A Spring without Water: The Conundrum of Anti-Dumping Duties in South African Law

Abstract

The Agreement on the Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (Anti-Dumping Agreement), permits the imposition of anti-dumping duties for as long and to the extent necessary to counteract dumping which is causing injury subject to the proviso that they must be terminated after five years unless a sunset review has been initiated. Sunset review has the purpose of either permitting or terminating the continuation of an anti-dumping duty. This is significant because if the sunset review is not initiated prior to the expiry of the five year period, the anti-dumping duties will be terminated.

Therefore, this places a greater emphasis on the determination of the precise date of commencement of the anti-dumping duties. This is because an incorrect determination of the date of imposition of the anti-dumping duty has obvious financial implications for the interested parties. To this end, the Supreme Court of Appeal in South Africa has delivered two salient judgments in this regard: firstly, in Progress Office Machines CC v SARS, and then more recently, in Association of Meat Importers v ITAC. These two cases hinge on the interpretation of the date of 'imposition' of definitive anti-dumping duties particularly where provisional measures are involved, which invariably determines the date of expiry of the duties as espoused by Regulations 38 and 53 of the International Trade Administration Commission Anti-Dumping Regulations.

This paper contends that these two judgments are conflicting and riddled with inconsistencies. Secondly, the paper contends that the SCA has in the recent AMIE case, virtually rewritten its earlier judgment of Progress Office Machines. Lastly, the paper shows that the approach of South African courts on whether the Anti-Dumping Agreement is binding on South African law, is fraught with uncertainty and an ambivalence .The case analysis also reflects on the impact of the newly minted but yet to be implemented, Customs Duty Act, with a view to assess the impact of the new legislation on the issues currently plaguing the anti-dumping regime of South Africa.