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[2007] ZASCA 118
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Progress Office Machines CC v South African Revenue Services and Others (532/06) [2007] ZASCA 118; [2007] 4 All SA 1358 (SCA); 2008 (2) SA 13 (SCA); 69 SATC 231 (25 September 2007)
Links to summary
REPUBLIC OF SOUTH AFRICA
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
REPORTABLE
Case
number:
532/06
In the matter between:
PROGRESS OFFICE
MACHINES CC
.......................
Appellant
and
THE SOUTH AFRICAN
REVENUE SERVICE
.......................
1
st
Respondent
THE INTERNATIONAL
TRADE ADMINISTRATION
COMMISSION OF SOUTH
AFRICA
.......................
2
nd
Respondent
THE MINISTER OF TRADE
& INDUSTRY
.......................
3
rd
Respondent
THE MINISTER OF
FINANCE
.......................
4
th
Respondent
CORAM
:
SCOTT,
LEWIS, HEHER JJA, MALAN and MHLANTLA AJJA
HEARD
:
30
AUGUST 2007
DELIVERED
:
25
SEPTEMBER 2007
Summary:
Imposition of anti-dumping duty in terms of
Customs and Excise Act 91 of 1964 – Effect of retrospective
imposition of duty –
International law – Incorporation
into municipal law
Neutral
citation:
Progress Office Machines v SARS
[2007] SCA 118 (RSA)
________________________________________________________________
JUDGMENT
________________________________________________________________
MALAN AJA:
[1] This is an appeal
with leave of the court a quo against a judgment of Gyanda J
dismissing with costs an application brought by
the appellant as a
matter of urgency for a declarator
‘
that
the antidumping duties imposed by the Fourth Respondent (at the
request of the Third Respondent and enforced by the Fourth
Respondent)
in terms of GN R685, Government Gazette 20125 (dated 28
th
May
1999) annexed hereto marked “A”, in respect of paper
products and in particular A4 paper imported from [Indonesia],
had no
force and effect after 27
th
November
2003.’
[2] The appellant deals
in paper products some of which it imports to sell on the domestic
market. From 8 January to 20 September
2004 the appellant imported
four consignments of paper from Indonesia through the port of Durban.
The appellant paid the applicable
duty on these imports before
clearance. No anti-dumping duty was imposed on the consignments
although they were examined by Customs
officials. Thereafter the
appellant received a letter from SARS dated 26 October 2004
concerning the importation of the said paper.
It intimated that an
investigation had shown prima facie that the appellant contravened
certain provisions of the Customs and Excise
Act 91 of 1964 (the
‘Act’) and that anti-dumping duty in terms of Schedule 2
and value added tax amounting to R 1 565
569-60 were payable in
respect of the four consignments.
[3] In terms of ss 55 to
57 of the Act the fourth respondent (the Minister of Finance) may
impose anti-dumping duty pursuant to a
request from the third
respondent (the Minister of Trade and Industry). The first respondent
(SARS) recovers the duty so imposed.
The relevant powers of the
Minister of Finance are set out in s 56 of the Act. At the time of
the relevant Government Notice, 28
May 1999, s 56 read:
‘
(1)
The Minister may from time to time by notice in the
Gazette
amend
Schedule 2 to impose anti-dumping duty in accordance with the
provisions of section 55 (2).
(2) The Minister may, in
accordance with any request by the Minister of Trade and Industry and
for Economic Co-ordination, from time
to time by notice in the
Gazette
withdraw or
reduce, with or without retrospective effect and to such extent as
may be specified in the notice, any anti-dumping duty
imposed under
subsection (1).’
Section 55 (2) at that
time provided:
‘
(a)
The imposition of any anti-dumping duty as defined in the Board on
Tariffs and Trade Act, 1986 (Act 107 of 1986) … shall
be in
accordance with any request by the Minister of Trade and Industry and
for Economic Co-Operation under the provisions of the
Board on
Tariffs and Trade Act, 1986.’
1
(b) Any such anti-dumping … duty
may be imposed in respect of goods concerned in accordance with such
request with effect from
the date on which any provisional payment in
relation to anti-dumping … duty is imposed in respect of those
goods under section
57A.’
The then Board on Tariffs
and Trade was empowered to investigate dumping and to report and make
recommendations to the Minister of
Trade and Industry and Economic
Co-ordination.
2
The said Minister, if he accepted the report and recommendation, was
entitled to ‘request the Minister of Finance to amend
the
relevant Schedule to the Customs and Excise Act, 1964 …’.
[4] Section 57A of the
Act in addition provides for the imposition of a ‘provisional
payment’. Provisional payments may
be imposed by the
Commissioner of Customs and Excise when the International Trade
Administration Commission (‘ITAC’)
or its predecessor,
the Board on Tariffs and Trade, publishes a notice to the effect that
it is investigating the imposition of anti-dumping
duty on certain
imported goods. The imposition of a provisional payment must be for
the period, amount and goods specified in a request
by ITAC.
3
The Commissioner may in accordance with such a request also extend
the period, or withdraw or reduce the amount of the provisional
payment with or without retrospective respect.
4
A provisional payment is paid in respect of the goods subject to it
‘as security for any anti-dumping … duty which may
be
retrospectively imposed’ on the goods in terms of s 56 (and 55)
and may be set off against the amount of any retrospective
anti-dumping duty payable.
5
If no anti-dumping duty is imposed before the expiry of the period
for which an anti-dumping duty has been imposed the amount of
the
duty has to be refunded.
6
Where the amount of the provisional payment exceeds the amount of any
anti-dumping duty retrospectively imposed the difference must
be
refunded but where it is less than the amount of the duty the
difference may not be collected.
7
Section 55(2)(b) specifically empowers the Minister of Finance to
impose an anti-dumping duty in accordance with a request of the
Minister of Trade and Industry ‘with effect from the date on
which any provisional payment … is imposed … under
section 57A.’ It follows and it was common cause between the
parties that it is only where a provisional payment has been imposed
that the Minister of Finance may impose a definitive anti-dumping
duty retrospectively. This is borne out by the absence in s 56(1)
of
any reference to the power to introduce anti-dumping duty
retrospectively
and by the specific inclusion in s 56(2) of
the power to ‘withdraw or reduce, with or without retrospective
effect’ any
duty imposed under s 56(1).
8
It is common cause that a provisional payment had been imposed in
respect of the goods in question in terms of s 57A and that the
Minister of Finance had imposed the definitive anti-dumping duty on
28 May 1999
9
‘with retrospective effect to 27 November 1998’.
[5] South Africa is a
founding member of the World Trade Organisation Agreement (‘WTO’)
and also a signatory to the General
Agreement on Tariffs and Trade of
1947 (‘GATT’).
10
The South African Government acceded to GATT and its accession was
published in the
Government Gazette
.
11
Parliament approved the agreement in the Geneva General Agreement on
Tariffs and Trade Act 29 of 1948.
12
The World Trade Organisation Agreement was the outcome of the
so-called Uruguay Round of the GATT negotiations and was concluded
in
Marrakesh by the signing of some 27 agreements and instruments in
April 1994 by the members including South Africa. The WTO Agreement
on the Implementation of Article VI of the General Agreement on
Tariffs and Trade 1994 (the ‘Anti-Dumping Agreement’)
forms part of the WTO Agreement.
13
Article 11 of the former agreement provides:
’
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. 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.
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 on their own
initiative or upon a duly substantiated request
made by or on behalf of the domestic industry within a reasonable
period of time
prior to that date, that the expiry of the duty would
be likely to lead to continuation or recurrence of dumping and
injury. The
duty may remain in force pending the outcome of such a
review.’
[6] The effect of
international treaties on municipal law is regulated by ss 231, 232
and 233 of the Constitution. Section 231(4)
provides that ‘[a]ny
international agreement becomes law in the Republic when it is
enacted into law by national legislation.’
The WTO Agreement
was approved by Parliament on 6 April 1995 and is thus binding on the
Republic in international law but it has
not been enacted into
municipal law.
14
Nor has the Agreement on Implementation of Article VI of the General
Agreement on Tariffs and Trade been made part of municipal law.
15
No rights are therefore derived from the international agreements
themselves.
16
However, the passing of the International Trade Administration Act 71
of 2002 (‘ITAA’) creating ITAC and the promulgation
of
the Anti-Dumping Regulations
17
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.
18
The text to be interpreted, however, remains the South African
legislation and its construction must be in conformity with s 233
of
the Constitution.
19
[7] The Anti-Dumping
Regulations made under s 59 of ITAA which came into operation on 1
June 2003
20
seek to give effect to provisions of the Anti-Dumping Agreement cited
above. The most important is regulation 53.1 which reads:
21
Regulation 53.1: ‘Anti-dumping
duties shall remain in place for a period not exceeding 5 years from
the imposition or the last
review thereof.’
[8] On 28 May 1999
22
the Minister of Finance, gave notice in terms of s 56 of the Act that
Part 1 of Schedule 2 was amended ‘with retrospective
effect to
27 November 1998’ to impose certain anti-dumping duties (in
this case a 70 per cent duty) inter alia on the paper
imported by the
appellant as set out in the Schedule to the notice.
[9] On 30 May 2003 the
second respondent, ITAC, gave notice
23
that the definitive anti-dumping duty (stated to have been imposed on
28 May 1999) would expire on 28 May 2004 unless a request was
made
for its continuance ‘indicating that the expiry of the duty
[would] be likely to lead to continuation or recurrence of
dumping
and injury’.
[10] On 2 April 2004 ITAC
published a notice
24
that a duly completed petition review questionnaire had been
submitted to it on 28 November 2003 by Mondi Limited and Sappi Fine
Paper (Pty) Limited which initiated a sunset review on the
anti-dumping duties on the paper imported by the appellant and had
the
effect of extending the period of anti-dumping duties pending the
outcome of the review.
[11] It is common cause
between the parties and it has been conceded on behalf of the second
respondent that the duration of the definitive
anti-dumping duty
imposed by the Minister of Finance is a period of five years. This
concession was properly made. The Act gives
express powers to the
Minister of Finance to amend Schedule 2 to impose anti-dumping duty
in accordance with s 55(2)
25
and to withdraw or reduce any anti-dumping duty imposed by him.
26
In exercising his powers under s 55(2) the Minister of Finance
imposed anti-dumping duty by
GN R685
GG
20125 of 28 May 1999 without
stipulating the period of time the duty would be operative. Despite
the seemingly limitless operation
of the anti-dumping duty imposed in
this case by the Minister of Finance the period of its operation
should be limited.
Not only is a court bound to ‘prefer
any reasonable interpretation of the legislation that is consistent
with international
law over any alternative interpretation that is
inconsistent with international law’
27
but subordinate legislation such as the notice by the Minister of
Finance imposing the anti-dumping duty must be reasonable. Dugard
28
submits that a court may ‘insist on compliance with a state’s
international obligations as a requisite for the validity
of
subordinate legislation’. The duration of the anti-dumping duty
imposed beyond the period allowed by the Anti-Dumping Agreement
would
not only be a breach of the Republic’s international
obligations
29
and an unreasonable interpretation of the notice but also
unreasonable and to that extent invalid. The unreasonableness of any
period
exceeding that provided for by the international instrument is
emphasized by regulation 53.1 of the Anti-Dumping Regulations which
provides that ‘[a]nti-dumping duties shall remain in place for
a period not exceeding 5 years from the imposition or the last
review
thereof.’ Although the Regulations came into force on 1 June
2003 they 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.
[12] The narrow issue for
consideration in this matter is whether the period of five years
commenced on 28 May 1999 (the date of the
notice) or on 27 November
1998 (the date from which the amendment was to have ‘retrospective’
effect). The appellant
imported paper from Indonesia during the
period 8 January to 20 September 2004. It follows that if the period
of five years commenced
on 27 November 1998 the duties would have
lapsed on 27 November 2003 and the appeal should succeed. If, on the
other hand, the period
commenced on 28 May 1999 the appeal should be
dismissed.
[13] In his judgment in
the court a quo Gyanda J accepted that the ‘imposition’
or the ‘act of imposing’ occurred
on the date of
publication, ie 28 May 1999, and held that ‘the date of
imposition must obviously be the date when the act of
levying the
duty is taken i.e. the date of publication.’ The date of
‘imposition’ may thus be different from the
date of
levying the duty. In coming to this conclusion he was relying on the
‘stated intention’ of the contracting parties
to the WTO
Agreements to maintain uniformity. He found support in the foreign
legislation referred to, ie that of the USA, the EU
and India, that
the five year period is calculated from the date of ‘imposition’
ie the date of publication of the definitive
anti-dumping measures.
He also relied for his conclusion on the distinction between a
‘provisional payment’ as described
in s 57A and a
‘definitive’ anti-dumping duty provided for in ss 55 and
56 and concluded that there would be no reason
to enact s 57A(5) if
there was no such distinction. He came to the conclusion that
‘
the
statute in question is a retrospective one as it indeed says it is in
that it “looks backwards, that it attaches new consequences
for
the future to the event that took place before the statute was
enacted.”
30
The
date of imposition therefore must be the date of publication of the
Government Notice No.R 685 published in Government Gazette
No.20125
of 28th May 1999. … Retrospective effect of the provision to
27
th
November
1998 is no more than authorising the levying and collection of duties
from the date. It is clear that these retrospective
levying of duties
was necessary to prevent the evil that was feared and envisaged
namely that importers would, in an effort to avoid
the imposition of
Anti-Dumping measures, import huge quantities of the product in
question before the legislation came into force.
It is clearly
therefore a measure designed to prevent the importers from
circumventing the provisions of the law and by putting in
place
measures to collect or levy the duties even before the law came into
force. Under these circumstances the provision in question
is
definitely retrospective in effect and not a retroactive statute …’.
[14] The judge in the
court a quo was undoubtedly correct in finding that anti-dumping duty
may be imposed in certain circumstances
for a period longer than five
years: where a sunset review has been initiated under regulation 53.2
of the Anti-Dumping Regulations
the anti-dumping duty remains in
force until the review has been finalised. Nothing, however, turns on
the fact that anti-dumping
duty may in these circumstances endure for
a period longer than five years.
[15] The court a quo
found that the imposition of the duty was ‘retrospective’
and not ‘retroactive’. Whether
the imposition was
‘retrospective’ or ‘retroactive’ makes no
difference to the burden imposed on the importer
to pay the duty as
from 27 November 1998. What is clear, however, is that at 27 November
1998 an anti-dumping duty existed that did
not exist before the
publication allowing for its ‘imposition’ on 28 May 1999.
The ‘imposition’ of the duty
on 28 May 1999 with effect
from 27 November 1998 meant that ‘the law shall be taken to
have been that which it was not’.
31
It follows that the anti-dumping duty was imposed ‘retroactively’.
The fact that the notice uses the word ‘retrospectively’
and not ‘retroactively’ does not offend against this
conclusion since a distinction is frequently made between
retrospectivity
in the ‘strong’ sense (ie
‘retroactivity’) and retrospectivity in the ‘weaker’
sense.
32
[16] In holding that the
anti-dumping duty was imposed on the date of the notice the court a
quo relied on the
Oxford English Dictionary
meaning
33
of the word ‘imposition’ as ‘the action of imposing
a charge, obligation, duty, etc’. It does not follow,
however,
that the date of ‘imposition’ is the date of the notice
introducing the duty. The purpose of the imposition
was to impose the
anti-dumping duty as from 27 November 1998. The duty or the burden
was ‘imposed’ on that day just as
one would conclude that
where the notice provided for the duty to take effect on a future
date the duty would be ‘imposed’
on that future date.
[17] Perhaps the
strongest indication for holding that the duty was ‘imposed’
on 27 November 1998 is to be found in s
57A(3) which leaves no doubt
that the duty imposed is a ‘definitive’ anti-dumping duty
for the payment of which any provisional
payment already imposed
serves as security. It was fully effective on that date just as if it
had been ‘imposed’ on that
very day. The definitive
anti-dumping duty, it is common cause, endures for five years from
its imposition.
[18] The second
respondent, invoking s 233 of the Constitution, sought to find
support for its construction of the word ‘imposition’
in
the opinions of foreign trade law experts from the United States,
India and the European Union. The affidavit of Ms Trossevin
of the
USA deals with Title VII (ss 701-782) of the Tariff Act of 1930 as
amended and the implementing regulations found in Title
19 of the
Code of Federal Regulations, Part 351. She was required to
demonstrate ‘how the period of “five years”
referred to in section 751(c) is calculated and, in particular,
whether the period during which any provisional duties may be applied
prior to the imposition of the final or definitive duties is required
to be taken into account in the calculation of the five year
period.’
She concluded that under US law the calculation of the five year
period referred to in s 751(c) of the Tariff Act
does not include the
period during which provisional measures may have been applied. The
latter measure may be applied during an
investigation after
preliminary findings had been made. A ‘5 year sunset review’
is initiated five years after the date
of publication of the
anti-dumping duty order. Pursuant to s 351.218(c) of the Regulation
notice initiating the review is published
30 days before the fifth
anniversary of the anti-dumping order. Should the review lead to a
revocation of the order revocation will
be effective ‘on the
fifth anniversary of the date of publication … of the
order…’(Regulation 351.222(i)(2)).
An anti-dumping duty
order therefore remains effective for five years from the date the
order was originally published which is a
period after the
provisional measures were in force. The evidence of Mr Vermulst
concerns the duration of the anti-dumping duty imposed
in terms of
Article 11(1) and (2) of the European Council Regulation 384/96.
Article 11(2) provides expressly that a ‘definitive
anti-dumping measure shall expire five years from its imposition or
five years from the date of the conclusion of the most recent
review’. His conclusion is that in the computation of the five
year period any period during which a provisional duty (in terms
of
Article 7) may have been imposed is not taken into account. In India
an anti-dumping duty ceases to have effect on the expiry
of five
years from the date of its imposition.
34
[19] To my mind none of
these foreign experts supports the submission of the second
respondent: they lead to the conclusion that the
five year period is
calculated with reference to the period of the definitive
anti-dumping duty and excluding the period any provisional
anti-dumping duty had been in force. It is common cause in this case
that a provisional payment had been imposed in respect of the
goods
in question in terms of s 57A but that the Minister of Finance had
imposed the definitive anti-dumping duty by notice on 28
May 1999
35
‘with retrospective effect to 27 November 1998’. There is
no suggestion that the anti-dumping duty in force for the
‘retrospective’
period, ie from 27 November 1998 to 28
May 1999, was anything other than a definitive anti-dumping duty. The
period of definitive
anti-dumping duties and the period of a
provisional payment may thus coincide and not follow each other as is
apparently the case
in the USA and the EU. Moreover, 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’. This
question
is not addressed by any of the experts.
[20] It follows that the
appeal must be upheld with costs. The following order is made:
(1) the appeal is upheld
with costs including the costs occasioned by the employment of two
counsel;
(2) the order of the
court a quo is set aside and the following is substituted in its
place:
‘
(a)
the antidumping duty imposed by the Fourth Respondent in terms of GN
R685, Government Gazette 20125 (dated 28
th
May 1999) in respect of paper products and in particular A4 paper
imported from Indonesia, had no force and effect from 27
th
November 2003.
(b) the second respondent
is ordered to pay the applicant’s costs including the costs
occasioned by the employment of two counsel.’
__________
F R MALAN
Acting Judge of Appeal
CONCUR
SCOTT JA
LEWIS JA
HEHER JA
MHLANTLA AJA
1
The
International Trade Administration Commission (‘ITAC’)
is the successor to the Board on Tariffs and Trade (see Item
5(1) of
Schedule 2 to the International Trade Administration Act 71 of 2002
(‘ITAA’)).
2
Section
4(1) of the Board on Tariffs and Trade Act 107 of 1986.
3
Section
57A(1) of the Act.
Section
57A has been amended by Act 45 of 2003 to replace the references to
the ‘Board on Tariffs and Trade’ with references
to
ITAC.
4
Section
57A(2).
5
Section
57A(3)
.
6
Section
57A(4).
7
Section
57A(5).
8
Cf
HC
Cronje
Customs
and Excise Service
(March
2007) p 6-3.
9
GN
R685
GG
20125
of 28 May 1999.
10
John
Dugard SC with contributions by Daniel Bethlehem QC, Max du Plessis
and Anton Katz
International
Law: A South African Perspective
3ed
(2005) pp 429, 442 ff.
11
GN
2421 of 18 November 1947.
12
Section
2.
13
Dugard
pp 447-8.
14
EC
Schlemmer ‘South Africa and the WTO Ten Years into Democracy’
(2004) 29
SAYIL
125
at p 135 referring to the WTO Agreements remarks: ‘They are
thus binding on South Africa, but will form part of South
African
law only if parliament
expressly
so
provides
[s 231(4) of the Constitution]. A careful reading of the
parliamentary debates indicates that this was clearly not the
case.
The agreements were approved and ratified, but due to incomplete
actions of parliament, the WTO Agreements do not form part
of South
African law and as such are not directly enforceable through South
African law.’ At p 134 n 57 she refers to the
adoption of the
Report of the Portfolio Committee on Trade and Industry of 22 March
1995 by Parliament. The report that was debated
and adopted reads:
‘The Portfolio Committee on Trade and Industry, having
considered the request to agree to the accession
of the Republic …
to the
Marrakesh
Agreement
,
which establishes the World Trade Organisation, incorporates the
General Agreement on Tariffs and Trade (GATT) and was signed
in
terms of section 231(2) of the Constitution, agrees to the accession
to the said Agreement by the Republic …’ (1995
Hansard
col
642 - 653 at col 290). See further Dugard p 434; Gary S Eisenberg
‘The GATT and the WTO Agreements: Comments on their
Legal
Applicability to the Republic of South Africa’ (1993-4) 19
SAYIL
127.
15
In
fact, Article 18.4 of the Agreement on Implementation of Article VI
specifically provides that ‘Each member shall take
all
necessary steps …
to
ensure
,
not later than the date of entry into force of the WTO Agreement for
it,
the
conformity of its laws, regulations and administrative procedures
with the provisions of this Agreement
…’
(my
underlining).
16
Maluleke
v Minister of Internal Affairs
1981
(1) SA 707 (BSC) 712 H.
17
GN
3197
GG
25684
of 14 November 2003.
18
Cf
NJ
Botha ‘International Law’ in 11
LAWSA
First Reissue
paras
350 ff.
19
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.’
20
GN
3197
GG
25684 of 14 November
2003.
21
See
also regulations 38.1, 38.2, 53.2 and 54.1.
22
GN
R685
GG
20125
of 28 May 1999.
23
GN
1560
GG
24893
of 30 May 2003.
24
GN
552
GG
26180
of 2
April 2004.
25
Section
55(1).
26
Section
55 (2).
27
Section
233 of the Constitution.
28
John
Dugard ‘International Human-Rights Norms in Domestic Courts:
Can South Africa Learn from Britain and the United States?’
in
Ellison Kahn (ed)
Fiat
Iustitia: Essays in Memory of Oliver Deneys Schreiner
(1983)
221 p 238 and see Dugard (n 10 above) p 66 ff.
29
Prima
facie
Parliament
does not intend acting contrary to international law or in breach of
its treaty obligations;
Binga
v Cabinet for South West Africa and Others
1988
(3) SA 155
(A) 184I - 185C.
30
Gyanda
J relied in this respect on
National
Director of Public Prosecutions v Carolus and Others
2000
(1) SA 1127
(SCA) where Farlam AJA (para 34) cited
Benner
v Secretary of State of Canada
(1997)
42 CRR (2d) 1 in which reference was made to Elmer A Driedger
‘Statutes: Retroactive Retrospective Reflections’
(1978)
56
Canadian
Bar Review
264
at 268-9 who stated: ‘A retroactive statute is one that
operates as of a time prior to its enactment. A retrospective
statute
is one that operates for the future only. It is prospective,
but it imposes new results in respect of a past event. A retroactive
statute
operates
backwards
.
A retrospective statute
operates
forwards
,
but it looks backwards in that it attaches new consequences
for
the future
to
an event that took place before the statute was enacted. A
retroactive statute changes the law from what it was; a
retrospective
statute changes the law from what it otherwise would
be with respect to a prior event.’
31
S
v Mhlungu and Others
[1995] ZACC 4
;
1995
(3) SA 867
(CC) para 65.
32
National
Director of Public Prosecutions v Carolus and Others
2000
(1) SA 1127
(SCA) para 35.
33
The
Shorter
Oxford
English Dictionary
(1973)
refers to ‘imposition’ as the ‘action of imposing;
the action of inflicting, levying or enjoining …
(taxation)’
and ‘impose’ as ‘to put a tax, to levy an impost’.
34
Section
9A(5) of the Indian Customs Tariff Act, 1975.
35
GN
R685
GG
20125
of 28 May 1999.