Director-General: Department of Trade and Industry and Another v Shurlock International (Pty) Ltd

The General Export Incentive Scheme (GEIS), a state incentive scheme with the force of subordinate legislation, provided for export incentive payments to qualifying exporters. Shurlock International (Pty) Ltd, an exporter, received incentive payments during 1992–1993 after its claims were checked and approved by the Department of Trade and Industry. In 2000, the Department became liable to pay Shurlock a further R387 644 under GEIS for a later export period but refused to do so, alleging that Shurlock was obliged to repay earlier incentive payments because it could no longer produce original export documents required to be kept for five years under paragraph 3.9 of the GEIS Guidelines. The documents had been lost when Shurlock moved offices. The Department did not allege fraud, false information, or misleading information, and accepted that Shurlock acted bona fide. Shurlock sued for payment; the Department relied on set-off and counterclaimed for repayment of the earlier incentives.

The appeal was dismissed with costs, including the costs of two counsel. The High Court judgment in favour of Shurlock International (Pty) Ltd was confirmed.

The case clarifies the interpretation of the General Export Incentive Scheme and similar state incentive schemes, confirming that benefits paid are not automatically provisional or forfeitable absent express language. It affirms that recovery powers of the state must be exercised strictly within the jurisdictional limits set out in the empowering instrument, reinforcing legality and fairness in administrative action.