International Trade Administration Commission and Others v Association of Meat Importers and Exporters and Others

The South African Poultry Association (SAPA) applied for a sunset review of anti-dumping duties on bone-in chicken portions imported from the Netherlands, Germany and the United Kingdom. These duties had been imposed in 2015 following an ITAC investigation. On 24 February 2020, ITAC initiated a sunset review by publishing a notice in the Government Gazette, finding prima facie proof that expiry of the duties would likely lead to continuation of dumping and recurrence of material injury. After verification and submissions by interested parties, including the Association of Meat Importers and Exporters (AMIE), ITAC issued an essential facts letter on 28 April 2021 indicating it was considering determining duties on a per-cut basis (8-digit tariff level). SAPA responded and made oral representations on 8 June 2021, arguing for duties at the 7-digit tariff level. ITAC made a final determination on 15 June 2021 recommending maintenance of anti-dumping duties. The Minister of Trade, Industry and Competition accepted this recommendation and requested the Deputy Minister of Finance to amend Schedule 2 to the Customs Act. The Deputy Minister of Finance did so on 23 August 2021. AMIE launched a review application in the High Court challenging the initiation decision, ITAC's final determination, and the decisions of both Ministers.

• Whether ITAC was required to verify information in SAPA's application before initiating the sunset review
• Whether AMIE's challenge to the initiation decision was brought within the 180-day period prescribed by PAJA and whether condonation should be granted
• Whether the sunset review process was procedurally unfair and vitiated by bias
• Whether the Minister of Trade, Industry and Competition was required to give AMIE a hearing before accepting ITAC's recommendation
• Whether the Deputy Minister of Finance had authority to amend Schedule 2 to the Customs Act
• Whether the Deputy Minister of Finance's decision was procedurally irrational

The three appeals were upheld with costs, including those of two counsel. The cross-appeal was dismissed with costs, including those of two counsel. The High Court's order was set aside and replaced with an order dismissing the application with costs, including those of two counsel.

The binding principles established are: (1) Regulations 25 and 26 of the Anti-Dumping Regulations, which require verification of information before initiation, apply only to original anti-dumping investigations and not to sunset reviews. A sunset review may be initiated based on 'a proper application' containing 'necessary information' establishing a prima facie case, with verification permitted during the subsequent investigation phase. (2) An applicant seeking condonation for failure to comply with PAJA's 180-day rule must provide a full and reasonable explanation covering the entire period of delay, and must also explain any delay in seeking condonation itself. (3) The Minister of Trade, Industry and Competition is not required to afford parties a hearing before accepting or rejecting ITAC's recommendations under s 4(2) of the BTT Act, where those parties have already had an opportunity to make representations to ITAC. The Minister's role is to consider policy factors relating to international trade, not to reconsider ITAC's investigative process. (4) The setting, changing or removal of anti-dumping duties by the Minister of Finance constitutes executive action, not administrative action, and is therefore subject only to legality review and not to requirements of procedural fairness, where ITAC has already afforded parties procedural fairness in its investigation.

The Court made several non-binding observations: (1) It noted that the less onerous regime for initiation of sunset reviews in South African law is consistent with the WTO Anti-Dumping Agreement, which sets a lower standard for initiating sunset reviews than for original investigations. The Court cited WTO Panel jurisprudence interpreting Article 11.3 as not requiring certainty that dumping and injury would recur, but only 'sufficient evidence' warranting initiation. (2) The Court observed that it would be 'onerous if not impractical' to require Ministers to open up the process again for interested parties to make submissions after they have already had opportunity to participate in ITAC's investigation. (3) The Court commented that the decision of the Minister of Trade 'constitutes executive action; not administrative action' and characterized such decisions as 'policy-laden executive decision[s] that flow from the power to formulate and implement domestic and international trade policy' residing in 'the heartland of national executive power', citing the Constitutional Court's decision in SCAW. (4) The Court noted the proper approach to interpreting South African legislation implementing WTO agreements: while such legislation aims to give effect to WTO agreements, 'the text to be interpreted remains the South African legislation and its construction must be in conformity with s 233 of the Constitution'.

This judgment clarifies important principles regarding anti-dumping duty sunset reviews in South African law. It distinguishes the less onerous procedural requirements for initiating sunset reviews from those applicable to original anti-dumping investigations, aligning South African law with WTO Anti-Dumping Agreement standards. The judgment reinforces that verification of information is not a jurisdictional prerequisite for initiating a sunset review but may occur during the investigation phase. It emphasizes the limited role of the Ministers of Trade and Finance in the anti-dumping process - their functions are executive policy decisions, not administrative actions requiring procedural fairness where ITAC has already provided such opportunities. The case affirms the proper delegation of ministerial powers and clarifies that parties who participate in ITAC proceedings cannot demand further hearings at ministerial level. It provides guidance on the application of PAJA's 180-day rule and the stringent requirements for condonation, including the need to explain delays in both challenging decisions and seeking condonation itself.