With one swish of a pen, the Supreme Court of Appeal (SCA) singularly saved South Africa’s poultry farmers from the ravenous international chicken dumping ruling that the imposition of duties on imported bone-in chicken portions was done legally.
The Association of Meat Importers and Exporters (Amie) had brought a court application to challenge the anti-dumping duties the finance ministry had imposed on frozen chicken imported from Germany, the Netherlands, and the UK.
The legal battle revolved around a process known as the “sunset review”, which aimed to determine whether these duties should be extended beyond their initial five-year period.
The South African Poultry Association (Sapa), representing local producers, had originally imposed the duties in 2015, and four years later, it applied to the International Trade Administration Commission (Itac) for a review.
The commission’s task included investigating and recommending the maintenance of the duties. It ruled in the affirmative, extending the duty for a further five years, a recommendation the Ministry of Trade, Industry, and Competition accepted, and then, in August 2021, asked the minister of finance to formalise it.
The Amie started a big court case to challenge and cancel the decisions made by Itac to begin the review, its final recommendation, and the approvals from the trade and finance ministers.
While the high court had partially set aside the finance minister’s decision on procedural grounds, the SCA overturned that ruling entirely, dismissing all of Amies’s appeals.
In a unanimous decision written by Justice Pieters Meyer, the SCA found that Amie’s challenge to Itac’s decision to start the sunset review was submitted 28 months late, well past the 180-day limit set by law, and that Amie did not give a good reason for the delay.
On the main issues, the SCA disagreed with Amie’s main point that Itac needed to check if Sapa’s application was correct before starting the review.
The court clarified that the legal requirements for initiating a sunset review are distinct from and less onerous than those for the original anti-dumping investigation.
“The less onerous regime for the initiation of a sunset review is consistent with the approach adopted in the WTO anti-dumping agreement,” the judgment stated, noting that the standard is “much lower” than for a new investigation.
The SCA further found that neither the Minister of Trade nor the Deputy Minister of Finance was legally obliged to grant Amie a separate hearing, as the interested parties had already had a full opportunity to participate in Itac’s investigation process.
The ruling reinforces the legal framework protecting South Africa’s poultry industry from injurious dumping and confirms the executive discretion granted to ministers when implementing trade policies.
