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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO: 54948/17

30/8/2017

Reportable: YES

Not of interest to other judges: YES

In the matter between:

SOUTH AFRICA SUGAR ASSOCIATION                                                              Applicant

MINISTER OF TRADE AND INDUSTRY                                                    First Respondent

MINISTER OF FINANCE                                                                       Second Respondent

INTERNATIONAL TRADE COMMISSION OF

SOUTH AFRICA                                                                                        Third Respondent

 

JUDGMENT

 

Tuchten J:

1. The applicant (SASA) is the representative of the South African sugar industry. Its members include sugar cane farmers, millers and refiners. It complains that the three respondents have failed to implement the customs duty regime relating to imported sugar in a procedurally fair and rational manner.

2. It has arrived at a settlement with the first and third respondents. The remaining issue is between SASA and the second respondent (the Minister of Finance). The first and third respondents accordingly did not oppose the application and were not represented at the hearing before me.

3. One of the purposes of import duties is to protect industry local to the Republic from some of the effects of competition with firms outside our borders. The powers of the Republic to legislate in this connection are shaped to a significant effect by the international agreements to which the Republic is a party.

4. The import duties relevant for present purposes are to be found in Schedule No. 1to the Customs and Excise Act, 91 of 1964 {the CEA). Under s 48 of the CEA, the Minister of Finance is empowered to effect changes to import duties by notice in the Government Gazette. In doing so, the Minister of Finance amends national legislation, usually the province of Parliament

5. The course of trade, and particularly international trade, is influenced by fluctuations both in the world price of certain commodities, usually expressed in US dollars and the exchange rate of the South African rand. The duties applicable to such commodities must therefore be amended from time to time, taking these factors into account, and cannot await completion of the relatively slow process by which parliamentary legislation is usually enacted and amended.

6. The third respondent (ITAC) was established pursuant to the International Trade Administration Act, 71 of 2002 (the ITA Act). The object of the ITA Act, expressed in s 2, is to foster economic growth and development in order to raise incomes and promote investment and employment in the Republic and the Common Customs Area[1] by establishing an efficient and effective system for the administration of international trade.

7. One of ITAC's duties under the ITA Act is to investigate and evaluate the amendment of customs duties.[2] It communicates its findings in reports. Before the enactment of the ITA Act in 2002,the position was regulated pursuant to two separate but complementary pieces of legislation, ie the Board on Tariffs and Trade Act, 107 of 1986 (the BTT Act) and the CEA

8. The BTT Act established a Board whose primary objects included the promotion of industrial growth within the framework of economic policy by conducting certain investigations and, if this Board thought fit, by making recommendations to the Minister of Trade and Industry. The Minister of Trade and Industry was empowered to accept or reject the report and recommendations or refer them back to the Board for reconsideration. Under s 4(2) of the BTT Act, if the Minister of Trade and Industry accepted the recommendations, this Minister was empowered to request the Minister of Finance to amend the relevant schedule to the CEA. Although s 63(2) of the ITA Act repealed the whole of the BTT Act, it remains necessary even today to read its provisions together with the BTT Act because item 2 of Schedule 2 to the ITA Act provides that ITAC must perform its duties in regard to the investigation of the amendment of customs duties as if the BTT Act had not been repealed.[3]

9. If the Minister of Trade and Industry accepts a recommendation of ITAC that a customs duty should be amended, the Minister of Trade and Industry is empowered by the same regime to request the Minister of Finance to amend the relevant Schedule to the CEA.[4]

10. The Minister of Finance is given wide powers to legislate amendments to customs tariffs. He may do so at any time by tabling a taxation proposal in the National Assembly[5] which incorporates a new duty or increases the rate of a duty already payable In such a case, the proposal becomes payable not when the proposal is adopted by the National Assembly but upon its mere tabling.[6]

11. The Minister of Finance may of his own volition affect amendments to customs duties on imported goods,[7] to excise taxes and to certain levies[8] These powers must of course be exercised in accordance with the Constitution and with law generally but are not expressly circumscribed except by s 48(6) read with ss 56(3) and 57(3) of the CEA, which provide that such duties shall, unless Parliament otherwise provides, lapse on the last day of the calendar year following the ministerial amendment. But even then, the amended duties will continue to be valid for the period from the making of the amendment until the expiry by effluxion of time as provided for in s 48(6).

12. In addition the Minister of Finance is empowered to impose, withdraw and amend anti-dumping duties, countervailing duties and impose and withdraw safeguard measures.[9] As I shall show, the Minister of Finance is constrained in the exercise of these powers in that he may only exercise them in accordance with a request by the Minister of Trade and Industry. But here too, the Minister of Finance is the only organ of state (other than Parliament through national legislation) which can impose, withdraw or amend any such duty or measure.

13. This brings me to the heart of this urgent application: the scope of the powers of a Minister of Finance who has received a request from the Minister of Trade and Industry to implement a recommendation of ITAC to amend a Schedule to the CEA by changing an item of customs duty. But before I do that, I must give context to the issue in dispute.

14. The duty applicable to the present urgent application is that relating to sugar. Maize, wheat and sugar are basic necessities used by South Africans. During 2015, the country was gripped by a serious drought. This caused the production of sugar to decline. The local sugar industry suffered an increased risk of competition from imported sugar. Sugar is a commodity which can relatively easily be stockpiled.

15. In 2000, the Board established under the BTI Act introduced a tariff mechanism, called the variable tariff formula for the sugar industry. The world sugar price, expressed in US dollars, and the South African Rand continually fluctuate. The variable tariff formula was designed to adjust tariff protection rapidly in a volatile international market. The mechanism provides for a customs duty on imported sugar calculated by reference to a dollar base reference price (DBRP).

16. In practice, this customs duty on sugar is only triggered if the world price of sugar is below the DBRP. If the level of this duty is set too low, the domestic industry will enjoy no tariff protection. However, if the protective tariff is set too high, the domestic industry will enjoy protection potentially at the expense of consumers and of fair and competitive trade.

17. Before a change effected in July 2017, the mechanism operated as follows: The difference between the 20 trading day moving average of the London no. 5 settlement price and the DBRP for sugar was calculated daily. If this moving average showed a variance from the previous level determined of more than US$ 20 per ton for 20 consecutive trading days, a new duty had to be determined ("triggered") and converted into SA Rands on the day the adjustment was triggered.

18. In practice, at least in recent times, SASA has performed the calculations. If SASA concluded that a duty change had been triggered, it provided the relevant information to ITAC. ITAC then reviewed SASA's calculations and, if in agreement, made a recommendation to the Minister of Trade and Industry. The Minister of Trade and Industry then acted as set out in paragraph 8 above.

19. The present urgent application was precipitated bywhat happened on 28 July 2016. Before that there had been a number of trigger events which culminated in amendments by the Minister of Finance. From May 2014 to June 2017, the gaps between the trigger events and the gazetting of the amendments varied between 17 and 109 days. SASA regarded these delays as unsatisfactory. This was for the obvious reason that in a falling world market, a lower duty would afford its members less protection from external competition than they would have enjoyed had the duty been calculated on the actual price ruling on or close to the day on which the amended duty was gazetted.

20. On 28 July 2017, however, the Minister zero rated imported sugar. This meant that imported sugar was subject to no import duty at all. But the zero rating was based on outdated information, namely that collected on 19 October 2016. The result was that the sugar price used was almost US$ 200 higher than the 20 day average on the day the zero rating was gazetted.

21. In a letter dated 31 July 2017, SASA raised its concerns with ITAC. Representatives of the parties met and on 2 August 2017 ITAC undertook to SASA that it would process information provided to it by SASA within a day and submit a recommendation to the Minister of Trade and Industry.

22. On 3 August 2017, SASA sought equivalent undertakings from the two Ministers. By the time SASA's answering affidavit had been sworn, 20 August 2017, the Minister of Trade and Industry had provided SASA with an undertaking to consider and act on any recommendation relating to the import duty on sugar received from ITAC within five days of receipt of the recommendation. The undertaking of the Minister of Trade and Industry was acceptable to SASA. But the Minister of Finance has declined to give any such undertaking.

23. The consequence of the positions taken by the respondents is that SASA is not proceeding with the relief sought in its notice of motion against ITAC and the Minister of Trade and Industry. All that remains for consideration is prayer 7 of the notice of motion, in which SASA seeks an order directing the Minister of Finance to effect any "consequential"[10] amendments to the Schedules to the CEA within five working days, or such other time as the court considers just, of having received the recommendation of the Minister of Trade and Industry.

24. The issue between counsel for SASA and the Minister of Finance relates to the powers of the latter on receipt of a request by the Minister of Trade and Industry to amend the import duty on sugar. Counsel for SASA contends that the applicable legislative scheme reduces the function of the Minister of Finance to a status approximating that of a registrar. Counsel for SASA submits that the powers of the Minister of Finance extend no further than to scrutinise a request by the Minister of Trade and Industry for legality. Counsel for the Minister of Finance, on the other hand, submits that the Minister of Finance is vested with a full decision making power. Both sides accept that the characterisation of the power of the Minister of Finance is decisive for present purposes. If the Minister is no more than, effectively, a registrar, then the application must succeed. If on the other hand, the Minister of Finance is vested with a full decision making power, then the application cannot succeed because the scope of the enquiry which the officials of the National Treasury wish to undertake in matters of this nature cannot be concluded in five days or so. Indeed, the Director-General of the Treasury says in his affidavit that when a recommendation by ITAC and a request by the Minister of Trade and Industry are received, the Treasury undertakes an extensive process of internal evaluation. Only when the Minister of Finance is satisfied that the competing interests of economic policies, the fiscus and sugar industry participants have been balanced, will he make a decision.

25. The Treasury seeks the views of the SA Revenue Service in a case such as this. Internal processes within SARS generally take some ten to fifteen working days. Within the Treasury itself, the views of the units within the Treasury responsible for economic policy and microeconomic policy are canvassed. The views of the unit responsible for macroeconomic policy may also be taken. On the strength of these inputs, the head of the economic policy unit makes a recommendation.

26. The next step is for the views of the tax policy unit to be formulated. This unit looks at issues relating to tax policy, both current and proposed, the financial impact of any request submitted by SARS and legal and administrative issues.

27. Once the tax policy unit has formulated its views, the entire submission goes to the Deputy DG: Tax and Financial Policy for consideration. Thereafter the submission is sent through the office of the DG to the Minister, who will then make a decision. After that publication will take within five to ten days unless additional printing costs are accepted.

28. To examine the contentions of the parties, one must look at the statutory provision which confers on the Minister of Finance the power under scrutiny. This provision must be interpreted in the light of its language, the purpose of the measure and the context in which the measure should be examined.

29. Counsel are agreed that the power in question is to be found in s 48(1)(b) of the CEA. Section 48 reads:

(1)  The Minister may from time to time by notice in the Gazette amend the General Notes to Schedule 1and Part 1of the said Schedule or substitute the said Part 1and amend Part 2 of the said Schedule in so far as it relates to imported goods-

(a)  in order to give effect to any agreement amending any agreement approved by section 2 of the Geneva General Agreement on Tariffs and Trade Act, 1948 (Act 29 of 1948), or to any agreement or amendment of any agreement contemplated in section 49 and for the purposes of subsection (1) (a) or (b) of the said section 49; and

(b)  in order to give effect to any request by the Minister of Trade and Industry and for Economic Co-ordination;

(c)  in order to give effect to any amendment to the Explanatory Notes to the Harmonized System and to the Customs Co-operation Council Nomenclature referred to in section 47 (8) or to the Nomenclature set out in the annex to the Convention on Nomenclature for the Classification of Goods in Customs Tariffs signed in Brussels in 1950;

(d)  by deleting any reference therein to any territory the government of which has cancelled without the consent of the Government of the Republic any preferential customs tariff rate applicable at the commencement of this Act to any goods produced or manufactured in the Republic, on their importation into such territory;

(e)  whenever he deems it expedient inthe public interest otherwise to do so.

(1A)

(a)  The Minister may, for the purposes of subsection (1)  and section 49 (1) (a) or (b),by like notice amend the General Notes to Schedule 1 to incorporate as part of such Notes a schedule thereto entitled 'Origin provisions of trade agreements', containing the following in respect of any agreement contemplated in section 49:

(i) In separate parts of such schedule, any such agreement or any protocol or other part or provision of such agreement, including any annex or appendix thereto, concerning the origin of goods;

(ii) any instrument contemplated in section 49 (1) (b);

(iii) notes to any such agreement, protocol or other part or provision which may specify-

(aa) the agreement, protocol or other part or provision or instrument which governs goods entered according to the provisions of a particular column of Part 1 of Schedule 1;

(bb) definitions;

(cc) interpretation of words or phrases or substitutes for words or phrases;

(dd) any condition or procedure or provision of this Act to be complied with to give effect to such provisions of origin;

(ee) powers, duties or functions of the Commissioner or an officer;

(iv) any amendment, with or without retrospective effect, to such schedule or notes for any reason as may be specified in such amendment.

(b)  No goods imported or exported shall qualify for the benefit of preferential tariff treatment in terms of such agreement unless they comply with such provisions of origin or any other provision of such agreement or of this Act governing the acquisition of origin, tariff quotas or any other condition which is to be fulfilled for the purposes of giving effect to such agreement.

(2)  The Minister may from time to time by like notice amend or withdraw or, if so withdrawn, insert Part 2, Part 3, Part 4, Part SA or Part 58 of Schedule 1, whenever he-deems it expedient in the public interest to do so: Provided that the Minister may, whenever he deems it expedient in the public interest to do so, reduce any duty specified in the said Parts with retrospective effect from such date and to such extent as may be determined by him in such notice.

(2A)

(a)(i) The Minister may from time to time by like notice, whenever he deems it expedient in the public interest to do so, authorize the International Trade Administration Commission or the Commissioner to withdraw, with or without retrospective effect, and subject to such conditions as the said Commission or Commissioner may determine, any duty specified in Part 2 or Part 4 of Schedule 1.

(ii) The International Trade Administration Commission or the Commissioner may at any time cancel, amend or suspend any withdrawal referred to in subparagraph (i).

(b) Any application for such withdrawal, with retrospective effect, shall be submitted to the said International Trade Administration Commission or Commissioner, as the case may be, not later than six months from the date of entry for home consumption as provided in section 45 (2).

(3A)

(4) The Minister may, whenever he deems it expedient in the public interest to do so, by notice in the Gazette impose an export duty, on such basis as he may determine, in respect of any goods intended for export or any class or kind of such goods or any goods intended for export in circumstances specified in such notice and any export duty so imposed shall be set out in the form of a schedule which shall be deemed to be incorporated in Schedule 1 as Part 6 thereof and to constitute an amendment of Schedule 1.

(4A)

(a)  Notwithstanding anything to the contrary in this Act contained, the Minister may, whenever he deems it expedient in the public interest to do so, by notice in the Gazette, insert Part 8 of Schedule 1, and if so inserted withdraw or amend that Part for the purpose of specifying that any duty leviable under any heading or item of Part 1, 2 or 4 of Schedule 1 shall not be leviable under that Part, but shall be leviable under the said Part 8 at the time of entry for home consumption for use by any person, government, department, administration or body as may be specified by him in such notice.

(b)  For the purposes of this subsection, any amount leviable under any item of the said Part 8, shall be called an ordinary levy.

(c)  Any such ordinary levy shall be paid for the benefit of the National Revenue Fund as specified in section 47 (1) and shall, for the purposes of that section, be deemed to be a duty paid in accordance with the provisions of Schedule 1.

(d)  Notwithstanding the provisions of section 47 (1), any ordinary levy paid in respect of any goods intended for consumption in any territory, other than the Republic, which forms part of the common customs area shall be paid  by the Commissioner to the government of such territory at such times as he may determine.

(e)  The provisions of subsection (6) shall mutatis mutandis apply to any notice published under this subsection.

(5)

(a) Whenever any amendment made under this section has an effect which was not foreseen or intended, the Minister may, whether or not such amendment has ceased to have effect as such or has lapsed under subsection (6), after consultation with the Minister of Trade and Industry by further notice in the Gazette, adjust such amendment , to the extent he deems fit, with effect from the date of such amendment or any later date, and any adjustment effected under this subsection shall be deemed to be an amendment under this section.

(b) The provisions of paragraph (a) shall, in so far as they can be applied, apply mutatis mutandis in respect of any amendment made by Parliament, which corresponds to an amendment made under this section, before the lapsing in terms of subsection (6) of such last-mentioned amendment.

(6) Any amendment, withdrawal or insertion made under this section in any calendar year shall, unless Parliament otherwise provides, lapse on the last day of the next calendar year, but without detracting from the validity of such amendment , withdrawal or insertion before it has so lapsed.

30. The principal submission of counsel for SASA is that the approach of the Minister of Finance duplicates the work already done by ITAC and the Minister of Trade and Industry. Counsel point to the object of the ITA Act as set out in s 2.[11] Furthermore, the Minister of Trade and Industry may issue trade policy statements and directives and regulate imports into and exports from the Republic.[12] ITAC itself is a specialist body and counsel submit that some deference should be paid to its findings.

31. In SCAW[13] para 97, the Constitutional Court described the powers of the Minister of Trade and Industry as being wide and permissibly subject to polycentric considerations. The Minister of Trade and Industry is not obliged slavishly to follow the reasoning and findings of ITAC. On the strength of this pronouncement, counsel for SASA submit that the Minister of Finance is not required to carry out the extensive analysis which is the Treasury's modus operandi in such circumstances because the work which the Minister of Finance wishes to do has already been done by the Minister of Trade and Industry.

32. Counsel for SASA relied on certain remarks made by the Supreme Court of Appeal in Chairman. Board of Trade, and Others v Brenco Inc and Others.[14] In that case, the issue concerned the stage at which a party affected should be given a hearing in the process which culminates in a decision by the Minister of Finance to impose an anti- dumping duty under Chapter VI of the CEA. The nature of the power of the Minister of Finance was not in issue.

33. I do not agree with counsel's submission. The provisions of the CEA vest the Minister of Finance with the final decision (subject ultimately to Parliament) to determine appropriate customs duties. In this regard, I have made the point that the Minister is performing a legislative function. A legislator acts in a fiduciary capacity; he must so carry out the duties imposed on him in the interests of the Republic. This is reflected in the oaths of office of legislators as well as members of the executive and judicial officers in Schedule 2 to the Constitution which require the office bearer to swear or affirm to be faithful to the Republic. Such a fiduciary is obliged to carry out all such investigations as rationality require to qualify him to carry out the legislative task reposed in him. A legislator is self-evidently entitled to carry out such research as he may consider will best equip him to carry out his legislative task.

34. The National Treasury, with the Minister of Finance as its head, was established by s 5 of the Public Finance and Management Act, 1 of 1999. Under s 6(1) of that Act, the Treasury must, amongst other things, promote the national government's fiscal policy and the coordination of macro-economic policy.[15] The Treasury has rightly been described as the guardian of the nation's economy.[16]

35. I find nothing in the language of the CEA which reduces the role of the Minister in this regard to that akin to a registrar. I am prepared to assume, without deciding the point, that the wide power conferred on the Minister of Finance under s 48(1)(e) may only be exercised in instances which do not fall under ss 48(1)(a)-(d). But I think the use of the word "otherwise" in s 48(1)(e) supports the interpretation which I favour. I think that this word is a pointer to the conclusion that the power conferred on the Minister of Finance is one which he may generally exercise when he has come to the conclusion that it is in the public interest that he do so. The CEA is replete with powers conferred on the Minister of Finance in relation to duties which he may exercise when he deems it expedient in the public interest to do so.[17]

36. That there is an overlap in the decision making powers in the situation which culminates with a request to the Minister of Finance under s 48(1)(b) and that investigations are conducted by other organs of state do not detract in my view from this conclusion. There is nothing strange or anomalous in the situation that arises when the legislature prescribes, in effect, that approvals by more than one decision maker are required for the ultimate effectiveness of the action contemplated.

37. This point is to my mind demonstrated by the provisions of Chapter VI of the CEA which deals with anti-dumping, countervailing and safeguard duties and safeguard measures. In terms, the Minister of Finance is vested with powers to impose or vary anti-dumping and countervailing duties and impose or vary safeguard measures.[18] But the Minister of Finance can only act in relation to these duties and measures in accordance with a request by the Minister of Trade and lndustry.[19] In the Chapter VI instances, the empowering provisions clearly restrict the Minister, in the exercise of his power to impose or vary duties or measures, to instances where the Minister of Finance has been requested by the Minister of Trade and Industry to impose such duties or measures. In such a case the Minister of Finance has an election: the Minister of Finance may either impose or vary the duty or measure in accordance with the view expressed by the Minister of Trade and Industry through his request or the Minister of Finance may decline to act at all in accordance with the powers conferred by Chapter VI of the CEA. In such cases the Minister of Finance may not act unilaterally .This is because the language (in accordance with ...) makes it clear that he may not. But there is nothing in the language of s 55 which indicates that the Minister of Finance is obliged to concur with or defer to the Minister of Trade and Industry and that the former Minister is not precluded by law from conducting his own independent investigation and analysis of the subject matter of the request received from the latter.

38. Counsel for SASA relied on what was said by Nugent JA in Association of Meat Exporters and Others v International Trade Commission and Others.[20] Nugent JA observed that when the Minister of Finance withdraws or reduces an anti-dumping duty, or otherwise amends the second Schedule to the CEA under s 56(2) of the CEA, the Minister of Finance acts in accordance with a request by the Minister of Trade and lndustry.[21] I do not think that this dictum advances counsel's argument.

39. And, finally, s 48(1) provides that the Minister of Finance may ... amend ...".This is generally recognised as permissive statutory language, connoting powers which are characterised by the element of choice which they confer on their holders.[22] Such language is by itself not always decisive,[23] just as language which goes the other way (eg ... must ... or ... shall ...) does not always visit non-compliance with nullity.[24] Nevertheless, if the purpose of the legislation had been to constrain the power of the Minister of Finance, this could easily have been done by appropriate language, I therefore find the choice of language a pointer toward the wide discretion on the part of the Minister of Finance in relation to s 48(1)(b) of the CEA.

40. It follows, then that the application cannot succeed. I say this with a measure of regret. There is no reason to doubt that the delays in amending the import duty applicable to sugar are in the current economic climate causing harm to the local sugar industry. The delays are not attributable to any constitutional breach on the part of the Minister or the Treasury.[25] They are caused by the nature of the decision making process. Perhaps the parties can collectively develop mechanisms to speed up the decision making process in SARS and the Treasury. But the principle of separation of powers requires that the decision makers in the Treasury and the Minister of Finance approach their tasks as they see fit as long as the manner in which they do so is rational. It is not suggested that if the s 48(1)(b) decision making power is a wide one, as I have found it to be, the court can prescribe a time period within which the decision must be made.

41. Counsel for the Minister of Finance asked for costs if his client were successful but I consider that SASA is protected from an adverse costs order by the Biowatch principle. Nothing in the way that SASA has litigated or conducted itself deserves censure or is otherwise manifestly inappropriate.

42. I make the following order:

The application for relief against the second respondent is dismissed.

 

 

________________

NB Tuchten

Judge of the High Court

29 August 2017

For the applicant:

Adv AP Joubert and Adv M du Plessis

Instructed by:

Webber Wentzel

Johannesburg

 

For the second respondent:

Adv V Maleka SC, N Mayet-Beukes and L Nyangiwe

Instructed by:

State Attorney

Pretoria

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