A few thoughts on Ministerial decision making for trade remedies – Association of Meat Importers and Exporters v International Trade Administration Commission
This is the latest in the cases that delve into the decision making power of the Minister of Trade, Industry and Commerce and the Minister of Finance. In trade remedy investigations, ITAC conducts the investigation. The ITAC recommendation is then sent to the Minister of Trade. If the Minister of Trade accepts this recommendation, they then forward it to the Minister of Finance. The Minister of Finance can either accept or reject this request. In effect, the Minister of Finance is the final decision maker in the imposition of trade remedies. This is a consequence of the fact that the power to amend the Schedules to the Customs and Excise Act 91 of 1964 (CEA) is exclusively conferred on the Minister of Finance. This is the way that the duty is imposed under Schedule 2.
The High Court has confirmed that this power sits with the Minister of Finance and that this decision must be made in the public interest as a Constitutional obligation. However, as Vinti has noted, the Ministerial decisions have been mainly couched as executive powers and thus, there is no general duty to consult.[1] Vinti has made the argument that there is a right to be heard at this level on the ground of rationality.[2] The case of AMIE v ITAC offered more clarity in this regard.
This was a judicial review emanating from a decision taken by the Minister of Finance to, subsequent upon accepting a final report by ITAC to effect a ministerial amendment to the tariffs in Schedule 2 of the CEA. The ministerial amendment gives effect to the continuation of the imposition of anti-dumping duties imposed on frozen bone-in portions of fowl of the species “Gallus domesticus” (chicken) [the product] originating in or imported from Germany, the Netherlands, and the United Kingdom. The original imposition on the product was effected on 25 February 2015 [initial imposition]. The recommendation to continue such imposition emanated from a review process [sunset review], which process was duly initiated and finalised by ITAC. ITAC has the mandate to conduct trade remedies and tariff investigations as required by the International Trade Administration Act 71 of 2002.
This court accepted that the nature of this power is executive in nature, that is, it is an instance of making policy. The court also clarified that the duty on the Minister is to ‘”satisfy himself (own emphasis) that amending the tariff will not have detrimental consequences for the country”’. The court then explained that AMIE’s point is that the Deputy Minister, by not listening to adverse views did not do his statutory duty. His final decision affects industry participants and diverse and conflicting views must be considered. The Finance Minister was silent and thus the court agreed that in the absence of evidence to the contrary and viewing the Court’s obligation to assess rationality, it found that the Deputy Minister failed in this regard. Therefore, the Minister has a duty to consider the views of affected parties. Vinti has argued that this duty means that there is an obligation to elicit the views of affected parties at Ministerial level. The court was of the view that this is because of the principle of rationality. It remains to be seen what would have happened if there were no opposing views and thus, if the Minister would be required to nevertheless elicit those views. But on the basis of the principle of rationality, the Minister must as a rule, consult affected parties.
[1] Vinti C “The Scope of the Powers of the Minister of Finance in Terms of Section 48(1)(b) of the Customs and Excise Act 91 of 1964: An Appraisal of Recent Developments in Case Law” 2018(21) PER / PELJ 1-25. Vinti C ‘Association of Meat Importers and Exporters v International Trade Administration Commission (9233/2022) [2023] ZAGPPHC 1790 (12 October 2023): More clarity offered on the decision-making process of the Minister of Finance in the imposition of anti-dumping duties (and other trade remedies) in South Africa. (2025) 58 De Jure Law Journal 32-42.
[2] Vinti C ‘The right of ‘interested parties’ to be heard during an anti-dumping investigation conducted by the National Treasury on behalf of the Minister of Finance’. (2020) 137 SALJ 713-732.