Progress Office Machines CC v South African Revenue Service and Others

• Jurisdiction: South Africa
• Judge: Scott JA, Lewis JA, Heher JA, Malan AJA and Mhlantla AJA
• Judgment Date: 25 September 2007
• Docket Number: 532/06
• Hearing Date: 30 August 2007
• Counsel: MJD Wallis SC (with KJ Kemp SC and CA Nel) for the appellant EW Dunn SC (with PT Rood) for the respondent
• Court: Supreme Court of Appeal

Malan AJA:

[1] This is an appeal with leave of the court a quo against a judgment of Gyanda J dismissing with E costs an application brought by the appellant as a matter of urgency for a declarator

that the antidumping duties imposed by the Fourth Respondent (at the request of the Third Respondent and enforced by the Fourth Respondent) in terms of GN R685, Government Gazette 20125 (dated 28th May 1999) annexed hereto marked 'A', in respect of F paper products and in particular A4 paper imported from [Indonesia], had no force and effect after 27th November 2003.

[2] The appellant deals in paper products some of which it imports to sell on the domestic market. From 8 January to 20 September 2004 the appellant imported four consignments of paper from G Indonesia through the port of Durban. The appellant paid the applicable duty on these imports before clearance. No anti-dumping duty was imposed on the consignments although they were examined by customs officials. Thereafter the appellant received a letter from SARS dated 26 October 2004 concerning the importation of the said paper. It H intimated that an investigation had shown prima facie that the appellant contravened certain provisions of the Customs and Excise Act 91 of 1964 (the Act) and that anti-dumping duty in terms of Schedule 2 and value added tax amounting to R1 565 569,60 were payable in respect of the four consignments. I

[3] In terms of ss 55 to 57 of the Act the fourth respondent (the Minister of Finance) may impose anti-dumping duty pursuant to a request from the third respondent (the Minister of Trade and Industry). The first respondent (SARS) recovers the duty so imposed. The relevant powers of the Minister of Finance are set out in s 56 of the Act. At the time of J

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the relevant government notice, 28 May 1999, s 56 read: A

(1)

The Minister may from time to time by notice in the Gazette amend Schedule 2 to impose anti-dumping duty in accordance with the provisions of section 55(2).

(2)

The Minister may, in accordance with any request by the Minister of Trade and Industry and for Economic Co-ordination, from time to time by notice in the Gazette withdraw or reduce, B with or without retrospective effect and to such extent as may be specified in the notice, any anti-dumping duty imposed under subsection (1).

Section 55(2) at that time provided:

(a)

The imposition of any anti-dumping duty as defined in the Board on Tariffs and Trade Act, 1986 (Act 107 of 1986) C . . . shall be in accordance with any request by the Minister of Trade and Industry and for Economic Co-Operation under the provisions of the Board on Tariffs and Trade Act, 1986. [1]

(b)

Any such anti-dumping . . . duty may be imposed in respect of goods concerned in accordance with such request with effect D from the date on which any provisional payment in relation to anti-dumping . . . duty is imposed in respect of those goods under section 57A.

The then Board on Tariffs and Trade was empowered to investigate dumping and to report and make recommendations to the Minister of Trade E and Industry and Economic Co-ordination. [2] The said Minister, if he accepted the report and recommendation, was entitled to 'request the Minister of Finance to amend the relevant Schedule to the Customs and Excise Act, 1964 . . .'.

[4] Section 57A of the Act in addition provides for the imposition of a 'provisional payment'. Provisional payments may be F imposed by the Commissioner of Customs and Excise when the International Trade Administration Commission (ITAC) or its predecessor, the Board on Tariffs and Trade, publishes a notice to the effect that it is investigating the imposition of anti-dumping duty on certain imported goods. The imposition of a provisional payment must be G for the period, amount and goods specified in a request by ITAC. [3] The Commissioner may in accordance with such a request also extend the period, or withdraw or reduce the amount of the provisional payment with or without retrospective respect. [4] A provisional payment is paid in respect of the goods subject to it 'as security for any anti-dumping . . . duty which may be retrospectively imposed' on the goods in H terms of s 56 (and 55) and may be set off against the amount of any retrospective anti-dumping duty

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payable. [5] If no anti-dumping duty is imposed before the expiry of the period for which A an anti-dumping duty has been imposed the amount of the duty has to be refunded. [6] Where the amount of the provisional payment exceeds the amount of any anti-dumping duty retrospectively imposed the difference must be refunded but where it is less than the amount of the duty the difference may not be collected. [7] Section 55(2)(b) B specifically empowers the Minister of Finance to impose an anti-dumping duty in accordance with a request of the Minister of Trade and Industry 'with effect from the date on which any provisional payment . . . is imposed . . . under s 57A'. It follows and it was common cause between the parties that it is only where a provisional payment has been imposed that the Minister of Finance may impose a definitive C anti-dumping duty retrospectively. This is borne out by the absence in s 56(1) of any reference to the power to introduce anti-dumping duty retrospectively and by the specific inclusion in s 56(2) of the power to 'withdraw or reduce, with or without retrospective effect' any duty imposed under s 56(1). [8] It is common cause that a provisional payment had been imposed in respect of D the goods in question in terms of s 57A and that the Minister of Finance had imposed the definitive anti-dumping duty on 28 May 1999 [9] 'with retrospective effect to 27 November 1998'.

[5] South Africa is a founding member of the World Trade Organization Agreement (WTO) and also a signatory to the General E Agreement on Tariffs and Trade of 1947 (GATT). [10] The South African Government acceded to GATT and its accession was published in the Government Gazette. [11] Parliament approved the agreement in the Geneva General Agreement on Tariffs and Trade Act 29 of 1948. [12] The World Trade Organization F Agreement was the outcome of the so-called Uruguay Round of the GATT negotiations and was concluded in Marrakesh by the signing of some 27 agreements and instruments in April 1994 by the members, including South Africa. The WTO Agreement on the Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (the Anti-Dumping Agreement) forms part of the WTO Agreement. [13] G Article 11 of the former agreement provides:

11.1

An anti-dumping duty shall remain in force only as long as and to the extent necessary to counteract dumping which is causing injury. H

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11.2

The authorities shall review the need for the continued imposition of the duty, where warranted, on their own initiative or, A provided that a reasonable period of time has elapsed since the imposition of the definitive anti-dumping duty, upon request by any interested party which submits positive information substantiating the need for a review. Interested parties shall have the right to request the authorities to examine whether the continued imposition of the duty B is necessary to offset dumping, whether the injury would be likely to continue or recur if the duty were removed or varied, or both. If, as a result of the review under this paragraph, the authorities determine that the anti-dumping duty is no longer warranted, it shall be terminated immediately.

11.3

Notwithstanding the provisions of paragraphs 1 and 2, any C definitive anti-dumping duty shall be terminated on a date not later than five years from its imposition (or from the date of the most recent review under paragraph 2 if that review has covered both dumping and injury, or under this paragraph), unless the authorities determine, in a review initiated before that date on their...