Association of Meat Importers and Exporters v International Trade Administration Commission (9233/2022) [2023] ZAGPPHC 1790 (12 October 2023)

The High Court had occasion to establish the decision-making process in respect of the imposition of tariffs in South Africa under section 48(1)(b) of the Customs and Excise Act 91 of 1964 (CEA) in South Africa Sugar Association v the Minister of Trade and Industry [2017] 4 All SA 555 (GP) (30 August 2017) (hereafter, SASA) and Pioneer Foods (Pty) Ltd v Minister of Finance (15797/17) [2017] ZAWCHC 110 (29 September 2017) (hereafter, Pioneer Foods). In particular, the decisions in Pioneer Foods and SASA explained the scope of the powers of the Minister of Trade, Industry and Competition (Minister of Trade) and the Minister of Finance in respect of the amendment of Schedule 1 to the CEA to impose a tariff. Tariffs or duties are taxes on products imposed at the border. The High Court in both Pioneer Foods and SASA rejected the argument that the Minister of Finance merely "rubberstamps" the decision of the Minister of Trade to impose tariffs on a product (SASA para 37; Pioneer Foods para 30). Thus, both courts conclusively held that the final decision maker in respect of the imposition of tariffs is the Minister of Finance. This is because the High Court saw section 48(1)(b) of the CEA as employing directory language that conferred a discretion on the Minister of Finance upon receipt of the "request" of the Minister of Trade to impose a tariff. These decisions have been criticized as incorrect in law since they essentially arrogate the power to make trade policy from the Minister of Trade to the Minister of Finance (Vinti "The scope of the powers of the Minister of Finance in terms of section 48(1)(b) of the Customs and Excise Act 91 of 1964: An appraisal of recent developments in Case Law" 2018 Potchefstroom Electronic Law Journal 1-25). The High Court also remarked that it saw the same approach applying to the imposition of the trade remedies of dumping, safeguards and countervailing measures under Chapter VI of the CEA (SASA para 39). '