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[2010] ZAGPPHC 255
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C Drahtseilwerk Saar GMBH v International Trade Administration Commission and Others (53925/09) [2010] ZAGPPHC 255 (26 November 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
Case
No: 53925/09
DATE:26/11/2010
In
the matter between:
C
DRAHTSEILWERK SAAR
GMBH
................................................................
Applicant
and
INTERNATIONAL
TRADE ADMINISTRATION
COMMISSION
...................................................................................................
1st
Respondent
THE
MINISTER OF TRADE AND
INDUSTRY
................................................
2nd
Respondent
SCAW
SOUTH AFRICA (PTY)
LTD
.................................................................
3rd
Respondent
BRIDON
INTERNATIONAL
GMBH
...................................................................
4th
Respondent
Ruling
on point in limine
MNGQIBISA-THUSI
J
[1]
The applicant has launched proceedings in this court in terms of
section 46(1) of the International Trade Administration Act
71 of
2002 ("the Act"), the
Promotion of Administrative Justice
Act 3 of 2000
and Rule 53 of the Uniform Rules of Court in order to
have certain decisions made by the first and second respondents
reviewed
and set aside (the main application).
[2]
The first respondent is a statutory body responsible for
administering the country's international trade. One of its duties
is
to report to and make recommendations to the second respondent, after
conducting an investigation, with regard to the imposition
or lifting
of antidumping duties on specified goods introduced into the
country. If the second respondent agrees with the
recommendation made
by the first respondent, it may ask the Minister of Finance to impose
or uplift such duties.
[3]
The applicant and the third and fourth respondents are trade
competitors involved in the manufacture of steel products.
[4]
In 2002 the first respondent had imposed anti-dumping duties on the
applicant. The duties imposed were set to lapse in 2007.
In terms of
regulation 53.1 to the Act, anti-dumping duties are normally imposed
for a period of five years. Prior to the lapsing
of the anti-dumping
duties imposed on the applicant, the first respondent, at the request
of the third respondent, conducted what
is known as a sunset review.
A sunset review is an investigation the first respondent would
conduct to determine whether it should
extend the period of duties
already imposed which are about to expire. This review entailed an
investigation of the applicant,
the third and fourth respondent.
[5]
The process of the investigation conducted by the first respondent
entails the first respondent gathering information from a
party whom
it chooses to seek information from. During the investigation the
third and fourth respondents had provided the first
respondent with
information deemed to be confidential nature. Furthermore, the fourth
respondent has not made available an abstract
of the confidential
information in a non-confidential summary format.
[6]
On conclusion of the investigation the first respondent recommended
to the second respondent the continued and increased duties
to be
imposed on the applicant, which recommendation the second respondent
accepted. This is the determination the applicant is
seeking to be
reviewed and set aside in the main application.
[7]
In terms of Rule 53 the first respondent is obliged to provide the
applicant with the record of the proceedings leading to the
decision
taken and which it is sought to be reviewed. The first respondent was
supposed to have submitted to the applicant copies
of the record by
28 September 2009 but has not done so. It appears that a dispute has
arisen as to whether the first respondent
should provide the
applicant with all the documents constituting the record. The record
would then include no-confidential information
and information which
the first respondent has determined to be confidential in its
investigation.
[8]
Pursuant to the refusal by the first respondent to provide the
applicant with the record as it is, the applicant launched the
current interlocutory proceedings in which it is seeking an order
that will regulate the use in the main application of confidential
information contained in the record sought.
[9]
In its answering affidavit the first respondent the reason given for
not yet having provided the applicant with a copy of the
record of
the proceedings is that because the record contains confidential
information which had been provided by other entities
covered by the
investigation, some of which are the applicant's competitors, it
could not include such information without the
prior consent of the
affected parties, alternatively, without an order of court directing
it to give access of the confidential
information to the applicant.
The fourth respondent has refused to give such consent.
[10]
Further, it appears from the first respondent's affidavit that it has
attempted to mediate between the applicant and the third
and fourth
respondents. As a result of its mediation efforts, the applicant and
the third respondent have reached an agreement
regulating the manner
in which the first respondent will allow the applicant access to the
third respondent's confidential information.
[11]
From the papers and from the submissions made by counsel for the
first respondent, Mr Puckrin, the first respondent is not
opposed to
the applicant's interlocutory application save for the manner
proposed by the applicant for access to be given, as contained
in the
applicant's draft order to the interlocutory application. It is the
first respondent's contention that the terms on which
access will be
granted to the applicant as contained in the draft order are too
wide.
[12]
Before the start of the hearing on the interlocutory application, Mr
Gauntlett, counsel for the fourth respondent raised a
point in
limine. It was agreed as between the parties that this court should
first deal with the point in limine and that should
I uphold the
point in limine, this would be the end of the applicant's
interlocutory application. However, should I dismiss the
point
raised, and then the hearing on the application would proceed.
[13]
The fourth respondent submits that the applicant's founding affidavit
makes no reference whatsoever to the provision in the
Act which
provides for the remedy sought. It is further submitted that the
remedy sought by the applicant is misconceived in that
it is not
provided for in the Act. Rather that the applicant should have sought
relief in terms of section 35 (2) of the Act. Mr
Gauntlett argued
that this Court does not have the power to grant the relief sought as
in terms of section 35(3) of the Act, before
the Court may make a
determination regarding the handling of confidential material the
Court must itself determine whether and
to what extent the material
is confidential and if it grants access, the conditions to that might
be attached to such access. He
further argued that since the court
did not have the record of the proceedings sought to be expunged, it
would not be in a position
to make a determination as to what is
confidential on the one hand and non-confidential material on the
other. Mr Gauntlett referred
the Court to the Supreme Court of Appeal
decision in Chairman, Board of Tariffs and Trade and others v Brenco
Inc and others
2001 (4) SA 511
(SCA) (Brenco) which he argues sets
out a particular methodology to be adopted in treating the issue of
access to confidential
information submitted to the first respondent
during its investigations.
[14]
In response the applicant submits that even if there was no specific
reference to section 35(2) of the Act in its founding
papers, it is
quite clear from the papers filed in this application that the
applicant is seeking relief in terms of section 35(2)
of the Act.
Further it was pointed out that looking at the heads of argument of
all the parties involved in this matter it is clear
that all the
parties are aware that the relief the applicant is seeking is based
on the provisions of sections 35(2} and (3) of
the Act.
[15]
The applicant argues that in view of the fact that mediation by the
first respondent has failed in its mediation attempts,
it is seeking
is an order in terms of section 35 (2) for an appropriate order
concerning access to the information in the record.
It further argued
that it would be up to the first respondent to determine what
relevant information on which the first respondent
based its decision
to impose anti-dumping duties should be provided to the applicant in
order for it to conduct its application
for the review of the
decision sought to be expunged, ft was submitted that the applicant
accepts that the record contains information
which the first
respondent has determined to be confidential and that the applicant
was not asking this court to make a determination
of what is
confidential in the record. The applicant also submitted that there
is no absolute bar in the Act to access to confidential
information.
Further that what appropriate information should be supplied will be
determined by Rule 53.
[16]
With regard to the reliance by the fourth respondent on the Brenco
decision, I am of the view that the applicant has correctly
pointed
out that this case is distinguishable from Brenco in that that case
the court dealt with an application for access to information
supplied to the BTT by trade competitors at the stage at which the
BTT was still investigating complaints made and not at the
deliberative stage where the applicants would have been entitled to
the information supplied in order to know the case they were
facing.
[17]
In terms of Rule 53(l)(b) a party who applies for the review and
setting aside of a decision is entitled to be provided with
the
record of the proceedings which include "the documents,
evidence, arguments and other information before the tribunal
relating to the matter under review at the time of the making of the
decision in question. Johannesburg City Council v The Administrator,
Transvaal and another (1)
1970 (2) SA 89
(T) at 91G-H. The purpose
for providing the record is to facilitate applications for review and
to ensure their speedy and orderly
presentation.
[18]
I am of the view that the point in limine raised on behalf of the
fourth respondent has no basis. Having read the papers filed
of
record and having heard the submissions made by counsel for the
applicant and the first and fourth respondents, I am further
of the
view that, as correctly pointed out by Mr Seale, counsel for the
applicant, that the applicant accepts as being common cause
the fact
that the information the applicant is seeking access to is
confidential. The relief sought by the applicant is not a fresh
determination of confidentiality as contended by the fourth
respondent. What the applicant is seeking is an appropriate order
which will regulate access to what has already been determined by the
first respondent as being by its nature confidential information.
[19]
The fourth respondent's argument that the relief sought by the
applicant is not provided for in the Act is misplaced. It is
clear
from the papers before me that the applicant is seeking relief in
particular in terms of section 35(2)(b)(i) of the Act which
reads as
follows:
"
(2) A person who seeks access to information which the Commission has
determined is, by nature, confidential, or should be
recognised as
otherwise confidential may-
a)
first, request that the Commission mediate between the owner of the
information
and that person; and
(b)
failing mediation in terms of paragraph (a), apply to a High Court
for-
(i) An
order setting aside the determination of the Commission or
(ii) Any
appropriate order concerning access to that information."
The
fact that the section was not expressly mentioned in its papers, does
not detract from the fact that the facts alleged pertaining
to
section 35(2). Fundstrust (Pty) Ltd (In Liquidation) v Van Deventer
1997 (1) SA 710
(AD).
[20]
Furthermore, as correctly contended by the applicant, the Act does
not provide for an absolute prohibition to access to information
which has been declared to be confidential by the first respondent.
Section 35(2) empowers this Court to grant an appropriate order
with
regard to accessing such information. Further, in terms of Rule 53
if the record is not
produced,
the applicant is entitled as an aggrieved party to apply to Court to
compel compliance with a request for the production
of the record of
the proceedings leading to the decision sought to be expunged.
[21]
Accordingly the point in limine raised by the fourth respondent is
dismissed. Costs will be costs in the cause.
MNGQIBISA-THUSI
J