There can no longer be any doubt as to the five year period of validity of anti-dumping duties.

Anti-dumping duties are a contentious issue creating tension between those who need their protection and those who see import opportunity. The Constitutional Court in a recent ruling has created certainty however importers need to remain alert.
 
In the March 2010 case of the International Trade Administration Commission (ITAC) v SCAW South Africa, the Constitutional Court found that the legislative framework that provides for a five year timeframe in which anti-dumping duties can be applied must be enforced strictly.
 
The five year period may be extended by ITAC for a maximum of eighteen 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 eighteen month period.
 
The Court found that the five year period, and potential eighteen 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 duties 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 Progress Office Machines v SARS case.
 
It is very important for importers to be aware of when anti-dumping duties are imposed and when they will lapse.
 
ITAC 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, paperboard and drawn and float glass expiring in 2011.
 
It is questionable whether the anti-dumping duties on some of these 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 anti-dumping duties.
 
It is important for importers who are subjected to the anti-dumping 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 five year period of validity of anti-dumping duties or when and how any such duties can be extended.

Issued by Anti-dumping duties are a contentious issue creating tension between those who need their protection and those who see import opportunity. The Constitutional Court in a recent ruling has created certainty however importers need to remain alert.
 
In the March 2010 case of the International Trade Administration Commission (ITAC) v SCAW South Africa, the Constitutional Court found that the legislative framework that provides for a five year timeframe in which anti-dumping duties can be applied must be enforced strictly.

03 August 2010 22:44

Source: moneyweb.co.za