THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 159/2024, 168/2024 and 169/2024

In the matter between:
INTERNATIONAL TRADE
ADMINISTRATION COMMISSION FIRST APPELLANT

MINISTER OF TRADE, INDUSTRY
AND COMPETITION SECOND APPELLANT

SOUTH AFRICAN POULTRY ASSOCIATION THIRD APPELLANT

and

ASSOCIATION OF MEAT IMPORTERS
AND EXPORTERS FIRST RESPONDENT

MINISTER OF FINANCE SECOND RESPONDENT

SOUTH AFRICAN REVENUE SERVICE THIRD RESPONDENT

Neutral citation: International Trade Administration Commission and Others v
Association of Meat Importers and Exporters and Others
(159/2024, 168/ 2024 and 169/ 2024) [2025] ZASCA 173 (18
November 2025)

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Coram: DAMBUZA, MAKGOKA, MEYER and BAARTMAN JJA and
HENNEY AJA
Heard: 19 August 2025
Delivered: 18 November 2025
Summary: Revenue – Customs and Excise Act 91 0f 1964 (the Customs Act) – Anti-
dumping duty – Schedule 2 to the Customs Act – decisions of International Trade
Administration Commission (ITAC) to initiate sunset review and to recommend that
anti-dumping duties on bone -in chicken be maintained – whether decision of the
Minister of Trade, Industry and Competition to accept ITAC’s recommendation and to
request Minister of Finance to give effect to ITAC’s recommendation should be
reviewed and set aside – whether the Deputy Minister of Finance empowered to
accept the recommendation of the Minister of Trade, Industry and Competition and to
amend Schedule 2 to the Customs Act – whether that decision should be reviewed
and set aside.

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ORDER


On appeal from: Gauteng Division of the High Court, Pretoria (Retief J sitting as court
of first instance):
1 The first appellant’s appeal is upheld with costs, including those of two counsel
where so employed.
2 The second appellant’s appeal is upheld with costs, including those of two
counsel where so employed.
3 The third appellant’s appeal is upheld with costs, including those of two counsel
where so employed.
4 The order of the high court is set aside and replaced with the following:
‘The application is dismissed with costs, including those of two counsel where
so employed.’
5 The cross-appeal is dismissed with costs, including those of two counsel where
so employed.


JUDGMENT


Meyer JA (Dambuza, Makgoka and Baartman JJA and Henney AJA concurring)

[1] These three appeals and cross-appeal concern the imposition of anti-dumping
duties that the second respondent, the Minister of Finance, imposed on bone -in
chicken portions1 originating in or imported from the Netherlands, Germany and the
United Kingdom. This the finance minister did at the request of the second appellant,
the Minister of Trade, Industry and Competition (the Minister of Trade), who, in turn ,
accepted the recommendation of the first app ellant, the International Trade
Administration Commission ( ITAC), which body is responsible to investigate and
evaluate applications about alleged dumping or subsidi sed exports in or into South

1 These are frozen meat of fowls of the species gallus domesticus cut in pieces with bone in.

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Africa or the Common Customs Area.2 In international trade law, ‘dumping’ refers to
‘the introduction of goods into the commerce of a country or its common customs area
at an export price less than the normal value of those goods’.3

[2] The members of the third appellant, South African Poultry Association (SAPA),
are local producers of poultry, who compete with the dumped products. SAPA initiated
the process that led to the imposition of anti-dumping duties. The members of the first
respondent, the Association of Meat Importers and Exporters (AMIE ), are importers
and exporters of such poultry products . AMIE resisted the imposition of the anti -
dumping duties.

[3] Aggrieved by the imposition of such duti es, AMIE launched an applic ation in
the Gauteng Division of the High Court, Pretoria (the high court). Therein it sought the
review and setting aside of : (a) ITAC’s decision to initiate the sunset review
investigation; (b) ITAC’s final determination to recommend to the Minister of Trade that
anti-dumping duties be maintained on the relevant products for a further period of five
years; (c) the decision of the Minister of Trade to approve ITAC’s recommendation
and to request the Minister of Finance to amend Schedule 2 to the Customs and
Excise Act 91 of 1964 (the Customs Act) to give effect to ITAC’s recommendation; and
(d) the decision of the Minister of Finance to publish the amendment to Schedule 2 of
the Customs Act.

[4] In a judgment handed down on 12 October 2023, the high court set aside the
decision of the Minister of Finance to approve the recommendation of the Minister of
Trade and remitted the decision to the Minister of Finance to make a fresh decision
within 12 months. It ordered that the ministerial amendment of Schedule 2 to the
Customs Act shall remain in force and effect until such time as the Minister of Finance
has made a final decision. The judgment made it clear that ITAC’s recommendation

has made a final decision. The judgment made it clear that ITAC’s recommendation
and the decision of the Minister of Trade stand. With leave of the high court, SAPA
appeals against that order and AMIE cross -appeals against that part of the order

2 In terms of s 1 of the Customs and Excise Act 91 of 1994 the ‘”common customs area” means the
combined area of the Republic and territories with the governments of which customs union agreements
have been concluded under section 51’.
3 International Trade Administration Commission v SCAW South Africa (Pty) Ltd [2010] ZACC 6; 2012
(4) SA 618 (CC); 2010 (5) BCLR 457 (CC); 72 SATC 135 para 1.

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remitting the decision to the Minister of Finance , for the ministerial amendment of
Schedule 2 to the Customs Act to remain in force pending such decision, and not
granting the relief sought against ITAC and the Minister of Trade.

[5] In South Africa, dumping is regulated by an interlocking suite of legislation. The
legislation includes the International Trade Administration Act 71 of 2002 (the ITA Act),
the Anti -Dumping Regulations published under GN 3197 in Government Gazette
25684 of 14 November 2003 (the Anti-Dumping Regulations), the Board on Tariffs and
Trade Act 107 of 1986 (the BTT Act), and the Customs Act. At an international level,
South Africa is party to the agreement establishing the World Trade Organisation
(WTO) and the WTO Agreements, including the General Agreement on Tariffs and
Trade, 1994 and the WTO Agreement on Implementation of Article VI of the General
Agreement on Tariffs and Trade, 1 994 (the Anti -Dumping Agreement). While the
passing of the ITA Act and the promulgation of the Anti -Dumping Regulations were
aimed at giving effect to the WTO agreements, this Court has emphasised that ‘[t]he
text to be interpreted … remains the South African legislation and its construction must
be in conformity with s 233 of the Constitution’.4

[6] Section 26(1)(c)(i) of the ITA Act allows application to ITAC for the amendment
of customs duties with regard to anti-dumping duties. This provision contemplates the
imposition of original anti -dumping duties a nd the amendment of those duties. The
effect of s 64(2) of the ITA Act, read with item 2(1) of Schedule 2 to the ITA Act, is that
applications in respect of anti-dumping duties are currently regulated by s 4 of the BTT
Act as if it had not been repealed. In terms of s 4(2) of the BTT Act, upon receipt of a
report or recomme ndation from the then Board on Tariffs and Trade ( the BTT)
regarding an anti-dumping duty, the Minister of Trade may ‘accept or reject such report

regarding an anti-dumping duty, the Minister of Trade may ‘accept or reject such report
and recommendation, or refer them back to the BTT [now ITAC] for reconsideration’.
If the Minister of Trade accepts the report and recommendations, he may request the
Minister of Finance to amend the relevant Schedule to the Customs Act. Anti-dumping
duties are contained in Schedule 2 to the Customs Act. Section 56(1) read with s

4 Progress Office Machines CC v South African Revenue Service and Others [2007] ZASCA 118; [2007]
4 All SA 1358; 2008 (2) SA 13 (SCA); 69 SATC 231 para 6. Section 233 of the Constitution reads:
‘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.’

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55(2)(a) of the Customs Act empowers the Minister of Finance , by notice in the
Government Gazette and in accordance with a request by the Minister of Trade , to
amend Schedule 2 to the Customs Act so as to impose an anti-dumping duty. Section
56(2) of the Customs Act, in turn, empowers the Minister of Finance, by notice in the
Government Gazette (the Gazette) and in accordance with a request from the Minister
of Trade, to withdraw, reduce or otherwise amend an anti-dumping duty.

[7] Part C of the Anti -Dumping Regulations deals with the procedures for the
investigation of anti -dumping duties. Part D deals with the reviews of anti -dumping
duties, including sunset reviews. An anti-dumping duty will remain in effect for a period
not exceeding five years from the imposition or the last review thereof.5 However, if a
sunset review is initiated prior to the lapse of an anti -dumping duty, that duty shall
remain in force until the sunset review has been finalised.6

[8] ITAC is required to publish a notice of imminent lapsing of the duty in the
Gazette approximately six months prior to the lapse thereof, inviting interested parties
to request a sunset review.7 The Southern African Customs Union (the SACU) industry
is then required to indicate whether it intends to request a sun set review.8 If ITAC
decides to initiate a sunset review pursuant to an application, it shall publish an
initiation notice thereof in the Gazette prior to the lapse of the relevant duties.9 A sunset
review shall consists of a single investigation phase when ITAC may verify such
information as it considers necessary. 10 ITAC is required to inform interested parties
of the essential facts to be considered in its final determination and to allow them to
comment thereon.11 Pursuant to a sunset review, ITAC may make a recommendation
that ‘may result in the withdrawal, amendment or reconfirmation of the original anti -
dumping duty’.

[9] Pursuant to ITAC’s investigation of an application brought by SAPA in 2013,

[9] Pursuant to ITAC’s investigation of an application brought by SAPA in 2013,
anti-dumping duties were imposed on bone -in chicken portions originating in or

5 Regulation 53.1.
6 Regulation 53.2.
7 Regulation 54.
8 Regulation 57.1.
9 Regulation 54.5.
10 Regulation 56.
11 Regulation 43.

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imported from the Netherlands, Germany and the United Kingdom by the publication
of Government Notice R126 on 27 February 2015. The Notice amended Schedule 2
to the Customs Act to provide for anti-dumping duties for ‘[f]rozen meat of fowls of the
species Gallus Domesticus, cut in pieces with bone in’ at the following rates: (a) 31.3%
for specified German producers; (b) 73.33% for all other producers or exporters from
Germany; (c) 3.86% for Plukon in the Netherlands; (d) 22.81% for all other producers
or exporters from the Netherlands; (e) 12.07% for Moy Park and Amber Foods in the
United Kingdom; and (f) 30.99% for all other producers or exporters from the United
Kingdom. The duties referred to in (a), (c) and (e) are known as ‘company -specific
duties’ and those referred to in (b), (d) and (f) are known as ‘residual duties’.

[10] SAPA applied for a sunset review of the original anti-dumping duties on
2 October 2019. ITAC liaised with SAPA to ensure that all required information had
been submitted in the correct format and that all deficiencies were remedied. Following
this process, ITAC determined that the application wa s properly documented and
notified SAPA of this on 21 February 2020. After considering SAPA’s application and
other documents submitted by it, ITAC initiated the sunset review by publication of
Notice 115 in Government Gazette 43044 on 24 February 2020 (the initiation notice).
The initiation notice recorded that ITAC had found that there was prima facie proof
that the expiry of the original anti-dumping duties would likely lead to a continuation of
dumping and the recurrence of material injury. On 26 February 2020, ITAC addressed
a letter to interested parties , including AMIE, notifying them of the initiation of the
sunset review and attaching the non -confidential version of SAPA’s sunset -review
application and the importers’ and exporters’ questionnaires.

[11] On 28 April 2021, ITAC published an essential facts letter (the essential facts

[11] On 28 April 2021, ITAC published an essential facts letter (the essential facts
letter). This, after verifying the information submitted by SAPA and the participating
importers and exporters , and after considering the submissions of all interested
parties, including AMIE. ITAC indicated that it was considering determining anti-
dumping duties on a per cut basis. In other words, rather than determining whether or
not to retain the anti -dumping duties on bone -in chicken portions at the 7 -digit tariff
sub-heading (0207.14.9), ITAC was considering recommending new anti-dumping
duties for each 8 -digit sub -heading (for example , 0207.14.93 for leg quarters and
0207.14.95 for wings). Interested parties were given 14 days, until 12 May 2021, to

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comment on the essential facts letter. SAPA responded to the essential facts letter on
12 May 2021 . It also submitted a revised response to ITAC on 20 May 2021, which
ITAC refused to consider since it was received af ter the deadline. After ITAC agreed
to its request to do so, SAPA made oral representations to it on 8 June 2021.

[12] ITAC made a final determination to recommend that the anti -dumping duties,
for the most part, be maintained. ITAC’s report was finalised on 15 June 2021 and was
submitted to the Minister of Trade on that date. The Minister of Trade approved ITAC’s
recommendation and requested the Deputy Minister of Finance to amend the relevant
Schedule to the Customs Act in order to give effect to that recommendation. The
amended anti -dumping duties for frozen meat of fowls of the species Gallus
Domesticus ‘cut in pieces with bone in’ with tariff heading 0207.14.9 were in due
course published in Notice R75 2 of 23 August 2021 in terms of s 56 of the Customs
Act by the Deputy Minister of Finance. These amended anti-dumping duties were: (a)
73.33% for Germany; (b) 22.81% for the Netherlands, excluding that produced by
Plukon; and (c) 30.99% for the United Kingdom, excluding that produced by Moy Park,
2SFG, and Amber Foods.

[13] In its amended notice of motion, AMIE sought the revie w and setting aside of
ITAC’s initiation of the sunset review. AMIE continues to seek this relief in its notice to
cross-appeal. It is well-established that an administrative act has legal consequences
and must be treated as valid until it is set aside. In Oudekraal Estates (Pty) Ltd v City
of Cape Town and Others,12 this Court held:
‘Forsyth points out that while a void administrative act is not an act in law, it is, and remains,
an act in fact, and its mere factual existence may provide the foundation for the legal validity
of later decisions or acts. In other words “…an invalid administrative act may, notwithstanding

its non-existence [in law], serve as the basis for another perfectly valid decision. Its factual
existence, rather than its invalidity, is the cause of the subsequent act , but that act is valid
since the legal existence of the first act is not a precondition for the second.”
. . . .

12 Oudekraal Estates (Pty) Ltd v City of Cape Town and Others 2004 (6) SA 222 (SCA); [2004] 3 All SA
1 (SCA).

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If the validity of consequent acts is dependent on no more than the factual existence of the
initial act then the consequent act will have legal effect for so long as the initial act is not set
aside by a competent court.’13

[14] ITAC, in making its recommendation , and the ministers in acting upon that
recommendation, were authori sed to do so by the fact of the initiation of the sunset
review. In its amended notice of motion , AMIE belatedly seeks condonation for its
failure to comply with the 180-day rule in s 7(1)(b) of the Promotion of Administrative
Justice Act 3 of 2000 (PAJA), which provides that any proceedings for judicial review
must be instituted without unreasonable delay and not later than 180 days . ITAC
initiated the sunset review on 24 February 2000 . AMIE’s original notice of motion did
not seek to review ITAC’s decision to initiate the sunset review. Its amended notice of
motion in which such relief is sought was filed together with a supplementary founding
affidavit on 20 June 2022. It follows that 28 months elapsed after the initiation decision
was made and before AMIE applied for the review and setting aside of the initiation
decision. AMIE was informed of the initiation of the sunset review on 26 February
2020. ITAC furnished the reasons to AMIE, and others, at the same time that it
communicated the initiation decision. The reasons were contained in the initiation
notice.

[15] In its amended notice of motion that was filed on 20 June 2022, AMIE did not
seek condonation for its failure to comply with the 180 -day period in PAJA. The first
occasion on which AMIE sought such condonation was in its supplementary affidavit
on 26 August 2022. This was also when AMIE amended its notice of motion to seek
condonation. However, it failed to explain why it sought to challenge the initiation
decision in June 2022 but did not seek condonation at the same time. In other words,
AMIE has not explained why it only sought condonation for its late challenge in August

AMIE has not explained why it only sought condonation for its late challenge in August
2022.

[16] The basis upon which AMIE seeks condonation is that it alleges that the
initiation notice was ‘misleading’. According to AMIE, it stated that ITAC had found that

13 Ibid paras 29 and 31. Also see Camps Bay Ratepayers’ and Residents’ Association and Another v
Harrison and Another [2010] ZACC 19; 2011 (2) BCLR 121 (CC) 2011 (4) SA 42 (CC) para 62
(Harrison).

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SAPA’s sunset-review application satisfied the requirements of Regulations 25 and 26
and that it complied with s 26 of the ITA Act. AMIE says that this was misleading
because ITAC’s answering affidavit contends that it was not required to verify SAPA’s
information. However, ITAC’s initiation notice made no mention of Regulations 25 and
26 and did not state that the requirements of these regulations had been complied
with. It stated that ITAC had found, based on information submitted by SA PA, that
there was prima facie proof indicating that the expiry of the anti-dumping duties would
likely lead to a continuation of dumping and a recurrence of material injury.
Furthermore, AMIE was advised in April 2020 that SAPA’s information had not been
verified before initiation. In its submissions to ITAC dated 4 May 2020 , AMIE noted
that ‘[a]s of 28 April 2020 (2 months after initiation) , ITAC had still not completed the
verification of the applicant [SAPA]’ and ‘[i]t is not disputed that ITAC have not verified
the application, and this alone should stop the matter proceeding’. AMIE is, therefore,
erroneous in saying that ITAC’s initiation notice in the Gazette was misleading. AMIE
has thus failed to proffer a n acceptable explanation for its delay in challenging the
initiation decision within the 180 -day period prescribed by PAJA , let alone an
explanation that covers the entire 28-month period of the delay.14 Furthermore, AMIE
proffered no explanation for its delay in seeking condonation.15

[17] Apart from these insurmountable procedural hurdles , AMIE’s contention that
ITAC failed to comply with Regulations 25 and 26 before its initiation of the sunset
review, is unmeritorious. In essence, AMIE’s contention is that ITAC was obliged to
conduct a process of verification before it initiated the sunset review. This is grounded
in Regulation 25, which provides ‘[ITAC] shall satisfy itself of the accuracy and

in Regulation 25, which provides ‘[ITAC] shall satisfy itself of the accuracy and
adequacy of the information provided in the application’. But, these regulations do not
apply to a sunset review . There is a difference between an original investigation and
its initiation on the one hand, and a sunset review and its initiation, on the other. In an
original investigation, it must be demonstrated that dumped imports are causing or

14 See, for example, Camps Bay Ratepayers’ and Residents’ Association v Harrison [2010] ZASCA 3;
[2010] 2 All SA 519 (SCA) para 54, where this Court held that ‘the party seeking it [an extension of the
180-day period] must furnish a full and reasonable explanation for the delay which covers the entire
period thereof’.
15 In Dengetenge Holdings (Pty) Ltd v Southern Sphere Mining and Development Company Ltd and
Others [2013] ZASCA 5; [2013] 2 All SA 251 (SCA) para 13, this Court said:
‘An appellant should, whenever it realises that it has not complied with a rule of court, apply for
condonation without delay (Commissioner for Inland Revenue v Burger 1956 (4) SA 446 (A) at 449 G-
H).’

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threatening to cause material injury to the domestic industry. This is very different from
a sunset review, where it must be demonstrated that the removal of the anti-dumping
duty will likely lead to a continuation or a recurrence of dumping and injury. Moreover,
the Anti-Dumping Regulations do not impose any specific methodology that ITAC must
follow in a sunset review ; in contrast to the detailed prescribed procedure (including
the pre-initiation procedure) that applies to an original investigation.

[18] The Anti -Dumping Regulations deal with these two procedures in different
Parts. Part C Sub -part II is headed ‘pre -initiation procedure’. That sub -part includes
regulations 25 and 26, which apply to original investigations. Part D Sub -part IV is
headed ‘sunset reviews’. That sub -part includes regulation 54, which is headed
‘Initiation of sunset review’. It makes no mention of the verification of information prior
to the initiation of a sunset review. In terms of regulation 54.4, all that is required to
initiate a sunset review is that there must be ‘a proper application’ containing ‘the
necessary information’ to establish a prima facie case that the removal of the anti-
dumping duty w ould likely lead to the continuation or a recurrence of injurious
dumping. It makes no mention of verification.

[19] Once a sunset review is initiated , the investigation commences. Regulation
56.1 provides that a sunset review consists of a single investigation phase and
regulation 56.2 adds that ITAC ‘may verify such information as it deems necessary to
confirm the accuracy and the adequacy of any information submitted by any interested
party’. Regulation 56.2 thus confers a broad discretion on ITAC to verify information
of ‘any interested party’ (which is defined as including producers in the SACU as well
as trade or business associat ions whose members are SACU producers) as part of
the sunset-review investigation.

the sunset-review investigation.

[20] The Anti-Dumping Regulations, therefore, make it plain that ITAC was entitled
to verify the information contained in SAPA’s sunset -review application after the
initiation of the sunset review. ITAC was not required to do so before it initiated the
sunset review. The less onerous regime for the initiation of a sunset review is
consistent with the approach adopted in the WTO Anti-Dumping Agreement, which
indicates that the standard for the initiation of a sunset review is much lower than the
standard for the initiation of an original ant-dumping application.

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[21] Article 11.3 of the Anti -Dumping Agreem ent deals with sunset reviews. It
provides that an anti -dumping duty shall be terminated not later than five years after
its imposition ‘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 . . . that the expiry of the duty would be likely to lead to
continuation or recurrence of dumping and injury’. In contrast, Article 5.3, which deals
with the initiation of an original anti-dumping investigation, provides that ‘the authorities
shall examine the accuracy and adequacy of the evidence provided in the application
to determine whether there is sufficient evidence to justify the initiation of an
investigation’.

[22] The Panel of the WTO has interpreted the standard required for the initiation of
a sunset review (which they refer to as an expiry review) as follows:16
‘The absence of any cross-reference in Article 11.3 to Article 5.3 must be understood to imply
that the standard for the initiation of an expiry review is different from the standard required
for the initiation of an original investigation, and that the standard in Article 5.3 of the Anti -
Dumping Agreement does not apply to an expiry review. We also agree that it follows from a
plain reading of the text that the appropriate standard against which to determine whether an
expiry review has been properly initiated under Article 11.3 of the Anti-Dumping Agreement is
whether the complainant has provided sufficient evidence that dumping and injury are likely to
recur in the absence of an ti-dumping measures to warrant initiation. The request is not
required to demonstrate, as a certainty, that if the measures were to lapse, dumping and injury
would be likely to recur or continue.’

[23] AMIE’s contention that it was a jurisdictional requirement in terms of
Regulations 25 and 26 that ITAC had to verify the in formation contained in SAPA’s

Regulations 25 and 26 that ITAC had to verify the in formation contained in SAPA’s
sunset-review application before the initiation of the sunset-review, therefore, is wrong.
For all these reasons, AMIE’s challenge to the initiation of the sunset review falls to be
dismissed.


16 Panel Report, European Union – Cost Adjustment Methodologies and Certain Anti -Dumping
Measures on Imports from Russia – (Second complaint). WT/D S494/R, adopted 24 July 2020 , para
7.333; and see paras 7.325 to 7.332.

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[24] AMIE’s ground of review in respect of ITAC’s final determination is that the
sunset review was procedurally unfair and vitiated by bias. Its argument of procedural
unfairness and bi as is based on the following: (a) the essential facts letter
contemplated that the anti-dumping duties would be imposed on the 8-digit tariff level;
(b) ITAC allowed SAPA an opportunity to make oral representations , among others,
on its submission that the duties should rather be imposed on the 7-digit tariff level;
(c) ITAC accepted SAPA’s submission; (d) AMIE was not given an opportunity to rebut
SAPA’s contention as the public file was not updated during the period in which ITAC
granted SAPA’s request for an oral hearing; and (e) AMIE’s request for an oral hearing
was refused.

[25] The essence of AMIE’s argument is that SAPA protested against the use of the
8-digit tariff structure for the first time in oral representations and other parties were
not given an opportunity to counter SAPA’s submissions on this score. The evidence,
however, refutes AMIE’s contention in this regard. SAPA’s objection to the use of the
8-digit tariff structure was set out in detail in SAPA’s response to the essential facts
letter dated 12 May 2021. XA, the trade advisers acting for AMIE, made comments to
ITAC on SAPA’s response on 15 June 2021, but did not respond to this aspect of
SAPA’s letter.

[26] AMIE’s contention of procedural unfairness is also at odds with the following:
In response to the fact that SAPA’s sunset-review application calculated duties based
on the 7-digit tariff level, Merlog made representations to ITAC contending that the 8-
digit tariff level should be used. The essential facts letter made clear that ‘ITAC had
not yet made its final determination and nothing in the letter should be construed as
such’ and that ‘[t]he final determination will only be made once [ITAC] has considered
all parties’ comments on this essential facts letter’. The letter thus indicated the

all parties’ comments on this essential facts letter’. The letter thus indicated the
approach ITAC was considering adopting and interested parties were open to
persuade it to adopt a different approach. AMIE did not comment on the essential facts
letter. SAPA’s oral representations were not materially different from its response to
the essential facts letter dated 12 May 2021. Despite the initiation notice stating that
interested parties ‘may request an oral hearing at any stage of the investigation ’ and
that ITAC may refuse a request ‘if granting a hearing will unduly delay the finalisation
of a determination’, the requests for oral hearings from AMIE and Merlog on 28 June

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and 5 July 2021, were made too late. AMIE should have been aware that the time
period for the sunset review was drawing near and that a final determination from ITAC
would be imminent. ITAC made its final determination and communicated it to the
Minister of Trade on 15 June 2021. The fact that SAPA was able to persuade ITAC to
change the approach proposed in the essential facts letter and rather to determine the
anti-dumping duties at the 7 -digit tariff level , is in all the circumstances, neither
procedurally unfair nor indicative of bias.

[27] In its amended notice of motion , AMIE sought the decision of the Minister of
Trade to be reviewed and set aside. AMIE and one of its members, Merlog, addressed
letters to the Minister of Trade on 12 July 2021, raising various alleged irregularities in
respect of ITAC’s process. AMIE contends that, in light of these irregularities, the
Minister of Trade was obliged to give AMIE and Merlog a hearing, and his failure to do
so rendered his decision irrational. AMIE adds that the Minister of Trade ignored the
allegations in these letters.

[28] In his answering affidavit, the Minister of Trade correctly stated that he was in
law not required to give a hearing to AMIE. He further stated that A MIE had an
opportunity to make submissions before ITAC and that it would be ‘onerous if not
impractical to open up the process again for interested parties to make submissions
to [the Minister of Trade] and it can lead to numerous submissions to be considered
by [the Minister of Trade] notwithstanding that all interested parties had the opportunity
to take part in the ITAC investigation process’.

[29] In Chairman, Board o n Tariffs and Trade , and Others v Brenco Inc and
Others,17 this Court said:
‘Section 4(2) of the BTT Act does not contemplate and fairness does not require that the
second appellant [the Minister of Trade ] should afford to persons in the position of the

second appellant [the Minister of Trade ] 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

17 Chairman, Board on Tariffs and Trade, and Others v Brenco Inc and Others 2001 (4) SA 511 (SCA)
para 71 (Brenco).

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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 affecte d 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 th e BTT Act, nor s 56 read together with
s 55(2) of the [Customs] Act, nor fairness, requires the [Minister of Finance] to give to parties
affected by the imposition of anti -dumping duties a further and independent hearing before
acting in terms of those provisions.’

[30] The purpose for which the Minister of Trade is empowered to accept or reject
ITAC’s recommendation is not to second-guess ITAC’s process; it is rather to decide
whether to act on the recommendation having regard to policy considerations relating
to international trade. The decision of the Minister of Trade constitutes executive
action; not administrative action. In International Trade Administration Commission v
SCAW South Africa (Pty) Ltd,18 the Constitutional Court observed:
‘The setting, changing or removal of an anti-dumping duty is a policy-laden executive decision
that flows from the power to formulate and implement domestic and international trade policy.
That power resides in the heartland of national executive power.’

[31] The Minister of Trade, despite not being obliged to do so, considered AMIE’s
concerns as well as ITAC’s response. AMIE’s challenge to the decision of the Minister
of Trade, therefore, also falls to be dismissed. I now turn to its challenge to the decision
of the Minister of Finance.

[32] In its amended notice of motion, AMIE sought the review and setting aside the
decision of the Minister of Finance, which was taken by the Deputy Minister of Finance.

decision of the Minister of Finance, which was taken by the Deputy Minister of Finance.
AMIE challenges this decision on two bases: First, the Deputy Minister of Finance did
not have authority to amend Schedule 2 to the Customs Act as this power was not
properly delegated. Second, th e decision of the Deputy Minister of Finance was
procedurally irrational . The high court rejected the first argument but upheld the
second.


18 International Trade Administration Commission v SCAW South Africa (Pty) Ltd [2010] ZACC 6; 2012
(4) SA 618 (CC); 2010 (5) BCLR 457 (CC); 72 SATC 135 para 44 (SCAW).

16

[33] The power to amend Schedule 2 to the Customs Act to impose, withdraw or
reduce anti -dumping duties is sourced in s 56 of the Customs Act. Section 118(1)
provides that th e Minister of Finance may delegate his powers or assign his duties
arising from sections 48, 49, 51, 52, 53, 56, 56A, 57, 60(3), 75(15) , 99(4), 105 and
113(4) to the Deputy Minister of Finance. On 8 May 2018, the then Minister of Finance,
acting in terms of s 118, delegated various power s and duties to the then Deputy
Minister of Finance, including the powers and duties contemplated in s 56. There can
thus be no doubt that the Deputy Minister of Finance was empowered to amend
Schedule 2 to the Customs Act. The high court, therefore, correctly rejected AMIE’s
argument on this score.

[34] AMIE and one of its members, Merlog, addressed letters to both the Minister
Trade and the Minister of Fin ance on 12 July 2021, raising various alleged
irregularities in re spect of ITAC’s process. AMIE contends that, considering these
irregularities, the Deputy Minister of Finance was obliged to give AMIE and Merlog a
hearing, and that his failure to do so rendered his decision irrational. AMIE adds that
the Deputy Minister of Finance ignored the allegations in these letters. This argument
is unmeritorious. First, the Deputy Minister of Finance was not legally obliged to afford
AMIE and Merlog an opportunity to make representations , in circumstances where
ITAC already afforded them such an opportunity as part of its investigation. 19 The
setting, changing or removal of an anti -dumping duty is the exercise of executive
power and, therefore, only subject to a legality review. Procedural fairness is not a
component of a legality review.20

[35] Nevertheless, the evidence indicates that the Deputy Minister of Finance did
consider the procedural complaints raised by AMIE and Merlog. The Rule 53 record
filed by the Deputy Minister of Finance included the letter from Merlog’s attorneys of

filed by the Deputy Minister of Finance included the letter from Merlog’s attorneys of
12 July 2021 as well as the ir follow-up email of 2 August 2021, which indicates that
the Deputy Minister of Finance considered this correspondence. There is considerable
overlap between the issues raised in the letter from AMIE’s attorneys of 12 July 2021
and the letter from Merlog’s attorneys of that date. AMIE acknowledged that the

19 Brenco fn 17, referred to in para 29 supra.
20 SCAW fn 18, referred to in para 30 supra.

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Deputy Minister of Finance ‘was aware of the issues raised by [AMIE] (and Merlog), in
respect of the flawed process followed by ITAC’ but asserts that the ministry does not
disclose a document which shows that the issues raised by AMIE and Merlog were
considered. This complaint, in my view, amounts to an exercise in pedantry.

[36] The high court, therefore, erred in finding that the decision of the Deputy
Minister of Finance was irrational. AMIE’s challenge to the deputy minister’s decision
also falls to be dismissed.

[37] In the result, the following order is made:
1 The first appellant’s appeal is upheld with costs, including those of two counsel
where so employed.
2 The second appellant’s appeal is upheld with costs, including those of two
counsel where so employed.
3 The third appellant’s appeal is upheld with costs, including those of two counsel
where so employed.
4 The order of the high court is set aside and replaced with the following:
‘The application is dismissed with costs, including those of two counsel where so
employed.’
5 The cross-appeal is dismissed with costs, including those of two counsel where
so employed.



________________________
P A MEYER
JUDGE OF APPEAL

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Appearances

For first appellant: E Muller with JW Kiarie
Instructed by: State Attorney, Pretoria
State Attorney, Bloemfontein

For second appellant: H Maenetje SC with M Sahukazana
Instructed by: State Attorney, Pretoria
State Attorney, Bloemfontein

For third appellant: I Goodman SC (heads of argument having been
prepared by A Cockrell SC)
Instructed by: Webber Wentzel, Johannesburg
McIntyre Van der Post, Bloemfontein

For first respondent: J G Wasserman with S Tshikila and Y S Ntloko
Instructed by: Malatji & Co. Attorneys, Johannesburg
Phatshoane Henney Attorneys, Bloemfontein.