The Extension of "Safeguard Measures" in South Africa Within and Outside the Framework of the Agreement Establishing the African Continental Free Trade Area

Safeguard measures in the form of either a duty or a quota or both, function as safety valves for countries when a certain industry is suffering or there is a threat of serious injury to the industry due to a sudden, sharp and recent flood of imports of a product into their market. In essence, safeguard measures allow a country to suspend its obligations to other World Trade Organisation (WTO) Members for a specified period, normally three years. The imposition of safeguard measures is uncontroversial, but they are an extraordinary measure as they are not imposed as a response to unfair trade. However, there is no discernible process for the extension of safeguard measures both under the WTO and South African international trade law framework. Yet the extension of safeguard measures has serious financial implications for the affected industry and thus requires a clear investigative process. The aborted litigation in Macsteel Services Centre SA (Pty) Ltd v ITAC (Case No 55450/20) laid out the problems arising out of this gap in the law. The Amended Safeguard Regulations, the WTO Agreement on Safeguards and the Agreement Establishing the African Continental Free Trade Area (AfCFTA) Protocol on Trade in Goods are silent on this issue. In light of the recent commencement of trade by South Africa under the AfCFTA, it has become necessary to explore how this issue is regulated both within and outside the framework of the of the AfCFTA. Consequently, this paper explores the regime for the extension of safeguard measures in South Africa within and outside the framework of the AfCFTA