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DTI 'must pay incentive'

Johannesburg - The Appellate Court has ruled that if the department of trade and industry has paid out a claim in accordance with the government's guidelines on the general export incentive scheme (Geis) then there is no turning back.

The minister cannot turn around at a later stage and say the payment was "provisional" and then call for an inquiry into a claim - even though the claimant is obliged to hold on to his documents concerning this for five years.

This was the ruling of a full bench of appellate judges in the case involving the minister of trade and industry and his director-general who claimed export company Shurlock International pay back over R1m.

This was a counter-claim lodged after Shurlock brought about a second claim of over R300 000.

The department refused to pay out the second claim. In the high court, the department claimed that after paying out the first claim the department, for unknown reasons, claimed that Shurlock had to make available all documents relating to the claim so as a full investigation could be carried out. They claimed that Shurlock was unable to do this.

Regulations pertaining to the scheme stipulate that an export firm that lodges a claim is obliged to hold onto documents for five years. The court heard that Shurlock could not supply these documents as they were allegedly lost in a move.

The department claimed it would not pay Shurlock the second claim of R300 000 until more than R1m paid out earlier was paid back.

Appellate judges I. Farlam, L. Harms, K. Mthinyane, P. Nugent and B. van Heerden unanimously ruled that Shurlock could keep its R1m and that the minister must pay out the R300 000 as well.

According to the ruling, payouts were not "provisional". If the department had received the claim, studied the documents and paid out the money, an exporter could not be harshly penalised "unnecessarily" if he could not provide his documents in the five years - especially not if, as in this case, they were lost.

The minister and his director-general were also ordered to pay Shurlock's costs.

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