AfGTI Case Alert 4: Lucky Cement Limited v International Trade Administration Commission and Others (2022/048142) [2025] ZAGPPHC 243 (7 March 2025)
In this matter, ITAC had initiated the original investigation into the alleged dumping of Portland cement originating from the Islamic Republic of Pakistan following an application lodged on behalf of the SACU industry during 2014. This original investigation led to a recommendation to the Minister of Trade to impose an anti-dumping duty of 14,29% on the imported cement from Pakistan.
Before the lapse of the 5 years set for the initial anti-dumping duty, an application for a sunset review was lodged. ITAC initiated a sunset review on 11 December 2020. Interested parties were required to comment by 19 January 2021.
Against this backdrop, Lucky Cement sought to:
- Review and set aside the final determination by the First Respondent and recommendation that the anti-dumping duty of 25% imposed on cement manufactured or produced by the applicant as contained in the final investigation report No 673 of 30 November 2021;
- to review and set aside and declare invalid the decision of the second respondent to implement the final determination by the first respondent, and subsequent request to the third respondent to amend Part 1 of Schedule 2 to the Customs and Excise Act, and
- reviewing, setting aside, and declaring invalid the decision by the third respondent to impose the 25% anti-dumping duty on cement manufactured or produced by the applicant.
The court held that the decisions taken by ITAC, the Minister of Trade, and the Minister of Finance constitute ‘administrative actions’ capable of review in terms of the Promotion of Administrative Justice Act 3 of 2000 (PAJA). Thus, the court was of the view that it was unnecessary to assess whether the actions of the Ministers complied with the principle of legality.
The court explained that if the decision and recommendations of ITAC are reviewable, so too must the Minister’s decision be reviewable. This was because the legality of the Minister’s decision hinges on the legality of the decision of ITAC. The corollary proposition holds. Should the decision and recommendations of ITAC not be reviewable under PAJA, the decision of the Minister is equally not reviewable. The Minister’s decision would stand or fall based on the outcome of the review of the decision and recommendations of ITAC.
In the main, Lucky Cement’s case was about how ITAC calculated the margin of dumping. It was argued that ITAC ‘misdirected itself’ by refusing to allow or incorrectly calculating certain adjustments to the normal value and export price. In the alternative, it was argued that ITAC made material mistakes of fact and failed to consider adjustments requested by Lucky Cement to the normal value of its cement namely sales tax; Federal excise duty; cost of payment terms, sales commission; general sales and administrative expenses; corporate tax; coal transport; power cost; packaging and level of trade. These irregularities, if proven, would render the ITAC’s recommendations reviewable.
Lucky Cement further argued that ITAC committed further irregularities when refusing to allow certain adjustments to the export price of the cement, namely, cost of payment terms, general selling and administrative expenses, coal transport, power cost, and levels of trade. It further contended that ITAC failed to take relevant considerations into account.
In response, the court held that ITAC had considered all proposed adjustments made by Lucky Cement but did not approve all of them. This was ruled not to constitute an irregularity or material mistake by ITAC. There was no proof that ITAC’s assessment amounted to irregular action or to be procedurally unfair or materially influenced by error of law or consideration of irrelevant considerations or ignoring relevant considerations or was made arbitrarily or capriciously. ITAC was found to have considered all relevant claims for adjustments and allowed Lucky Cement to further make oral submissions.
ITAC also argued that if the crux of the matter turned on the three largest adjustments sought by Lucky Cement, these adjustments would have a significant impact on the margin of dumping and would reduce the calculated margin of dumping from 93,62% to 10,99%. The court explained that the calculation of anti-dumping duties is an ‘inherently technical exercise involving the appraisal of facts’ and requires ‘specialised expertise, and for this reason, the task is entrusted to a specialised institution’ as was done with ITAC. And thus, the court would be reticent to interfere with ITAC’s discretion.
The court confirmed that for Lucky Cement to succeed on a mistake of fact as a ground of review, it had to adduce an ‘established verifiable and uncontested fact that ITAC got wrong’. Lucky was unable to do this. It is not enough to prove that ITAC made a wrong finding.
ITAC further argued that there was no mistake of law in its consideration of the calculations as required by the regulations. The court rejected Lucky Cement’s argument that an adjustment can be made implicitly, as contended by Lucky Cement.
Lucky Cement also claimed an adjustment for packaging costs, which ITAC had allowed. The adjustment was initially calculated to be PKR0,07/ ton. This was later found to be a calculation in error. ITAC was not notified of this error during the public comments process. The error was found to be immaterial, but ITAC revisited the calculation and corrected the packaging costs to be PKR558.07/ton, and this was the precise adjustment Lucky Cement said was claimed in the founding affidavit. In the replying affidavit, Lucky Cement attempted to change its argument to say that the packaging adjustment should have been calculated at PKR609.79/ton rather than the admitted calculation at PKR558.07/ton as in the founding affidavit. It was ruled that Lucky Cement must stand with the case as formulated in its founding affidavit. The mistake made with the calculation was held to be immaterial and did not impact the imposed anti-dumping duty and thus did not merit reviewing ITAC’s recommendation to the Minister of Trade and the subsequent amendment of the Schedule.
The court then held that after considering all the evidence and arguments presented, the applicant had not made out a case for review, and the application was dismissed with costs