Reflections on Aspects of the Regime on the Amendment of Tariffs under the International Trade Administration Act 71 of 2002: a Discussion of Shoprite Checkers (Pty) Ltd v International Trade Administration Commission

Abstract

This article evaluates aspects of the regime for the amendment of tariffs under the International Trade Administration Act 71 of 2002 (ITAA), with a specific focus on the decision-making powers of the International Trade Administration Commission (ITAC) and the Minister of Trade, Industry and Competition (Minister). This analysis is conducted through the conduit of the decision in Shoprite Checkers (Pty) Ltd v International Trade Administration Commission. The Shoprite decision incorrectly allowed a review of ITAC’s ‘recommendations’ based on the ground of ‘rationality’ emanating from the principle of legality outside of the Promotion of Administrative Justice Act 3 of 2000 (PAJA). It is settled law that all of ITAC’s ‘recommendations’ or ‘decisions’ constitute ‘administrative action’, and thus, the grounds of appeal reside in PAJA, which includes the ground of rationality. Thus, the Shoprite approach conflated the point of departure, thereby incorrectly displacing the place of the PAJA and flouting the principle of subsidiarity. This case also incorrectly classified the power of the Minister when considering the ITAC ‘recommendation’ to impose or vary a duty as a ‘constitutional’ power. It is trite law that this power is ‘executive’ in nature. Thus, the Shoprite formulation causes confusion since all power can technically be regarded as ‘constitutional’. The article concludes with an analysis of the seldom-used power by ITAC of revoking its recommendations under sections 26 and 48 of the ITAA.