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.