International Trade Administration Commission v SCAW South Africa (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Ngcobo CJ, Moseneke DCJ, Cameron J, Froneman J, Khampepe J, Mogoeng J, Nkabinde J, Skweyiya J and Van Der Westhuizen J
• Judgment Date: 09 March 2010
• Citation: 2012 (4) SA 618 (CC)
• Hearing Date: 12 November 2009
• Docket Number: CCT 59/09 [2010] ZACC 6
• Counsel: S du Toit SC (with I Goodman) for the applicant. G Marcus SC (with D Unterhalter SC and A Cockrell) for the respondent. JL van der Merwe SC (with LB van Wyk SC) for the intervening party (Bridon International Ltd).
• Court: Constitutional Court

International Trade Administration Commission v SCAW South Africa (Pty) Ltd
2012 (4) SA 618 (CC)

2012 (4) SA p618

Citation	2012 (4) SA 618 (CC)
Case No	CCT 59/09; [2010] ZACC 6
Court	Constitutional Court
Judge	Ngcobo CJ, Moseneke DCJ, Cameron J, Froneman J, Khampepe J, Mogoeng J, Nkabinde J, Skweyiya J and Van Der Westhuizen J
Heard	November 12, 2009
Judgment	March 9, 2010
Counsel	S du Toit SC (with I Goodman) for the applicant.; G Marcus SC (with D Unterhalter SC and A Cockrell) for the respondent.; JL van der Merwe SC (with LB van Wyk SC) for the intervening party (Bridon International Ltd).

Flynote : Sleutelwoorde B

Constitutional law — Separation of powers — Between judiciary and executive C — Judicial intrusion on executive domain — What constitutes — Interdict restraining responsible minister from terminating certain international anti-dumping duties — Amounting to unwarranted intrusion by court into executive domain (formulation and implementation of international trade policy).

Trade and competition — Trade — International trade — Import control — Anti-dumping D duties — Imposition and termination — Function falling exclusively within executive domain (formulation and implementation of international trade policy) — High court interdicting responsible minister from terminating certain anti-dumping duties — Interdict breaching doctrine of separation of powers.

E Appeal — In what cases — Against order granting interim interdict — Interdict restraining responsible minister from terminating certain international anti-dumping duties — Interdict causing irreparable harm, final in effect and appealable (even though characterised as 'interim').

Headnote : Kopnota

In 2002 the Minister of Trade and Industry, acting on a recommendation made F by the predecessor of ITAC (the instant appellant), imposed anti-dumping duties on steel cable and similar products manufactured by Bridon International Ltd UK (an intervening party in the present case). Such duties would, under the Anti-Dumping Regulations of 2003, endure for a period of five years unless a sunset review investigation was initiated prior to the expiry of the five-year period, which would have allowed ITAC to extend it G for a maximum of 18 months for a review of the duties and the making of recommendations to the minister.

In February 2007 — just before the expiration of the five-year period — SCAW (the instant respondent), a South African manufacturer of competing products, asked ITAC for a sunset review that would maintain the anti-dumping duties in question. Contrary to SCAW's expectations, ITAC in October 2008 H recommended the termination of the anti-dumping duties pertaining to Bridon.

Three days later SCAW, alleging that ITAC had botched its investigations into the matter, launched a high court application for an interim interdict — pending the final determination of a review application — restraining ITAC from forwarding its recommendations to the minister and furthermore restraining I the Minister of Finance from implementing ITACs recommendation. The high court granted both interdicts. The intended effect of the interdict was to maintain the existing anti-dumping duty until the review was finalised. The high court was silent on this issue.

Dissatisfied, ITAC approached the Constitutional Court for leave to appeal. It contended that it was in the interests of justice that leave be granted because J the interdict, though interim, was final in effect, alternatively because it was

2012 (4) SA p619

likely to cause irreparable harm. It further argued that the high court had A encroached onto the domain of the executive branch of government, thus violating the constitutional doctrine of the separation of powers. Elaborating, ITAC pointed out that the courts were not designed to venture into the area of international trade policy and the related polycentric decision-making more properly suited to specialist bodies such as ITAC.

Held (per Moseneke DCJ in an unanimous judgment): Since the interdict had the B effect of curtailing executive power to formulate and implement trade policy, and also caused the applicant irreparable harm by maintaining anti-dumping duties which would otherwise have ended, leave to appeal had to be granted even though the interdict was characterised as being of an 'interim' nature. (Paragraphs [42] – [45] and [56] – [61] at 636E – 638C and C 642D – 644A.) As to the merits: Courts should observe the constitutional limits to their powers and refrain from making decisions reserved for other branches of government. If a specific power or function — such as the extension of a legislatively determined anti-dumping duty — was validly entrusted to the executive, courts should resist the temptation to usurp it, especially if the determination in question was, as it was in casu, a D policy-laden and polycentric one. In the present case the high court interdict clearly amounted to an unwarranted intrusion into the formulation and implementation of international trade policy, matters that resided squarely within the executive domain, and should be set aside for being in breach of the doctrine of separation of powers. So ordered. (Paragraphs [87], [91] – [95], [99] – [104] and [108] – [112] at 651D, 653A – 654G, 655F – 656G and 657E – 658E.) E

Cases Considered

Annotations:

Case law

Southern Africa

Administrator, Cape, and Another v Ntshwaqela and Others 1990 (1) SA 705 (A): dictum at 714J – 716C applied F

African Explosives Ltd v ITAC and Others (GNP case No 15027/2006, 5 August 2008): overruled

African Wanderers Football Club (Pty) Ltd v Wanderers Football Club 1977 (2) SA 38 (A): referred to

Albutt v Centre for the Study of Violence and Reconciliation, and Others 2010 (3) SA 293 (CC) (2010 (5) BCLR 391; [2010] ZACC 4): referred to G

Alexkor Ltd and Another v The Richtersveld Community and Others 2004 (5) SA 460 (CC) (2003 (12) BCLR 1301; [2003] ZACC 18): referred to

Algorax (Pty) Ltd v ITAC and Others (GNP case No 25233/05, 10 September 2005): overruled

Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others 2004 (4) SA 490 (CC) (2004 (7) BCLR 687; [2004] ZACC 15): applied H

Billiton Aluminium SA Ltd t/a Hillside Aluminium v Khanyile and Others 2010 (5) BCLR 422 (CC) ([2010] ZACC 3): referred to

Constantia Insurance Co Ltd v Nohamba 1986 (3) SA 27 (A): referred to

Cronshaw and Another v Fidelity Guards Holdings (Pty) Ltd 1996 (3) SA 686 (A) ([1996] 2 All SA 435): referred to

De Freitas and Another v Society of Advocates of Natal (Natal Law Society Intervening) 1998 (11) BCLR 1345 (CC) ([1998] ZACC 12): referred to I

De Lange v Smuts NO and Others 1998 (3) SA 785 (CC) (1998 (7) BCLR 779; [1998] ZACC 6): dictum in para [60] applied

Department of Land Affairs and Others v Goedgelegen Tropical Fruits (Pty) Ltd 2007 (6) SA 199 (CC) (2007 (10) BCLR 1027; [2007] ZACC 12): referred to J

2012 (4) SA p620

Doctors for Life International v Speaker of the National Assembly and Others 2006 (6) SA 416 (CC) (2006 (12) BCLR 1399; [2006] ZACC 11): dictum in paras [37] – [38] applied A

Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa, 1996 1996 (4) SA 744 (CC) (1996 (10) BCLR 1253; [1996] ZACC 26): applied

Executive Council, Western Cape Legislature, and Others v President of the Republic of South Africa and Others 1995 (4) SA 877 (CC) (1995 (10) BCLR 1289; [1995] ZACC 8): applied B

Head of Department, Mpumalanga Department of Education and Another v Hoërskool Ermelo and Another 2010 (2) SA 415 (CC) (2010 (3) BCLR 177; [2009] ZACC 32): referred to

Independent Newspapers (Pty) Ltd v Minister for Intelligence Services: In re Masetlha v President of the Republic of South Africa and Another 2008 (5) SA 31 (CC) (2008 (8) BCLR 771; [2008] ZACC 6): referred to C

Jooste v Score Supermarket Trading (Pty) Ltd (Minister of Labour Intervening) 1999 (2) SA 1 (CC) (1999 (2) BCLR 139; [1998] ZACC 18): referred to

Khumalo and Others v Holomisa 2002 (5) SA 401 (CC) (2002 (8) BCLR 771; [2002] ZACC 12): applied D

Machele and Others v Mailula and Others 2010 (2) SA 257 (CC) (2009 (8) BCLR 767; [2009] ZACC 7): applied

Metlika Trading Ltd and Others v Commissioner, South African Revenue Service 2005 (3) SA 1 (SCA) (2004 JTLR 73; [2004] 4 All SA 410): applied

Minister of Finance and Another v Paper Manufacturers Association of South Africa 2008 (6) SA 540 (SCA): distinguished E

Minister of Health and Others v Treatment Action Campaign and Others (No 1) 2002 (5) SA 703 (CC) ([2002] ZACC 16): applied

Minister of Public Works and Others v Kyalami Ridge Environmental Association and Others (Mukhwevho Intervening) 2001 (3) SA 1151 (CC) (2001 (7) BCLR 652; [2001] ZACC 19): referred to F

National Education Health and Allied Workers Union v University of Cape Town and Others 2003 (3) SA 1 (CC) ((2003) 24 ILJ 95; 2003 (2) BCLR 154; [2002] ZACC 27): referred to

National Gambling Board v Premier, KwaZulu-Natal, and Others 2002 (2) SA 715 (CC) (2002 (2) BCLR 156; [2001] ZACC 8): referred to G

Nyathi v MEC for Department of Health, Gauteng and Another 2008 (5) SA 94 (CC) (2008 (9) BCLR 865; [2008] ZACC 8): referred to

Pharmaceutical Manufacturers Association of SA and Another: In re Ex parte President of the Republic of South Africa and Others 2000 (2) SA 674 (CC) (2000 (3) BCLR 241; [2000] ZACC 1): dictum in para [45] applied H

Philani-Ma-Afrika and Others v Mailula and Others 2010 (2) SA 573 (SCA): dictum in para [20] applied

Progress Office Machines CC v South African Revenue Service and Others 2008 (2) SA 13 (SCA): referred to

Radio Pretoria v Chairperson, Independent Communications Authority of South Africa, and Another 2005 (4) SA 319 (CC) (2005 (3) BCLR 231; [2004] ZACC...