Page 737 - SAIT Compendium 2016 Volume1

CASE DIGEST 2012–2013
its implications for South Africa’s international obligations are considerable. Those sentiments are echoed in a critical commentary on the case by G F Brink, who describes it as having ‘far-reaching implications for the administration of the law of unfair international trade’. The reason for the present proceedings, say the authorities, rather euphemistically, was to regularise the position. The judge thought it was more accurate to say its purpose was to overcome the consequences of that decision.
Facts
Goods upon which anti-dumping duties are imposed are speci ed in Schedule 2 to the Customs and Excise Act. Under s 55(1) goods speci ed in that schedule are, upon entry for home consumption, liable to the speci ed anti-dumping duty if they are imported from a supplier, or originate in a territory, speci ed in respect of the goods.
The Board on Tariffs and Trade was formerly the body charged with investigating dumping. This case concerns a number of anti-dumping duties that were imposed by amendment of Schedule 2 before the International Trade Administration Act came into effect. Only three were the subject of contestation before the Supreme Court of Appeal although the others are also relevant to the order that was made.
The rst is an anti-dumping duty imposed on chicken meat portions emanating from the United States of America. An investigation into dumping was initiated by the former Board on Tariffs and Trade on 5 November 1999 and a provisional payment was imposed on 5 July 2000. The anti-dumping duty was introduced into Schedule 2, with effect from that date, by notice published in the Gazette on 27 December 2000. A sunset review of the anti-dumping duty was initiated by ITAC on 16 September 2005, and on 27 October 2006 ITAC gave notice in the Gazette that it had recommended that the anti-dumping duty be maintained, and that the Minister of Trade and Industry had approved the recommendation.
The second is an anti-dumping duty imposed on garlic imported from China after an investigation by the former Board on Tariffs and Trade. A provisional payment was imposed on 24 March 2000. The anti-dumping duty was introduced into Schedule 2, with effect from that date, by notice published in the Gazette on 20 October 2000. A sunset review of the anti-dumping duty was initiated by ITAC on 23 September 2005, and on 10 March 2006 ITAC gave notice in the Gazette that it had recommended that the anti-dumping duty be maintained, and that the Minister of Trade and Industry had approved the recommendation.
What the judge has called the third is really more than one duty but because they share the same material characteristics the judge has treated them for convenience as one. It is an anti-dumping duty imposed on various categories of glass from China and India. On 5 June 1998 the Board on Tariffs and Trade initiated an enquiry, and provisional payments were imposed on 27 November 1998. Anti-dumping duties were introduced into Schedule 2, with effect from that date, by notice published in the Gazette on 28 May 1999. On 19 March 2004 ITAC initiated a sunset review. On 5 November 2004 ITAC gave notice in the Gazette that it had recommended that the anti-dumping duty be maintained and that the Minister of Trade and Industry had approved the recommendation.
A second sunset review of this duty was initiated by ITAC on 21 August 2009. It recommended that some of the duties be maintained, and that others be increased. Its recommendations were approved by the Minister of Trade and Industry, and notice to that effect was given on 16 April 2010. The duties that were to be increased were amended in Schedule 2 by notice given by the Minister of Finance in the Gazette on 26 March 2010.
All those anti-dumping duties have certain features in common. First, they were all introduced into Schedule 2 by notice in the Gazette before the International Trade Administration Act and the regulations came into effect. Secondly, they were all introduced with effect from the date provisional payments had been imposed. Thirdly, in each case a sunset review was initiated more than ve years after the anti-dumping duty took effect, but within ve years of it being introduced into Schedule 2 by notice in the Gazette. Fourthly, a sunset review was initiated in each case, which culminated in each case with a recommendation by ITAC that the anti-dumping duty be maintained, the approval of that recommendation by the Minister of Trade and Industry, and notice to that effect in the Gazette.
The fate of that anti-dumping duty came under consideration in Progress Of ce Machines. In that case it was found by the Supreme Court of Appeal that the ‘date of imposition‘ of the anti-dumping duty as that term is used in Article 11.3 of the WTO Agreement was the date it took effect – in that case 27 November 1998 – and it declared the anti-dumping duty to have no force or effect ve years later.
Until then the authorities had conducted their affairs in the belief that an anti-dumping duty terminated ve years from the date it was introduced by notice in the Gazette, and not the date it took effect where it was ante-dated. Acting in that belief sunset reviews of other antidumping duties were initiated more than ve years after the duty took effect (but within ve years of the duty being introduced by notice in the Gazette). The effect of the decision in Progress Of ce Machines, as the authorities see it, is that in consequence of their mistaken belief, those duties inadvertently lapsed, notwithstanding that injurious dumping was still occurring or threatened. The duties in issue in this case all fall within that category.
The reasoning in Progress Of ce Machines applied not only to the antidumping duties imposed on the importation of paper products in issue in that case, but to all 11 products that were the subject of anti-dumping duties in this case. In each case ITAC calculated the duration of the duties initially imposed as a result of the Board’s recommendations under the BTT Act on the basis that the starting point for the calculation was the date of promulgation of the duties and not the date from which they were retrospectively made payable. This created the problem that the authorities sought to resolve by the orders they sought in this litigation.
That problem arises from the fact that the Anti-Dumping Agreement recognises that, while such duties are primarily directed at short-term problems of dumping and should remain in force only so long as and to the extent necessary to counteract dumping which is causing injury, dumping sometimes continues after the expiry of the initial period of anti- dumping duties. In order to prevent the recurrence of the harm against which they were originally imposed it may be necessary for them to be continued. Accordingly the Anti-Dumping Agreement provides for a review of whether the expiry of the duty may lead to a continuation or recurrence of the dumping. If such a review is initiated before the expiry of the original ve-year period then the duty will remain in force while the review is being conducted.
The review must normally be completed within a period of 12 months from its initiation. It is only if the steps taken to maintain, increase or amend the scope of these anti-dumping duties were of no force and effect that it can be said that the
SAIT CompendIum oF TAx LegISLATIon VoLume 1 729
CASE DIGEST 2012-2013