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

Keywords: Dumping, imposition, provisional payments, publication, sunset review, anti-dumping duty, ratification

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. 

 

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Author Biography

Clive Vinti, The University of the Free State

Lecturer;Public Law Department

References

Literature

Brink 2008 De Jure
Brink G "Progress Office Machines v South African Revenue Services Case [2007] SCA 118 (RSA)" 2008 De Jure 643-648

Dugard 1997 EJIL
Dugard J "International Law and the South African Constitution" 1997 EJIL 77-92

Dugard International Law
Dugard J International Law: A South African Perspective 2nd ed (Juta Kenwyn 2000)

Gardiner International Law
Gardiner K International Law (Pearson Longman London 2003)

Langa 2006 Stell LR
Langa P "Transformative Constitutionalism" 2006 Stell LR 351-360

Ndlovu 2013 SAPL
Ndlovu L "South Africa and the World Trade Organisation Anti-Dumping Agreement Nineteen Years into Democracy" 2013 SAPL 279-307

Sucker 2013 CCR
Sucker F "Approval of an International Treaty in Parliament: How Does Section 231(2) 'Bind the Republic'?" 2013 CCR 417-434

Case law
Association of Meat Importers v ITAC 2013 4 All SA 253 (SCA)
Chairman: Board on Tariffs and Trade v Brenco Incorporated (285/99) 2001 ZASCA 67 (25 May 2001)
Glenister v President of the Republic of South Africa 2011 3 SA 347 (CC)
International Trade Administration Commission v SCAW South Africa (Pty) Ltd 2012 4 SA 618 (CC)
Progress Office Machines v SARS 2008 2 SA 13 (SCA)
S v Makwanyane 1995 3 SA 391 (CC)

Legislation

Board of Tariffs and Trade Act 107 of 1986
Constitution of the Republic of South Africa, 1996
Customs and Excise Act 91 of 1964
Customs Duty Act 30 of 2014
International Trade Administration Act 71 of 2002
International instruments
Agreement on the Implementation of Article VI of the General Agreement on Tariffs and Trade (1994) (Anti-Dumping Agreement)
General Agreement on Tariffs and Trade (1994)
Government Publications
GN 3197 in GG 25684 of 14 November 2003 (International Trade Administration Commission Regulations on Anti-Dumping in South Africa)
GN 1606 in GG 29382 of 10 November 2006

Internet sources

Brink 2006 http://tinyurl.com/j6472zr
Brink G 2006 Proposed Amendments to the Anti-dumping Regulations: Are the Amendments in Order? http://tinyurl.com/j6472zr accessed 10 May 2015
Brink 2012 http://tinyurl.com/zk633kd
Brink G 2012 Anti-dumping in South Africa http://tinyurl.com/zk633kd accessed 10 May 2015
PMG 2016 http://pmg.org.za

Parliamentary Monitoring Group 2016 Process for International Agreements in South Africa http://pmg.org.za accessed 19 February 2016

SARS 2015 http://www.sars.gov.za
South African Revenue Service 2015 New Customs Legislation Update http://www.sars.gov.za accessed 16 May 2016

WTO 2001 http://tinyurl.com/gwkfrmf
World Trade Organisation 2001 Dispute Settlement: Dispute DS132 - Mexico - Anti-Dumping Investigation of High-Fructose Corn Syrup (HFCS) from the United States http://tinyurl.com/gwkfrmf accessed 19 February 2016
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Published
2017-05-17
Section
Articles