On March 9th, 2010, the Constitutional Court (CC) in Johannesburg, South Africa delivered judgment in the matter between International Trade Administration Commission (ITAC) and SCAW South Africa (Pty) Ltd.

Bridon International welcomes the decisions made by the CC, firstly, confirming that Anti-Dumping duties lapse on the expiry of the statutorily determined period of 5 years plus 18 months and, secondly, to overturn the decision of the High Court that prevented ITAC and the Ministers for Trade and Finance from enacting ITAC’s recommendation to lift the anti-dumping duties on sales of Bridon’s products in the South African Customs Union.

This recommendation was the result of ITAC’s thorough investigations during the “sunset review” that found that Bridon had not dumped steel wire rope and that there was no likelihood of future dumping.

Jon Templeman, CEO of Bridon said “I believe that this decision will open the South African market for steel wire ropes to increased competition which can only be of benefit to South African consumers of our products.”

And continued, “Bridon looks forward to meeting with customers old and new and serving the South African market for many years to come.”

The case concerned the duration of and procedure for reviewing anti-dumping duties. These are measures which are imposed by the state to counteract the harmful practice of introducing goods into the economy of a country or its common customs area for a price less than the production costs or market value of those goods.

In 2002 the Minister of Trade and Industry imposed anti-dumping duties on stranded wire, rope and cable of iron or steel products originating in or imported from foreign countries. In particular, the anti-dumping duties were placed on the products of Bridon International Limited, the biggest manufacturer of steel and wire ropes in the United Kingdom. The Minister based his decision on a recommendation made by the Board on Tariffs and Trade, the predecessor of ITAC.

In February 2007, prior to the lapsing of the five year period, SCAW, a South African company that manufactures steel products including those of which the anti-dumping duties were imposed, lodged an application with ITAC for the initiation of a “sunset review” or investigation with a view to maintaining the anti-dumping duties in place.  ITAC conducted the sunset review into whether the removal of the duties was likely to lead to the continuation or recurrence of injurious dumping.   In October 2008, ITAC made a recommendation to the Minister that the existing anti-dumping duties in respect of Bridon UK’s products should be terminated.

SCAW then launched an urgent application with the High Court and sought to prevent ITAC from forwarding its recommendation to the Minister for consideration.  SCAW further sought an order preventing the Minister and also the Minister for Finance from performing their respective duties in the implementation of a recommendation made by ITAC. The High Court granted the interim interdict against ITAC and both ministers.

ITAC then sought leave to appeal against the High Court order.

In a unanimous judgment by Moseneke DCJ, the Court held that the interim interdict was final in effect and that it caused irreparable harm. The interests of justice therefore dictated that the interim interdict be appealable. The Court held further that leave to appeal against the interim interdict should be granted as it implicated questions of separation of powers and South Africa’s international trade obligations, issues which are not the subject of SCAW’s pending review application in the High Court.

In respect of the merits of the appeal, Moseneke DCJ found that the relevant regulations meant that anti-dumping duties will lapse on expiry of the statutorily determined 5 years and 18 month period, and that the initiation of a sunset review or a judicial review does not extend the lifespan of an anti-dumping duty beyond that period. The Court held further that decisions regarding the setting or lifting of anti-dumping duties are patently within the domain of the executive, and that the interdict prevented the Ministers involved from performing their legislative functions. It was inappropriate for the High Court to grant the interdict, because it improperly breached the doctrine of separation of powers.

In the result, the Court granted the application for leave to appeal, set aside the order of the High Court and ordered SCAW to pay the costs of ITAC and of Bridon UK in this Court.