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[2014] ZAGPPHC 1072
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Farm Frites International v International Trade Administration Commission and Others (32263/14) [2014] ZAGPPHC 1072 (16 May 2014)
I
N
THE HIGH
COURT
OF
SOUTH
AFRICA
GAUTENG
DIVISION,
P
R
ETOR
IA
Case
number: 32263/14
Date
delivered: 20/5/2016
In
the matter between
FARM
FRITES
INTERNATIONAL
Applicant
and
INTERNATIONAL
TRADE ADMINISTRATION
COMMISSION
First Respondent
THE
MINISTER OF
TRADE AND
INDUSTRY
Second Respondent
MCCAIN
FOODS (SA) (PTY) LTD
NATURE'S
GARDEN t/a NATURE'S CHOICE
Third
Respondent
PRODUCTS
(PTY)
LTD
Fourth Respondent
LAMBERTS
BAY
FOODS
LTD
Fifth Respondent
POTATOES
SOUTH
AFRICA
Sixth Respondent
JUDGMENT
BAM
J
1.
The applica nt
("Farm Frites"),
described i n the
found i ng affidavit as a company with limited liability with its
head office at 3227 CD Oudenhoorn, Netherlands,
is an entity involved
i n the export of potato chips from, amongst others, the Netherlands,
to the RSA.
2.
On 12 May 2014, at 14HOO, the applicant brought this application on
an urgent basis. The application, (Part A), concerned an
interim
interdict restraining the first respondent from finally rejecting the
applicant's submissions and/or information regarding
the issues of
"du
m
ping",
(which I will
explain below), pending a review (Part B of the application) of the
first respondent's decision to regard the applicant's
submissions in
regards to dumping and treating the applicant as a non-cooperating
interested party. The application was opposed
by the first and second
respondents. After having heard argument from counsel, on 13 May I
made the order dismissing the application
with costs, including the
costs of two counsel. Due to time constraints, my judgment is not as
comprehensive as what I would have
preferred it to be. I indicated
that I would make a written judgement available later.
3.
The first respondent (“ITAC") is the commission
established in terms of
section 7
of the
International Trade
Administration Act, No. 71 of 2002
,
"The
Ac
t
".
The first respondent and the second respondent,
("The
Minister")
have extensive authority in terms
of the Act to regulate the trade industry. The duties of the first
respondent include the investigation
of complaints pertaining to
"dumping"
in terms of the provisions of the
Anti Dumping Regulations,
("The
Regulations"
).
"Dumping"
involves the
situation where imported products in the South African market are
sold at prices lower than in the exporting country.
This situation,
when it occurs, causes material prejudice to the domestic producers
of those products. When a complaint is lodged
in that regard, if
there is
prima facie
evidence, a detailed investigation
is conducted by ITAC in terms of the provisions of the Regulations.
4.
The investigation has two stages.
A
preliminary investigation is conducted by investigating officers who,
after the investigation has been completed, make submissions
to the
commissioners of ITAC. All interested parties are notified about such
investigation and are given the opportunity, and invited,
to submit
responses, which may be confidential. When the submissions advanced
by an interested party are deemed to be deficient,
the relevant party
is given notice of the deficiencies and has 7 days to address same.
If the submissions remain deficient, in
accordance with the
Regulations, it will not be considered by ITAC. A party who's
submissions are deficient will be regarded as
a non-cooperating
interested party.
Once
ITAC has published its preliminary finding, the final investigation
follows. All interested parties are granted 14 days to
comment in
writing. Even non-cooperating interested parties may remedy their
situation by addressing the deficiencies, which will
then be taken
into account by ITAC. Provision is also made for oral hearings. ITAC
then makes a final recommendation to the Minister
who is enjoined to
make an independent evaluation, and may accept or reject ITAC's
recommendation. If the
Minister
has accepted ITAC's recommendation the issue is referred to the
Minister of Finance for the implementation of the financial
aspects.
5.
A complaint in regards to dumping was lodged with ITAC by the third,
fourth, fifth and sixth respondents. The applicant, who
was an
interested party, was duly invited to submit responses. The applicant
submitted its responses. ITAC regarded the responses
as deficient and
the applicant was informed accordingly. The applicant conceded that
its initial responses were in fact deficient.
What occurred
subsequently, is, to large extent, in dispute. The applicant averred
that it did address the deficiencies. That was
however denied by the
respondents. The applicant made numerous adverse allegations against
ITAC concerning the procedure followed
and non-compliance with the
provisions of the Act and the Regulations. What is however common
cause is that ITAC would have concluded
the final investigation on 13
May 2014,the day after the lodging of this application.
6.
It was submitted by Mr Bergenthuin SC, appearing with Ms Granova for
the applicant, that the applicant has made out a case for
urgent
relief for an interim interdict. It was emphasised by Mr Bergenthuin
that the applicant will be severely prejudiced in the
event of the
application not succeeding, in that on 13 May 2014,
ITAC,
without considering all the information advanced by the applicant,
would make a final recommendation to the Minister, and
that the
recommendation will be prejudicial to the applicant with dire
consequences.
7.
Mr Vorster SC, with Ms Muller, who represented ITAC and the Minister,
submitted,
inter alia,
that the application was pre-mature in
that the final recommendation of ITAC had not yet been made. There is
no indication that
ITAC's final recommendation to the Minister will
be detrimental to the applicant.
8.
Pertaining to the urgency of the matter, I find it difficult to
understand why the applicant brought the application only at
this
stage. From the papers it appears that already on 17 February 2013
the applicant lodged an application for the review of ITAC's
conduct
pertaining to the dealing with the applicant's responses to the
invitation in respect of the complaint laid by the third
to sixth
respondents. Although the applicant subsequently withdrew that review
application, for reasons that are now disputed,
the grounds for that
review application seem to be the same grounds upon which the present
application, and the
new
review application, are
founded. What apparently triggered the present application is ITAC's
averred indication that he applicant's
deficient responses would not
be considered at the time a recommendation to the Minister would
become due.
9.
The applicant in this application therefore expressed his grievances
as an interested party in regards to a preliminary investigation
conducted by ITAC.
10.
Mr Bergenthuin submitted that the applicant's grounds for the review
application are substantiated in the papers. This submission
was
strenuously countered by Mr Vorster. After having considered the
issues and the arguments of counsel, I am of the opinion that
the
applicant does have reasonable grounds for review based on the
alleged irrational actions. I do not deem it expedient to discuss
all
the submissions made by Mr Bergenthuin in that regard. The court
eventually hearing the intended review will deal with those
issues.
11.
However, in my view, apart from the question of urgency, there are
several other problems facing the applicant. The first issue
pertains
to the question whether this application is not premature. In this
regard it was contended by Mr Vorster, convincingly
in my view, that
ITAC would only have considered the relevant issues on 13 May
2014,the day after the lodging of the application,
and that it was
still possible that ITAC's recommendation to the Minister could have
been favourable to the applicant. A further
point in that regard is
that the Minister was enjoined to, independently, consider the
recommendations of ITAC. It follows that
in this matter the issue, as
far as the applicant is concerned, would not have been finalized on
13 May 2014.
12..
In my view the applicant's remedy in respect of his grievances, that
ITAC did not deal with his case in a reasonable way, would
indeed be
an application for review. I have already remarked that the
applicant's seems to have reasonable grounds. The interim
relief
claimed by the applicant may at the end of the day, if granted, may
dispose of only part of its problem.
13.
The argument advanced by Mr Bergenthuin that the applicant will be
prejudiced if the interim relief is not granted, in view
of the
procedural delay to lodge the review application, is clearly not the
only issue at hand. This,
per se,
therefore does not
avail the applicant.
14.
In my view the applicant failed to establish that the application
could, at this point be brought on an urgent basis, as well
as that
the applicant did not establish that it has a
prima
facie
right at this stage, before the matter has been finally
considered and the applicant's submissions eventually rejected by the
Minister.
A
J BAMJUDGE OF THE HIGH COURT
16
May 2014