On September 13, a judgment was delivered in the Supreme Court of Appeal (SCA) in the matter between the Association of Meat Importers and Exporters and Others, as the appellants, and the International Trade Administration Commission of South Africa (Itac) and Others, as the respondents.

The appeal dealt with the validity of antidumping duties imposed under the Customs and Excise Act, the termination of such duties and the effect of the World Trade Organisation (WTO) Agreement and the regulations under the International Trade Administration Act in determining the time of termination. The initial application in the High Court was prompted by the decision in Progress Office Machines versus the South African Revenue Service (Sars), which had caused concern among customs and revenue authorities and, in their view, had to be regularised.

The High Court ruled in favour of the respondents and declared Schedule No 2 (trade remedies) of the Customs and Excise Act invalid with respect to antidumping duties imposed in respect of a number of affected products and dates.

In the SCA, all the appeals succeeded, with costs to be paid jointly and severally by the respondents. All the orders of the High Court other than the order of condonation and the associated costs to the latter order were set aside.

It was declared that the antidumping duties reflected in the notice of motion were extant at the time the sunset reviews were initiated in each case. The counterapplication was dismissed. The applicants were to jointly and severally pay the costs of all the respondents who opposed the application.

To understand the issues at hand, the following issues are of relevance and were discussed in the SCA.

Antidumping duties are commonly levied by the importing country to neutralise an advantage when goods are exported at an exported price lower than the price of the goods when sold for consumption in the exporting country and, as such, give the imported goods an unfair advantage over goods produced in the importing country.

In South Africa, the Customs and Excise Act governs the imposition of antidumping duties, as specified in Schedule No 2 of the Act, read with the Board of Tariff and Trade (BTT) Act until its repeal effective from June 1, 2003, and thereafter with the International Trade Administration Act.

When investigating the imposition of antidumping duties, the BTT was permitted to request the commissioner of Sars to impose provisional payments on the goods in question by way of a notice in the Government Gazette.

When the Minister subsequently amended Schedule No 2 to the Customs and Exercise Act to impose the antidumping duty, the Minister was entitled to antedate the duty to the date of the provisional duty being imposed.

According to the Customs and Excise Act, no limit is placed on the duration of the antidumping duty. However, the Minister can, in the notice to amend Schedule No 2 of the Customs and Exercise Act, limit the duration of the duty, but if he does not do so, the duty will endure until it is withdrawn or revised by further amendment to the schedule.

According to Article 11 of the WTO Agreement, any antidumping duty has to be terminated on a date no later than five years from imposition (or from the date of most recent review) unless the authorities determine in a review initiated before the date that the expiry of the duty would likely lead to the continuation of dumping and injury. The antidumping duty may remain in force pending the outcome of such review.

Two regulations of the International Trade Administraton Act deals with the duration of antidumping duties, namely regulations 38.1 and 53.

This case concerns certain antidumping duties that were imposed in terms of Schedule No 2 of the Customs and Excise Act before the International Trade Administration Act came into effect, where sunset reviews were initiated more than five years after the antidumping duties took effect, but within five years of their being introduced into Schedule No 2 of the Customs and Excise Act by way of a notice in the Government Gazette.

The SCA discussed in depth regulations 38 and 53, as well as Article 11 and their relevance in determing the date of termination.

Appeal Court Judge Nugent confirmed that the fatal defect in the case for the authorities and the orders granted was that they equated the absence of law with the invalidity of law. The authorities advanced that the antidumping duties were invalid simply because they were said to have lapsed. He argued that whether the antidumping duties came to an end in terms of either Article 11.3 of the WTO Agreement or regulation 53.1 of the International Trade Administration Act (if they came to an end at all), they had ceased to exist and there was nothing that purported to command obedience. To have declared the antidumping duties to have ceased to exist and then to suspend them would not bring any change to the state of affairs.

The fact that the antidumping duties remained in Schedule No 2 of the Customs and Excise Act also did not mean that they purported to exist, as it was not the writing into the schedule that brought the antidumping duties into existence, but the act of the Minister in publishing the amendments of the schedule.

Once the antidumping duties had ceased to exist, the written record of them in the schedule was purely a historical record that they once existed. The High Court’s decision that the antidumping duties were invalid was incorrect, as the antidumping duties did not exist, which was a different state of affairs. The appellants claimed that the fate of the antidumping duties was governed by regulation 53, and not by Article 11.3. On the plain meaning of regulation 53, the antidumping duties lapsed five years from the date they were introduced into Schedule No 2 of the Customs and Excise Act, but remained extant under regulation 53.2 because the sunset reviews were initiated before that date.

If no period is specified at the time of imposition, Section 38.1 functions to impose a default period of five years from the time Itac’s final recommendation is published in the Government Gazette.