Regulation 22 of the Amended Tariff Investigations Regulations and the right to “procedural fairness”

• Author: Clive Vinti
• DOI: 10.17159/2225-7160/2020/v53a15
• Published date: 01 June 2020
• Date: 01 June 2020
• Pages: 212-228

212 2020 De Jure Law Journal

Regulation 22 of the Amended Tariff

Investigations Regulations and the right to

“procedural fairness”

Clive Vinti

LLB LLM

Lecturer, Department of Public Law University of Free State

SUMMARY

Regulation 22 of the Amended Tariff Investigations Regulations (ATR)

permits the International Trade Administration Commission (ITAC) to

submit to the Minister of Trade and Industry, a “final finding” that consists

of a recommendation to either approve or reject an application for a tariff

amendment and a Ministerial Minute or a report explaining the reasons for

ITAC’s evaluation. The Minister of Trade and Industry can then decide to

either approve or reject ITAC’s recommendation. However, Regulation 22

of the ATR does not avail the affected parties any notice of the nature and

purpose of this “proposed administrative action” nor a “reasonable

opportunity to make representations” on it. Consequently, the object of

this paper is to assess whether Regulation 22 complies with the right to

“procedural fairness” in the manner contemplated by section 3 of the

Promotion of Administrative Justice Act 3 of 2000.

1Introduction

Regulation 22 of the Amended Tariff Investigations Regulations (ATR)

permits the International Trade Administration Commission (ITAC) to

submit to the Minister of Trade and Industry, a “final finding” that

consists of a recommendation to either approve or reject an application

for a tariff amendment together with a Ministerial Minute or a report

explaining the basis of ITAC’s evaluation. The Minister of Trade and

Industry (the Minister) can either approve or reject ITAC’s

recommendation. However, Regulation 22 of the ATR does not provide

affected parties with any notice of the nature and purpose of this

“proposed administrative action” nor a “reasonable opportunity” to

comment on it. Consequently, the purpose of this paper is to assess

whether Regulation 22 complies with the right to “procedural fairness”

as espoused by section 3 of the Promotion of Administrative Justice Act

3 of 2000 (PAJA).

How to cite: Vinti ‘Regulation 22 of the Amended Tariff Investigations Regulations and the right to

“procedural fairness”’ 2020 De Jure Law Journal 212-228

http://dx.doi.org/10.17159/2225-7160/2020/v53a15

Regulation 22 of the Amended Tariff Investigations Regulations 213

2 The process of ITAC in an “application” for a

tariff amendment under the ATR

A “tariff” or “customs duty” is a tax on imported goods that is imposed

at the border of a country.1 Customs duties serve a purpose as they can

be a source of revenue for government and they can also be used to

protect and/or promote domestic industry.2 There are three types of

tariffs: first, is an “ad valorem tariff”, which is a tariff on the value of a

product and the tariff is expressed as a percentage on the value of that

product; second, a “specific duty/tariff” can also be imposed which is a

“flat tariff” that is based on the number of units of merchandise imported

and third, a “tariff rate quota”, which has features of a quota and a tariff

that specifies the importable amount of the product that may enter at one

tariff rate and any products in excess of that amount will enter at a

different rate.3 Irrespective of the type of tariff imposed by a regulatory

authority, a difference exists between an “applied” and “bound” tariff.4

An “applied” tariff is the “actual” tariff imposed whereas a “bound” tariff

is the maximum tariff that a country has committed to impose in its

Schedule of Concessions to the World Trade Organization.5 The Schedule

of Concessions is also known as a “tariff list” or “tariff schedule”, which

gives details of the bound tariffs imposed on each good.6 The Schedules

of Concessions are part and parcel of the General Agreement on Tariffs

and Trade, 1994 (GATT).7 It is common cause that South Africa is a

founding member of the World Trade Organization and has signed the

Marrakesh Agreement Establishing the World Trade Organization and its

covered agreements, including the GATT.8 South Africa acceded to GATT

and this accession was promulgated in the Government Gazette.9

Parliament then endorsed the agreement through the Geneva General

1Bhala Modern GATT law: A treatise on the law and political economy of the

General Agreement on Tariffs and trade and other World Trade Organisation

Agreements (2013) 529; Van den Bossche and Zdouc The law and policy of

the World Trade Organization (2016) 420.

2 Van den Bossche and Zdouc 425-426.

3 Bhala 529-531.

4 Bhala 531.

5 Bhala 531-533.

6 Bhala 533. The Harmonized Commodity Description and Coding System,

which operates under the auspices of the World Customs Organization,

classifies these goods.

7 See Art II.7 of GATT; Bhala 533.

8 See International Trade Administration Commission v SCAW South Africa (Pty)

Ltd 2012 (4) SA 618 (CC) para 2; Progress Office Machines v SARS 2008 (2)

SA 13 (SCA) para 6; Association of Meat Importers v ITAC [2013] 4 All SA 253

(SCA) 108 para 10; See Brink “Progress Office Machines v South African

Revenue Se rvices [2007] SCA 118 (RSA)” 2008 De Jure Law Journal 645;

Ndlovu “South Africa and the World Trade Organization Anti-dumping

Agreement Nineteen Years into Democracy” 2013 SAPL 296; Vinti “A

Spring without Water: The Conundrum of Anti-dumping Duties in South

African Law ” 2016 PER/PELJ 16-21.

9Progress Office Machines v SARS supra, para 5.