Government Gazette REPUBLIC OF SOUTH AFRICA Vol. 451 Cape Town 22 January 2003 No. 24287 THE PRESIDENCY No. 123 22 January 2003 It is hereby notified that the President has assented to the following Act, which is hereby published for general information:– No. 71 of 2002: International Trade Administration Act, 2002. AIDS HELPLINE: 0800-123-22 Prevention is the cure 2 No. 24287 Act No. 71,2002 INTERKATIONAL TRADE ADMINISTRATION ACT. 2002 +* 2 . (English text signed by the President.) (Assented to 30 December 2002J . To establish. the International Trade Administration Commission; to provide for the functionsof the Commission and the regulation its procedures;to provide for of for the implementation of certain aspects of the Southern African Customs Union (SACU) Agreement the Republic; to provide, within the frameworkof the SACU in Agreement. for continued control import and export goods and amendment of of of customs duties: and to provide for matters connected therewith. B E IT ENACTED by the Parliament follows:- of the Republic of South Africa, as TABLE OF CONTENTS CHAPTER 1 DEFINITIONS. INTERPRETATIOK, OBJECT AND APPLICATION OF ACT 1 3 1 5 Definitions and interpretation Object of' Act Application of Act CHAPTER 2 TRADE POLICY 3 10 5 6 Implementation of SACU Agreement Minister to determine trade policy Minister's power to regulate imports and exports CHAPTER 3 INTERNATIONAL TRADE ADMINISTRATION COMMISSION Part A 15 Establishment and constitution 7 8 9 10 11 12 13 13 Establishment and independence of Commission Constitution of Commission Qualifications of members Conduct of members Resignation and removal from office Meetings and decisions of Commission Chief Commissioner Committees 20 25 ~ ~ ~~ ~ ~~ ~~ 3 No. 24287 GOVERNMENT GAZETTE. 22 JANUARY 2003 ~~~~~~~ Act No. 71.2002 INTERNATIONAL TRADE ADhlINISTRATION ACT. 2002 e * 0 Part B Functions of Commission General functions of Commission Customsduties.anti-dumpingduties.countervailingdutiesandsafeguard measures Issuing of permits or certificates '. hlonitoring matters other and trade Information sharing with SACU institutions and Member States Relations \vith SACK and Member States Relations n,ith domestic agencies Public information and reporting * , 5 10 Part C Staff, jinances and administration of Commission Staff of Commission Finances of Commission Liability CHAPTER 4 IN\'ESTI(;ATION, EYALUATIOX AXD ADJUDICATION PROCEDURES Part A Applications 26 Applications 20 Part B Import and export controlpermits and rebate permits 37 21; 29 Authorit! of Commission to issue import and export permits and rebate permits Authorit!, of Commission to demand information trade 1-5 Authorit! of Commission to suspend or cancelpermits Part C Customs d u h applications 30 31 32 Customs applications dutjRequests Consideration of allegeddumpingandsubsidisedexports 30 Part D Conjidential information 33 31 35 36 37 Right of informantstoclaimconfidentiality DeterminationCommission by Proceedings in contested claims Disclosure of information Restricted of use information 35 Part E Powers of investigative search and inspections 38 Appointment of investigating officers 40 6 ~~ KO.1-4287 ~ ~ GOVERNMENT GAZETTE. INTERNATIONAL TRADE ADMINISTRATION ACT, 2002 r. 12 JANUARY 2003 Act No. 71,2002 * 0 39 40 41 42 43 44 45 Summons Witnesses Import and export control inspections Conduct of entry and search Power to enter and search under warrant Power to enter and search without warrant Power to enter and search 5 F Part ' . ' Reviews and appeals 46 47 Reviews Appeals CHAPTER 5 ENFORCEMENT AND OFFENCES Variation of order Standard of proof Breach of confidence Hindering administration of Act Failure to attend Lvhen summoned Failure to ans\ver full) or truthfully Other offences Penalties hlagistrate's Court jurisdiction to impose penalties Serving of documents Proof of facts 15 20 CHAPTER 6 GEiYER4L PROVISIONS 59 60 61 62 63 Regulations Guidelines Official seal Act binds State Transitional arrangements and repeal of laws Short title and commencement 25 30 61 SCHEDULE 1 SACU AGREEMENT SCHEDULE 2 35 Definitions Implementation of SACU Agreement Composition of Commission Pending applications and other Board business Statutory references Status of Board Employees and others 40 SCHEDULE 3 REPEAL OF LA4v\'S(SECTION 63C)) 8 No. 24187 2003 JANUARY GOVERNMENT GAZETTE, 22 INTEWATIONAL TRADE ADMINISTRATION ACJ, 2002 Act No. 71,2002 * I CHAPTER 1 DEFINITIONS, INTERPRETATION, OBJECT ANDAPPLICATION OF ACT Definitions and interpretation SACU 1. ( 1 A reference in this Act to an Article by number is reference to such Articlein a the A,Oreement. ( 2 ) In this Act unless the context indicates otherwisex.. "Cabinet" means the body referred to in section 91 of the Constitution; "claimant" means a person who has filed a claim in terms of Part D of Chapter 4. with regard to the confidentiality of information; "Commission" means the International Trade Adm1ni:tration Commission established by section 7: "committee" means a committee of the Commission: "Common Customs Area" means the combined areas of the Member States of 7 SAW: "confidential information" information means that is( aJ b!, nature. confidential: or f h / recognised in terms of Part D of Chapter 4. to be otherwise confidential; "countervailing duty" means a customs imposed off-set benefit duty to the conferred by a subsidy: "Customs and Excise Act" means the Customs and Excise Act, 1964 (Act No. 9 1 of 1961): "customs duty'' means customs duty as defined in section 1 of the Customs and Excise Act: or "dumping" means the introductionof goods into the commerce of the Republic the Common Customs Area an export price contemplatedin section 32(2)(a)that at is less than the normal value. as defined in section 33(2). of those goods; "export" means to take or send goods, or to cause them to be taken or sent, from the Republic to a country or territory outside the Republic: "goods" includes( a ) all u'ares. articles.merchandise,animals,currency.material or objects of Lvhatsoever nature: and 0 7 1 in relation to an!' particular goods. an!' other goods that are reasonably capable of beingsubstitutedforthem.takingintoaccountordinarycommercial practice and geographical. technical and temporal constraints; "import" means to bring goods. or cause them to be brought, from outside the Republic into the Republic: "information that is by nature confidential" means trade, business or industrial information that( a ) belongs to a person or the State: ( h , has economic and value: a particular ( c ) is not general11 available to or known by others. and the disclosure of which could(iI result in a significant adverse effect on the owner, or on the person that provided the information; or (ii) give a significant competitive advantage to a competitor of the owner; "member" means a member of the Commission: "Member State" means a member of SACU; "Minister" means the member of the Cabinet responsible for trade and industry; "Minister of Finance" means the member of the Cabinet responsible for national finance; "XationalBody"means a body or institutionestablished or designatedby a Member State. as contemplated in Article 14; "organ of state" has the meaning set out in section 239 of the Constitution; "person" includes. among other things. a trust; or anybuilding.structure,vehicle,ship,boat,vessel, "premises"includesland aircraft or container; "prescribed" means prescribed by regulation in terms of this Act; "Public Finance Management Act" means the Public Finance Management Act, 1999 (Act No. I of 1999); "regulation" means a Act; made regulation this under 5 10 15 70 25 30 35 40 45 so 55 60 IO .4ct No. 23267 GOVERNMENT GAZETTE. 1YTERN.ATIONAL TRADE ADMINISTRATION ACJ. 2001 22 JANUARY 2003 KO.71.2002 *> Agreement" "regulator!. authorit!." means entity an established in terms of national or provinciallegislationresponsibleforregulating an industryor a sector of an industry: "SACU" means the Southern African Customs Union established by Article 3: "SACU means5 ( a ) the agreement establishing SACU. and attached as Schedule 1 to this Act; and ( h ) any annex t o that agreement de\.eloped by the SACU Councilas contemplated in Article -12. once such an annex has become law in the Republic; "SACUCommission"meanstheCustomsUnionCmmissionestablished by 10 Article 7: "SACU Council" means the Council of Ministers established by Article 7: "SACU Tribunal" means the Tribunal established by Article 7: "safeguard measure" means a remed! or proce!ure for use in response to disrupti\ e competition: "Tariff Board"meanstheSACU Tariff Board established by PIrticle 7: and 15 "this Act" includes the regulations and Schedules. other than Schedule 1. ( 3 )This Act must be interpreted( r r ~ in a manner that is consistent M i t h the Constitution and $\res effect to the object set out i n section 2: and (11) i n a manner- that is consistent \\.ith thepurposesandintentoftheSACU 30 Agreemmt. Object of Act 2. The object of the Act is to foster economic growth and development in order to raise incomes and promote investment and employment in the Republic and within the CommonCustom\Area by establishin: an cfticient effective and system for the 35 administration of international trade subject to this and the SACU a= oreement. Act Application of Act 3. ( 1 i Subject to \ubsection ( 2 ) . this Act applies t o all economic activity within. or having an effect within. the Republic. ( 2 ) Sections 0. 261 1 ) ( a i and 2 6 ( 3 ) ! aand Part B of Chapter 4 do not apply to the 30 ~ a export or import of good5 in respect of \vhich the Ministerof Defence has issued notice in terms of section 4C( )ill) the Armaments Development and Production Act,1968 1 of (Act No. 57 of I9hP 1. prohibiting theexport or import of those goods: or t h ) export or import of those y m d s except under authorit) of and in accordance 35 with the conditions stated i n a pemlit referred to in section 3C(l )(u)(ii) or (1.i) of that Act. CH.4PTER 2 TRADE POLICY lmplementation of SACK Agreement 30 4. ( 1 ) The Minister is the head representati\,e of the Republic to the SACU Council. ( 2 )The Minister may( a ) assign representati1,es of the Republic to an!. institution constituted by or in terms of the SACU Agreement: and ( h ~exercise an! right of theRepublic in terms of theSACUAgreementto 45 nominate or appoint persons to fill an! ofice constituted by or in terms of the SACU A = oreement. 12 No. 24287 GO\'ERNMENT GAZETTE. INTERSATIONAL TRADE ADMINISTRATION ACT. 2002 72 JANUARY 2003 * + Act Nu. 71.2002 (3) The Minister is the head representative the Republic in any consultations with of Member States individually or collectively as contemplated in the SACU Agreement and represents the Republic any consultations arising in terms Article 13(3)and ( 5 ) in of and Article 15. (4) TheCommission may. in accordancewiththisAct.exercisetheright of the 5 Republic to grant a rebate of customs duties. as contemplated in Article 20(3). (5) SACU is recognised as ajuristicperson for all purposes of lawwithinthe Republic. ( 6 ) The klinister may refer an): decision of the SACU. and to exercise its authority and can)' out its functions effectively. f o j Constitution of Commission 8. I 1 I Ii 1 I ii 1 1 2 The Commission consists of7-5 full-time Chief Commissioner and a full-time Deputy Chief Commissioner: ;1nd noi less than two but not more than 1 0 other Commissioners. each appointed [ o s x v e either full-time or part-time. appointed b the President on the recommendation of the Minister. subject to section 9. ! 0 7 , The Xlinister must. by notice in the Gcr:rtrr and in any national newspaper. invite nominaTions for appointment of persons as members of the Commission. ( C J The members of the Commission must. \\hen \,iewed collectively. be representati\e of : broad cross-section of the population of the Republic. including women. and ! the President must endeavour to ensure participation b, significant economic sectors. ! ( 2 1 Tils Fresident must. making when an appointment in terms subsection of ( 1 )fo!(ii;. cktxmineI II J n htther the appointee is to be a full-time or part-time Commissioner: and f i~ I ths term of the appointment. which may not exceed five years. (3J If' a acancy arises as a, result of the departure of a full-time Commissioner. the President may. on the recommendation of the Minister( ~ 1lea\.e theposition \want: //I) if' the member's term of office has expired. reappoint that member subject to wction 9: or ( ( ' 1 in anyother caseIi j appoint a new member in accordance n.ith subsection ( 7 ) :or ( i i ) on the request of a part-time member, transfer that part-time member to fill that \,acancy on a full-time basis either for( a u ) the remainder of that member's term of office; or (hb) a term determined b, the President in accordance with subsection ! (3). ( 4 ) If ; \.acancy arises as a result of the departure of a part-time Commissioner. the 1 President may. on the recommendation of the Ministerf a i 1eaj.e the Dosition \.scant; (bl if the member's term of office has expired, reappoint that member subject to section 9; or ccl in anyother case- 30 35 40 45 50 55 16 No. 24287 GOVERNMENT GAZETTE. INTERNATIONAL TRADE AD.\IINISTRATION ACT. 2002 22 JANUARY 2003 Act No. 71,2002 * e ( i ) appoint member new a on part-time a basis in accordance with subsection ( 2 ) :or (ii) on the request of a full-time member. transfer that member to fill that l'acancy on a part-time basis either forf a r / ) the remainder of that member's term of office: or 5 lbhJ a term determined by the President in accordance with subsection (3). ( 5 ) A person may not serve as Chief Commissioner for more than 10 consecutive vears. ' . ( 6 )The Minister must. with the concurrencethe MinisterGf Finance, determine the 10 of remuneration. allowances. benefits and other terms and conditions of employment ofthe ChiefCommissioner.DeputyChiefCommissionerandeachothermemberofthe Commission. ( 7 )During the term of office of a member of the ComwSsion. the Minister may not reduce the member's salary. alloumces or benefits. 1s ( 8 )The Ministerma! determine any other conditions appointment not provided for of in this section. but an! such conditions may not be of such a nature as to reduce the independence 01' the Commissioner concerned. Qualifications of' members 9.1 1 ) To he eligible for appointment and to continue to hold office as a member the 20 of Commission, a person musti a ) be ordinarii! resident in the Republic: and i h l ha\esuitabltqualificationsandexperience in economics,accounting,law, commerce. agriculture. industr!. or public affairs. ( 2 )A person may not be a member of the Commission if that person25 I CI I is an oftice-bearer of any party. mo\ ement. organisation or body of a partisan political nature: 0 1 ) is an unrehabiiitatedinsolvent: f c ) has been found mentally unfit by an order of a competent court: or i d ] hasbeencon\,icted of an offencecommittedaftertheConstitution vf the 30 Republic of SouthAfrica. 1993 (Act No. 200 of 1993). took effect. and sentenced to imprisonment without the option of a fine Conduct of members 1 0 . i1 ) A member of thr. Commission. and a memberof the staff of the Commission. 35 must notI O / engagr in an! xtivitl. that may undermine the inteyity of the Commission; ( h i participate 11; an! investigation.hearing or decisionconcerningamatter in respect of \\.hich that person has a financial interest or an! similar personal interest. ah pi-;.s,ribed: make privats u:.c of. or profit from. an:, confidential information obtained as 30 a result of performing that person's official functions i n the Commission; or (if] divulge an!' information referred to in paragraph ic'i to any third party, except as required a5 part of that person's official functions within the Commission. ( 3I If. at an! time, it appears to a member of the Commission that a matter before the Commission concerns the financial or personal interest of that member, as prescribed, 45 the member of the Commission musticri immediatel! and fully disclose the interest to the Chief Commissioner, or in the case of the Chief Commissioner. to the Deputy Chief Commissioner: and ibi withdraa. from any further involvement the matter to the extent requiredby in 50 regulation. ( 3 1 A member of the Commission must comply with any prescribed code conduct of for members. IX No. 21287 GOVERNMENT GAZETTE. 22 JANUARY 2003 c .4cl No. 71.2002 JA'TERNATIONAL TRADE ADMINISTRATION AC;. 2002 \a Resignation and removal from office 11. ( 1 ) A member of the Commission may. on one month's written notice addressed to the President( r l i resignfromtheCommission: or if he or she is a Chief or Deputy Chief Commissioner. resign from the postbut 5 remain as an ordinary member of the Commission. ( 2 1 The President. on the recommendation of theMinister( a i must remove a member of the Commission from sf@e if the member( i ) ceases to be ordinarily resident within the Republic: or ( i i 1 becomes sub.ject to any of the disqualifications referred to in section 9(7-): 1 0 and ( h i ma!' remove a member from office only for( misconduct: i J serious ( i i ) permanentincapacity: ( i i i ! e n y g i n g in any acti\,it! that may undermine integrity the of the 15 Commission: or ( i \ i failure to satisf! the prescribed standards of professionalism. attendance and participation in the functions of the Commission, \. XIeetings and decisions of Commission 11. ( 1 I The Chief Commissioner must con\'ene the first meeting of the Commission 20 and preside at that meeting. i?A majority of themembers of theCommissionpresent J at a meeting of the Commission forms a quorum. I 3 ) The ChiefCommissionermustappoint a member of theCommissionas meetings to atChairperwn preside Commission. of the 7-5 ( 4 1 If theChairperson is not present.thsmemberspresent at themeetingmust nominate a member to preside at that mrering. (iI The decision ofa majorit) of the memhers of the Commission present and voting on a matter is the decision of the Commission on that matter. (6) the case of an equality of votes. the person presiding at the meeting ma)' cast a 30 In deciding \'ate in addition to his or her deliberative vote. I 7 )The Comnlission ma! make rules of order for its proceedings. but any such rules of order must be consistent uith this Act. Chief Commissioner 13. ( 1 1 The Chief Commissioneri < the Chief Executive Officer of the Commission,is 35 responsible for the general administration of the Commission. and musti u i perfonn the functions that are conferred on the Chief Commissioner b. or in ! terms of this Act: ( h i manage and direct the acti\.itiei ofthe Commission: and i ( ' i the \uper\.ise Commi\zion. staff of the 40 ( 2 )The Deput!, Chief Commissioner' c i ) ma! pl-dorm an! functions of theChiefCommissioner as assigned by the Chief Commissioner: and i h ) must prrform the functions of the Chief Commissioner whenever the( i) Chief Commissioner is unable for any reason to perform the functions of 45 the Chief Commissioner: or ( i i ) ofice of Chief Commissioner is vacant. i.3) The Chief Commissioner may assign another member of the Commission to perform any functions of the Chief Commissioner when the Chief Commissioner the or is unable perform tothose functions. 50 Deput!. Chief Commissioner Committees 14. ( 1 ) TheMinister Commissionmay. by notice in the Caretre and at therequest of the 20 No. 24787 GOVERNMENT GAZETTE. 22 JANUARY 2M3 c .4ct No. 71.2002 IITERN.ATIONAL TRADE ADMINISTRATION ACT. 2002 \a ( a / establish one or more committees of the Commission for any purpose within or ancillary to the functions of the Commission: and ( b i appoint persons recommended the by Commission to be members of a committee. ( 3 )A request to the Minister contemplated in subsection ( 1 ) to establish a committee 5 mustfa1 propose specific terms of reference for the committee; 1/71 indicate whether the committee is a permanent committee or is established for a specific term: \. f c ) propose persons to be appointed to the committee and designate the proposed 1 0 chairperson of the committee: and i d ) set out time limits u,ithin u>hich committee must report to the Commission. the (-7) A committee ma\' consist of persons who are not members of the Colnmission buti u i at l e u t half o f themembers of eachcommitteemustbemembersofthe 15 Commission: and 0 9 1 persons u,ho are not members of the Commission may not vote. (4) a committee i < permanent. the Minister must determine the term of office for if each person appointed to that committee. ( 5 )A committee decision is effective onl!if the dcc~sionis subsequentl! ratified by 1 0 the Commission. unless the notice establishing the ctmmittee exprexsl> authorises the particular decision t o be effective lvithout such ratifi:ation. -. Part B General functions of Commission '5 15. ( I The Commission must c a m out the functioI15 assigned t o i t in terms of this Act. an! other .\st or t.\ the Minister. i 2 ) The Commission must carr)' any function that arises out an obligation of thr out of Republic in term5 o f ; trade agreement. if the Minister has assigned that function to the I 30 Commission. ( 3 I TheComm~ssion ma!. to extent the required or permitted by the S.4CU Agreement. refer mattersto an! institutionconstituted b or in terms of the SACU ! Agreement. and ma! appear before such an institution. ( 4 ) The Commission ma>. subject t o section 1 4 5 ) . asiign any of its functions t O Commission: the ; member of I 35 r h i ; committee established i n terms of section 11: I i r j ;I memher of the staff of the Commission: i d ) a person referred to in section 23: 01an! combination of persons referred t o in this >uh\ection. ((1) Customs duties. anti-dumping duties, countervailing duties measures and safeguard 40 16. ( I ) The Commission must investigate and e\xluatel a ) applications in terms of {ection 1 with 6 regard to alleged dumping. 01subsidised exports. in or into the Republic or the Common Customs Area: ( h i applications i n terms of section 1 u 3 h regard to safeguard 6 measures: 35 ( ( ' 1 applications in termsofsection 36 withregard to amendment of customs duties in the Common Customs Area: and t d ) matters with regard to safezuard measures or amendment of customs duties in the Common Customs Area. that the( i ) Minister Commission directs consider: the to or 50 ( i i ) Commission considers on its own initiatile. ( 2 ) Sections 16 and i O ( I )(ai. each read nith the changes required by the context. apply to an investigation undertaken by the Commission in terms of subsection (1 )(rl). 11 No. 24187 GOVERNMENT GAZETTE, INTERN.4TlONAL TRADE ADMINISTRATION AC,T. 2002 23 JANUARY 2003 Act No. 71,2002 * (3) The Commission may. after evaluatinz a matter in terms of subsection ( 1 ), take appropriate steps in accordance with this Act and the SACU Agreement and inform the Minister and theTariff Board of its evaluation. Issuing of permits orcertificates 17. The Commission may investigate. evaluate and determine applications and issue or recommend the issuing of permits or certificates. in terms of( n l the rebate and drawback provisions of the Customqyd Excise Act: or f h l Part .4 and B of Chapter 4. hlonitoring trade and other matters Commission5 1s. The , + I0 (/?I must monitor. revieu. reportt o the Minister on and. when appropriate. advise the Minister in respect of. any matter referred to it by the Minister that affects or might affect trade and industn: and may investigate matters relating to its functions in terms of this ,4ct. Informationwith sharing SACU institutions States Member and 1s 19. Subject to Part D of Chapter 1 and the Promotion of Access to Information Act. 3000 (Act No. 3 of 3000). the Commission( 0 1 must provide information to the SACU Secretariat or one or more Member States. ah required in terms of this Act or the SACU Agreement: ( h i ma! requestsuchinformation from theSACUSecretariat or one or more 30 hlember States. as permitted in terms of the SACU Agreement: and (c'; ma!. exchange information the with National established any Body by Llzmber State. Relations with SACU and Member States Commission 20. The may95 i J engage with an entity of SXCU or the National Body of one or more Member o States in eo-operativeactivitiesofresearch.publication.education. staff de\,elopment and training: or ( h i in consultationwiththe Ministeri i ) enp_re Lvith an entity of SACU or the National Body of an). Member 30 State in staff exchanges or secondment of staff: or i i i ) provide technical assistance or expertise to. or request such assistance from. an entity of SACU or the National Body of a Member State. Relations with domestic agencies Commission 21. ( 1 I The ma!icrl enter into an agreement ~ i t h regulatoryauthorit) an) or organ of stateto co-ordinate and harmonise their respective functions with regard to international trade matters. in order to ensure the achievement of the objects of this Act: and (11) v, ith regard a particularwithin to matterits jurisdictiont i ) delegate its functions to such a regulatory authority or organ of state. as contemplated in section 938 of the Constitution: or i i i ) act in accordance with the agreement referred to in paragraph ( u i . (2) A regulatory authority or organ of state that, in terms of any lam. has jurisdiction trade international over may( a ) enter into an agreement referred to in subsection (1 ), with the Commission: and ( h ) with regard to a particular matter within its jurisdictionti i delegate such matter to the Commission as contemplated in section 238 the or of Constitution: ( i i ) act in accordance with the agreement referred to in paragraph (01. 35 40 tters 35 50 21 No. 24787 GOVERNMENT GAZETTE. 27 JANUARY 7003 INTERSATIONAL TRADE ADhlINISTRATION ACT. 2002 c Act No. 71,2002 * .i9 (3) The Commission may( a ) participate in the proceedings of any regulatory authority or organ of State: and ( 0 ) advise. and receive advice from. any regulatory authority or organ of state. Public information and reporting 5 22. ( I ) The CommissionAct: (aj must implement measures to promote public awareness of the proiisions of this L . f h ) may provide ad\zice to industry or interested persons in the prescribed manner and form. 10 ( 3 )The Commission must report to the Minister on( a ) any matter relating generally to the implementation of the objects of this Act: and ( h ) the results of an). investigation. monitoring or re\,iew carried out in terms o f 15 section 18. ( 3 )The Chief Commissioner must within six months after the end of the financial year of the Commission. prepare and submit to the Minister an annual report in the prescribed form, containing( ( 1 1 the audited financial statements prepared in terms of section 23(S): 0 7 ) the auditor-general's prepared report. in terms of section 24(9): 10 1 ( ( ' J a report on the performanct. of the Commission and of activities undertakenin terms of this Act: and (ti) any other information that the Minister ma)' require. ( 3 )The Minister must table the annual report in Parliament within 13 days of receipt thereof if Parliament is sitting or. if Parliament is not then sitting, within 13 days of the 25 commencement of the nest sitting. ( 5 )The Minister may table i n Parliament an!. other report submitted regardingici) a statement of theprogressachievedduringtheprecedingyeartowards realisation of the objects of this Act: and i h ) an!information other determined Minister. by the 30 and Part C Stafi jinances and administration of Conmission Staff of Commission 13. ( 1 I The Chief Commissioner ma>~ N I appoint staff or enter contracts other into with persons to assist the 35 Commission in caqzing out its functions: and i h ) in consultation with the Minister and with the concurrence of the Minister of Finance. determine the remuneration. allowances. benefits and other terms and condition< of appointment of each member of the staff. ( 2 )The Minister mal-. M.ith the concurrence of the Minister of Finance. determine the 40 is remuneration paid to a person who appointed in terms of subsection i1 ).but \vho is not in the full-time senice of the Commission. Finances of Commission 14. ( 1 ) The Commission is financed fromappropriated (a) money is that by Parliament: 35 fhl prescribed fees: (c) income derived from the investment and deposit of surplus money in terms of subsection (6):and ( d ) money recei\.ed from any other source. ( 3 )The financial year of the Commission is the period from 1 April in any year to 31 50 March in the following year, except that the first financial year begins on the date that this Act comes into operation, and ends on 3 1 March next following that date. 26 No. 742s: GOVERNhlENT GAZETTE. 32 JANUARY 2003 INTERSATIONAL TRADE ADMINISTRATION ACT. 7002 c Act No. 71,2002 * 0 t ? I Each year. at a time determined by the Minister, the Commission must submit to the Minister a statement of its estimated income and expenditure, and the requested appropriation from Parliament, in respect of the next ensuing financial year. (31 The Commission must open and maintain account in its name with a registered an bank. or other financial registered institution. in Republic. the and5 f r / / deposit an! mane>' received into that account; and ( h i e\.ery payment made on its behalf must be made from that account. ( 5 ) Cheques dra\im on the account of the Commission must be signed its behalf b, on ! t M o persons authoriaed for that purpose by a resolution of th Commission. \ ( 6 )The Commission may invest or deposit money thatnot lmmedlately required for 1 0 is contingencies or to meet current expenditures in( a i a call or short-term fixed deposit account with any registered bank financial or institution in the Republic: or f h i an in\.estmenr account mith the Corporation for Pu$lic Deposits established in t e r m of section 2 of the Corporation for Public Deposits Act. 1984 (Act KO. 15 16 of 10x1,. 1 7I The Chief Commissioneris the accounting aqhority of the Commission i n terlns of thc Public Finmce hlanagement .4ct. ( 8I The Chief Commissioner must prepare financial statements for the Commission \\ithin aix monrhs after the end o f each hnancial year in accordance a i t h established ?(, accounting practice. principles and procedures. consisting of~ C / I a statemenr reflecting. n,ith sufiicient particulars. the income and expenditure of the Commission during the preceding financial ).ear: and i i , ~ ;I balance sheet sho\ving the state of its assets. liabilities and financial position end at the 35 o f thar financial !.ear. '5 ( 9 1 The .Aud~tcwGeneraI each audit financial must year the records of the Commi~>ion. Liabilit! 25. The State Liahilit! Act. 1957 (Act No,20 of 1957). read with the changes required b ths context. applie\ t o the Commis~ion. a reference in that Act to '.the Minister ! but 30 of the Departrnent concerned" must be interpreted as referring to the Chief Commissioner of the Cornmission. CHAPTER 4 IN-ESTIG.L\TIOZ,E\:4LUATION AND ADJUDIC4TION PROCEDURES Part A Applications regard with 26. [ 1 I .Aperson may. in the prescribed manner and form. apply to the Commission torl an import or export control permit. or an amendment of such a permit. in terms 40 oi. Part H of this Chapter and the regulations; I / > / a rebate permit or certificate in terms of the Customs and Excise Act; I(') theamendment of customsduties.including an amendment in respectof _rood\ imported into the Common Customs Area from a country that is not a State. LIember to45 ( i I anti-dumpingduties: I i i I c o u n t e n d i n g duries: or j iii) safeguard duties: or I L O the imposition of safeguard measures other than a customs duty amendment. (31 The Commission must. subject to section 30(1) and (3). evaluate the merits of 50 e\er! application received by it and dispose of each application- 18 No. 21287 GOVERNMENT GAZETTE. Ih'TERN.4TlONAL TR.4DE AD5IINISTR.4TION ACTk2002 22 JANUARY 2003 4 c t No. 71,2002 * c (u1 received in terns of subsection ( 1 Kc{) or (h).in accordance with Part B ofthis Chapter: or (01 received in terms of subsection ( 1 X C J or ( d l . in accordance with Part C of this Chapter. ( 3 ) (ai The Commission ma!. before considering an application. Five notice of the application in the Ga:etrc. ( h J If it does so. the Commission must( i ) allow interested parties the prescribed time to make written representations concerning the application: and i i i ) ensure notice that of its decision or recommendation in the matter is subsequentl! published in the Gu:crte. ( 3 )The Commission nu!'((1) require applicant an to prmide additional informaxion in respect of the application: or < . Ibj requestfurtherinformationfrom an!. personwhomakes a representation in terms of subsection ( ? ) ( / I / . ( 5 An!. person ma! \.oluntaril!- file with the Commission an\. document. afida\,it or statement of the vieus o f that person u,ith regard to the application. or other relevant information. (6) Commissionma!. amend or revoke a decision or recommenclation concerning The an application if(({/ the decision or recommendation \va\ based on incorrect infor~nation and the applicant or supplier of the information(i) was responsible for the error in the information: and ( i i ) henefited or could ha1.e benefited. from the decision or recommendation: i i l , the decision \ \ a s obtained b deceit: or ! (c,) a person has breached an obligation attached to the decision or recornmendatlon. \ ' 5 10 15 20 15 Part R Import and export corltrol permits and rebate permits 30 Authority of Commission to issue import and export permits and rebate permits 27. i 1 ) ici) The Commijsion n w t . after e\.aluating an application made in terms of section 3 61 J ( a ) or (hi-( ( i ) refusetheapplication: or ( i i ) appro\ e the applicarion in whole or in part and njth or without conditions. , / I , If it appror'es the application. the Commission must t a k appropriate steps togi1.e effect t u its decision in accordance w i t h this Act or the Customs and Excise ,4ct. ( 2 )A permit issued under subhcction ! I ma!. with regard to the goods i n question. prescribe( a / the quantit! or value of good\ which may be imported or exported: (0) the price at M hich the good\ ma! be imported or exponed: i c ) the period during v.hich the goods ma). be imported or exported: ( d ) the port through or from which the goods may be imported or exported: ( e ) the countr! or territor! from or towhichthegoods may beimported or exported: (,fj the manner in u hich ths goods ma!. be imported or exported: ( g ) conditions relating to the possession. ownership or disposal ofthe goods after the), ha\ e been imported. or the use 10 which the! ma)' be put: or (17, an!. otherrelatedconditions. ( 3 ) Despite an! other provision of this Act. a permit issued in terms of this section with regard to goods that are the subject a notice issued b) the Minister of Defence in of C terms of section 4 (1) ( u ) of the Armaments Deyelopment and Production Act.1968. is deemed to have been revoked as of the date of that notice. 35 40 45 . 50 i i c t No. 71.2002 INTERN.4TIONAL TRADE ADr\lINISTRATION ACT. 2002 e * 0 Authority of Commission to demand trade information 28. The Commission may. in writing. direct a person w h e i u i imports. exports. trades or manufactures any goods: or ( h i in the course of whose or its business or trade. handles or has control of any pK)dS. to pro\ide the Commission. ithin a specified time. with any information relating to the M import. export. manufacture. supply or storage of the goods in question. L . . Authorit!- of' Commission to suspend or cancel permits 19. The Commission may suspend or cancel a permit issued in terms of this Act in accordance u,ith this Chapter and the re9ulations. 1 , Part C Customs dut) applications 30. ( I J The Conmi\sion must. upon receipt of an application in ternls of section 261 1 I ( ( ' J o r f ri -1 notif! the S.r\CU Secretariat of the application; and axcrtain \\.hether an application dealing with a substantially similar matteris palding before the relevant SACLI institution or has been decided uponby the rcle\ ant SACI' institution within the previous six months from the date of that application. ( 2 ) I t the Comrnizsion determines that an application before it deals with a wbst;mtiall! \imilar matter contcmplated in subsection ( 1 ) ( / I / . the Commission may((// ad\i\e the applicant in \f.riting that the application w i l l not be considered and i ~ i o r n ~ S.4CU Secretariat accordingly: or the 0 1 1 i n \ e t i p t e and e\Auate the application and recommend to the Tariff Board that th- application be a p p r o \ d or rejected. ( 3 )I f the Commission determines that an application before it does not deal with a suhtantiall! ~imilar matter contemplated i n subsection ( 1107). the Commission must the Tariff Boardthatthe e\aluatc the merit5 of theapplicationandrecommendto appiication be appl-o\.ed or rejected. (41 The Commission must. \\.hen evaluating a matter in terms of this section. apply ! an! rt.ie\-ant rulesof anal!,sis established b. the SACU Council through the fonnulation of policy mandates. procedures or guidelines contemplated in Article 8(2). ( 5 J i o ) The Commission ma!.. \vhen considering an application referred to in section 26( ! c ) . request the Commissioner for the South African Re\.enue Serviceto impose a pro\ Iiional pa! ~ncnt contemplatedin Chapter \'I of the Customs and Excise Act. If theCommissionhasacted in terms of paragraph ( n J it must make a final recommendation to the Tarif Board M.hen it has completed its evaluation. ihJ Requests 31. ( 1 ) The Commission ma!' receive requests from SACU t o l o ) e\aluate a recommendationmadetothe Tariff Board by anotherMember State: or f h j i n \ estigate and compile information available within the Republic concerning such a recommendation. ( 2 )The Commission may receive a request from the National of a Member State Body t 0- emluateanapplicationfor a customsdutyamendmentreceivedby that Y~lt.mberState: or ( h ] inxitigate and compile infornlation available within the Republic concerning such an application. (3) The Commission must. upon receiving a request in termsof subsection (l)(a)or ( 2 ) ( u ) .evaluate the application or recommendation. and make a recommendation to the Tariff Board concerning the matter. rrr) 32 No. 2 1 : 1s GOVERNMENT GAZETTE, INTERNATION.AL TRADE ADAIINISTRATION ACT+?002 22 JANUARY 2003 Act No. 71.2002 * 0 (4 The Commission must. upon receiving a requestin terms of subsection (l)(b) or J ( 2 ) ( h ) conduct an investigation or compile the information requested and deliver a . report concerning the matter to the Tariff Board or relevant National Body. as the case may be. ( 5 ) Section 26. read with the changes required by the context, applies to a request 5 received by the Commission in terms of subsection ( 1 ) or ( 7 ) . ( 6 )The Commission may request the National Body of another Member State tol a ) evaluatel i J an application for c u s t o m duty amendment q e i v e d by the Commission: or I O ( i i J a recommendation made to theTariff Board by another Member State; or i h ) investigate and compile information available within its jurisdiction concerning such an application or recommendation. c , Consideration of alleged dumping and subsidised exports 31. ( 1 I Despitesection 1 . in this section15 i u i "export" means to bring or send goods. or to causs them to be brought sent. or 7 intotheCommonCustoms .Area from ;I countr!' orterritoryoutsidethe Common Customs Area: and f h ) "eaporter" means an!. person who brings or send5 goods, or causes them to be brought or sent. into the Common Customs Area from a country or territory outside the Common Customs Area. ( 2 )For the purpose of considering an application alleging the dumping or subsidised export of' goods into the Common Customs '4reaf u J "export price". subject to subsections ( 3 ) and ( 5 ) . means the price actually paid or payable for goods sold for export, net of all taxes, discounts and rebates actually granted and directly related to that sale: "normal value". in respect of any goods, means( i ) the cornparable price paid or payable in the ordinary course of trade for like goods intended for consumptionin the exporting country or country of origin: o r ( i i in the absence of information on a price contemplated in subparagraph ( i 1. either( c u i the constructed cost of production of the zoods in the country of origin w,hen destined for domestic consumption, plus a reasonable addition for selling. general and adminihtrative costs and for profit; 0I- 70 75 30 35 the highest comparable price of the lihc product when exported to a n appropriate third or surrogate counir!. as long as that price is representatlve: i . "subsidised export" means goods exported into c 1 rhc Common Customs Area. in respect of which the governmentof. or a public. hod! within. any country( i ) hasprolidedf (M an!. form of financial aid: , h h j an! form of assistance aith its production. manufacture, transportation or export: or an! similar assistance: or l i i ) has foregone an! re\'enue would that otherwise be due to that government or public body: and i d , "public bod! '' includes a personor body that actson behalf of the government of. or another public bod! within. a country. (3)The Commission must. in determining the margin of dumping of goods. make reasonable allonmce for differences in conditionsandterms of sale,differences in taxation and other differences affecting price comparability. (4) If the Commission. evaluating when an application concerning dumping, concludes that the normal value of the goods in question is. as a result of government intervention in the exporting countr!. or-country of origin. not determined according to hi^, 40 35 50 55 free market principles. the Commission may apply those goods a normal valueof the to goods. established in respect of a third or surrogate country. ( 5 ) TheCommissionmust,despitethedefinitionof"exportprice"set out in subsection (2). a.henevaluating an applicationconcerningdumpingthatmeetsthe criteria set out in subsection (6). determine the export price for the goods in question on 5 the basis of the price at which the imported goods are first resold to an independent buyer. if applicable, or on any reasonable basis. (6)Subsection ( 5 )applies to any in1,estigation of dumping if, in respect of the goods concemedx\ ( a ) there is no export price as contemplated in the definition of dumping: 10 ( b ) there appears to be an association or compensatory arrangement in respect of the export price between the exporter or foreign manufacturer concerned and the importer or the third part! concerned: or rc) the export price actuall). paid or pa! able is unre7jible for any other reason. Part I) 15 Right of informants to claim confidentialit! 33. ( 1 ) A person ma>. when submitting information to the Commission. identif), information that the person claims to be information thati r r / is confidential or its nature: by 20 ( b i the person otheruise wishes to be recognised as confidential. ( 2j A person making a claim terms of subsection ( 1\ must support that claim in with((1) a Lvrittzn statement in the prescribed foml( i ) explaining, i n the case of information that is confidential by its nature. horn, the information satisfies the requirements set out the definition of 25 in "information that is by nature confidential" in section 1 ( 2 ) :or ( i i ) motivating. in the case of other information. why that information should be rzcognised as confidential: and i h , either( i ) a written abstract of the information in anon-confidential form: or 30 ( i i I a sworn statement setting out the reasons why it is impossible to compl!. with Subparagraph ( i ) . Determination b!- Commission 34. i I 1 If a person makes a claim in terms of hection 33. the Commission must((11 in the ca3e of infomationclaimed to be Confidential by nature.determine whether information the sltisfies requirements the of the definition of "information that is by nature confdendal" set out in section 1(2 j: or 0 1 , i n the case of other information. dermnine whether the information should be recognised ah confidential. ( 2 ) If. upon considering a claim in tern15 of subsection ( ] ) ( a ) .theCommission determines that the information is not. b). nature. confidential((1) the Commission must in\.itr the claimant to submit a further motivation for the information to be rccosnised as otherwise confidential; and f b ) if theclaimantsubmitssuchamoti\,ationwithintheprescribedtime.the Commission reconsider must the claim in terms subsection of ( I )(h). ( 3 ) Upon makinga final determination in terms of subsection ( 1 ) or (2j(h). the Commission( a ) must notify the claimant in lvriting of its determination; and (hi may. if it has determined that the information is not. by nature, confidential or should not be recognised as being otherwise confidential. advise the claimant that the information will not be considered in determining the merits of an application or other matter in question. 35 30 35 SO 36 K O 14287 GOVERNMENT GAZETTE. INTERNATIONAL TRADE .I\DMINISTRATION ACT. 2003 c 22 JANUARY 2003 Act No. 71.2002 * G Proceedings in contested claims 35. ( I A claimant affected by a determination of the Commission in terms of section 3 4 3 ) ma!- appeal against that determination to a High Court. subject to its rules, in the prescribed manner and form. ( 2 ).A person who seeks access to information which the Commission has determined 5 is, by nature. confidential. or should be recognised as otherwise confidential. mayi o ) first. request the that Commission mediate between owner the of the information person: and and that 0 1 , failing mediation in terms of paragaph ( a i . apply t o a High Court fort i ) an setting the order aside determination of the Commission: or 10 i i i J any appropriate order concerning access to that information. ( 3 , Upon appeal i n terms of subsection ( 1 1. or an application in terms of subsection Court Highh i . the (2)i may( ( 1 ) determine nzhether theinfornutionor )confidential: ( i is. b nature. ! 15 i i i ) should be recognised ax being otherslise confidential: and ( h i if it determines that it is contidential. make any appropriate order concerning accesh to that confidential information. k. :. Disclosure of information 36. ( 1 ) The Commission must treat any information that i.; the subject of a claim in 30 term5 of this Part as confidential until a Iinal determination has been made concerning such information. ( 2 ) Oncea final determinationhasbeenmadeconcerninganyinformation. it is confidential onl! to the extent the that final determination accepted has it to be confidential 25 ( 3 , For the p u r p o m of this section and section 37. "final determination" means a decision byf u ) the High Court. that in terms of the rules of court ma! not be appealed, or has not been appealed within the time allowed: or Court ih J the Supreme of' .4ppzal. 30 Restricted use of information 37. ( 1 (cc) \-hen making any decision in terms of thih Act. the Commission may take confidential information into account in m a h g its decision. 0 7 1 If theCommission'sreasonsfor the decision would I-e\real anyconfidential information. the Commission must. after publishing its decision in the matter, provide a 35 copy of the proposed reasons to the part!' concerned within the prescribed time before publishing those reasons. ( 2 ) X party ma! appl! to a High Court. subject to its rules. \\,ithin the time period 1 contemplated in s~~bsecrionj i b ) after receiving a cop)' of the proposed reasons. for an approprlate order to protect the confidentiality of the rele\.ani information. 30 ( - 3 If a part! Jpplies to the High Court i n terms of subsection (2). the Commission must not publish the proposed reasons until a final determinarion in the matter has been made. Part E Powers of irzvestigative search and inspections 35 Appointment of investigating officers 38. ( 1 TheChiefCommissioner mal appoint an): personintheservice Commission. or any other suitable person. as an investigating officer. 12) .4n investigating officer must be provided with certificate of appointment a by the Commissioner Chief stating that the person has been appointed investigating officer in terms of this Act. (3) When an investigating officer performs any function in terms of this Act other Ian. the investigating officer must- of the signed as an 50 or any 38 No 242s; GOVERNMENT GAZETTE, 12 JAKUARY 1003 INTERSATIONAL TRADE ADSIINISTRATION ACT. 2002 c 0 Act No. 71.2002 \9 (uI ( b ) be in possession of a certificate of appointment issued in terms of subsection ( 2 ) :and show that certificate to any person is affected by the investigation.or if no u.ho one is presenton the premises.affix a copy of the certificate to the premises in a prominent and visible place and proceed with the execution the relevant of function. Summons 39. ( I i The Chief Commissioner mayi n ) direct the Commission. a committee oran investigating officer to question an)' person under oath or affirmation: or i h ) give directions prohibiting or restricting the publication any evidence given of Commission. the to *. ( 2 )The Chief Commissioner . at an). time duringan ihvestigation in terms of this ma!' Act. wmmon an! personwhocanfurnishanyinfomntion on thesubject of the i n \ estigation. or ndlo has possession or control of qny book. document or other object that has a hearing on that subject tof a ) appear before theChiefCommissioner.theCommission. ;I committee or a person authorised by the Chief Commissioner t o be questioned: or t h i deliverorproduce an). book. documentorotherobjectreferred t o in the a committee or a summons. to the Chief Commissioner. the Commission. person authorised by the Chief Commissioner.at a time and place specified in the summons. 1 3 ) The Commission or a committee ma:,i u ) accept oral submissions from an! person; ~ / J J accept as evidence any relevant or31 testimony, documentorotherthing. a.hether or notI i ) it is gii.211or pro\'en undfr oath or affirmation: or ( i i ) \\auld be admissible ah e\.idence in court: or ( ( ' 1 refuse to accept an? oral testimon). document or other thing that is undul!. repetitious. t l I \Vhen the Commission ora committee hears oral testinion!, in terms of subsection t 3 I. the Commission or committee~ U J mayrequirethewitnesswho testified to deli\.er a swornstatementofthe evidence gi\Sen. in the prescribed manner and form: and r h i must.afterthewitnesshascomplied.disregardthe oral testimon!. of that witness and consider on]> the urritten statement of e\,idence of the itness. 2 \ % . lfltnesses 40. i 1 ) A person questioned or gi\.in; e\.idcnce in terms of section 39. mu<:ans\wr ever! rele\-ant question truthfully and to the bed of that person's abilit). ( 2 )The lau regarding a witness' privilege in a criminal case in a court of I a n applies equall!, to a person who is giving evidence in terms of section 39. (j1 .A self-incriminatinganslyergiven or statementmadeto a person exercising powers in tenns of this Act is not admissible as e\idence against the person u.ho ga\'e that ansu'er or made that statement in criminal proceedings. except for perjur) or an offence contemplated i n section -53 or % ( ? ) f r i I . Import and export control inspections 31. ( 1 ) A n i n \ estigating officermay. subject to section i8(3). conduct an inspection10 determine Lvhether Part B of Chapter 1 or an! notice issued in terms of section 6 are being 01 have been complied v 3 h . and for that purpose may at any reasonable time((2) enterupon and inspect an:, place.premises or vehicle in or on n.hich any goods - to which section 6 applies are stored. manufactured. supplied. handled. _sold. removed. transported or otherwise dealt n,ith: 40 No. 242x7 GOVERNMENT GAZETTE. ISTERN.ATIONAL TRADE ADMINISTRATION ACT,200? 2 2 JANUARY 2003 Act No. 71.2002 *' u requestinformationaboutanyarticle or document from the owner of. or person in control of. the premises or from any person who has control of the article or document or from any other person who may have the information; use an) computer system on the premises. or require assistance of any person premises the on computer tosystem. that use to5 (i ) search foran!' data contained in or available to that computer system: and ( i i ) reproduce any record from that data: attach.and. if necessar).. removefromthepremisesforexaminationand safekeeping. anything that has a bearing on the inspection. direct an!. person who manufactures. supplies. stores. handles, sells. removes. I O transports or orherniae deals with any goods to which section 6 applies. or Lvho has done any of those things with regard such goods, or the servant or to agent of such a person tor i i produce to the inwstigating officer an). suc&ioods or any book or other document in connectionwithsuch goods in thecustody or under- the 15 control of that person: or ( i i ) furnish the in\estigating officer withany information in relation t o those goods that the investigating officer specifies: inspect an! such goods. any book or document. or make extracts from or copies of an! such book or document: 20 seize an! wch goods. an!' book or document that may afford evidence of an! offence i n terms of this .4ct: and leave o n such goods. book or document or the container in which they are located. an\' identification mark or seal. ( 2 i Section 43 t o 15 do not appl!, to a n inspection in terms of this section. 25 Conduct of entry and search -12. ( I ) A person M.ho enters and searches any premises must conduct the entry and search L\ ith strict regard for decenc!. and order. and with regard for each person's right to dignit!,. freedom. security and privac).. (21 During a search o n l y a female investigating officer or female police officer may 30 search a female person. and on]!. a male in\,estigating officer or male police oflicer may search a male person. 1 ) A person u.ho enters and searches premises must. before questioning anyone7 . ((/) ad\,ise that person of the right to legal representation: and 35 f h j allov. that person t o exercise that right. (4) person v-ho remo\.es an!.thing from premises being searched must.r\ ( ~ 1 issue a receipt for it to the owner. or person in control of. the premises: and ! h i return it as soon as practicable after achieving the purpose for which it u'as renlovcd. ( 5 An! person Lvho has custody or control of p o d s . books or documents referred to 40 in hection 41. mu\t. subject to subsection(6).give the investigating officer the necessar! assistance to e u m i n e those goods. books or documents. when requested to do so b. the ! i n \ estigatin_r officer. 161During a search. a person may refuse to permit the inspection or remo\,al of an article o r document on the grounds that it contains confidential information. 15 17) If the owner or person in control of an article or document refuses. in terms of \ubsection (6).to give that article or document to the person conducting the search. the or person conducting the search may request the registrarsheriff ofa High Court that has jurisdiction to attach and remove the article document for safe custody or until that court determines information Lvhether or confidential. thenot is 50 ( 8 ) Section W ( 3 ) applies to an answer giyen or statement made to an investigating officer in terms of section 11. ( 9 ) A person authorised to conduct an entr) and search may be accompanied and assisted b! a police officer. 12 No. 212si GOVERNMENT GAZETTE. INTERNATIONAL TRADE AD%IINISTRATION ACT, 2002 12 JANUARY 2003 Act No. 71.2002 * v ( 1 0 ) A police officer who is acting in terms of subsection (9). may. if entry and search is refused. overcome resistance to the entry and search by using as much force as is reasonably required, including breaking a door or window of the premises. ( 1 1 ) The police officer must, before using force in terms of subsection ( I O ) , audibly demandadmissionandannouncethepurpose of the entry. unless it isreasonable to 5 believethatdoing so ma- inducesomeonetodestroy or dispose of anarticle or document that is the object of the search. ( 1 2 ) The Commission ma\ compensate anyone who suffers damage because of a forced entry during a search when no one responsible for thepremises was present. Power to enter and search under warrant 43. ( 1 ) A judge of a High Court, regional magistrate or a magistrate may issue a ivarrant to enter and search premises that are within th'e,jurisdiction of that judge an!. magistrate. if. from information on oath or affirmation. there are reasonable grounds to believe that anything connected with an investigation in terms of this Act is in the possession of. or underthecontrolof. ; person I who is onor in thosepremises. .4 \\.arrant to enter and search ma!' be issued at an! time and must specifically((/) identif! thr premises that may be entered and searched: and ( h i authorise an in\estigating oficer or a police officer to enter and search the premises and to d o anything referred to in section 15. (-3 1 A Lvarrant is search enter and to I d i d until thei o ) warrant is exxuted: ( 1 1 ) \\arrant is cancelled by the person who issued it or. in that person's absence. b! a person uith similar authority: c I purpose for issuing it has lapsed: or t t l i expir! of month one date after that the it issued. was 11) warrant to enter and search may be executed only during the day. unless the X person \rho issued it mthorisesthat i t ma!. beexecuted at nightat a timethatis reasonable in the circumstances. ( 51 A person executing a warrant must before commencing with the executionof the L4 arrantI ( I I provide identification to the owner or person in control of the premises and explain to that person the purpose of the warrant: and 117) hand a cop! of the warrant to that person or to the person named in it. 1 6 )If no one is present on the premises. affix a copy of the warrant to the premises in ;I prominent 10 or 0, 15 20 25 30 visible and 15 Power to enter and search without warrant 1-1. 1 I An in\,estigating officer ma!'. \\,ithout a warrant. enter and search premises i other than a pri\.ate d v elling. 121 The investisatin: officer conductin: the search must. before entering and 40 searchingI CI] belie\.e on reasonable grounds that a n'arrant would be issued under section 43 if applied for. and that the dela), obtaining a warrant would defeat the object in or purpose of the entry and search: and provide identification to the owner or person in control of the premises and purpose person that the explain to of the search: or 45 i c ) get pernlission from that person to enter and search the premises. ( 3 J A n entr! and search without a warrant may be carried out only during the da!,. unless carr!.in_c i t out at night is justifiable and necessary. /h, Power to enter and search 45. ( 1 ) Section 42. read with the changes required by the context, appliesto an entry and search under section 33 or 34. ( 2 )A person who is acting under section 33 or 43 may(crl enter upon or into those premises: ( 0 ) searchthosepremises: (('I search any persononthosepremises if therearereasonablegroundsfor believing that the person has personal possession an article or document that has a bearing on the inlwtigation: i d ) examine an!' article or documentthat is on or in those premises that has a bearing on the investigation: rei requestinformationabout an! article or documentfromtheownerof. or person in control of. the premises or from any p'eison who has control ofthe article or document. or from other person tvho may have the information: an! ( f i take extracts from. or make copies of. an! book or document that ison o r in the premises that has a bearing on the investigation: ( , q1 use an!. computer system on the premises. or require assistance of any person on the premises to use that computer system. to-( i ) search an!' data contained in or available to that computer system: and andi i that any data: from ( 1 record reproduce / h i attach.and. if necessary. remn'efromthepremisesforexaminationand safekeeping. anything that ha5 a bearing on the investigation. [ i I Section JOi 3 ) applies to an ansu er gi\.en or statement made to an investigating oiiicer in tern15 of this .section. 5 e 10 15 20 Part F Reviews and appeals 25 46. ( 1 A personaffected by adetermination.recommendation or decision of the Commission in terms of section 16 or 17 or this Chapter. may apply to a High Court for rs\.ie\ a of that recommendation determination. decision. or 30 ( 21 Subject to item 2 ( 3 )of Schedule 2. a person affected b a decision of the SACC ! Council. arisingin u.hole or in part out o f a recommendation of the Commission in terms of this i2ct. ma! appl!, for a re\ieu of that decision only to an institution designated b) or in tenns of the S.r\CU Agreement. and i n accordance with therules ofthat institution. ( 3 I The High Court ma!.. in a re\,ien, in terms of subsection ( I ) or item 3 3 ) of 35 Schedule 2 . make an order for the payment of costs against any party. or against any perwn \vho represented a part) in the proceedings. according to the requirements of the Ian and fairness. Appeals 17.( 1 ) .4n appeal against a decisionof the High Court in respect of a matter within its 30 jurisdiction in terms of section 46 liestotheSupreme Court of Appeal. or the Constitutional Court. only with leave to appeal. and subject to their respective rules. ( 2 )The right to appeal in terms of subsection (1) isf n i subject to an!. law that specificallygrants.limits or excludesanyright of appeal: and i h ] not limited b, the monetary or non-monetary value of the matter in dispute. ! t 3 ) A court granting leave appeal in terms of this section may attach an) appropriate to conditions. including a condition that the applicant provide security for the costsof the appeal. ( 4 ) Section 21(1A) to ( 3 ) ( e )of the Supreme Court Act. 1959 (Act No. 59 of 1959). 50 read \vith the changes required b)- the context. applies to an application to the Supreme Court of Appeal for leave to appeal underthis Act. 16 No.21287 GOVERNMENT G A Z E T E . 22 JANUARY 7003 INTERKATIONAL TRADE ADMINISTRATION A C Z 2002 Act No. 71.2002 * c CHAPTER 5 ENFORCEMENT AND OFFENCES Variation of order 38. The Commissionmay. of its own accordor on application by a person affected by a determination. recommendation or decision of the Commission, vary or rescind that determination. recommendation or decisionx . . (([) in which there is ambiguity. or an obvious error or omission, but only to the extent of correcting that ambiguity. error or omission: or ( h , erroneously sought in the absence of a party affected by it: ( c ) made as a result of a mistake common to all of the parties to the proceedings. . ' ' 5 1 0 Standard of proof 39. In any proceedings in terms of this Act. other than criminal proceedings. the standard of proof is on a balance of probabilities. Breach of confidence 50. ( 1 1 It is an offence to disclose any confidential information concerning the affairs 15 of any person obtained((1) i n carrying out any function in terms of this Act; or t h j as a result of initiating a complaint. or participating in any proceedings in terms of this Act. i 3 I Subsection ( 1 ) does not apply to information disclosed30 io for the purpose of the proper administration or enforcement of this Act: i h ~for the purpose o f the administration of justice: ((,I at therequest of an investigating officer or member of theCommission entitled to receive the information; or ( d ) nithin the terms of appropriate order of access made in terms of section 3 3 2 ) . 2.5 Hindering administration of Act 51. It is an offence to hinder.obstruct or undulyinfluenceanypersonwhois exercising a pow.er or performing a duty delegated to conferred or imposed on. that person b, this Act. ! Failure to attend when summoned 30 fo 52. It is an offence. \vhen summoned in terms of section 39. to( a ) fail. without sufficient cause. to appear at the time and place specified or remain in attendance until excused: or ! h i attend as required. but t ~ ( i ) refuse be to sw'om in or to make an affirmation: or 35 ( i i ) fail to produce a book, document or other item as ordered, if it is in the possession of. or under the control of. that person. Failure to answer fully or truthfully 53. It is an offence. having been sworn in or having made an affirmation tc,a) fail to answer any question fully and to the best of one's ability: or 0 1 ) give false evidence. knowing or believing it to be false. 40 38 KO, 24287 GOVERNMENT GAZEITE, INTERN~ATIONAL TR.4DE ADMINISTRATION ACT. 2002 22 JANUARY 2003 Act No. 71.2002 * Other offences 54. ( 1 ) It is an offence to fail to cornply withI N ) a notice issued in terms of section 6: ( h i a condition stated in a permit issued in terms of Part B of Chapter 4; ( c i a directi\,e given in terms of section 28; 5 / d l an interim or final order made in terms of this Act. ( 2 ) It is an offence t o ( 0 ) improperly attempt to influence the Commissimconcerninganymatter connected with an investigation: l h J anticipate any findings of the Commission concerning an investigation in a 1 0 way that is calculated to influence the proceedings or findings; ((‘I do anything in connection an with investigation would been that have contempt of court if the proceedings had occurkh in a court of law; (di knowingly provide false information to the Commission: wilfull!. interrupt proceedings the in the where place a hearing being is 15 conducted: ( f ) act contrary to a warrant to enter and search: / , y j falsely represent oneself as a n in\,estigating officer. ((2) Penalties 55. 1 ) Any person convicted an of offence in terms of this is liableAct. 70 ( a i in the case of a contravention of section 541). to a fine not exceeding R500 000.00 or to imprisonment for a period not exceeding ten years. or to both such fine and imprisonment: ( 1 7 ) in case of a contravention of section 50, 53. 54(?)(c) or 54(2)(d),to a fine not exceeding R250 000.00 or to imprisonment for a period not exceeding five 25 years. or to both such fine and imprisonment: or f I.) in any other case. t o a fine not exceeding R20 000,OO or to imprisonment for a period not exceeding six months. or to both such fine and imprisonment. ( 2 1.4 court convicting a person of importing or exporting. or attemptingto import or export. goods in contra\.ention ofa notice issued in terms of section 6, or failing to 30 comply nsith a condition of a permit issued in terms of section 27, may declare the goods in question. or the right of that person to those goods. forfeited to the State. ( 3 )A declaration in terms of subsection (3) does not affect the rights to the goods in it question of an) person other than the conlicted person, unless is proved that the other person should reasonabl!. have known the that goods being with were dealt in 35 contravention of the notice or condition in question. ( 3 )Section 35 of the Criminal Procedure ,4ct. 1977 (Act No. 51 of 1977). read with the changes required by the context. applies to a forfeiture under subsection ( 2 ) . Magistrates’ Court jurisdiction to impose penalties 56. Despite anythins to the contrary contained in any other law. a Magistrates’ court 30 has jurisdiction to impose any penalty provided for in this Act. Serving of documents 57. Unless otherwise provided in thi< .4ct. a notice. order or other document that. in terms of this Act. must be servedon or $\,en to a person. is regarded as properly served or given is45 ( a ) delivered to that person in the prescribed manner: or ib) sent b. registered post to the last known address of that person. ! when 50 No. '-1'87 GOVERNMENT GAZEITE, 22 JANUARY 2003 ~ ~~~ ~~ ~ Act No. 71,2002 INTERN.4TIONAL TRADE ADMINlSTRATlON >4CJ 2002 \ x --- Proof of facts 58. In any criminal proceedings in terms of this Act. upon proof that a statement. entry. record or information that appears in or on a book. document, plan, drawing or computer storage medium, is falsef a ) the person who was in possession of. or in control of. such book, document. 5 plan. drawing or computer storage medium: and ( h i anypersonwhokneworoughttohaveknownaboutthe entry. record or infornlation. '. must in the absence of evidence to the contrary which raises a reasonable doubt. be IO presumed be to responsible the for f d s e statement. entry. record information. or CHAPTER 6 I . GENERiL PROVISIONS Regulations . 15 59. The Minister may make regulations( a ) reprding the proceedings and functions of the Commission. after consulting the Commission: ( h i to giye effect to the ob-jects of this Act: and (('I on an! matter that may or must he prescribed in terms of this Act. Guidelines 60. ( 1 ) The Commission may issue guidelines on the Commission's policy approach 20 t o an! matter n,ithin its jurisdiction. ( 2 )X guideline issued in terms of subsection ( I )( L / ) must be published in the Gu::erre:but ((7) is not binding on the Commission. any SACU institution or any Court. Official seal 61. The President ma!. h). proclamation in the Gacetrc. prescribe an official seal for the Commission. 25 Act binds State 62. This Act binds the State. Transitional arrangements and repeal of l a w 30 63. ( 1 ) Schedule 2 regulates transitional arrangements in respect of international trade administration u ithin the Republic. (71 The laws specified in Schedule 3 are. subject to subsection (3) and Schedule 2. repealed to the extent indicated in the third column of that Schedule. ( 3 ) Despitesubsection ( 2 ) . a regulationpromulgated in terms of theImportand 3.5 Export Control .4ct. 1963 (Act 35 of 1963 ). and in force immediately before this Act No. came into operation. must be regardedas being a regulation made in terms of this Act. Short title and commencement 64. ( 1) This Act is called the International Trade Administration Act, 2002, and comes 40 into operation on a date fixed the by President by proclamation in the Gazerre. ( 2 )Sections 3 , 15(3). 16(3), 19.XL30.31 and46(2) and item ( 3 )of Schedule 2, may 2 not come into operation until the SAClJ Agreement has become law in the Republic. GOVERNMEKT 23287 No. 52 GAZETTE, 22 2003 JANUARY INTERIVATJONAL TRADE ADMINISTRATION ACT, 2002 Act No. 71,2002 * - SCHEDULE 1 : SACU AGREEMENT The Sacu Agreementis to be inserted pursuant to its final conclusion and to the relevant constitutional requirements pertaining to international agreements having been met. 54 No. 212s7 GOVERNMEhi GAZETTE. 21 JANUARY 2003 INTERNATIONAL TRADE .-ZDhlINISTRATION ACT, 2002 .Act No. 71.2002 *- SCHEDULE 2 TRANSITIONAL PROVISIONS Definitions 1. In this Schedule"Board" means the Board Tarilk and Trade constituted terms of the Board on in on Tariffs and Trade Act. 1986 (Act No. 107 of 1986): and. . "matter pending'' means any matter that had been received. not disposed of.b but ! the Board priort o its close of business o n the day immediately before this Act came into operation. Implementation of SACC Agreement t . 2 . ( 1 ) Before the sections listedin section 6412) come into operation. the Commission must investigate. and e\ aluate applications received by it in terms of section 26( I c ) or ( c l , in accordance with section32. read ,with the Board on Tariffs and Trade Act. if' that as Act had not been repealed. ( 2 )For the purpose\ of this item{ C ~ I section 261 I ) ( ( ' ) must be regarded as if it read: " ( c ) the amendment of customs duties. including amendment in respectof an an!' of the following nmters arisingin respect of goods imported into the Republic( i ) anti-dumping duties: ( i i ) counter\ailingduties: or (iii)safeguardduties: or": section 26i2)07) must be reg;lrded as if it read: " ( h j recei\.ed i n terms of subsection ( 1 )((,) or ( d l . in accordance v,ith the pro\.isions of item 3 of Schedule 2": and (('1 areference i n theBoard on Tariffs andTradeAct to theBoardmustbe regarded as rtferrin: to the Commission. ( 3 ) Until the SACU Agreement pro\.ides for a review of decisions of the SACC Council. contemplated in section 3 6 ( 2 ) .a person affected b. such a decision may appl! ! to a High Court for a re\.ieu, of that decision. unless that person or a related person has sought a rcvieu. of the samc decision im terms of the lau, of another hlember State. Composition of Commission 3. Despite section 8. a p m s m u.ho \!;as. a member of the Board immediately before on this Act came into operatio;;. i5. a member ofthe Commission. for a term that expires the date that such appointmsnt to the Board would have expired. had this Act not come into operation. Pending applications and other Board business 1. I 1 .Any matter pending before the Board immediately before this Act came into in operation and in respect of \\.hich the Board has not reported to the Minister terms of section 1 I ) i h ) of the Board on Tariffs and Trade Act. 1986. must be proceeded with ( by the Commission in terms of this Act. 12) .4n!, matter on which the Board reported to the Minister terms of section 3( ] ) ( h i in of the Board on Tariffs and Trade Act.1986. before this Act came into operation must be proceeded with in terms of that Act as if it had not been repealed. ( 3 An!, summons issued b, the Board in terms of section 12 of the Board on Tariffs ! is returnable after this Act comes into operation must be and Trade .4ct. 1986. that regarded( a ) as a summons to appear before the Cornmissionon the date andat the time and place shown on the summons,: and ( h i as having been issued by the Chief Commissioner in terms of this Act. 56 50.24187 GOVERNMENT GAZETTE, 22 JANL'ARY 2003 INTERNATIONAL TRADE ADMINISTRATION ACT, 2002 r . Act No. 71.2002 ** ( 3 )A permit issued or notice given in terms of the Import and Export Control Act. 1963, and \Aid immediately before this Act came operation, must be regarded asa into permit issued or notice given in term:; of this Act. Statutory references 5. ( 1 ) A n y reference in any law to-( u ) the "Board on Tariffs and Trade Act, 1986". must be regarded as a reference 0,) the "Board on to this Act: .\ . Tariffs and Trade established in ter& of the Board on Tariffs and Trade Act, 1986". must be regarded as a reference to the International Trade Administration Comrnission established in terms of this Act: I C ) a "report and recommendation to the Minister referrcd toin section 3( 1 ) ( b l of the Board on Tariffs and Trade Act. 1986", depepdingon the context. must be regarded as a reference to either( i ) a "recommendation concerning a matter to the Tariff Board" in terms of section 30: or ( i i ) . the "determination" of a matter in terms of section 27( 1)la): and cd) an "enquiry referred to in section 1 2 of the Board on Tariffs and Trade ,4ct. 1986". must be regarded as a reference to an "investigation" in terms of this ACL ( 2 )A reference to the "Director-General: Trade and Industry" section 48(1A)of the in Customs and Excise Act. must be reEarded as a reference to the International Trade Administration Commission. Status of Board Employees and othlers 6. ( 1 ) A n outstanding delegation toa n officer or employee of the Department of Trade and Industry in terms of section 13 of the Board on Tariffsand Trade Act. 1986. may not be continued under this Act. ( 2 )A person \ A h . immediately before this Act came into operation. was designated in terms of section 14 of the Board on 'Tariffs and Trade Act. 1986. as an investigating officer. or was designated in terms of section 3A (2) of the Import and Export Control Act. 1963. as an inspector, is not an in1,estigating officer in terms of this .4ct unless appointed in terms of section 38 of this .4c:. ( 3 ) .4n officer or employeeappointed in terms of thePublicServiceAct. 1993 (Proclamation No 103 of 1994), to sen'e the Board immediately before this Act came into operation. continues to be an officer or employee under the Public Service Act. 1994. 13) If an officer or employee referred to i n subitem 13) is appointed as an officer or employee of the Commission. the accumulated value of that person's contributions to any pension fund. together with the accumulated valuethe contributions madeto that of fund by the person'a employer. ma). be transterred to a pension fund established for the staff of the Commission. 5s: No. 2428; GOVERNMENT GAZETTE. 22 JANUARY 2003 INTERNATIONAL TRADE ADMINISTRATION ACT. 2002 c Act No. 71.2002 SCHEDULE 3 REPEAL OF LAWS (SECTION 63(2)) I No and year of .4ct Short title Act. 1 Extent of repeal The whole Board on Tariffs and Trade Act No. 107 of 1986 19t.;6 Act No. 60 of 1991 Board on Tariffs and Trade on Tariffs and Trade Amendment Act. 1995 Board onTariffsandTrade The'whole Board Act KO.39 of 1995 1 I 1 Act No. 16 of 1997 ')The I 1 I 1997 ~ c Nt) 45 ()r.1963 (. Act. ! I .4mendment zy9;;d Export Cohtrol 1 I The who'e whole whole The ~~ 1 I Import Export and Control whole The Amendment Act. 1967 Act No. s of 1981 Amendmen1 Act. 1983 Act No. 44 of 1990 II Amendment Act. 1990 I