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[2020] ZAGPPHC 141
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Casar Drahtseilwerk Saar GMBH v International Trade Administration Commission and Others (66248/2014) [2020] ZAGPPHC 141 (14 February 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
REPUBLIC
OF SOUTH AFRICA
Case
Number: 66248/2014
14/2/2020
In
the matter between:
CASAR
DRAHTSEILWERK SAAR GMBH
Applicant
And
INTERNATIONAL
TRADE ADMINISTRATION COMMISSION
First
Respondent
MINISTER
OF TRADE AND INDUSTRY
Second
Respondent
SCAW
SOUTH AFRICA (PTY) LTD
Third
Respondent
JUDGMENT
JANSE
VAN NIEUWENHUIZEN J
[1]
The applicant seeks
an order to review the following decisions:
1.1
the first respondent’s final determination and recommendation
that the applicant’s Interim
Review in respect of anti-dumping
duties on wire ropes and cables exported by the applicant to South
Africa, should be terminated;
1.2
the decision by the second respondent to terminate the Interim
Review;
1.3
the first respondent’s final determination and recommendation,
pursuant to a Sunset Review, to
maintain the anti-dumping duties
imposed on the applicant in respect of the rope wire and cables
exported by the applicant;
1.4
the second respondent’s decision to maintain the anti-dumping
duties.
[2]
I
pause to mention that the “
review
”
in respect of the Sunset Review was introduced belatedly in an
amended notice of motion accompanied by a supplementary affidavit.
Casar did not rely on any grounds of review in respect of its prayer
for the review of the Sunset Review. Faced with this difficulty,
Mr
Seale SC, counsel on behalf of Casar, stated that the setting aside
of the decisions in respect of the Sunset Review should
rather form
part of the remedies prayed for by Casar in the event that the review
in respect of the Interim Review succeeds.
[3]
I agree and will
deal with the issue in respect of the Sunset Review accordingly. Any
wasted costs occasioned by the belated concession
will be dealt with
at the appropriate time.
[4]
The
legislation and international trade agreements pertaining to an
Interim Review that will be referred to
infra
are:
4.1
the International Trade Administration Act, 71 of 2002 (“the
ITA Act”);
4.2
the Anti-Dumping Regulations published as GN 3197 in
Government
Gazette
25684 on 14 November 2003. Any reference to a regulation
herein, refers to the aforesaid Regulations;
4.3
the Board on Tariffs and Trade Act, 107 of 1986 (“the BTT
Act”);
4.4
the Customs and Excise Act, 91 of 1964 (“the Customs Act”);
4.5
the General Agreement on Tariffs and Trade, 1994 (“GATT”);
AND
4.6
the World Trade Organisation Agreement on the Implementation of
Article VI of the General Agreement
on Tariffs and Trade, 1994 (“the
Anti-Dumping Agreement”).
PARTIES
[5]
The
applicant is Casar Drahtseilwerk Saar GmbH (“Casar”), a
German company that exports wire ropes and cables to South
Africa.
[6]
The
first respondent is the International Trade Administration Commission
(“ITAC”), a statutory body established in
terms of
section 7 of the ITA Act.
[7]
The
second respondent is the Minister of Trade and Industry (“the
Minister”). The Minister, acted in terms of section 4(2)
of the BTT Act, in reaching the decisions that forms the subject
matter of the review application.
[8]
The
third respondent is Scaw South Africa (Pty) Ltd, a South African
company and competitor of the applicant.
BACKGROUND
[9]
In
August 2002 an anti-dumping duty of 12,9% was imposed in respect of
ropes and cables manufactured and exported by the applicant
to South
Africa. In terms of regulation 38 and 53 anti-dumping duties will
remain in place for a period not exceeding five years
unless reviewed
prior to the lapse of the five-year period.
[10]
During
August 2007, prior to the expiry of the five-year period and pursuant
to an application by Scaw ITAC initiated a Sunset Review
as
contemplated in Article 11.3 of the Anti-Dumping Agreement.
[11]
The
review was finalised in 2009 and resulted in an increase of the
prevailing anti-dumping duties from 12,9% to 93%.
[12]
It
is against the aforesaid background that Casar on 10 January 2013,
lodged, in terms of the provisions of Regulation 45, an application
for the Interim Review of the anti-dumping duties imposed on it
during 2009.
[13]
Regulation
45.1 provides that ITAC may only initiate an Interim Review “
if
the party requesting such interim review can prove significantly
changed circumstances”.
In
respect of changed circumstances, Casar relied on a change of
ownership that occurred during August 2007 that resulted in a change
in its pricing policy which is strictly enforced.
[14]
On
19 April 2013 ITAC published a notice of initiation of the Interim
Review as per Casar’s request, in the
Government
Gazette
. The
basis for the initiation of an Interim Review was set out in the
notice as follows:
“
The
Applicant submitted information for the Commission’s
consideration to demonstrate that it no longer dumps the subject
product in the South African Customs Union (SACU); and that the
dumping margin has decreased significantly and is in fact
significantly
negative.
The normal
value was determined based on the domestic sales by the Applicant in
Germany. The Applicant claimed adjustments on the
normal value for
cost of payment terms, delivery and packaging costs to arrive at the
net ex-factory weighted average normal value.
The export price was
determined based on the export sales by the Applicant to the SACU
market. The Applicant adjusted the export
price to arrive at the net
ex-factory weighted average export price. The dumping margin for the
Applicant was determined to be
negative.
On this
basis, the Commission found that there was prima facie proof that
dumping no longer takes place.”
[15]
The
notice invited submissions by interested parties within a stipulated
time-line.
[16]
Subsequent
to the publication of the notice, ITAC conducted a verification
process at the offices of Casar and provided its verification
report
to Casar on 4 July 2013. On 5 August 2013, Scaw through its attorneys
provided a response to the verification report to
ITAC, which
response in essence denies that Casar presented sufficient evidence
of changed circumstances that would cause the anti-dumping
duties to
be lifted. On 6 August 2013 Casar submitted an extensive response to
the allegations contained in Scaw’s letter
to ITAC.
[17]
The
responses were considered by ITAC and on 14 October 2013 ITAC issued
an Essential Facts letter. Two main issues were addressed
in the
letter, to wit changed circumstances and dumping. In respect of
changed circumstances ITAC stated the following:
“
Although
you have submitted information to substantiate your claim of change
circumstances, the Commission is of the opinion that
the arguments
submitted are not convincing. There is no guarantee that the pricing
policy will not be changed again and therefore
that dumping will not
recur in future.”
(sic)
[18]
In respect of
dumping, the following is stated:
“
The
Commission is of the opinion that although you provided information
to indicate that Casar did not dump the subject product
into the SACU
during the period of investigation, the volumes exported on which
this determination is based, were very low in relation
to your
domestic sales. The low volumes exported make it difficult to
determine whether or not dumping will recur, once the current
anti-dumping duties are withdrawn.”
[19]
ITAC
invited all interested parties to comment on the Essential Facts
letter within 14 days and indicated that a final determination
and
recommendation to the Minister will only be provided once all the
submitted comments have been considered.
[20]
Casar
submitted an extensive written response to the Essential Facts letter
and indicated that it is willing to provide a price
undertaking to
address the concerns of ITAC. ITAC did not respond to the offer.
[21]
On
31 January 2014 ITAC published a Notice of Termination of the Interim
Review investigation in the
Government
Gazette
. In
terms of the Notice, the Commission stated that it has made a final
determination to recommend to the Minister that the investigation
be
terminated. The Minister accepted the recommendation on the same day.
[22]
On
the same date ITAC, following an application by Scaw, initiated a new
Sunset Review. Casar alleges that it attempted to participate
in the
review, but that ITAC refused the information supplied by it.
POINTS
IN LIMINE
Unreasonable
delay
[23]
Casar
submits that ITAC’s recommendation was
investigative
and not
administrative in nature. Consequently, ITAC’s decision should
be reviewed under the principle of legality and the
decision of the
Minister, being administrative action, under the Promotion of
Administrative Justice Act, 3 of 2000 (“PAJA”).
The
distinction is important in as far as a review under the principle of
legality does not have a defined time period to institute
proceedings
whereas PAJA has.
[24]
Mr Puckrin SC,
counsel for ITAC, pointed out that the Supreme Court of Appeal has
authoritatively established in
ITAC
v South African Tyre Manufacturers
2001
JDR 1161 SCA at paragraph 40, that ITAC’s decisions constitute
administrative action that should be reviewed under PAJA.
[25]
Casar did not pursue
the point any further and both the decisions of ITAC and the Minister
falls to be reviewed under PAJA.
[26]
In terms of section
7(1) of PAJA, Casar had to institute the present application within
180 days after the date it became aware
of ITAC’s
recommendation and the Minister’s decision to terminate the
Interim Review. Should a party fail to institute
the proceedings with
180 days as envisaged in section 7(1), the court may, in terms of
section 9 (1) extent the period of 180 days.
[27]
As
set out
supra
ITAC’s
recommendation to terminate the Interim Review was accepted by the
Minster and published on 31 January 2014.
[28]
In the result, the
present proceedings should have been instituted on or before 30 July
2014.
[29]
Casar instituted the
present proceedings on 4 September 2014, some 45 days out of time.
[30]
Casar’s
explanation for the delay can succinctly be summarised as follows:
30.1 In
correspondence directed to ITAC and the Minster on 23 May 2014 Casar
enquired whether Report No. 455 fully sets
out the reasons for ITAC’s
recommendation and the Minister’s decision to accept the
recommendation;
30.2 On 27 May
2014 ITAC confirmed that the Report contained the full reasons;
30.3 On 25 June
2014 Casar notified both ITAC and the Minster, in terms of Regulation
64.2, of its intention to institute
the present application;
30.4 On 29 July
2014, a day prior to the expiry of the 180-day period, Casar
addressed letters to both ITAC and the
Minster seeking an extension
of the 180-day period. The reason for the extension appears in
paragraph 3 of the letter, to wit:
“
Casar
has not yet instituted proceedings. This is due to the fact that
Casar was trying its utmost to avoid unnecessary judicial
review
proceedings. As you are aware a Sunset Review was initiated on the
same date though Notice No 44 of 2014 (“the Sunset
Review”)
as the termination of the Interim Review. As Casar had previously
submitted information that was accepted and verified
by the
Commission and which proved that Casar was in fact not dumping and
not causing injury, Casar hoped that it could avoid any
judicial
review proceedings by participating in the Sunset Review.”
30.5 Casar
further stated that it is unsure whether its submissions will be
accepted by ITAC and requested a 20-day
extension of the prescribed
period from the date that Casar receives the Commission’s final
determination in the Sunset Review
to institute the present
proceedings;
30.6 On 5
August 2014 ITAC granted the requested extension. The Minster did not
respond to the request;
30.7 The Sunset
Review was concluded on 8 August 2014 and the extension granted by
ITAC lapsed on 28 August 2014;
30.8 Casar
explained that, once it became aware of the final decision in the
Sunset Review, it immediately instructed
its attorney to proceed with
the drafting of the present application.
[31]
In
respect of ITAC, the application was, therefore a mere seven days out
of time.
[32]
It
is unclear why the Minster, having acknowledged receipt of Casar’s
letter, did not respond to Casar’s reasonable
request for an
extension of time.
[33]
The
position in respect of Scaw is somewhat different. Casar did not
request Scaw for an extension of the 180-day period. Although
Casar
stated that Scaw is merely cited in these proceedings insofar as it
may have an interest in the proceedings and that no relief
or costs
is claimed against Scaw, Scaw maintains that it is a “
party”
as contemplated
in section 9(1) of PAJA. As such, Casar should have requested
Scaw for an extension of the 180-day period.
Having failed to do so
the application was instituted 45 days out of time.
[34]
Although
Casar dealt with the aforesaid chronology of events in the body of
its founding affidavit and submitted under the heading
“
PAJA
TIME PERIOD”
that
an extension of the time period provided for in PAJA should be
granted, it did not include a prayer seeking condonation in
the
original Notice of Motion. On 15 December 2015 Casar filed an amended
Notice of Motion which included a prayer for condonation.
In the
supplementary affidavit that accompanied the amended Notice of Motion
Casar explained the delay between 28 August 2014 to
4 September 2014
as set out
supra
.
[35]
The
respondents contend that both the delay in instituting the
proceedings and the delay in formally requesting condonation is
inordinate and condonation should be refused. According to the
respondents, the period for the delay in requesting condonation runs
until 15 December 2015.
[36]
Casar
clearly submitted in its founding affidavit that condonation for the
late institution of the proceedings should be granted.
To penalise
Casar due to the oversight of including a prayer dealing with
condonation in its original Notice of Motion would be
to prefer form
over substance. In the premises, I accept that Casar’s request
for condonation was made on 4 September 2014.
[37]
The
principles pertaining to a request for an extension of time is trite
and was restated in
Camps
Bay Rate Payers’ & Residents’ Association v Harrison
2010 JDR 0099
SCA at paragraph 54, as follows:
“
A
full and reasonable explanation for the delay which covers the entire
duration thereof and relevant factors include the nature
of the
relief sought, the extent and cause of the delay, its effect on the
administration of justice and other litigants, the importance
of the
issue to be raised in the intended proceedings and the prospects of
success.”
[38]
I
am satisfied that Casar has provided a full and reasonable
explanation for the delay in the institution of the application.
Although
the Minster and Scaw did not formally agree to an extension,
I am of the view that the period of 45 days has been explained and
is
not unreasonable.
[39]
The
main contention of the respondents in respect of the delay, is the
prejudice caused by the delay. Casar indicated all along
to both ITAC
and the Minster that it intended to launch the present application.
ITAC did not state to what extent it was prejudiced
by the seven-day
delay and it is not clear from the Minister’s affidavit how the
45-day delay has prejudiced him.
[40]
Scaw
submits that it has adjusted its affairs according to both the
Interim Review and the Sunset Review and is as a result prejudiced
by
the delay in the finalisation of the matter. The test at this stage
is whether the delay in instituting the proceedings was
unreasonable,
not whether the finalisation of the matter has been inordinately
delayed. It is not clear exactly how Scaw’s
business interests
have been negatively affected by the 45-day delay.
[41]
These
proceedings are no doubt of utmost importance to Casar and Casar will
be seriously prejudiced if condonation is not granted.
In my view
Casar’s conduct was, in the circumstances and at least insofar
as ITAC and the Minster is concerned prudent.
[42]
In the premises, I
am of the view that the proper administration of justice will not be
negatively affected should condonation be
granted and such is
granted.
New reasons raised in
the answering affidavit impermissible
[43]
Casar’s first
complaint deals with a so-called “
price
undertaking
”
it provided to ITAC. In response to ITAC’s Essential Facts
letter, Casar addressed a letter to ITAC on 25 October
2013. In
paragraph 7 of the letter Casar stated the following:
“
If
it would assist the Commission, Casar
is
willing to provide
the Commission with a price undertaking based on its changed pricing
policy as well as the negative dumping margin calculated.
Although we
accept that this does not present a guarantee, which we submit cannot
be insisted upon, this will allow the Commission
to monitor that
Casar’s new pricing policy is in fact maintained.”
(own
emphasis)
[44]
ITAC did not respond
to the contents of paragraph 7 and did not deal with “
the
price undertaking
”
in its final recommendation report.
[45]
Casar
alleged that ITAC’s failure to deal with the “
price
undertaking
”
constitutes an effective refusal of the undertaking. ITAC did not
provide any reasons for the refusal of the offer of a
“
price
undertaking
”
and as a result ITAC’s conduct is reviewable.
[46]
In
its answering affidavit ITAC responded to the allegations pertaining
to a “
price
undertaking
”
and pointed out that regulation 39 that deals with price undertakings
were not complied with. The introductory portion of
Regulation 39.1
reads as follows:
“
39.1
Proceedings may be suspended or terminated following the
receipt
of a satisfactory price undertaking
…
.
”
(own emphasis)
[47]
A price undertaking
as envisaged in regulation 39 was never received from Casar and
consequently there was nothing for ITAC to consider.
[48]
Casar deemed ITAC ‘s
aforesaid exposé of the legal position as constituting new
reasons for ITAC’s effective
refusal of the “
price
undertaking
”
and contended that the allegations should be struck.
[49]
Casar’s
contention is misconceived. It is clear that ITAC merely explained
the legislative imperatives pertaining to a price
undertaking and did
not provide “new” reasons.
[50]
Secondly, Casar
submitted that ITAC’s reliance in its answering affidavit on
the unverified information supplied by Casar
in 2006 in support of
the recommendation by ITAC and the acceptance thereof by the Minister
is impermissible due to the fact that
these facts were not alluded to
during the Interim Review.
[51]
In support of its
contention Casar relies on the dictum in
National
Lotteries Board v South African Education and Environmental Project
2012 (4) SA 504
SCA at paragraph 27:
“
The
duty to give reasons for an administrative decision is a central
element of the constitutional duty to act fairly. And the failure
to
give reasons, which includes proper or adequate reasons, should
ordinarily render the disputed decision reviewable ….
For in
truth the later reasons are not the true reasons for the decision,
but rather ab ex post facto rationalization of a bad
decision.”
[52]
The
dictum pertains to the “
reasons
”
provided for the decision and not the process that was followed in
arriving at the decision. In its Final Report ITAC under
the heading
Other factors
considered
did
refer to the prices and export volumes in 2006 and 2007, albeit not
in the same detail than it did in its answering affidavit.
[53]
In the result, ITAC
did not rely on “
new”
or “
further
reasons”
but
merely provided more detail in respect of the reasons stated in the
Final Report.
[54]
In the premises, the
point
in limine
is dismissed.
Non-joinder of the
Minister of Finance
[55]
Scaw raised the
non-joinder of the Minister of Finance subsequent to the filing of
the amended Notice of Motion. According to Scaw,
the Minister of
Finance has a direct and substantial interest in the matter due to
the relief claimed in prayers 8 and 9.3 of the
amended Notice of
Motion in terms of which Casar seeks an order directing the Minister
to request the Minister of Finance to amend
the relevant schedule so
as to provide for the exemption of Casar from the prevailing
anti-dumping duties.
[56]
The
relief sought is premised on section 4(2)(b) of the BBT Act which
reads as follows:
“
4(2)
Upon receipt of the report and recommendations referred to in
subsection (1)(b), the Minister may –
(a)
…
.
(b)
If
he accepts the report and recommendations concerned, request the
Minister of Finance to amend the relevant schedule to the Customs
and
Excise Act, 1964 (Act 91 of 1964).”
[57]
The
schedule in issue is referred to in section 55 of the Customs Act as
Schedule 2 and provides for the prescribed duties payable
on goods
specified in it which are subject to anti-dumping and other duties.
[58]
Casar
submitted that no relief is claimed against the Minister of Finance
and as a result the Minister of Finance has no direct
and substantial
interest in the relief claimed herein.
[59]
The
test applicable to non-joinder was restated in
ABSA
Bank Ltd v Naude NO and Others
2016
SA (6) SCA 541 at 542 I to 543 B, namely:
“
[10]
The test whether there has been non-joinder is whether a party has a
direct and substantial interest in the subject-matter
of the
litigation which may prejudice the party that has not been joined. In
Gordon v Department of Health, KwaZulu-Natal it was
held that if an
order or judgment cannot be sustained without necessarily prejudicing
the rights of third parties that had not
been joined, then those
third parties have a legal interest in the matter and must be
joined.”
[60]
Applying
the aforesaid test to the relief claimed herein, I am of the view
that the relief claimed in prayers 8 and 9.3 does not
prejudice the
Minister of Finance. The relief is aimed at directing the Minister to
exercise his powers contained in section 4(2)(b)
of the BBT Act
and does not concern the Minister of Finance.
[61]
In the premises, the
point of non-joinder is dismissed.
GROUNDS
OF REVIEW
[62]
Casar relied on the
following grounds of review:
[62.1]
Misconception of the correct legal test;
[62.2]
ITAC applied the wrong standard of proof;
[62.3]
ITAC’s methodology not rational;
[62.4]
Unauthorised and/or ulterior motive;
[62.5]
Failure to consider Casar’s offer of a price undertaking;
[62.6]
Effective refusal of price undertaking offer was arbitrary;
[62.7]
Recommendation and decision unreasonable
[62.8]
Irrational reliance on export volume as a predicator of probable
dumping; and
[62.9]
Procedural unfairness and/or procedural irrationality.
Misconception
of correct legal test
[63]
Casar firstly
submitted that ITAC and in consequence the Minister committed a
material error in law by applying the incorrect test
to an Interim
review in terms of Article 11.2.
[64]
Article 11.2 reads
as follows:
“
11.2
The authorities shall review the need for the continued imposition of
the duty, where warranted, ...
provided that a reasonable period of
time has elapsed since the imposition of the definitive anti-dumping
duty, upon request by
an interested party which submits positive
information substantiating the need for a review. Interested parties
shall have the
right to request the authorities to examine whether
the continued imposition of the duty is necessary to offset dumping,
whether
the injury would be likely to continue or recur if the duty
were removed or varied, or both. 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.
[65]
According
to Casar, the first ground mentioned in Article 11.2 only entails an
enquiry into “
whether
the imposition of the duties is necessary to offset dumping”.
This is a
factual enquiry into whether dumping is occurring and should it be
established that dumping is not occurring, the duties
should be
terminated.
[66]
ITAC
did find that Casar, on the facts before it, was not dumping during
the period of investigation and consequently, Casar has
satisfied the
requirements of ground 1.
[67]
The
respondents did not agree. Mr Puckrin SC pointed out that the first
ground mentioned in Article 11.2 is “
whether
the
continued
imposition
of
the duty is necessary to offset dumping”
.
[68]
In
considering the meaning of “
continued
imposition
”,
Mr Puckrin referred to
United
States – Anti-dumping Duty on Dynamic Random Access Memory
Semiconductors (DRAMS) of One Megabite or Above from Korea
(WT/DS99/R
-29 January 1999), in which the WTO Panel dealt with meaning of
“
continued
imposition
”
at paragraph 6.27:
“…
..
[The] second sentence of Article 11.2 requires an investigating
authority to examine whether the ‘continued imposition’
of the duty is necessary to offset dumping. The word ‘continued’
covers a temporal relationship between past and future.
In our view,
the word ‘continued’ would be redundant if the
investigating authority were restricted to considering
only whether
the duty was necessary to offset present dumping. Thus, the inclusion
of the word ‘continued’ signifies
that the investigating
authority is entitled to examine where the imposition of the duty may
be applied henceforth to offset dumping.”
[69]
More
pertinently in
MTZ
Polyfilms Ltd v Council of European Union
[2009]
ECR, Case T-143/06 917 November 2009), the European Court of Justice
held at paragraph 16, that an investigating authority
is entitled, in
considering an application in terms of Article 11.2, to examine
whether the changed circumstances were lasting.
[70]
Casar’s
incorrect interpretation of ground 1, emanates from its failure to
sufficiently or at all, consider the meaning of
“
continued
”
as explained in the authorities
supra
.
[71]
In
the result, ITAC and the Minister did not commit an error of law in
this respect.
[72]
In
respect of the second ground mentioned in Article 11.2, Casar
submitted that ITAC erred in not examining the question whether
the
injury would be likely to continue or recur should Casar be exempted
from anti-dumping duties.
[73]
Prior
to considering the submissions by the parties, it is apposite to
consider the grounds mentioned in Article 11.2, on which
interested
parties may request an authority to review anti-dumping duties
imposed on it, to wit:
73.1 whether
the continued imposition of the duty is necessary to offset dumping
(“dumping”);
73.2 whether
the injury would be likely to continue or recur if the duty were
removed or varied (“injury”);
or
73.3 both.
[74]
Ground
1 and 2 constitutes separate and distinct characteristics and should
be considered independently on the evidence presented
by an
applicant. Should an applicant rely only one of the two grounds, the
investigating authority may “
examine
one of the three matters specified in the second sentence of Article
11.2”.
[See:
United
States – Anti-dumping Measures on Certain Shrimp from Vietnam
(WT/DS429/R-17
November 2014) at paragraph 7.368]
[75]
The
respondents deny that Casar relied on the second ground and contends
that the Interim Review was essentially a dumping as opposed
to a
dumping and injury review. In its application for the Interim Review,
Casar expressly relied on both grounds, to wit:
“
1.
CASAR submits that there are significantly changed circumstances
which justify the initiation of
an interim review. These
significantly changed circumstances are that:
(a)
CASAR
no longer dumps the subject product in the South African Customs
Union;
(b)
The
dumping margin has decreased significantly; and
(c)
CASAR’s
imports no longer cause injury to the domestic industry, in
particular SCAW.
2.
In
this respect we again draw your attention to the information
submitted that demonstrates that CASAR no longer dumps the subject
product in the South African Customs Union and that the dumping
margin has decreased significantly and is in fact significantly
negative. Due to the fact that the subject product is not dumped,
CASAR’s imports cannot cause injury to the domestic injury
(sic)
and
in particular to SCAW. We also submit substantiated justification as
to why these significantly changed circumstances arose
after the
imposition of the anti-dumping duties imposed pursuant to the Sunset
Review.”
[76]
Casar then proceeds
to deal with the two grounds under two separate headings:
[76.1]
Significantly
Changed Circumstances
Under this heading Casar
dealt in detail with the change in its pricing policy and with the
fact that it no longer dumps products
in the SACU;
[76.2]
CASAR’s
imports cause no injury to the domestic industry
Under this heading Casar
dealt,
inter alia
, in detail with the volumes it exports to
the SACU; the market shares of its exports and with a price
comparison between its products
and that of Scaw.
[77]
Different factors
are dealt with under each separate heading.
[78]
In its final
determination, ITAC formulated the grounds as follows:
“
3.2
Casar therefore had to prove:
•
Changed
circumstances with regard to dumping
and
that dumping was not likely to continue or recur should the
anti-dumping duty be removed;
and/or
•
A
changed circumstance with regard to material injury
and
that
material
injury
was not likely to continue or recur should the inti-dumping duty be
removed.”
(own
emphasis)
[79]
It
is clear from ITAC’s formulation of the issues, which they
accepted and understood that the Interim Review pertains to
both
dumping and injury.
[80]
Notwithstanding
the clear lineation of the issues, ITAC in its Final Report only
dealt with dumping. In paragraph 3 of the report
ITAC dealt with
Changed Circumstances and concluded in paragraph 3.13 as follows:
“
The
Commission determined that although Casar had submitted information
on changed circumstances, the arguments submitted were not
convincing
that pricing policy could not be changed again and therefore that
dumping would not recur. Based on the information
supplied, the
Commission made a final determination that Casar did not indicate
sufficient significant changed circumstances with
regard to dumping
of the subject product.’
[81]
Paragraph
4 dealt with dumping and the conclusion in paragraph 4.5 reads as
follows:
“
4.5
The Commission determined that despite Casar not having dumped the
subject product into the SACU during
the period of investigation,
that the volumes exported on which this determination were based,
were very low in relation to the
domestic sales of Casar. The low
volumes exported by Casar made it difficult to determine whether or
not Casar would resume dumping
in future, once the current
anti-dumping duties were withdrawn.
Based on
the aforesaid information supplied, the Commission made a final
determination that there was no sufficient information
to indicate
that dumping was not likely to continue or recur should the
anti-dumping duties applicable to Casar be withdrawn.”
[82]
No reference is made
to the injury enquiry.
[83]
The respondents did
not deny that ITAC failed to deal with the injury ground in its Final
Report.
[84]
In the result,
ITAC’s failure to consider the second ground mentioned in
Article 11.2 constitutes a material and reviewable
error of law. The
Minster’s decision to accept ITAC’s Final Report and
recommendation suffers the same fate.
[85]
In view of the
aforesaid finding it is not necessary to deal with the remaining
grounds of review.
REMEDY
[86]
Section
8 of the Act sets out the remedies available in proceedings for
judicial review. Section 8(c) is applicable
in
casu
and reads
as follows:
“
(c)
setting aside the administrative action and-
(i)
remitting
the matter for reconsideration by the administrator, with or without
directions; or
(ii)
in
exceptional cases-
(aa)
substituting or varying the administrative action or correcting a
defect resulting from the administrative
action; or
(bb)
directing the administrator or any other party to the proceedings to
pay compensation.”
[87]
Casar submitted that
the matter should not be remitted to ITAC and that this court is in
just as good a position as ITAC to grant
Casar’s application
for a termination of the anti-dumping duties.
[88]
In this regard,
Casar alleges that ITAC, in failing to investigate the question of
material injury was acting with an ulterior motive.
The motive,
according to Casar, was to protect the domestic industry from any
dumping regardless of whether it was materially injurious
or not.
[89]
In my view, ITAC’s
failure to consider the second leg of the test referred to
supra
does not,
without any further facts, amounts to an ulterior motive. Save for
the conclusion reached by Casar that ITAC had an ulterior
motive in
not investigating the question of material injury, Casar has provided
no other facts to substantiate its conclusion.
On the facts before
court there is no justification for such finding and the submission
is rejected.
[90]
In considering an
appropriate remedy, the principle of the separation of powers should
be taken into account. The principle was
summarised in
International
Trade Administration Commission v SCAW SA
2012
(4) SA 618
CC (“
SCAW”)
at paragraph 95, as follows:
“
Where
the Constitution or valid legislation has entrusted specific powers
and functions to a particular branch of government, courts
may not
usurp that power or function by making a decision of their
preference. That would frustrate the balance of power implied
in the
principle of separation of powers. The primary responsibility of a
court is not to make decisions reserved for or within
the domain of
other branches of government, but rather to ensure that the concerned
branches of government exercise their authority
within the bounds of
the Constitution. This would especially be so where the decision in
issue is policy-laden as well as polycentric.”
[91]
Insofar as the
powers of ITAC and the Minister in terms of the legislation
in
casu
is
concerned, the Constitutional Court agreed in
SCAW
supra
with the
following submissions made on behalf of ITAC in respect of its
powers:
“
ITAC
accordingly urged us to decide that the order of the high court
breaches the doctrine of separation of powers. In particular,
it
sought us to find that a court may not interfere with the
discretionary and polycentric discretion conferred on ITAC and on
both ministers under the BTT Act. They argued that courts are not
well suited to judge international trade policy and related
polycentric decisions, properly suited to specialist bodies such as
ITAC and the executive government.”
[para
100]
[92]
It
is no doubt for the aforesaid reasons that section 8(1)(c)(ii)
contains the words “
in
exceptional circumstances
”.
[93]
Casar
has dismally failed to satisfy this jurisdictional factor and I am
not prepared to grant relief in terms of section 8(1)(c)(ii).
[94]
Furthermore,
due to the fact that ITAC did not investigate the issue of material
injury, this court has no facts whatsoever to enable
it to find in
favour of Casar on the second leg of the enquiry.
COSTS
Present
application
[95]
In view of Casar’s
belated attempt to request the review of the Sunset Review without
alleging any facts or grounds of review
substantiating such relief, I
am of the view that no order as to costs should follow.
Interlocutory
applications
[96]
The interlocutory
application pertains to Casar’s application for an Amendment of
its Notice of Motion to include prayers
pertaining to the extension
of the 180-day period and the setting aside of the decisions in
respect of the Sunset Review.
[97]
The opposition of
the application was clearly justified insofar as the review of the
Sunset Review was ill conceived and without
any merit.
ORDER
[98]
In the
premises, I grant the following order:
1.
The time-limit of
180 days contained in
section 7
of the
Promotion of Administrative
Justice Act, 3 of 2000
is extended in terms of section 9(1) of the
Act.
2.
The First
Respondent’s final determination and recommendation that the
Applicant’s Interim Review in respect of anti-dumping
duties on
wire ropes and cables exported by the Applicant to South Africa,
should be terminated, is reviewed and set aside.
3.
The Second
Respondent’s decision to terminate the Interim Review is
reviewed and set aside.
4.
The Applicant’s
request for an Interim Review is remitted to the First and Second
Respondents for reconsideration.
5.
No order as to
costs.
6.
The Applicant is
ordered to pay the costs of the application for leave to amend its
Notice of Motion, such costs to include the
costs occasioned by the
employment of two counsel, if applicable.
N. JANSE VAN
NIEUWENHUIZEN
JUDGE OF THE HIGH COURT
OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
DATE
HEARD
6
th
and 7
th
of November 2019
JUDGMENT
DELIVERED
7
th
of February 2020
APPEARANCES
Counsel
for the Applicant:
Advocate M.C. Seale SC and
Advocate U.K. Naidoo
Instructed
by:
Geldenhuys Joubert Inc
(021 403 6324)
Ref: C006/20181218
Counsel
for the First Respondent:
Advocate C.
Puckrin SC and Advocate E. Muller
Instructed
by:
The State Attorney
Ref: Mr Kopman -
6167/14/Z3/nk
Counsel for the Second
Respondent:
Advocate
H. Maentje SC and M.D. Stubbs
Instructed
by:
The State Attorney
Ref: Mr Kopman -
6167/14/Z3/nk
Counsel for the Third
Respondent:
Advocate A.
Cockrell SC
Instructed
by:
Webber Wentzel Attorneys
(011 530 5000)
Ref: Stephen Meltzer
2536613