Reflections on Aspects of the Regime on the Amendment of Tariffs under the International Trade Administration Act 71 of 2002: a Discussion of Shoprite Checkers (Pty) Ltd v International Trade Administration Commission

• Author: Clive Vinti
• DOI: 10.25159/2522-6800/8400
• Published date: 01 December 2021
• Date: 01 December 2021
• Pages: 1-24

Article

Southern African Public Law

https://doi.org/10.25159/2522-68 00/8400

https://unisapressjournals.co.za/index.php/SAPL

ISSN 2522-6800 (Online), 2219-6412 (Print)

#8400 | 24 pages

© Unisa Press 2022

Reflections on Aspects of the Regime on the

Amendment of Tariffs under the International Trade

Administration Act 71 of 2002: a Discussion of

Shoprite Checkers (Pty) Ltd v International Trade

Administration Commission

Clive Vinti

https://orcid.org/0000-0002-3823-2400

University of the Free State

VintiC@ufs.ac.za

Abstract

This article evaluates aspects of the regime for the amendment of tariffs under

the International Trade Administration Act 71 of 2002 (ITAA), with a specific

focus on the decision-making powers of the International Trade Administration

Commission (ITAC) and the Minister of Trade, Industry and Competition

(Minister). This analysis is conducted through the conduit of the decision in

Shoprite Checkers (Pty) Ltd v International Trade Administration Commission.

The Shoprite decision incorrectly allowed a review of ITAC’s

‘recommendations’ based on the ground of ‘rationality’ emanating from the

principle of legality outside of the Promotion of Administrative Justice Act 3 of

2000 (PAJA). It is settled law that all of ITAC’s ‘recommendations’ or

‘decisions’ constitute ‘administrative action’, and thus, the grounds of appeal

reside in PAJA, which includes the ground of rationality. Thus, the Shoprite

approach conflated the point of departure, thereby incorrectly displacing the

place of the PAJA and flouting the principle of subsidiarity. This case also

incorrectly classified the power of the Minister when considering the ITAC

‘recommendation’ to impose or vary a duty as a ‘constitutional’ power. It is trite

law that this power is ‘executive’ in nature. Thus, the Shoprite formulation

causes confusion since all power can technically be regarded as ‘constitutional’.

The articl e concludes with an analysis of the seldom-used power by ITAC of

revoking its recommendations under sections 26 and 48 of the ITAA.

Keywords: ITAC recommendations; custom duties; administrative action; executive

action; rationality

Vinti

2

Introduction

South Africa is a founding member of the World Trade Organization (WTO) and has

assented to the Marrakesh Agreement establishing the World Trade Organization (WTO

Agreement), which includes the General Agreement on Tariffs and Trade 1994 (GATT)

and several other multilateral trade agreements.1 South Africa acceded to the original

GATT on 13 October 1947.2 Parliament ‘approved’ the GATT in the Geneva Gener al

Agreement on Tariffs and Trade Act 29 of 1948.3 The WTO Agreement was then

approved by Parliament on 6 April 1995 and is, therefore, binding on South Africa in

international law, but it has not been adopted into domestic law.4 However, the

promulgation of the International Trade Administration Act 71 of 2002 (ITAA) is

‘indicative’ of South Africa’s ‘intention’ to be bound by the GATT.5 The ITAA and its

regulations constitute South Africa ‘honouring’ its international obligations on tariffs

and trade.6 To this end, Article II.1(b) of the GATT allows members to impose ‘tariffs’

within the ceiling of the ‘bound rate’, which is the maximum rate that can be imposed

on a product.7

In essence, a ‘tariff’ is a tax on imported goods and they are usually used as a policy

instrument to protect the local industry from import competition.8 A tariff can either be

an ‘applied’ tariff, which is the ‘actual’ tariff that is imposed on a product or a ‘bound’

tariff, which is the highest tariff that a country has agreed to impose on a product in its

Schedule of Concessions to the WTO.9

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

(CC) (SCAW) para 2; Progress Office Machines v SARS 2008 (2) SA 13 (SCA) para 5; Association

of Meat Importers v ITAC 2014 (4) BCLR 439 (SCA) para 10; See Gustav Brink, ‘Progress Office

Machines v South African Revenue Services [2007] SCA 118 (RSA)’ (2008) 41 De Jure Law Journal

645.

2 GN 2421 (18 November 1947). Progress Office Machines (n 1) para 5.

3 Progress Office Machines (n 1) para 5. See Long T itle read with section 2 of the Geneva General

Agreement on Tariffs and Trade Act 29 of 1948.

4 Progress Office Machines (n 1) para 6. Lonias Ndlovu, ‘Assessing the W TO Compliance of Selected

Aspects of South Africa’s International Trade Ad ministration Amendment Bill’ (2010) 31 Obiter

317.

5 Progress Office Machines (n 1) para 6.

6 SCAW (n 1) [2]. See also, Glenister v President of the Republic of South Africa 2011 (3) SA 347

(CC) [95]–[96] See also Engela Schlemmer, ‘Sou th Africa and the WTO Ten Years into Democracy’

(2004) 29 SAYIL 135.

7 See Appellate Body Report, India - Additional and Extra-Additional Duties on Imports from the

United States WT/DS360/AB/R (adopted on 17 November 2008) para 159.

8 Raj Bhala, Modern GATT Law: A Treatise on the General Agreement on Tariffs and Trade (Sweet

& Maxwell 2005) 175. See also, Peter Van den Bos sche and Werner Zdouc, The Law and Policy of

the World Trade Organization: Text, Cases and Materials (3rd edn, Cambridge University Press

2016) 423. See Art II read with Art XXVIIbis of the GATT.

9 Bhala (n 8) 531–533.