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[2001] ZASCA 67
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Chairman : Board On Tariffs and Trade and Others v Brenco Incorporated and Others (285/99) [2001] ZASCA 67; 2001 (4) SA 511 (SCA); 64 SATC 130 (25 May 2001)
CASE NUMBER: 285/99
In the matter
between:
CHAIRMAN : BOARD ON TARIFFS AND TRADE FIRST
APPELLANT
MINISTER OF TRADE AND INDUSTRY SECOND
APPELLANT
MINISTER OF FINANCE THIRD
APPELLANT
AND
BRENCO INCORPORATED FIRST
RESPONDENT
FAG SOUTH AFRICA LIMITED SECOND RESPONDENT
TRANSNET LIMITED THIRD RESPONDENT
CORAM : MARAIS, ZULMAN, STREICHER,
NAVSA and MPATI JJA
DATE OF HEARING : 22 MARCH 2001
DATE OF JUDGMENT : 25 MAY 2001
Subject : Procedural
fairness in regard to the imposition of anti-dumping duties in terms of s 56 of
the Customs and Excise Act 91
of 1964 read with s 4(2) of the Board on Tariffs
and Trade Act, 107 of 1986
JUDGMENT
ZULMAN JA
[1]
This appeal concerns, in large measure, the
application of the
audi alteram partem
principle (“the
audi
principle” for the sake of brevity) in a tiered decision making
process.
[2]
The respondents were the successful applicants in the
court
a quo
for an order setting aside certain decisions of the three
appellants (the Chairman of the Board on Tariffs and Trade, the Minister
of
Trade and Industry and the Minister of Finance) relating to anti-dumping duties
imposed, with retrospective effect, on types
of roller bearings and the
refunding to the second respondent of amounts paid in respect of those duties.
The appeal to this court
is with the leave of the court
a quo
(MacArthur
J). For the sake of convenience any reference to the second appellant will
include the Deputy Minister of Finance and
any reference to the third appellant
will include the Deputy Minister of Finance.
[3]
The first
respondent (BRENCO) is a United States of America corporation producing bearings
suitable for use on the axles on railway
rolling stock and locomotives. The
bearings are sold in the United States of America and elsewhere. A German
company (FAG GERMANY)
entered into what is referred to as a “label
agreement” with BRENCO in terms of which BRENCO was given the right to
manufacture
particular types of roller bearings under the FAG label. Amongst
these
bearings were class C and D roller bearings which were the subject
matter of a tender awarded to the second respondent (FAG) in July
1999 by the
third respondent (TRANSNET). FAG is a South African company which imported the
bearings. It is a wholly owned subsidiary
of FAG GERMANY.
[4]
In
January 1992 a complaint was lodged with the Board on Tariffs and Trade, (BTT)
established in terms of s 2 of the Board on Tariffs
and Trade Act No 107 of 1986
(“the BTT Act”) by Timken South Africa (Pty) Ltd (TIMKEN SA). The
complaint was prompted
by the fact that TIMKEN SA had lost two large tenders
for the supply of the bearings to TRANSNET, allegedly due to the dumping of
C
and D bearings manufactured by BRENCO, imported by FAG, and sold to
TRANSNET. TIMKEN SA is a wholly owned subsidiary of a United
States of
America corporation (TIMKEN US), a large multi-national corporation which
manufactures bearings in the United States of
America with operations in many
countries, including South Africa. TIMKEN SA is the sole producer of the
bearings in South Africa
and pays royalties to TIMKEN US.
[5]
On 21
August 1992, BTT gave notice
[1]
of
its intention to institute an anti-dumping investigation into imports of roller
bearings originating in the United States of America
and commonly used by
railway undertakings.
[6]
On 4 December 1992 the Commissioner of
Customs and Excise, exercising the powers vested in him in the Customs and
Excise Act, No.
91 of 1964 (the CE Act),
imposed a provisional dumping duty
of R108,42 per product.
[2]
He
thereafter on 2 April 1993 and 4 June 1993 extended the period for payment of
the provisional duty
[3]
. On 3
December 1993, the third appellant imposed a final anti-dumping duty of R81,08
per unit in respect of class C bearings and
R100,69 per unit in respect of class
D bearings.
[4]
His decision to
impose the final anti-dumping duties was in accordance with a request by the
second appellant.
[7]
FAG paid out some money pursuant to the
imposition of the provisional, and thereafter, the final anti-dumping duties.
The three
respondents on appeal, who were the applicants in the court
a
quo,
applied to have reviewed and set aside:
[7.1]
the decision of BTT (represented by its Chairman, the first
appellant)
recommending the imposition of anti-dumping duties.
[7.2]
the decision of the second appellant to request the third
appellant to impose anti-dumping duties.
[7.3]
the
decision of the third appellant to impose anti-dumping duties.
Consequential
relief was also sought with regard to the repayment of the money paid pursuant
to the imposition of the provisional
and final anti-dumping duties and
costs.
[8]
Section 4(1) of the BTT Act authorises BTT, inter alia,
to investigate dumping in the Republic and to report and make recommendations
to
the second appellant in respect of such investigation.
At the relevant time
“dumping” was defined as follows:
[5]
“ ‘
dumping’ means the export or the proposed export of
goods to the Republic or the common customs area of the Southern African
Customs
Union-
at an export price lower than the price at which similar goods are being sold in
the ordinary course of trade in the exporting country,
for consumption
there;
at an export price lower than the highest comparable price at which similar
goods are being exported in the ordinary course of trade
from the exporting
country to any third country;
at an export price lower than the price which is made up as contemplated by
subsection (2); or
at an export price lower than the comparable price at which similar goods are
being exported to the Republic or the common customs
area of the Southern
African Customs Union from any other
country;”
Essential concepts
recognised in international anti-dumping law such as injury, causation and
margin of dumping are not defined or
referred to in the South African
legislation. In addition, there is no reference in the legislation to the
procedure to be followed
in the investigation of anti-dumping actions. The BTT
Act provides for the promulgation of regulations, but as yet no regulations
have been promulgated.
BTT has, however, published a document entitled
“Guide to the Policy and Procedure with Regard to Action against Unfair
International
Trade
Practices: Dumping, Subsidies and other forms of
Disruptive Competition” (“the GUIDE”). A copy of the GUIDE,
which
is a detailed document, is available to interested parties. The GUIDE
makes reference to South Africa’s obligations in terms
of the
International General Agreement on Trade and Tariffs (GATT) to which South
Africa is a party, and attempts to deal with some
of the issues not referred to
in the legislation such as injury, causation and national interest. The GUIDE
also sets out the procedures
to be adopted by BTT in an anti-dumping
investigation.
[9]
Three essential issues arise in this appeal:
[9.1]
Whether the proceedings before BTT were vitiated on the basis of
a failure to comply with the principles of natural justice, in that
BTT violated
the
audi
principle.
[9.2]
Whether the decision
of the second appellant was vitiated by reason of
the fact that he violated the principles of procedural fairness in that he
failed
to observe the
audi
principle before requesting the third appellant to
impose the final anti-dumping duties and accordingly whether their imposition
was null and void and of no force or effect in law.
[9.3]
Similarly in the case of the third appellant whether he violated the principles
of procedural fairness in that he failed to observe
the
audi
principle
before imposing the final anti-dumping duties and accordingly whether their
imposition was null and void and of no force
or effect in law.
[10]
I agree with the submission made by the appellants’ counsel to the effect
that the entire process by which anti-dumping duties
are imposed must be viewed
as a whole. However, if there is merit in the respondents’ contention that
the proceedings before
BTT were flawed, then it becomes unnecessary to consider
whether there was procedural fairness on the part of the two ministers (c/f
Turner v
Jockey Club of South
Africa
[6]
.)
[11]
At
the outset it would be as well to re-state some general principles of
administrative or procedural fairness which are applicable
to the general scheme
of the BTT Act read together with the relevant provisions of the CE Act before
examining the specific complaints
which the respondents level against BTT and
the second and third appellants.
[12]
Both counsel for the
appellants and counsel for the respondents invoked, in support of their
respective arguments, the dicta of
Hoexter JA in
Administrator, Transvaal,
and Others v Zenzile and
Others
[7]
, and of Corbett CJ in
Du Preez and Another v Truth And Reconciliation
Commission
[8]
,
the latter
citing with approval the remarks of Lord Mustill in
Doody v Secretary of
State
for the Home Department and Other
Appeals
[9]
and of Lord Denning MR
and Sachs LJ in
Re Pergamon Press
Ltd.
[10]
[13]
Lord
Mustill summarised the duty of a public official or body to act fairly in these
lucid terms:
‘What does fairness require in the present case? My Lords, I think it
unnecessary to refer by name or to quote from, any of
the often-cited
authorities in which the Courts have explained what is essentially an intuitive
judgment. They are far too well
known. From them, I derive the following. (1)
Where an Act of Parliament confers an administrative power there is a
presumption
that it will be exercised in a manner which is fair in all the
circumstances. (2) The standards of fairness are not immutable.
They may
change with the passage of time, both in the general and in their application to
decisions of a particular type. (3) The
principles of fairness are not to be
applied by rote identically in every situation. What fairness demands is
dependent on the context
of the decision, and this is to be taken into account
in all its aspects. (4) An essential feature of the context is the statute
which creates the discretion, as regards both its language and the shape of the
legal and administrative system within which the
decision is taken. (5)
Fairness will very often require that a person who may be adversely affected by
the decision will have an
opportunity to make representations on his own behalf
either before the decision is taken with a view to producing a favourable
result,
or after it is taken, with a view to procuring its modification, or
both. (6) Since the person affected usually cannot make worthwhile
representations without knowing what factors may weigh against his interests
fairness will very often require that he is informed
of the gist of the case
which he has to
answer.’
[11]
See also
Attorney-General, Eastern Cape v Blom and
Others,
[12]
South African
RoadsBoard v Johannesburg City
Council,
[13]
and
Baxter -
Administrative Law
.
[14]
The
common law principle of fairness is reflected in s 33(1) of our
Constitution.
[15]
[14]
There is no single set of principles for giving effect to the rules of natural
justice which will apply to all investigations,
enquiries and exercises of
power, regardless of their nature. On the contrary, courts have recognised and
restated the need for
flexibility in the application of the principles of
fairness in a range of different contexts. As Sachs L.J. pointed out in
In
re
Pergamon Press
:
“In the application of the concept of fair play, there must be real
flexibility, so that very different situations may be
met without producing
procedures unsuitable to the object in hand ...
It is only too easy to frame a precise set of rules which may appear impeccable
on paper and which may yet unduly hamper, lengthen
and, indeed, perhaps even
frustrate ... the activities of those engaged in investigating or otherwise
dealing with matters that fall
within their proper sphere. In each case careful
regard must be had to the scope of the proceeding, the source of its
jurisdiction
(statutory in the present case), the way in which it normally falls
to be conducted and its
objective.
[16]
Pergamon
Press
, was concerned with procedures in an investigative enquiry not
dissimilar in character to the investigative inquiry conducted by
BTT in this
case. The inquiry there was conducted by inspectors acting in terms of the
English Companies Act. The directors of
the company in question claimed that
the inspectors should conduct the inquiry much as if it were a judicial inquiry
in a court of
law. Lord Denning MR said of
this-
[17]
“It seems to me that this claim on their part went too far. This inquiry
was not a court of law. It was an investigation
in the public interest, in
which all should surely co-operate, as they promised to do. But if the
directors went too far on their
side, I am afraid that Mr Fay, for the
inspectors went too far on the other. He did it very tactfully, but he did
suggest that in
point of law the inspectors were not bound by the rules of
natural justice ... He submitted that when there was no determination
or
decision but only an investigation or inquiry, the rules of natural justice did
not apply ...
I cannot accept Mr Fay’s submission. It is true, of course, that the
inspectors are not a court of law. Their proceedings
are not judicial
proceedings .... They are not even quasi-judicial, for they decide nothing;
they determine nothing. They only
investigate and report.
...
But this should not lead us to minimise the significance of their task. They
have to make a report which may have wide repercussions.
They may, if they
think fit, make findings of fact which are very damaging to those whom they
name. They may accuse some; they
may condemn others; they may ruin reputations
or careers. Their report may lead to judicial proceedings. It may expose
persons
to criminal prosecutions or to civil actions. It may bring about the
winding up of the company and be used itself as material for
the winding
up.
Seeing that their work and their report may lead to such consequences, I am
clearly of opinion that the inspectors must act fairly.
This is a duty which
rests on them, as on many other bodies, even though they are not judicial, nor
quasi-judicial, but only administrative
......”
[15]
The whole scheme of
the BTT Act which establishes BTT and the “administrative system”
indicates that there is to be a
detailed investigation by BTT, requiring a
hearing of all interested parties, before a report concerning any alleged
dumping is
made for submission to the Trade Minister, before he in turn acts in
terms of s 4(2) of the Act. In this regard s 4(1) of the Act
is of particular
significance. The section provides as follows in regard to the functions of
BTT:-
“Functions of Board
(1) For the purposes of achieving its objects and subject to the provisions in
any other law contained, the Board may-
(a) (i) of its own accord investigate dumping, subsidised export or disruptive
competition in or to the Republic and, if authorised
thereto by an agreement, in
or to the common customs area of the South African Customs
Union;
(ii) of its own accord investigate the development of industries in the Republic
and, if authorised thereto by an agreement, in the
common customs area of the
Southern African Customs Union by the levying of customs and excise
duties;
(iii) by order of the
Minister investigate any other matter which affects or may affect the trade and
industry of the Republic and,
if authorised thereto by an agreement, the common
customs area of the Southern African Customs Union;
(b) report and make recommendations to the Minister in respect of any
investigation referred to in paragraph
(a).”
[16]
As to the particular
powers of the second appellant, s 4(2) of the BTT Act provides that:
“(2) Upon receipt of the report and recommendations referred to in
sub-section (1)(b), the Minister may -
(a) accept or reject such report and recommendations, or refer them back to the
Board for reconsideration; and
(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...”
[18]
[17]
The precise wording of section 4(2) of the BTT Act is significant. It confers
on the Trade Minister a particular and circumscribed
discretion. He may either
accept or reject the report and recommendations of the BTT in their entirety -
or he may refer the matter
back to BTT for reconsideration. The second
appellant has no power himself to modify the report or the terms of the
recommendations.
Dumping
investigations are by their nature highly
technical. They involve a conceptual framework and an appraisal of facts that
require expertise
of a specialised kind. It is for this reason that a
specialised agency, BTT, engages in an investigation and draws up a report and
recommendations.
[18]
The functions of the third appellant that are
here relevant are set out in s 55 and s 56 of the CE Act as
follows:
[19]
“55
General provisions regarding anti-dumping duties and countervailing
safeguard duties -
(1) The goods specified in Schedule No. 2 shall, upon entry for home
consumption, be liable, in addition to any other duty payable
in terms of the
provisions of this Act, to the appropriate anti-dumping ... duties provided for
in respect of such goods in that
Schedule at the time of such entry, if they are
imported from a supplier, or originate in a territory, specified in that
Schedule
in respect of those goods.
(2) (a) The imposition of any anti-dumping duty in the case of dumping as
defined in the Board on Tariffs and Trade Act, 1986 (Act
No 107 of 1986)... and
the rate at which or the circumstances in which such duty is imposed in respect
of any imported goods shall
be in accordance with any request by the Minister of
Trade and Industry and for Economic Co-ordination under the provisions of the
Board on Tariffs and Trade Act, 1986.
(b) Any such anti-dumping... duty may
be imposed in respect of the 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...
56
Imposition of anti-dumping duties -
(1) The Minister may from time to time by notice in the Gazette amend Schedule
No. 2 to impose an 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
sub-section(1)...”
It is clear from s 55(2) that the third appellant may impose an anti-dumping
duty only in accordance with a request from the second
appellant in terms of s
4(2) of the BTT Act.
[19]
The duties which BTT and the
second and third appellants have must be determined in this case with reference
to:
[19.1]
the nature of the powers conferred upon each of
them;
[19.2]
the sequence of decision-making among each
of them, and hence the relationship between the powers conferred on each of
them;
[19.3]
the effect of the exercise of the powers on the
respondents, upon TIMKEN, and upon the public interest in an effective
administrative
process;
[19.4]
an appraisal of the objects of the
relevant legislation and the kind of process that the legislation puts in
place;
[19.5]
the need to balance the public interest in decisions
being arrived at fairly against what may be a competing public interest in
permitting administrative powers to be effectively exercised.
This is why the
requirements of
audi
are contextual and relative.
[20]
The
respondents in argument before this court contend that BTT violated the
audi
principle and that there was no procedural fairness in the following
specific respects:
[20.1]
withholding of allegedly confidential
information.
[20.2]
non-disclosure of additional
information received from TIMKEN SA.
[20.3]
BTT’s visit to
TIMKEN SA’s plant in Benoni.
[20.4] c
onsultations and advice
from the Directorate of Business Economics Investigation.
[20.5]
TIMKEN SAs visit to BTT’s office.
[20.6] a
n allegation
of contradictory information supplied by the legal representatives of
BRENCO.
[20.7]
an allegation of altering invoices coupled with an
aspersion of dishonesty.
The respondents furthermore contended that there was
a reasonable apprehension of bias on the part of BTT.
[21]
Before
examining each of these specific matters in detail, I believe that it is
important to again have proper regard to the detailed
statutory framework for
the investigation of dumping and the investigative function and powers of BTT.
In this case it is significant
that this investigation extended over a fairly
lengthy period
commencing on the date of the receipt of TIMKEN SA’S
complaint in January 1992 and culminating in the submission of its detailed
report of its findings and decision on 8 October 1993. During this period, as
is clearly apparent from the useful chronology of
events which was handed up by
counsel for the appellants, extensive correspondence and exchanges of
information and responses occurred
between all interested parties including
BRENCO’S legal representatives. All this bears directly upon the question
of procedural
fairness on the part of BTT.
[22]
The procedures which
BTT followed in the anti-dumping investigation which it conducted in this matter
were in accordance with the
GUIDE which it published and to which I have
previously referred. The respondents concede that such procedures were, in the
main,
followed.
[23]
In terms of the GUIDE the following procedures
are adopted by BTT: an anti-dumping investigation by BTT may be
initiated
by way of a written application in a questionnaire prescribed by BTT;
such application must include evidence of dumping, material
injury or the threat
thereof to the industry concerned, and a causal link between the alleged dumping
concerned and the alleged material
injury; “Mere assertions,
unsubstantiated by the relevant evidence, will not be considered sufficient
reason for the initiation
of an investigation” (paragraph 14 of the
GUIDE); BTT considers the introduction of an anti-dumping duty whenever it
encounters
the existence of dumping in regard to exports, provided that:
[23.1]
such exports are the cause of material injury to an industry in
the Customs Union; or
[23.2]
the probability exists that
material injury may be caused to an industry in the Customs Union by such export
or the threat of such
export; or
[23.3]
such exports or the threat
of such exports materially retard or prevent the establishment and development
of an industry in the
Customs Union; and
[23.4]
such action is in the
national interest.
[24
In considering material injury or the threat
of material injury BTT takes into account:
[24.1]
actual and potential decline in output, sales, market share,
profits, return on capital, productivity, capacity utilisation, etc;
and
[24.2]
the actual and potential influence on cash
flow, stocks, employment opportunities, wages, growth, ability to attract
investment,
ability to obtain capital, etc.
[25]
Having established
the existence of material injury or the threat of material injury BTT is obliged
to determine whether and to
what extent the cause is dumping and not something
else. Consideration is given to:
[25.1] t
he volume of all relevant imports from all countries, existing
tariffs and rebate provisions,
[25.2]
the impact of
imports and their prices on the domestic market, and
[25.3]
factors
such as political influences; the state of the economy, labour matters;
boycotts; product quality and range, delivery periods;
the technology employed;
the utilisation of production factors; and the policies of the industry
concerning production, marketing
and finance.
[26]
In order to
determine national interest BTT takes into consideration, among other things,
the following:
[26.1]
the benefits of competition to the local industry, as measured
against the seriousness of the potential material injury to the
industry;
[26.2]
the effect that material injury to the
industry will have on its supplying and consuming industry;
[26.3]
the effect that any action may have on the growth and development of any other
industry;
[26.4]
the ability of the industry to adjust to changing
circumstances and the resulting time-span over which additional protection will
have to be provided;
[26.5]
the extent to which consumers benefit
from the low import prices and the extent to which these benefits are passed
on;
[26.6]
the influence on employment and job opportunities;
and
[26.7]
the influence on the balance of payments.
If there is
sufficient evidence of the alleged dumping and the alleged material injury or
the threat thereof and that the alleged
material injury or threat thereof is
being caused by the alleged dumping, BTT may decide to initiate a formal
investigation by publishing
a general notice in the Government
Gazette.
[27]
The mechanics of a BTT investigation, and the work
incidental to it, are performed by staff of BTT (as authorised by the BTT Act).
The staff is divided
into a number of directorates, including an
anti-dumping directorate.
The whole investigating process is described in
these terms in the first appellant’s answering affidavit and is not
disputed
by the respondents:
“4.8.3 The investigating process is conducted in various stages or
phases.
In
the first place
the so-called merit investigating phase during
which the information contained in a complaint or petition lodged is checked or
verified
so as to determine whether there is
prima facie
evidence of
dumping and material injury, whereupon the Board, may, if satisfied that there
are reasonable grounds for dumping and
damage, accept the complaint for formal
investigation and the Board’s decision is published in the Government
Gazette for general
notice and interested persons are requested to fill in
certain questionnaires
In
the second place
the so-called provisional investigating phase
during which importers and exporters are afforded the opportunity to react by
means
of an oral hearing or by means of representations in writing or both to
the complaint lodged, whereupon the information received
in consequence of such
opportunities is verified and, if reasonable grounds are found, a provisional
decision is made in terms of
which a provisional payment may be ordered in
accordance with the provisions of the Customs and Excise Act, 1964.
(c) In
the third place
the so-called final investigation during which all
parties are afforded an opportunity to render comments on a provisional report
of the Board and, if they so wish, to submit further evidence or information and
to do so by means of an oral hearing or by means
of re-presentations in writing
or both.
4.8.4 For purposes of evaluating the information collected in this process,
interested parties are afforded opportunities to react
on facts and information
which are relevant for purposes of a decision to be taken by the Board and which
are, in so far as it is
possible within the framework of the provisions of
section 17 of the Board on Tariffs and Trade Act, 1986, and in accordance with
international guidelines, made available to them."
When it has concluded its investigations, BTT makes
a report to the second appellant. This report may recommend to the second
appellant
that he request the third appellant to impose a particular
anti-dumping duty on the product in
question.
[20]
[28]
The
detailed legislative scheme and the procedure followed by BTT described above is
very relevant to the scope of the
audi
principle in the following way.
The
principal means by which BTT achieves its objects is by conducting
investigations
(s 4(1)(a) of the BTT Act). BTT has two functions: (i) to
investigate and (ii) to make recommendations to the Trade Minister (s 4(1)
of
the BTT Act). These two functions are general to the work done by BTT, and are
not specific to dumping investigations. To carry
out its functions, BTT may
conduct an enquiry and procure evidence for the purposes of such enquiry
(section 12). Investigating
officers may be appointed to procure specific
information. They are equipped with extensive powers of inspection, search and
even
interrogation (section 14).
[29]
Upon a proper interpretation
of the BTT Act and the wide powers conferred upon BTT, BTT has both an
investigative function and
a determinative function in deciding whether to
request the Commissioner of Customs and Excise to impose provisional
anti-dumping
duties and in making its final report and recommendations to the
second appellant. Whilst BTT has a duty to act fairly, it does
not follow that
it must discharge that duty precisely in the same respect in regard to the
different functions performed by it.
When BTT exercises its deliberative
function, interested parties have a right to know the substance of the case that
they must meet.
They are entitled to an opportunity to make representations.
In carrying out its investigative functions, BTT must not act vexatiously
or
oppressively towards those persons subject to investigation.
[30]
In
the context of enquiries in terms of sections 417 and 418 of the Companies Act
61 of 1973, investigatory proceedings, which
have been recognised to be
absolutely essential to achieve important policy objectives, are nevertheless
subject to the constraint
that the powers of investigation are not exercised in
a vexatious, oppressive or unfair manner (cf
Bernstein and Others v Bester
and Others NNO
[21]
). In
Leech and Others v Farber
NO
[22]
a similar conclusion was
reached. The court
held that fairness did not require that in an enquiry
there was a general right to information in the possession of the interrogator
(in that case a creditor).
By analogy, on the facts of this matter, when BTT
carried out its investigative functions, such as an on the spot verification
exercise,
the respondents had no right to be informed or to be present.
Furthermore, when BTT took steps to obtain information or was approached
and
given information, here too there was no requirement that the respondents must
be present. Nor is it required that every piece
of information yielded as a
result of the investigation had to be made available to the respondents.
Against this background and
applying the general principles that I have
enunciated I now turn to consider each of the respondents’ specific
complaints.
WITHHOLDING CONFIDENTIAL INFORMATION
[31]
The nature of the information which the respondents claim was withheld and to
which the respondents could not respond at the time
relate to the following:
[31.1]
TIMKEN SA’s exports;
[31.2]
the
domestic market sales of TIMKEN US in the United States;
[31.3]
the
domestic market price and cost build-up of sales by TIMKEN US;
[31.4]
issues relating to the alleged injury to TIMKEN SA and its causal link to the
alleged dumped imports;
[31.5]
details of TIMKEN SA’s
manufacturing process.
[32]
In the court
a quo
the appellants
offered two justifications for the withholding of the allegedly confidential
information. First, they relied on the
“international practice” as
contained in Article 6.3 of the Agreement of Implementation of Article VI of
GATT and Article
6.5 of the Uruguay Round Anti-Dumping Agreement. Second, they
relied on s 17 of the BTT Act.
[33]
The court
a quo
found
that because South Africa was not a signatory to either of these two
international agreements at the relevant time, they were
of no assistance to
BTT. I agree with the appellants’ submission that this finding is
incorrect. It is clear that BTT allowed
international principles to guide it in
conducting anti-dumping investigations. Those principles are reflected in the
GUIDE published
by BTT concerning its policies and procedure,
inter
alia
, in dumping investigations. The point is not that BTT was obliged as a
matter of law to comply with the two international agreements
in question but
that international practice is of some assistance in assessing the fairness of
the practices of BTT in conducting
anti-dumping investigations. The provisions
in the international anti-dumping agreements which relate to confidential
information
illustrate the constraints faced by an anti-dumping authority in the
fair and open conduct of anti-dumping investigations. Such
constraints are
inevitable in an investigation involving highly confidential technical
commercial information of parties who are
competitors.
[34]
The
papers reveal that when a particular party to an investigation claims that
portions of the information it supplies are confidential,
and BTT considers
that the information in question is indeed confidential, BTT does not supply
that information to the other party.
Non-confidential summaries of the
confidential information are, however, supplied to the other party, if it is at
all possible
to do so. This accords with international practice, which is
governed by the rules contained in article VI of GATT and the principles
set out
in the Agreement on the Implementation of Article VI of GATT (“the GATT
Anti-Dumping Code”) as elaborated in
the Uruguay Round Anti-Dumping
Agreement (“the Anti-Dumping Agreement”). Article 6 of the
Anti-Dumping Agreement
deals with evidence. Paragraph 6.4 provides that the
authorities must, whenever practicable, provide timely opportunities to all
interested parties to see all information that is relevant to the presentation
of their cases and that is used by the authorities
in anti-dumping
investigations, provided that it is not confidential as defined in article
6.5.paragraph 6.5 states:
“6.5 Any information which is by nature confidential, (for example,
because its disclosure would be of significant competitive
advantage to a
competitor or because its disclosure would have a significantly adverse effect
upon a person supplying the information
or upon a person from whom he acquired
the information) or which is provided on a confidential basis by parties to an
investigation
shall, upon good cause shown, be treated as such by the
authorities. Such information shall not be disclosed without specific
permission
of the party submitting it
[footnote - members are aware that in
the territory of certain Members disclosure pursuant to a narrowly-drawn
protective order may
be required.]
6.5.1 The authorities shall require interested parties providing confidential
information to furnish non-confidential summaries
thereof. These summaries
shall be in sufficient detail to permit a reasonable understanding of the
substance of the information
submitted in confidence. In exceptional
circumstances, such parties may indicate that such information is not
susceptible of summary.
In such exceptional circumstances, a statement of the
reasons why summarization is not possible must be
provided.
6.5.2 If the authorities find that a request for confidentiality is not
warranted and if the supplier of the information is either
unwilling to make the
information public or to authorize its disclosure in generalised summary form,
the authorities may disregard
such information unless it can be demonstrated to
their satisfaction from appropriate sources that the information is correct.
[footnote
-
Members agree that requests for confidentiality should not be
arbitrarily
rejected.]
”
[35]
These provisions make it plain, that confidential documents and internal
documents prepared by the investigating party are not
accessible to interested
parties. The disclosure of information which is likely to have a significant
adverse effect upon the supplier
or source of such information, or which would
be of significant advantage to a competitor, is treated as confidential.
Non-confidential
summaries of such documents are, other than in exceptional
circumstances, required to be furnished.
[36]
The need to respect
the integrity of confidential information is accepted and enforced by the
European Court of Justice (ECJ).
In
Timex Corporation v Council and
Commission of the European
Communities
[23]
the ECJ
stressed the importance of making all material non-confidential information
available to interested parties; that only non-confidential
information should
be thus accessible was treated as axiomatic. In
Al-Jubail Fertilizer Company
and Saudi Arabian Fertilizer Company v Council of the European
Communities
[24]
the court
emphasised the need for the Commission to respect the rights of the parties
concerned to procedural fairness in these terms:-
“... In performing their duty to provide information under Article
7(4)(b), the Community institutions must act with all due
diligence by seeking,
as the Court stated in its judgment of 20 March 1985 in Case 264/82
Timex v
Council and Commission
[1985] ECR 849
, to provide the undertakings
concerned, as far as is compatible with the obligation not to disclose business
secrets, with information
relevant to the defence of their interests, choosing,
if necessary on their own initiative, the appropriate means of providing such
information ...”
[37]
The requirements of the
audi
principle must be viewed in the light of public policy
considerations pertaining to the confidentiality of the information in question.
The public interest in maintaining the confidentiality of documents and
information provided by third parties to BTT means that
the principles of
fairness are not breached by the provision to the respondents of
non-confidential summaries of the confidential
information in question. In
Estate Dempers v Secretary for Inland
Revenue
[25]
Corbett JA indicated
that for the purposes of administering income tax legislation
“it is necessary ...... that the fullest information be available to the
Department of Inland Revenue; and that if such information
is to be obtained
there must be some guarantee as to secrecy.”
[38]
The courts of England have recognised as a clear principle that the
requirements of procedural fairness may be attenuated by the requirements
of the
administrative scheme of a statute (see for example):
In
re Pergamon Press
[26]
;
Norwich Pharmacal Co. And Others v Customs and Excise
Commissioners
[27]
(recognising
the public interest in maintaining the confidentiality of information received
in confidence);
Alfred Crompton Amusement Machines Ltd v Customs and Excise
Commissioners (NO.2)
[28]
(accepting the public interest in respecting the confidentiality of confidential
documents obtained from third parties).
[39]
In the
present case, only information which was submitted in confidence by TIMKEN SA
and which BTT considered to be of a confidential
nature was not supplied to the
applicants. Non-confidential summaries of such information were supplied to the
respondents except,
in the case of invoices of sales of the products in the USA
for 17 months during 1991 and 1992. BTT considered that these invoices
could
not be summarised in a non-confidential way, but was careful to satisfy itself
that they had not been falsified and were indeed
reliable.
[40]
The
respondents’ first complaint is prefaced with a statement that the
confidential information which was withheld from
them was relied upon by BTT.
These allegations are dealt with at length in BTT’s answering affidavit.
The following emerges
from a consideration of the answering affidavit:
[40.1]
the respondents received a copy of the
complaint;
[40.2]
the respondents were provided with
non-confidential summaries in respect of the confidential information contained
in a completed
questionnaire supplied by TIMKEN SA;
[40.3]
as to the
information that was withheld, in respect of which non-confidential summaries
were provided, BTT withheld this information
on the basis that TIMKEN SA
requested that it be treated as confidential and BTT considered that it was
indeed confidential information;
[40.4]
as to the specific
information that is alleged to have been withheld and allegedly relied upon by
BTT, BTT states that it did
not in fact rely on TIMKEN US’s cost build-up
figures;
[40.5]
as to the domestic market sales of TIMKEN US in the
United States of America and the domestic market price, in a non-confidential
letter of 21 January 1993, it was disclosed that there were class C and class D
bearings sold by TIMKEN US in the United States of
America. The invoices that
were made available to BTT contained information relating to the name and
address of the purchaser and
the volume and price per unit. These were
considered by BTT to be of a very confidential nature. In any event, the
respondents
were aware that the investigation concerned whether there was a
domestic market and what the price was in the United States of America
and
consequently the respondents could make representations in respect of whether
such a market existed in the United States of America
and the prices of bearings
in that market.
[40.6]
In a letter dated 16 February 1993 from
BRENCO’S attorneys to BTT information was requested from TIMKEN SA in
regard to:
“(a) Class C bearings sold in US domestic market to domestic end users
(excluding export sales) as a percentage of total sales
of class C bearings for
both 1991 and 1992;
(b) class D bearings sold in the
US domestic market (excluding export sales) as a percentage of total sales of
class D bearings for
both 1991 and 1992;
(c) the percentage of domestic sales
of class C and D bearings respectively that are represented by:
(i) AAR sales;
(ii) sales for use in
privately owned wagons;
(iii) sales of industrial bearings.
The letter further stated:
“We should like to point out that we are requesting the percentages and
not the actual figures or the customers and therefore
this information cannot be
considered confidential. Brenco is not interested in this area of business, but
this information is vital
for us to properly address Timkens allegations
that there is in fact a domestic market.”
TIMKEN SA
replied to the request in these terms in a letter it addressed to BTT dated 5
March 1993:
“In 1992 approximately 57% of the Class C and approximately 42% of the
Class D bearings sold in the USA were to domestic USA
customers. We do not have
a breakdown of sales to AAR railroads, privately owned wagons or industrial
sales.
We have obtained information that on the AAR railroads, at end 1992, there were
some 2978 wagons in service on Class C bearings and
58514 wagons on Class D
bearings - combined total - 61492 wagons on the bearings under
discussion.
Transnet current wagon fleet is in the order of 150 000 wagons of which
approximately 64000 are on plain bearings (not roller
bearing equipped) and
approximately 5600 wagons fitted with Class F bearings. This leaves
approximately 80400 wagons on Class C
and D bearings. The USA fleet on C&D
bearings is therefore 76% of Transnet fleet
size.”
BTT passed the contents of the reply onto
BRENCO’S attorneys. It is thus apparent that BTT supplied the information
that was
requested insofar as TIMKEN SA was able to furnish it to
BTT.
[41]
As to the issues relating to injury to TIMKEN SA and the
causal link between such injury and the alleged dumping, and TIMKEN SA’s
manufacturing process:
[41.1]
the essential aspects of injury were
revealed;
[41.2]
TIMKEN SA’s manufacturing
processes was not dealt with by BTT in reaching its conclusions, but the
essential features of
the injury to TIMKEN SA in respect of employment and the
threat of closure of its plant were revealed to the
respondents;
[41.3]
in relation to the injury suffered by TIMKEN,
disclosure was indeed made to the respondents;
[41.4]
as to the
causal link, BTT’s decision did not turn upon matters of confidential
information.
[42]
In my view upon careful analysis of the issues
that were relevant to BTT in making a recommendation, the information that was
made available to BRENCO as also the information which was known to BRENCO about
its own affairs in the United States of America
sufficed for the purpose of
BRENCO knowing the substance of the case that it had to meet. Such information
as was withheld was
confidential. TIMKEN SA claimed protection for this
confidential information. However non-confidential summaries of the information
were furnished. Judged against these considerations, fairness did not demand
that every shred of information provided to BTT should
be made available to the
respondents. Rather the general standard, as enunciated in our law and detailed
above, is of application.
An interested party must know the “gist”
or substance of the case that it has to meet (
Du
Preez
)
[29]
. That standard was
met. It is also not without significance that Brenco has not sought to
indicate what its answer is to BTT’
s finding that it was indeed guilty of
dumping.
NON-DISCLOSURE OF ADDITIONAL INFORMATION RECEIVED FROM TIMKEN
SA
[43]
When the record was filed pursuant to Rule 53,
it emerged that there was certain additional information which BTT had received
from TIMKEN SA which had not been disclosed to the respondents. The first item
of information was a letter dated 2 March 1993 from
TIMKEN SA to BTT. The
opening paragraph to the letter states as follows:
“We refer to the recent meeting at your offices during which you posed
cetain questions and requested various documents from
us. You also provided
photo copies of certain slides from the Webber Wentzel presentation to the Board
for any further comment we
may wish to make.”
The
letter continues to make various submissions to the Board.
[44]
In
my opinion the letter was not one which needed to be disclosed to Brenco. It
raises no new matter which Brenco had not previously
dealt with and was merely
in substance a reply by TIMKEN SA to BRENCO’s answer. Having now seen
the letter it is significant
that BRENCO has given no indication of what its
answer to it would have been had it been disclosed earlier (cf
S v Rudman and
Another; S v Mthwana
)
[30]
.
Furthermore, the process of allegations, answer, reply and rejoinder could well
have gone on without end.
[45]
The second piece of additional
information which was not disclosed to Brenco was a letter dated 21 July 1993
from TIMKEN SA to
BTT. BTT relied upon the confidential nature of the letter as
excusing its disclosure. In its answering affidavit BTT states that
the letter
was a response by TIMKEN SA to questions asked by BTT in its process of
verifying the information supplied to it by TIMKEN
SA and that BTT regarded the
information as being of a confidential nature. For the reasons set out above
concerning BTT’s
obligations in regard to confidential information, I
cannot find fault with this answer. In addition, what I have stated above
concerning
the failure of BRENCO to give any indication of what it might have
said in regard to the letter of 2 March 1993, apply equally to
this
letter.
BTT’S VISIT TO TIMKEN SA’S PLANT
[46]
It is common cause that members of BTT visited TIMKEN
SA’s plant in Benoni and used this opportunity to verify information
submitted by TIMKEN SA. It is also common cause that the respondents
were:-
[46.1]
unaware that such visit was due to take
place;
[46.2]
not present when such visit took
place;
[46.3]
never given the “information” received by
the Board at this visit;
[46.4]
never given an opportunity to test
the correctness and accuracy of the information so submitted by TIMKEN SA to
BTT.
[47]
The appellants, whilst not disputing that this visit
occurred, state that apart from verifying the information in question, no
new
or other information was obtained during the visit. As pointed out in the
appellant’s heads of argument, it was necessary
for BTT’s
investigator to visit the premises of the petitioner (in this case TIMKEN SA) in
the merit investigating
stage of its task in order to check the accuracy of the
information submitted by the petitioner so as to determine whether there
is
prima facie
evidence of dumping. In addition,
BTT’sinvestigator may need to visit the premises of other
parties to the
investigation in order to check the accuracy of the data
submitted by those parties. What is involved is a technical check that
the
facts and figures submitted by the party in question are accurate - there is no
assessment of the meaning or significance of
such facts and figures. These are
not occasions during which the veracity or substance of the petitioner’s
claims are judged
in the absence of other parties affected by such a decision.
They are simply occasions on which the actual data supplied by one
of the
parties are checked for accuracy. It is not the kind of exercise where it is
necessary or feasible to take all parties
along - or where to do so would serve
any purpose. This is particularly so where the visit is to a competitor’s
plant. The
relevant information, duly verified (i.e. checked for accuracy), is
in due course made available to all interested parties. Where
such information
is confidential, non-confidential summaries are supplied to the interested
parties.
This too accords with international
practice.
[31]
[48]
In
accordance with standard practice, BTT’s investigators visited Timken
SA’s plant in Benoni on 9 October 1992 in
order to check the accuracy of
the information submitted by Timken in its petition and in the questionnaire;
that information was
made available to the respondents. BTT’s answering
affidavit reveals that the investigators obtained no new information during
the
visit of 9 October 1992. Visits also took place to BRENCO’s
premises in the absence of TIMKEN SA’s representatives.
[49]
In
Nakajima All Precision Co Ltd v Council of the European
Communities,
[32]
the applicant
complained, among other things, that in its determination of injury, the
Commission there relied in particular on information
obtained during an
investigation carried out at the premises of the producers concerned. The ECJ
said of this:-
“In this connection, it should be recalled at the outset that, according
to established case-law, the rights of the defence
are respected if the
undertaking concerned has been afforded the opportunity during the
administrative procedure to make known its
views on the truth and relevance of
the facts and circumstances alleged and, if necessary, on the documents used
.....
It would appear in this case from the minutes of the meetings between Nakajima
and the Community institutions, as well as from the
correspondence between the
parties, that the applicant was involved at every stage of the proceedings and
was therefore in a position
to make its point of view known.
Furthermore, Nakajima had all the information which it required to defend itself
effectively and in good time ....”
The same can be said
of the respondents in the present matter.
[50]
I agree with the
appellants’ submission that the finding of the court
a quo
that
the visit to TIMKEN SA’s plant was in breach of the principles of natural
justice pays insufficient regard to the nature
and purpose of the visit in the
context of the investigation as a whole. MacArthur J erred when he understood
BTT’s explanation
of the verification visit as an invocation of the
“no-difference” approach rejected by
this court in
Zenzile,
[33]
whereas the
explanation sought only to place the visit in its proper context. I also agree
with the appellants’ submission
that the respondents’ approach,
accepted by MacArthur J, is an instance of inflexible formalism in the approach
to natural
justice, which is at odds with
Zenzile.
[34]
A much
“more context-sensitive and nuanced approach”, in the words of
counsel for the appellant, is demanded in assessing
what is required by natural
justice and the principles of fair
play.
[35]
[51]
There is
no requirement that BTT in the investigation of a matter must inform the parties
of every step that is to be taken in
the investigation and permit parties to be
present when the investigation is pursued by way of the verification exercise.
There
is no unfairness to the respondents in permitting the officials of BTT to
clarify information without notice to the respondents.
To hold otherwise would
not only unduly hamper the exercise of the investigative powers of BTT, but
would seek to transform an investigative
process into an adjudicative process
that is neither envisaged by the BTT Act, nor what the
audi
principle
requires.
[36]
CONSULTATIONS AND ADVICE
FROM THE DIRECTORATE OF BUSINESS ECONOMICS
INVESTIGATION
[52]
It is common cause that BTT requested
the Directorate of Business Economics Investigations (“BEI”) to
check the available
information and to advise it as regards what further
information would be required for verification purposes. Several consultations
were held with members of BEI who were supplied with certain documents and with
other files of background information. The respondents-
[52.1]
were not aware what consultations were held with members of BEI,
nor what documents and files were supplied to BEI;
[52.2]
were not invited to be present during such consultations;
[52.3]
were never informed of what transpired at such consultations;
[52.4]
were never given an opportunity of dealing with any information or advice
furnished by BEI to the Board and were never afforded
an opportunity to test the
correctness and accuracy of such advice and information.
[53]
BTT’s request to BEI to check available information and to advise it of
aspects of verification is a further instance of
BTT carrying out its
investigative functions. In the absence of some vexatious or oppressive
behaviour by BTT, and none is alleged,
I do not believe the
audi
rights
claimed by the respondents apply to the steps taken by BTT in this regard.
Furthermore, for the respondents to succeed
on this ground they would have to
make out a case that information was yielded in consequence of the consultations
held which altered
in a material way the substance of the case that the
respondents were required to meet. No such case has been made
out.
[54]
As appears from BTT’s answering affidavit, what was
sought from BEI was that it check information supplied by the parties.
BTT
never received or considered any information from BEI. Accordingly the
consultations with BEI brought about no unfairness
to the
respondents.
[55]
The court
a quo
accepted the
respondents’ contention that BTT’s investigating team, in
consulting the directorate of BEI without giving
notice of such consultation to
the respondents, breached the principles of natural justice. I do not agree.
In my view this again
is an instance of over-rigid formalism in the approach to
procedural fairness. There was nothing untoward in BTT’s investigating
team seeking from BEI expert assistance in relation to accounting practices in
order to perform its functions properly.
[56]
BTT’s answering
affidavit, apart from showing that a member of the BEI was actually present at a
meeting with the respondents’
legal representatives, places the BEI
consultations in context. When this context is taken into account, it is clear
that the consultations
between BTT’s investigating team and BEI did not
compromise the fairness of the investigation.
TIMKEN SA’S VISIT
TO BTT’s OFFICES
[57]
It is common cause that
representatives of TIMKEN SA visited BTT’s offices on a number of
occasions to discuss certain issues
with BTT. It is also common cause that the
respondents-
[57.1]
were unaware of the fact that such visits had
occurred;
[57.2]
were never invited to be present during
such visits;
[57.3]
have never been furnished with information
arising out of such visits.
[58]
I cannot agree with the court
a
quo’s
finding that it was irregular or unfair for TIMKEN SA’s
representative to have visited BTT’s offices and to have had
discussions
with BTT’s representatives in the absence of BRENCO’s
representatives. This finding pays insufficient regard
to the fact that visits
by one or more parties is a feature of any anti-dumping investigation. Indeed
in the present case, the respondents’
legal representatives also visited
the offices of BTT in the absence of TIMKEN’s representatives. In the
circumstances,
the respondents’ representatives must have been well aware
of the nature of such visits, and of the fact that any relevant
information
derived from such visits would be put to other interested
parties.
[59]
It is basic to BTT’s functions that it must
carry out investigations; which involve procuring information. BTT may do so
in
various ways, as the BTT Act indicates. Much depends upon the co-operation of
the parties - both the petitioner and the respondents.
That BTT’s offices
are visited by parties to discuss an ongoing investigation simply forms part of
the investigative process.
Such visits are not an occasion upon which any form
of determination or adjudication takes place which might require that all
interested
parties be present to make representations. The particular visit was
made at the initiative of TIMKEN SA. No information was obtained,
except for
the confidential information referred to above, which was withheld from the
respondents. In my view the visit to BTT’s
offices in the absence of the
respondents gives rise to no valid complaint by the
respondents.
CONTRADICTORY INFORMATION SUPPLIED BY BRENCO’S LEGAL
REPRESENTATIVES
[60]
In the BTT REPORT, the
following is stated:
“Problems were experienced with contradictory information supplied by
Brenco’s legal representatives. In Brenco’s
legal
representatives submission of 15/04/93 it was stated that the Board
could not use FAG’s tender price to Pakistan
as regards Class C bearings
‘as no sales were actually made at these prices’. In a later
submission Brenco’s legal
representatives, on request, submitted FAG's
invoices to the Pakistani Railroad which clearly indicated that the bearings
were sold
at the tendered price.”
The respondents’ complaint is that:
[60.1] t
his finding was considered by BTT to be
important;
[60.2]
the question of the alleged
contradictory evidence was never raised with the respondents or their
representative and appeared for
the first time in the REPORT;
[60.3]
neither the respondents nor their representatives were given an opportunity of
dealing with this allegedly “serious allegation”
or of responding to
what the respondents contend is “the implication of unreliability,
dishonesty and lack of credibility”.
[61]
The deponent to
BTT’s answering affidavit states that BTT never accused or intended to
accuse the respondents’ legal
representatives of unreliability or
dishonesty “and any such consideration was never in the Board’s
contemplation or
in any way affected its judgment” , I can find no good
reason to reject this statement. In the context of the type of investigation
being conducted by BTT, I do not believe that it was necessary for BTT, before
preparing its report, to have first put what it considered
to be contradictory
information supplied to it to the legal representatives of BRENCO. I am
accordingly of the view that there
is also no substance in this complaint. Nor
do I consider that there was any violation of the rules of natural
justice.
THE ALLEGATION OF ALTERING INVOICES
[62]
The BTT REPORT states:
“The Board noted that the invoice supplied by Brencos legal
representatives regarding exports to Pakistan was not an
exact copy of the
original invoice as certain changes had been made. The invoice originally
submitted to the Board was altered as
regards the addressee and the terms of the
contract. The Board accepted the first invoice submitted as a true copy of the
original.”
The respondents complaint is that:
[62.1]
the finding was considered by BTT to be
important;
[62.2]
the allegation that the invoice
originally submitted to BTT was “altered”, so the respondents’
contend implicitly,
suggests some act of “dishonesty” on the part of
the respondents or their representatives;
[62.3]
the question of the
alleged alteration was never raised with the respondents or their
representatives and appeared for the first
time in the BTT
REPORT;
[62.4]
neither the respondents nor their representatives
were given an opportunity of dealing with what is contended is a serious
allegation
or of responding to the claimed implication of
“dishonesty”.
[63]
The deponent to BTT’s answering
affidavit states that BTT did not intend to accuse BRENCO’s legal
representatives of
any dishonesty or to imply that they had acted dishonestly.
Again I have no reason to reject this statement. He further states
that the
respondents could obviously have dealt with the document if they so wished. I
find nothing unreasonable or unfair in this
contention. I accordingly believe
that this complaint is equally without substance and does not support the
respondents’
claim of unfairness.
REASONABLE APPREHENSION OF BIAS
ON THE PART OF BTT
[64]
The respondents rely upon the
following matters in support of their contention that there was a reasonable
apprehension of bias
on the part of BTT:
[64.1]
BTT’s visit to TIMKEN SA’s plant in Benoni without
informing the respondents of such visit or giving the respondents an
opportunity
to test the correctness and accuracy of the information submitted by TIMKEN SA
to BTT;
[64.2]
BTT’s request to the directorate of
BEI to check the available information and to advise it as regard what further
information
would be required for verification purposes.
[65]
I have
already dealt with the visit and the request. In my view it cannot be fairly
said that these matters give rise to any reasonable
apprehension of bias on the
part of BTT. The cases of
Katz v Peri-Urban Areas Health Board and
Others
[37]
and
Errington v
Minister of Health
[38]
to which
the respondents refer, deal with instances where an official engaged in a
deliberative process to determine a matter receives
representations from one
party when the other is not present to deal with the representations. These are
not cases, such as the
present one, where investigative powers are exercised.
Bias arises when a deliberative process is subverted by receiving information
and hearing one party to the deliberate exclusion of the other. This is not
such a case. Here the procedure of verification and
receipt of information
formed no part of the deliberative process by which BTT came to make its
recommendations; during that entire
lengthy process which extended over many
months the respondents made representations, at numerous meetings, in telephone
calls,
and in exchanges of correspondence, as well as at a full oral hearing
which accorded the respondents full rights of representation.
Throughout the
process the respondents knew the substance of the case that they were required
to meet.
[66]
The respondents in their heads of argument also refer
to two specific pieces of evidence as allegedly supporting their assertion
of a
reasonable apprehension of bias on the part of BTT. The first concerns a
member of BTT, Mr Heyns, who said at a seminar in
Durban that he knew of TIMKEN
SA as a local manufacturer and that there were “accusations” of
“unfair trade practices”
against FAG. The second concerns remarks
made by a Mr Olivier, an officer of BTT.
I did not understand counsel for
the respondents to press details of these two specific matters in his oral
argument before this
court in support of his argument concerning bias. He,
however, contended for an apprehension of bias in more general terms, based
on
the overall conduct of BTT in its approach to the matter. In any event, and
in the light of the explanation given by both Heyns
and Olivier, and viewed in
the context in which the remarks were made, I do not believe that the remarks
can reasonably be said to
give rise to an apprehension of bias on the part of
BTT. Nor do I believe that there is any substance in counsel for the
respondents’
argument to the effect that the overall conduct of BTT gives
rise to such an apprehension.
[67]
I now turn to consider the
specific complaints against the second and third appellants. The functions
complained of were carried
out in this case not by the ministers themselves but
delegated by them to their respective deputies. The attack on the validity
of
such delegation, previously made by the respondents, was abandoned in this
court.
[68]
It is common cause that the second appellant did
not:
[68.1] g
ive any advance indication to the respondents of the facts and
circumstances he proposed to take into account before requesting the
third
appellant to amend the schedule to the CE Act so as to impose the anti-dumping
duties in question;
[68.2]
give the respondents an
opportunity of seeing or testing the information which he had before
him;
[68.3]
afford the respondents a hearing before requesting the
third appellant to impose a final duty;
[68.4]
notify the
respondents that he had received the BTT REPORT and that he was considering
making a request to the third appellant arising
out of the report.
[69]
The second appellant admits that the respondents were not afforded a
hearing. He takes the view that it would
“appear to have been
senseless, unnecessary and superfluous to either refer the matter back to the
Board or to afford the applicants
an opportunity to be
heard”.
[70]
It is also common cause that the third
appellant did not:
[70.1]
give any advance indication to the respondents of the facts and
circumstances he proposed to take into account;
[70.2]
give the respondents an opportunity of seeing or testing the information which
he had before him;
[70.3]
afford the respondents a hearing before he
imposed a final anti-dumping duty;
[70.4]
notify the respondents
that he had received a request from the Trade Minister and was considering
imposing final anti-dumping duties
pursuant to such request.
The third
appellant’s stance in regard to these charges is identical to that of the
second appellant.
[71]
Section 4(2) of the BTT Act does not
contemplate and fairness does not require that the second appellant should
afford to persons
in the position of the respondents a further and independent
hearing before acting in terms of the subsection. If the second appellant
in
the light of policy factors, considers that the terms of the recommendation
should be amended, or that further investigation is
required, he has no option
but to refer the matter back to BTT. He has no power to reconsider the matter
or to effect such changes
himself. Any further consideration is to be
undertaken by BTT, the body which conducted the investigation, and not the
second
appellant. This underscores the fact that it is BTT, and only BTT,
which must entertain the representations of the parties affected
by its report
and recommendations. I agree with the appellants submission that there
would be no point in requiring the
second appellant to receive from the parties
affected representations in addition to those already made to BTT.
Neither s
4(2) of the BTT Act, nor s 56 read together with s 55(2) of the CE Act, nor
fairness, requires the third appellant to give
to parties affected by the
imposition of anti-dumping duties a further and independent hearing before
acting in terms of those provisions.
[72]
Even leaving aside the
provisions of the two Acts, I do not believe that in the present case, where
there was no procedural unfairness
in the detailed investigation by the body
solely entrusted to undertake such an investigation, the respondents are
nevertheless
entitled to a further separate and independent hearing before
either of the two ministers. In this regard the following remarks
in
Enichem
Anic Srl v Anti-Dumping
Authority
[39]
are instructive.
The case deals with the Australian Anti-Dumping Authority Act of 1988 in
relation to the importation of forklift
trucks into Australia from the United
Kingdom and the question of whether procedural fairness required that the
applicants were entitled
to put submissions to the Minister of State for Small
Business Construction and Customs who had imposed dumping duties on the forklift
trucks based upon recommendations of the Anti-Dumping Authority:
“The rules of procedural fairness did not require that every particular
submission made by a party to the inquiry by the Anti-Dumping
Authority should
be brought to the Minister’s attention. Procedural fairness was provided
by the inquiry of the Anti-Dumping
Authority and by the report of the
Anti-Dumping Authority to the Minister. Procedural fairness is ordinarily
complied with when
it appears that the Anti-Dumping Authority gave a fair
opportunity to interested persons to put submissions and when the Anti-Dumping
Authority reported thereon. The legislative purpose in providing the inquiry is
to enable the individual submissions of interested
parties to be considered.
Ministers of State would not have the time to give to the matter the detailed
consideration which the
Anti-Dumping Authority is able to do. It follows,
therefore, that in the ordinary case, provided the Anti-Dumping Authority gives
to interested parties the opportunity to put a case and then issues a report
thereon dealing with matters of substance which were
raised, procedural fairness
is provided. The Minister himself, if he wishes to look at individual
submissions, would be entitled
to do so but there is no lack of natural justice
if he fails to do so. What is procedurally fair must be determined in the light
of the whole of the
circumstances...”
COSTS
[73]
The respondents’ counsel asked for a special costs order in terms of Rule
8(6) of this court, to the effect that in the event
of the appeal suceeding, the
appellants should be deprived of certain costs relating to the record filed.
This was because of a
request made in terms of Rule 8(8)(a) by the
respondents’ attorneys to the appellants’ attorneys in a letter
dated 16
September 1999. The request was that the appellants consent to the
submission of an agreed statement of the issues of unlawful
delegation,
breaches of natural justice on the part of the second appellant, the third
appellant and BTT, and to agree to a statement
of facts. In my view the
appellants were justified in refusing to accede to the request. It was
necessary for this court to have
the full record of the proceedings before the
court
a quo
in order to properly assess the merits of the various
contentions, particularly in regard to the conduct of BTT of which the
respondents
complained. I accordingly see no good reason to make any special
costs order and why costs should not follow the result.
[74]
It
is ordered:
[74.1]
the appeal is upheld with costs including costs attendant upon
the employment of two counsel by the appellants.
[74.2]
the order of the court
a quo
is set aside and the
following order substituted in place thereof:
“The application is dismissed with costs including costs
attendant upon the employment of two counsel by the
respondents.”
___________________
R H ZULMAN JA
MARAIS JA )
STREICHER JA ) CONCUR
NAVSA
JA )
MPATI JA )
[1]
See Government Notice No 754 of
1992 published in Government Gazette 14226 of 21 August 1992.
[2]
See s 57 A and Government Notice
3281 published in Government Gazette 14438 of 4 December 1992.
[3]
See Government Notice 581 published
in Government Gazette 14717 of 2 April 1993 and Government Notice R980 published
in Government
Gazette 14854 of 4 June 1993 respectively.
[4]
See Government Notice 2279
published in Government Gazette 15291 of 3 December 1993 p 9.
[5]
By s 1(b) of Act No. 60 of 1992
[6]
1974(3) SA 633 (A) at 658 B-H.
[7]
1991(1) SA 21(A) at 40 B-E.
[8]
1997(3) SA 204 (A) at 231H-232E and
at 232 G-233B.
[9]
[1993] 3 All ER 92(HL)
at 106
d-h.
[10]
[1970] 3 All ER 535
(CA) at 539
a-f and 541 - 542 d respectively and
[1971] 1 Ch 388
(CA) at 399 C-D and 403
E-F.
[11]
Doody
at 106 d-h.
[12]
1988(4) SA 645 (A) at
660D-662I.
[13]
1991(4) SA (A) 1 at 10 G-I and
16E-17A.
[14]
Pages 178/8 and 543.
[15]
Act 108 of 1996.
[16]
Supra at 403 D-G, citing
Russel v Duke of Norfolk
[1949] 1 All ER 109
(CA) at 118;
Wiseman v
Borneman
[1971] A.C. 297
311, 314, 320;
See also
Du Preez and Another v Truth and Reconciliation Commission
(
Supra) 232D - 233E.
[17]
Supra at 399 B-F. See also
Leech and Others v Farber NO and Others
2000(2) SA 444(W) at 451 E -
452H.
[18]
Section 1 defines Αthe
Minister≅ to mean the Minister of Trade and Industry and for Economic
Co-ordination.
[19]
Sections 55 and 56 of the CE Act
as they read at the time of the institution of these proceedings.
[20]
Section 4(1)(b) of the BTT
Act.
[21]
1996(2) SA 751 (CC) at 784
F-I.
[22]
Supra at 451E-452H. See also
Gardener v East London Transitional Local Council and Others
1996(3) SA
99 (E) 116 E-G.
[23]
(Case 264/82)
[1985] ECR 849
(ECJ) at para 25.
[24]
Case C49/88 at I - 3181 at
3188.
[25]
1977(3) SA 410(A) at 420
B-C.
[26]
Supra at 399 H- 400 A
404D-G.
[27]
[1973] UKHL 6
;
[1974] AC 133
at 181H-182A;
188E-F.
[28]
[1974] AC 405
at 433D-434H.
[29]
Supra at 232 C-D.
[30]
1992(1) SA 343(A) at 391
H-J.
[31]
Significantly, Article 6.5 of
the Anti-dumping Code (and Article 6.5.2 of the Uruguay Round
Anti-dumpingAgreement) contemplates verification
visits in other countries.
Participation of all parties in such visits would be unwieldy, exorbitant and
indeed, unfeasible. This
illustrates that fairness, in the context of an
anti-dumping investigation, does not require that all parties are physically
present
whenever there is contact with one particular party or any consultant in
the process. In the present case, BTT did not visit the
premises of BRENCO in
the USA because the latter would grant access only if BTT undertook to base its
investigation upon a particular
definition of dumping, which BTT was not
prepared to do.
[32]
c-69/89
[1991] ECR 1-
069 at pp
2197 - 2198 paras 108-110.
[33]
Supra at 37C-F.
[34]
Supra at 40B-E.
[35]
Supra at 231 H- 232E.
[36]
Supra at 231 H- 232E.
[37]
1950(1) SA 306 (W) at
308-309.
[38]
[1935] 1 KB 249.
[39]
(Federal Court, 9 April 1992, pp
17-18) Quoted with approval in
Hyster Australia (Pty) Ltd and Another v
Anti-Dumping Authority and Others
,
(1993) 112 ALR 582
at 597/8.
See also Aronson and Dyer -
Judicial Review and Administrative Action
(LBC Information Services 1996) 521 - 524.