Page 738 - SAIT Compendium 2016 Volume1

CASE DIGEST 2012–2013
duties were no longer in force when this application was brought and argued. By that stage the initial period for which they had been imposed had long since expired. Accordingly the foundation for the continued imposition of the duties had to lie in the sunset reviews and the steps taken by ITAC, the two Ministers and Parliament pursuant thereto. If the following steps were effective for that purpose, namely:
1. ITAC initiating and conducting a sunset review of the duties; and
2. ITAC making recommendations to the Minister of Trade and Industry pursuant to such review; and
3. the Minister accepting their recommendations and either giving notice of that fact when what was recommended
was the continuation of the duty or requesting the Minister of Finance to amend the duties by way of an amendment
to the Second Schedule; and
4. the Minister of Finance amending the Second Schedule where requested to do so; and 5. Parliament providing that such amendments would remain in force,
then the fact that the initial period of operation of the duties had expired before the commencement of the rst sunset review is irrelevant.
The assumption underpinning the present application is that all these steps were ineffective because the sunset reviews were commenced after the expiry of the initial period for which the duties in issue in this case were in operation. In the founding af davit the Minister of Trade and Industry said that this was due to an error of law in computing the relevant period and pointed out that on the basis of computation adopted by ITAC all the sunset reviews would have been commenced timeously. He went on to submit that the effect of the error was that the initiation of the sunset reviews was invalid and that the relevant Ministers erroneously failed to cause the Second Schedule to the Act to be amended to re ect the withdrawal of the duties. Accordingly he submitted that the initiation of the sunset reviews and the failure of the two Ministers to cause the Second Schedule to be amended fell to be set aside. He based this submission rst on the proposition that both the initiation of the sunset reviews and the failures by the two Ministers constituted invalid administrative action and second on the principle of legality.
It was suggested in the founding af davit, and in argument, that causality formed no part of this latter inquiry, but that cannot be correct. It is only material injury to local industry caused by dumping that can attract anti-dumping duties. One cannot investigate material injury to local industry in the absence of a causal relationship between the anticipated continuation or recurrence of dumping and its impact on local industry. The fact that the material originally considered by ITAC as establishing such causal link is again relied on by assuming a causal connection does not remove this from consideration. If there is no causality the continuation of the duties is impermissible. To continue to impose anti- dumping duties in the absence of any causal connection between the dumping and the material injury would con ict with the basis on which the Anti-Dumping Agreement was concluded and its fundamental purpose.
The continuation of anti-dumping duties after the initial period for which they were imposed, whether because of a continuation or recurrence of dumping, serves the same purpose and emphatically requires causality, however that may be established and whatever material is taken into account for that purpose.
Had the judge not reached the conclusion that the anti-dumping duties in issue in this case were valid and in force when these proceedings were commenced, it would have been necessary to consider whether a challenge to them could validly have been brought without an application to set aside not only the initiation of the sunset reviews but also the steps taken pursuant to the recommendations of ITAC following upon such reviews. It is readily conceivable that a court asked to review and set aside the initiation of the sunset reviews would in the exercise of its discretion have held that there had been undue delay in bringing review proceedings. The appropriateness of setting aside these duties in the exercise of any discretion vested in the court would have had to be considered.
It is unnecessary to address the consequences of any periods when there were no duties in place during the subsistence of a sunset review, save in respect of the counter application by the fth and sixth appellants for repayment of the anti-dumping duties paid by them during the period from 16 August 2005 to 8 March 2010. The claim was originally advanced for a longer period, but the claim was limited in the light of these appellants accepting that an increase in anti- dumping duty pursuant to an interim review and effected by an amendment to the Second Schedule effected on 26 March 2010, was valid. Most of the claim relates to the period after 10 March 2006 when the Minister of Trade and Industry published a notice approving ITAC’s recommendation after the rst sunset review that the anti-dumping duty on garlic imports from China be maintained. As the duties were lawfully in place from 10 March 2006, that portion of the claim falls away. It leaves only a claim for R378 700, in respect of two consignments of garlic imported by the fth appellant on 16 and 30 August 2005, respectively.
The basis for any claim to recover these amounts would be a condictio indebiti. Such a claim can be made if a payment is made in respect of a non-existent debt but in the bona de but mistaken belief that the payment is due. A claim for repayment can be defeated if the claimant was inexcusably slack in making the payment and a defence of prescription may also be available. In order to advance the claim it is accordingly necessary for evidence to be led as to the circumstances in which the payment was made and how the error arose.
As Hefer JA pointed out in Willis Faber much will depend on the relationship between the parties and their state of knowledge in relation to the cause of the payment as well as the reasons for making it. However, no such evidence had been placed before the court in the af davits on behalf of the fth and sixth appellants. Instead they appear to have adopted the stance that if the duties had lapsed they were entitled as of right to reclaim them. Mr Du Preez, who deposed to the af davit on their behalf, simply said that the levying of duties after the expiry of the initial period ‘is ultra vires and void and entitles Shoprite to reclaim anti-dumping duties since that date’. Whilst it may be correct that a properly formulated claim supported by appropriate evidence would have given rise to a condictio indebiti, the manner in which it was formulated in this application falls short of what was necessary. This is not a mere technicality. Had a proper claim been formulated and supported by evidence a proper reply could have been formulated including very possibly a defence of prescription. For those reasons it was found that the balance of this claim has not been properly proved in these proceedings and it was correctly dismissed. However, in the light of the reasons for rejecting this portion of the claim that dismissal amounts to no more than a judgment of absolution from the instance.
730 SAIT CompendIum oF TAx LegISLATIon VoLume 1