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[2010] ZACC 6
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International Trade Administration Commission v SCAW South Africa (Pty) Ltd (CCT 59/09) [2010] ZACC 6; 2012 (4) SA 618 (CC); 2010 (5) BCLR 457 (CC); 72 SATC 135 (9 March 2010)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case
CCT 59/09
[2010]
ZACC 6
In
the matter between:
INTERNATIONAL
TRADE ADMINISTRATION
COMMISSION
........................................................................................................
Applicant
and
SCAW SOUTH AFRICA (PTY)
LTD
................................................................................................................................................
Respondent
with
BRIDON
INTERNATIONAL
LIMITED
.....................................................................................................................................
Intervening
Party
In
re:
SCAW
SOUTH AFRICA (PTY)
LTD
.................................................................................................................................................
Applicant
and
INTERNATIONAL
TRADE ADMINISTRATION
COMMISSION
..............................................................................................
First
Respondent
MINISTER
OF TRADE AND
INDUSTRY
.............................................................................................................................
Second
Respondent
MINISTER
OF
FINANCE
........................................................................................................................................................
Third
Respondent
BRIDON
INTERNATIONAL
LIMITED
..................................................................................................................................
Fourth
Respondent
AFRICAN
MARITIME SERVICES (PTY)
LTD
.........................................................................................................................
Fifth
Respondent
NU-QUIP
CC
...........................................................................................................................................................................
Sixth
Respondent
Heard
on : 12 November 2009
Decided
on : 9 March 2010
JUDGMENT
MOSENEKE
DCJ:
Introduction
In
the parlance of international trade, dumping
means 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. An international agreement binding on the
Republic and so too our municipal law regulates dumping
that harms
or is likely to harm domestic trade and industry. At both levels,
it is permissible to impose anti-dumping duties
on offending export
goods. Anti-dumping duties are harnessed to counteract or reduce
harmful dumping and other adverse trade
practices.
South
Africa is a member of the World Trade O
rganisation
(WTO). Its international obligations on tariffs and trade arise
from the WTO Agreement on Implementation of Article
VI of the
General Agreement on Tariffs and Trade 1994 (Anti-Dumping
Agreement).
1
These obligations are honoured through domestic legislation that
governs the imposition of anti-dumping duties and other trade

remedies. In the main the legislation consists of the
International Trade Administration Act, 2002
2
(the Act); the Anti-Dumping Regulations
3
made under the Act which must be read together with the Customs and
Excise Act, 1964
4
(Customs and Excise Act); and where appropriate, the Board of
Tariffs and Trade Act, 1986
5
(BTT Act). I address the legislative regime more fully later.
The
Act has established and charged the International Trade
Administration Commission (ITAC) with the duty to make
recommendations
to the Minister of Trade and Industry (Minister)
who, in turn, may ask the Minister of Finance to lift or impose
anti-dumping
duties on specified goods introduced into the commerce
of the Republic.
I
TAC
is before us as an applicant in an application for leave to appeal.
It is aggrieved by the order made by Bertelsmann J
in the North
Gauteng High Court, Pretoria (High Court) on 5 January 2009 and
urges us to set it aside. The order was granted
at the instance of
SCAW South Africa (Pty) Limited (SCAW or first respondent). On 20
October 2008, SCAW launched an urgent
application in the High
Court. It sought and was granted an order:
Interdicting
and restraining ITAC from forwarding to the Minister its
recommendation to terminate the existing anti-dumping
duty in
force against stranded wire, ropes and cables, of iron or steel,
not electrically insulated, of a diameter exceeding
8mm (excluding
that of wire of stainless steel, that of wire-plated, coated or
clad with copper and that identifiable as
conveyor belt cord)
imported from Bridon International Limited (UK) (existing
anti-dumping duty);
Interdicting
and restraining the Minister from accepting ITAC’s
recommendation and from requesting the Minister of Finance
to
terminate the existing anti-dumping duty;
To
the extent that the Minister may already have requested the
Minister of Finance to terminate the existing anti-dumping
duty,
interdicting and restraining the Minister of Finance from giving
effect to this request by terminating the existing
anti-dumping
duty.
6
The
High Court granted the interdictory relief pending the final
determination of an application to be instituted by SCAW to
review
and set aside ITAC’s recommendation to terminate the existing
anti-dumping duty. The review application which
has since been
initiated was launched on 3 December 2008, after the hearing of the
urgent application, but before the interim
order was granted during
January 2009. At the hearing in this Court, we were informed that
the review application was still
pending before the High Court.
The parties were uncertain about when the review application was
likely to be finalised.
Parties
I
describe briefly the parties and the respective interests they
harbour. ITAC is a juristic person and a statutory body that
bears
specialist responsibility for the administration of international
trade. Its functions include adopting measures for
the continued
control of imports and exports of goods and the regulation of
customs duties. It is clothed with the power to
investigate,
evaluate and make recommendations to the Minister on the
imposition, amendment or removal of customs, anti-dumping
and
countervailing duties.
Before
the High Court, the Minister and the Minister of Finance were cited
as second and third respondents. The Minister opposed
the granting
of the restraint order. However, interdictory relief was granted
against both of them. In this Court, they have
not entered the
fray. ITAC is a lone applicant. However, it must be said that
there is obvious privity of interest between
ITAC and the two
Ministers in relation to the outcome of the application for leave
to appeal.
SCAW
is the largest South African manufacturer of steel products of a
wide variety, including rolled steel and alloy iron castings,
cast
alloy iron, for steel grinding media, chain, steel wire rope, and
strand wire products. SCAW lodged
with ITAC
the petition that led to the
imposition of the existing anti-dumping duties. More recently,
SCAW initiated the sunset review
that led to the impugned decision
of ITAC to recommend the lifting of anti-dumping duties on the
product imported into South
Africa by Bridon International Limited
(Bridon UK). A sunset review is an investigation, initiated
relatively shortly before
the duties would otherwise lapse, which
concerns the withdrawal, amendment or re-confirmation of an
original anti-dumping duty
on imported goods.
Bridon
UK is by far the largest manufacturer of steel wire ropes in the
United Kingdom. Its products are for use in various
sectors
including mining, industrial, oil and gas, and fishing industry
worldwide. Its steel wire exports pose a direct competition
to the
domestic products and sales of SCAW. Bridon UK was joined by SCAW
as a respondent before the High Court. No relief
was sought
against it. For obvious reasons, Bridon UK resisted the granting
of the restraining order. The order had the effect
of stalling the
recommendation of ITAC to remove the existing anti-dumping duties.
Preliminary
issues
Before
I consider the issues that fall to be decided, I dispose of two
preliminary
issues: whether Bridon UK
should be joined in these proceedings as a party and whether ITAC’s
application to amend its
notice of motion should be granted.
Somewhat
belatedly, Bridon UK asks to be joined as a party to these
proceedings. The application is not opposed by any of the
other
parties. The attitude of the other parties is an important, but
not the only, consideration. The Court remains obliged
to satisfy
itself whether Bridon UK is entitled to intervene in the
proceedings. Intervention of a party in proceedings is
regulated
by Rule 8(1)
7
of the Rules of this Court which must be read together with Rule
12
8
of the Uniform Rules of the High Court. The latter Rule requires
that a party seeking to intervene must have a “direct
and
substantial interest in the subject matter” of the
litigation.
9
However, in this Court, the overriding consideration is whether it
is in the interests of justice for a party to intervene
in
litigation.
In
considering where the interests of justice lie, the question
whether the party seeking to be joined has a direct and substantial

interest in the subject matter of the proceedings will rank highly
along other relevant considerations.
10
These would include the stage at which the application for joinder
is made; whether the party has furnished adequate explanation
for
the delay, if any, in seeking to be joined; and the nature of the
relief or opposition the intervening party puts up.
Whether the
intervention would materially prejudice the case of any of the
other parties to the litigation is also a relevant
factor.
Bridon
UK explains that it delayed in seeking to intervene because it was
advised that an interim restraining order of the High
Court is
ordinarily not appealable. However, when it came to know that
ITAC’s application for leave to appeal had been
set down for
hearing in this Court, it decided to join the proceedings. There
can be no gainsaying that Bridon UK has a pressing
commercial
interest in the fate of the existing anti-dumping duties against
its product. For, as long as the restraining order
is in place,
ITAC and the two Ministers of state would be precluded from taking
steps that would bring the sunset review to
fruition and that may
lead to the ending of the anti-dumping duties. The duties would
remain in force to the obvious commercial
detriment of Bridon UK’s
potential exports into South Africa. Lastly, none of the parties
suggested that the intervention
of Bridon UK would occasion
prejudice to them. I find none. It is clearly in the interests of
justice that we hear Bridon
UK’s submissions as a party. I
will without more grant the application for Bridon UK to intervene
as a party.
On
2 November 2009, eight days before the
hearing, ITAC delivered a notice of intention to amend its notice
of motion by inserting
an additional prayer for a declaratory order
that the anti-dumping duty imposed on the product of Bridon UK
lapsed on 16 February
2009. The notice was followed by a formal
application to amend lodged only three days before the hearing.
The first respondent
put up strenuous objection to the proposed
amendment on several grounds. Given the fate of the application to
amend, I need
not recite any of them. On the morning of the
hearing, ITAC, correctly so, in my view, withdrew the application
and tendered
wasted costs occasioned by the abortive notice and
application. In due course, I will
make an appropriate
order related to the wasted costs.
Issues
This case raises
three primary issues. They are:
whether it is in
the interests of justice to entertain an appeal against a
temporary restraining order granted by the High
Court; and if it
is,
whether it was
appropriate for the High Court to grant the restraining order; and
what relief, if
any, should be granted?
I narrate the
facts first and thereafter discuss the applicable statutory regime
before I dispose of each of the issues.
Background and
facts
In 2002, the
Board on Tariffs and Trade (Board),
11
the predecessor to ITAC, carried out an investigation into alleged
dumping of stranded wire, rope and cables of iron or steel

originating in or imported from various other countries including
the United Kingdom (original investigation). Based on the

recommendation of the Board to the Minister, the Minister of
Finance imposed an anti-dumping duty on certain products classified

under two tariff subheadings.
12
The anti-dumping duties imposed on products from Bridon UK
amounted to 42.1%. These substantial duties shielded domestic

manufacturers of steel products, including SCAW, from the
competition posed by the dumped product of Bridon UK.
Regulation
45
13
of the Anti-Dumping Regulations provides that ITAC may conduct an
interim review of anti-dumping duties in a case of “significantly

changed circumstances.” In August 2006, at the request of
Bridon UK, ITAC initiated a “changed circumstances”

review. In May 2007, ITAC published a report in which it made a
determination that, although Bridon UK did not dump the

classifiable product, it could not prove whether the product was
dumped or not, as there were no exports of the subject product
to
the Southern African Custom Union (SACU). However, ITAC found that
during the period of investigation, exports made by
Bridon UK were
far lower in quantity compared to the volume of exports it made
prior to the imposition of current anti-dumping
duties. ITAC’s
finding meant that the changed circumstances review had been
decided against Bridon UK and that the existing
anti-dumping duties
would continue in force.
On 19 February
2007, SCAW applied to ITAC to conduct a sunset review before the
expiry of the existing anti-dumping duty imposed
in 2002. SCAW
requested the sunset review with a view to persuading ITAC to
extend the life of the existing anti-dumping duties.
Ordinarily,
anti-dumping duties remain in place for a period not exceeding five
years from their imposition or their last
review.
14
However, if a sunset review is initiated before the lapse of an
anti-dumping duty, it “shall remain in force until the
sunset
review has been finalised”.
15
A sunset review may be requested by any interested party.
16
At the end of a sunset review, ITAC’s recommendation may
result in the termination, amendment or reconfirmation of the

original anti-dumping duty.
17
On 17 August
2007, ITAC heeded the request of SCAW and initiated a sunset
review. It investigated whether the removal of the
anti-dumping
duties would be likely to lead to the continuation or a recurrence
of injurious dumping. On completion of the
investigation, ITAC
considered making a recommendation to the Minister which it first
set out in an “essential facts
letter”.
18
Regulation 43 requires ITAC to inform all interested parties of
the “essential facts” it will consider in its
final
finding or determination and the parties may furnish ITAC with
their comment on the contents of the “essential
facts
letter”. ITAC is obliged to consider all relevant comments
before making its final determination.
The “essential
facts letter” recorded that ITAC had reason to believe that
further dumping by other foreign exporters
and producers would
occur, but that it did not anticipate that there would be dumping
of the product of Bridon UK.
In its
investigation into whether to remove the duties, ITAC found that,
while steel fishing ropes produced by Bridon UK were
stored in
South Africa, they were kept in bonded warehouses and sold to
foreign vessels. They did not enter the SACU or South
Africa for
“home consumption”.
19
No Value Added Tax or customs duties were raised in respect of the
fishing ropes. ITAC reasoned that in terms of section
55(3) of the
Customs and Excise Act,
20
the owner of goods held in a bonded warehouse or, to use the
language of the statute, held “for export from a customs
and
excise warehouse” need not produce invoices and other
documents relating to the goods to the Controller of Customs.
21
In the view of ITAC, the goods were to be treated as if they never
entered the country for “home consumption”.
It
concluded that there was no evidence to suggest that dumping had
occurred and that the fishing ropes in the bonded warehouses
had to
be excluded from the enquiry on whether to lift existing
anti-dumping duties. This meant that ITAC had restricted its

sunset review to exports of crane ropes that also fell into the
category affected by the anti-dumping duties. ITAC concluded
that
the lifting of existing anti-dumping duties would not result in
further dumping by Bridon UK.
On 14 October
2008, ITAC made a decision to recommend to the Minister that the
existing anti-dumping duty on imports of the
product by Bridon UK
should be terminated.
On
20 October
2008, SCAW launched an urgent
application in which it asked for interdictory relief against ITAC,
the Minister and the Minister
of Finance. During January 2009, the
High Court granted the temporary interdict sought and later refused
ITAC leave to appeal
its decision. ITAC approached the Supreme
Court of Appeal. It too turned down the application for leave to
appeal.
Applicable law
Parliament
ratified South Africa’s membership of the WTO on 2 December
1994 and approved the Anti-Dumping Agreement on
6 April 1995. In
Progress Office Machines
,
22
the Supreme Court of Appeal correctly concluded that the
Anti-Dumping Agreement is binding on the Republic in international

law, even though it has not been specifically enacted into
municipal law. In order to give effect to the Anti-Dumping
Agreement,
Parliament has enacted legislation and, in turn, the
Minister has prescribed Anti-Dumping Regulations.
23
WTO rules on anti
-dumping
International
rules on anti-dumping duties are contained in the
Anti-Dumping
Agreement. Article 2.1 provides that a product is to be considered
as being dumped when it is “introduced
into the commerce of
another country at less than its normal value, if the export price
of the product exported from one country
to another is less than
the comparable price, in the ordinary course of trade, for the like
product destined for consumption
in the exporting country.”
Article
1
of the Anti-Dumping Agreement read with
Article VI of the General Agreement on Tariffs and Trade 1994,
makes it clear that
anti-dumping duties are exceptional, remedial
measures that may be imposed only if a duly conducted investigation
reveals that
dumping has taken place and that it causes or poses a
threat of material injury to the local industry. Article 9.1
provides
that even where all pre-requisites for the imposition of a
duty have been fulfilled, the actual imposition remains
discretionary.
On the other hand, in terms of Article 11.1,
dumping duties must remain in force only as long as and to the
extent necessary
to counteract the dumping which is causing
material injury.
The
duration of a dumping duty is regulated by Article 11. Article
11.3 in relevant part provides:
“
Notwithstanding the
provisions of paragraph 1 and 2, any definitive anti-dumping duty
shall be terminated on a date not later
than five years from its
imposition (or from the date of the most recent review under
paragraph 2 if that review has covered
both dumping and injury, or
under this paragraph), unless the authorities determine, in a review
initiated before that date on
their own initiative or upon a duly
substantiated request made by or on behalf of the domestic industry
within a reasonable period
of time prior to that date, that the
expiry of the duty would be likely to lead to continuation or
recurrence of dumping and
injury. The duty shall remain in force
pending the outcome of such a review.”
The
review contemplated in Article 11.3 is the sunset review and its
duration is circumscribed by Article 11.4
.
Article 11.4 states:
“
Any
such review shall be carried out expeditiously and shall normally be
concluded within 12 months of the date of initiation
of the review
.”
Article
5.10 provides:
“
Investigations
shall
, except in special circumstances, be
concluded within one year and in no case more than 18 months, after
their initiation.”
Domestic statutory regime
The
Act is the primary dome
stic legislation
for controlling anti-dumping duties and other harmful trade
practices associated with international trade.
This it does in
order to pursue its overarching object to foster economic growth
and development which, in turn, would “raise
incomes and
promote investments and employment within the Republic and within
the Common Customs Area”. The object is
to be achieved, in
part, by establishing an efficient and effective system for the
administration of international trade.
24
The
Act clothes the Minister with far-reaching authority in relation to
trade policy. It includes the power to issue, subject
to the
Constitution and the law, trade policy statements or directives and
the power to regulate imports and exports. ITAC
exercises its
functions subject to these powers of the Minister.
25
The Minister also wields the power to prescribe regulations in
order to give effect to the object of the Act.
26
Before
the passage of the Act in 2002 and of the complementary
Anti-Dumping Regulations in 2003, anti-dumping measures were

regulated under two separate, but complementary pieces of
legislation. These are the BTT Act
27
and the Customs and Excise Act.
28
The former established a Board whose primary objects include the
promotion of industrial growth within the framework of economic

policy by conducting investigations into any matter which affects
or may affect trade and industry of the Republic or of the
SACU.
One of its primary functions is to investigate dumping and other
forms of disruptive competition and to make recommendations
to the
Minister who may accept or reject the report and recommendations or
refer them back to the Board for reconsideration.
If the Minister
accepts the report and recommendations he or she may request the
Minister of Finance to amend the Schedule
to the Customs and Excise
Act.
29
The Schedule in issue contains the prescribed duty payable on
goods specified in it which are subject to anti-dumping and
other
duties.
30
The
Act repealed the whole of the BTT Act.
31
However, a number of its provisions have not come into operation.
It remains necessary to read its provisions together with
the BTT
Act because its transitional provisions require that ITAC must
investigate, evaluate and report on anti-dumping duties
in
accordance with the BTT Act as if it had not been repealed. The
Act makes it clear that ITAC is the successor in title
to the
Board.
32
More importantly, the transitional provisions preserve the
statutory functions of the two Ministers provided for in the BTT

Act and the Customs and Excise Act in relation to the determination
of anti-dumping duties. The consequence of this is that
ITAC is
required to investigate and evaluate applications for anti-dumping
duties in accordance with section 32 of the Act
read with the BTT
Act, as if the latter Act had not been repealed. In order to
complete the picture, one must add that Chapter
VI of the Customs
and Excise Act deals, amongst other things, with anti-dumping
duties. Of importance, is that section 56(2)
provides that the
Minister of Finance may from time to time, by notice in the
Gazette, withdraw anti-dumping duties in accordance
with the
request from the Minister.
It
is now convenient to have a closer look at some of the applicable
provisions of the Act. It defines “anti-dumping”
with
a domestic tilt. “Dumping” means the introduction of
goods into the commerce of the Republic or the Common
Customs Area
at an export price less than the normal value of those goods. Much
of the detailed provisions on anti-dumping
are to be found in
Anti-Dumping Regulations. Sub-Part IV of the Regulations and, in
particular, regulations 53 to 59, provide
for sunset reviews before
the anti-dumping duties lapse.
Absent
a sunset review or a judicial review, the term of an anti-dumping
duty is five years. That much all the litigants before
us agree.
This reading of the Regulations is well supported by Article 11.3
of the Anti-Dumping Agreement which provides in
peremptory terms
that any definitive anti-dumping duty “
shall
”
be terminated on a date not later than five years from its
imposition.
33
Also, Article 11.1 requires that duties “
shall
”
remain in force only as long as and to the extent necessary to
counteract injurious dumping.
34
The
Anti-Dumping Regulations echo the related provisions of the
Anti-Dumping Agreement. Regulation 38.1 is emphatic that dumping

duties “
lapse
”
after a five year period. Regulation 38.1 provides:
“
Definitive anti-dumping
duties will remain in place for a period of five years from the date
of publication of the Commission’s
final recommendation unless
otherwise specified or unless reviewed prior to the lapse of the
five-year period.”
It
is however so that
the scheme of the
Anti-Dumping Agreement contemplates that if a sunset review is
initiated before the date of expiry of the
anti-dumping duty, it
shall remain in force pending the outcome of that sunset review.
Article 11.4 requires a sunset review
to be carried out
expeditiously and that it “
shall
”
normally be concluded within 12 months of the date of initiation.
On the other hand, Article 5.10 makes plain that
an investigation
“
shall
”
be concluded within “
1 year
”
and in no case more than “
18
months
” after its initiation.
35
The
domestic regulations again echo the
provisions of the Anti-Dumping Agreement. Regulation 38.1 creates
the caveat that the term
of an anti-dumping duty may be extended if
it is reviewed prior to the lapse of the five year period. This is
made again clear
by regulations 53 and 54.1. In particular,
regulation 54.1 provides that the anti-dumping duty shall remain in
force “until
the sunset review has been finalised”,
provided that the sunset review is initiated approximately six
months before the
lapse of the anti-dumping duty.
36
Regulation
20 provides that all investigations and reviews
“
shall
”
be finalised within “
18 months
”
after initiation.
37
Is it in the
interests of justice to entertain an appeal against a temporary
restraining order?
The
leave to appeal sought is against a restraining order pending a
review to set aside the impugned decision of ITAC. The
question
whether to grant leave to appeal depends on two important
considerations. They are whether a constitutional issue
has arisen
and if it has, whether it is in the interests of justice to grant
leave to appeal. Whether it is in the interests
of justice to
grant leave to appeal hinges on a cluster of interactive
considerations. I need hardly add that when this Court
is seized
with that enquiry it must consider each case in the light of its
own facts. Prospects of success would be a crucial
consideration
but would not alone be decisive.
38
Constitutional
issues
T
he
litigants are at one that the application for leave to appeal
involves constitutional matters. That is indeed so. First,
the
order of the High Court restrains two members of Cabinet from
exercising executive powers conferred upon them by the Constitution

and national legislation. It is plain from section 85(2)(a), (b)
and (e) of the Constitution,
39
that the two Ministers exercise executive authority by
“implementing national legislation”; by “developing

and implementing national policy”; and by “performing
any other executive function” provided for in national

legislation. As we have seen, the Act and the BTT Act variously
require the two Ministers to formulate and implement national

policy and to perform specified executive functions related to
exports and imports of goods and other international trade
activities. More pertinently, they are required to impose, change
or remove anti-dumping duties in order to realise the primary

economic and developmental objects of the statutes.
Second,
the impugned recommendation of ITAC too has been made in terms of
national legislation that regulates the administration
of
international trade and also seeks to give effect to the
international obligations of the Republic. The construction of

provisions of the operative domestic legislation consistent with
the Constitution, in itself raises a constitutional issue.
40
In any event, we are required by the Constitution to interpret
domestic legislation governing the duration of anti-dumping
duties
consistently with these international obligations.
41
Third,
the restraining order brings to the fore important issues related
to
the separation of powers between the
courts and the national executive, and the issue of the potential
breach of the state’s
international obligations in relation
to international trade. 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 authority. Separation of powers and the closely
allied question
whether courts should observe any level of
“deference”
42
in making orders that perpetuate anti-dumping duties beyond their
normal lifespan is a constitutional matter of considerable

importance. Fourth, in the High Court and in this Court, SCAW has
invoked procedural justice rights under the Promotion of

Administrative Justice Act
43
(PAJA) legislation that is founded on the constitutional right to
fair administrative action.
In
these circumstances, the application for leave to appeal presents
important constitutional matters for determination.
Appealability of the
“interim”
order
L
ooming
large in this case is the fact that the target of the appeal has
assumed the form of an interim order. That is indeed
a relevant
and important but, again, not a determinative consideration in
ascertaining where the interests of justice reside.
The
respondent, SCAW, set much store by the contention that the interim
order does not have a final effect and thus that it
is not in the
interests of justice to grant leave to appeal. In contrast, ITAC
and Bridon UK contend that the interdict is
of a kind that has a
final effect and is accordingly appealable. In order to decide
these conflicting contentions, I first
set out the test for
appealability and then ask the question whether the “interim”
interdict is susceptible to
an appeal.
The
test
for appealability
The
question whether an appeal against a
decision
of the High Court may lie directly to this Court is governed by
section 167(6)(b)
44
of the Constitution read with Rule 19.
45
The constitutionally prescribed standard is whether it is in the
interests of justice for this Court to hear an appeal. In
Khumalo
and Others v Holomisa
46
this Court held that it is not a jurisdictional requirement for an
appeal to this Court that the matter must involve a “judgment

or order” within the meaning of section 20(1) of the Supreme
Court Act.
47
However, the Court pointed out that it will not often be in the
interests of justice for this Court to entertain appeals against

interlocutory rulings which do not have a final effect on the
dispute between the parties.
48
The
same point was made again in
Minister
of Health and Others v Treatment Action Campaign and Others
(No 1)
49
(
TAC(1)
):
“
The
policy considerations that underlie the non-appealability of interim
execution orders in terms of s 20 of the Supreme Court
Act, are also
relevant to the decision whether it is in the interests of justice
to grant an application for leave to appeal
to this Court against an
interim execution order.”
50
(Footnotes omitted.)
In
this sense, the jurisprudence of the S
upreme
Court of Appeal on whether a “judgment or order” is
appealable remains an important consideration in assessing
where
the interests of justice lie. An authoritative restatement of the
jurisprudence is to be found in
Zweni
v Minister of Law and Order
51
which has laid down that the decision
must be final in effect and not open to alteration by the court of
first instance; it
must be definitive of the rights of the parties;
and lastly, it must have the effect of disposing of at least a
substantial
portion of the relief claimed in the main proceedings.
On these general principles the Supreme Court of Appeal has often
held
that the grant of an interim interdict is not susceptible to
an appeal.
52
The
“policy considerations”
53
that underlie these principles are self-evident. Courts are loath
to encourage wasteful use of judicial resources and of legal
costs
by allowing appeals against interim orders that have no final
effect and that are susceptible to reconsideration by a
court
a quo
when final relief is
determined. Also allowing appeals at an interlocutory stage would
lead to piecemeal adjudication and
delay the final determination of
disputes.
After
Zweni
,
the Supreme Court of Appeal has recognised that the general rule
against piecemeal appeals could conflict with the interests
of
justice in a particular case. Howie P, writing for a unanimous
court in
S
v Western Areas
,
54
was required to decide, in an
application for leave to appeal in a criminal matter, whether the
dismissal of an objection to
an indictment was appealable in terms
of section 21(1) of the Supreme Court Act.
55
After surveying its case law on the appealability of a “judgment
or order” in civil and criminal cases and after
referring to
the interests of justice test set by this Court in
Khumalo
v Holomisa
,
56
he concluded that the general principles enunciated in
Zweni
57
are neither exhaustive nor cast in stone. He further held that:
“
[I]t
would accord with the obligation imposed by s 39(2) of the
Constitution to construe the word ‘decision’ in s
21(1)
of the Supreme Court Act to include a judicial pronouncement in
criminal proceedings that is not appealable on the
Zweni
test but one which the interests of
justice require should nevertheless be subject to an appeal before
termination of such proceedings.
The scope which this extended
meaning could have in civil proceedings is unnecessary to decide.
It need hardly be said that
what the
interests of justice require
depends
on the facts of each particular case.”
58
(Emphasis added.)
More
recently, in
Philani-Ma-Afrika v
Mailula
,
59
the Supreme Court of Appeal had to decide whether an order of the
High Court which puts an eviction order into operation pending
an
appeal was appealable. In a unanimous judgment by Farlam JA, the
Court held that the execution order was susceptible to
appeal. It
reasoned that it is clear from cases such as
S
v Western Areas
60
that “what is of paramount importance in deciding whether a
judgment is appealable is
the
interests of justice
”.
61
(Emphasis added.)
As
we have seen, the Supreme Court of Appeal has adapted the general
principles on the appealability of interim orders, in my
respectful
view, correctly so, to accord with the equitable and the more
context-sensitive standard of the interests of justice,
favoured by
our Constitution. In any event, the
Zweni
requirements on when a decision may be appealed against were never
without qualification. For instance, it has been correctly
held
that in determining whether an interim order may be appealed
against regard must be had to the effect of the order rather
than
its mere appellation or form.
62
In
Metlika Trading Ltd and Others v
Commissioner, South African Revenue Service
63
the Court held, correctly so, that where an interim order is
intended to have an immediate effect and will not be reconsidered

on the same facts in the main proceedings it will generally be
final in effect.
Lastly,
when we decide what is in the interests of justice, we will have to
keep in mind what this Court said in
Machele
and Others v Mailula and Others
.
64
In that case, the Court had to decide whether to grant leave to
appeal against an order of the High Court authorising execution
of
an eviction order pending an appeal. In granting leave to appeal,
Skweyiya J, relying on what this Court held in
TAC
(1)
,
65
reaffirmed the importance of “irreparable harm” as a
factor in assessing whether to hear an appeal against an interim

order, albeit an order of execution:
“
The
primary consideration in determining whether it is in the interests
of justice for a litigant to be granted leave to appeal
against an
interim order of execution is, therefore, whether irreparable harm
would result if leave to appeal is not granted.
”
66
I
am alive to the fact that unlike in
TAC
(1)
and in
Machele
,
here we are not dealing with an interim order of execution but an
interim order against the exercise of statutory power.
Even so,
the question whether an interim order may result in irreparable
harm if leave to appeal is not granted is an important
but not the
sole requirement for granting leave to appeal. The test of
irreparable harm must take its place alongside other
important and
relevant considerations that speak to what is in the interests of
justice, such as the kind and importance of
the constitutional
issue raised; whether there are prospects of success; whether the
decision, although interlocutory, has
a final effect; and whether
irreparable harm will result if leave to appeal is not granted. It
bears repetition that what
is in the interests of justice will
depend on a careful evaluation of all the relevant considerations
in a particular case.
67
Is
the
“interim” interdict
appealable?
SCAW
submitted that the interim interdict is not appealable because it
is not finally dispositive of the issues in dispute.
That however,
is not the test. It is not a requirement that the interim relief
should be dispositive of all the issues in
dispute before it
becomes appealable. It is sufficient if the order disposes of “at
least a substantial portion of the
relief claimed in the main
proceedings”.
68
Also, it is adequate if the interim order is intended to and does
have an immediate effect and is not susceptible to be reconsidered

on the same facts in the main proceedings.
69
As I
see it, the immediate consequence of the order is that it is final
and causes irreparable harm. First, the order maintains
the
existing anti-dumping duty where it would otherwise have ended
either by operation of the law, on ITAC’s version
of the
lawful lifespan of the anti-dumping duties, or as a result of
ITAC’s decision to recommend that the duty end on
completion
of the review. In effect, the court order instantly stopped the
sunset review, prevented its completion and precluded
the exercise
of any ministerial discretion that is dependent on ITAC’s
recommendation arising from the sunset review.
Second,
every import of the subject product of Bridon UK is liable to bear
a 42.1% duty and that will continue until a court
decision on the
pending review. The duty is not refundable at the end of the
pending review even if ITAC were to succeed in
the review. In
addition, Bridon UK correctly argues that the existing anti-dumping
duty is of such a high order that it effectively
excludes its goods
from domestic markets and from the SACU markets. So, while
existing anti-dumping duties remain in place,
Bridon UK products
remain expensive or unaffordable and that must lead to loss of
sales. Similarly, whilst the interdict is
in force neither the two
Ministers nor ITAC will be free to perform their statutory
obligations related to the existing anti-dumping
duty. Whatever
the outcome of the review, the order has irreparable consequences
and an immediate and final effect in the
sense stated in
Metlika
Trading
.
70
I
am satisfied that
although the interdict
granted by the High Court carries an interim tag, it is susceptible
to an appeal. The decision on the
lawful lifespan of the existing
anti-dumping duty is not open to alteration by the court of first
instance. It is final in
effect. It is definitive of the rights
of the parties on the duration of the anti-dumping duty and
therefore has the effect
of disposing of at least a substantial
portion of the relief claimed in the main proceedings.
Should
leave be granted?
I
have found that this case raises important constitutional questions
and that the
“interim”
decision of the High Court is appealable. That however, is not the
end of the matter. In the final instance
I still have to assess
whether it is in the interests of justice to grant leave to appeal.
SCAW has urged us not to grant
leave to appeal.
I
think it is in the interest
s of justice
for this Court to pronounce on: (a) the lawful extent of the
legislatively prescribed lifespan of an anti-dumping
duty; (b)
whether the interdict had the effect of extending the lifespan of
the existing anti-dumping duty; and if so, (c)
whether the order
trenches on separation of roles and powers between the national
executive and the courts; (d) whether the
judicial extension of the
anti-dumping duties threatens South Africa’s trade relations
and other obligations under international
law; (e) whether the
matters to be determined by this Court on appeal will come up for
decision in the final review before
the High Court and therefore
will not require this Court to prejudge the outcome of the review;
and lastly, (f) whether there
are reasonable prospects that this
Court may find that whilst it may have been competent for the High
Court to make the order
it did, it was not constitutionally
permissible or appropriate for it to do so.
Before
I move on to the merits of the appeal, I find it necessary to
explain further why I am of the view that this Court, by
hearing
this appeal, will not fall foul of prejudging the review pending in
the High Court.
SCAW
makes the point that the urgent application before the High Court
was decided in great haste and without adequate opportunity
for
it
to traverse the issues in a comprehensive manner. SCAW submits
that it will be only after the outcome of the review that
this
Court will have the benefit of a fully reasoned judgment based on a
comprehensive set of affidavits. The submission goes
that if leave
to appeal were granted this Court would be required to sit as a
court of first and final instance. SCAW adds
that if this Court
were to grant leave to appeal, its judgment would place the High
Court hearing the review in an invidious
position because this
Court would have prejudged the outcome of the review.
A
brief review of the issues that served before the High Court will
shed considerable light on whether there is a risk of this
Court
prejudging the pending review.
In the
High Court, SCAW attacked the recommendation on four grounds of
review. First, that ITAC misdirected itself when it
held that
Bridon UK’s exports into the SACU did not include fishing
ropes. Second, that ITAC was wrong when it excluded
fishing ropes
from the determination of dumping margins. Third, that Bridon UK’s
sales of crane ropes should not have
been considered in support of
the recommendation. And fourth, that ITAC failed to observe
procedural fairness by not allowing
SCAW to make oral
representations.
The
High Court upheld the second ground
and
found that ITAC misdirected itself when it excluded steel fishing
ropes from the determination of dumping margins. The
Court did not
decide the merits of the first and third grounds and refused to
uphold the fourth ground. On the strength of
a favourable finding
to SCAW on one of its four grounds the Court found itself persuaded
that SCAW had established a “clear
right” that entitled
it to an interim interdict.
In
the present appeal this Court is not called upon to pre-determine
whether the “clear right” the High Court refers
to is
well founded. The appeal is about the constitutional
appropriateness of granting an interdict that extends an existing

anti-dumping duty in a manner that implicates the separation of
powers and the international trade obligations of the Republic.

That is not a matter which will be the subject of the review court.
It is a constitutional matter which is not susceptible
to
re-consideration by the High Court, but one which, given that the
Supreme Court of Appeal had declined to hear the matter,
only this
Court may properly decide.
I am
satisfied that it is in the interests of justice to grant leave to
appeal to this Court.
Merits
of the appeal
Was it
appropriate for the High Court to grant the interim interdict?
Introduction
This
Court directed
the parties to make
written submissions on whether it was “competent” or
“appropriate” for the High
Court to grant an interdict.
Their respective written submissions diverged on what each word
conveyed. It seems to me that
“competence” points to
the legal power or authority to grant an interdict, and
“appropriateness” relates
to whether, if the court had
the competence to make the order, it applied the operative law
properly or exercised its discretion
judiciously.
It
is beyond doubt that the High Court has the power to entertain and
grant an application for interim relief
.
71
The real question is whether, in granting the relief, it made an
order that is constitutionally permissible or appropriate.
Appropriateness and
the lifespan of an anti-dumping duty
It
is helpful to recap on the facts. The existing anti-dumping duty
was imposed on 28 August 2002 and was due to end after
five years
on 28 August 2007. On 19 February 2007 SCAW lodged an application
for the initiation of a sunset review. On 17
August 2007 ITAC
initiated a sunset review.
On 14 October
2008, ITAC decided to recommend that the existing duty be ended.
Within three days SCAW initiated interdictory
proceedings and
procured an interdict. The parties agree that the intended effect
of the interdict is to maintain the existing
anti-dumping duty
until the review is finalised. However on this matter the High
Court was silent when it granted the interdict.
Whilst
it is true that ordinarily an appeal lies against an order and not
against the reasoning in a judgment
,
72
it is permissible and sometimes necessary to look at the reasons
advanced by a court for making the order sought to be appealed

against so that one fully grasps the reach and effect of the
order.
73
Not infrequently, a court considering an application for leave to
appeal its decision, furnishes additional reasons for the
order it
originally made. Often the additional reasons throw light on the
ambit and effect of the order sought to be appealed
against.
When
it refused leave to appeal, the High Court shed considerable light
on the reach and impact of the order it made:
“
Once a sunset review is
initiated timeously as is the case with the present review, the
subject matter of the dispute between
the parties, the anti-dumping
duties remain in place. If judicial intervention prevents a sunset
review from being finalised
within 18 months, the expiry of that
period can neither interrupt the finalisation of a judicial review
nor emasculate the power
of the court to ensure that the sunset
review is conducted in a lawful fashion.
It follows that the obligation
to pay anti-dumping duties persists while the judicial review winds
its weary way through the courts.
This would have been the natural
consequence of the review having been instituted. The interim
interdict has therefore merely
confirmed the ordinary consequences
arising from an as yet undetermined judicial review.
A similar
result would follow if a sunset review was concluded with the
recommendation to the second [Minister] and third respondents

[Minister of Finance] to terminate existing duties but the second
and third respondents fail to act within 18 months period upon
such
a recommendation. In such event, the duties would continue until
such time as the second and third respondents had investigated
the
situation and had come to the conclusion to accept the
recommendation. If the recommendation had been rejected by the

second and third respondents in the principal application the duties
would have continued while the matter was referred back to
first
respondent.”
74
The
Court owes this conclusion to its reasoning that regulation 64
75
regulates judicial reviews and intervention during investigations
of ITAC and does not prescribe a time limit for the conclusion
of
the judicial reviews which, in that Court’s view in any
event, suffer from interminable delay.
76
Also after hearing argument on regulation 20, it concluded that
its provision that all investigations and reviews “
shall
be finalised within 18 months after
initiation
”, does not provide
“a cut off date for judicial reviews”
77
before a sunset review is completed.
In
effect the Court ruled that the duty will remain in force until the
judicial review, however long it may take, has been finally

determined and the Minister concerned has ultimately made a
decision on the fate of the duties.
In
this Court, SCAW has defended the reasoning of the High Court by
submitting that an anti-dumping duty remains in force for
as long
as a judicial review of the impugned determination of ITAC is
pending and that the High Court was correct in granting
the
interdict to that effect. ITAC and Bridon UK contend that the
interdict was intended to and in effect has extended the
duration
of the anti-dumping duty. They argue that the Court had no power
and that it was not appropriate for it to extend
the lifespan of
the anti-dumping duty.
SCAW
advanced the argument that anti-dumping dut
ies
do not lapse if after five years a timeous sunset review has not
been completed within 18 months, and that anti-dumping
duties shall
remain in force until the sunset review is finalised. They submit
that the time limit in Article 5.10 does not
apply to the present
matter, but in the event that the Court finds that it does, that
the initiation of a sunset review suspends
the running of the 18
month period prescribed by Article 5.10
78
and regulation 20.
79
They urge us to hold that anti-dumping duties remain in force for
as long as the conclusion of a sunset review is delayed,
even if it
is beyond 18 months. Counsel made much in this regard of the fact
that no regulation provides, in discrete and
express terms, that
anti-dumping duties lapse without more if judicial review
proceedings that interrupt the conclusion of
ITAC’s review
process continue after the five-year plus 18-month period.
In
my view, this contention
hangs too much
on literalism. It is at odds not only with the foundational
rationale and scheme of the international and domestic
anti-dumping
regime, but with the plain import of regulation 20 (which commands
that “[a]ll investigations and reviews
shall be finalised
within 18 months after initiation”). Counsel invited us to
regard regulation 20 as conveying no more
than an exhortation to
ITAC to finalise all its processes within 18 months. That it does.
But it does more. Read, as it
should be, with regulation 53,
which envisages no more than a five-year term for anti-dumping
duties, although they remain
in force until any sunset review “has
been finalised”, its effect is best understood as imposing a
guillotine.
This
conclusion accords with the internationally accepted rationale and
scheme of anti-dumping duties. Duties may be imposed
only after a
full investigation which has led to a definitive finding of
injurious dumping and not by judicial decree. Duties
are remedial
and punitive and for that reason are imposed on a fixed term and
may be extended on proof of dumping that causes
injury to the home
industry affected after a conclusive and fair investigation by a
specialist body established for that purpose.
A crucial building
block of the anti-dumping regime is that duties must be
appropriately tailored to the injury the dumping
of exports causes
to the commerce of the country imposing the duties. A measure of
proportionality is required. A duty must
be imposed only for so
long as it is necessary to ward off proven harmful dumping into the
commerce of the country imposing
it.
This
is especially so if one keeps in mind the purpose anti-dumping
duties are meant to serve. They are short-term punitive
measures
against offending export goods destined for domestic markets. They
are meant to protect domestic commerce and industry
from the
harmful impact of under-priced imports. However, they are not
meant to inhibit permissible competition within the
domestic
economy. As a general proposition, anti-dumping duties should
cease as early as possible and without causing harm
to the domestic
market. Furthermore, they should remain in force only for so long
as it is necessary to counteract dumping
that is harmful to the
domestic market.
Simply
put, duties must remain in force only as long as and to the extent
necessary to prevent injurious dumping. An
indefinitely
elastic term of duties, as contended for by SCAW, would lead to a
routine breach of international obligations on
account of the
laxity or tardiness of domestic authorities, and industries or
because of the “interminable delay”
that the High Court
found “impossible to restrain”. In fact, it would be
impossible to police or enforce the international
law obligations
created by the Anti-Dumping Agreement to the economic detriment of
the member states of the WTO as well as
exporters and consumers.
Whatever
textual doubt there may be about whether the guillotine falls on
the anti-dumping duties at the latest after five years
plus 18
months, a purposive understanding of the domestic regulatory regime
is persuasive because it achieves the beneficial
outcome of
discouraging or stopping venturesome judicial proceedings that can
drag out the life force of the duties in plain
conflict with the
overall policy of the international and domestic regimes.
Ordinarily,
after the initiation of the sunset review, the existing
anti-dumping duty against the product of Bridon UK would
have
lapsed on 16 February 2009. Its duration may not be extended
beyond 18 months after the expiry of the first five year
term from
its initiation (in August 2007). This understanding of the
domestic legislative regime is to be preferred also because
it is
by no means onerous to SCAW or others similarly situated. It is
open to any interested party to seek an initiation of
a fresh
investigation by ITAC into Bridon UK’s trading conduct in
relation to the whole market and that of member states
of the SACU.
In effect, no horse has bolted, as the High Court suggested might
happen if an interim interdict is not granted.
The right to
initiate an investigation into anti-dumping is virtually evergreen
once an existing duty has lapsed.
80
The
High Court expressed a legitimate concern that if regulation 20
were interpreted as providing “a cut off date for
judicial
reviews” that would “emasculate the power of the
court.”
81
It is so that, in conformity with
the
constitutional dictates of procedural justice, section 46
82
of the Act read with regulation 64 gives an interested party the
right to challenge “preliminary decisions” of,
and
“procedures prior to the finalisation of an investigation”
by ITAC. In other words, an interested party need
not wait for a
final recommendation by ITAC or a decision by the Minister on
whether to follow or remit ITAC’s recommendation
before
requiring judicial review of ITAC’s decision. Regulation 64
83
accords with Article 13
84
of the Anti-Dumping Agreement which compels members to maintain
judicial or administrative tribunals that permit prompt review
of
administrative actions relating to final determinations on
anti-dumping duties.
In
this Court too SCAW contended that if regulation 20 requires that
the duration of existing duties is not suspended by the
institution
of judicial review, then the lapse of the duties by operation of
law would render regulation 20 unconstitutional.
It argued that
regulation 20 would have the effect of depriving SCAW of its right
to lawful, reasonable and procedurally fair
administrative action
under section 33(1) of the Constitution.
This
argument improperly conflates the legislatively permissible
duration of existing duties with the right to judicial review

related to any determination of ITAC on existing duties. It is so
that delays in judicial reviews are endemic in most jurisdictions.

This fact must be deemed to be notorious to most member states of
the WTO. It is highly probable that delays in courts and
tribunals
may extend beyond the prescribed lifespan of anti-dumping duties.
However, the lapsing of an existing duty does
not and should not
stand in the way of a fulsome ventilation of court disputes on
dumping duties. The anti-dumping duties
need not be extant for
justice to be done. The procedural lapses may be properly set
aside, but that should not ordinarily
mean that the court itself
may impose anti-dumping duties or keep alive expired duties or that
the claimant has a right to
an extension of duties beyond the
duration of dumping duties that the law permits.
85
If
it were so, parties in
a position similar
to SCAW would in effect hold to ransom domestic high national
executive office-bearers charged with the power
to make
international trade policy, at the expense of competitors, whose
goods are burdened with anti-dumping duties, and all
others
concerned, whilst judicial reviews meander through slow judicial
processes. As I remarked earlier, protracted litigation
would
render nugatory the obligations which a member state bears under
the Anti-Dumping Agreement. Another important consideration
is
that a country’s commercial relations with others would
suffer, as would consumers who seek to procure the products
which
continue to carry punitive duty. All of these would have
deleterious consequences for domestic custom and for mutually

beneficial international trade.
Therefore
,
it was inappropriate for the High Court to extend the term of the
existing anti-dumping duty or to prevent its lapsing. A
court
should be slow to override mandatory legislative provisions
buttressed by international obligations.
Before I conclude
this section of the judgment it is appropriate that I refer to two
decided cases relied upon by SCAW. Both
appear to be at odds with
the decision this Court has reached in the present matter. In
African Explosives Ltd v ITAC and Others
86
the applicant, African Explosives Limited, had instituted a review
application in terms of section 46(1) of the Act. ITAC
contended
that the proceedings were moot and only of academic interest
because anti-dumping investigations are time-specific
and had
become time-barred. ITAC argued that if the court held in favour
of the applicant, it would not be possible for it
to continue with
its investigation as it had to be completed by a fixed future date.
However, the Court found that the 18
month period in regulation 20
was suspended by the institution of a review application and that
this period would not continue
to run until the review application
had been finalised. A similar finding was made by the High Court
in this case.
87
In
Algorax
(Pty) Ltd v ITAC and Others
88
the Court granted an interdictory order against ITAC almost
identical to the one granted by the High Court in this case. In
Algorax
, the Court granted an order interdicting ITAC from
forwarding its recommendation to the second respondent (presumably
the Minister,
although it is not clear from the judgment), pending
the finalisation of a review application. In the light of the
decision
I reach, the decisions of the North Gauteng High Court in
African Explosives
and in
Algorax
are overruled to
the extent that they are inconsistent with this decision.
S
eparation
of powers
The Constitution
makes no express provision for separation of powers. In the
First
Certification
judgment,
89
the Court was satisfied that the new Constitution did comply
with the requirement for separation of powers envisaged in
Constitutional
Principle VI.
90
It reasoned as follows:
“
The principle of
separation of powers, on the one hand, recognises the functional
independence of branches of government. On
the other hand, the
principle of checks and balances focuses on the desirability of
ensuring that the constitutional order, as
a totality, prevents the
branches of government from usurping power from one another. In
this sense it anticipates the necessary
or unavoidable intrusion of
one branch on the terrain of another. No constitutional scheme can
reflect a complete separation
of powers: the scheme is always one of
partial separation.”
91
It is now clear
from a steady trickle of judgments that the doctrine of separation
of powers is part of our constitutional architecture.
92
Courts
are
carving out a
distinctively South African design of separation of powers. It
must be a design which in the first instance is
authorised by our
Constitution itself. In other words it must sit comfortably with
the democratic system of government we
have chosen. It must find
the careful equilibrium that is imposed on our constitutional
arrangements by our peculiar history.
93
For instance, it must ensure effective executive government to
minister to the endemic deprivation of the poor and marginalised

and yet all public power must be under constitutional control. Our
system of separation of powers must give due recognition
to the
popular will as expressed legislatively provided that the laws and
policies in issue are consistent with constitutional
dictates.
In our
constitutional democracy, all public power is subject to
constitutional control.
94
Each arm of the state must act within the boundaries set.
However, in the end, courts must determine whether unauthorised

trespassing by one arm of the state into the terrain of another has
occurred. In that narrow sense, the courts are the ultimate

guardians of the Constitution.
95
They do not only have the right to intervene in order to prevent
the violation of the Constitution, they also have the duty
to do
so.
96
It is in the
performance of this role that courts are more likely to confront
the question of whether to venture into the domain
of other
branches of government and the extent of such intervention. It is
a necessary component of the doctrine of separation
of powers that
courts have a constitutional obligation to ensure that the exercise
of power by other branches of government
occurs within
constitutional bounds. But even in these circumstances, courts
must observe the limits of their own power.
97
For example, not
infrequently courts are invited by litigants to intervene in the
domain of other branches of government. That
was the situation in
Doctors for Life
.
98
This was the case in which pregnancy and abortion-related
legislation was challenged on the ground that Parliament had failed

in its duty to facilitate public involvement. The purpose of this
constitutional requirement is to facilitate participatory

democracy. The Court had the following to say about the separation
of powers:
“
The constitutional
principle of separation of powers requires that other branches of
government refrain from interfering in parliamentary
proceedings.
This principle is not simply an abstract notion; it is reflected in
the very structure of our government. The
structure of the
provisions entrusting and separating powers between the legislative,
executive and judicial branches reflects
the concept of separation
of powers. The principle ‘has important consequences for the
way in which and the institutions
by which power can be exercised’.
Courts must be conscious of the vital limits on judicial authority
and the Constitution’s
design to leave certain matters to
other branches of government. They too must observe the
constitutional limits of their authority.
This means that the
Judiciary should not interfere in the processes of other branches of
government unless to do so is mandated
by the Constitution.”
99
(Footnote omitted.)
Where
the Constitution or valid legislation has entrusted specific powers
and functions to a particular branch of government
,
courts may not usurp that power or function by making a decision of
their preference. That would frustrate the balance of
power
implied in the principle of separation of powers. The primary
responsibility of a court is not to make decisions reserved
for or
within the domain of other branches of government, but rather to
ensure that the concerned branches of government exercise
their
authority within the bounds of the Constitution. This would
especially be so where the decision in issue is policy-laden
as
well as polycentric.
In
the High Court the Minister joined issue with ITAC and opposed the
granting of the interdict. In a deposition filed on his
behalf, he
contended that the interdict would prevent him from exercising his
power and discretion to act in terms of the statutes
and frustrate
the exercise of his duties related to the determination of
anti-dumping duties. He contended that if the interdict
were to be
granted it would be an unjustified limitation of his functions
under the Act and the BTT Act. He added that an
applicant
similarly situated to SCAW, which has asked that duties be imposed
on the products of a competitor in order to protect
its financial
interest, would through the courts be able to frustrate the
exercise of the ministerial discretion.
The
affidavit explains that no decision has been made in relation to
the existing anti-dumping duty. Once the recommendation
of ITAC
has been received, there would be extensive internal evaluation and
only then would the Minister make a decision in
terms of the
statutes. Lastly, the Minister draws attention to the fact that in
the past he has referred recommendations back
to ITAC for further
evaluation and consideration. He makes the final point that an
interdict would hinder the proper administration
of economic
policy, a matter which the Constitution entrusts to the national
executive.
The
statutory discretion the Min
ister
commands is indeed wide. Barring the predictable requirement that
he must wield the power subject to the Constitution
and the law, he
or she may accept, or reject the recommendation or remit it to
ITAC. Nothing obliges the Minister to follow
slavishly the
reasoning and findings of ITAC. It is open to the Minister, in
making a decision, to weigh in polycentric considerations
such as
diplomatic relationships, the country’s balance of payments,
the regional or global trading conditions, goods
needed to foster
economic growth and so forth. Thus, the recommendation of ITAC may
be important but it is not the sole predictor
of what the Minister
is likely to decide.
It
is a matter of some concern that the High Court does not refer to
the Minister’s legislative power and discretion in
relation
to the imposition, alteration or removal of duties. Its judgment
is silent about the fact that the Minister opposed
the granting of
the urgent interim relief sought and put up separation of powers as
a reason why the interdict would be constitutionally
impermissible.
There is no indication in the judgment that the High Court had
properly considered the role of executive power
and policy
formulation in matters of national and international trade and
industry. Equally so, the judgment is silent on
South Africa’s
international trade obligations in relation to anti-dumping duties.
In effect, once the High Court reached
its conclusion that ITAC
had botched its factual findings, it concluded that SCAW had
established a clear right to an interdict.
That was the essence of
its error.
ITAC
accordingly urged us to decide that the order of the High Court
breaches the doctrine of separation of powers. In particular,
it
sought us to find that a court may not interfere with the
discretionary and polycentric discretion conferred on ITAC and
on
both Ministers under the BTT Act. They argued that courts are not
well suited to judge international trade policy and related

polycentric decisions properly suited to specialist bodies such as
ITAC and the executive government.
That
submission is well made. When a court is invited to intrude into
the terrain of the executive, especially when the executive

decision
-making process is still
uncompleted, it must do so only in the clearest of cases and only
when irreparable harm is likely to
ensue if interdictory relief is
not granted.
100
This is particularly true when the decision entails multiple
considerations of national policy choices and specialist knowledge,

in regard to which courts are ill-suited to judge. In
Bato
Star
this Court made the point that a
“court should be careful not to attribute to itself superior
wisdom in relation to matters
entrusted to other branches of
government.
A
court should thus give due weight to findings of fact and policy
decisions made by those with special expertise and experience
in
the field.”
101
In any event, the formulation and implementation of international
trade policy is a matter, as I have earlier said, that resides
in
the heartland of national executive function. That much the
Minister asserted when the matter came before the High Court
and
opposed the granting of the interim interdict.
It
seems to me self-evident that the
setting, changing or removal of an anti-dumping duty in order to
regulate exports and imports is a patently executive function
that
flows from the power to formulate and implement domestic and
international trade policy. That power resides in the kraal
of the
national executive authority.
In
particular, SCAW has not established, nor is it open to it to
contend, that it has a right to a decision that favours the

continuation of the anti-dumping duty. It has no right to and
cannot contend that ITAC should recommend that anti-dumping
duties
should be imposed. Even less so, SCAW has no right to require the
Minister to accept any recommendation that may favour
the
continuation of anti-dumping duties. By parity of reasoning, SCAW
cannot claim as a right that the Minister of Finance
may not give
effect to the request of the Minister to terminate the existing
anti-dumping duty. It is of course perfectly
entitled to require
that ITAC must act within the bounds of the Constitution and the
law. Its right is to fairness in decision-making.
This, it may
exact from ITAC through judicial review.
102
I
have found that the effect of the interdict the High Court has
granted is to extend the legislatively determined duration
of the
existing anti-dumping duty. In my view, when the Court extended
the existing anti-dumping duty it ventured into the
constitutional
terrain of the national executive. The order trenches on the
principle of separation of powers. Courts may
not without
justification trench upon the polycentric policy terrain of
international trade and its concomitant foreign relations
or
diplomatic considerations reserved by the Constitution for the
national executive.
The
High Court felt constrained to grant an interim interdict because
the recommendation of ITAC on the existing anti-dumping
duty is an
important jurisdictional fact for any action the Minister might
take in relation to the fate of the anti-dumping
duty.
103
For this proposition, the High Court relied on the remarks of
Harms ADP in
Minister of Finance and
Another v Paper Manufacturers Association of South Africa
.
104
In
Paper Manufacturers
the
Minister of Finance gave notice of his intention to submit a
Taxation Laws Amendment Bill to Parliament. The respondent

objected to certain items of the proposed amendment and made an
application in the High Court to interdict the Minister, in
the
form of an interim interdict, from introducing the Bill into
Parliament to the extent that it related to items the respondent

objected to. The High Court granted the interdict. On appeal, the
Supreme Court of Appeal set aside the interim interdict
on the
grounds that although the order was framed as an interim interdict,
it was in effect final and that the applicant had
to prove a clear
right which it had not done. The Court also held that the
applicant had no right to the relief it sought
and therefore, no
right to the interdict. The Court reasoned that traditionally,
courts resisted intrusions into the internal
procedures of other
branches of government and that courts took the general view that,
where there was a flaw in the law-making
process, which would
result in an invalid law, the appropriate time to intervene would
be after the completion of the legislative
process. Then, the
appropriate remedy would be to have the resulting law declared
invalid.
105
In
the course of analysing the provisions of the Act, Harms ADP
remarked that:
“
The
ITAC report is not only an important link in the administrative and
legislative chain; it is indeed a jurisdictional fact
for the
ministerial actions that follow. It is consequently not surprising
that the ITA Act makes special provision for the
review of any
determination, recommendation or decision of ITAC
(s 46). A fatal flaw in the process at the ITAC stage affects the
whole process”.
106
It
seems to me correct that the Minister may discontinue, amend or
impose an anti-dumping duty only after considering a recommendation

of ITAC. I accept that, in this sense, the recommendation is a
jurisdictional fact for the decision of the Minister. Absent
a
preceding investigation and recommendation, the Minister may not
,
on his or her own, request the Minister of Finance to impose an
anti-dumping duty. I therefore agree that “[a] fatal
flaw in
the process at the ITAC stage affects the whole process”.
107
It must however be kept in mind that firstly
Paper
Manufacturers
is not only
distinguishable on the facts but also it is not authority for the
proposition contended for by SCAW, which the
High Court accepted,
namely that if ITAC has botched its investigative processes the
High Court is entitled to extend the legislatively
fixed lifespan
of the anti-dumping duty.
The
fact that the recommendation is a “jurisdictional fact”
does not entitle an aggrieved party to an interdict
that gives new
life to an anti-dumping duty whose duration would otherwise end.
This is so because the lawful lifespan of
a duty is legislatively
limited and the Minister has a wide discretion to accept or reject
the recommendations. The High Court
was wrong in taking the view
that it was obliged to grant an interdict because a fatal flaw in
the investigative process entitled
it to do so.
For
all these reasons I think that the interdict improperly breached
the doctrine of separation of powers which is an integral
part of
our Constitution. It was inappropriate for the High Court to grant
an interim order which invaded the terrain of the
national
executive function without appropriate justification.
Given
the conclusion I reach on the legislatively prescribed duration of
an anti-dumping duty and on separation of powers, I
need not decide
any of the alternative contentions advanced by the parties.
Appropriate relief
As
I have intimated earlier, it is indeed in the interests of justice
that this Court grant ITAC leave to appeal. I again make
it clear
that SCAW is entitled to proceed with its final review before the
High Court should it so choose. On the view I take,
the outcome of
the review has no bearing on the lawful duration of the
anti-dumping duties. This is consistent with the attitude
I adopt
that expiry of existing duty does not impede finalisation of
judicial review. The right to procedural justice does
not
translate to a right to have the legally permissible term of
dumping duties extended beyond its limit. In the final instance
I
consider it just and equitable that I uphold the appeal and set
aside the “interim” interdict made by the High
Court.
Costs
This
is an out and out commercial matter.
In
the final instance, the dispute is about economic competition in
the terrain of international trade and commerce. SCAW is
anxious
to protect its domestic manufacturing outputs at markets. The
judicial review initiated by SCAW is driven by a profit
motive. On
the other hand, Bridon UK too seeks to advance its global market in
steel products. It may do so only within the
confines
international and domestic law. Although ITAC is a state organ,
its specialist role in international trade is no
reason for costs
not to follow the event. ITAC and Bridon UK have been
substantially successful and there is no reason why
that favourable
outcome should not translate into a cost order in their favour.
I
am minded to order that ITAC pay the
tendered wasted costs of the abortive applications for amendment
and for direct access
including the costs of two counsel. However,
I will require SCAW to pay costs of the application for leave to
appeal and of
the appeal of ITAC including costs consequent upon
the use of two counsel.
Order
The
following order is made:
The
application to join Bridon International Limited as a party to the
litigation is granted.
The
application for leave to appeal is granted.
The
appeal succeeds.
The
interdict granted by the North Gauteng High Court, Pretoria on 5
January 2009 is set aside.
In
place of the order of the High Court the following is substituted:
“The application is dismissed with costs including costs of
two counsel.”
The
International Trade Administration Commission is ordered to pay
the wasted costs of SCAW South Africa (Pty) Ltd occasioned
by the
abortive application for the amendment of its Notice of Motion.
The costs shall include costs of two counsel.
SCAW
South Africa (Pty) Ltd is ordered to pay the costs of the
application for leave to appeal and of the appeal of the

International Trade Administration Commission and of Bridon
International Limited which shall include costs of two counsel.
Ngcobo CJ, Cameron J, Froneman J,
Khampepe J, Mogoeng J, Nkabinde J, Skweyiya J and Van der
Westhuizen J concur in the judgment
of Moseneke DCJ.
For the Applicant:
For the Respondent:
For the Intervening Party:
Advocate S du Toit
SC and Advocate I Goodman instructed by the State Attorney.
Advocate G Marcus
SC, Advocate D Unterhalter SC and Adv Cockrell instructed by Webber
Wentzel Attorneys.
Advocate JL Van
der Merwe SC and Advocate LB Van Wyk SC instructed by Van der Merwe
Attorneys.
1
As a member of the WTO, South Africa is also a
signatory to the General Agreement on Tariffs and Trade (GATT).
This agreement
was approved by the South African Parliament through
the Geneva General Agreement on Tariffs and Trade Act 29 of 1948.
The international
rules relating to dumping are contained in Article
VI of the GATT and the Anti-Dumping Agreement.
2
71 of 2002.
3
Government Gazette
,
GG 25684, GN 3197, 14 November 2003. The Anti-Dumping Regulations
were made under section 59 of the Act.
4
91 of 1964.
5
107 of 1986.
6
In
SCAW South Africa (Pty) Ltd v The International Trade
Administration Commission and Others,
North Gauteng High Court,
Pretoria, Case No 48829/2008, 5 January 2009, unreported, the court
order provides:
“
1. An order is granted in terms of prayers 2 and
3 of the Notice of Motion.”
Prayers
2 and 3 of SCAW’s Notice of Motion sought an order in the
following terms:
“
2.1. Interdicting and restraining the First
Respondent from forwarding to the Second Respondent its
recommendation to terminate
the existing anti-dumping duty imposed
in respect of stranded wire, ropes and cables, of iron or steel, not
electrically insulated,
of a diameter exceeding 8 mm (excluding that
of wire of stainless steel, that of wire plated, coated or clad with
copper and
that identifiable as conveyor belt cord) imported from
the Fourth Respondent (“the existing anti-dumping duty”);
2.2. Interdicting and restraining the Second Respondent
from accepting the First Respondent’s recommendation and from
requesting
the Third Respondent to terminate the existing
anti-dumping duty;
2.3. To the extent that the Second Respondent may
already have requested the Third Respondent to terminate the
existing anti-dumping
duty, interdicting and restraining the Third
Respondent from giving effect to this request by terminating the
existing anti-dumping
duty;
3. That the relief set out in prayer 2 operate with
immediate effect pending the final determination of the application
referred
to in prayer 4 below”.
7
Rule 8(1) provides:
“
Any
person entitled to join as a party or liable to be joined as a party
in the proceedings may, on notice to all parties, at
any stage of
the proceedings apply for leave to intervene as a party.”
8
Rule 12 provides:
“
Any person entitled to join as a plaintiff or
liable to be joined as a defendant in any action may, on notice to
all parties,
at any stage of the proceedings apply for leave to
intervene as a plaintiff or a defendant. The court may upon such
application
make such order, including any order as to costs, and
give such directions as to further procedure in the action as to it
may
seem meet.”
9
Independent Newspapers (Pty) Ltd v Minister
for Intelligence Services (Freedom of Expression Institute as Amicus
Curiae) In re:
Masetlha v President of the Republic of South Africa
and Another
[2008] ZACC 6
;
2008 (5) SA 31
(CC);
2008 (8) BCLR 771
(CC) at para 17;
Zondi
v MEC for Traditional and Local Government Affairs
[2004]
ZACC 19
;
2005 (3) SA 589
(CC);
2005 (4) BCLR 347
(CC) at para 20
;
Minister of Public Works
and Others v Kyalami Ridge Environmental Association and Others
(Mukhwevho Intervening)
[2001]
ZACC 19
;
2001 (3) SA 1151
(CC);
2001 (7) BCLR 652
(CC) at para 30;
and
Jooste v Score
Supermarket Trading (Pty) Ltd (Minister of Labour intervening)
[1998] ZACC 18
;
1999 (2) SA 1
(CC);
1999 (2) BCLR 139
(CC) at paras
7-9
.
10
Independent Newspapers
above
n 9 at para 17.
11
The Board was established in terms of section 2 of BTT Act.
12
Section 4(1)(a) of the BTT Act empowered the Board to investigate
dumping, and section 4(1)(b) required the Board to report and
make
recommendations to the Minister. Section 4(2)(a) provides that the
Minister may accept or reject or remit the recommendation
back to
the Board for reconsideration. If he accepts the recommendation,
section 4(2)(b) provides that he may request the Minister
of Finance
to amend the duties.
13
Regulation 45 provides:
“
45.1 The Commission will only initiate an
interim review if the party requesting such interim review can prove
significantly changed
circumstances.
45.2 Where an importer, exporter or foreign producer
has not cooperated in the Commission’s investigation that led
to the
imposition of the anti-dumping duty and such importer,
exporter or foreign producer is subsequently willing to supply such
information,
this change in disposition will not qualify as
significantly changed circumstances.
45.3 No party shall be precluded from requesting an
interim review simultaneously with a sunset review in order to
expand or limit
the scope of application or level of any
anti-dumping duties.”
14
Regulation 53.1 provides:
“
Anti-dumping duties shall remain in place for a
period not exceeding 5
years from the imposition or the last
review thereof.”
15
Regulation 53.2 provides:
“
If a sunset review has been initiated prior to
the lapse of an anti-dumping duty, such anti-dumping duty shall
remain in force
until the sunset review has been finalised.”
16
Regulation 54.3 provides:
“
Interested parties will receive 30 days from the
publication of the notice contemplated in subsection 1 to request a
sunset review.”
17
Regulation 59 provides:
“
The Commission’s recommendation may result
in the withdrawal, amendment or reconfirmation of the original
anti-dumping duty.”
18
Regulation 43 provides:
“
43.1 All interested parties will be informed of
the essential facts to be considered in the Commission’s final
determination.
43.2 All parties will receive 14 days from the dispatch
of the essential facts letter to comment thereon.
43.3 The Commission may grant parties an extension on
reasonable grounds shown.
43.4 In its final determination the Commission will
consider all relevant comments on the essential facts letter made by
cooperating
interested parties, provided such comments are received
by the deadline contemplated in subsections 2 and 3.”
19
Section 55(1) of the Customs and Excise Act provides:
“
The goods specified in Schedule 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, countervailing or safeguard 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.”
20
Section 55(3) of the Customs and Excise Act provides:
“
(a)
Whenever
any anti-dumping, countervailing or safeguard duty is imposed on any
goods under the provisions of this Chapter, the
owner of any such
goods stored in a customs and excise warehouse shall produce the
invoice and other documents relating to such
goods to the Controller
not later than the time of entry of all or any part of such goods
for removal from such warehouse.
(b)
The
provisions of paragraph
(a)
shall not apply in the case of such
goods entered for export from a customs and excise warehouse.”
21
Id.
22
Progress Office Machines CC v South African Revenue Services and
Others
2008 (2) SA 13
(SCA) at para 6.
23
Above n 3.
24
Section 2 of the Act provides:
“
The object of the Act is to foster economic
growth and development in order to raise incomes and promote
investment and employment
in the Republic and within the Common
Customs Area by establishing an efficient and effective system for
the administration of
international trade subject to this Act and
the SACU agreement.”
25
Sections 5 of the Act provides:
“
The Minister may, by notice
in the
Gazette
and
in accordance with procedures and requirements established by the
Constitution or any other relevant law, issue Trade Policy

Statements or Directives.”
Section 6 of the Act provides:
“
(1) The Minister may, by
notice in the
Gazette
,
prescribe that no goods of a specified class or kind, or no goods
other than goods of a specified class or kind, may be—
(a)
imported
into the Republic;
(b)
imported
into the Republic, except under the authority of and in accordance
with the conditions stated in a permit issued by the
Commission;
(c)
exported
from the Republic; or
(d)
exported
from the Republic, except under the authority of and in accordance
with the conditions stated in a permit issued by the
Commission.
(2) For the purpose of subsection
(1) goods may be classified according to—
(a)
their
source or origin;
(b)
their
intermediate or final destination;
(c)
the
channels along which they are transported;
(d)
the
manner in which they are imported or exported;
(e)
the
purposes for which they are intended to be used;
(f)
the
methods or processes by which they are produced;
(g)
the
use of non-renewable natural resources in their production, and
their life-cycle impact on the natural environment; or
(h)
any
other classification methods determined by the Minister.
(3) A notice issued in terms of this
section applies to any person who, at the time of the import of
particular goods into the
Republic, or the export of particular
goods from the Republic—
(a)
owns
those goods;
(b)
carries
the risk of those goods;
(c)
takes
or attempts to bring those goods into, or takes or attempts to take
those goods from, the Republic;
(d)
in any
manner whatsoever has a beneficial interest in those goods;
(e)
acts
on behalf of a person referred to in paragraph
(a)
,
(b)
,
(c)
or
(d)
;
or
(f)
pretends
to be a person referred to in paragraph
(a)
,
(b)
,
(c)
,
(d)
or
(e)
.
(4) Despite any other provision of
this Act, a notice issued in terms of this section in respect of
goods that are the subject
of a notice issued by the Minister of
Defence in terms of section 4C(1)
(a)
of the Armaments Development and
Production Act, 1968, is deemed to have been revoked as from the
date of the latter notice.”
Section 7 of the Act provides:
“
(1) The International Trade
Administration Commission is hereby established, and—
(a)
has
jurisdiction throughout the Republic;
(b)
is a
juristic person; and
(c)
must
exercise its functions in accordance with this Act and any other
relevant law.
(2) The Commission—
(a)
is
independent and subject only to—
(i) the Constitution and the law;
(ii) any Trade Policy Statement or Directive issued by
the Minister in terms of section 5; and
(iii) any notice issued by the Minister in terms of
section 6; and
(b)
must
be impartial and must perform its functions without fear, favour or
prejudice.
(3) Each organ of state must assist the Commission to
maintain its independence and impartiality, and to exercise its
authority
and carry out its functions effectively.”
26
Section 59 of the Act provides:
“
The Minister may make regulations—
(a) regarding the proceedings and functions of the
Commission, after consulting the Commission;
(b) to give effect to the objects of this Act; and
(c) on any matter that may or must be prescribed in
terms of this Act.”
27
Above n 5.
28
Above n 4
.
29
Section 4(2) of BTT Act provides:
“
Upon receipt of the report
and recommendations referred to in subsection (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, 1964 (Act 91 of
1964).”
30
Section 55 of the Customs and Excise Act read
together with Schedule 2.
Section 55 of the Customs and Excise Act provides:
“
(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, countervailing or safeguard 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 International Trade Administration
Act,
2002 (
Act
No. 71 of 2002
), a countervailing duty in
the case of subsidized export as so defined or a safeguard duty or
quota in the case of disruptive
competition as so defined and the
rate at which or the circumstances in which such duty or quota is
imposed in respect of any
imported goods shall be in accordance with
any request by the Minister of Trade and Industry under the
provisions of the International
Trade Administration Act, 2002.
(b) Any such anti-dumping, countervailing or safeguard
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, countervailing or safeguard

duty is imposed in respect of those goods under
section
57A
.
(3)(a) Whenever any anti-dumping, countervailing or
safeguard duty is imposed on any goods under the provisions of this
Chapter,
the owner of any such goods stored in a customs and excise
warehouse shall produce the invoice and other documents relating to

such goods to the Controller not later than the time of entry of all
or any part of such goods for removal from such warehouse.
(b) The provisions of
paragraph
(
a
)
shall not apply in the case of such goods entered for export from a
customs and excise warehouse.
(4) An anti-dumping, countervailing or safeguard duty
or quota imposed under the provisions of this Chapter shall not
apply to
any goods entered under the provisions of any item
specified in Schedule No. 3 or 4 unless such item is specified in
Schedule
No. 2 in respect of such goods.
(5) Notwithstanding the provisions of
section
56
, 5A or
57
,
the Commissioner may, subject to such conditions as he may impose in
each case, exempt from payment of any anti-dumping, countervailing

or safeguard duty, any goods which are imported in such
circumstances or in such quantities that the importation of such
goods
does not, in his opinion, constitute regular importation of
such goods for trade purposes.”
31
Section 63(2) of the Act provides:
“
The laws specified in Schedule 3 are, subject to
subsection (3) and Schedule 2, repealed to the extent indicated in
the third
column of that Schedule.”
32
See section
2(1) and (2) of Schedule 2 of the
Act, read together with sections 3, 4(1) and 5.
Section 2 of Schedule 2 of the Act provides:
“
(1)
Before
the sections listed in section 64(2) come into operation, the
Commission must investigate, and evaluate applications received
by
it in terms of section 26(1)(c) or (d) in accordance with section
32, read with the Board on Tariffs and Trade Act, as if
that Act had
not been repealed.
(2) For the purposes of this item—
(a)
section
26(1)
(c)
must
be regarded as if it read:
‘
(c)
the
amendment of customs duties, including an amendment in respect of
any of the following matters arising in respect of goods
imported
into the Republic—
(i) anti-dumping duties;
(ii) countervailing
duties; or
(iii) safeguard duties; or’;
(b)
section
26(2)
(b)
must
be regarded as if it read:
‘
(b)
received
in terms of subsection (1)
(c)
or
(d)
, in
accordance with the provisions of item 2 of Schedule 2’; and
(c)
a
reference in the Board on Tariffs and Trade Act to the Board must be
regarded as referring to the Commission.”
Section 3 of the Act provides:
“
(1) Subject to subsection
(2), this Act applies to all economic activity within, or having an
effect within, the Republic.
(2) Sections 6, 26(1)
(a)
and 26(2)
(a)
and Part B of Chapter 4 do not apply
to the export or import of goods in respect of which the Minister of
Defence has issued a
notice in terms of section 4C(1)
(a)
of the Armaments Development and
Production Act, 1968 (Act 57 of 1968), prohibiting the—
(a)
export
or import of those goods; or
(b)
export
or import of those goods except under authority of and in accordance
with the conditions stated in a permit referred to
in section
4C(1)
(a)
(ii) or
(vi) of that Act.”
Section 4(1) of the Act provides:
“
The Minister is the head representative of the
Republic to the SACU Council.”
See
section 5 above note 25.
33
See Article 11.3 at [28] above.
34
Article
11.1 provides:
“
An anti-dumping duty shall remain in force only
as long as and to the extent necessary to counteract dumping which
is causing
injury.”
35
See
Article 11.4 at [29] above and Article 5.10
at [30] above.
36
See regulation
53.1
above n 14 and regulation 53.2 above n 15.
Regulation 54.1 provides:
“
A notice indicating that an anti-dumping duty
will lapse on a specific date unless a sunset review is initiated
shall be published
in the Government Gazette
approximately 6
months prior to the lapse of such anti-dumping duty.”
See also
the WTO Panel Report in “United States – Sunset Review
of Anti-Dumping Duties on Corrosion-Resistant Carbon
Steel Flat
Products from Japan”, WT/DS244/R, at p 9, para 7.8 and pp
15-6, para 7.39, footnote 43.
37
Regulation 20, which provides for “Deadlines”,
reads:
“
All investigations and reviews shall be
finalised within 18 months after initiation.”
38
See
Radio Pretoria v Chairperson, Independent Communications
Authority of South Africa and Another
[2004] ZACC 24
;
2005 (4)
SA 319
(CC);
2005 (3) BCLR 231
(CC) at para 19,
De Freitas and
Another v Society of Advocates of Natal
[1998] ZACC 12
;
1998
(11) BCLR 1345
(CC) at para 17; and
S v Pennington and Another
[1997] ZACC 10
;
1997 (4) SA 1076
(CC);
1997 (10) BCLR 1413
(CC)
at para 11.
39
Section 85(2) provides:
“
(2) The President exercises
the executive authority, together with the other members of the
Cabinet, by—
(a)
i
mplementing
national legislation except where the Constitution or an Act of
Parliament provides otherwise;
(b)
developing
and implementing national policy;
. . .
(e)
performing
any other executive function provided for in the Constitution or in
national legislation.”
40
See
Head of Department: Mpumalanga Department of Education and
Another v Hoërskool Ermelo and Another
[2009] ZACC 32
, Case
No CCT 40/09, 14 October 2009, as yet unreported, at paras 42-3;
Department of Land Affairs and Others v Goedgelegen Tropical
Fruits (Pty) Ltd
[2007] ZACC 12
;
2007 (6) SA 199
(CC);
2007 (10)
BCLR 1027
(CC) at para 31;
Alexkor Ltd and Another v The
Richtersveld Community and Others
[2003] ZACC 18
;
2004 (5) SA
460
(CC);
2003 (12) BCLR 1301
(CC) at para 23;
and
National
Education Health and Allied Workers
Union v University of Cape Town and Others
[2002]
ZACC 27
;
2003 (3) SA 1
(CC);
2003 (2) BCLR 154
(CC) at paras 1-5.
41
Section 233 of the Constitution provides:
“
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.”
42
See in general
Bato Star Fishing (Pty)
Ltd v Minister of Environmental Affairs and Others
[2004] ZACC
15
;
2004 (4) SA 490
(CC);
2004 (7) BCLR 687
(CC) at para 46.
43
3 of 2000.
44
Section 167(6) provides:
“
National legislation or the
rules of the Constitutional Court must allow a person, when it is in
the interests of justice and
with leave of the Constitutional Court—
. . .
(b)
to
appeal directly to the Constitutional Court from any other court.”
45
Rule 19 provides:
“
(1)
The
procedure set out in this rule shall be followed in an application
for leave to appeal to the Court where a decision on a

constitutional matter, other than an order of constitutional
invalidity under section 172(2)(a) of the Constitution, has been

given by any court including the Supreme Court of Appeal, and
irrespective of whether the President has refused leave or special

leave to appeal.
(2) A litigant who is aggrieved by
the decision of a court and who wishes to appeal against it directly
to the Court on a constitutional
matter shall, within 15 days of the
order against which the appeal is sought to be brought and after
giving notice to the other
party or parties concerned, lodge with
the Registrar an application for leave to appeal: Provided that
where the President has
refused leave to appeal the period
prescribed in this rule shall run from the date of the order
refusing leave.”
46
[2002]
ZACC 12; 2002 (5) SA 401 (CC); 2002 (8) BCLR 771
(CC) at para 8.
47
59 of 1959.
48
Khumalo and Others v Holomisa
above n 46 at para 8.
49
[2002] ZACC 16
;
2002 (5) SA 703
(CC).
50
Id at para 8.
51
1993 (1) SA 523
(A) at 532I-533A.
52
For example, see
Van
Niekerk and Another v Van Niekerk and Another
2008
(1) SA 76
(SCA) at para 9;
S v Western
Areas Ltd and Others
2005 (5) SA 214
(SCA) at para 36;
Cronshaw and Another
v Coin Security Group (Pty) Ltd
[1996] ZASCA 38
;
1996
(3) SA 686
(A) at 690A–691G; and
African
Wanderers Football Club (Pty) Ltd v Wanderers Football Club
1977
(2) SA 38
(A) at 47H-49A.
53
TAC (1)
above n
49 at para 8.
54
Above n 52 at para 20.
55
Above n 47.
56
Above n 46.
57
Above n 51.
58
Above n 52 a
t para 28.
59
Philani-Ma-Afrika & Others v W M Mailula & Others
,
Supreme Court of Appeal, Case No 674/08, 25 September 2009,
unreported. The issue of the appealability of an interim execution

order was considered by the Supreme Court of Appeal after this Court
in
Machele and Others v Mailula and Others
[2009] ZACC 7
;
2009
(8) BCLR 767
(CC) had reserved that issue for decision by the
Supreme Court of Appeal.
60
Above n 52 at para 20
.
61
Philani-Ma-Africa
above
n 59 at para 20.
62
South African Motor Industry Employers’
Association v South African Bank of Athens Ltd
1980 (3) SA 91
(A) at 96H.
63
2005 (3) SA (1) (SCA) at para 24. Also see
South
African National Defence Union v Minister of Defence and Others
2007
(1) SA 402
(SCA) at para 39 (although the Supreme Court of Appeal
decision was reversed this portion of its reasoning was not
questioned).
64
Machele
and Others v Mailula and Others
above n 59.
65
TAC
(1)
above n 49.
66
Machele
above n 59 at para 24. Paragraphs 22-3 of
Machele
,
in which Skweyiya J quoted from
TAC (1)
, state:
“
[22] It is generally not in the interests of
justice for a litigant to be granted leave to appeal against an
interim order of
execution. The rationale underlying the
non-appealability of interim orders was stated by this Court in the
following terms:
‘
[T]he effect of granting leave to appeal against
an order of interim execution will defeat the very purpose of that
order. The
ordinary rule is that the noting of an appeal suspends
the implementation of an order made by a court. An interim order of
execution
is therefore special relief granted by a court when it
considers that the ordinary rule would render injustice in a
particular
case. Were the interim order to be the subject of an
appeal that, in turn, would suspend the order.’ (Footnote
omitted.)
[23] I pause to note, however, that
while the rationale for the non-appealability of
interim orders is generally sound, it does not always provide for
situations where the injustice that arises falls not on the
party in
whose favour the interim order or special relief is granted, but on
the party who would, in the ordinary course of events,
seek to
appeal against the interim order. This matter presents one of those
situations. Such a concern is acknowledged by the
decision in
TAC
I
where, after holding that “it
will generally not be in the interests of justice for a litigant to
be granted leave to appeal
against an interim order of execution”,
the Court continued to say the following:
‘
[F]or an applicant to succeed
in such an application,
the applicant
would have to show that irreparable harm would result if the interim
appeal were not to be granted
–
a matter which would, by definition, have been considered by the
Court below in deciding whether or not to grant the execution
order.
If irreparable harm cannot be shown, an application for leave to
appeal will generally fail.’” (Original
emphasis.)
67
Billiton Aluminium SA Ltd
t/a Hillside Aluminium v Khanyile and Others
[2010] ZACC 3
, Case No CCT 72/09, 18 February 2010, as yet
unreported, at para 15 and
Albutt v
Centre for the Study of Violence and Reconciliation and Others
[2010] ZACC 4
, Case No CCT 54/09, 23
February 2010, as yet unreported, at para 23.
68
Zweni
above n 51
at 532I-533A.
69
Metlika Trading
above
n 63 at paras 22-4.
70
Above n 63 at para 24.
71
National Gambling Board v
Premier, KwaZulu-Natal and Others
[2001] ZACC 8
;
2002 (2) SA 715
(CC);
2002 (2) BCLR 156
(CC) at para
48.
Section
38 of the Constitution provides:
“
Anyone listed in this section
has the right to approach a competent court, alleging that a right
in the Bill of Rights has been
infringed or threatened, and the
court may grant appropriate relief, including a declaration of
rights. The persons who may
approach a court are—
(a)
anyone
acting in their own interest;
(b)
anyone
acting on behalf of another person who cannot act in their own name;
(c)
anyone
acting as a member of, or in the interest of, a group or class of
persons;
(d)
anyone
acting in the public interest; and
(e)
an
association acting in the interest of its members.”
Section
46
(1) of the Act provides:
“
A person affected by a determination,
recommendation or decision of the Commission in terms of
section
16
or
17
or this Chapter, may apply to a High Court for a review of that
determination, recommendation or decision.”
See
Erasmus et al
Superior Court Practice
(Juta, Cape Town 2009) at E8-1 to
E8-4, E8-8A to E8-14 (Revision Service 33).
72
In
Administrator, Cape, and Another v Ntshwaqela and Others
1990
(1) SA 705
(A) at 714J-715E it was held that:
“
When a judgment has been delivered in Court,
whether in writing or orally, the Registrar draws up a formal order
of Court which
is embodied in a separate document signed by him. It
is a copy of this which is served by the Sheriff. There can be an
appeal
only against the substantive order made by a Court, not
against the reasons for judgment.”
See
further
Constantia Insurance Co Ltd v Nohamba
1986 (3) SA 12
(A) at 43A.
73
Administrator, Cape, and Another v Ntshwaqela and Others
above
n 72 at 715C-716C.
74
SCAW South Africa (Pty) Ltd v The International Trade
Administration Commission and Others
North Gauteng High Court,
Pretoria, Case No 48829/2008, 16 February 2009, unreported (the
judgment in the application for leave
to appeal against the order of
5 January 2009), at 6-7.
75
Regulation 64 provides:
“
64.1 Without limiting a court of law’s
jurisdiction to review final decisions of the Commission, interested
parties may
challenge preliminary decisions or the Commission’s
procedures prior to the finalisation of an investigation in cases
where
it can be demonstrated that—
(a) the Commission’s has acted contrary to the
provisions of the Main Act or these regulations;
(b) the Commission’s action or omission has
resulted in serious prejudice to the complaining party; and
(c) such prejudice cannot be made undone by the
Commission’s future final decision.
64.2 Interested parties must give the Commission at
least 30 days’ notice prior to filing any judicial review
relating to
preliminary or final determinations.
64.3 Any Commission decision may be varied to give
effect to a ruling of a Dispute Panel or the Appellate Body under
the World
Trade Organisation Dispute Settlement Mechanism.
64.4 A Commission decision may be varied to give effect
to negotiations under the World Trade Organisation Dispute
Settlement
Mechanism, provided the Commission has consulted with the
affected interested parties regarding any proposed variation.”
76
Section 46 of the Act gives parties the right to
apply to the High Court for a review of the Commission’s
recommendations,
determinations or decisions. See section 46 above
n 71.
77
High Court judgment in the application for leave
to appeal above n 74 at 5.
78
See [30] a
bove.
79
Above n 37.
80
See regulation 45.3 above n 13 and regulation 66.
Regulation 66 provides:
“
Where the Commission, following an interim
review, recommends that the existing anti-dumping duty be decreased
or withdrawn, the
relevant importer or importers may request that
anti-dumping duties be refunded in line with the Commission’s
findings.”
81
High Court judgment in the application for leave to appeal above n
74 at 6.
82
Above n 71.
83
Above n 75.
84
Article 13 provides:
“
Every Member whose national
legislation contains provisions on anti-dumping measures shall
maintain judicial, arbitral or administrative
tribunals or
procedures for the purpose,
inter alia
,
of the prompt review of administrative actions relating to final
determinations and reviews of determinations within the meaning
of
Article 11. Such tribunals or procedures shall be independent of
the authorities responsible for the determination or review
in
question.”
85
This conclusion appears to be supported by the following:
In
the matter of “
Brazil – Measures Affecting
Imports of Retreaded Tyres”,
WT/DS332/AB/R
at pp 98-9, paras 248-252 and p 101, the WTO Appellate Body found
that steps taken under the direction of a domestic court
order may nevertheless place a Member state in breach of its
international
obligations. South Africa was at risk of being in
breach of its international obligations in terms of the Anti-Dumping
Agreement
when, in 2008, Indonesia lodged a request for
consultations with the WTO against South Africa under Dispute
WT/DS374/1, for its
continued imposition of anti-dumping duty on
imports of uncoated woodfree white A4 paper from Indonesia. The
complaint acknowledged
that interim orders issued in domestic
judicial proceedings had prevented the final determination of the
sunset review, but contended
that this nevertheless constituted a
failure to complete the sunset review within an appropriate time
under clause 11.4 of the
Anti-Dumping Agreement. The request for
consultation was withdrawn on 25 November 2008, when South Africa
terminated the anti-dumping
duty on uncoated woodfree white A4 paper
imported from Indonesia. This product was the subject matter of the
dispute in
Progress Office Machines
above n 22.
Furthermore,
in the matter of “Mexico – Definitive Countervailing
Measures on Olive Oil from the European Communities”,

WT/DS341/R, at pp 40-1, paras 7.117-7.123, a WTO panel found, albeit
in the context of an investigation on the imposition of

countervailing measures under Article 11.11 of the Agreement on
Subsidies and Countervailing Measures, that the requirement that
an
investigation be completed within 18 months is mandatory and does
not allow the period to be prolonged.
Compare,
however, the WTO Panel Report in “United States – Sunset
Review of Anti-Dumping Duties on Corrosion-Resistant
Carbon Steel
Flat Products from Japan” above n 36 pp 8-9, para 7.8 and pp
15-6, para 7.39; the WTO Panel Report on “Guatemala
–
Definitive Anti-Dumping Measures on Grey Portland Cement from
Mexico”, WT/DS156/R, at p 335, para 8.102; and WTO
Panel
Report on “United States – Laws, Regulations and
Methodology for Calculating Dumping Margins (‘Zeroing’)”,

WT/DS294/R, at p 132, para 7.220.
86
North Gauteng High Court, Pretoria, Case No 15027/2006, 5 August
2008, unreported.
87
See [72] above.
88
North Gauteng High Court, Pretoria, Case No 25233/05, 10 September
2005, unreported.
89
Ex Parte Chairperson of the Constitutional Assembly: In Re
Certification of the Constitution of the Republic of South Africa,

1996
[1996] ZACC 26
;
1996 (4) SA 744
(CC);
1996 (10) BCLR 1253
(CC).
90
Schedule 4 to the Interim Constitution of the
Republic of South Africa, Act 200 of 1993 contained a set of
constitutional principles
with which the final Constitution of the
Republic of South Africa had to comply.
Constitutional
Principle VI provided:
“
There shall be a separation of powers between
the legislature, executive and judiciary, with appropriate checks
and balances to
ensure accountability, responsiveness and openness.”
In
the
First
Certification
judgment above n 89 at para 1, this Court was required to “
pronounce
whether or not the Court certifies that all the provisions of South
Africa’s proposed new Constitution comply
with certain
principles contained in the country’s current Constitution.”
91
First Certification
judgment above n 89 at para 109. See also
Nyathi v Member
of the Executive Council for the Department of Health, Gauteng and
Another
[2008] ZACC 8
;
2008 (5) SA 94
(CC);
2008 (9) BCLR 865
(CC) at para 88;
Bato
Star
above n 42 at para 46; and
Pharmaceutical
Manufacturers Association of SA and Another: In Re Ex Parte
President of the Republic of South Africa and Others
[2000] ZACC
1
;
2000 (2) SA 674
(CC);
2000 (3) BCLR 241
(CC) at para 45.
92
Bato Star
above
n 42;
Van Rooyen and Others v S and
Others
[2002] ZACC 8
;
2002 (5) SA 246
(CC);
2002 (8) BCLR 810
(CC);
Pharmaceutical
Manufacturers
above n 91; and
Executive Council, Western Cape Legislature, and Others v
President of the Republic of South Africa and Others
[1995] ZACC
8
;
1995 (4) SA 877
(CC);
1995 (10) BCLR 1289
(CC).
93
As Ackermann J foresaw in
De Lange v Smuts NO and Others
[1998] ZACC 6
;
1998 (3) SA 785
(CC);
1998 (7) BCLR 779
(CC) at para
60.
94
Pharmaceutical Manufacturers
above
n 91 at paras 19-20;
Doctors for Life International v
Speaker of the National Assembly and Others
[2006] ZACC 11
;
2006
(6) SA 416
(CC)
at para 38;
2006 (12) BCLR
1399
(CC) at 1417F.
95
Doctors for Life International v Speaker of the National Assembly
and Others
[2006] ZACC 11
;
2006 (6) SA 416
(CC)
at
para 38;
2006 (12) BCLR 1399
(CC) at 1417F-G.
96
South African Association
of Personal Injury Lawyers v Heath and Others
[2000] ZACC 22
;
2001 (1) SA 883
(CC);
2001 (1) BCLR 77
(CC) at para
25.
97
See
Bato Star
above
n 42 at para 47
where the following dicta of the House of
Lords in
R (on the application of ProLife Alliance) v British
Broadcasting Corporation
[2003] UKHL 23
;
[2003] 2 All ER 977
(HL) at para 76 was
quoted with approval
:
“
This means that the courts themselves often have
to decide the limits of their own decision-making power.”
98
Above n 94.
99
Doctors for Life International v Speaker of the National Assembly
and Others
[2006] ZACC 11
;
2006 (6) SA 416
(CC)
at
para 37;
2006 (12) BCLR 1399
(CC) at 1417C-E.
100
TAC (1)
above n
49 at para 12.
101
See
Bato
Star
above n 42
at para 48.
102
See section 46 of the Act above n 71.
103
SCAW South Africa (Pty) Ltd v The International Trade
Administration Commission and Others
above n 6
at
para 94.
104
[2008] ZASCA 86
;
2008 (6) SA 540
(SCA) at para 8.
105
Id at para 18 where Harms ADP quoted the dictum
in
Doctors for Life International v Speaker of the
National Assembly and Others
[2006] ZACC 11
;
2006 (6) SA 416
(CC)
at para 69;
2006 (12) BCLR 1399
(CC)
at 1425C-D.
106
Minister of Finance and Another v Paper Manufacturers Association
of South Africa
above n 104 a
t para 8.
107
Id.