Itac wins landmark anti-dumping case

The International Trade Administration Commission of South Africa (Itac) won a landmark judgement in the Constitutional Court earlier this month related to an anti-dumping case between Itac and SCAW South Africa (SCAW). The judgement concerned the duration of and procedure for reviewing anti-dumping duties. By way of some background, in 2002 the Minister of Trade and Industry imposed anti-dumping duties on stranded wire, rope and cable of iron or steel products originating in or imported from foreign countries. In particular, the antidumping duties were placed on the products of Bridon International, the biggest manufacturer of steel and wire ropes in the United Kingdom. The Minister based his decision on a recommendation made by the Board on Tariffs and Trade (BTT), the predecessor of Itac. In February 2007, prior to the lapsing of the five year period, SCAW lodged an application with Itac for the initiation of a "sunset review " in the hope that the antidumping duties could remain in place. But in October 2008, Itac recommended to the Minister that the existing anti-dumping duties on Bridon products should be terminated. SCAW then launched an urgent application in the North Gauteng High Court in Pretoria seeking to interdict Itac from forwarding its recommendation to the Minister, pending the final determination of SCAW's application to review Itac’s recommendation. SCAW further sought an order preventing the Minister and also the Minister of Finance from performing their respective duties in the implementation of a recommendation made by Itac. The High Court granted the interim interdict against Itac and both ministers and Itac in turn sought leave to appeal against the High Court order. In passing judgement on the merits of the appeal, Moseneke DCJ of the Constitutional Court found that decisions regarding the setting or lifting of anti-dumping duties were patently within the domain of the executive, and that the interdict prevented the Ministers involved from performing their legislative functions. In addition he found that it was inappropriate for the High Court to grant the interdict, because it improperly breached the doctrine of separation of powers. In the result, the Court granted the application for leave to appeal, set aside the order of the High Court and ordered SCAW to pay the costs of Itac and of Bridon UK in the Constitutional Court.