Johannesburg - The Constitutional Court ruled on a challenge to the country's anti-dumping duties when it handed down a judgment on the matter on Tuesday.

The case was about the procedure for reviewing anti-dumping tariffs - measures which are imposed by the state to counteract the harmful practice of bringing goods into a country or its common customs area for a price less than the production costs or market value of those goods.

South Africa is a member of the World Trade Organisation (WTO) and is bound by the obligations contained in the Agreement on the Implementation of Article VI of the General Agreement on Tariffs and Trade (WTO Anti-Dumping Agreement).

South Africa enacted domestic legislation, including the International Trade Administration Act 71 of 2002 (ITAC) and its regulations (Anti-Dumping Regulations), which govern the requirements and procedures for the setting or changing of anti-dumping duties.

The WTO Anti-Dumping Agreement and the domestic statutory regime provide that in general, without the initiation of any reviews, anti-dumping duties remain in force for a maximum of five years.

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.

Anti-dumping duties were also placed on the products of Bridon International Limited (Bridon UK), 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.

SCAW is a South African company that manufactures steel products including those in respect of which the anti-dumping duties were imposed.

In February 2007, before the lapsing of the five year period, SCAW lodged an application with ITAC for the initiation of a "sunset review" with a view to maintaining the anti-dumping duties in place.

A sunset review is an investigation, initiated relatively shortly before the duties would otherwise lapse, which concerns the withdrawal, amendment or re-confirmation of an original anti-dumping duty on imported goods.

ITAC initiated a sunset review and conducted an investigation into whether the removal of the duties was likely to lead to the continuation or recurrence of injurious dumping.

In October 2008, ITAC recommended to the minister that the existing anti-dumping duties in respect of Bridon UK's products should be terminated.

SCAW launched an urgent application in the High Court in Pretoria to interdict ITAC from forwarding its recommendation to the minister for consideration, pending the final determination of SCAW's application to review ITAC's recommendation.

SCAW further sought an order preventing the minister and also the minister of 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.

In the Constitutional Court ITAC sought leave to appeal against the High Court order.

In a unanimous judgment by Deputy Chief Justice Dikgang Moseneke, the Constitutional Court held that the interim interdict was final in effect and that it caused irreparable harm.

The relevant regulations meant that anti-dumping duties would lapse on expiry of the statutorily determined five years and 18 month period, and that the initiation of a sunset review or a judicial review did not extend the lifespan of an anti-dumping duty beyond that period.

The High Court interim interdict had the effect of preventing the anti-dumping duties from lapsing, pending the finalisation of SCAW's review application.

The court held further that decisions regarding the setting or lifting of anti-dumping duties are 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.

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 the Constitutional Court.

- Sapa