Constitutional Court finds that anti-dumping duties are punitive

In the recent decision of
the Constitutional Court
in the case of the ITAC v
SCAW, the Constitutional
Court found that the
legislative framework for
which anti-dumping duties
were to apply for a period
of no more than five years
must be enforced strictly.
The five-year period
may be extended by
ITAC for a maximum
of 18 months to allow
for a review of existing
anti-dumping duties
and to make appropriate
recommendations to the
Minister. Such a review
must, however, commence
within the five year period
and a finding must be
arrived at within the
18-month period.
The Court found that
the five-year period, and
potential 18-month period
“is best understood as
imposing a guillotine”.
The periods must be
strictly administered since
anti-dumping duties are
punitive and provide for
an exceptional form of
relief. The Court ruled that
failing a review within
the prescribed period,
anti-dumping duty would
lapse automatically at
the end of the five years.
Any interested party can
approach a competent court
to challenge the continued
imposition of duty if it
has lapsed.
This decision supports
the decision of the
Supreme Court of Appeal
in the case of the Progress
Office Machines Case.
It is very important for
importers to be aware of
when anti-dumping duties
are in fact imposed and
when they will lapse.
ITAC has recently
published notice 369
of 2010 in Government
Gazette No. 33151 dated
7 May 2010, in terms of
which notice is given of
certain anti-dumping duties
on chicken meat portions,
carbon black, paper board
and drawn and float glass
expiring in 2011. It is
questionable whether some
of those products were
in fact lawfully extended
within the prescribed time
periods by way of a sunset
review and ITAC may
well be challenged on the
validity of certain antidumping
duties.
It is important for
both importers who are
subjected to the antidumping
duties, as well
as those parties who
may have an interest in
extending anti-dumping
duties to ensure that ITAC
operates within the time
frames that have now
been ruled on by both the
Supreme Court of Appeal
and the Constitutional
Court.
There can no longer be
any doubt as to the fiveyear
period of validity of
anti-dumping duties or
when and how any such
duties can be extended.