2011 (4) SA 394
(SCA) para
19.
98
Oilwell
supra
para 19 quoting Solomon JA in
Standard Bank v Estate
Van Rhyn
274.
99
Article
VI of the General Agreement on Tariffs and Trade 1994 and articles
5.2, 5.7, 5.8, 7.1(ii) of the Anti-Dumping Agreement
read with paras
12, 13, 14 and 16 of the anti-dumping regulations.
100
c/f
Avenue Delicatessen & others v Natal Technikon
1986 (1)
SA 853
(A) 871C-F.
101
Shorter
Oxford English Dictionary (6
th
ed, 2007) Vol 2, p2490,
s.v. ‘reconfirm’. The Oxford English Dictionary (2
nd
ed) Vol XIII, p 355 gives the same definition.
102
Oudekraal
Estates (Pty) Ltd v City of Cape Town & others
2010 (1) SA
333
(SCA) paras 50, 51 and 57.
103
Oudekraal
Estates (Pty) Ltd v City of Cape Town & others
2004 (6) SA
222
(SCA) para 36.
104
The
concession is inconsistent with the general argument on behalf of
these appellants as an interim review can only take place
in
relation to existing duties.
105
These
principles emerge from the leading case of
Willis Faber Enthoven
(Pty) Ltd v Receiver of Revenue & another
[1991] ZASCA 163
;
1992 (4) SA 202
(A).
106
Rahim
v Minister of Justice
1964 (4) SA 630
(A) at 635E-F.