 WORLD TRADE  
ORGANIZATION  G/SG/N/1/ZAF/2 
27 September 2004 
 (04-4049) 
Committee on Safeguards Original:   English 
   
 
NOTIFICATIONS OF LAWS, REGULATIONS AND ADMINISTRATIVE  
PROCEDURES RELATING TO SAFEGUARD MEASURES 
 
SOUTH AFRICA 
 
  The following communication, dated 22 September 2004, is being circulated at the request of 
the Delegation of South Africa.  
_______________ 
 
  Further to the requirement under the Agreem ent on Safeguards Article 12.6 and in accordance 
with the related decision under document G/SG/N/1  adopted by the Committee established under this 
Agreement, I have the honour to provide a copy  of the full text of the International Trade 
Administration Act, No. 71 of 2002, relevant extracts from the Customs and Excise Act, No. 91 of 
1964, as amended, and a copy of the Safeguard Regul ations prescribed by the Minister of Trade and 
Industry on 27 August 2004.  This notification re places South Africa’s notification circulated under 
document G/SG/N/1/ZAF/1 of 6 December 1995. G/SG/N/1/ZAF/2 
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THE PRESIDENCY 
 
 
No. 123          22 January 2003 
 
  It is hereby notified that the President has assented to the following Act, which is hereby 
published for general information:   
NO. 71 OF 2002:  INTERNATIONAL T RADE ADMINISTRATION ACT, 2002 
 
(English text signed by the President.) 
(Assented to 30 December 2002.) 
  
ACT 
 
 
 To establish the International Trade Admi nistration Commission; to provide for the 
functions of the Commission and for the regul ation of its procedures; to provide for the 
implementation of certain aspects of the Southern African Customs Union (SACU) Agreement 
in the Republic;  to provide, within the framework of the SACU Agreement, for continued control of import and export of goods and ame ndment of customs duties;  and to provide for 
matters connected therewith. 
  BE IT ENACTED by the Parliament of the Republic of South Africa, as follows: 
 
TABLE OF CONTENTS
 
 
CHAPTER 1...................................................................................................................... .................. 6  
 
DEFINITIONS, INTERPR ETATION, OBJECT AND A PPLICATION OF ACT .....................6  
 
1. Definitions and interpretation .............................................................................................. 6 
2. Object of Act............................................................................................................... ............8 
3. Application of Act .......................................................................................................... ........8 
 
CHAPTER 2...................................................................................................................... .................. 8 
 
TRADE POLICY................................................................................................................... ............. 8 
 
4. Implementation of SACU Agreement .................................................................................. 8 
5. Trade policy statem ents and directives................................................................................ 9 
6. Minister's power to regul ate imports and exports.............................................................. 9 
 
CHAPTER 3...................................................................................................................... ..............10 
 
INTERNATIONAL TRADE ADMI NISTRATION COMMISSION ........................................10 
 
Part A ........................................................................................................................ .....................10 
 
Establishment and constitution ................................................................................................. ......10 
 
7. Establishment and independence of Commission ...........................................................10  G/SG/N/1/ZAF/2 
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8. Constitution of Commission..............................................................................................11 
9. Qualifications of members ................................................................................................12 10. Conduct of members......................................................................................................... .12 
11. Resignation and removal from office ...............................................................................13 12. Meetings and decisions of Commission............................................................................14 
13. Chief Commissioner......................................................................................................... ..14 
14. Committees ................................................................................................................. ........14 
 
Part B ........................................................................................................................ .....................15 
 
Functions of Commission........................................................................................................ ........15 
 
15. General functions of Commission.....................................................................................15 
16. Customs duties, anti-dumping duti es, countervailing duties and safeguard  
 measures ...................................................................................................................... .......16 
17. Issuing of permits or certificates ......................................................................................16 
18. Monitoring trade and other matters ................................................................................16 19. Information sharing with SACU in stitutions and Member States ................................16 
20. Relations with SACU and Member States.......................................................................17 
21. Relations with domestic agencies......................................................................................17 22. Public information and reporting.....................................................................................18 
 
Part C ........................................................................................................................ .....................18 
 
Staff, finances and administration of Commission.........................................................................18 
 
23. Staff of Commission........................................................................................................ ...18 
24. Finances of Commission....................................................................................................1 9 
25. Liability.................................................................................................................. .............20 
 
CHAPTER 4...................................................................................................................... ..............20 
 
INVESTIGATION, EVALUATION AND ADJUDICATION PROCEDURES.......................20 
 
Part A ........................................................................................................................ .....................20 
 
Applications................................................................................................................... ...................20 
 
26. Applications............................................................................................................... .........20 
 
Part B ........................................................................................................................ .....................21 
 
Import and export control perm its and rebate permits ...................................................................21 
 
27. Authority of Commission to issue import  and export permits and rebate permits .....21 
28. Authority of Commission to demand trade information................................................22 29. Authority of Commission to suspend or cancel permits.................................................22 
 
Part C ........................................................................................................................ .....................22 
 
Customs duty applications ...................................................................................................... .........22 
 
30. Customs duty applications ................................................................................................22  
31. Requests ................................................................................................................... ...........23 G/SG/N/1/ZAF/2 
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32. Consideration of alleged dumping and subsidised exports ............................................24 
 
Part D ........................................................................................................................ .....................25 
 
Confidential information ....................................................................................................... ..........25 
 
33. Right of informants to claim confidentiality....................................................................25 
34. Determination by Commission .........................................................................................26 35. Proceedings in contested claims........................................................................................26 
36. Disclosure of information.................................................................................................. 27 
37. Restricted use of information............................................................................................27  
 
Part E ........................................................................................................................ .....................27 
 
Powers of investigative search and inspections ..............................................................................27 
 
38. Appointment of in vestigating officers ..............................................................................27 
39. Summons.................................................................................................................... .........28 
40. Witnesses.................................................................................................................. ...........29 
41. Import and export control inspections.............................................................................29 42. Conduct of entry and search.............................................................................................30 
43. Power to enter and search under warrant.......................................................................31 
44. Power to enter and search without warrant....................................................................31 45. Power to enter and search.................................................................................................3 2 
 
Part F ........................................................................................................................ .....................32 
 
Reviews and appeals............................................................................................................ .............32 
 
46. Reviews .................................................................................................................... ...........32 
47. Appeals.................................................................................................................... ............33 
 
CHAPTER 5...................................................................................................................... ..............33 
 
ENFORCEMENT AND OFFENCES ...........................................................................................33 
 
48. Variation of order ......................................................................................................... .....33 
49. Standard of proof.......................................................................................................... .....33 
50. Breach of confidence....................................................................................................... ...33 
51. Hindering administration of Act ......................................................................................34 52. Failure to attend when summoned ...................................................................................34 53. Failure to answer fully or truthfully ................................................................................34 54 Other offences .............................................................................................................. ......34 
55. Penalties .................................................................................................................. ............35 
56. Magistrate's Court jurisdiction to impose penalties.......................................................35 57. Serving of documents....................................................................................................... ..35 
58. Proof of facts............................................................................................................. ..........36 
 
CHAPTER 6...................................................................................................................... ..............36 
 
GENERAL PROVISIONS............................................................................................................. 36 
 
59. Regulations ................................................................................................................ .........36 
60. Guidelines ................................................................................................................. ..........36  G/SG/N/1/ZAF/2 
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61. Official seal .............................................................................................................. ...........36 
62. Act binds State ............................................................................................................ .......36 
63 Transitional arrangements and repeal of laws................................................................37 64. Short title and commencement .........................................................................................37 
 
SCHEDULE 1..................................................................................................................... .............37 
 
SACU AGREEMENT ................................................................................................................. ...37 
 
SCHEDULE 2..................................................................................................................... .............37 
 
TRANSITIONAL PROVISIONS..................................................................................................37 
 
1. Definitions................................................................................................................. ..........37 
2. Implementation of SACU Agreement ..............................................................................37 
3. Composition of Commission .............................................................................................38 
4. Pending applications and other Board business..............................................................38 5. Statutor y references........................................................................................................ ...38 
6. Status of Board Employees and others ............................................................................39 
 
SCHEDULE 3..................................................................................................................... .............40 
 
REPEAL OF LAWS (SECTION 63(2))........................................................................................40 G/SG/N/1/ZAF/2 
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CHAPTER 1 
 
DEFINITIONS, INTERPRETATION, OBJECT AND APPLICATION OF ACT 
 1. Definitions and interpretation 
 
1. (1) A reference in this Act to an Article by nu mber is a reference to such Article in the SACU 
Agreement.  (2) In this Act unless the context indicates otherwise: 
 
"Cabinet"  means the body referred to in section 91 of the Constitution; 
 "claimant"  means a person who has filed a claim in terms of  Part D of Chapter 4, with regard to the 
confidentiality of information; 
 
"Commission"  means the International Trade Administra tion Commission established by section 7; 
 "committee"  means a committee of the Commission; 
 "Common Customs Area"  means the combined areas of the Member States of SACU; 
 
"confidential information"  means information that is: 
  (a) by nature, confidential;  or  
 (b)  recognised in terms of Part D of Chapter 4, to be otherwise confidential; 
 "countervailing duty"  means a customs duty imposed to off-set  the benefit conferred by a subsidy; 
 "Customs and Excise Act"  means the Customs and Excise Act, 1964 (Act No. 91 of 1964); 
 
"customs duty"  means customs duty as defined in section 1 of the Customs and Excise Act; 
 "dumping"  means the introduction of goods into the commerce of the Republic or the Common 
Customs Area at an export price cont emplated in section 32(2)(a) that is  less than the normal value, as 
defined in section 32(2), of those goods; 
 
"export"  means to take or send goods, or to cause them to be taken or sent, from the Republic to a 
country or territory outside the Republic;  "goods"  includes: 
 
 (a) all wares, articles, merchandise, animals, currency, material or objects of whatsoever 
nature;  and 
  (b) in relation to any particular goods, an y other goods that are reasonably capable of 
being substituted for them, taking into account ordinary commercial practice and 
geographical, technical and temporal constraints; 
 "import"  means to bring goods, or cause them to be brought, from outside the Republic into the 
Republic;  
"information that is by nature confidential"  means trade, business or industrial information that:  G/SG/N/1/ZAF/2 
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 (a) belongs to a person or the State;   (b) has a particular economic value;  and   (c) is not generally available to or known by others, and the disclosure of which could: 
 
  (i) result in a significant adverse effect on the owner, or on the person that 
provided the information;  or 
   (ii) give a significant competitive advantage to a competitor of the owner;  
 
"member"  means a member of the Commission; 
 "Member State"  means a member of SACU; 
 
"Minister"  means the member of the Cabinet responsible for trade and industry; 
 "Minister of Finance"  means the member of the Cabinet responsible for national finance; 
 "National Body"  means a body or institution established or designated by a Member State, as 
contemplated in Article 14; 
 
"organ of state"  has the meaning set out in section 239 of the Constitution; 
 "person"  includes, among other things, a trust; 
 
"premises"  includes land or any building, structure, vehicl e, ship, boat, vessel, aircraft or container; 
 "prescribed"  means prescribed by regulation in terms of this Act; 
 "Public Finance Management Act"  means the Public Finance Mana gement Act, 1999 (Act No. 1 of 
1999); 
 
"regulation"  means a regulation made under this Act; 
 "regulatory authority"  means an entity established in terms of national or provincial legislation 
responsible for regulating an industry or a sector of an industry; 
 
"SACU"  means the Southern African Customs Union established by Article 3; 
 "SACU Agreement"  means: 
  (a) the agreement establishing SACU, and a ttached as Schedule 1 to this Act;  and 
 
 (b) any annex to that agreement develope d by the SACU Council as contemplated in 
Article 42, once such an annex has become law in the Republic; 
 "SACU Commission"  means the Customs Union Commission established by Article 7; 
 
"SACU Council"  means the Council of Ministers established by Article 7; 
 "SACU Tribunal"  means the Tribunal established by Article 7; 
 
"safeguard measure"  means a remedy or procedure for use in response to disruptive competition; G/SG/N/1/ZAF/2 
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"Tariff Board"  means the SACU Tariff Board established by Article 7;  and 
 "this Act"  includes the regulations and Schedules, other than Schedule 1. 
 (3) This Act must be interpreted: 
 
 (a) in a manner that is consistent with th e Constitution and gives effect to the object set 
out in section 2;  and 
  (b) in a manner that is consistent with th e purposes and intent of the SACU Agreement. 
 
2. Object of Act 
 
2. The object of the Act is to foster economic gr owth and development in order to raise incomes 
and promote investment and employment in the Republic and within the Common Customs Area by 
establishing an efficient and effective system for th e administration of international trade subject to 
this Act and the SACU Agreement.  
3. Application of Act 
 
3. (1) Subject to subsection (2), this Act app lies to all economic activity within, or having an 
effect within, the Republic. 
 (2) Sections 6, 26(1)(a) and 26(2)(a) and Part B of Chapter 4 do not apply to the export or import 
of goods in respect of which the Minister of Defenc e has issued a notice in terms of section 4C(1)(a) 
of the Armaments Development and Production Act, 1968 (Act No. 57 of 1 968), prohibiting the: 
 
 (a) export or import of those goods;  or   (b) export or import of those goods except u nder authority of and in accordance with the 
conditions stated in a permit referred to in  section 4C(1)(a)(ii) or (vi) of that Act. 
 
CHAPTER 2 
 
TRADE POLICY  
 
4. Implementation of SACU Agreement 
 
4.  (1)  The Minister is the head represen tative of the Republic to the SACU Council. 
 (2) The Minister may:   (a) assign representatives of the Republic to an y institution constituted by or in terms of 
the SACU Agreement;  and 
  (b) exercise any right of the Republic in te rms of the SACU Agreement to nominate or 
appoint persons to fill any office constituted by or in terms of the SACU Agreement. 
 
(3) The Minister is the head representative of the Republic in any consultations with Member 
States individually or collectivel y as contemplated in the SACU Agreement and represents the 
Republic in any consultations arising in terms of Article 13(4) and (5) and Article 15. 
 (4) The Commission may, in accordan ce with this Act, exercise the right of the Republic to grant 
a rebate of customs duties, as contemplated in Article 20(3).  G/SG/N/1/ZAF/2 
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(5) SACU is recognised as a juristic person for all purposes of law within the Republic. 
 (6) The Minister may refer any decision of the SA CU Council of Ministers that concerns customs 
duties or other measures to the Minister of Fina nce as a request contemplated in the Customs and 
Excise Act. 
 
(7) The Minister must, by notice in the Gazette, publish:   (a) for information any recommendation of the Tariff Board;  and  
 (b) any decision by the SACU Council of Ministers that directly affects the import of 
goods into, or export of goods from, the Republic. 
 (8) The Minister may, by notice in the Gazette, publish any policy mandate, procedure, guideline formulated by the SACU Council of Ministers or application being dealt with by a SACU Member 
State. 
 
5. Trade policy statements and directives 
 
5. The Minister may, by notice in the Ga zette and in accordance with procedures and 
requirements established by the Constitution or any ot her relevant law, issue Trade Policy Statements 
or Directives. 
 
6. Minister's power to regulate imports and exports 
 
6.  (1)  The Minister may, by notice in the Gaze tte, prescribe that no goods of a specified class or 
kind, or no goods other than goods of a specified class or kind, may be: 
  (a) imported into the Republic;   (b) imported into the Republic, except under th e authority of and in accordance with the 
conditions stated in a permit issued by the Commission; 
 
 (c) exported from the Republic;  or   (d) exported from the Republic, except under th e authority of and in accordance with the 
conditions stated in a permit issued by the Commission. 
 
(2) For the purpose of subsection (1) goods may be classified according to: 
  (a) their source or origin;   (b) their intermediate or final destination; 
 
 (c) the channels along which they are transported;   (d) the manner in which they are imported or exported;  
 (e) the purposes for which they are intended to be used; 
  (f) the methods or processes by which they are produced;   (g) the use of non-renewable natural resources in their production, and their life-cycle 
impact on the natural environment;  or G/SG/N/1/ZAF/2 
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 (h) any other classification methods determined by the Minister.  (3) A notice issued in terms of th is section applies to any person w ho, at the time of the import of 
particular goods into the Republic, or the export of particular goods from the Republic: 
 
 (a) owns those goods; 
  (b) carries the risk of those goods;   (c) takes or attempts to bring those goods in to, or takes or attempts to take those goods 
from, the Republic; 
  (d) in any manner whatsoever has a beneficial interest in those goods; 
  (e) acts on behalf of a person referred to in  paragraph (a), (b), (c) or (d);  or 
 
 (f) pretends to be a person referred to in  paragraph (a), (b), (c), (d) or (e). 
 (4) Despite any other provision of this Act, a notice issued in terms of this section in respect of 
goods that are the subject of a notice issued by the Minister of Defence in terms of section 4C(1)(a) of 
the Armaments Development and Production Act, 1968,  is deemed to have been revoked as from the 
date of the latter notice. 
 
CHAPTER 3 
 
INTERNATIONAL TRADE ADMINISTRATION COMMISSION 
 
Part A 
 
Establishment and constitution 
 
7. Establishment and independence of Commission 
 
7.  (1) §The International Trade Administ ration Commission is hereby established, and: 
  (a) has jurisdiction throughout the Republic;  
 (b) is a juristic person;  and 
  (c) must exercise its functions in accordance  with this Act and any other relevant law. 
 (2) The Commission:  
 (a) is independent and subject only to: 
   (i) the Constitution and the law;    (ii) any Trade Policy Statement or Dir ective issued by the Minister in terms of 
section 5;  and 
   (iii) any notice issued by the Minister in terms of section 6;  and   (b) must be impartial and must perform its functions without fear, favour or prejudice. 
  G/SG/N/1/ZAF/2 
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(3) Each organ of state must assist the Commi ssion to maintain its independence and impartiality, 
and to exercise its authority and carry out its functions effectively.  
8. Constitution of Commission 
 8.  (1)  (a) The Commission consists of: 
   (i) a full-time Chief Commissioner and a full-time Deputy Chief Commissioner;  
and 
 
  (ii) not less than two but not more than 10 other Commissioners, each appointed 
to serve either full-time or part-time, appointed by the President on the recommendation of the Minister, subject to section 9. 
  (b) The Minister must, by notice in the G azette and in any national newspaper, invite 
nominations for appointment of persons as members of the Commission. 
  (c) The members of the Commission must, wh en viewed collectively, be representative 
of a broad cross-section of the population of the Republic, including women, and the President must endeavour to ensure par ticipation by significant economic sectors. 
 
(2) The President must, when making an appointment  in terms of subsection (1)(a)(ii), determine: 
  (a) whether the appointee is to be a fu ll-time or part-time Commissioner;  and 
  (b) the term of the appointment, which may not exceed five years. 
 
(3) If a vacancy arises as a result of the depart ure of a full-time Commissioner, the President 
may, on the recommendation of the Minister:   (a) leave the position vacant;  
 (b) if the member's term of office has expired, reappoint that member subject to  
section 9;  or 
  (c) in any other case:  
  (i) appoint a new member in acco rdance with subsection (2);  or 
   (ii) on the request of a part-time member, transfer that part-time member to fill 
that vacancy on a full-time basis either for: 
    (aa)  the remainder of that member's term of office;  or 
 
   (bb)  a term determined by the Pr esident in accordance with subsection (2). 
 (4) If a vacancy arises as a result of the depart ure of a part-time Commissioner, the President 
may, on the recommendation of the Minister: 
 
 (a) leave the position vacant;   (b) if the member's term of office has expired, reappoint that member subject to  
section 9;  or 
 G/SG/N/1/ZAF/2 
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 (c) in any other case:    (i) appoint a new member on a part-time basis in accordance w ith subsection (2);  
or 
 
  (ii) on the request of a full-time member, transfer that member to fill that vacancy 
on a part-time basis either for: 
    (aa)  the remainder of that member's term of office;  or  
   (bb)  a term determined by the Pr esident in accordance with subsection (2). 
 (5) A person may not serve as Chief Commissi oner for more than 10 consecutive years. 
 (6) The Minister must, with the concurrence of the Minister of Finance, determine the 
remuneration, allowances, benefits and other te rms and conditions of employment of the Chief 
Commissioner, Deputy Chief Commissioner and each other member of the Commission.  (7) During the term of office of a member of the Commission, the Minister may not reduce the 
member's salary, allowances or benefits.  
(8) The Minister may determine any other conditio ns of appointment not provided for in this 
section, but any such conditions may not be of such  a nature as to reduce the independence of the 
Commissioner concerned.  
9. Qualifications of members 
 
9.  (1)  To be eligible for appointment and to co ntinue to hold office as a member of the Commission, 
a person must:   (a) be ordinarily resident in the Republic;  and  
 (b) have suitable qualifications and ex perience in economics, accounting, law, 
commerce, agriculture, industry or public affairs. 
 (2) A person may not be a member of the Commission if that person:  
 (a) is an office-bearer of any party, movement, organisation or body of a partisan 
political nature; 
  (b) is an unrehabilitated insolvent;   (c) has been found mentally unfit by an order of a competent court;  or 
 
 (d) has been convicted of an offen ce committed after the Constitution of the  
Republic of South Africa, 1993 (Act No. 200 of 1993), took effect, and sentenced to imprisonment without the option of a fine. 
 10. Conduct of members 
 
10.  (1)  A member of the Commission, and a member of the staff of the Commission, must not:   (a) engage in any activity that may un dermine the integrity of the Commission; 
  G/SG/N/1/ZAF/2 
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 (b) participate in any investigation, hearin g or decision concerning a matter in respect of 
which that person has a financial interest  or any similar personal interest, as 
prescribed; 
  (c) make private use of, or profit from, any confidential information obtained as a result 
of performing that person's official functions in the Commission;  or 
  (d) divulge any information referred to in pa ragraph (c) to any third party, except as 
required as part of that person's official functions within the Commission. 
 
(2) If, at any time, it appears to a member of the Commission that a matter before the 
Commission concerns the financial or personal interest of that member, as prescribed, the member of  the Commission must:   (a) immediately and fully disclose the interest  to the Chief  Commissioner, or in the case 
of the Chief Commissioner, to th e Deputy Chief Commissioner;  and 
  (b) withdraw from any further involvement in the matter to the extent required by 
regulation. 
 (3) A member of the Commission must comply with any prescribed code of conduct for 
members. 
 
11. Resignation and removal from office 
 
11. (1)  A member of the Commission may, on one month's written notice addressed to the President: 
 
 (a) resign from the Commission;  or   (b) if he or she is a Chief or Deputy Chief Commissioner, resign from the post but remain 
as an ordinary member of the Commission. 
 
(2) The President, on the recommendation of the Minister: 
  (a) must remove a member of the Commission from office if the member:    (i) ceases to be ordinarily resident within the Republic;  or 
 
  (ii) economies subject to any of the dis qualifications referred to  in section 9(2);  
and 
  (b) may remove a member from office only for:  
  (i) serious misconduct; 
   (ii) permanent incapacity;    (iii) engaging in any activity that may undermine the integrity of the Commission;  
or 
   (iv) failure to satisfy the prescribed standards of professionalism, attendance and 
participation in the functions of the Commission. 
 G/SG/N/1/ZAF/2 
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12. Meetings and decisions of Commission 
 
12. (1)  The Chief Commissioner must convene the first meeting of the Commission and preside at that meeting.   
(2) A majority of the members of the Commissi on present at a meeting of the Commission forms 
a quorum.  (3) The Chief Commissioner must appoint a me mber of the Commission as Chairperson to 
preside at meetings of the Commission. 
 
(4) If the Chairperson is not present, the me mbers present at the meeting must nominate a 
member to preside at that meeting.  (5) The decision of a majority of the member s of the Commission present and voting on a matter 
is the decision of the Commission on that matter. 
 (6) In the case of an equality of votes, the person presiding at the meeting may cast a deciding vote in addition to his or her deliberative vote.  (7) The Commission may make rules of order for its proceedings, but any such rules of order 
must be consistent with this Act. 
 
13. Chief Commissioner 
 
13. (1)  The Chief Commissioner is the Chief Executiv e Officer of the Commission, is responsible for 
the general administration of the Commission, and must: 
  (a) perform the functions that are conferred on the Chief Commissioner by or in terms of 
this Act; 
  (b) manage and direct the activities of the Commission;  and 
 
 (c) supervise the staff of the Commission.  (2) The Deputy Chief Commissioner:  
 (a) may perform any functions of the Chief Commissioner as assigned by the Chief 
Commissioner;  and 
  (b) must perform the functions of the Chief Commissioner whenever the:    (i) Chief Commissioner is unable for any reason to perform the functions of the 
Chief Commissioner;  or 
   (ii) office of Chief Commissioner is vacant.  (3)  The Chief Commissioner may assign another member of the Commission to perform any 
functions of the Chief Commissioner when th e Chief Commissioner or the Deputy Chief 
Commissioner is unable to perform those functions.  
14. Committees 
 14. (1)  The Minister may, by notice in the Gazette and at the request of the Commission:  G/SG/N/1/ZAF/2 
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 (a) establish one or more committees of the Commission for any purpose within or 
ancillary to the functions of the Commission;  and 
  (b) appoint persons recommended by the Commission to be members of a committee.  
(2) A request to the Minister contemplated in subsection (1) to establish a committee must: 
  (a) propose specific terms of reference for the committee;   (b) indicate whether the committee is a pe rmanent committee or is established for a 
specific term; 
  (c) propose persons to be appointed to the committee and designate the proposed 
chairperson of the committee;  and 
 
 (d) set out time limits within which the committee must report to the Commission. 
 (3) A committee may consist of persons who are not members of the Commission but:   (a) at least half of the members of each co mmittee must be members of the Commission;  
and 
 
 (b) persons who are not members of the Commission may not vote.  (4) If a committee is permanent, the Minister must  determine the term of office for each person 
appointed to that committee. 
 
(5) A committee decision is effective only if the decision is subsequently ratified by the 
Commission, unless the notice establishing the committ ee expressly authorises the particular decision 
to be effective without such ratification.  
Part B 
 
Functions of Commission 
 
15. General functions of Commission 
 15. (1)  The Commission must carry out the functions assigned to it in terms of this Act, any other 
Act or by the Minister.  (2) The Commission must carry out any function th at arises out of an obligation of the Republic 
in terms of a trade agreement, if the Minister  has assigned that function to the Commission. 
 
(3) The Commission may, to the extent require d or permitted by the SACU Agreement, refer 
matters to any institution constituted by or in term s of the SACU Agreement, and may appear before 
such an institution.  (4) The Commission may, subject to section 14(5), assign any of its functions to: 
 
 (a) member of the Commission;   (b) a committee established in terms of section 14;  
 (c) a member of the staff of the Commission; G/SG/N/1/ZAF/2 
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 (d) a person referred to in section 23;  or   (e) any combination of persons referred to in this subsection. 
 
16. Customs duties, anti-dumping duties, countervailing duties and safeguard measures 
 
16. (1)  The Commission must investigate and evaluate:   (a) applications in terms of section 26 with  regard to alleged dumping, or subsidised 
exports, in or into the Republic or the Common Customs Area; 
 
 (b) applications in terms of section 26  with regard to safeguard measures; 
  (c) applications in terms of section 26 with regard to amendment of customs duties in the 
Common Customs Area;  and 
 
 (d) matters with regard to safeguard meas ures or amendment of customs duties in the 
Common Customs Area, that the: 
   (i) Minister directs the Commission to consider;  or  
  (ii) Commission considers on its own initiative. 
  (2) Sections 26 and 30(1)(a), each read with the changes required by the context, apply to an 
investigation undertaken by the Commi ssion in terms of subsection (1)(d). 
 
(3) The Commission may, after evaluating a matter in terms of subsection (1), take appropriate 
steps in accordance with this Act and the SACU Ag reement and inform the Minister and the Tariff 
Board of its evaluation.  
17. Issuing of permits or certificates 
 17. The Commission may investigate, evaluate and determine applications and issue or 
recommend the issuing of permits or certificates, in terms of:   (a) the rebate and drawback provisions of the Customs and Excise Act;  or  
 (b) Part A and B of Chapter 4. 
 
18. Monitoring trade and other matters 
 
18. The Commission:  
 (a) must monitor, review, report to the Mini ster on and, when appropriate, advise the  
Minister in respect of, any matter referred to it by the Minister that affects or might affect trade and industry;  and 
  (b) may investigate matters relating to its functions in terms of this Act. 
 
19. Information sharing with SACU institutions and Member States 
 
19.  Subject to Part D of Chapter 4 and the Pr omotion of Access to Information Act, 2000  
(Act No. 2 of 2000), the Commission: 
  G/SG/N/1/ZAF/2 
 Page 17 
 
 
 (a) must provide information to the SACU Secretariat or one or more Member States, as 
required in terms of this Act or the SACU Agreement; 
  (b) may request such information from the SACU Secretariat or one or more Member 
States, as permitted in terms of  the SACU Agreement;  and  
 
 (c) may exchange information with the Nati onal Body established by any Member State. 
 
20. Relations with SACU and Member States 
 20.  The Commission may: 
  (a) engage with an entity of SACU or the National Body of one or more Member States 
in co-operative activities of research, publi cation, education, staff development and 
training;  or  
 
 (b) in consultation with the Minister:    (i) engage with an entity of SACU or the National Body of any Member State in 
staff exchanges or secondment of staff;  or 
 
  (ii) provide technical assistance or expertise to, or request such assistance from, an 
entity of SACU or the National Body of a Member State. 
 
21. Relations with domestic agencies 
 21. (1)  The Commission may: 
  (a) enter into an agreement with any regulator y authority or organ of state to co-ordinate 
and harmonise their respective functions with regard to international trade matters, in 
order to ensure the achievement of the objects of this Act;  and 
 
 (b) with regard to a particular  matter within its jurisdiction: 
   (i) delegate its functions to such a re gulatory authority or organ of state, as 
contemplated in section 238 of the Constitution;  or 
 
  (ii) act in accordance with the agreement referred to in paragraph (a). 
 (2) A regulatory authority or organ of state th at, in terms of any law, has jurisdiction over 
international trade matters may:   (a) enter into an agreement referred to in  subsection (1), with the Commission;  and 
 
 (b) with regard to a particular  matter within its jurisdiction: 
   (i) delegate such matter to the Commission as contemplated in section 238 of the 
Constitution;  or 
 
  (ii) act in accordance with the agreement referred to in paragraph (a).  (3) The Commission may:  
 (a) participate in the proceedings of any re gulatory authority or organ of state;  and G/SG/N/1/ZAF/2 
Page 18  
 
 (b) advise, and receive advice from, any re gulatory authority or organ of state. 
 
22. Public information and reporting 
 
22. (1)  The Commission: 
 
 (a) must implement measures to promote public awareness of the provisions of this Act;  
and 
  (b) may provide advice to industry or inte rested persons in the prescribed manner and 
form. 
 (2) The Commission must report to the Minister on:   (a) any matter relating generally to the impl ementation of the objects of this Act;  and 
 
 (b) the results of any investigation, mon itoring or review carried out in terms of 
section 18. 
 (3) The Chief Commissioner must within six months after the end of the financial year of the Commission, prepare and submit to the Minister an annual report in the prescribed form, containing: 
 
 (a) the audited financial statements  prepared in terms of section 24(8); 
  (b) the auditor-general's report, pr epared in terms of section 24(9); 
 
 (c) a report on the performance of the Comm ission and of activities undertaken in terms 
of this Act;  and 
  (d) any other information that the Minister may require.  (4) The Minister must table the annual report in Parliament within 14 days of receipt thereof if 
Parliament is sitting or, if Parliament is not then  sitting, within 14 days of the commencement of the 
next sitting.  (5) The Minister may table in Parliame nt any other report submitted regarding: 
 
 (a) a statement of the progress achieved during the preceding year towards realisation of 
the objects of this Act;  and 
  (b) any other information determined by the Minister.  
Part C 
 
Staff, finances and administration of Commission 
 
23. Staff of Commission 
 23. (1)  The Chief Commissioner may: 
  (a) appoint staff or enter into contracts with other persons to assist the Commission in 
carrying out its functions;  and 
  G/SG/N/1/ZAF/2 
 Page 19 
 
 
 (b) in consultation with the Minister and with  the concurrence of the Minister of Finance, 
determine the remuneration, allowances, be nefits and other terms and conditions of 
appointment of each member of the staff. 
 (2) The Minister may, with the concurrence of the Minister of Finance, determine the 
remuneration paid to a person who is  appointed in terms of subsection (1), but who is not in the full-
time service of the Commission.   
24. Finances of Commission 
 24. (1)  The Commission is financed from: 
  (a) money that is appropriated by Parliament;   (b) prescribed fees; 
 
 (c) income derived from the investment and deposit of surplus money in terms of 
subsection (6);  and 
  (d) money received from any other source.  
(2) The financial year of the Commission is the period from 1 April in any year to 31 March in 
the following year, except that the first financial y ear begins on the date that this Act comes into 
operation, and ends on 31 Marc h next following that date. 
 (3) Each year, at a time determined by the Mini ster, the Commission must submit to the Minister 
a statement of its estimated income and expenditu re, and the requested appropriation from Parliament, 
in respect of the next ensuing financial year.  (4) The Commission must open and maintain an acc ount in its name with a registered bank, or 
other registered financial institution, in the Republic, and:  
 (a) deposit any money received into that account;  and 
  (b) every payment made on its behalf must be made from that account.  (5) Cheques drawn on the account of the Commission must be signed on its behalf by two 
persons authorised for that purpose by a resolution of the Commission. 
 (6) The Commission may invest or deposit m oney that is not immediately required for 
contingencies or to meet current expenditures in:   (a) a call or short-term fixed deposit account  with any registered bank or financial 
institution in the Republic;  or 
  (b) an investment account with the Corpora tion for Public Deposits established in terms 
of section 2 of the Corporation for Public Deposits Act, 1984 (Act No. 46 of 1984). 
 
(7) The Chief Commissioner is the accounting author ity of the Commission in terms of the Public 
Finance Management Act.   (8) The Chief Commissioner must prepare financia l statements for the Commission within six 
months after the end of each financial year in  accordance with established accounting practice, 
principles and procedures, consisting of: G/SG/N/1/ZAF/2 
Page 20  
 
 (a) a statement reflecting, with sufficient pa rticulars, the income and expenditure of the 
Commission during the preceding financial year;  and 
  (b) a balance sheet showing the state of its assets, liabilities and financial position as at 
the end of that financial year. 
 
(9) The Auditor-General must each year aud it the financial records of the Commission. 
 
25. Liability 
 25. The State Liability Act, 1957 (Act No. 20 of 1957), read with the changes required by the 
context, applies to the Commission, but a reference in that Act to "the Minister of the Department 
concerned" must be interpreted as referring to the Chief Commissioner of the Commission. 
 
CHAPTER 4 
 
INVESTIGATION, EVALUATION AND ADJUDICATION PROCEDURES 
 
Part A 
 
Applications 
 
26. Applications 
 
26. (1)  A person may, in the prescribed ma nner and form, apply to the Commission for: 
 
 (a) an import or export control permit, or an  amendment of such a permit, in terms of 
Part B of this Chapter and the regulations; 
  (b) a rebate permit or certificate in terms of the Customs and Excise Act;   (c) the amendment of customs duties, incl uding an amendment in respect of goods 
imported into the Common Customs Area from a country that is not a Member State, 
with regard to: 
  (i) anti-dumping duties;    (ii) countervailing duties;  or 
 
  (iii) safeguard duties;  or   (d) the imposition of safeguard measures other than a customs duty amendment. 
 (2) The Commission must, subject to section 30(1) and (2), evaluate the merits of every 
application received by it and dispose of each application: 
  (a) received in terms of subsection (1)(a) or (b), in accordance with Part B of this 
Chapter;  or 
 
 (b) received in terms of subsection (1)(c) or (d), in accordance with Part C of this 
Chapter. 
 (3) (a) The Commission may, before consider ing an application, give notice of the 
application in the Gazette. 
  G/SG/N/1/ZAF/2 
 Page 21 
 
 
 (b) If it does so, the Commission must:   (i) allow interested parties the prescr ibed time to make written representations 
concerning the application;  and 
   (ii) ensure that notice of its decision or recommendation in the matter is 
subsequently published in the Gazette. 
 (4) The Commission may:   (a) require an applicant to provide additional in formation in respect of the application;  or 
 
 (b) request further information from any pe rson who makes a representation in terms of 
subsection (3)(b). 
 (5) Any person may voluntarily file with the Comm ission any document, affidavit or statement of 
the views of that person with regard to the application, or other relevant information. 
 (6) The Commission may amend or revoke a decision or recommendation concerning an application if:   (a) the decision or recommendation was based on incorrect information and the applicant 
or supplier of the information: 
   (i) was responsible for the error in the information;  and    (ii) benefited or coul d have benefited, from the decision or recommendation; 
 
 (b) the decision was obtained by deceit;  or   (c) a person has breached an obligation a ttached to the decision or recommendation. 
 
Part B 
 
Import and export control permits and rebate permits 
 
27. Authority of Commission to issue impo rt and export permits and rebate permits 
 27. (1) (a) The Commission must, after evaluating an application made in terms of section 26(1) 
(a) or (b): 
   (i) refuse the application;  or    (ii) approve the application in whole or  in part and with or without conditions. 
 
 (b) If it approves the application, the Commi ssion must take appropriate steps to give 
effect to its decision in accordance with this Act or the Customs and Excise Act. 
 (2) A permit issued under subsection (1) may, with  regard to the goods in question, prescribe: 
 
 (a) the quantity or value of goods which may be imported or exported; 
  (b) the price at which the goods may be imported or exported;  
 (c) the period during which the goods  may be imported or exported; G/SG/N/1/ZAF/2 
Page 22  
 
 (d) the port through or from which the goods may be imported or exported;   (e) the country or territory from or to wh ich the goods may be imported or exported; 
  (f) the manner in which the goods  may be imported or exported; 
 
 (g) conditions relating to the possession, owne rship or disposal of the goods after they 
have been imported, or the use to which they may be put;  or 
  (h) any other related conditions. 
 
(3) Despite any other provision of this Act, a permit  issued in terms of this section with regard to 
goods that are the subject of a notice issued by the Minister of Defence in terms of section 4C(1)(a) of 
the Armaments Development and Production Act, 1968 , is deemed to have been revoked as of the 
date of that notice. 
 
28. Authority of Commission to demand trade information 
 
28. The Commission may, in writing, direct a person who:   (a)  imports, exports, trades or manufactures any goods;  or 
 
 (b)  in the course of whose or its business or  trade, handles or has control of any goods, 
 to provide the Commission, within a specified time , with any information relating to the import, 
export, manufacture, supply or storage of the goods in question. 
 
29. Authority of Commission to suspend or cancel permits 
 
29. The Commission may suspend or cancel a permit issued in terms of this Act in accordance 
with this Chapter and the regulations.  
Part C 
 
Customs duty applications 
 
30. Customs duty applications 
 
30. (1)  The Commission must, upon receipt of an application in terms of section 26(1)(c) or (d):   (a) notify the SACU Secretariat of the application;  and   (b) ascertain whether an application dealing w ith a substantially similar matter is pending 
before the relevant SACU institution or h as been decided upon by the relevant SACU 
institution within the previous six months from the date of that application. 
 (2) If the Commission determines that an application before it deals with a substantially similar matter contemplated in subsection (1)(b), the Commission may: 
 
 (a) advise the applicant in writing that the application will not be considered and inform 
the SACU Secretariat accordingly;  or  
  (b) investigate and evaluate the applicati on and recommend to the Tariff Board that the 
application be approved or rejected.  G/SG/N/1/ZAF/2 
 Page 23 
 
 
(3) If the Commission determines that an applicati on before it does not deal with a substantially 
similar matter contemplated in subsection (1)(b), the Commission must evaluate the merits of the 
application and recommend to the Tariff Board that the application be approved or rejected. 
 (4) The Commission must, when evaluating a matter in terms of this section, apply any relevant 
rules of analysis established by the SACU Counc il through the formulation of policy mandates, 
procedures or guidelines contemplated in Article 8(2).  (5) (a) The Commission may, when consider ing an application referred to in section 
26(1)(c), request the Commissioner for the South African Revenue Service to impose 
a provisional payment contemplated in Chapter VI of the Customs and Excise Act. 
  (b) If the Commission has acted in terms of paragraph (a) it must make a final 
recommendation to the Tariff Board when it has completed its evaluation. 
 31. Requests 
 
31. (1)  The Commission may receive requests from SACU to:    (a) evaluate a recommendation made to the Ta riff Board by another Member State;  or 
 
 (b) investigate and compile information ava ilable within the Republic concerning such a 
recommendation.  
 (2) The Commission may receive a request from the National Body of a Member State to: 
 
 (a) evaluate an application for a custom s duty amendment received by that Member 
State;  or  
  (b) investigate and compile information ava ilable within the Republic concerning such an 
application. 
 
(3) The Commission must, upon receiving a request in terms of subsection (1)(a) or (2)(a), 
evaluate the application or recommendation, and make a recommendation to the Tariff Board 
concerning the matter.   (4) The Commission must, upon receiving a request  in terms of subsection (1)(b) or (2)(b), 
conduct an investigation or compile the informa tion requested and deliver a report concerning the 
matter to the Tariff Board or relevant National Body, as the case may be.  (5) Section 26, read with the changes required by the context, applies to a request received by the 
Commission in terms of subsection (1) or (2).   
(6) The Commission may request the National Body of another Member State to: 
  (a) evaluate:    (i) an application for customs duty amendment received by the Commission; 
 or 
   (ii) a recommendation made to the Tariff Board by another Member State;  or   (b) investigate and compile information ava ilable within its jurisdiction concerning such 
an application or recommendation. G/SG/N/1/ZAF/2 
Page 24  
 
32. Consideration of alleged dumping and subsidised exports 
 
32. (1)  Despite section 1, in this section:   (a) "export" means to bring or send goods, or to cause them to be brought or sent, into 
the Common Customs Area from a country or territory outside the Common Customs 
Area;  and  
  (b) "exporter" means any person who bri ngs or sends goods, or causes them to be 
brought or sent, into the Common Customs Area from a country or territory outside 
the Common Customs Area. 
 (2) For the purpose of considering an applicati on alleging the dumping or subsidised export of 
goods into the Common Customs Area:   
 (a) "export price", subject to subsections (3) and (5), means the price actually paid or 
payable for goods sold for export, net of all taxes, discounts and rebates actually 
granted and directly related to that sale; 
  (b) "normal value", in respect of any goods, means:   
  (i) the comparable price paid or payable in the ordinary course of trade for like 
goods intended for consumption in the e xporting country or country of origin;  
or 
  (ii) in the absence of information on a price contemplated in subparagraph (i), 
either: 
 
   (aa) the constructed cost of productio n of the goods in the country of origin 
when destined for domestic consumption, plus a reasonable addition for selling, general and administrative costs and for profit; or 
    (bb) the highest comparable price of the like product when exported to an 
appropriate third or surrogate country, as long as that price is 
representative; 
  (c) "subsidised export" means goods expor ted into the Common Customs Area, in 
respect of which the government of, or a public body within, any country: 
 
  (i) has provided:     (aa) any form of financial aid;     (bb) any form of assistance with its production, manufacture, transportation or 
export;  or 
    (cc) any similar assistance; or    (ii) has foregone any revenue that woul d otherwise be due to that government or 
public body;  and 
  (d) "public body" includes a person or body that acts on behalf of the government of, or 
another public body within, a country. 
  G/SG/N/1/ZAF/2 
 Page 25 
 
 
(3) The Commission must, in determining the margin of dumping of goods, make reasonable 
allowance for differences in conditions and terms of sale, differences in taxation and other differences 
affecting price comparability.  (4) If the Commission, when evaluating an appli cation concerning dumping, concludes that the 
normal value of the goods in question is, as a result of government intervention in the exporting 
country or country of origin, not determined according to free market principles, the Commission may apply to those goods a normal value of the goods, established in respect of a third or surrogate country.  
(5) The Commission must, despite the definition of "export price" set out in subsection (2), when 
evaluating an application concerning dumping that meets the criteria set out in subsection (6), 
determine the export price for the goods in questio n on the basis of the price at which the imported 
goods are first resold to an independent buyer,  if applicable, or on any reasonable basis. 
 
(6) Subsection (5) applies to any investigation of dumping if, in respect of the goods concerned: 
  (a) there is no export price as contemplated in the definition of dumping;    (b) there appears to be an association or compensatory arrangement in respect of the 
export price between the exporter or forei gn manufacturer concerned and the importer 
or the third party concerned;  or 
  (c) the export price actually paid or pa yable is unreliable for any other reason. 
 
Part D 
 
Confidential information 
 
33. Right of informants to claim confidentiality 
 
33. (1)  A person may, when submitting information to the Commission, identify information that the 
person claims to be information that: 
  (a) is confidential by its nature;  or   (b) the person otherwise wishes to  be recognised as confidential. 
 
(2) A person making a claim in terms of subsection (1) must support that claim with:   (a) a written statement in the prescribed form:    (i) explaining, in the case of information that is confidential by its nature, how the 
information satisfies the requirements set out in the definition of "information 
that is by nature confidential" in section 1 (2);  or 
   (ii) motivating, in the case of other information, why that information should be 
recognised as confidential;  and  
 
 (b) either:    (i) a written abstract of the information in a non-confidential form;  or  G/SG/N/1/ZAF/2 
Page 26  
 
  (ii) a sworn statement setting out the reasons why it is impossible to comply with 
subparagraph (i). 
 
34. Determination by Commission 
 34. (1)  If a person makes a claim in terms of section 33, the Commission must: 
  (a) in the case of information claimed to be  confidential by nature, determine whether the 
information satisfies the requirements of the definition of "information that is by nature confidential" set out in section 1(2);  or 
 
 (b) in the case of other information, de termine whether the information should be 
recognised as confidential. 
 (2) If, upon considering a claim in terms of sub section (1)(a), the Commission determines that the 
information is not, by nature, confidential:  
  (a) the Commission must invite the claima nt to submit a further motivation for the 
information to be recognised as otherwise confidential;  and 
  (b)  if the claimant submits such a motiv ation within the prescribed time, the Commission 
must reconsider the claim in terms of subsection (1)(b). 
 (3) Upon making a final determination in terms of subsection (1) or (2)(b), the Commission: 
  (a) must notify the claimant in writing of its determination;  and 
 
 (b) may, if it has determined that the inform ation is not, by nature, confidential or should 
not be recognised as being otherwise conf idential, advise the claimant that the 
information will not be considered in dete rmining the merits of an application or 
other matter in question. 
 35. Proceedings in contested claims 
 
35. (1)  A claimant affected by a determinati on of the Commission in terms of section 34(3) may 
appeal against that determination to a High Court, subject to its rules, in the prescribed manner and 
form.  
 
(2) A person who seeks access to information which the Commission has determined is, by 
nature, confidential, or should be rec ognised as otherwise confidential, may: 
  (a) first, request that the Commission mediat e between the owner of the  information and 
that person;  and 
 
 (b) failing mediation in terms of para graph (a), apply to a High Court for: 
   (i) an order setting aside the determination of the Commission;  or  
  (ii) any appropriate order concerning access to that information. 
 (3) Upon appeal in terms of subsection (1), or an  application in terms of subsection (2)(b), the 
High Court may:  
 (a) determine whether the information:  G/SG/N/1/ZAF/2 
 Page 27 
 
 
  (i) is, by nature, confidential;  or    (ii) should be recognised as be ing otherwise confidential;  and 
  (b) if it determines that it is confidential,  make any appropriate order concerning access 
to that confidential information. 
 
36. Disclosure of information 
 
36. (1)  The Commission must treat any information that  is the subject of a claim in terms of this Part 
as confidential until a final determination has been made concerning such information. 
 (2) Once a final determination has been made concer ning any information, it is confidential only 
to the extent that the final determination h as accepted it to be confidential information. 
 
(3) For the purposes of this section and section 37 , "final determination" means a decision by: 
  (a) the High Court, that in terms of the ru les of court may not be appealed, or has not 
been appealed within the time allowed;  or 
  (b) the Supreme Court of Appeal. 
 
37. Restricted use of information 
 
37. (1) (a) When making any decision in terms of this Act, the Commission may take 
confidential information into account in making its decision. 
 
 (b) If the Commission's reasons for the decision would reveal any confidential 
information, the Commission must, after publis hing its decision in the matter, provide 
a copy of the proposed reasons to the party concerned within the prescribed time before publishing those reasons. 
 
(2) A party may apply to a High Court, subject to its rules, within the time period contemplated in 
subsection (1)(b) after receiving a copy of the proposed  reasons, for an appropriate order to protect the 
confidentiality of the relevant information.  (3) If a party applies to the High Court in term s of subsection (2), the Commission must not 
publish the proposed reasons until a final determination in the matter has been made. 
 
Part E 
 
Powers of investigative search and inspections 
 
38. Appointment of investigating officers 
 
38. (1)  The Chief Commissioner may appoint any person in the service of the Commission, or any other suitable person, as an investigating officer.  
(2) An investigating officer must be provided with a certificate of appointment signed by the 
Chief Commissioner stating that the person has been appointed as an investigating officer in terms of 
this Act.  (3) When an investigating officer performs any func tion in terms of this Act or any other law, the 
investigating officer must: G/SG/N/1/ZAF/2 
Page 28  
 
 (a) be in possession of a certificate of appointment issued in terms of subsection (2);  and   (b) show that certificate to any person who is a ffected by the investigation, or if no one is 
present on the premises, affix a copy of the certificate to the premises in a prominent and visible place and proceed with the execution of the relevant function. 
 
39. Summons 
 
39. (1)  The Chief Commissioner may:  
 (a) direct the Commission, a committee or an  investigating officer to question any person 
under oath or affirmation;  or 
  (b) give directions prohibiting or restrictin g the publication of any evidence given to the 
Commission. 
 
(2) The Chief Commissioner may, at any time during an investigation in terms of this Act, summon any person who can furnish any information on the subject of the investigation, or who has 
possession or control of any book, document or othe r object that has a bearing on that subject to: 
  (a) appear before the Chief Commissione r, the Commission, a committee or a person 
authorised by the Chief Commissioner to be questioned;  or 
  (b) deliver or produce any book, document or other object referred to in the summons, to 
the Chief Commissioner, the Commission, a co mmittee or a person authorised by the 
Chief Commissioner, at a time and place specified in the summons. 
 
(3) The Commission or a committee may:    (a) accept oral submissions from any person;   (b) accept as evidence any relevant oral tes timony, document or other thing, whether or 
not: 
   (i) it is given or proven unde r oath or affirmation;  or 
   (ii) would be admissible as evidence in court;  or 
 
 (c) refuse to accept any oral testimony, document or other thing that is unduly 
repetitious. 
 (4) When the Commission or a committee hears oral  testimony in terms of subsection (3), the 
Commission or committee: 
 
 (a)  may require the witness who testified to  deliver a sworn statement of the evidence 
given, in the prescribed manner and form;  and 
  (b)  must, after the witness has complied, disregard the oral testimony of that witness and 
consider only the written statement of evidence of the witness.  G/SG/N/1/ZAF/2 
 Page 29 
 
 
40. Witnesses 
 
40. (1)  A person questioned or giving evidence in terms of section 39, must answer every relevant 
question truthfully and to the best of that person's ability.  
(2) The law regarding a witness' privilege in a crim inal case in a court of law applies equally to a 
person who is giving evidence in terms of section 39.  (3) A self-incriminating answer given or statemen t made to a person exercising powers in terms 
of this Act is not admissible as evidence against the person who gave that answer or made that 
statement in criminal proceedings, except for perj ury or an offence contemplated in section 53 or 
54(2)(d).  
41. Import and export control inspections 
 41. (1)  An investigating officer may, subject to section 38(3), conduct an inspection to determine 
whether Part B of Chapter 4 or any notice issued  in terms of section 6 are being or have been 
complied with, and for that purpose may at any reasonable time:   (a) enter upon and inspect any place, premises or vehicle in or on which any goods to 
which section 6 applies are stored, manufactur ed, supplied, handled, sold, removed, 
transported or otherwise dealt  with;  
  (b) request information about any article or document from the owner of, or person in 
control of, the premises or from any pe rson who has control of the article or 
document or from any other person who may have the information; 
 
 (c) use any computer system on the premises,  or require assistance of any person on the 
premises to use that computer system, to: 
   (i) search for any data contained in or available to that computer system;  and 
 
  (ii) reproduce any record from that data; 
  (d) attach, and, if necessary, remove from the premises for examination and safekeeping, 
anything that has a bearing on the inspection. 
 
 (e) direct any person who manufactures, s upplies, stores, handles, sells, removes, 
transports or otherwise deals with any goods  to which section 6 applies, or who has 
done any of those things with regard to such goods, or the servant or agent of such a person to: 
   (i) produce to the investigating officer any such goods or any book or other 
document in connection with such goods in the  custody or under the control of 
that person;  or 
   (ii) furnish the investigating officer with  any information in  relation to those goods 
that the investigating officer specifies; 
 
 (f) inspect any such goods, any book or docu ment, or make extracts from or copies of 
any such book or document;  
  (g) seize any such goods, any book or document that may afford evidence of any offence 
in terms of this Act;  and G/SG/N/1/ZAF/2 
Page 30  
 
 (h) leave on such goods, book or document or the container in which they are located, 
any identification mark or seal.  
 (2) Section 43 to 45 do not apply to an inspection in terms of this section.  42. Conduct of entry and search 
 
42. (1)  A person who enters and searches any prem ises must conduct the entry and search with strict 
regard for decency and order, and with regard for each person's right  to dignity, freedom, security and 
privacy. 
  
(2) During a search only a female investigating officer or female police officer may search a 
female person, and only a male investigating officer or male police officer may search a male person.   (3) A person who enters and searches pr emises must, before questioning anyone: 
 
 (a) advise that person of the ri ght to legal representation;  and 
  (b) allow that person to exercise that right.   (4) A person who removes anything from premises being searched must: 
 (a) issue a receipt for it to the owner, or person in control of, the premises;  and 
    (b) return it as soon as practicable after ach ieving the purpose for  which it was removed. 
 (5) Any person who has custody or control of goo ds, books or documents referred to in section 
41, must, subject to subsection (6), give the inv estigating officer the neces sary assistance to examine 
those goods, books or documents, when requested to do so by the investigating officer.  (6) During a search, a person may refuse to permit the inspection or removal of an article or 
document on the grounds that it contains confidential information.  
(7) If the owner or person in control of an article or document refuses, in terms of subsection (6), 
to give that article or document to the person conducting the search, the person conducting the search 
may request the registrar or sheriff of a High Cour t that has jurisdiction to attach and remove the 
article or document for safe custody until that cour t determines whether or not the information is 
confidential. 
 
(8) Section 40(3) applies to an answer given or statement made to an investigating officer in 
terms of section 41.  (9) A person authorised to conduct an entry and search may be accompanied and assisted by a police officer. 
 
(10) A police officer who is acting in terms of sub section (9), may, if entry and search is refused, 
overcome resistance to the entry and search by using as much force as is reasonably required, including breaking a door or window of the premises.  
(11) The police officer must, before using for ce in terms of subsecti on (10), audibly demand 
admission and announce the purpose of the entry, unless it is reasonable to believe that doing so may 
induce someone to destroy or dispose of an artic le or document that is the object of the search. 
 (12) The Commission may compensate anyone who suffers damage because of a forced entry 
during a search when no one responsib le for the premises was present.  G/SG/N/1/ZAF/2 
 Page 31 
 
 
43. Power to enter and search under warrant 
 
43. (1)  A judge of a High Court, regional magistrate  or a magistrate may issue a warrant to enter and 
search any premises that are within the jurisdiction of  that judge or magistrate, if, from information on 
oath or affirmation, there are reasonable grounds  to believe that anything connected with an 
investigation in terms of this Act is in the posses sion of, or under the control of, a person who is on or 
in those premises.  (2) A warrant to enter and search may be i ssued at any time and must specifically: 
  
  (a) identify the premises that may be entered and searched;  and 
  (b) authorise an investigating officer or a police officer to enter and search the premises 
and to do anything referred to in section 45. 
  
(3) A warrant to enter and search is valid until the: 
  (a) warrant is executed;   (b) warrant is cancelled by the person who issued it or, in that person's absence, by a 
person with similar authority;  
 
 (c) purpose for issuing it has lapsed;  or   (d) expiry of one month after the date that it was issued.  
(4) A warrant to enter and search may be ex ecuted only during the day, unless the person who 
issued it authorises that it may be executed at night at a time that is reasonable in the circumstances. 
  (5) A person executing a warrant must before commencing with the execution of the warrant: 
  (a) provide identification to the owner or pers on in control of the premises and explain to 
that person the purpose of the warrant;  and 
  (b) hand a copy of the warrant to that person or to the person named in it.  (6) If no one is present on the premises, affix a copy of the warrant to the premises in a prominent 
and visible place. 
  
44. Power to enter and search without warrant 
 
44. (1)  An investigating officer may, without a warrant, enter and search premises other than a 
private dwelling. 
 
(2) The investigating officer conducting the search must, before entering and searching: 
  (a) believe on reasonable grounds that a warrant would be issued under section 43 if 
applied for, and that the delay in obtai ning a warrant would defeat the object or 
purpose of the entry and search;  and 
  (b) provide identification to the owner or pers on in control of the premises and explain to 
that person the purpose of the search;  or 
  
 (c) get permission from that person to enter and search the premises. G/SG/N/1/ZAF/2 
Page 32  
 
(3) An entry and search without a warrant may be carried out only during the day, unless carrying it out at night is justifiable and necessary.  
45. Power to enter and search 
 45. (1)  Section 42, read with the changes require d by the context, applies to an entry and search 
under section 43 or 44.   (2) A person who is acting under section 43 or 44 may:  
 (a) enter upon or into those premises; 
  (b) search those premises;   (c) search any person on those premises if there are reasonable grounds for believing that 
the person has personal possession of an article or document that has a bearing on the 
investigation; 
 (d) examine any article or document that is on or in those premises that has a bearing on 
the investigation; 
  (e) request information about any article or document from the owner of, or person in 
control of, the premises or from any pe rson who has control of the article or 
document, or from any other person who may have the information; 
  (f) take extracts from, or make copies of, any book or document that is on or in the 
premises that has a bearing on the investigation; 
 
 (g) use any computer system on the premises,  or require assistance of any person on the 
premises to use that computer system, to: 
   (i) search any data contained in or available to that computer system;  and  
  (ii) reproduce any record from that data;  and 
  (h) attach, and, if necessary, remove from the premises for examination and safekeeping, 
anything that has a bearing on the investigation. 
 
(3) Section 40(3) applies to an answer given or statement made to an investigating officer in 
terms of this section.  
Part F 
 
Reviews and appeals 
 
46. Reviews 
 
46. (1)  A person affected by a determination, recommendation or decision of the Commission in terms of section 16 or 17 or this Chapter, ma y apply to a High Court for a review of that 
determination, recommendation or decision. 
 (2) Subject to item 2(3) of Schedule 2, a pers on affected by a decision of the SACU Council, 
arising in whole or in part out of a recommendation of the Commission in terms of this Act, may apply for a review of that  decision only to an in stitution designated by or in terms of the SACU 
Agreement, and in accordance with the rules of that institution.  G/SG/N/1/ZAF/2 
 Page 33 
 
 
(3) The High Court may, in a review in terms of subsection (1) or item 2(3) of Schedule 2, make 
an order for the payment of costs against any part y, or against any person who represented a party in 
the proceedings, according to the requirements of the law and fairness.  
47. Appeals 
 
47. (1)  An appeal against a decision of the High Cour t in respect of a matter within its jurisdiction in 
terms of section 46 lies to the Supreme Court of Appeal, or the Constitutional Court, only with leave to appeal, and subject to their respective rules.  
(2) The right to appeal in terms of subsection (1) is: 
  (a) subject to any law that specifically grants , limits or excludes any  right of appeal;  and 
  (b) not limited by the monetary or non-m onetary value of the matter in dispute. 
 
(3) A court granting leave to appeal in term s of this section may attach any appropriate 
conditions, including a condition that the applicant provide security for the costs of the appeal. 
 (4) Section 21(1A) to (3)(e) of the Supreme Cour t Act, 1959 (Act No. 59 of 1959), read with the 
changes required by the context, applies to an appli cation to the Supreme Court of Appeal for leave to 
appeal under this Act. 
 
CHAPTER 5 
 
ENFORCEMENT AND OFFENCES 
 
48. Variation of order 
 
48. The Commission may, of its own accord or  on application by a person affected by a 
determination, recommendation or decision of the Commission, vary or rescind that determination, 
recommendation or decision:  
 
 (a) in which there is ambiguity, or an obvious error or omission, but only to the extent of 
correcting that ambiguity, error or omission;  or 
  (b) erroneously sought in the absence of a party affected by it; 
 
 (c) made as a result of a mistake common to all of the parties to the proceedings.  
49. Standard of proof 
 
49. In any proceedings in terms of this Act, othe r than criminal proceedings, the standard of proof 
is on a balance of probabilities.  
 
50. Breach of confidence 
 
50. (1)  It is an offence to disclose any confidentia l information concerning the affairs of any person 
obtained: 
  (a) in carrying out any functio n in terms of this Act;  or 
  (b) as a result of initiating a complaint, or pa rticipating in any proceedings in terms of 
this Act. G/SG/N/1/ZAF/2 
Page 34  
 
(2) Subsection (1) does not apply to information disclosed:   (a) for the purpose of the proper administration or enforcement of this Act;   (b) for the purpose of the administration of justice; 
 
 (c) at the request of an investigating officer or member of the Commission entitled to 
receive the information;  or 
  (d) within the terms of appropriate order of access made in terms of section 35(2). 
 
51. Hindering administration of Act 
 
51. It is an offence to hinder, obstruct or u nduly influence any person who is exercising a power 
or performing a duty delegated to conferred or imposed on, that person by this Act. 
 
52. Failure to attend when summoned 
 
52. It is an offence, when summoned in terms of section 39, to:    (a) fail, without sufficient cause, to appear at  the time and place specified or to remain in 
attendance until excused;  or 
  (b) attend as required, but to:    (i) refuse to be sworn in or to make an affirmation;  or 
 
  (ii) fail to produce a book, document or other item as ordered, if it is in the 
possession of, or under the control of, that person. 
 
53. Failure to answer fully or truthfully 
 53. It is an offence, having been swor n in or having made an affirmation to: 
  (a) fail to answer any question fully and to the best of one's ability;  or   (b) give false evidence, knowing or believing it to be false. 
  
54. Other offences 
 
54. (1)  It is an offence to fail to comply with:   (a) a notice issued in terms of section 6; 
  
  (b) a condition stated in a permit issu ed in terms of Part B of Chapter 4; 
  (c) a directive given in terms of section 28;  
 (d) an interim or final order made in terms of this Act. 
 (2)  It is an offence to:   (a) improperly attempt to influence the Commission concerning any matter connected 
with an investigation;  G/SG/N/1/ZAF/2 
 Page 35 
 
 
 (b) anticipate any findings of the Commission concerning an investigation in a way that 
is calculated to influence the proceedings or findings; 
  (c) do anything in connection with an inves tigation that would have been contempt of 
court if the proceedings had occurred in a court of law; 
 
 (d) knowingly provide false information to the Commission;   (e) wilfully interrupt the proceedings in the place where a hearing is being conducted; 
 (f) act contrary to a warrant to enter and search; 
 
 (g) falsely represent oneself as an investigating officer.  
55. Penalties 
 55. (1)  Any person convicted of an offe nce in terms of this Act, is liable: 
  (a) in the case of a contravention of section 54(1), to a fine not exceeding R500 000,00 or 
to imprisonment for a period not exceeding ten years, or to both such fine and 
imprisonment;  
 
 (b) in case of a contravention of section 50,  53, 54(2)(c) or 54(2)(d), to a fine not 
exceeding R250 000,00 or to imprisonment for a period not exceeding five years, or to both such fine and imprisonment;  or 
  (c) in any other case, to a fine not exceeding R20 000,00 or to imprisonment for a period 
not exceeding six months, or to both such fine and imprisonment. 
 (2) A court convicting a person of importing or e xporting, or attempting to import or export, 
goods in contravention of a notice issued in terms of section 6, or failing to comply with a condition 
of a permit issued in terms of section 27, may declar e the goods in question, or the right of that person 
to those goods, forfeited to the State. 
 
(3) A declaration in terms of subsection (2) does not  affect the rights to the goods in question of 
any person other than the convicted person, unless it is proved that the other person should reasonably 
have known that the goods were be ing dealt with in contravention of the notice or condition in 
question. 
 
(4) Section 35 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), read with the changes 
required by the context, applies to  a forfeiture under subsection (2). 
 
56. Magistrates' Court jurisdiction to impose penalties 
 56. Despite anything to the contrary contained in any other law, a Ma gistrates' court has 
jurisdiction to impose any penalty provided for in this Act.  
57. Serving of documents 
 57. Unless otherwise provided in this Act, a notice,  order or other document that, in terms of this 
Act, must be served on or given to a person, is  regarded as properly served or given when it is: 
  (a) delivered to that person in the prescribed manner;  or  
 (b) sent by registered post to the last known address of that person. G/SG/N/1/ZAF/2 
Page 36  
 
58. Proof of facts 
 
58. In any criminal proceedings in terms of this Act, upon proof that a statement, entry, record or 
information that appears in or on a book, document , plan, drawing or computer storage medium, is 
false: 
 
 (a) the person who was in possession of, or in control of, such book, document, plan, 
drawing or computer storage medium;  and 
  (b) any person who knew or ought to have know n about the entry, record or information, 
must in the absence of evidence to the cont rary which raises a reasonable doubt, be 
presumed to be responsible for the false statement, entry, record or information. 
 
CHAPTER 6 
 
GENERAL PROVISIONS 
 
59. Regulations 
 
59. The Minister may make regulations:  
 (a) regarding the proceedings and functions  of the Commission, after consulting the 
Commission;  
  (b) to give effect to the objects of this Act; and   
 (c) on any matter that may or must be prescribed in terms of this Act. 
 
60. Guidelines 
 
60. (1)  The Commission may issue guidelines on th e Commission's policy approach to any matter 
within its jurisdiction. 
 
(2) A guideline issued in terms of subsection (1):   (a) must be published in the Gazette;  but  
 (b)  is not binding on the Commission, any SACU institution or any Court. 
 
61. Official seal 
 
61. The President may, by proclamation in th e Gazette, prescribe an official seal for the 
Commission. 
 
62. Act binds State 
  
62. This Act binds the State.   G/SG/N/1/ZAF/2 
 Page 37 
 
 
63. Transitional arrangements and repeal of laws 
 
63. (1)  Schedule 2 regulates transitional arrangements in respect of international trade administration 
within the Republic.  
(2) The laws specified in Schedule 3 are, subject to subsection (3) and Schedule 2, repealed to the 
extent indicated in the third column of that Schedule.  (3) Despite subsection (2), a regulation promulga ted in terms of the Import and Export Control 
Act, 1963 (Act No. 45 of 1963), and in force immediat ely before this Act came into operation, must 
be regarded as being a regulation made in terms of this Act. 
 
64. Short title and commencement 
 
64. (1)  This Act is called the International Trad e Administration Act, 2002, and comes into operation 
on a date fixed by the President by proclamation in the Gazette. 
 (2) Sections 4, 15(3), 16(3), 19, 20, 30, 31 and 46( 2) and item 2(3) of Schedule 2, may not come 
into operation until the SACU Agreem ent has become law in the Republic. 
 
SCHEDULE 1 
 
SACU AGREEMENT 
 
 The Sacu Agreement is to be inserted pursuan t to its final conclusion and to the relevant 
constitutional requirements pertaining to inte rnational agreements having been met. 
 
SCHEDULE 2 
 
TRANSITIONAL PROVISIONS 
 
1. Definitions 
 
1. In this Schedule:  "Board"  means the Board on Tariffs and Trade constitu ted in terms of the Board on Tariffs and 
Trade Act, 1986 (Act No. 107 of 1986);  and 
 
"matter pending"  means any matter that had been received, but not disposed of, by the Board prior 
to its close of business on the day immediatel y before this Act came into operation. 
 
2. Implementation of SACU Agreement 
 2. (1)  Before the sections listed in section 64(2) come into operation, the Commission must 
investigate, and evaluate applications received by it in terms of section 26(1)(c) or (d) in accordance 
with section 32, read with the Board on Tariffs and Trade Act, as if that Act had not been repealed. 
 (2) For the purposes of this item: 
 
 (a) section 26(1)(c) must be regarded as if it read:   "(c) the amendment of customs duties, including an amendment in respect of any of the 
following matters arising in respect of goods imported into the Republic: 
 G/SG/N/1/ZAF/2 
Page 38  
 
  (i) anti-dumping duties;    (ii) countervailing duties;  or    (iii) safeguard duties;  or"; 
 
 (b) section 26(2)(b) must be regarded as if it read:    "(b) received in terms of subsection (1)(c) or (d), in accordance with the provisions of 
item 2 of Schedule 2";  and 
 
 (c) a reference in the Board on Tariffs and Trade Act to the Board must be regarded as 
referring to the Commission. 
 (3) Until the SACU Agreement provides for a re view of decisions of the SACU Council, 
contemplated in section 46(2), a person affected by such a decision may apply to a High Court for a 
review of that decision, unless that person or a related person has sought a review of the same 
decision in terms of the law of another Member State.  
3. Composition of Commission 
 3. Despite section 8, a person who was, a memb er of the Board immediately before this Act 
came into operation, is, a member of the Commissi on, for a term that expires on the date that such 
appointment to the Board would have expire d, had this Act not come into operation. 
 
4. Pending applications and other Board business 
 
4. (1)  Any matter pending before the Board immedi ately before this Act came into operation and in 
respect of which the Board has not reported to the Mi nister in terms of section 4(1)(b) of the Board on 
Tariffs and Trade Act, 1986, must be proceeded with by the Commission in terms of this Act. 
  (2) Any matter on which the Board reported to the Minister in terms of section 4(1)(b) of the 
Board on Tariffs and Trade Act, 1986, before this Ac t came into operation must be proceeded with in 
terms of that Act as if it had not been repealed.  (3) Any summons issued by the Board in terms of section 12 of the Board on Tariffs and Trade 
Act, 1986, that is returnable after this Act comes into operation must be regarded: 
 
 (a) as a summons to appear before the Commi ssion on the date and at the time and place 
shown on the summons;  and 
  (b) as having been issued by the Chie f Commissioner in terms of this Act. 
 
(4) A permit issued or notice given in terms of  the Import and Export Control Act, 1963, and 
valid immediately before this Act came into operatio n, must be regarded as a permit issued or notice 
given in terms of this Act.  
5. Statutory references 
 
5. (1)  Any reference in any law to:   (a) the "Board on Tariffs and Trade Act, 1 986", must be regarded as a reference to this 
Act; 
  G/SG/N/1/ZAF/2 
 Page 39 
 
 
(b) the "Board on Tariffs and Trade establis hed in terms of the Board on Tariffs and 
Trade Act, 1986", must be regarded as a reference to the International Trade 
Administration Commission established in terms of this Act; 
  (c) a "report and recommendation to the Minister referred to in section 4(1)(b) of the 
Board on Tariffs and Trade Act, 1986", depe nding on the context, must be regarded 
as a reference to either: 
   (i) a "recommendation concerning a matter to the Tariff Board" in terms of section 
30;  or 
  (ii) the "determination" of a matter in terms of section 27(1)(a);  and 
  (d) an "enquiry referred to in section 12 of the Board on Tariffs and Trade Act, 1986", 
must be regarded as a reference to an "investigation" in terms of this Act. 
 
(2) A reference to the "Director-General: Trade and Industry" in section 48(2A) of the Customs 
and Excise Act, must be regarded as a refere nce to the International Trade Administration 
Commission.   
6. Status of Board Employees and others 
 6. (1)  An outstanding delegation to an officer or  employee of the Department of Trade and Industry 
in terms of section 13 of the Board on Tariffs and Trade Act, 1986, may not be continued under this 
Act.  (2) A person who, immediately before this Act came into operation, was designated in terms of 
section 14 of the Board on Tariffs and Trade Act, 1986,  as an investigating officer, or was designated 
in terms of section 3A (2) of the Import and Export Control Act, 1963, as an inspector, is not an investigating officer in terms of this Act unless appointed in terms of section 38 of this Act. 
 (3) An officer or employee appointed in terms of the Public Service Act, 1994 (Proclamation No 103 of 1994), to serve the Board immediately befo re this Act came into operation, continues to be 
an officer or employee under the Public Service Act, 1994. 
 (4) If an officer or employee referred to in subite m (3) is appointed as an officer or employee of 
the Commission, the accumulated value of that pers on's contributions to any pension fund, together 
with the accumulated value of the contributions made to that fund by the person's employer, may be 
transferred to a pension fund established for the staff of the Commission. 
 G/SG/N/1/ZAF/2 
Page 40  
 
SCHEDULE 3 
 
REPEAL OF LAWS (SECTION 63(2)) 
_________________________________________________________________________ 
 No and year of Act   Short title   Extent of repeal 
_________________________________________________________________________ 
 Act No. 107 of 1986   Board on Tariffs and   The whole      Trade Act, 1986 
_________________________________________________________________________ 
 Act No. 60 of 1992        Board on Tariffs and   The whole      Trade Amendment Act, 1992 _________________________________________________________________________ 
 
Act No. 39 of 1995   Board on Tariffs and   The whole      Trade Amendment Act, 1995 _________________________________________________________________________  Act No. 16 of 1997   Board on Tariffs and    The whole 
     Trade Amendment Act, 1997 
_________________________________________________________________________  Act No. 45 of 1963    Import and Export Control     The whole      Act, 1963 
_________________________________________________________________________ 
 Act No. 61 of 1967    Import and Export Control     The whole      Amendment Act, 1967 _________________________________________________________________________  
Act No. 8 of 1984   Import and Export Control     The whole 
     Amendment Act, 1984 _________________________________________________________________________  Act No. 44 of 1990    Import and Export Control  The whole 
     Amendment Act, 1990 
_________________________________________________________________________  G/SG/N/1/ZAF/2 
 Page 41 
 
 
CUSTOMS AND EXCISE ACT 
NO. 91 OF 1964 
 
ACT 
 
To provide for the levying of customs and exci se duties and a surcharge; for a fuel levy, the 
prohibition and control of the importation, export or manufacture of certain goods; and for matters incidental thereto. 
 
CHAPTER I 
 
DEFINITIONS 
 
1. Definitions 
 (1) In this Act, unless the context otherwise i ndicates, any reference to customs and excise or 
matters relating thereto shall be de emed to include a reference to su rcharge and fuel levy or matters 
relating thereto, and:  'agricultural distiller'  means any owner or occupier of a farm in the Republic who 
 
 (a) is licensed to keep a still on such farm;  and 
  (b) is licensed to distil spirits exclusively from prescribed fresh fruit grown by him on 
such farm;  
 
'Commissioner'  means the Commissioner for the South African Revenue Service; 
 'common customs area'  means the combined area of the Republic and territories with the 
governments of which customs union agreemen ts have been concluded under section 51; 
 'container depot'  means any container depot contemplated in section 6 (1)(hB); 
 
'container operator'  means any person providing internationa l transportation of containerized goods, 
and approved by the Commissioner, under section 96A , for operating containers in the Republic; 
 'container terminal'  means any container terminal contemplated in section 6 (1)(hA); 
 
'Controller' , in relation to any area or any matter, means the officer designated by the Commissioner 
to be the Controller of Customs and Excise in resp ect of that area or matter and includes an officer 
acting under the control or direction of any officer so designated by the Commissioner;  'crew'  includes every person (except the master or pilo t) employed in any capacity on board any ship 
or aircraft; 
 'customs duty'  means, subject to the provisions of sub section (3), any duty leviable under Schedule 1 
(except Parts 4 and 5 thereof) or 2 on goods imported into the Republic;  
'degrouping depot'  means any degrouping depot for air cargo contemplated in section 6(1)(hC) and 
licensed under the provisions of this Act; and  'degrouping operator'  means the licensee of a degrouping depot; 
 
'depot operator'  means the person having charge of any container depot; G/SG/N/1/ZAF/2 
Page 42  
 
'duty'  means any duty leviable under this Act and subject to: 
  (a) section 47B, any air passenger tax leviable under that section;  and  (b) Chapter VA, any environmental levy leviable under that Chapter.  
'entry for home consumption'  includes entry under any item in Schedule 3, 4 or 6; 
 ‘environmental levy’  means any duty leviable under Part 3 of Schedule No. 1 on any goods which 
have been manufactured in or imported into the Republic;  and  
‘environmental levy goods’  means any goods specified in Part 3 of Schedule No. 1 which have been 
manufactured in or imported into the Republic.;  'excisable goods'  means any goods specified in Part 2 of Schedule 1 which have been manufactured 
in the Republic; 
 
'excise duty'  means, subject to the provisions of subsec tion (3), any duty leviable under Part 2 of 
Schedule 1 on any goods manufactured in the Republic  'excise value'  means value as defined in section sixty-nine; 
 
'exporter'  includes any person who, at the time of exportation; 
  (a) owns any goods exported;   (b) carries the risk of any goods exported; 
 
 (c) represents that or acts as if he is th e exporter or owner of  any goods exported; 
  (d) actually takes or attempts to  take any goods from the Republic; 
  (e) is beneficially interested in any way whatever in any goods exported; 
 
 (f) acts on behalf of any person referred to in pa ragraph (a), (b), (c), (d) or (e), and, in 
relation to imported goods, includes the manuf acturer, supplier or shipper of such 
goods or any person inside or outside the Republic representing or acting on behalf of 
such manufacturer, supplier or shipper; 
 
'fuel levy'  means any duty leviable under Part 5 of Schedule 1 on any goods which have been 
manufactured in or imported into the Republic;  'fuel levy goods'  means any goods specified in Part 5 of Schedule 1 which have been manufactured in 
or imported into the Republic; 
 
'goods'  includes all wares, articles, merchandise, animals, currency, matter or things: 
 'home consumption'  means consumption or use in the Republic; 
 
'illicit goods'  in relation to imported or excisable goods, surcharge goods or fuel levy goods, means 
any such goods in respect of which any contra vention under this Act has been committed, and 
includes any preparation or other product made wholly or in part from spirits or other materials which 
were illicit goods;  
'importer'  includes any person who, at the time of importation;  G/SG/N/1/ZAF/2 
 Page 43 
 
 
 (a) owns any goods imported;   (b) carries the risk of any goods imported;   (c) represents that or acts as if he is th e importer or owner of any goods imported; 
 
 (d) actually brings any goods into the Republic;   (e) is beneficially interested in any way whatever in any goods imported;  
 (f) acts on behalf of any person referred to in paragraph (a), (b), (c), (d) or (e); 
 ‘International Trade Administration Commission’  means the International Trade Administration 
Commission established by section 7 of the Internati onal Trade Administration Act, 2002 (Act No. 71 
of 2002); 
 
'land'  includes off-loading from any vehicle; 
 'L.C.L. container'  means any container containing goods cons igned from one or more exporters to 
more than one importer;  
'manufacture' , when used as a noun, includes, in the di scretion of the Commissioner any process: 
  (a) in the manufacture or assembly of any excisable goods or fuel levy goods;   (b) in the conversion of any goods into excisable goods or fuel levy goods; 
 
 (c) whereby the dutiable quantity or value of any imported goods specified in Section B 
of Part 2 of Schedule 1, excisable goods or fuel levy goods is increased in any manner; 
  (d) in the recovery of excisable goods or fuel levy goods from excisable goods or any 
other goods;  or 
  (e) in the packing or measuring off of an y imported goods specified in Section B of  
Part 2 of Schedule 1, excisable goods or fu el levy goods, and, when used as a verb, 
has a corresponding meaning;  and 
 
'manufacturer'  has a corresponding meaning; 
 'master' , in relation to any ship, means any person (other  than a pilot) having charge of such ship; 
 'Minister'  means the Minister of Finance; 
 
'Office'  means the Office of the Commissioner for Customs and Excise mentioned in section 1A; 
 'officer'  means a person employed on any duty relating to  customs and excise by order or with the 
concurrence of the Commissioner, whether such orde r has been given or such  concurrence has been 
expressed before or after the performance of the said duty; 
 'owner'  includes any person lawfully acting on behalf of the owner; 
 'package'  means any container, wrapping or outer cover and its contents, or any bundle or single 
piece in the case of unpacked goods; G/SG/N/1/ZAF/2 
Page 44  
 
'pilot' , in relation to any aircraft, means any person having charge of such aircraft; 
 'plant'  includes vessels, utensils, appliances and fittings; 
 'prescribed'  means prescribed by this Act; 
 
'regulation'  means a regulation made by the Minister under this Act; 
 'rule'  means a rule made by the Commissioner under this Act; 
 
'ship'  means any ship, vessel or boat (including a flying boat) of any kind whatsoever; 
 'South African Revenue Service'  means the South African Revenue Service established by section 2 
of the South African Revenue Service Act, 1997;  
'State warehouse'  means any premises provided by the State for the deposit of goods for the security 
thereof and of the duties due thereon, or pending co mpliance with the provisions of any law in respect 
of such goods;  'still'  means any apparatus for, or capable of, di stilling spirits and includes any part thereof; 
 
'still maker'  means a person who manufactures or imports  stills for sale and includes a person who 
repairs stills for reward;  'surcharge'  means any duty leviable under Part 4 of  Schedule 1 on any goods which have been 
imported into the Republic; 
 
'surcharge goods'  means any goods specified in Part 4 of Schedule 1 which have been imported into 
the Republic;  'this Act'  includes any proclamation, government notice, regulation or rule issued or made or 
agreement concluded or deemed to have been concluded thereunder, or any taxation proposal 
contemplated in section 58 which is tabled in the House of Assembly; 
 'vehicle'  means any aircraft, train, motor car, van, truck, cart, barrow or other conveyance of any kind 
whatsoever, and includes the fittings, furnishings an d equipment thereof, and also pack animals and 
their harness and tackle; 
 
'Wine and Spirit Board'  means the board referred to in section 2 of the Liquor Products Act, 1989; 
 'wine grower'  means a farmer who cultivates vines on land in his own occupation and who produces 
on such land wine from grapes grown on such vines or  delivers grapes grown on such vines to a wine-
growers' co-operative agricultural society for the manufacture of wine; 
 
'worts'  means any liquid substance containing saccharin e matter before fermentation has commenced. 
 
CHAPTER VI 
 
ANTI-DUMPING, COUNTERVAILING AND SAFEGUARD DUTIES (ss 55-57A)  
 
55. General provisions regarding anti-dumping, countervailing and safeguard duties 
 
(1) The goods specified in Schedule 2 shall, upon entry for home consumption, be liable, in 
addition to any other duty payable in terms of th e provisions of this Act, to the appropriate   G/SG/N/1/ZAF/2 
 Page 45 
 
 
anti-dumping, countervailing or safeguard duties pr ovided for in respect of such goods in that 
Schedule at the time of such entry, if they are imported from a supplier, or originate in a territory, 
specified in that Schedule in respect of those goods.  (2) (a) The imposition of any anti-dumping duty in the case of dumping as defined in the 
International Trade Administration Act, 2002  (Act 71 of 2002), a countervailing duty 
in the case of subsidized export as so de fined or a safeguard duty in the case of 
disruptive competition as so defined and the rate at which or the circumstances in 
which such duty is imposed in respect of any imported goods shall be in accordance 
with any request by the Minister of Trade and Industry and for Economic Co-
ordination under the provisions of the Inte rnational Trade Administration Act, 2002. 
  (b) Any such anti-dumping, countervailing or safeguard duty may be imposed in respect 
of the goods concerned in accordance with su ch request with effect from the date on 
which any provisional payment in rela tion to anti-dumping, countervailing or 
safeguard duty is imposed in respect of those goods under section 57 A. 
 (3) (a) Whenever any anti-dumping, countervailing or safeguard duty is imposed on any 
goods under the provisions of this Chapter, the owner of any such goods stored in a customs and excise warehouse shall produce the invoice and other documents relating to such goods to the Controller not later than  the time of entry of all or any part of 
such goods for removal from such warehouse. 
  (b) The provisions of paragraph (a) shall no t apply in the case of such goods entered for 
export from a customs and excise warehouse. 
 
(4) An anti-dumping, countervailing or safegua rd duty imposed under the provisions of this 
Chapter shall not apply to any goods entered under the provisions of any item specified in Schedule 3 
or 4 unless such item is specified in Schedule 2 in respect of such goods.  (5) Notwithstanding the provisions of section 56, 56A or 57, the Commissioner may, subject to 
such conditions as he may impose in each case, exempt from payment of any anti-dumping, 
countervailing or safeguard duty, any goods which are imported in su ch circumstances or in such 
quantities that the importation of such goods does not , in his opinion, constitute  regular importation of 
such goods for trade purposes.  
56. Imposition of anti-dumping duties 
 
(1) The Minister may from time to time by notice in the Gazette amend Schedule 2 to impose an 
anti-dumping duty in accordance with the provisions of section 55 (2).  (2) The Minister may, in accordance with any requ est by the Minister of Trade and Industry and 
for Economic Co-ordination, from time to time by no tice in the Gazette withdraw or reduce, with or 
without retrospective effect and to such extent as may be specified in the notice, any anti-dumping 
duty imposed under subsection (1).  (3) The provisions of section 48 (6) shall mutatis mutandis apply in respect of any amendment, withdrawal or reduction made under the provisions  of subsection (1) or (2) of this section. 
 
56A Imposition of countervailing duties 
 
(1) The Minister may from time to time by noti ce in the Gazette amend Schedule 2 to impose a 
countervailing duty in accordance with the provisions of section 55 (2). 
 G/SG/N/1/ZAF/2 
Page 46  
 
(2) The Minister may, in accordance with any requ est by the Minister of Trade and Industry and 
for Economic Co-ordination, from time to time by no tice in the Gazette withdraw or reduce, with or 
without retrospective effect and to such extent as may be specified in the notice, any countervailing 
duty imposed under subsection (1).  
(3) The provisions of section 48 (6) shall mutatis mutandis apply in respect of any amendment, 
withdrawal or reduction made under the provisions  of subsection (1) or (2) of this section. 
 
57. Imposition of safeguard duties 
 (1) The Minister may from time to time by noti ce in the Gazette amend Schedule 2 to impose a 
safeguard duty in accordance with the provisions of section 55 (2).  (2) The Minister may, in accordance with any requ est by the Minister of Trade and Industry and 
for Economic Co-ordination, from time to time by no tice in the Gazette withdraw or reduce, with or 
without retrospective effect and to such extent as may be specified in the notice, any safeguard duty 
imposed under subsection (1).  (3) The provisions of section 48 (6) shall mutatis mutandis apply in respect of any amendment, withdrawal or reduction made under the provisions  of subsection (1) or (2) of this section. 
 57A Imposition of provisional payment 
 
(1) Whenever the International Trade Admini stration Commission publishes a notice in the 
Gazette to the effect that it is investigating the imposition of an anti-dumping, countervailing or safeguard duty on goods imported from a supplier or orig inating in a territory specified in that notice, 
the Commissioner shall, in accordan ce with any request by the said Commission, by notice in the 
Gazette impose a provisional payment in respect of  those goods for such period and for such amount 
as the Commission may specify in such request.  (2) The Commissioner shall, in accordance with any request by the said Commission, by further 
notice in the Gazette extend the period for which the provisional payment mentioned in subsection (1) 
is imposed or withdraw or reduce it with or without retrospective effect and to  such extent as may be 
specified in the request.  (3) Such provisional payment shall be paid on goods subject thereto, at the time of entry for home consumption thereof, as security for any anti-dump ing, countervailing or saf eguard duty which may 
be retrospectively imposed on such goods under secti on 56, 56A or 57 and may be set off against the 
amount of the retrospective anti-dumping, c ountervailing or safeguard duty payable. 
 (4) If no anti-dumping, countervailing or safeguard duty is imposed before expiry of the period 
for which a provisional payment in relation to the goods concerned has been imposed, the amount of 
such payment shall be refunded. 
 
(5) If the amount of any such provisional payment on the said goods:   (a) exceeds the amount of any anti-dumping, countervailing or safeguard duty 
retrospectively imposed on such goods under section 56, 56A or 57, the amount of 
the difference shall be refunded;  or 
  (b) is less than the amount of the anti- dumping, countervailing or safeguard duty so 
imposed, the amount of the difference shall not be collected. 
 
  G/SG/N/1/ZAF/2 
 Page 47 
 
 
REPUBLIC OF SOUTH AFRICA 
 
THE INTERNATIONAL TRADE ADMINISTRATION COMMISSION 
 
SAFEGUARD REGULATIONS 
 
I, MANDISI MPAHLWA, IN MY CAPACITY AS MINISTER OF TRADE AND INDUSTRY, ACTING UNDER THE POWERS VESTED IN ME  BY SECTION 59 OF THE INTERNATIONAL 
TRADE ADMINISTRATION ACT (ACT 71 OF 2002) HEREBY PRESCRIBE THAT – 
 
 
TABLE OF CONTENTS 
 
1. Application of regulations  
2. Definitions 
3. Confidentiality  
4. Investigations 
5. Public hearings 
6. Consultations  
7. SACU Industry 
8. Serious injury  
9. Threat of serious injury  
10. Causality  
11. Properly documented application  
12. Serious injury standard for initiation purposes  
13. Merit assessment  
14. Initiation and notification  
15. Responses by interested parties  
16. Non-cooperation  
17. Provisional measures  
18. Preliminary report  
19. Comments on preliminary report 
20. Final determination  
21. Definitive safeguard measures  
22. Judicial reviews  
 G/SG/N/1/ZAF/2 
Page 48  
 
PREAMBLE 
1. Parties are reminded of the following basic characteristics of safeguard measures: 
(a) A safeguard measure may only be imposed in response to a rapid and significant 
increase in imports of a product as a result of an unforeseen development, where such 
increased imports cause or threaten to cause serious injury to the Southern African 
Customs Union industry producing the li ke or directly competitive product; 
(b) A safeguard measure may be applied as a customs duty and/or a quantitative import 
restriction; 
(c) If a quantitative import restriction is u sed, it should not normally reduce imports 
below a level lower than the averag e during the preceding three years; 
(d) Safeguard measures are normally applied to  imports from all countries even if the 
imports, which cause serious harm, originate mainly or only from one country; 
(e) A safeguard measure must be progressively lib eralized at regular intervals throughout 
its period of validity; 
(f) A safeguard measure can only be in place for a period not exceeding 4 years, but the 
application thereof may be extended by up to 6 years under certain conditions, 
including that there must be a further liberalization of the measure; 
(g) Any safeguard measure imposed for a period exceeding 3 years must be reviewed at 
its halfway term. 
(h) A safeguard measure may not be re-imposed  for a certain period after a safeguard 
measure had been in place on the same product; 
(i) If SACU introduces a safeguard measure its ma y be forced to compensate its trading 
partners affected by such measure; 
(j) The investigation of the merits of a safe guard measure and the implementation of a 
safeguard measure are subject to prescribed  notifications and consultations between 
SACU, its trading partners and the World Trade Organization. 
1. Application of regulations 
1.1 Safeguard investigations are conducted in  terms of section 16 and 26 of the Main Act . 
1.2 A definitive safeguard measure may be applied only where: 
(a) the Commission finds that the product under investigation is being imported into the 
Common Customs Area of SACU in such incr eased quantities, absolute or relative to 
SACU production, and under such conditions  as to cause or threaten to cause serious 
injury to the SACU industry that produces like or directly competitive products, and as a result of unforeseen developments and of th e effect of the obligations incurred by 
the Republic (or SACU) under the World Trade Organization; 
(b) such measures are required to facilitate adjustment in the SACU industry; and 
(c) the SACU industry:  G/SG/N/1/ZAF/2 
 Page 49 
 
 
(i) has submitted a detailed plan indicating how it plans to adjust to meet import 
competition;  or 
(ii) has submitted proof of restructuring that is being undertaken. 
1.3 The Commission, in considering the recommenda tion of a definitive safeguard measure, may 
take into consideration the requirement of compensation to countries whose exports will be 
substantially affected by any safeguard measure. 
 1.4 Nothing in these regulations shall preclude the Commission from taking safeguard action 
provided for in terms of a free trade agreement c oncluded between the Republic or the SACU and any 
other country or customs territory. Any safeguard acti on so taken shall be take n in line with the terms 
and conditions agreed upon in such free trade agreement. 
 1.5 Nothing in these regulations shall preclude the Commission from taking special safeguard 
action in terms of any country’s Protocol of Accession to the World Trade Organization. Any safeguard action so taken shall be taken in line with the terms and conditions stated in the Protocol of 
Accession. 
 1.6 These regulations do not apply to agricultura l goods in terms of which the Republic (or 
SACU) has reserved its right to apply a special safe guard measure contemplated in Article 5 of the 
WTO Agreement on Agriculture.  
2. Definitions 
“Commission”  means the International Trade Admi nistration Commission of South Africa 
established in terms of section 7 of the Interna tional Trade Administration Act, 2002 (Act No. 71 of 
2002);  “deadlines”  shall be interpreted as the final date fo r submissions, responses, comments and requests 
and the like as envisaged by the different sections of  these Regulations, and shall be deemed to be at 
15h00 South African standard time on the deadline indicated, unless expressly otherwise indicated; 
 
“directly competitive product”  means a product, other than a like product, that competes directly 
with the product under investigation;  “facts available”  means the information that is availabl e to the Commission at the time of making a 
determination, whether preliminary or final provided that all requirements regarding non-
confidentiality and timely submission have been met;  “good cause”  relates to an occurrence outside the control of the participating interested party or the 
Commission and does not include merely citing in sufficient time to submit information to the 
Commission; 
 “investigation period for injury”  is the period for which it is assessed whether the SACU industry 
experienced serious injury. The investigation peri od for injury shall be clearly indicated in the 
initiation notice published in the Government Gazette . Information relating to a period subsequent to 
the investigation period shall not norm ally be taken into consideration;  
 
“like product”  means: 
 
(a) a product which is identical, i.e. alike in all respects to the product under 
consideration;  or G/SG/N/1/ZAF/2 
Page 50  
 
(b) in the absence of such a product, another product which, although not alike in all 
respects, has characteristics closely resembling those of that product under consideration. 
“Main Act”  refers to the International Trade Admi nistration Act, 2002 (Act No. 71 of 2002); 
 
"participating interested parties"  shall mean those  parties that have indicated their interest in 
participating in an investigation;  “Related parties” are parties deemed to be related for purposes of a safeguard investigation if: 
 
(a) one directly or indirectly owns, controls or  holds five per cent or more of the equity 
shares of the other; 
(b) one has the power to directly or indirectly nominate or appoint a director to the board 
of the other; 
(c) one is an officer or direct or of the other’s business; 
(d) they are legally recognised partners in business; 
(e) one is employed by the other; 
(f) they are both directly or indirectly controlled by a third person; 
(g) together they directly or indirectly control a third person; 
(h) they appear to be related by virtue of their conduct;   
(i) they are blood relatives or are related by marriage, common-law partnership or 
adoption; or 
(j) if their relationship is otherwise of such a nature that trade between them cannot be 
regarded to be at arm’s length. 
“SACU”  means the Southern African Customs Union; 
 
“SACU industry”  means the domestic producers in the SACU as a whole of the like or directly 
competitive products or those of them whose collec tive output of the like or directly competitive 
products constitutes a major proportion of the total SACU production of  those products.  
 Where a SACU producer is  
(a) related to the importer, exporter or the foreign producer; or  
(b) itself an importer of the products under investigation,  
the term “SACU industry” may be interpreted as referring to the rest of the SACU producers; 
 
3. Confidentiality 
 3.1 Interested parties providing confidential info rmation in any correspondence shall be required 
to furnish non-confidential summari es thereof.  These summaries shall: 
  G/SG/N/1/ZAF/2 
 Page 51 
 
 
(a) indicate in each instance where confid ential information has been omitted; 
(b) indicate in each instance the reasons for confidentiality; and 
(c) be in sufficient detail to permit other inte rested parties a reasonable understanding of 
the substance of the informa tion submitted in confidence. 
3.2 Non-confidential information supplied by interest ed parties, as set out in section 3.1, and all 
non-confidential correspondence between the Commissi on and participating interested parties during 
the investigation shall be kept in a public file.  3.3 Interested parties that have made themselv es known may upon request inspect the public file 
and may comment thereon within 7 days after such  information has been placed on the public file. 
The Commission will consider all substantiated comments. 
 3.4 Where information does not permit summarisation, reasons should be provided why the 
information cannot be summarised.  
3.5 The following list indicates “information that is by nature confidential” as contemplated in 
section 33(1)(a) of the Main Act , read with section 36 of the Promotion of Access to Information Act , 
2000 (Act 2 of 2000):  
(a) management accounts; 
(b) financial accounts of a private company; 
(c) actual and individual sales prices; 
(d) actual costs, including cost of production and importation cost; 
(e) actual sales volumes; 
(f) individual sales prices; 
(g) information, the release of which could have serious consequences for the person that 
provided such information; and 
(h) information that would be of significant competitive advantage to a competitor; 
(i) provided that the party submitting such info rmation indicates it to be confidential. 
3.6 All correspondence not clearly indicated to be confidential shall be treated as non-
confidential.  
3.7 The Commission may disregard any information i ndicated to be confidential that is not 
accompanied by a proper non-confidential version a nd may return such information to the party 
submitting same, if the non-confidentia l version remains deficient after such party had the opportunity 
to rectify any deficiencies.  3.8 The Commission will disregard any information indicated to be confidential that is not 
accepted as confidential by the Commission under section 34(1) of the  Main Act . 
 G/SG/N/1/ZAF/2 
Page 52  
 
4. Investigations 
 
4.1 Except as provided for in subsection 2, a safegua rd investigation shall only be initiated upon 
acceptance of a written application by or on behalf of the SACU industry, that contains sufficient 
evidence to establish a prima facie  case that the product under investigation is being imported into the 
Republic or the Common Customs Area of SACU in su ch increased quantities, ab solute or relative to 
SACU production, and under such conditions as to cau se or threaten to cause serious injury to the 
SACU industry that produces like or directly competitive products.  
4.2 The Commission may initiate a safeguard inv estigation without having received a written 
application from the SACU industry. In such cases the Commission shall proceed only if it has 
sufficient evidence to establish a prima facie  case that the product unde r investigation is being 
imported into the Republic or the Common Custom s Area of SACU in such increased quantities, 
absolute or relative to SACU produc tion, and under such conditions as to cause or threaten to cause 
serious injury to the SACU industry that prod uces like or directly competitive products. A non-
confidential version of the information the Commi ssion relies on shall be made available to all 
participating interested parties. 
 
5. Oral hearings 
 
5.1 Any participating interested party may request  an oral hearing during the investigation, 
provided the party indicates reasons for not rely ing on written submissions only. The Commission 
may refuse an oral hearing if granting such heari ng will unduly delay the finalisation of a preliminary 
or final determination.  5.2 No request for an oral hearing will be considered  more than 60 days after the initiation of the 
investigation. 
 
6. Consultations 
 
6.1 The Commission shall provide for consultations  with the representa tives of countries that 
have a substantial interest in a safeguard inves tigation within 14 days after the imposition of a 
provisional payment. 
 
6.2 Consultations entered into in terms of sub section 1 shall normally be concluded within  
30 days after the publication of the Commission’s preliminary report.  6.3 The Commission shall provide representatives of coun tries that have a substantial interest in a 
safeguard investigation 30 days for consultations prior to the applica tion or extension of a definitive 
safeguard measure with a view to, inter alia , 
 
(a) reviewing the information relating to 
(i) evidence of serious injury or thr eat thereof caused by increased imports; 
(ii) the precise description of the product involved; 
(iii) 
the proposed measure; 
(iv) the proposed date of introduction; 
(v) the expected duration of the measure; and 
(vi) the timetable for progressive liberalization;  G/SG/N/1/ZAF/2 
 Page 53 
 
 
(b) exchanging views on the measure; and 
(c) discussing ways to maintain a substantially equivalent level of concessions and other 
obligations vis-à-vis that country. 
6.4 In cases where it is proposed that a safeguard me asure be extended, the Commission shall, in 
addition to the factors contemplated under subsection 3, also provide evidence that the relevant SACU 
industry is adjusting. 
 
7. SACU industry 
 
7.1 Other than investigations initiated in terms of section 4.2, any applica tion for safeguard action 
shall be brought by or on behalf of the SACU industry. 
 7.2 An application shall be regarded as brought by or on behalf of the SACU industry if 
 
(a) at least 25 per cent of the SACU producer s by domestic production volume support 
the application; and 
(b) of those producers that express an opinion on the application, at least 50 per cent by 
domestic production volume support such application. 
7.3 In the case of industries involving an exceptionally large number of producers, the 
Commission may determine support and opposition by reference to the largest number of producers 
that can reasonably be included in the investigation or by using statistically valid sampling techniques 
based on the information available to the Commission at the time of its finding. 
 7.4 If a SACU producer withdraws the application or  its support thereof after the investigation 
has been initiated, the Commission may  
(a) terminate the investigation; or 
(b) disregard the withdrawal of support and c ontinue with its investigation as if all 
requirements in subsections 1, 2 and 3 have been met. 
8. Serious injury 
 
8.1 Serious injury shall be understood to mean a significant overall impairment in the position of 
the SACU industry. 
 8.2 In evaluating serious injury th e Commission shall consider injury information pertaining to a 
major portion of the SACU industry.  
8.3 In determining serious injury or a threat th ereof to the SACU industry the Commission shall 
consider:  
(a) the rate and volume of the increase in imports of the product concerned: 
(i) in absolute terms; or 
(ii) relative to the production and demand in SACU; and 
(b) whether there have been significant ch anges in the performance of the SACU 
industry in respect of the following potential injury factors: G/SG/N/1/ZAF/2 
Page 54  
 
(i) sales volume; 
(ii) profit and loss; 
(iii) output; 
(iv) market share; 
(v) productivity; 
(vi) capacity utilisation; 
(vii) employment; and 
(viii) any other relevant factors placed before the Commission. 
8.4 The Commission may require any additional in formation on injury from any participating 
interested party at any stage during an investigation. 
 
8.5 Each of the factors mentioned in subsection 3 sh all be considered for the like and directly 
competitive products only or, where such analysis is not possible, for the narrowest group of products for which such analysis can be made.  
 
9. Threat of serious injury 
A determination of threat of serious injury  shall be based on facts and not merely on 
allegation, conjecture or remote possibility. The chan ge in circumstances that would create a situation 
in which serious injury would be caused must be clearly imminent. 
 
10. Causality 
10.1 In considering whether there is a causal li nk between the imports of the product concerned 
and the serious injury the Commission shall consider all relevant factors including factors other than the imports of the product concerned that may ha ve contributed to the SACU industry’s injury, 
provided that a participating interested party has submitted, or the Commission otherwise has, 
information on such factor or factors. 
 
10.2 The injury caused by other factors sha ll not be attributed to the increased imports. 
 
11. Properly documented application 
 
11.1 Written complaints shall be made by or on be half of the SACU industry in the required 
format. 
 11.2 In determining whether a complaint submitted in  terms of subsection 1 constitutes a properly 
documented application, the Commission shall determine whether  
(a) the application includes such information as is reasonably available to the applicant 
on the issues contemplated in subsection 3; and 
(b) a proper non-confidential version has been submitted. 
11.3 The application shall contain the following information: 
  G/SG/N/1/ZAF/2 
 Page 55 
 
 
(a) complete description of the imported product; 
 (b) complete description of the SACU like and directly competitive product; 
 
(c) industry standing; 
 
(d) a summary of the factors on which the allegati on of serious injury or threat thereof is 
based; 
 (e) the unforeseen developments that led to the increased imports; 
 
(f) relief sought; 
 (g) efforts taken or planned to compete with the imports; 
 
(h) any other information required by the Commission. 
 
11.4 The Commission will return all applications that do not contain sufficient information, as 
required under subsection 3, to the applicant, unless such deficiencies are properly addressed within  
7 days after the issue of a deficiency letter.  Th is shall in no way prejudice the right of the SACU 
industry to submit a new application.    
 
12. Serious injury standard for initiation purposes 
 
 In determining serious injury to a SACU i ndustry the Commission shall consider whether the 
information submitted in this rega rd and relating to the factors listed in section 8 establishes a  
prima facie  case of serious injury or threat thereof. 
 
13. Merit Assessment 
 
13.1 In its merit assessment the Commission shall determine whether there is sufficient 
information to establish a prima facie  case that the SACU industry is experiencing serious injury, or a 
threat of serious injury, as a result of an unforeseen surge of imports. 
 13.2 In the event that the Commission decides not to initiate an investigation it shall inform the 
applicant concerned accordingly and supply it w ith a full set of reasons for its decision. 
 14. Initiation and notification 
 
14.1 An investigation shall be formally initiated th rough publication of an initiation notice in the 
Government Gazette . 
 14.2 The initiation notice shall contain at least the following information: 
 
(a) the identity of the applicant; 
 (b) a detailed description of the product under investigation, including the tariff 
subheading applicable to the product; 
 
(c)
 a detailed description of the like or  directly competitive SACU product; 
 (d) a summary of the factors on which the allegati on of serious injury or threat thereof is 
based; 
 G/SG/N/1/ZAF/2 
Page 56  
 
(e) the unforeseen developments that led to the increased imports; 
 (f) the address to which representations by interested parties should be directed; and 
 (g) the time frame for responses by participating interested parties. 
 
14.3 If the Commission, during its investigation, finds that the subject product is imported under a 
tariff subheading not initially indicated to be in the scope of the investigation, it may include the 
imports of such subject product in its investigation.  
14.4 Within 7 days after initiation the Commission shall: 
 
(a) notify the representative of each country of origin and of export that may be 
significantly affected by a safeguard measure  of the initiation of the investigation; 
and 
 
(b) supply each country contemplated in paragraph (a) with a copy of the non-
confidential version of the application. 
 
15. Responses by interested parties 
 15.1 All interested parties will receive 20 days from the initiation of an investigation to comment 
on the application.  15.2 The Commission may grant an extension for the submission of comments on good cause 
shown. 
 
15.3 The Commission may prescribe the format in which submissions should be made. 
 15.4 All submissions shall be made in both hard copy and in electronic format, unless the 
Commission has agreed otherwise in  writing. Failure to comply with this provision may result in the 
submission being regarded as deficient. 
 
15.5 The Commission may request any additional info rmation from any participating interested 
party at any stage of the investigation, and may prescribe a reasonable deadline for the submission of 
such information.  16. Non-cooperation 
 
 In the event that parties that could have been  participating interested parties do not cooperate 
in the investigation, the Commission may rely on the facts available. 
 
17. Provisional measures 
 
17.1 The Commission may request the Commissioner fo r the South African Revenue Service, in 
terms of section 57A of the Customs and Excise Ac t, 91 of 1964, to impose a provisional payment as 
soon as the Commission has made a preliminary determination that  
(a) there are critical circumstances where a delay would cause damage that would be 
difficult to repair; and 
 (b) there is clear evidence that increased imports  have caused or are threatening serious 
injury. 
  G/SG/N/1/ZAF/2 
 Page 57 
 
 
17.2 Provisional payments may be imposed for a maximum period of 200 days. 
 17.3 The period for which provisional measures are in force shall be regarded as part of the total 
duration for which safeguard measures are in force. 
 
17.4 The Commission will provide an opportunity for consultations with participating interested 
parties following the imposition of provisional measures. 
 
18. Preliminary report 
 18.1 In the event that the Commissi on requests the imposition of a provisional safeguard measure, 
as contemplated in section 17, the Commission shall make available a public report within seven days of the publication of its preliminary finding. 
 18.2 The preliminary report shall contain at least the following information: 
 
(a) identity of the applicant; 
 (b) a full description of the product under investigation, as well as the directly 
competitive products, including the tariff classifications; 
 
(c) date of the Commission’s decision to initiate the investigation; 
 (d) initiation date and notice number; 
 (e) date of the Commission’s preliminary determination; 
 
(f) an evaluation of the inju ry factors considered;  
 (g) an evaluation of the causality factors considered; 
 (h) the unforeseen developments that lead to the increased imports; 
 
(i) the Commission’s finding, including the pr eliminary safeguard measure requested; 
and 
 (j) while preserving the requirements of confiden tiality, all relevant issues of fact and 
law considered by the Commission in reaching its preliminary determination. 
 18.3 The Commission shall forward the preliminary report direct to all participating interested 
parties unless the number of participating in terested parties makes this impracticable. 
 
19. Comments on preliminary report 
 
19.1 All participating interested parties shall receive  14 days, from the date a preliminary report is 
made available, to comment in writing. 
 19.2 The Commission may grant participating interested parties an extension on good cause 
shown. 
 
20. Final determination 
 
20.1 In its final determination the Commission shall consider whether: 
 G/SG/N/1/ZAF/2 
Page 58  
 
(a) the SACU industry is experiencing serious injury or threat of serious injury, as 
contemplated in sections 8 and 9; 
 
(b) there were increased imports; 
 
(c) any increase in imports can be attributed to unforeseen developments; 
 (d) the increased imports resulted in serious injury or threat thereof to the SACU 
industry; 
 
(e) other factors contributed significantly to the serious injury; and 
 (f) the imposition of a safeguard measure would be in the public interest. 
 20.2 In determining whether a safeguard  measure would be in the public interest the need to take 
note of the trade distorting effect of the surge in imports and the need to restore effective competition 
shall be given special consideration.  20.3 The Commission shall issue a public report indica ting the reasons for its final determination 
within seven days of the publica tion of the final determination. 
 
20.4 The public report referred to in subsection 3 shall reflect 
 
(a) all issues contemplated under section 8.2;  
 (b) unforeseen developments; 
 
(c) public interest; and 
 (d) the basis of its recommendation for 
 
(i) a definitive safeguard measure; or 
 
(ii) terminating the investigation. 
  
21. Definitive safeguard measures 
 21.1 A safeguard measure shall be applied only: 
 
(a) to the extent necessary to prevent or reme dy serious injury or threat thereof; and 
 (b) to facilitate adjustment of the SACU industry. 
 
21.2 The SACU industry shall be required to submit a plan indicating how it will adjust to increase 
its competitiveness. Such adjustment plan should reach the Co mmission no later than 60 days after 
initiation of the investigation in the Government Gazette . 
 21.3 The Commission may grant an extension for th e submission of an adjustment plan on good 
cause shown. 
 21.4 If the Commission proposes applying or extendi ng a safeguard measure it shall provide the 
representatives of countries having a substantial interest as exporters  of the product under investigation 
30 days for consultations with a view to, inter alia : 
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(a) reviewing the information relating to the existence of serious injury or the threat thereof 
caused by increased imports, the precise description of the product involved, the 
proposed measure, the proposed date of in troduction, the expected duration of the 
measure and the timetable for progressive liberalisation; 
 
(b) exchanging views on the measure; and 
 (c) reaching an understanding on ways to mainta in a substantially equivalent level of 
concessions and other obligations to that  existing under GATT 1994 between SACU 
and the exporting countries which would be affected by such a measure. 
 
21.5 The Commission may recommend a definitive safeguard measure in the form of: 
 
(a) a customs duty; 
 
(b) a quantitative restriction; or 
 (c) a combination of the measures contemplated under paragraphs (a) and (b). 
 21.6 A definitive measure may remain in place for a period not exceeding four years, unless 
extended in terms of subsection 7. 
 
21.7 A definitive measure may be extended by a period of up to six years where the Commission 
finds that:  
(a) the lapse of the safeguard measure imposed in terms of subsection 6 is likely to lead 
to the recurrence of serious injury; and 
 (b) there is evidence that the SACU industry is adjusting. 
 21.8 Where a definitive safeguard measure is im posed for a period exceeding one year the 
Commission shall recommend how the measure should be liberalised at regular intervals over the 
period that the measure is applied. 
 21.9 Where the application of a safeguard measur e is extended in terms of subsection 8 the 
safeguard shall continue to be further liber alised over the period of its application. 
 
21.10  Where a definitive safeguard measure is impo sed for a period exceeding three years, the 
Commission shall self-initiate a review of the measur e at the halfway mark of the application of the 
safeguard measure to determine whether:  
(a) the continued application of the safeguard measure is required; 
 
(b) the safeguard measure cannot be liberalised at an increased pace; and 
 (c) the SACU industry is implementing its adjustment programme. 
 
21.11  If a quantitative restriction is used, such a m easure shall not reduce the quantity of imports 
below the level of a recent period which shall be th e average of imports in the last three representative 
years for which statistics are available, unless clea r justification is given that a different level is 
necessary to prevent or remedy serious injury.  
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21.12  In cases in which a quota is allocated among supplyi ng countries, the Commission may seek 
agreement with respect to the allocation of shares  in the quota with all such countries having a 
substantial interest in supplying the product concerned.   
 21.13  In cases in which the method contemplated in s ubsection 12 is not reasonably practicable, the 
Commission shall allot to exporting countries having  a substantial interest in supplying the product 
shares based upon the proportions supplied by such exporting countries during a previous representative 
period, of the total quantity or va lue of imports of the product, due account being taken of any special 
factors which may have affected or may be affecting the trade in the product. 
 
21.14  The Commission may depart from the pr ovisions of subsection 13 provided that: 
 
(a) the Commission finds the presence of seriou s injury and not only a threat of serious 
injury; 
 
(b) consultations are conducted w ith such exporting countries; 
 (c) clear demonstration is provided to the Commission that imports from certain countries 
have increased in disproportiona te percentage in relation to the total increase of imports 
of the product  concerned in the representative period; 
 
(d) the reasons for the departure from the prov isions in subsection 13 are justified; and 
 (e) (i) the conditions of such departure are equitable to all suppliers of the product 
concerned; or 
(ii) the suppliers failed to cooperate in the investigation. 
 
21.15  A safeguard measure imposed in terms of subsection 14 may not be extended beyond the initial 
period for which it was imposed. 
 
21.16  A safeguard measure may not be applied again to  the import of a product that has been subject 
to a safeguard measure unless a peri od of time equal to half that during which such a measure had been 
previously applied, has lapsed, provided that the period of non-application is  at least two years.  
 21.17  Notwithstanding the provisions of subsection 16,  a safeguard measure with a duration of 
180 days or less may be applied ag ain to the import of a product if: 
  (a) at least one year has elapsed since the date of introduction of  a safeguard measure on 
the import of that product;  and 
 
 (b) such a safeguard measure has not been a pplied on the same product more than twice in 
the five-year period immediately preceding th e date of introduction of the measure. 
 21.18  Safeguard measures shall not be applied against a product originat ing in a developing country as 
long as its share of imports of the product concerne d in SACU does not exceed three per cent, provided 
that developing countries with le ss than three per cent import shar e collectively account for not more 
than nine per cent of total imports of the product concerned. 
 21.19  Other than as contemplated in subsection 18 a sa feguard measure shall be applied to all imports 
of the subject product irrespective of its source.  
21.20  A developing country exempted from the application of a safeguard measure in terms of 
subsection 18 may become subject to such safegua rd measure without a new investigation being  G/SG/N/1/ZAF/2 
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conducted if, subsequent to the imposition of the safe guard measure, its share of the imports increases 
to a level that exceeds three percent of the total import volume in the original investigation period. 
 
22. Judicial reviews of preliminary decisions 
 
Participating interested parties may challenge preliminary decisions or the Commission’s 
procedures prior to the finalisation of an inves tigation in cases where it can be demonstrated that 
 
(a) the Commission has acted contrary to the provisions of the Main Act  or these 
regulations; 
 
(b) the Commission’s action or omission has resulted in serious prejudice to the 
complaining party; and 
 (c) such prejudice cannot be made undone by th e Commission’s future final decision. 
 
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