 
  WORLD TRADE  
ORGANIZATION  G/ADP/Q1/ZAF/4 
G/SCM/Q1/ZAF/4 23 April 2004 
 
 
(04-1827) 
Committee on Anti-Dumping Practices Committee on Subsidies and Countervailing Measures Original:   English 
 
 
 
NOTIFICATION OF LAWS AND REGULATIONS UNDER 
ARTICLES 18.5 AND 32.6 OF THE AGREEMENTS 
 
Replies to Questions Posed by the EUROPEAN COMMUNITIES
1 
Regarding the Notification of SOUTH AFRICA2 
  
 The following communication, dated 20 Apr il 2004, has been received from the Permanent 
Mission of South Africa. 
 
 
_______________ 
 
 A. I
NTERNATIONAL TRADE ADMINISTRATION ACT NO. 71 OF 2002 
Q1. Section 32 (6) (see also Section 10.1 (c) of the Anti-Dumping Regulations):  
  Could South Africa please clarify in whic h circumstances, other than were the exporter 
and the importer or a third party are related, it would consider the export price unreliable, in 
the light of Article 2.3 ADA? 
 
Reply
 
  South Africa would regard an export price unreliable where the resale price of the imported product is lower than the import price thereof, i.e. where the imported product is sold at a loss, unless 
the importer can prove that it can sell the product at such low prices without support from the 
exporter.  
Q2. Sections 39-40, 42-45:
  Are the provisions on summons, witnesses, entry and search, and 
the corresponding sanctions laid  down in Chapter 5, also applicable to Anti-Dumping 
proceedings;  if so, to which parties? 
 Reply
 
  Sections 39-40 and 42-45 relate to import and export control provisions and not to anti-
dumping procedures. 
 
                                                     
 
1 G/ADP/Q1/ZAF/2 – G/SCM/Q1/ZAF/2. 
2 G/ADP/N/1/ZAF/2 – G/SCM/N/1/ZAF/2. G/ADP/Q1/ZAF/4 
G/SCM/Q1/ZAF/4 Page 2 
 
 
 B. C
USTOMS AND EXCISE ACT NO. 91 OF 1964 
Q1. Section 57:   provides that whenever the Commission publishes a notice to the effect that 
it is investigating the imposition of an anti-dumping duty, the Commissioner shall  impose a 
provisional payment.  Could South Africa pl ease clarify how the apparent automaticity of 
provisional duties whenever an investigation is initiated, relates to Article 7 ADA?  In this 
respect it is also noted that Section 33 of the Anti-Dumping Regulations does not appear to include all provisions of Article 7 ADA. 
 
Reply
 
 
 Section 57 of the Customs Act provides that the Commissioner for the South African Revenue Services shall impose a provisional payment “in accordance with any request” by the Commission. The Commission will only request the imposition of a provisional payment where it has made an affirmative preliminar y finding of injurious dumping. 
 
C. A
NTI-DUMPING REGULATIONS –NOTICE 3197  OF 2003 
Q1. Section 1:   The definition of related parties appears to include some situations where it is 
unclear whether there is a relation of control between the parties involved and whether this relationship is such as to affect the behaviour of the parties.  Could South Africa clarify, in this 
respect, whether the definition of related parties also applies in the context of Article 4 ADA, in 
particular in the light of footnote 11 of the ADA?  How are the provisions of (h) “appear to be 
related by virtue of their conduct” and (j) “if thei r relationship is otherwise of such a nature 
that trade between them cannot be regarded to be at arm’s length” interpreted? 
 
Reply
 
 
 Footnote 11 of the ADA applies exclusively to  the determination of the domestic industry. 
The definition provided in Anti-Dump ing Regulation 1 (ADR) is not lim ited in its application to the 
determination of the domestic industry, where the provisions of the ADA will be taken into 
consideration, but also applies to the determina tion of the normal value and export price, where a 
relationship may affect prices. 
 
Q2. Section 2.6 : provides that the Commission will disregard information that is not 
accepted as confidential by the Commission.  Would the Commission nevertheless use such 
information if it can be demonstrated from appr opriate sources that the information is correct, 
in accordance with Article 6.5.2 ADA? 
 Reply
 
 
 In terms of South African jurisprudence all pa rties have access to all information held by the 
State, unless such information would be to the detr iment of the person supplying such information. A 
reading of section 34(1) of the ITA Act, to which ADR 2.6 relates, clearly indicates that this is only 
the situation where a party refuses to supply the in formation in a non-confidential version and where 
the Commission finds that there are no proper gr ounds for confidential treatment. The Commission’s 
decision may be challenged in Court during the investigation proceedings. Section 37(1) of the ITA Act also explicitly provides that the Commission may take confidential informa tion into consideration 
in its deliberations. 
 
Q3. Section 3.3:
  Would South Africa, in accordance with Article 5.6 ADA apply the 
provision on self-initiation only in special circumstances?  G/ADP/Q1/ZAF/4 
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 Page 3 
 
 
  
Reply  
  To date South Africa has never self-initiated an investigation and it is not contemplated that it 
will do so in future. However, in line with the provi sions of the ADA, South Africa retains the right to 
do so under special circumstances.  
Q4. Section 8.2 (a):
  Could South Africa please clarify whether sales below cost will 
nevertheless be considered if the prices provide for recovery of costs within a reasonable period 
of time, in accordance with Article 2.2.1 ADA?  
Reply
 
  The chapeau of ADR8.2 clearly provides that sal es “may” be considered to be not in the 
ordinary course of trade under the circumstances indicated. The provisions of ADA 2.2.1 will be 
taken into consideration in the de termination of whether such sales  should be considered for normal 
value purposes.  
Q5. Section 8.2 (c):
  How does South Africa interpret sa les which “do not reflect commercial 
quantities”, also in the light of Article 2.2.1 ADA? 
 Reply
 
  Sales not reflecting commercial quantities will have to be determined on a case-by-case basis, 
but will only indicate either extremely small or extr emely large volumes, i.e. sales that do not reflect 
normal market activities. 
 
Q6. Section 8.11:
  Could South Africa please clarify whether the costs of a company would 
be automatically rejected if they were not historic ally used by the company of if a company did 
historically not use any cost allocation? 
 Reply
 
  ADR8.11 provides the general conditions and does not prevent the Commission from using 
information not historically based, provided it can be shown that such costs accurately reflect the 
actual costs. 
 
Q7. Section 8.12 (a) and (b) (ii), Section 8.13 (a) and (b):
  please clarify whether those 
provisions refer to the data of the ex porter or producer under investigation. 
 
Reply  
 
 ADR 8 relates to normal value, and ADR8.11 - 8.13 to the constructed normal value. This 
will, therefore, normally reflect the costs and prof it of the producer in the exporting country, but may 
be extended to the exporter where the foreign pro ducer and the exporter are not the same party. 
 
Q8. Section 8.13 (c):   please clarify how this provision articulates with Article 2.2.2 (ii) ADA 
 G/ADP/Q1/ZAF/4 
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 Reply
 
  ADR8.13(c) accurately reflects ADA 2.2.2(ii) ex cept that the word “weighted” is not included 
before the word “average”. In practice, when cal culating the “average”, South Africa will calculate 
the “weighted average”. 
 
Q9. Section 8.12 (d):
  please clarify whether a profit cap is applied in accordance with 
Article 2.2.2 (iii) ADA.  
 Reply
 
  While not specifically stated in ADR 8.13(d), South Africa will apply such profit cap in its calculations.  Q10. Are there any provisions on currency conversions in accordance with Article 2.4.1 
ADA? 
 
Reply
 
  Neither the ITA Act nor the ADR contain any provisions on currency conversions. South 
Africa will therefore apply the provisions containe d in ADA 2.4.1, including footnote 8, in its 
currency conversions.  
Q11. Section 12.2
 deals with the situation where different products are under investigation.  Is 
this a reference to cases where there are different product types/models, or to different products 
concerned (e.g. CD players and DVD players)?  
Reply
 
  This relates to cases where different product ty pes or models are under consideration. Where 
distinctly different products are unde r investigation, separate investig ations will be conducted, even 
where such investigations may run concurrently and involve the same parties. 
 
Q12. Section 13.1:
  Would the investigating authorities in South Africa also examine, as part 
of the injury determination, whether there has been a significant increase in dumped imports, 
pursuant to Article 3.2 ADA? 
 
Reply  
  No investigation will be initiated unless it has been shown that there has been a significant 
increase in dumped imports. However, this relates to ca usality and not to injury per se, and is reflected 
in ADR 16.1(a). 
 
Q13. Section 14.2 (d):
  Would the investigating authority also examine in this respect whether 
the demand for further imports would likely increase, in accordance with 3.7 (iii) ADA? 
 
Reply  
 
Although placing more emphasis on price effects, ADR14.2(d) proposes to give effect to ADA 3.7(iii).   G/ADP/Q1/ZAF/4 
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 Q14. Could South Africa please confirm th at in the case of Sections 12.3 and 16.2  the 
application shall be rejected and the investigat ion terminated promptly, in accordance with 
Article 5.8 ADA? 
 Reply
 
  South Africa will terminate promptly all inves tigations where either de minimis margins or 
negligible import volumes are found.  Q15. Section 29.5 and Section 32.4:
  Would these provisions be applied in the light of Annex 
II ADA, in particular points 2 to 5?  
Reply
 
 
 ADR29.5 clearly provides that submissions must  be made “in both hard copy and electronic 
format, unless the Commission has agreed otherwise …”  This indicates that the Commission will not 
place an undue burden on exporters and that  it will comply with ADA Annex II 2-5. 
 
Q16. Section 32.3:   Has South Africa already applied this provision, which allows a split in the 
investigation between cooperating and non-co operating exporters?  How does it work in 
practice?  
Reply
 
  South Africa has not yet applied this provision. 
 
Q17. Section 36:
  Could South Africa confirm that regarding provisional measures the 
maximum time-periods set out in Article 7.4 ADA are respected? 
 
Reply  
 
 ADR33 sets out the provisions with regards to the application of provisional measures. 
ADR 33 and 36 are consistent with the provisions of ADA 7.4.  
Q18. Are industrial users and consumer organ isations given the opportunity to provide 
information in Anti-Dumping investigations, in accordance with Article 6.12 ADA? 
 
Reply
 
  ADR 1 defines “interested parties” and, a lthough not listing industrial users and consumer 
organisations, provides that the Commission may accep t any other party as an interested party. This 
would include inter alia  labour unions, industrial users and consumer organizations. The 
Commission’s practice is to have a public file, whic h is open to inspection, including to industrial 
users and consumer organizations, to obtain the necessary information to place them in a position to 
properly comment on the investigation.  
Q19. Section 39.1:
  Would the South African investigating authority after acceptance of a 
price undertaking nevertheless complete the invest igation at the request of the exporter, in 
accordance with Article 8.4 ADA? 
 G/ADP/Q1/ZAF/4 
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 Reply
 
  South Africa has not yet accepted any price undert akings. However, it is envisaged that South 
Africa will always complete an investigation afte r a price undertaking has been accepted, and not only 
on request of the exporter. 
 
Q20. Section 60.7 (c):
  Could South Africa please clarify in more detail in which 
circumstances this provision applies?  Would it apply if an anti-dumping was imposed after a 
tender took place, but before the contract  was awarded?  What would the practical 
consequences be for the tender?  
Reply
 
  An anti-dumping duty can only be levied upon entry of a product. Accordingly, it can only be 
determined whether absorption takes place after the product has physically entered the country. If it is 
found that the anti-dumping duty was not passed on to the buyer, it may be found that absorption has 
taken place. If an affirmative finding is made in this regard, an additi onal anti-dumping duty, to 
counter the extent of the absorption, may be imposed on future shipments of the product under consideration.  Q21. Section 65:
  Are the time-limits concerning refunds, as set out in Article 9.3.2 ADA 
applied? 
 
Reply  
 
 South Africa will adhere to the time-limits stipulated in ADA 9.3.2. 
 
Q22. Is access to the non-confidential file ensured in accordance with Article 6.4 ADA? 
 
Reply  
 
 All parties have access to the public files. The public files contain copies of all non-
confidential information received during the course of an investigation.  
Q23. Could South Africa please clarify wheth er certain provisions of the ADA, which it has 
not explicitly incorporated in its Anti-Dumping Regulations, are directly applied (e.g. 9.2, 9.4, 
10.4, 10.6-10.8, 12.2-12.3)?  
Reply
 
  ADA 9.2 – duties are collected in the amounts specified for each expor ter separately, except 
where a residual duty is imposed on non-cooperati ng exporters. The application is non-discriminatory 
and relates to all sources found to be dumping and causing material injury. 
 
 ADA 9.4 – South Africa has used sampling of exporters in only one case to date and then 
fully applied the provisions of ADA 9.4.  
 10.4 – South Africa will not apply a defin itive anti-dumping duty retroactively where the 
decision is based on a threat of material injury, ex cept where it can be shown that material injury 
would have been caused during the course of the i nvestigation had it not been for the imposition of 
the provisional payment.   G/ADP/Q1/ZAF/4 
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  10.6-10.8 – South Africa cannot impose any duties retroactively to a date prior to the 
application of the provisional payment.   12.2-12.3 – ADR28 and 34 sets out the requirements with respect to information pertaining to 
initiations and preliminary decisions. A detailed report, setting out all issues of fact and law, is also 
published following the finalisation of an investig ation. The same applies to reports in review 
proceedings.  
Q24. Could South Africa please clarify in general to what extent the Anti-Dumping 
Regulations apply to SACU or to the territory of South Africa?   
 At present any anti-dumping duty South Africa im poses applies to all imports into SACU. For 
this reason, in determining material injury, such in jury is considered in respect of SACU and not only 
South Africa. 
 
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