The Scope of the Powers of the Minister of Finance in Terms of Section 48(1)(b) of the Customs and Excise Act 91 of 1964: An Appraisal of Recent Developments in Case Law

  • Clive Vinti The University of the Free State
Keywords: Custom duties, request, discretion, expedient, public interest, separation of powers, ministerial powers

Abstract

This paper evaluates the scope of the powers of the Minister of Finance upon a request from the Minister of Trade and Industry to amend Schedule 1 to the Customs and Excise Act 91 of 1964 (hereafter, CEA) in respect of imported goods as provided by section 48(1)(b) of the CEA. This assessment entails a case analysis of the High Court decisions in South Africa Sugar Association v the Minister of Trade and Industry 2017 4 All SA 555 (GP) and Pioneer Foods (Pty) Ltd v Minister of Finance 2017 ZAWCHC 110 (29 September 2017). These two cases offer for the first time, clarification on the nature of the power conferred on the Minister of Finance by section 48(1)(b) of the CEA. The High Court in these two cases rejected the argument that the role of the Minister of Finance in respect of the power conferred upon him/her by section 48(1)(b) is that of a "registrar" who merely 'rubberstamps' the decision of the Minister of Trade and Industry. Consequently, the High Court in both matters held that a veto power is conferred on the Minister of Finance which permits him/her to either accept or decline the request of the Minister of Trade and Industry to amend Schedule 1 of the CEA.To the contrary, this paper argues that if the Minister of Finance declines the request of the Minister of Trade and Industry, s/he is not 'giving effect' to the request of the Minister of Trade and Industry as required by section 48(1)(b) of the CEA and is thus acting ultra vires because s/he is assuming powers which never conferred on him/her by the legislature. This paper also argues that the High Court in both matters, misconstrued the relationship between section 48(1)(b) and the "public interest" provisions in section 48 and thus unjustifiably stripped the Minister of Trade and Industry of his/her power to implement an amendment to Schedule 1. In the final analysis, this paper explores the impact of the Customs Duty Act 30 of 2014 on the Minister of Finance's powers in this regard.

Author Biography

Clive Vinti, The University of the Free State

Lecturer;Public Law Department

References

Literature

Brink 2013 TSAR
Brink G "The Roles of the Southern African Customs Union Agreement, the International Trade Administration Commission and the Minister of Trade and Industry in the Regulation of South Africa's International Trade" 2013 TSAR 419-436

Case law
Association of Meat Importers v ITAC 2013 4 All SA 253 (SCA)
Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism 2004 4 SA 490 (CC)
Bel Porto School Governing Body v Premier, Western Cape 2002 3 SA 265 (CC)
Chairman, Board of Trade v Brenco Inc 2001 4 SA 511 SCA
Doctors for Life International v Speaker of the National Assembly 2006 6 SA 416 (CC)
Farm Frites v International Trade Administration Commission (unreported) case number 32263/14 of 20 May 2014
International Trade Administration Commission v SCAW South Africa (Pty) Ltd 2012 4 SA 618 (CC)
Khumalo v Member of the Executive Council for Education: KwaZulu Natal 2014 5 SA 579 (CC)
M & G Limited v 2010 FIFA World Cup Organising Committee South Africa Limited 2011 5 SA 163 (GSJ)
Mazibuko v City of Johannesburg 2010 4 SA 1 (CC)
Mbatha v University of Zululand 2014 2 BCLR 123 (CC)
Merafong Demarcation Forum v President of the Republic of South Africa 2008 5 SA 171 (CC)
Minister of Finance v Paper Manufacturers Association of South Africa 2008 6 SA 540 (SCA)
My Vote Counts NPC v Speaker of the National Assembly 2015 ZACC 31 (30 September 2015)
Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 4 SA 593 (SCA)
Pharmaceutical Manufacturers of SA: In Re Ex Parte President of the RSA 2000 2 SA 674 (CC)
Pioneer Foods (Pty) Ltd v Minister of Finance 2017 ZAWCHC 110 (29 September 2017)
President of the Republic of South Africa v Office of the Public Protector 2018 2 SA 100 (GP)
Prinsloo v Van der Linde 1997 3 SA 1012 (CC)
Progress Office Machines v SARS 2008 2 SA 13 (SCA)
South Africa Sugar Association v Minister of Trade and Industry 2017 4 All SA 555 (GP)
United Democratic Movement v President of the RSA (No 2) 2003 1 SA 495 (CC)

Legislation
Board on Tariffs and Trade Act 107 of 1986
Constitution of the Republic of South Africa, 1996
Customs and Excise Act 91 of 1964
Customs Control Act 31 of 2014
Customs Duty Act 30 of 2014
International Trade Administration Act 71 of 2002
Public Service Act 103 of 1994

International Instruments
General Agreement on Tariffs and Trade (1994)
Marrakesh Agreement Establishing the World Trade Organization (1994)

Internet sources
Brink 2012 http://tinyurl.com/zk633kd
Brink G 2012 Anti-dumping in South Africa http://tinyurl.com/zk633kd accessed 16 December 2017
SARS 2016 http://www.sars.gov.za/AllDocs/Documents/customsandexcise/Customs%20Legislation%20-%20An%20Overview%20-%20May%202016.pdf
SARS 2016 New Customs Act Programme: Changing for the Future http://www.sars.gov.za/AllDocs/Documents/customsandexcise/Customs%20Legislation%20-%20An%20Overview%20-%20May%202016.pdf accessed 17 December 2017
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Published
2018-09-14
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