International Trade Administration Act, no. 71 of 2002

1. ( 1 A reference in this Act to an Article by number isa reference to such Articlein SACU the A,Oreement. 5 ( 2 ) In this Act unless the context indicates otherwise- x.. "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 Adm1ni:tration Commission estab- 1 0 lished by section 7: "committee" means a committee of the Commission: "Common Customs Area" means the combined areas of the Member States of 7 SAW: "confidential information" information means that is- 15 ( aJ b!, nature. confidential: or f h / recognised in terms of Part D of Chapter 4. to be otherwise confidential; "countervailingduty"means a customsdutyimposedtooff-sethebenefit conferred by a subsidy: "Customs and Excise Act" means the Customs and Excise Act, 1964 (Act No. 9 1 70 of 1961): "customs duty'' means customs duty as defined in section 1 of the Customs and Excise Act: "dumping" means the introductionof goods into the commerce of the Republic or the Common Customs Areat an export price contemplatedin section 32(2)(a)that 25 is less than the normal value. as defined in section 33(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 u'ares.articles.merchandise,animals,currency.material or objects of 30 Lvhatsoever nature: and 0 7 1 in relation to an!' particular goods. an!' other goods thatare reasonably capable of beingsubstitutedforthem.takingintoaccountordinarycommercial practice and geographical. technical and temporal constraints; "import" means to bring goods. or cause them to be brought, from outside the 35 Republic into the Republic: "information that is by nature confidential" means trade, business or industrial information that- ( a ) belongs to a person or the State: (h,and has a value: economic particular 40 ( c ) is not general11 available to or known by others. and the disclosure of which could- (iI 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; 45 "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; so "XationalBody"means a body or institutionestablished or designatedby 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"includesland or anybuilding.structure,vehicle,ship,boat,vessel, 55 aircraft or container; "prescribed" means prescribed by regulation in terms of this Act; "Public Finance Management Act" means the Public Finance Management Act, 1999 (Act No. I of 1999); "regulation" means a Act; regulation this under made 60 IO No. 23267 GOVERNMENT GAZETTE. 22 JANUARY 2003 .4ct KO.71.2002 1YTERN.ATIONAL TRADEADMINISTRATION ACJ. 2001 *> "regulator!.authorit!." meansanentityestablished in terms of nationalor provinciallegislationresponsibleforregulating an industryor a sector of an industry: "SACU" means the Southern African Customs Union established by Article 3: Agreement" "SACU means- 5 ( a ) the agreement establishing SACU. and attached as Schedule 1 to this Act; and ( h ) any annex t o that agreement de\.eloped by the SACU Councilas contemplated in Article -12. once such an annex has become law in the Republic; "SACUCommission"meanstheCustomsUnionCmmissionestablished by Article 7: 10 "SACU Council" means the Council of Ministers established by Article 7: "SACU Tribunal" means the Tribunal established by Article 7: "safeguardmeasure"means a remed! or proce!ure for use inresponseto disrupti\ e competition: "Tariff Board"meanstheSACU Tariff Boardestablished by PIrticle 7: and 15 "this Act" includes the regulations and Schedules. other than Schedule 1. ( 3 )This Act must be interpreted- ( r r ~ in a manner that is consistent M i t h the Constitution and $\res effect to the object set out i n section 2: and (11) i n a manner- that is consistent \\.ith thepurposesandintentoftheSACU 30 Agreemmt. Object of Act

2. The object of the Act is to foster economic growth and development in order to raise incomes and promote investment and employment in the Republic and within the CommonCustom\Area by establishin: ancfticientandeffectivesystem for the 35 administration of international trade subject to thisAct and the SACU a= oreement. Application of Act

3. ( 1 i Subject to \ubsection ( 2 ) . this Act applies t o all economic activity within. or having an effect within. the Republic. ( 2 ) Sections 0. 261 1 ) ( a i and 2 6 ( 3 ) ! a ~ and Part B of Chapter 4 do not apply to the 30 export or import of good5 in respect of \vhich the Ministerof Defence has issueda notice in terms of section 4C(1 )ill) of the Armaments Development and Production Act,1968 (Act No. 57 of I9hP 1. prohibiting the- export or import of those goods: or t h ) export or import of those y m d s except under authorit) of and in accordance 35 with the conditions stated i n a pemlit referred to in section 3C(l )(u)(ii) or (1.i) of that Act. CH.4PTER 2 TRADE POLICY lmplementation of SACK Agreement 30

4. ( 1 ) The Minister is the head representati\,e of the Republic to the SACU Council. ( 2 )The Minister may- ( a ) assign representati1,es of the Republic to an!. institution constituted by or in terms of the SACU Agreement: and ( h ~exercise an! right of theRepublic in terms of theSACUAgreementto 45 nominate or appoint persons to fill an! ofice constituted by or in terms of the SACU A =oreement. 12 No. 24287 GO\'ERNMENT GAZETTE. 72 JANUARY 2003 *+ Act Nu. 71.2002 INTERSATIONALTRADEADMINISTRATION ACT. 2002 (3) The Minister is the head representativeof the Republic in any consultations with Member States individually or collectively as contemplated in the SACU Agreement and represents the Republic in any consultations arising in termsof Article 13(3)and ( 5 ) and Article 15. (4) TheCommission may. in accordancewiththisAct.exercisetheright of the 5 Republic to grant a rebate of customs duties. as contemplated in Article 20(3). (5) SACU is recognised as ajuristicperson for all purposes of lawwithinthe Republic. ( 6 ) The klinister may refer an): decision of the SACU<ouncil of Ministers that concernscustomsdutiesorothermeasurestotheMinister of Financeasarequest 10 contemplated in the Customs and Excise Act. ( 7 ) The Minister must. by notice in the Gu:rrtc, publish- ( a ) for information any recommendation of the Tariff Board: and 0 1 , an!' decision by the SACU Council of Ministersih'at directly affects the import of export goods into. or of goods from. Republic. the 15 (8) TheMinister ma)'. b!. notice in the Garerrr. publish an!' policymandate. procedure. guideline formulated b! the SA4CUCouncil of Ministers o r application being dealt uith by a SACU Member State. Trade policy statements and directives

5. The hlinister ma!. b!, notice in the Grrzetre and in accordance with procedures and 20 requirementsestablished by theConstitution or any otherrele\.antlaw,issueTrade Polic! Statements or Directives. Rlinister's power to regulate imports and exports

6. ( I 1 The Minister may. by notice in the Garerre. prescribe that no goods of a specified class or kind. or no goods other than poods of a specified class or kind. may 25 be- t u ) importedintotheRepublic: ( h i imported into th: Republic. except under the authority of and in accordance \vith the conditions stated in :I permit issued by the Commission: ( c i exported from the Republic: or 30 ( d l exported from the Kepublic. except under the authority of and in accordance Lvith the conditions slated in a permit issued bj. the Commission. ( 2 ) For the purpose of subsection ( 1 goods may be classified according to- f u ) theirsourceororigin: or (11) intermediate their final destination: 35 (c) the channels along which they are transported: ( d l the manner in which they are imported or exported: I C ) the purposes for Lvhichthe! are intended to be used: !f) the methods or processes h): arhich they are produced: C S I theuse of non-renewablenaturalresources in theirproduction.andtheir 30 life-cycle impact on the natural environment: or (17) any other classification methods determined b): the Minister. 13)A notice issued in terms of this section applies to an) person who. at the time of the import of particular goods into the Republic. or the export of particular goods from the Republic- 45 ( 0 ) ownsthosegoods: (hi carries the risk of those goods: (c) takes or attempts to bring those goods into. or takes or attempts to take those zoods from. the Republic: ( d ) i n anymannerwhatsoeverhasabeneficialinterest in thosegoods: 50 ( e ) acts on behalf of a person referred to in paragraph ( a ) . ( h ) .I C ) or td): or ( f ) pretends to be a person referred to in paragraph (a). ( 0 ) .(c). f d ) or ( e ) . ( 4) Despite an!' other provision ofthis 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 15 No. 21387 GOVERNMEAT GAZETTE. 22 JANUARY 2003 Act No. 71,zooz INTERNATIONAL TRADEADMINISTRATION ACJ. 2002 terms of section4c(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 .4DhlINISTR4TION COMMISSION Part A 5 Establishment and constitution \.- Establishment and independence of Commission

7. ( 1 1 The International Trade Administration Commission is hereby established. and- ,. ([/) has .jurisdiction throughout the Republic: 10 i h , i h aJuristic person: and 1 muxt exercise its functions i n accordance vvith this Act and any other relevant ( ' I 1:1\\. ( 2 I The Com~nission- i < independent and subject only to- f o j IS ' i ! the Constitution and the lan,: t i i 1 an! Trade Policy Statement or Directi\ e issued by the Minister in terms of section 5: and i iii ) any notice issued b\ the Minister in terms of section 6: and rill must be impartialandmustperformitsfunctionswithoutfear.favour or 30 prejudice. ( 3j Each orsan of state must assist the Commissionto maintain its independence and impartidit>. and to exercise its authority and can)' out its functions effectively. Constitution of Commission

8. I 1 I 1 The Commission consists of- 7-5 Ii 1 2 full-time Chief Commissioner and a full-time Deputy Chief Commissioner: ;1nd I ii 1 noi less than two but not more than 1 0 other Commissioners. each appointed [ o s x v e either full-time or part-time. appointed b! the President on the recommendation of the Minister. subject to section 9. 30 0 7 , The Xlinister must. by notice in the Gcr:rtrr and in any national newspaper. invite nominaTions for appointment of persons as members of the Commission. ( C J The members of the Commission must. \\hen \,iewed collectively. be representa- ti\e of :!broad cross-section of the population of the Republic. including women. and the President must endeavour to ensure participation b!, significant economic sectors. 35 ( 2 1 Tils Fresidentmust.whenmaking an appointment in termsofsubsection ( 1 )fo!(ii;. cktxmine- I II J n htther the appointee is to be a full-time or part-time Commissioner: and f i~ I ths term of the appointment. which may not exceed five years. (3J If' a acancy arises as a, result of the departure of a full-time Commissioner. the 40 President may. on the recommendation of the Minister- ( ~ 1lea\.e theposition \want: //I) if' the member's term of office has expired. reappoint that member subject to wction 9: or ( ( ' 1 in anyother case- 45 Ii j appoint a new member in accordance n.ith subsection ( 7 ) :or ( i i ) on the request of a part-time member, transfer that part-time member to fill that \,acancy on a full-time basis either for- ( a u ) the remainder of that member's term of office; or (hb) a term determined b!, the President in accordance with subsection 50 (3). ( 4 ) If ;1 \.acancy arises as a result of the departure of a part-time Commissioner. the President may. on the recommendation of the Minister- f a i 1eaj.e the Dosition \.scant; (bl if the member's term of office has expired, reappoint that member subject to 55 section 9; or ccl in anyother case- 16 No. 24287 GOVERNMENT GAZETTE. 22 JANUARY 2003 e Act No. 71,2002 INTERNATIONALTRADEAD.\IINISTRATION ACT. 2002 * ( i ) appointanewmember on apart-timebasis in accordancewith subsection ( 2 ) :or (ii) on the request of a full-time member. transfer that member to fill that l'acancy on a part-time basis either for- f a r / ) the remainder of that member's term of office: or 5 lbhJ a term determined by the President in accordance with subsection (3). ( 5 ) A person may not serve as Chief Commissioner for more than 10 consecutive vears. '. ( 6 )The Minister must. with the concurrence of the MinisterGf Finance, determine the 10 remuneration. allowances. benefits and other terms and conditions of employment ofthe ChiefCommissioner.DeputyChiefCommissionerandeachothermemberofthe Commission. ( 7 )During the term of office of a member of the ComwSsion. the Minister may not reduce the member's salary. alloumces or benefits. 1s ( 8 )The Ministerma! determine any other conditionsof appointment not provided for in this section. but an! such conditions may not be of such a nature as to reduce the independence 01' the Commissioner concerned. Qualifications of' members 9.1 1 ) To he eligible for appointment and to continue tohold office as a memberof the 20 Commission, a person must- i a ) be ordinarii! resident in the Republic: and i h l ha\esuitabltqualificationsandexperience in economics,accounting,law, commerce. agriculture. industr!. or public affairs. ( 2 )A person may not be a member of the Commission if that person- 25 I CI I is an oftice-bearer of any party. mo\ ement. organisation or body of a partisan political nature: 0 1 ) isan unrehabiiitatedinsolvent: f c ) has been found mentally unfit by an order of a competent court: or i d ] hasbeencon\,icted of an offencecommittedaftertheConstitution vf the 30 Republic of SouthAfrica. 1993 (Act No. 200 of 1993). took effect. and sentenced to imprisonment without the option of a fine Conduct of members 1 0 . i1 ) A member of thr. Commission. and a memberof the staff of the Commission. must not- 35 I O / engagr in an! xtivitl. that may undermine the inteyity of the Commission; ( h i participate 11; an! investigation.hearing or decisionconcerningamatter in respect of \\.hich that person has a financial interest or an! similar personal interest. ah pi-;.s,ribed: make privats u:.c of. or profit from. an:, confidential information obtained as 30 a result of performing that person's official functions i n the Commission; or (if] divulge an!' information referred to in paragraph ic'i to any third party, except as required a5 part of that person's official functions within the Commission. ( 3I If. at an! 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, 45 the member of the Commission must- icri immediatel! and fully disclose the interest to the Chief Commissioner, or in the case of the Chief Commissioner. to the Deputy Chief Commissioner: and ibi withdraa. from any further involvementin the matter to the extent requiredby regulation. 50 ( 3 1 A member of the Commission must comply with any prescribed code of conduct for members. IX No. 21287 GOVERNMENT GAZETTE. 22 JANUARY 2003 c .4cl No. 71.2002 JA'TERNATIONAL TRADEADMINISTRATION AC;. 2002 \a Resignation and removal from office

11. ( 1 ) A member of the Commission may. on one month's written notice addressed to the President- ( r l i resignfromtheCommission: or if he or she is a Chief or Deputy Chief Commissioner. resign from the postbut 5 remain as an ordinary member of the Commission. ( 2 1 The President. on the recommendation of theMinister- ( a i must remove a member of the Commission from sf@e if the member- ( i ) ceases to be ordinarily resident within the Republic: or ( i i 1 becomes sub.ject to any of the disqualifications referred to in section 9(7-): 1 0 and ( h i ma!' remove a member from office only for- misconduct: (iJ serious \. ( i i ) permanentincapacity: ( i i i ! e n y g i n g in any acti\,it!that mayunderminetheintegrity of the 15 Commission: or ( i \ i failure to satisf! the prescribed standards of professionalism. attendance and participation in the functions of the Commission, XIeetings and decisions of Commission

11. ( 1 I The Chief Commissioner must con\'ene the first meeting of the Commission 20 and preside at that meeting. i? J A majority of themembers of theCommissionpresent at a meeting of the Commission forms a quorum. I 3 ) TheChiefCommissionermustappoint a member of theCommissionas meetings at preside Chairperwn to Commission. of the 7-5 ( 4 1 If theChairperson is not present.thsmemberspresent at themeetingmust nominate a member to preside at that mrering. (iI The decision ofa majorit) of the memhers 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 ma)' cast a 30 deciding \'ate in addition to his or her deliberative vote. I 7 )The Comnlission ma! make rules of order for its proceedings. but any such rules of order must be consistent uith this Act. Chief Commissioner

13. ( 1 1 The Chief Commissioneri < the Chief Executive Officer of the Commission,is 35 responsible for the general administration of the Commission. and must- i u i perfonn the functions that are conferred on the Chief Commissioner b!. or in terms of this Act: ( h i manage and direct the acti\.itiei ofthe Commission: and i ( ' i the \uper\.ise Commi\zion. staff 40 of the ( 2 )The Deput!, Chief Commissioner- ' c i ) ma! pl-dorm an! functions of theChiefCommissioner as assigned by the Chief Commissioner: and i h ) must prrform the functions of the Chief Commissioner whenever the- ( i) Chief Commissioner is unable for any reason to perform the functions of 45 the Chief Commissioner: or ( i i ) ofice of Chief Commissioner is vacant. i.3) The Chief Commissioner may assign another member of the Commission to perform any functions of the Chief Commissioner when the Chief Commissioneror the Deput!. Chief Commissioner is unable perform tothose functions. 50 Committees

14. ( 1 ) TheMinister may. by notice in the Caretre and at therequest of the Commission- 20 No. 24787 GOVERNMENT GAZETTE. 22 JANUARY 2M3 c .4ct No. 71.2002 IITERN.ATIONALTRADEADMINISTRATION ACT. 2002 \a ( a / establish one or more committees of the Commission for any purpose within or ancillary to the functions of the Commission: and ( b i appointpersonsrecommendedbytheCommission to bemembers of a committee. ( 3 )A request to the Minister contemplated in subsection ( 1 ) to establish a committee 5 must- fa1 propose specific terms of reference for the committee; 1/71 indicate whether the committee is a permanent committee or is established for a specific term: \. f c ) propose persons to be appointed to the committee and designate the proposed 1 0 chairperson of the committee: and i d ) set out time limits u,ithin u>hichthe committee must report to the Commission. (-7) A committee ma\' consist of persons who are not members of the Colnmission but- -. i u i at l e u t half o f themembers of eachcommitteemustbemembersofthe 15 Commission: and 0 9 1 persons u,ho are not members of the Commission may not vote. (4) if a committee i < permanent. the Minister must determine the term of office for each person appointed to that committee. ( 5 )A committee decision is effective onl!if the dcc~sionis subsequentl! ratified by 10 the Commission. unless the notice establishing the ctmmittee exprexsl> authorises the particular decision t o be effective lvithout such ratifi:ation. Part B General functions of Commission '5

15. ( I The Commission must c a m out the functioI15 assigned t o i t in terms of this Act. an! other .\st or t.\ the Minister. i 2 ) The Commission must carr)' out any function that arises out of an obligation of thr Republic in term5 o f ;Itrade agreement. if the Minister has assigned that function to the Commission. 30 ( 3 I TheComm~ssion ma!. totheextentrequired or permitted by the S.4CU Agreement. refer mattersto an! institutionconstituted b! or in terms of the SACU Agreement. and ma! appear before such an institution. ( 4 ) The Commission ma>. subject t o section 1 4 5 ) . asiign any of its functions t O - Commission: ;I member of the 35 r h i ;Icommittee established i n terms of section 11: i r j ;I memher of the staff of the Commission: i d ) a person referred to in section 23: 01- ((1) an! combination of persons referred t o in this >uh\ection. Customs duties. anti-dumping duties, countervailing duties andsafeguard 40 measures

16. ( I ) The Commission must investigate and e\xluate- l a ) applications in terms of {ection 16 withregard to allegeddumping. 01- subsidised exports. in or into the Republic or the Common Customs Area: ( h i applications i n terms of section 16 u 3 h regard to safeguardmeasures: 35 ( ( ' 1 applications in termsofsection 36 withregard to amendment of customs duties in the Common Customs Area: and t d ) matters with regard to safezuard measures or amendment of customs duties in the Common Customs Area. that the- ( i ) Minister Commission directs consider: the to or 50 ( i i ) Commission considers on its own initiatile. ( 2 ) Sections 16 and i O ( I )(ai. each read nith the changes required by the context. apply to an investigation undertaken by the Commission in terms of subsection (1 )(rl). 11 No. 24187 GOVERNMENT GAZETTE, 23 JANUARY 2003 Act No. 71,2002 INTERN.4TlONAL TRADE ADMINISTRATION AC,T. 2002 * (3) The Commission may. after evaluatinz a matter in terms of subsection ( 1 ), take appropriate steps in accordance with this Act and the SACU Agreement and inform the Minister and theTariff Board of its evaluation. Issuing of permits orcertificates

17. The Commission may investigate. evaluate and determine applications and issue 5 or recommend the issuing of permits or certificates. in terms of- ( n l the rebate and drawback provisions of the Customqyd Excise Act: or f h l Part .4 and B of Chapter 4. hlonitoring trade and other matters Commission- 1s. The , + I0 must monitor. revieu. reportt o the Minister 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 industn: and (/?I may investigate matters relating to its functions in terms of this ,4ct. Information sharing with SACU institutions Member and States 1s

19. Subject to Part D of Chapter 1 and the Promotion of Access to Information Act. 3000 (Act No. 3 of 3000). the Commission- ( 0 1 must provide information to the SACU Secretariat or one or more Member States. ah required in terms of this Act or the SACU Agreement: ( h i ma! requestsuchinformation from theSACUSecretariat or one or more 30 hlember States. as permitted in terms of the SACU Agreement: and (c'; ma!. exchangeinformationwiththeNationalBodyestablishedbyany Llzmber State. Relations with SACU and Member States Commission 20. The may- 95 io J engage with an entity of SXCU or the National Body of one or more Member States in eo-operativeactivitiesofresearch.publication.education. staff de\,elopment and training: or ( h i in consultationwiththe Minister- i i ) enp_re Lvith an entity of SACU or the National Body of an). Member 30 State in staff exchanges or secondment of staff: or i i i ) provide technical assistance or expertise to. or request such assistance from. an entity of SACU or the National Body of a Member State. Relations with domestic agencies 21. Commission ( 1 I The ma!- 35 icrl enter into an agreement ~ i t han)regulatoryauthorit) or organ of stateto co-ordinate and harmonise their respective functions with regard to interna- tional trade matters. in order to ensure the achievement of the objects of this Act: and (11) v, ith regard to a particular matter within jurisdiction- its 40 t i ) delegate its functions to such a regulatory authority or organ of state. as contemplated in section 938 of the Constitution: or i i i ) act in accordance with the agreement referred to in paragraph ( u i . (2) A regulatory authority or organ of state that, in terms of any lam. has jurisdiction tters trade international over may- 35 ( a ) enter into an agreement referred to in subsection (1 ), with the Commission: and ( h ) with regard to a particular matter within its jurisdiction- ti i delegate such matter to the Commission as contemplated in section 238 the or of Constitution: 50 ( i i ) act in accordance with the agreement referred to in paragraph (01. 21 No. 24787 GOVERNMENT GAZETTE. 27 JANUARY 7003 * Act No. 71,2002 INTERSATIONAL TRADEADhlINISTRATION ACT. 2002 .i9 c (3) The Commission may- ( a ) participate in the proceedings of any regulatory authority or organ of State: and ( 0 ) advise. and receive advice from. any regulatory authority or organ of state. Public information and reporting 5

22. ( I ) The Commission- (aj must implement measures to promote public awareness of the proiisions of and Act: this L. f h ) may provide ad\zice to industry or interested persons in the prescribed manner and form. 10 ( 3 )The Commission must report to the Minister on- ( a ) any matter relating generally to the implementation of the objects of this Act: and ( h ) the results of an). investigation. monitoring or re\,iew carried out in terms o f section 18. 15 ( 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- ( ( 1 1 the audited financial statements prepared in terms of section 23(S): 0 7 ) the auditor-general's report. prepared in terms of section 24(9): 110 ( ( ' J a report on the performanct. of the Commission and of activities undertakenin terms of this Act: and (ti) any other information that the Minister ma)' require. ( 3 )The Minister must table the annual report in Parliament within 13 days of receipt thereof if Parliament is sitting or. if Parliament is not then sitting, within 13 days of the 25 commencement of the nest sitting. ( 5 )The Minister may table i n Parliament an!. other report submitted regarding- i c i ) astatement of theprogressachievedduringtheprecedingyeartowards realisation of the objects of this Act: and i h ) an! other information determined Minister. by the 30 Part C Stafi jinances and administration of Conmission Staff of Commission

13. ( 1 I The Chief Commissioner ma>- ~ N I appoint staff or enterintocontractswithotherpersons to assistthe 35 Commission in caqzing out its functions: and i h ) in consultation with the Minister and with the concurrence of the Minister of Finance. determine the remuneration. allowances. benefits and other terms and condition< of appointment of each member of the staff. ( 2 )The Minister mal-. M.ith the concurrence of the Minister of Finance. determine the 40 remuneration paid to a person whois appointed in terms of subsection i1 ).but \vho is not in the full-time senice of the Commission. Finances of Commission

14. ( 1 ) The Commission is financed from- appropriated is (a) thatmoney by Parliament: 35 fhl prescribedfees: (c) income derived from the investment and deposit of surplus money in terms of subsection (6):and ( d ) money recei\.ed from any other source. ( 3 )The financial year of the Commission is the period from 1 April in any year to 31 50 March in the following year, except that the first financial year begins on the date that this Act comes into operation, and ends on 3 1 March next following that date. 26 No. 742s: GOVERNhlENT GAZETTE. 32 JANUARY 2003 Act No. 71,2002 INTERSATIONALTRADEADMINISTRATION ACT. 7002 c * 0 t ? I Each year. at a time determined by the Minister, the Commission must submit to the Minister a statement of its estimated income and expenditure, and the requested appropriation from Parliament, in respect of the next ensuing financial year. (31The Commission must open and maintain an account in its name with a registered bank. or other registered financial institution. in the Republic. and- 5 f r / / deposit an! mane>' received into that account; and ( h i e\.ery payment made on its behalf must be made from that account. ( 5 ) Cheques dra\im on the account of the Commission must be signedon its behalf b!, t M o persons authoriaed for that purpose by a resolution of th Commission. ( 6 )The Commission may invest or deposit money that \ is not lmmedlately required for 1 0 contingencies or to meet current expenditures in- ( a i a call or short-term fixed deposit account with any registered bankor financial institution in the Republic: or f h i an in\.estmenr account mith the Corporation for Pu$lic Deposits established in t e r m of section 2 of the Corporation for Public Deposits Act. 1984 (Act KO. 15 16 of 10x1,. 1 7I The Chief Commissioneris the accounting aqhority of the Commission i n terlns of thc Public Finmce hlanagement .4ct. ( 8I The Chief Commissioner must prepare financial statements for the Commission \\ithin aix monrhs after the end o f each hnancial year in accordance a i t h established ?(, accounting practice. principles and procedures. consisting of- ~ C / I a statemenr reflecting. n,ith sufiicient particulars. the income and expenditure of the Commission during the preceding financial ).ear: and i i , ~ ;I balance sheet sho\ving the state of its assets. liabilities and financial position end35 at the o f thar financial !.ear. '5 ( 9 1 The .Aud~tcwGeneraImusteachyearauditthefinancialrecords of the Commi~>ion. Liabilit!

25. The State Liahilit! Act. 1957 (Act No,20 of 1957). read with the changes required b! ths context. applie\ t o the Commis~ion.but a reference in that Act to '.the Minister 30 of the Departrnentconcerned" must be interpreted as referring to the Chief Commissioner of the Cornmission. CHAPTER 4 IN-ESTIG.L\TIOZ,E\:4LUATION AND ADJUDIC4TION PROCEDURES Part A Applications 26. [ 1 I .Aperson may. in the prescribed manner and form. apply to the Commission tor- l an import or export control permit. or an amendment of such a permit. in terms 40 oi. Part H of this Chapter and the regulations; I / > / a rebate permit or certificate in terms of the Customs and Excise Act; I(') theamendment of customsduties.including an amendment in respectof _rood\ imported into the Common Customs Area from a country that is not a regard with State. LIember to- 45 ( i I anti-dumpingduties: I i i I c o u n t e n d i n g duries: or j iii) safeguard duties: or I L O the imposition of safeguard measures other than a customs duty amendment. (31 The Commission must. subject to section 30(1) and (3). evaluate the merits of 50 e\er! application received by it and dispose of each application- 18 No. 21287 GOVERNMENT GAZETTE. 22 JANUARY 2003 c 4 c t No. 71,2002 Ih'TERN.4TlONAL TR.4DE AD5IINISTR.4TION ACTk2002 * (u1 received in terns of subsection ( 1 Kc{) or (h).in accordance with Part B ofthis Chapter: or (01 received in terms of subsection ( 1 X C J or ( d l . in accordance with Part C of this Chapter. ( 3 ) (ai The Commission ma!. before considering an application. Five notice of the 5 application in the Ga:etrc. ( h J If it does so. the Commission must- ( i ) allow interested parties the prescribed time to make written representations concerning the application: and \ ' i i i ) ensurethatnotice of itsdecision or recommendation in thematter is 10 subsequentl! published in the Gu:crte. ( 3 )The Commission nu!'- ((1) requireanapplicant to prmideadditional informaxion in respect of the application: or < . Ibj requestfurtherinformationfrom an!. personwhomakes a representation in 15 terms of subsection ( ? ) ( / I / . ( 5 An!. person ma! \.oluntaril!- file with the Commission an\. document. afida\,it or statement of the vieus o f that person u,ith regard to the application. or other relevant information. (6)The Commissionma!. amend or revoke a decision or recommenclation concerning 20 an application if- (({/ the decision or recommendation \va\ based on incorrect infor~nation and the applicant or supplier of the information- (i) was responsible for the error in the information: and ( i i ) henefited or could ha1.e benefited. from the decision or recommendation: 15 i i l , the decision \ \ a s obtained b! deceit: or (c,) a person has breached an obligation attached to the decision or recornmenda- tlon. Part R Import and export corltrol permits and rebate permits 30 Authority of Commission to issue import and export permits and rebate permits 27. i 1 ) ici) The Commijsion n w t . after e\.aluating an application made in terms of section 3-6(1 J ( a ) or (hi- ( i ) refusetheapplication: or ( i i ) appro\ e the applicarion in whole or in part and njth or without conditions. 35 , / I , If it appror'es the application. the Commission must t a k appropriate steps togi1.e effect t u its decision in accordance w i t h this Act or the Customs and Excise ,4ct. ( 2 )A permit issued under subhcction ! I ma!. with regard to the goods i n question. prescribe- ( a / the quantit! or value of good\ which may be imported or exported: 40 (0) the price at M hich the good\ ma! be imported or exponed: i c ) the period during v.hich the goods ma). be imported or exported: ( d ) the port through or from which the goods may be imported or exported: ( e ) the countr! or territor! from or towhichthegoods may beimported or exported: 4.5 (,fj the manner in u hich ths goods ma!. be imported or exported: ( g ) conditions relating to the possession. ownership or disposal ofthe goods after the), ha\ e been imported. or the use 10 which the! ma)' be put: or (17, an!. otherrelatedconditions. ( 3 ) Despite an! other provision of this Act. a permit issued in terms of this section 50 with regard to goods that are the subject of a notice issued b) the Minister of Defence in terms of section 4C(1) ( u ) of the Armaments Deyelopment and Production Act.1968. is deemed to have been revoked as of the date of that notice. i i c t No. 71.2002 INTERN.4TIONALTRADEADr\lINISTRATION ACT. 2002 e * 0 Authority of Commission to demand trade information

28. The Commission may. in writing. direct a person w h e i u i imports. exports. trades or manufactures any goods: or ( h i in the course of whose or its business or trade. handles or has control of any pK)dS. to pro\ide the Commission.M ithin a specified time. with any information relating to the import. export. manufacture. supply or storage of the goods in question. L. . Authorit!- of' Commission to suspend or cancel permits

19. The Commission may suspend or cancel a permit issued in terms of this Act in accordance u,ith this Chapter and the re9ulations. 1 , Part C Customs dut) applications

30. ( I J The Conmi\sion must. upon receipt of an application in ternls of section 261 1 I ( ( ' J o r f ri -1 notif! the S.r\CU Secretariat of the application; and ihJ axcrtain \\.hether an application dealing with a substantially similar matteris palding before the relevant SACLI institution or has been decided uponby the rcle\ ant SACI' institution within the previous six months from the date of that application. ( 2 ) I t the Comrnizsiondeterminesthat an applicationbefore it dealswith a wbst;mtiall! \imilar matter contcmplated in subsection ( 1 ) ( / I / . the Commission may- ((// ad\i\e the applicant in \f.riting that the application w i l l not be considered and ~ S.4CU Secretariat accordingly: or i ~ i o r nthe 0 1 1 i n \ e t i p t e and e\Auate the application and recommend to the Tariff Board that th- application be a p p r o \ d or rejected. ( 3 )I f the Commission determines that an application before it does not deal with a suhtantiall! ~imilar matter contemplated i n subsection ( 1107). the Commission must e\aluatc the merit5 of theapplicationandrecommendto the Tariff Boardthatthe appiication be appl-o\.ed or rejected. ( 4 1The Commission must. \\.hen evaluating a matter in terms of this section. apply an! rt.ie\-ant rulesof anal!,sis established b!. the SACU Council through the fonnulation of policy mandates. procedures or guidelines contemplated in Article 8(2). ( 5 J i o ) The Commission ma!.. \vhen considering an application referred to in section 26( ! c ) . request the Commissioner for the South African Re\.enue Serviceto impose a pro\ Iiional pa! ~ncnt contemplatedin Chapter \'I of the Customs and Excise Act. If theCommissionhasacted in terms of paragraph ( n J it must make a final recommendation to the Tarif Board M.hen it has completed its evaluation. Requests

31. ( 1 ) The Commission ma!' receive requests from SACU t o - l o ) e\aluate a recommendationmadetothe Tariff Board by anotherMember State: or f h j i n \ estigate and compile information available within the Republic concerning such a recommendation. ( 2 )The Commission may receive a request from the National of a Body Member State t 0- rrr) emluateanapplicationfor a customsdutyamendmentreceivedby that Y~lt.mberState: or ( h ] inxitigate and compile infornlation available within the Republic concerning such an application. (3) The Commission must. upon receiving a request in termsof subsection (l)(a)or ( 2 ) ( u ) .evaluate the application or recommendation. and make a recommendation to the Tariff Board concerning the matter. 32 No. 211s: GOVERNMENT GAZETTE, 22 JANUARY 2003 0 Act No. 71.2002 INTERNATION.AL TRADE ADAIINISTRATION ACT+?002 * (4J The Commission must. upon receiving a requestin terms of subsection (l)(b) or ( 2 ) ( h ) .conduct an investigation or compile the information 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 5 received by the Commission in terms of subsection ( 1 ) or ( 7 ) . ( 6 )The Commission may request the National Body of another Member State to- l a ) evaluate- l i J an application for c u s t o m duty amendment q e i v e d by the Commis- sion: or IO ( i i J a recommendation made to theTariff Board by another Member State; or i h ) investigate and compile information available within its jurisdiction concern- ing such an application or recommendation. c , Consideration of alleged dumping and subsidised exports

31. ( 1 I Despitesection 1 . in this section- 7 15 i u i "export" means to bring or send goods. or to causs them to be brought or sent. intotheCommonCustoms .Area from ;I countr!' orterritoryoutsidethe Common Customs Area: and f h ) "eaporter" means an!. person who brings or send5 goods, or causes them to be brought or sent. into the Common Customs Area from a country or territory 70 outside the Common Customs Area. ( 2 )For the purpose of considering an application alleging the dumping or subsidised export of' goods into the Common Customs '4rea- f u J "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 75 rebates actually granted and directly related to that sale: "normal value". in respect of any goods, means- ( i ) the cornparable price paid or payable in the ordinary course of trade for like goods intended for consumptionin the exporting country or country of origin: o r 30 ( i i in the absence of information on a price contemplated in subparagraph ( i 1. either- ( c u i the constructed cost of production of the zoods in the country of origin w,hen destined for domestic consumption, plus a reasonable addition for selling. general and adminihtrative costs and for profit; 35 0I- hi^, the highest comparable price of the lihc product when exported to a n appropriate third or surrogate counir!. as long as that price is representatlve: ic.1 "subsidised export" means goods exported into rhc Common Customs Area. 40 in respect of which the governmentof. or a public. hod! within. any country- ( i ) hasprolided- f (M an!. form of financial aid: , h h j an! form of assistance aith its production. manufacture, transpor- tation or export: or 35 an! similar assistance: or l i i ) has foregone an! re\'enuethat wouldotherwise be due to that government or public body: and i d , "public bod! '' includes a personor body that actson behalf of the government of. or another public bod! within. a country. 50 (3)The Commission must. in determining the margin of dumping of goods. make reasonable allonmce for differences in conditionsandterms of sale,differences in taxation and other differences affecting price comparability. (4) If theCommission.whenevaluating an applicationconcerningdumping, concludes that the normal value of the goods in question is. as a result of government 55 intervention in the exporting countr!. or-country of origin. not determined according to free market principles. the Commission may applyto those goods a normal valueof the goods. established in respect of a third or surrogate country. ( 5 ) TheCommissionmust,despitethedefinitionof"exportprice"set out in subsection (2). a.henevaluating an applicationconcerningdumpingthatmeetsthe criteria set out in subsection (6). determine the export price for the goods in question on 5 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 in1,estigation of dumping if, in respect of the goods concemed- x\ ( a ) there is no export price as contemplated in the definition of dumping: 10 ( b ) there appears to be an association or compensatory arrangement in respect of the export price between the exporter or foreign manufacturer concerned and the importer or the third part! concerned: or rc) the export price actuall). paid or pa! able is unre7jible for any other reason. Part I) 15 Right of informants to claim confidentialit!

33. ( 1 ) A person ma>. when submitting information to the Commission. identif), information that the person claims to be information that- i r r / is confidential or by its nature: 20 ( b i the person otheruise wishes to be recognised as confidential. ( 2j A person making a claimin terms of subsection ( 1\ must support that claimwith- ((1) a Lvrittzn statement in the prescribed foml- ( i ) explaining, i n the case of information that is confidential by its nature. horn, the information satisfies the requirements set outin the definition of 25 "information that is by nature confidential" in section 1 ( 2 ) :or ( i i ) motivating. in the case of other information. why that information should be rzcognised as confidential: and i h , either- ( i ) a writtenabstract of the information in anon-confidential form: or 30 ( i i I a sworn statement setting out the reasons why it is impossible to compl!. with Subparagraph ( i ) . Determination b!- Commission 34. i I 1 If a person makes a claim in terms of hection 33. the Commission must- ((11 in the ca3e of infomationclaimed to be Confidential by nature.determine 35 whethertheinformationsltisfiestherequirements of thedefinitionof "information that is by nature confdendal" set out in section 1(2 j: or 0 1 , i n the case of other information. dermnine whether the information shouldbe recognised ah confidential. ( 2 ) If. upon considering a claim in tern15 of subsection ( ] ) ( a ) .theCommission 30 determines that the information is not. b). nature. confidential- ((1) the Commission must in\.itr the claimant to submit a further motivation for the information to be rccosnised as otherwise confidential; and f b ) if theclaimantsubmitssuchamoti\,ationwithintheprescribedtime.the Commissionmustreconsider the claim in termsofsubsection ( I )(h). 35 ( 3 ) Upon makinga final determination in terms of subsection ( 1 ) or (2j(h). the Commission- ( a ) must notify the claimant in lvriting of its determination; and (hi may. if it has determined that the information is not. by nature, confidential or should not be recognised as being otherwise confidential. advise the claimant SO that the information will not be considered in determining the merits of an application or other matter in question. 36 K O 14287 GOVERNMENT GAZETTE. 22 JANUARY 2003 Act No. 71.2002 INTERNATIONALTRADE .I\DMINISTRATION ACT. 2003 c * G Proceedings in contested claims

35. ( I A claimant affected by a determination of the Commission in terms of section 3 4 3 ) ma!- 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 5 is, by nature. confidential. or should be recognised as otherwise confidential. may- i o ) first. request thattheCommissionmediatebetweentheowner of the information person: andthat and k. 0 1 , failing mediation in terms of paragaph ( a i . apply t o a High Court for- t i ) anordersettingasidethedetermination of the Commission: or 10 i i i J any appropriate order concerning access to that information. ( 3 , Upon appeal i n terms of subsection ( 1 1. or an application in terms of subsection Court ( 2 High ) i h i . the may- :. ( ( 1 ) determine nzhether theinfornution- (ori ) is. b! confidential: nature. 15 i i i ) should be recognised ax being otherslise confidential: and ( h i if it determines that it is contidential. make any appropriate order concerning accesh to that confidential information. Disclosure of information

36. ( 1 ) The Commission must treat any information that i.; the subject of a claim in 30 term5 of this Part as confidential until a Iinal determination has been made concerning such information. ( 2 ) Oncea final determinationhasbeenmadeconcerninganyinformation. it is confidential onl! to theextenthathe final determinationhasaccepted it tobe confidential 25 ( 3 , For the p u r p o m of this section and section 37. "final determination" means a decision by- f u ) the High Court. that in terms of the rules of court ma! not be appealed, or has not been appealed within the time allowed: or Court i Supremeh J the of' .4ppzal. 30 Restricted use of information

37. ( 1 (cc) \-hen making any decision in terms of thih Act. the Commission may take confidential information into account in m a h g its decision. 0 7 1 If theCommission'sreasonsfor the decision would I-e\real anyconfidential information. the Commission must. after publishing its decision in the matter, provide a 35 copy of the proposed reasons to the part!' concerned within the prescribed time before publishing those reasons. ( 2 ) X party ma! appl! to a High Court. subject to its rules. \\,ithin the time period contemplated in s~~bsecrion1 j i b ) after receiving a cop)' of the proposed reasons. for an approprlate order to protectthe confidentiality of the rele\.ani information. 30 ( - 3 If a part! Jpplies to the High Court i n terms of subsection (2). the Commission must not publish the proposed reasons until a final determinarion in the matter has been made. Part E Powers of irzvestigative search and inspections 35 Appointment of investigating officers

38. ( 1 TheChiefCommissioner mal appoint an): personintheservice of the Commission. or any other suitable person. as an investigating officer. 12) .4n investigating officer must be provided witha certificate of appointment signed by theChiefCommissionerstatingthat the person has beenappointed as an 50 investigating officer in terms of this Act. (3) When an investigating officer performs any function in terms of this Act or any other Ian. the investigating officer must- 38 No 242s; GOVERNMENT GAZETTE, 12 JAKUARY 1003 0 Act No. 71.2002 INTERSATIONAL TRADE ADSIINISTRATION ACT. 2002 \9 c (uI be in possession of a certificate of appointment issued in terms of subsection ( 2 ) :and ( b ) show that certificate to any person u.ho is affected by the investigation.or if no one is presenton the premises.affix a copy of the certificate to the premisesin a prominent and visible place and proceed with the executionof the relevant function. Summons \% .

39. ( I i The Chief Commissioner may- i n ) direct the Commission. a committee oran investigating officer to question an)' person under oath or affirmation: or i h ) give directions prohibiting or restricting the publication of any evidence given Commission. the to 2 *. ( 2 )The Chief Commissionerma!'. at an). time duringan ihvestigation in terms of this Act. wmmon an! personwhocanfurnishanyinfomntion on thesubject of the i n \ estigation. or ndlo has possession or control of qny book. document or other object that has a hearing on that subject to- f a ) appear before theChiefCommissioner.theCommission. ;I committee or a person authorised by the Chief Commissioner t o be questioned: or t h i deliverorproduce an). book. documentorotherobjectreferred t o in the summons. to the Chief Commissioner. the Commission. a committee or a person authorised by the Chief Commissioner.at a time and place specified in the summons. 1 3 ) The Commission or a committee ma:,- i u ) accept oral submissions from an! person; ~ / J J accept as evidence any relevant or31 testimony,documentorotherthing. a.hether or not- I i ) it is gii.211or pro\'en undfr oath or affirmation: or ( i i ) \\auld be admissible ah e\.idence in court: or ( ( ' 1 refuse to accept an? oral testimon). document or other thing that is undul!. repetitious. t l I \Vhen the Commission ora committee hears oral testinion!, in terms of subsection t 3 I. the Commission or committee- ~ U J mayrequirethewitnesswho testified to deli\.er a swornstatementofthe evidence gi\Sen. in the prescribed manner and form: and r h i must.afterthewitnesshascomplied.disregardthe oral testimon!. of that witness and consider on]> the urritten statement of e\,idence of the itness. lfltnesses 40. i 1 ) A person questioned or gi\.in; e\.idcnce in terms of section 39. mu<:ans\wr ever! rele\-ant question truthfully and to the bed of that person's abilit). ( 2 )The lau regarding a witness' privilege in a criminal case in a court of I a n applies equall!, to a person who is giving evidence in terms of section 39. (j1 .A self-incriminatinganslyergiven or statementmadeto a person exercising powers in tenns of this Act is not admissible as e\idence against the person u.ho ga\'e that ansu'er or made that statement in criminal proceedings. except for perjur) or an offence contemplated i n section -53 or % ( ? ) f r i I . Import and export control inspections

31. ( 1 ) A n i n \ estigating officermay. subject to section i8(3). conduct an inspection10 determine Lvhether Part B of Chapter 1 or an! notice issued in terms of section 6 are being 01 have been complied v 3 h . and for that purpose may at any reasonable time- ((2) enterupon and inspect an:, place.premises or vehicle in or on n.hich any -goods to which section 6 _ -applies are stored. manufactured. supplied. handled. sold. removed. transported or otherwise dealt n,ith: 40 No. 242x7 GOVERNMENT GAZETTE. 2 2 JANUARY 2003 u Act No. 71.2002 ISTERN.ATIONAL TRADE ADMINISTRATION ACT,200? *' requestinformationaboutanyarticle or document from the owner of. or person in control of. the premises or from any person who has control of the article or document or from any other person who may have the information; use an) computer system on the premises. or require assistance of any person premises the on to computer that system. use to- 5 (i ) search foran!' data contained in or available to that computer system: and ( i i ) reproduce any record from that data: attach.and. if necessar).. removefromthepremisesforexaminationand safekeeping. anything that has a bearing on the inspection. direct an!. person who manufactures. supplies. stores. handles, sells. removes. I O transports or orherniae deals with any goods to which section 6 applies. or Lvho has done any of those things with regard to such goods, or the servant or agent of such a person to- r i i produce to the inwstigating officer an). suc&ioods or any book or other document in connectionwithsuch goods in thecustody or under- the 15 control of that person: or ( i i ) furnish the in\estigating officer withany information in relation t o those goods that the investigating officer specifies: inspect an! such goods. any book or document. or make extracts from or copies of an! such book or document: 20 seize an! wch goods. an!' book or document that may afford evidence of an! offence i n terms of this .4ct: and leave o n such goods. book or document or the container in which they are located. an\' identification mark or seal. ( 2 i Section 43 t o 15 do not appl!, to a n inspection in terms of thisection. 25 Conduct of entry and search -12. ( I ) A person M.ho enters and searches any premises must conduct the entry and search L\ ith strict regard for decenc!. and order. and with regard for each person's right to dignit!,. freedom. security and privac).. (21 During a search o n l y a female investigating officer or female police officer may 30 search a female person. and on]!. a male in\,estigatingofficer or male police oflicer may search a male person. 1.7 ) A person u.ho enters and searches premises must. before questioning anyone- ((/) ad\,ise that person of the right to legal representation: and f h j allov. that person t o exercise that right. 35 (4) .r\ person v-ho remo\.es an!.thing from premises being searched must- ( ~ 1issue a receipt for it to the owner. or person in control of. the premises: and ! h i return it as soon as practicable after achieving the purpose for which it u'as renlovcd. ( 5 An! person Lvho has custody or control of p o d s . books or documents referred to 40 in hection 41. mu\t. subject to subsection(6).give the investigating officer thenecessar! assistance to e u m i n e those goods. books or documents. when requested to do so b!. the i n \ estigatin_r officer. 161During a search. a person may refuse to permit the inspection or remo\,al of an article o r document on the grounds that it contains confidential information. 15 17) If the owner or person in control of an article or document refuses. in terms of \ubsection (6).to give that article or document to the person conducting the search. the person conducting the search may request the registrar or sheriff ofa High Court that has jurisdiction to attach and remove the article or document for safe custodyuntil that court determines the information Lvhether confidential. not is or 50 ( 8 ) Section W ( 3 ) applies to an answer giyen or statement made to an investigating officer in terms of section 11. ( 9 ) A person authorised to conduct an entr) and search may be accompanied and assisted b! a police officer. 12 No. 212si GOVERNMENT GAZETTE. 12 JANUARY 2003 v Act No. 71.2002 INTERNATIONALTRADEAD%IINISTRATIONACT, 2002 * ( 1 0 ) A police officer who is acting in terms of subsection (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. ( 1 1 ) The police officer must, before using force in terms of subsection ( I O ) , audibly demandadmissionandannouncethepurpose of the entry. unless it isreasonable to 5 believethatdoing so ma- inducesomeonetodestroy or dispose of anarticle or document that is the object of the search. ( 1 2 ) The Commission ma\ compensate anyone who suffers damage because of a forced entry during a search when no one responsible for thepremises was present. Power to enter and search under warrant 10

43. ( 1 ) A judge of a High Court, regional magistrate or a magistrate may issue a ivarrant to enter and searchan!. premises that are within th'e,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 possessionof. or underthecontrolof. ;I personwho is onor in thosepremises. 15 0, .4 \\.arrant to enter and search ma!' be issued at an! time and must specifically- ((/) identif! thr premises that may be entered and searched: and ( h i authorise an in\estigating oficer or a police officer to enter and search the premises and to d o anything referred to in section 15. (-3 1 A Lvarrant search enter and is to I d i d until the- 20 i o ) warrant is exxuted: ( 1 1 ) \\arrant is cancelled by the person who issued it or. in that person's absence. b! a person uith similar authority: c I purpose for issuing it has lapsed: or t t l i expir! of one month date after that the it was issued. 25 11) X warrant to enter and search may be executed only during the day. unless the person \rho issued it mthorisesthat i t ma!. beexecuted at nightat a timethatis reasonable in the circumstances. ( 51 A person executing a warrant must before commencing with the executionof the L4 arrant- 30 I ( I I provide identification to the owner or person in control of the premises and explain to that person the purpose of the warrant: and 117) hand a cop! of the warrant to that person or to the person named in it. 1 6 )If no one is present on the premises. affix a copy of the warrant to the premises in visible and ;I prominent 15 Power to enter and search without warrant 1-1.i 1 I An in\,estigating officer ma!'. \\,ithout a warrant. enter and search premises other than a pri\.ate d v elling. 121 Theinvestisatin: officerconductin: thesearchmust.beforeenteringand searching- 40 I CI] belie\.e on reasonable grounds that a n'arrant would be issued under section 43 if applied for. and that the dela),in obtaining a warrant would defeat the object or purpose of the entry and search: and /h, provide identification to the owner or person in control of the premises and purpose person that the explain o of the search: or 45 i c ) get pernlission from that person to enter and search the premises. ( 3 J A n entr! and search without a warrant may be carried out only during the da!,. unless carr!.in_c i t out at night is justifiable and necessary. Power to enter and search

45. ( 1 ) Section 42. read with the changes required by the context, appliesto an entry and search under section 33 or 34. ( 2 )A person who is acting under section 33 or 43 may- (crl enter upon or into those premises: 5 ( 0 ) searchthosepremises: (('I search any persononthosepremises if therearereasonablegroundsfor believing that the person has personal possession e an article or document that has a bearing on the inlwtigation: i d ) examine an!' article or documentthat is on or in those premises that has a 10 bearing on the investigation: rei requestinformationabout an! article or documentfromtheownerof. or person in control of. the premises or from any p'eison who has control ofthe article or document. or froman! other person tvho may have the information: ( f i take extracts from. or make copies of. an! book or document that ison o r in 15 the premises that has a bearing on the investigation: ( , q1 use an!. computer system on the premises. or require assistance of any person on the premises to use that computer system. to-- ( i ) search an!' data contained in or available to that computer system: and and( i data:i 1that from record reproduce any 20 / h i attach.and. if necessary. remn'efromthepremisesforexaminationand safekeeping. anything that ha5 a bearing on the investigation. [ i I Section JOi 3 ) applies to an ansu er gi\.en or statement made to an investigating oiiicer in tern15 of this .section. Part F 25 Reviews and appeals

46. ( 1 A personaffected by adetermination.recommendation or decision of the Commission in terms of section 16 or 17 or this Chapter. may apply to a High Court for rs\.ie\ a of that determination. recommendation decision. or 30 ( 21 Subject to item 2 ( 3 )of Schedule 2. a person affected b! a decision of the SACC Council. arisingin u.hole or in part out o f a recommendation of the Commission in terms of this i2ct. ma! appl!, for a re\ieu of that decision only to an institution designated b) or in tenns of the S.r\CU Agreement. and i n accordance with therules ofthat institution. ( 3 I The High Court ma!.. in a re\,ien, in terms of subsection ( I ) or item 3 3 ) of 35 Schedule 2 . make an order for the payment of costs against any party. or against any perwn \vho represented a part) in the proceedings. according to the requirements of the Ian and fairness. Appeals

17.( 1 ) .4n appeal against a decisionof the High Court in respect of a matter within its 30 jurisdiction in terms of section 46 liestotheSupreme 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- f n i subject to an!. law that specificallygrants.limits or excludesanyright of appeal: and i h ] not limited b!, the monetary or non-monetary value of the matter in dispute. t 3 ) A court granting leaveto appeal in terms of this section may attach an) appropriate conditions. including a condition that the applicant provide security for the costsof the appeal. ( 4 ) Section 21(1A) to ( 3 ) ( e )of the Supreme Court Act. 1959 (Act No. 59 of 1959). 50 read \vith the changes required b)- the context. applies to an application to the Supreme Court of Appeal for leave to appeal underthis Act. 16 No.21287 GOVERNMENT G A Z E T E . 22 JANUARY 7003 c Act No. 71.2002 INTERKATIONAL TRADE ADMINISTRATION A C Z 2002 * CHAPTER 5 ENFORCEMENT AND OFFENCES Variation of order

38. The Commissionmay. of its own accordor on application by a person affected by a determination. recommendation or decision of the Commission, vary or rescind that 5 determination. recommendation or decision- x. . (([) in which there is ambiguity. or an obvious error or omission, but only to the extent of correcting that ambiguity. error or omission: or ( h , 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. 1 0 '. ' Standard of proof

39. In any proceedings in terms of this Act. other than criminal proceedings. the standard of proof is on a balance of probabilities. Breach of confidence

50. ( 1 1 It is an offence to disclose any confidential information concerning the affairs 15 of any person obtained- ((1) i n carrying out any function in terms of this Act; or t h j as a result of initiating a complaint. or participating in any proceedings in terms of this Act. i 3 I Subsection ( 1 ) does not apply to information disclosed- 30 io for the purpose of the proper administration or enforcement of this Act: i h ~for the purpose o f the administration of justice: ((,I at therequest of an investigating officer or member of theCommission entitled to receive the information; or ( d ) nithin the terms of appropriate order of access made in terms of section 3 3 2 ) . 2.5 Hindering administration of Act

51. It is an offence to hinder.obstruct or undulyinfluenceanypersonwhois exercising a pow.er or performing a duty delegated to conferred or imposed on. that person b!, this Act. Failure to attend when summoned 30

52. It is an offence. \vhen summoned in terms of section 39. to- ( a ) fail. without sufficient cause. to appear at the time and place specified or fo remain in attendance until excused: or ! h i attend as required. but t ~ - ( i ) be refuse to sw'om in or to make an affirmation: or 35 ( i i ) 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. Failure to answer fully or truthfully

53. It is an offence. having been sworn in or having made an affirmation tc- ,a) fail to answer any question fully and to the best of one's ability: or 40 0 1 ) give false evidence. knowing or believing it to be false. 38 KO, 24287 GOVERNMENT GAZEITE, 22 JANUARY 2003 Act No. 71.2002 INTERN~ATIONALTR.4DE ADMINISTRATION ACT. 2002 * Other offences

54. ( 1 ) It is an offence to fail to cornply with- I N ) a notice issued in terms of section 6: ( h i a condition stated in a permit issued in terms of Part B of Chapter 4; ( c i a given directi\,e in terms of section 28; 5 / d l an interim or final order made in terms of this Act. ( 2 ) It is an offence t o - ( 0 ) improperlyattempt to influencethe Commissimconcerninganymatter connected with an investigation: l h J anticipate any findings of the Commission concerning an investigation in a 1 0 way that is calculated to influence the proceedings or findings; ((‘I doanything in connectionwithaninvestigationthatwouldhavebeen contempt of court if the proceedings had occurkh in a court of law; (di knowingly provide false information to the Commission: ((2) wilfull!. interruptheproceedings in theplacewhere a hearingisbeing 15 conducted: ( f ) act contrary to a warrant to enter and search: / , y j falsely represent oneself as a n in\,estigating officer. Penalties 55. 1 ) Anypersonconvictedofanoffence in terms of thisAct.is liable- 70 ( a i in the case of a contravention of section 541). 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: ( 1 7 ) in case of a contravention of section 50, 53. 54(?)(c) or 54(2)(d),to a fine not exceeding R250 000.00 or to imprisonment for a period not exceeding five 25 years. or to both such fine and imprisonment: or f I.) in any other case. t o a fine not exceeding R20 000,OO or to imprisonment for a period not exceeding six months. or to both such fine and imprisonment. ( 2 1.4 court convicting a person of importing or exporting. or attemptingto import or export. goods in contra\.ention ofa notice issued in terms of section 6, or failing to 30 comply nsith a condition of a permit issued in terms of section 27, may declare the goods in question. or the right of that person to those goods. forfeited to the State. ( 3 )A declaration in terms of subsection (3)does not affect the rights to the goods in question of an) person other than the conlicted person, unless it is proved that the other personshould reasonabl!. haveknownthathegoodswerebeingdealtwith in 35 contravention of the notice or condition in question. ( 3 )Section 35 of the Criminal Procedure ,4ct. 1977 (Act No. 51 of 1977). read with the changes required by the context. applies to a forfeiture under subsection ( 2 ) . Magistrates’ Court jurisdiction to impose penalties

56. Despite anythins to the contrary contained in any other law. a Magistrates’ court 30 has jurisdiction to impose any penalty provided for in this Act. Serving of documents

57. Unless otherwise provided in thi< .4ct. a notice. order or other document that. in terms of this Act. must be servedon or $\,en to a person. is regarded as properly served when or given is- 45 ( a ) delivered to that person in the prescribed manner: or ib) sent b!. registered post to the last known address of that person. 50 No. '-1'87 GOVERNMENT GAZEITE, 22 JANUARY 2003 ~ ~~~ ~~ ~ --- \x Act No. 71,2002 INTERN.4TIONAL TRADE ADMINlSTRATlON >4CJ 2002 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- f a ) the person who was in possession of. or in control of. such book, document. 5 plan. drawing or computer storage medium: and ( h i anypersonwhokneworoughttohaveknownaboutthe entry. record or infornlation. '. must in the absence of evidence to the contrary which raises a reasonable doubt. be presumedtoberesponsibleforthe f d s e statement. entry. recordorinformation. IO CHAPTER 6 I . GENERiL PROVISIONS Regulations .

59. The Minister may make regulations- ( a ) reprding the proceedings and functions of the Commission. after consulting 15 the Commission: ( h i to giye effect to the ob-jects of this Act: and (('I on an! matter that may or must he prescribed in terms of this Act. Guidelines

60. ( 1 ) The Commission may issue guidelines on the Commission's policy approach 20 t o an! matter n,ithin its jurisdiction. ( 2 )X guideline issued in terms of subsection ( I )- ( L / ) must be published in the Gu::erre:but ((7) is not binding on the Commission. any SACU institution or any Court. Official seal 25

61. The President ma!. h). proclamation in the Gacetrc. prescribe an official seal for the Commission. Act binds State

62. This Act binds the State. Transitional and arrangements repeal of l a w 30

63. ( 1 ) Schedule 2 regulates transitional arrangements in respect of international trade administration u ithin the Republic. (71 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 ) Despitesubsection ( 2 ) . a regulationpromulgated in terms of theImportand 3.5 Export Control .4ct. 1963 (Act No. 35 of 1963 ). and in force immediately before this Act came into operation. must be regardedas being a regulation made in terms of this Act. Short title and commencement 2002, and comes

64. ( 1) This Act is called the International Trade Administration Act, intooperationon a datefixedbythePresident by proclamation in the Gazerre. 40 ( 2 )Sections 3 , 15(3). 16(3), 19.XL30.31 and46(2) and item2 ( 3 )of Schedule 2, may not come into operation until the SAClJ Agreement has become law in the Republic. GOVERNMEKT 23287 52 No. GAZETTE, 22 2003 JANUARY - Act No. 71,2002 INTERIVATJONAL TRADEADMINISTRATION ACT, 2002 *

SCHEDULE 1 : SACU AGREEMENT The Sacu Agreementis to be inserted pursuant to its final conclusion and to the relevant constitutional requirements pertaining to international agreements having been met. *- 54 No. 212s7 GOVERNMEhi GAZETTE. 21 JANUARY 2003 .Act No. 71.2002 INTERNATIONAL TRADE .-ZDhlINISTRATION ACT, 2002

SCHEDULE 2 TRANSITIONAL PROVISIONS Definitions 1. In this Schedule- "Board" means the Boardon Tarilk and Trade constitutedin terms of the Boardon Tariffs and Trade Act. 1986 (Act No. 107 of 1986): and.. "matter pending'' means any matter that had been received. but not disposed of.b! the Board priort o its close of business o n the day immediately before this Act came into operation. t . Implementation of SACC Agreement 2 . ( 1 ) Before the sections listedin section 6412) come into operation. the Commission must investigate. and e\ aluate applications received by it in terms of section 26( I c ) or ( c l , in accordance with section32. read ,with the Board on Tariffs and Trade Act.as if' that Act had not been repealed. ( 2 )For the purpose\ of this item- { C ~ I section 261 I ) ( ( ' ) must be regarded as if it read: " ( c ) the amendment of customs duties. includingan amendment in respectof an!' of the following nmters arisingin respect of goods imported into the Republic- ( i ) anti-dumpingduties: ( i i ) counter\ailingduties: or (iii)safeguardduties: or": section 26i2)07) must be reg;lrded as if it read: " ( h j recei\.ed i n terms of subsection ( 1 )((,) or ( d l . in accordance v,ith the pro\.isions of item 3 of Schedule 2": and (('1 areference i n theBoard on Tariffs andTradeAct to theBoardmustbe regarded as rtferrin: to the Commission. ( 3 ) Until the SACU Agreement pro\.ides for a review of decisions of the SACC Council. contemplated in section 3 6 ( 2 ) .a person affected b!. such a decision may appl! to a High Court for a re\.ieu, of that decision. unless that person or a related person has sought a rcvieu. of the samc decision im terms of the lau, of another hlember State. Composition of Commission 3. Despite section 8. a p m s m u.ho \!;as. a member of the Board immediately before this Act came into operatio;;. i5. a member ofthe Commission. for a term that expireson the date that such appointmsnt to the Board would have expired. had this Act not come into operation. Pending applications and other Board business 1. I 1 .Any matter pending before the Board immediately before this Act came into operation and in respect of \\.hich the Board has not reported to the Minister in terms of section 1(I ) i h ) of the Board on Tariffs and Trade Act. 1986. must be proceeded withby the Commission in terms of this Act. 12) .4n!, matter on which the Board reported to the Minister in terms of section 3( ] ) ( h i of the Board on Tariffs and Trade Act.1986. before this Act came into operation must be proceeded with in terms of that Act as if it had not been repealed. ( 3 An!, summons issued b!, the Board in terms of section 12 of the Board on Tariffs and Trade .4ct. 1986. that is returnable after this Act comes into operation must be regarded- ( a ) as a summons to appear before the Cornmissionon the date andat the time and place shown on the summons,: and ( h i as having been issued by the Chief Commissioner in terms of this Act. 56 50.24187 GOVERNMENT GAZETTE, 22 JANL'ARY 2003 Act No. 71.2002 INTERNATIONALTRADEADMINISTRATION ACT, 2002 ** r. ( 3 )A permit issued or notice given in terms of the Import and Export Control Act. 1963, and \Aid immediately before this Act came into operation, must be regarded asa permit issued or notice given in term:; of this Act. Statutory references 5. ( 1 ) A n y reference in any law to-- ( u ) the "Board on Tariffs and Trade Act, 1986". must be regarded as a reference to this Act: .\ . 0,) the "Board on Tariffs and Trade established in ter& of the Board on Tariffs and Trade Act, 1986". must be regarded as a reference to the International Trade Administration Comrnission established in terms of this Act: I C ) a "report and recommendation to the Minister referrcd toin section 3( 1 ) ( b l of the Board on Tariffs and Trade Act. 1986", depepdingon 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 ( i i ) . the "determination" of a matter in terms of section 27( 1)la): and cd) an "enquiry referred to in section 1 2 of the Board on Tariffs and Trade ,4ct. 1986". must be regarded as a reference to an "investigation" in terms of this ACL in section 48(1A)of the ( 2 )A reference to the "Director-General: Trade and Industry" Customs and Excise Act. must be reEarded as a reference to the International Trade Administration Commission. Status of Board Employees and othlers 6. ( 1 ) A n outstanding delegation toa n officer or employee of the Department of Trade and Industry in terms of section 13 of the Board on Tariffsand Trade Act. 1986. may not be continued under this Act. ( 2 )A person \ A h . 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 in1,estigating officer in terms of this .4ct unless appointed in terms of section 38 of this .4c:. ( 3 ) .4n officer or employeeappointed in terms of thePublicServiceAct. 1993 (Proclamation No 103 of 1994), to sen'e the Board immediately before this Act came into operation. continues to be an officer or employee under the Public Service Act. 1994. 13) If an officer or employee referred to i n subitem 13) is appointed as an officer or employee of the Commission. the accumulated value of that person's contributions to any pension fund. together with the accumulated value of the contributions madeto that fund by the person'a employer. ma). be transterred to a pension fund established for the staff of the Commission. 5s: No. 2428; GOVERNMENT GAZETTE. 22 JANUARY 2003 Act No. 71.2002 INTERNATIONALTRADEADMINISTRATION ACT. 2002 c

SCHEDULE 3 REPEAL OF LAWS (SECTION 63(2)) I No and year of .4ct Short title 1 Extent of repeal Act No. 107 of 1986 The whole Board on Tariffs and Trade Act. 19t.;6 Act No. 60 of 1991 Board on Tariffs and Trade The'whole Act KO.39 of 1995 Board on Tariffs and Trade 1 I The who'e 1 Amendment Act. 1995 1 Act No. 16 of 1997 1 I Board onTariffsandTrade ')The whole 1 I 1997 ~ c N(t).45 ()r.1963 Act. ! I .4mendment zy9;;d Export Cohtrol I whole The ~~ ImportandExportControlThewhole Amendment Act. 1967 Act No. s of 1981 Amendmen1 Act. 1983 Act No. 44 of 1990 II Amendment Act. 1990 I I