The curious case of the ‘non-co-operating interested party’ in anti-dumping investigations in South Africa : a critical analysis of Farm Frites International v International Trade Administration Commission

• Author: Clive Vinti
• DOI: 10.10520/EJC-122232c1d4
• Published date: 01 October 2018
• Date: 01 October 2018
• Record Number: sapr1_v33_n1_a8
• Pages: 1-18

Article

Southern African Public Law

https://doi.org/10.25159/2522-68 00/2939

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

ISSN 2522-6800 (Online)

Volume 33 | Number 1 | 2018 | #2939 | 18 pages

© Unisa Press 2018

The Curious Case of the ‘Non-co-operating Interested

Party’ in Anti-dumping Investigations in South Africa:

A Critical Analysis of Farm Frites International v

International Trade Administration Commission

Clive Vinti

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

University of the Free State

Email: vintic@ufs.ac.za

Abstract

This article critically reflects on the position of the ‘non-co-operating interested

party’ in anti-dumping investigations in South Africa through a detailed study

of the case between Farm Frites International and the International Trade

Administration Commission (ITAC). The article finds that the ‘essential facts

letter’ is not the only factor under consideration by ITAC in making a final

determination of ‘dumping’ in South African law. Secondly, the article finds

that the applicant failed to prove it will suffer ‘severe prejudice’ because ITAC

is legally entitled to disregard the submissions of a non-co-operating interested

party and then to proceed on the basis of the ‘facts available’ or the ‘best

information available’ and therefore any prejudice suffered was wholly self-

inflicted. In the alternative, the article finds that even in the event that ‘serious

prejudice’ was proved by the applicant, the application would nevertheless fail

because such ‘prejudice’ could still be undone or remedied by the

recommendation of ITAC to the minister and/or by the final decision of the

minister.

Keywords: dumping; non-co-operating interested party; essential facts; facts

available; best information available

2

Introduction

This article reflects on the plight of the ‘non-co-operating interested party’ through a

critical analysis of the judgment of Bam J in Farm Frites International v International

Trade Administration Commission (‘Farm Frites’).1 ‘Dumping’ means the introduction

of goods into the commerce of a country or its common customs area at an export price

less than the normal value of those goods.2 In South Africa, the International Trade

Administration Commission (ITAC), is the body charged with investigating allegations

of dumping.3 The investigation is formally initiated through publication of an initiation

notice in the Government Gazette.4 This investigation is conducted in two stages.5 First,

a preliminary investigation is conducted by investigating officers who, after the

completion of the investigation, may make submissions to the commissioners of ITAC.6

All interested parties are notified about the investigation and given an opportunity to

make representations, which may be confidential.7 If these representations are deemed

‘deficient’, such party is given seven days to remedy the deficiency.8 If the submissions

remain deficient, ITAC will disregard the submissions for the purposes of its

preliminary finding.9 Such party whose submissions are deemed deficient will be

regarded as a ‘non-co-operating interested party’.10 The final investigation phase

commences with the comments of all interested parties on the preliminary report.11 All

the interested parties are granted 14 days from the date the preliminary report is made

available to comment in writing.12 Even non-co-operating interested parties may

remedy their situation by addressing the deficiencies and ITAC will consider their

information in its final finding.13 If ITAC finds that dumping is occurring, it will

recommend to the Minister of Trade and Industry (‘the minister’) that anti-dumping

1 Farm Frites International v International Trade Administration Commission (unreported, case no

32263/14, 20 May 2014, Gauteng Division, Pretoria) (Farm Frites).

2 Section 1 of the International Trade Administration Act 71 of 2002 (‘the ITAA’). See, further,

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

para 1. See also Farm Frites (n 1) para 3. See, further, Lonias Ndlovu, ‘Assessing the WTO

Compliance of Selected Aspects of South Africa’s International Trade Administration Amendment

Bill’ 2010 Obiter 313.

3 Section 16(1)(a) read with s 26 of the ITAA.

4 Section 26(3)(a) of the ITAA read with reg 28.1 in GN 3197 in GG 25684 (14 November 2003)

(International Trade Administration Commission Regulations on Anti-Dumping in South Africa) (‘the

ADR’).

5 Farm Frites (n 1) para 4.

6 See regs 29–34 of the ADR and Farm Frites (n 1) para 4.

7 Regulations 28–30 of the ADR; see also Farm Frites (n 1) para 4.

8 Regulation 31.2 of the ADR; see also Farm Frites (n 1) para 4.

9 Regulation 31.3 of the ADR; see also reg 32.4. See, further, Farm Frites (n 1) para 4.

10 Regulation 32 of the ADR; see also Farm Frites (n 1) para 4.

11 Regulation 35 of the ADR; see also Farm Frites (n 1) para 4.

12 Regulation 35.1 of the ADR.

13 Regulation 35.5 of the ADR; see also Farm Frites (n 1) para 4.