WORLD TRADE  
ORGANIZATION  G/SCM/N/1/ZAF/2/Add.1 
21 April 2005 
 (05-1648) 
Committee on Subsidies 
and Countervailing Measures Original:   English 
 
  
NOTIFICATION OF LAWS AND REGULATIONS UNDER 
ARTICLE 32.6 OF THE AGREEMENT 
 
SOUTH AFRICA 
 
Addendum
 
 
 
 The following submission, dated 18 April 2005, is being circulated at the request of the Delegation of South Africa.  
_______________ 
 
 
 Further to the requirement under the Agreement on Subsidies and Countervailing Measures and in accordance with the related decision adopted by the Committee established under the Agreement, I have the honour to provide a copy  of the Countervailing Regulations made by the 
Minister of Trade and Industry on 30 March 2005.  The Regulations were published in Government 
Gazette  No. 27475 of 15 April 2005 under Notice R.356.   This notification is an addendum to the 
Regulations in South Africa’s notification ci rculated under document G/SCM/N/1/ZAF/2 of 
20 January 2004. G/SCM/N/1/ZAF/2/Add.1 
Page 2  
 
  
REPUBLIC OF SOUTH AFRICA 
  
THE INTERNATIONAL TRADE 
ADMINISTRATION COMMISSION 
OF SOUTH AFRICA 
 
 
COUNTERVAILING REGULATIONS 
 
 
 
TABLE OF CONTENTS 
 Part A – Definitions ........................................................................................................... ...............5 
  1. Definitions ................................................................................................................ ...5 
 Part B – General Provisions.................................................................................................... .........7 
 
 2. Confidentiality ............................................................................................................ .7 
 3. Investigations............................................................................................................. ..7 
 4. Representation ............................................................................................................. 8 
 5. Oral hearings.............................................................................................................. ..8 
 6. Adverse party meetings ...............................................................................................8 
 Part C – Procedures............................................................................................................ ..............9 
 
Sub-Part I – General.............. ....................... .................... ......................... ............. ............ ..............9 
 
 7. SACU industry.............................................................................................................9  
 8. Subsidies .................................................................................................................. ..10 
 9. Countervailability of subsidies ..................................................................................11 
 10. Subsidies not alleged in application...........................................................................11  11. Calculation of subsidy margin ...................................................................................11 
 12. Margin of subsidy ......................................................................................................13 
 13. Material injury ........................................................................................................... 13 
 14. Threat of material injury ............................................................................................14 
 15. Material retardation of the establishment of an industry ...........................................14 
 16. Causality ................................................................................................................. ...14 
 17. Level of countervailing duty......................................................................................15 
 18. Verifications............................................................................................................. ..15 
 19. Verification reports ....................................................................................................16  
 20. Deadlines ................................................................................................................. ..16 
 Sub-Part II – Pre-Initiation Procedure... ...................... ..................... ............... ............................ 16 
 
 21. Properly documented complaint ................................................................................16 
 22. Properly documented application ..............................................................................17 
 23. Subsidy standard for initiation purposes........... .................... ............. ........................17 
 24. Material injury standard for initiation purposes.........................................................17  G/SCM/N/1/ZAF/2/Add.1 
 Page 3 
 
 
  25. SACU industry verification .......................................................................................17 
 26. Merit assessment........................................................................................................17  
 27. Notification .............................................................................................................. ..17 
 28. Initiation................................................................................................................ .....18 
 
Sub-Part III – Preliminary Investigation Phase.................................... ............... ........................18 
  29. Responses by interested parties .................................................................................18 
 30. Extensions for submission .........................................................................................19 
 31. Deficiencies .............................................................................................................. .19 
 32. Non-cooperation by exporters or foreign producers..................................................19  33. Provisional measures .................................................................................................20 
 34. Preliminary report ......................................................................................................20  
 
Sub-Part IV – Final Investigation Phase... .................. ....................... ............... ............................2 0 
 
 35. Comments on preliminary report...............................................................................20 
 36. Extension of validity of provisional measures...........................................................21 
 37. Essential facts ........................................................................................................... .21 
 38. Definitive countervailing duties... ............................. ......................... ........................21 
 39. Price undertakings......................................................................................................21  
 
Part D – Reviews ............................................................................................................... ..............22 
 
Sub-Part I – General.............. ....................... .................... ......................... ............. ............ ............22 
 
 40. Notification .............................................................................................................. ..22 
 41. Initiation................................................................................................................ .....22 
 42. Responses by interested parties .................................................................................22 
 43. Essential facts ........................................................................................................... .23 
 Sub-Part II – Interim Reviews.............. ...................... ............................... ........... .................... .....23 
 
 44. Time frame................................................................................................................ .23 
 45. Changed circumstances..............................................................................................23 
 46. Review procedure ......................................................................................................23  47. Final recommendation ...............................................................................................23 
 
Sub-Part III – New Shipper Reviews ......... ............................... ................. .............. .....................2 4 
 
 48. Eligibility ............................................................................................................... ....24 
 49. Information required..................................................................................................24 
 50. Suspension of countervailing duties ..........................................................................24 
 51. Review procedure ......................................................................................................24 
 52. Final recommendation ...............................................................................................25 
 
Sub-Part IV – Sunset Reviews ................ ............................ ................... ................... ................. ....25 
 
 53. Duration of countervailing duties ..............................................................................25  54. Initiation of sunset review..........................................................................................25 
 55. Notification .............................................................................................................. ..25 
 56. Review procedure ......................................................................................................26 
 57. Information required..................................................................................................26 G/SCM/N/1/ZAF/2/Add.1 
Page 4  
 
  58. Non-cooperation ........................................................................................................26 
 59. Final recommendation ...............................................................................................26 
 Sub-Part V – Anti-Circumvention Reviews .............................. ..................... ................ ...............26 
 
 60. Circumvention ...........................................................................................................26  
 61. Information required..................................................................................................28 
 62. Review procedure ......................................................................................................28 
 63. Final recommendation ...............................................................................................29 
 
Sub-Part VI – Judicial Reviews ............ ...................... ............................... ........... .......... ........... ....29 
 
 64. Judicial review of preliminary determination ............................................................29 
 
Sub-Part VII – Refunds...................... ...................... ............................... ............... ............... .........29 
 
 65. Applications for refunds ............................................................................................29 
 66. Refunds following interim reviews............................................................................30 
 
Part E – Final Provisions...................................................................................................... ..........30 
 
 67. Delegation................................................................................................................ ..30 
 68. Transitional application .............................................................................................30 
   G/SCM/N/1/ZAF/2/Add.1 
 Page 5 
 
 
 DRAFT REGULATIONS 
 
Part A - Definitions 
 
 
1. Definitions   “Commission”  means the International Trade Admini stration Commission of South Africa 
established in terms of section 7 of the Interna tional Trade Administration Act, 2002 (Act No. 71 of 
2002).   “Countervailing measure”  shall be understood to mean a special measure imposed for the 
purpose of offsetting any subsidy bestowed directly or indirectly upon the manufacture, production or 
export of any merchandise. 
 
 “Deadlines”  shall be interpreted as the final date for 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.  
 
 “Facts available”  means the information that is availabl e to the Commission at the time of 
making a determination, whether preliminary or final, and which has been verified or is verifiable, provided that all requirements regarding non-confid entiality and timely submission have been met.  
 
 “Good cause”  for an extension of the submission of in formation, as referred to in sections 
19.3, 30.1, 35.2, 37.3, 42.4 and 43.3, does not include merely citing insufficient time to complete a 
response to the Commission’s questionnaires; 
 
 “Government”  includes government at any level, and any public body; 
 
 “Interested parties”  are parties that have a direct interest in an investigation and may include 
known – 
 
 (a) producers in SACU 
 (b) exporters; 
 (c) foreign producers;  (d) importers; 
 (e) trade or business associations whose members are SACU or foreign producers, 
exporters or importers; and/or 
 (f) the governments of the countries of origin and of export; 
 
of the product under investigation or the like product. This does not preclude the Commission from 
accepting other parties as interested parties at th e behest of the Commission in a countervailing 
investigation. 
 
 “Investigation period for subsidies”  is the period for which it is assessed whether the 
exports from the country under investigation benefite d from subsidies.  This period shall normally be 
12 months, and may be more, but in no case less than 6 months, and shall normally be a period ending not more than 6 months before the initiation of th e investigation.  The investigation period for 
subsidies shall be clearly indicated in the initiation notice published in the Government Gazette . 
  
 “Investigation period for injury”  is the period for which it is  assessed whether the SACU 
industry experienced material injury.  This period shall normally cover a period of three years plus G/SCM/N/1/ZAF/2/Add.1 
Page 6  
 
 information available on the current financial year at  the date that the application was submitted, but 
may be determined by the Commission as a different period provided that the period is sufficient to 
allow for a fair investigation.  The investigation period for injury shall be clearly indicated in the 
initiation notice published in the Government Gazette .  
 
 “Lesser duty”  means the provisional payment or countervailing duty imposed at the lesser of 
the subsidy margin or the margin of injury, and which is deemed to be sufficient to remove the injury 
caused by the subsidised exports. 
 
 “Like product”  means – 
  (a) a product which is identical, i.e. alike in all respects to the product under 
consideration, or  
 (b) in the absence of such a product, another product which, although not alike in all 
respects, has characteristics closely resembling those of the product under 
consideration. 
 
 “Main Act”  refers to the International Trade Admini stration Act, 2002 (Act No. 71 of 2002); 
 
 “Margin of subsidy”  is the extent of the subsidies paid by or on behalf of the government in 
such exporting country or in the coun try of origin and related to the product under investigation or to 
an input used in the production of the product under investigation;  
 “Material injury” , unless the opposite is clear from the context, refers to actual material 
injury, a threat of material injury or the material  retardation of the estab lishment of an industry; 
 
 “Price depression”  takes place where the SACU industry ’s ex-factory selling price decreases 
during the investigation period; 
 
 “Price disadvantage”  is the extent to which the price of the imported product is lower than 
the unsuppressed selling price of the like product produced by the SACU industry, as measured at the 
appropriate point of comparison; 
 
 “Price suppression”  takes place where the cost-to-price-ratio of the SACU industry 
increases, or where the SACU industry sells at a loss  during the investigation period or part thereof; 
  “Price undercutting”  is the extent to which the price of the imported product is lower than 
the price of the like product produced by the SACU industry, as measured at the appropriate point of 
comparison; 
 
  “SACU” means the Southern African Customs Union; 
 
 “SACU industry”  means the domestic producers in the SACU as a whole of the like product 
or those of them whose collective output of the product constitutes a major proportion of the total 
domestic production of those products; 
 
 “Unsuppressed selling price”  is the price at which the SACU industry would have been able 
to sell the like product in question in the absence of subsidised exports.     G/SCM/N/1/ZAF/2/Add.1 
 Page 7 
 
 
 Part B – General Provisions 
 
2. Confidentiality  
 
2.1 Interested parties providing confidential information in any correspondence shall furnish 
non-confidential summaries thereof.  These summaries shall –  
 
 (a) indicate in each instance where confidential information has been omitted; 
 (b) indicate in each instance the reasons for c onfidentiality; and 
 (c) be in sufficient detail to permit other in terested parties a reasonable understanding of 
the substance of the informa tion submitted in confidence. 
 
2.2 Where information does not permit summarisation reasons should be provided why the 
information cannot be summarised. 
 
2.3 The following list indicates “information that is by nature confidential” as per section 33(1)(a) 
of the Main Act, read with section 36 of the Prom otion 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 ha ve serious consequences for the person that 
provided such information;  and 
 (h) information that would be of signif icant competitive advantage to a competitor; 
 
provided that the party submitting such in formation indicates it to be confidential. 
 
2.4 All correspondence not clearly indicated to  be confidential shall be treated as non-
confidential.  
 
2.5 The Commission may disregard any informatio n indicated to be confidential that is not 
accompanied by a proper non-confidential version and will return such information to the party submitting same, if this deficiency  has not been addressed in acco rdance with the provisions of 
section 31. 
 
2.6 The Commission will disregard any information indicated to be confidential that is not 
accepted as confidential by the Commission under sec tion 34(1) of the Main Act and will return such 
information to the party submitting the same. 
 
3. Investigations   3.1 A countervailing investigation shall only  be initiated upon acceptance of a properly 
documented application by or on behalf of the SACU industry, except as provided for in subsection 3.  
 3.2 An interim, new shipper, an ti-circumvention or sunset review  shall be initiated upon a written 
application by or on behalf of an interested pa rty, except as provided for in subsection 3. 
 
3.3 The Commission may initiate an investigat ion mentioned in subsection 1 or a review 
mentioned in subsection 2 without having received a written application from th e relevant interested G/SCM/N/1/ZAF/2/Add.1 
Page 8  
 
 party.  In such cases the Commission shall proceed only if it has sufficient evidence of, or of a 
significant change in circumstances relating to, subsidised exports, material injury and a causal link to 
justify the initiation of such investigation or revi ew.  A non-confidential version of the information 
shall be made available to all known interested parties. 
 
3.4 Prior to initiation of an investigation, a notif ication must be forwarded to the foreign country 
inviting it to consultations to disc uss the alleged subsidies, to determine whether any other subsidies 
are applicable and to seek a mutually agreeable solution.   
 4. Representation 
 
4.1 Should any of the interested parties wish to be represented by an outside party in an 
investigation or a review the interested part y must provide the Commission with a letter of 
appointment of its representative, detailing the identity of the representative and the scope and 
duration of the representation.  
 4.2 Should any interested party wish to terminat e a representation indicated in subsection 1, such 
party must provide the Commission with a letter to this effect. 
 
4.3 Once an interested party has appointed a representative all communication between the 
Commission and the interested party will take  place through the appointed representative.  
 
5. Oral hearings  
 5.1 Any interested party may request an oral  hearing during the preliminary and/or final 
investigation phases of an investigation, provided th e party indicates reasons for not relying on written 
submissions only.  The Commission may refuse an oral hearing if granting such hearing will unduly 
delay the finalisation of a prelim inary or final determination. 
 
5.2 No request for an oral heari ng will be considered more than 30 days, and no oral hearing will 
be heard more than 60 days, after the publication of the Commission’s preliminary finding. 
 
5.3 All information presented during an oral hearing shall be reduced to writing and a non-
confidential version will be placed on the public file.  
 
5.4 Parties requesting an oral hearing shall prov ide the Commission with a detailed agenda for, 
and a detailed version, including a non-confidential version, of the information to be discussed at the 
oral hearing at the time of the request. 
 
5.5 The Commission may limit the duration of the oral hearing.  Any such limitation must be 
communicated to the party requesting a hearing at the same time that the Commission indicates the 
date for such hearing. 
 
5.6 The Commission may limit or add to the agenda contemplated in subsection 4. 
 6. Adverse party meetings  
 6.1 Any interested party may request an adverse party meeting during the preliminary and/or final investigation phases of an investigation, provided th e party indicates reasons for not relying on written 
submissions only.  The Commission may refuse an  adverse party meeting if  granting such meeting 
will unduly delay the finalisation of a preliminary or final determination. 
  G/SCM/N/1/ZAF/2/Add.1 
 Page 9 
 
 
 6.2 No request for an adverse party meeting will be  considered more than 30 days, and no adverse 
party meeting will be held more than 60 days, af ter the publication of the Commission’s preliminary 
finding. 
 
6.3 All interested parties that ha ve cooperated during the investigation shall be invited to attend 
the adverse party meeting.  All parties so invited shal l be granted 7 days to indicate whether they will 
attend the adverse party meeting. 
 
6.4 All information presented during an adverse party meeting shall be reduced to writing and a 
non-confidential version will be placed on the public file.  
 6.5 Parties requesting an adverse party meeting shall provide the Commission with a detailed 
agenda for and a detailed version, including non-confidential version, of the information to be 
discussed at the adverse party meeting at the ti me of the request.  The Commission will make the 
agenda available to other interested parties for comments and additions.  The Commission will make 
the final agenda available in advance to all parties attending the adverse party meeting at least 7 days 
prior to such meeting taking place. 
 
6.6 The Commission may limit or add to the topics to be covered during the oral hearing and may 
structure the meeting as it deems efficient. 
 6.7 The Commission may limit the duration of the adverse party meeting.  Any such limitation must be communicated to all parties attending the m eeting when the date for the meeting is finalised. 
 
6.8 In adverse parties meetings account shall be taken of the need to preserve confidentiality and 
of convenience to the parties.  Confidential information may be submitted in camera, but a non-
confidential version of such confidential informat ion shall be made available to other interested 
parties. 
 
6.9 There shall be no obligation on any party to atte nd a meeting, and failure to do so shall not be 
prejudicial to that party’s case. 
 
 
Part C – Procedures 
 
Sub-Part I – General 
 
 
7. SACU industry  
 
7.1 Other than investigations initiated in terms of  section 3.3, any application for countervailing 
action shall be brought by or on behalf of the SACU industry. 
 
7.2 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 re ferring to the rest of the SACU producers.   
 G/SCM/N/1/ZAF/2/Add.1 
Page 10  
 
 7.3 An application shall be regarded as brough t by or on behalf of the SACU industry if – 
 
 (a) at least 25 per cent of the SACU prod ucers by domestic production volume support 
the application;  and  
 (b) of those producers that express an opinion on the application, more than  50 per cent 
by domestic production volume support such application. 
 
7.4 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 be reasonably 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.  
7.5 If a SACU producer withdraws the applicatio n 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 continue with its investigation as if all 
requirements in subsections 1, 2 and 3 have been met. 
 
8. Subsidies  
 
8.1 For the purpose of these regulations, a subsidy shall be deemed to exist if –  
 (a) there is a financial contribution by a government at any level or any public body 
within the territory of an exporting country; i.e. where: 
 
  (i) a government practice involves a dire ct transfer of funds,  (e.g. grants, loans 
and equity infusion) potential direct tran sfers of funds or liabilities (e.g. loan 
guarantees); 
  (ii) government revenue that is otherwise due is foregone or not collected (e.g. 
fiscal incentives such as tax credits);
1 
  (iii) a government provides goods or serv ices other than general infrastructure, or 
purchases goods; 
  (iv) a government makes payments to a f unding mechanism, or entrusts or directs a 
private body to carry out one or more of the type of functions illustrated in (i) 
to (iii) above which would normally be  vested in the government and the 
practice, in no real sense, differs from practices normally followed by 
governments;  or 
 
 (b) there is any form of income or price support by government; and 
 (c) a benefit is thereby conferred. 
 
8.2 For the purposes of subsection 1, the territory of a country shall include any area set aside as 
an export processing or development zone and other similar areas. 
 
                                                      
1 The exemption of an exported product from duties or taxes borne by the like product when destined 
for domestic consumption, or the remission of such duties or taxes in amounts not in excess of those which have 
accrued, shall not be deemed to be a subsidy.  G/SCM/N/1/ZAF/2/Add.1 
 Page 11 
 
 
 9. Countervailability of subsidies 
 
9.1 A subsidy shall be countervailable only if: 
 
 (a) such subsidy is specific, i.e. if the granting authority explicitly limits access to a 
subsidy to an enterprise or industry or group of enterprises or industries, or if the 
Commission finds in fact that the subsidy is  used by a limited number of enterprises 
or industries or a disproportionately large amount of the subsidy is granted to a 
limited number of enterprises or industries [certain enterprises or industries];  and 
 (b) it causes material injury to the SACU industry producing the like product.  9.2 An export subsidy shall be deemed to be a specific subsidy regardle ss of whether the subsidy 
has explicitly or in fact been made contingent upon export performance. 
 
9.3 Where a subsidy may in fact be specific under the provisions of paragraph (a) of subsection 
9.1, the Commission shall take account of the extent  of economic diversificatio n in the jurisdiction of 
the granting authority and the length of time during which the subsidy programme has been in 
operation. 
 
9.4 A countervailing measure may only be imposed if the subsidy is one per cent or more of the 
invoiced export price.  9.5 In the case of developing countries, the refe rence to “one per cent” in subsection 3 shall be 
understood to be “two percent”. 
 
9.6 All subsidies shall be cumulated before a de termination whether the to tal subsidy exceeds the 
de minimis standard, as contemplated in subsections 3 and 4, is made. 
 10. Subsidies not alleged in application 
  The Commission shall be entitled to take into  account and add up any or all subsidies found 
during the course of the investigation even if the SACU industry has not alleged the existence of such 
subsidy in the application. 
 11. Calculation of subsidy margin  
 
11.1 The calculation of the subsidy margin shall take cognisance of the time value of money. 
 
11.2 For the purposes of determining the margin of each individual subsidy, the Commission may 
take into account the following: 
 
(a) Grants 
 
 Grants can be made in several different ways, including, but not limited to, equity infusion, 
the conversion of a loan into equity or by waiver of a debt due to agreement.  The determination of the 
amount of subsidy countervailable in a particular year shall provide for the time value of money and 
shall include reference to the amount originally paid , the number of years that have lapsed since the 
grant was paid, the average life cycle of the plant or  equipment and the interest rate payable in the 
country of origin.  G/SCM/N/1/ZAF/2/Add.1 
Page 12  
 
 (b) Loans 
 
 Loans by the government at market equivalent rates shall not be deemed to be a subsidy, but 
the advantage gained through loans made under ci rcumstances that loans would not normally be 
granted, or the lesser amount of interest paid or pa yable if loans are made at preferential rates shall be 
deemed to be subsidy.  In the determination of th e amount of subsidy countervailable in a particular 
year the Commission shall consider the time value of money and include reference to the original 
amount of the loan, the number of years that have  lapsed since the grant was paid, the average life 
cycle of the plant or equipment, the interest rate payable on the loan and the market interest rate 
applicable in the country of origin.   (c) Foregoing of revenue 
 
 In the determination of the amount of subsidy countervailable in a particular year the 
Commission shall take cognisance of any revenue due to the government of the exporting country that 
was foregone by such government and the pr oducts to which such revenue pertains. 
 
(d) Tax holidays and rebates 
 
 Non-payment of corporate tax on export ea rnings is a prohibited subsidy and actionable 
except for developing countries listed in Annex VII of  the Subsidies Agreement.  In its determination 
of the margin of subsidy the Commission shall consider the company’s export earnings for the period under review and the corporate tax rate in that country .  In its determination of the margin of subsidy 
regarding a tax holiday the Commission shall take co gnisance of the amount of tax paid vis-à-vis the 
amount payable in the absence of such tax holiday, and the products to which such tax holiday 
applies. 
 
(e) Input subsidies 
 
 An input subsidy is a subsidy paid on an input cost of a product that is subsequently exported. 
In its determination of the margin of subsidy the Commission shall consider the effect of the input 
subsidy on the cost or price of the product under investigation. 
 
(f) Over-reimbursement of customs duties 
 
 Over-reimbursement of customs duties occurs where a manufacturer imports raw materials that are used in the manufacture of final products that are exported and the duty paid on importation is 
over-reimbursed, or where the exporter cannot provide proof that the imported product, on which 
reimbursement was claimed, is actually incorporated in  the exported product.  In its determination of 
the margin of subsidy the Commission shall consider  of the amount of customs duty payable and that 
rebated and/or refunded. 
 
(g) Preferential interest rates for export purposes 
 
 If interest rates lower than those prevailing in  the market are granted to a company by the 
government or a public body at the behest of the government it will be regarded as a subsidy.  In its 
determination of the margin of subsidy the Commis sion shall consider the interest rate payable on 
domestic and export markets, the original amount of the loan and the value of the product exported.   G/SCM/N/1/ZAF/2/Add.1 
 Page 13 
 
 
 (h) Other subsidies 
 
 The Commission will determine the margin or amount of subsidy for any subsidy not 
indicated under subparagraphs (a) through (f) with reference to the facts pertaining to each such 
subsidy, taking cognisance of – 
 
 (i) the time value of money; 
 (ii) the duration of the subsidy; 
 (iii) whether the subsidy is linked to expo rts or to all sales or production;  and 
 (iv) any other relevant information at the Commission’s disposal.  
12. Margin of subsidy 
  The Commission shall determine the margin of each individual subsidy, including those not 
listed under paragraph 2 of section 11, with reference to either the cost to government or the benefit to 
the recipient thereof.  
13. Material injury  
 
131.1 In determining material injury to the SACU industry the Commission shall consider whether 
there has been a significant depression and/or suppression of the SACU industry’s prices.  13.2 In its determination of material injury the Commission shall further consider whether there 
have been significant changes in the domestic perf ormance of the SACU industry in respect of the 
following potential injury factors: 
 
 (a) sales volume; 
 (b) profit and loss; 
 (c) output; 
 (d) market share; 
 (e) productivity; 
 (f) return on investments; 
 (g) capacity utilisation; 
 (h) cash flow; 
 (i) inventories; 
 (j) employment;  (k) wages; 
 (l) growth; 
 (m) ability to raise capital or investments;  
 (n) whether there has been an increased burden on the Government’s support 
programmes;  and 
 (o) any other relevant factors placed before the Commission. 
 
This list is not exhaustive nor can one or several of these factors necessarily give decisive guidance. 
 
13.3 The Commission may require any additional in formation on injury from the SACU industry 
at any stage during an investigation. 
 13.4 Each of the factors mentioned in subsections  1 and 2 shall be considered for the product under 
investigation only or, where such analysis is no t possible, for the narrowest group of products for 
which such analysis can be made.  Only if no such information is available will the Commission 
consider the information for the company as a whole, and then with special circumspection. 
 G/SCM/N/1/ZAF/2/Add.1 
Page 14  
 
 14. Threat of material injury 
 
14.1 A determination of threat of material injury shall be based on facts and not merely on 
allegation, conjecture or remote possibility.  Th e change in circumstances which would create a 
situation in which subsidised exports would cause material injury must be clearly foreseen and 
imminent. 
 
14.2 In considering a threat of material injury the Commission shall, in addition to the factors 
indicated under section 13, and where relevant inform ation is available, consider such factors as:  
  (a) The nature of the subsidy or subsidies in question and the trade effects likely to arise 
therefrom; 
 (b) a significant rate of increase of subsidis ed imports into the domestic market of the 
SACU; 
 (c) sufficiently freely available, or an immi nent substantial increase in, capacity of the 
exporter; 
 (d) the availability of other export markets to absorb additional export volumes; 
 (e) whether products are entering or will be en tering the SACU market at prices that will 
have a significant depressing or suppressing effect on SACU prices;  and 
 (f) the exporter’s inventories of  the product under investigation. 
 
15. Material retardation of the establishment of an industry 
 
15.1 No investigation shall be initiated on the basi s of the material retardation of the establishment 
of an industry unless the industry or proposed industry has supplied the Commission with a 
comprehensive plan indicating the establishment of  such industry in the absence of subsidised 
exports. 
 
15.2 The Commission may request a provisional payment or recommend a countervailing duty 
where the establishment of such industry is ma terially retarded by subsidised imports. 
 
15.3 If significant progress has not been made to establish an industry as proposed in subsection 2 
within one year following the imposition of a countervailing duty, the Commission may recommend 
that the countervailing duty be withdrawn. 
 
16. Causality 
 
16.1 In considering whether there is a causal link between the subsidised exports and the material 
injury the Commission shall consider all rele vant factors, including, but not limited to: 
 
 (a) the change in the volume of subsidised imports, whether absolute or relative to the 
production or consumption in the SACU market; 
 (b) the price undercutting experienced by the SACU industry vis-à-vis the imported 
products; 
 (c) the market share of the subsidised imports; 
 )d) the magnitude of the margin of subsidisation; and 
 (e) the price of fairly traded imports available in the market. 
 16.2 The volume of exports from a country shall norm ally be regarded as negligible if the volume 
of imports for the like product from that country is found to account for less than three per cent of the 
total imports of the like product into the SACU market, unless countries which individually account 
for less than three per cent of the total imports of the like product into the SACU market for the like  G/SCM/N/1/ZAF/2/Add.1 
 Page 15 
 
 
 product collectively account for more than seven per cent of the total imports of the like product into 
the SACU market. 
 
16.3 The Commission may cumulatively assess the effe ct of the subsidised imports only if it finds 
that cumulation is appropriate in light of – 
 
 (a) competition between imports fr om the different countries;  and 
 (b) competition between the imported pr oducts and the SACU like products;   
and if  
 (c) the imports from the countries are not neg ligible as contemplated in subsection 3; and 
 (d) the margin of subsidy is one per cent or more when expressed as a percentage of the 
export price. 
 
16.4 Notwithstanding the provisions of subsection 3, the Commission may cumulate subsidised 
and dumped imports that are under investigation at the same time, provided the conditions 
contemplated in subsection 3 are met mutatis mutandis.  
16.5 The Commission shall determine whether there is a causal link between subsidised exports 
and the material injury determined under section 13. 
 
16.6 The Commission shall consider all relevant factors other than subsidised imports that may have contributed to the SACU industry’s injury provid ed that an interested party has submitted, or the 
Commission otherwise has, information on such factor or factors.  The injury caused by such other 
factors shall not be attributed to the subsidised impo rts.  Factors that may be relevant in this respect 
include, but are not limited to –  
 
 (a) the volume and prices of imports not sold at subsidised prices; 
 (b) contraction in demand or changes in the patterns of consumption; 
 (c) trade restrictive trade practices of and competition between the foreign and SACU 
producers; 
 (d) developments in technology; 
 (e) other factors affecting the SACU prices;  
 (f) the industry’s export performance; and 
 (g) the productivity of the SACU industry. 
 
17. Level of countervailing duty  
 
17.1 The Commission shall consider applying the lesser duty rule if both the corresponding 
importer and exporter have cooperated fully.  
 
17.2 The Commission, in determining the level of  the countervailing duty, shall ensure that a 
product is not subject to both countervailing and anti-dumping duties to compensate for the same 
situation of dumping or export subsidisation. 
 
18. Verifications  
 
18.1 The Commission shall satisfy itself as to the accuracy of the information supplied by 
cooperating interested parties.  18.2 The Commission may conduct such verifications at the SACU producers and at cooperating 
importers, exporters, foreign producers and foreign governments as it may deem necessary.  
 G/SCM/N/1/ZAF/2/Add.1 
Page 16  
 
 18.3 In the event that an importer, exporter, fo reign producer or foreign government refuses to 
receive a verification visit by the Commission, refuses the Commission access to relevant information 
or acts so as to significantly impede the investig ation, the Commission may disregard the information 
submitted by that party.  
 
18.4 Where a party – 
 
 (a) fails to supply relevant substantiating evidence required by investigating officers 
during a verification; 
 (b) fails to explain any calculations contained in its submissions; or  (c) otherwise fails to cooperate during the investigation process;  
the Commission may terminate the verification proceedings and the Commission may disregard any 
or all information submitted by the party in ques tion.  The Commission may nevertheless consider 
information that was properly submitted and verified. 
 18.5 The Commission shall inform the government of the country concerned of the dates of the 
intended verification visit and shall conduct the verification on those dates unless that government 
objects to the verification. 
 
18.6 Where the government of the country concer ned objects to the Commission’s verification the 
Commission may make a preliminary or final decision based on the facts available, and may exclude any information submitted by any party in that country. 
 19. Verification reports 
 
19.1 Following an exporter, foreign producer or  foreign government verification the Commission 
shall make a verification report available to the co mpany or country in question, as the case may be, 
indicating all information verified. In cases where verification took place prior to the Commission’s 
preliminary determination, such verification report shall normally be made available before the 
Commission’s preliminary finding. 
 
19.2 The Commission will place a copy of the non-confidential verification report on the public 
file prior to its preliminary determination, if the verification took place prior to the preliminary 
determination. 
 19.3 Parties will receive 7 days to comment on the verification report. The Commission may grant 
an extension upon good cause shown. 
 20. Deadlines 
  All investigations and reviews shall be finalised within 18 months after initiation. 
 
 
Sub-Part II – Pre-Initiation Procedure 
 
21. Properly documented complaint  
 
21.1 Written complaints shall be made by or on behalf of the SACU industry using the Commission’s relevant questionnaire. 
 
21.2 On receipt of a complaint the Commission’s trade remedies unit shall liase with the SACU 
industry to ensure that all required informati on has been submitted in the required format.  G/SCM/N/1/ZAF/2/Add.1 
 Page 17 
 
 
  
22. Properly documented application  
 22.1 In determining whether a complaint submitte d in terms of section 21 constitutes a properly 
documented application the Commission shall determine whether the application includes such 
information as is reasonably available to the ap plicant relating to the prescribed information. 
 
22.2 The Commission will return all applications th at are not properly completed to the applicant. 
 23. Proof of subsidy standard for initiation purposes  
 
23.1 The applicant shall submit such information as is reasonably available on each subsidy 
programme alleged. 
 
23.2 For the purpose of subsection 1, a copy of the official publication c iting the relevant subsidy 
programme, newspaper reports, a copy of a previous finding by the Commission in respect of a particular subsidy, and the like, shall be considered a prima facie  proof of the existence of a 
countervailable subsidy. 
 
23.3 The applicant shall provide the Commission wi th a reasonable calculation of the extent of 
each alleged subsidy, as well as the a lleged total margin of subsidisation. 
 
24. Material injury standard for initiation purposes 
  In determining material injury to a SACU in dustry the Commission sha ll consider whether the 
information submitted in this rega rd and relating to the factors lis ted in section 13 indicates a 
prima facie  case of material injury.  
 25. SACU industry verification 
  The Commission shall satisfy itself of the accuracy and adequacy of the information provided 
in the application. Deficiencies or inaccuracies that do not detract from the prima facie  establishment 
of a case of injurious subsidised exports shall no t result in any delay in initiating an investigation. 
 26. Merit Assessment 
 
26.1 In its merit assessment the Commission shall determine whether there is sufficient 
information to establish a prima facie  case that subsidised exports ar e causing material injury to the 
SACU industry. 
 
26.2 In the event that the Commission makes a negative merit assessment it shall inform the 
applicant concerned accordingly and supply it with a full set of reasons for its decision. 
 
26.3 The Commission may grant the SACU industry an oral hearing to discuss the reasons for 
rejecting an application if the applicant so requests.  
 
27. Notification 
 
27.1 The Commission shall notify the representative of the country of origin and of export, where applicable, that it has received a properly docume nted application in terms of section 22, after 
verification of the SACU industry’s injury informa tion, but prior to initiation, and shall provide such 
representative with a non-confidential version of the application. 
 G/SCM/N/1/ZAF/2/Add.1 
Page 18  
 
 27.2 Except as provided for in subsection 1, the Commission shall not publicise the application 
prior to the initiation of an investigation. 
 
27.3 Following the notification contemplated in subsection 1, the Commission shall invite  the 
foreign country  to consultations  with the Commission regarding th e alleged subsidy programmes.  
 
28. Initiation 
 
28.1 An investigation shall be formally initiated through publication of an initiation notice in the 
Government Gazette . 
  28.2 The initiation notice shall cont ain the basis of the alleged subs idised exports, material injury 
and causality, and shall also i ndicate at least the following: 
 
 (a) the identity of the applicant; 
 (b) a detailed description of the product under investigation, including the tariff 
subheading applicable to the product; 
 (c) the country or countries under investigation;  
 (d) the investigation periods for injury and subsidised exports; 
 (e) the basis of the allegation of subsidised exports; 
 (f) a summary of the factors on which the allegation of injury is based;  (g) the address to which repres entations by interested parties should be directed;  and  
 (h) the time frame for responses by interested parties. 
 
28.3 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 injury analysis.  
 
28.4 All interested parties shall be deemed to have received notice of the investigation once it has 
been duly initiated in terms of subsection 1 and no exte nsion for deadlines, as contemplated in section 
30, shall be considered on the basis of ignorance of the investigation. 
 
28.5 The Commission shall inform all known interest ed parties of the initiation of the investigation 
and supply them with all relevant documentation,  unless the number of interested parties makes it 
impracticable. 
  
Sub-Part III – Preliminary Investigation Phase 
 
29. Responses by interested parties  
 29.1 Importers, exporters and foreign producers are required to use the relevant Commission 
questionnaires in their responses to the Commission. 
 
29.2 Parties shall be deemed to have received th e questionnaires 7 days after the dispatch of the 
questionnaires by the Commission. 
 
29.3 From receipt of the questionnaires, as cont emplated in subsection 2, parties shall receive 
30 days to submit their responses to the Commission.  Such responses must reach the Commission’s trade remedies unit before 15h00 on the date indicated. 
  G/SCM/N/1/ZAF/2/Add.1 
 Page 19 
 
 
 29.4 The deadline for submission by parties not directly informed of the investigation by the 
Commission will be 40 days from the date of  the initiation of such investigation in the Government 
Gazette . 
 
29.5 All submissions shall be made in both hard copy and in electronic format, unless the 
Commission has agreed otherwise in writing.  Failur e to comply with this provision may result in the 
submission being regarded as deficient.  
 
30. Extensions for submissions 
 
30.1 The Commission may grant parties an extension on good cause shown.  
30.2 Any extension granted in terms of subsection 1 will apply only to the party to which such 
extension was granted, and will not a pply to other interested parties. 
 
31. Deficiencies   
31.1 Submissions may be deemed deficient – 
 
 (a) If any relevant information has not been submitted; 
 (b) If a proper non-confidential version has not been submitted; or  (c)  In the circumstances contemplated in section 29.5.   
31.2 Parties will receive 7 days from the date of the Commission’s deficiency letter to address any 
deficiencies pointed out by the Commission in terms of subsection 1. 
 
31.3 The Commission will not consider submissions that are deficient after the deadline 
contemplated in subsection 2 for the purpose of its preliminary finding.  
 
32. Non-cooperation by exporters or foreign producers 
 
32.1 In the event that no exporter or producer  from a particular country cooperates in a 
countervailing investigatio n by the deadline contemplated in sections 29 or 30, the Commission may, 
subject to the requirements of section 33.1, immediately request the imposition of a provisional 
payment on the basis of the facts available. 
 32.2 In the event that one or more exporters or producers in a particular country cooperates while 
other exporters or producers do not cooperate , the Commission, for the purpose of the non-
cooperating exporters or producers, may base its preliminary decision on the best information 
available, as provided for in subsection 5. 
 
32.3 In order to expedite proceedings, the Commission may split investigations between 
cooperating and non-co operating exporters. 
 
32.4 In the event that an exporter has submitted an incomplete or otherwise deficient submission 
by the deadline contemplated in sections 29, 30 an d 31, the Commission will disregard its information 
for the purpose of its preliminary finding. 
 32.5 In cases of non-cooperation by an exporter  facts available may include, in any order, - 
 
 (a) the information on subsidies obtained from  or at another seller or sellers in that 
market;  
 (b) the information contained in the application; and/or G/SCM/N/1/ZAF/2/Add.1 
Page 20  
 
  (c) any other information at the Commission’s disposal; 
 
Provided the Commission has, where practicable, checked the information from other independent 
sources at its disposal. 
 
33. Provisional measures   33.1 Provisional measures may not be imposed w ithin less than 60 days after initiation of an 
investigation. 
 33.2 Provisional measures will be imposed for a period of not more than four months.  
33.3 The Commission may determine the level of provisional payments against non-cooperating 
parties as set out in section 32.2. 
 
34. Preliminary report   
34.1 The Commission shall make available a non-confidential report within seven days of the 
publication of its preliminary finding. 
 
34.2 The preliminary report shall contain at least the following information:   (a) identity of the applicant; 
 (b) a full description of the product under investigation; 
 (c) date of the Commission’s decision to initiate the investigation; 
 (d) initiation date and notice number; 
 (e) date of the Commission’s preliminar y findings on subsidisation and injury; 
 (f) the margin of subsidisation found in respect of each subsidy; 
 (g) the methodology used by the Commission to determine the margin of subsidisation; 
 (h) the injury factors considered;  
 (i) the causality factors considered; 
 (j) the Commission’s finding; and 
 (k) while preserving the requirements of co nfidentiality, all relevant issues of fact and 
law considered by the Commission in r eaching its preliminary determination. 
 
 
Sub-Part IV – Final Investigation Phase 
 
35. Comments on preliminary report  
 
35.1 All interested parties shall receive 14 days , from the date the preliminary report is made 
available, to comment in writing. 
 
35.2 The Commission may grant parties an extension on good cause shown. 
 
35.3 Any request for an extension to the deadline contemplated in subsections 1 and 2 shall be 
requested in writing at least 7 days prior to such deadline and shall co ntain a proper motivation for the 
request.  35.4 Other than as contemplated in subsection 5, the Commission will not accept new information 
following its preliminary finding.  
  G/SCM/N/1/ZAF/2/Add.1 
 Page 21 
 
 
 35.5 Parties that have submitted deficient responses, as contemplated in section 31, and that have 
addressed the deficiencies prior to the deadline indica ted in section 32 of this section, shall be deemed 
cooperating parties and the Commissi on will consider their information in its final finding, subject to 
the provisions of section 36 and the require ment to finalise an investigation timely. 
 
36. Extension of validity of provisional measures    The validity of a provisional countervailing measure may not be extended. 
 37. Essential facts 
 
37.1 All interested parties will be informed of  the essential facts to be considered by the 
Commission, provided there has been a change in the facts to be considered since the Commission 
issued its preliminary determination. 
 
37.2 All interested parties will receive 7 days to comment on the essential facts. 
 
37.3 The Commission may grant parties an extension on good cause shown. 
 
37.4 The Commission will take all relevant comments on the essen tial facts into consideration in 
its final finding.  
38. Definitive countervailing duties 
 38.1 Definitive countervailing duties will remain in  place for a period of five years from the date 
of the publication of the Commission’s final r ecommendation unless otherwise specified or unless 
reviewed prior to the lapse of the five-year period. 
 
38.2 Definitive countervailing duties may be impos ed with retroactive effect as provided for in 
terms of the Customs and Excise Act, 1964 (Act No 91 of 1964). 
 
38.3 Where parties have not properly cooperated in a investigation, the Commission may base its 
final finding for such parties on the facts available and may determine the level of the countervailing 
measure on such facts available. 
 
39. Price undertakings  
 
39.1 Proceedings may be suspended or terminated  following the receipt of a satisfactory price 
undertaking under which – 
 
 (a) the government of the exporting country ag rees to eliminate or limit the subsidy or 
take other measures concerning its effect; or 
 (b) the exporter agrees to revise its prices or to cease exports to the SACU at subsidised 
prices so that the Commission is satisfied that subsidised exports or the injurious 
effect thereof is eliminated,  
 
provided the Commission has made at least a preliminary determination in the matter. 
 39.2 The Commission may decide on the information to be submitted in respect  of the offering and 
maintenance of undertakings and may terminate an undertaking if the conditions are not met. 
 G/SCM/N/1/ZAF/2/Add.1 
Page 22  
 
 39.3 Undertakings need not be accepted if the Commission considers their acceptance impractical, 
e.g. where the number of exporters is too great, or for other reasons, including reasons of general 
policy. 
 
39.4 In cases where an undertaking is violat ed the Commission may take expeditious action 
against such exporter, including the immediate request to the Commissioner for the South African 
Revenue Service to impose provisional payments. 
 
 
Part D – Reviews 
 
Sub-Part I – General 
 
40. Notification 
 40.1 Other than as provided for in section 55 in respect of sunset reviews, the government of the country concerned shall be notified of the review as soon as a properly documented review 
application has been received. 
 
40.2 The government of the country concerned an d all other known interested parties shall be 
supplied with all the relevant non-confidential information as soon the review in question has been initiated through publication in the Government Gazette . 
 
40.3 On receipt of a properly documented review application a notification must be forwarded to 
the foreign country inviting it to consultations to di scuss the alleged subsidies, to determine whether 
any other subsidies are applicable and to seek a mutually agreeable solution.  
 
41. Initiation 
 
41.1 All reviews shall be initiated through notice in the Government Gazette .  Such notice shall 
indicate the following minimum information: 
 
 (a) the identity of the applicant; 
 (b) the product under consideration; 
 (c) the investigation periods for su bsidisation and injury, respectively; 
 (d) the scope of the review;   (e) the current countervailing measures in place; and 
 (f) a summary indicating the basic info rmation on which the review is based. 
 
41.2 For sunset reviews the provisions regarding the initiation of sunset reviews as contemplated in 
section 56 shall apply in addition to th e provisions indicated in subsection 1.  
 
42. Responses by interested parties 
 
42.1 All interested parties are required to use the relevant Commission questionnaires in their 
responses. 
 
42.2 Parties shall be deemed to have received th e questionnaires 7 days after the dispatch of the 
questionnaires by the Commission.  
42.3 From receipt of the questionnaires, as cont emplated in subsection 2, parties shall receive 30 
days to submit their responses to the Commission. 
  G/SCM/N/1/ZAF/2/Add.1 
 Page 23 
 
 
 42.4 The Commission may grant parties an extension on good cause shown. 
 
43. Essential facts 
 
43.1 All interested parties will be informed of  the essential facts to be considered in the 
Commission’s final determination. 
 
43.2 All parties will receive 14 days from the di spatch of the essential facts letter to comment 
thereon. 
 43.3 The Commission may grant parties an  extension on reasonable grounds shown. 
 
43.4 In its final determination the Commission will consider all relevant comments on the essential 
facts letter made by cooperating interested part ies, provided such comments are received by the 
deadline contemplated in subsections 2 and 3.  
  
Sub-Part II– Interim reviews 
 
44. Time frame 
 
 The Commission will not normally consider an a pplication for an interi m review sooner than 
12 months after the publication of its final finding in the original investigation or the previous review.  
 45. Changed circumstances 
 
45.1 The Commission will only initiate an interim review if the party requesting such interim 
review can prove significan tly changed circumstances. 
 
45.2 Where an importer, exporter or foreign pr oducer has not cooperated in the Commission’s 
investigation that led to the imposition of the co untervailing duty and such importer, exporter or 
foreign producer is su bsequently willing to supply such information, this change in disposition will 
not qualify as significantly changed circumstances. 
 
45.3 No party shall be precluded from requesting an interim review simultaneously with a sunset 
review in order to expand or limit the scope of application.  
46. Review procedure  46.1 An interim review shall consist of a single investigation phase, subjec t to the requirements of 
section 43. 
 
46.2 The Commission may verify such informatio n as it deems necessary to confirm the accuracy 
and the adequacy of the information submitted by any interested party. 
 47. Final recommendation 
 47.1 The Commission’s final finding, in the form of a recommendation to the Minister, may result in an increase, decrease, the withdrawal or th e reconfirmation of the existing countervailing duty. 
 
47.2 The Commission may increase, decrease or confirm the scope of the application of such 
countervailing duty. 
 G/SCM/N/1/ZAF/2/Add.1 
Page 24  
 
  
Sub-Part III – New Shipper Reviews 
 
48. Eligibility 
 
48.1 Only exporters that did not export to SACU during the original investigation period for 
subsidisation may request a new shipper review. 
 
48.2 The exporter requesting such review shall provide sufficient information to prove that  
  (a) it is not and was not related to any party against which the countervailing duty was 
applied;  and 
 (b) it did not export the subject product to SACU during the original investigation period. 
 
48.3 The Commission shall not consider a request  for a new shipper review before definitive 
countervailing duties have been imposed.  
49. Information required 
 
49.1 A new shipper shall provide the Commission with full information on subsidies and any other 
information deemed necessary by the Commission and shall submit such information in the prescribed 
format.  
49.2 In the event that the new shipper has not ex ported any products to SACU during the period 
under review, it shall provide the Commission with the re quired information in the prescribed format.  
 
50. Suspension of countervailing duties  50.1 The countervailing duties in respect of th e new shipper shall be withdrawn simultaneously 
with the initiation of a new shipper review. 
 
50.2 The Commission may request the Commissioner for the South African Revenue Service to 
impose provisional payments at the same level as the countervailing duties simultaneously with the 
withdrawal of the countervailing duties in terms of  subsection 1.  Such provisional payments shall 
remain in force for the duration of the review.  
 51. Review procedure 
 
51.1 A new shipper review shall consist of a single investigation phase.  
 
51.2 The Commission may verify such informatio n as it deems necessary to confirm the accuracy 
and the adequacy of any information submitted by any interested party. 
 
51.3 The exporter’s margin of subsidisation will normally be determined as the subsidy expressed 
as a percentage of the export price to South Africa .  In the event that no export price to South Africa 
can be established, the Commission may determine the export price on any reasonable basis, 
including, but not limited to, with reference to the new shipper’s export price to an appropriate third 
country.   G/SCM/N/1/ZAF/2/Add.1 
 Page 25 
 
 
 52. Final recommendation 
 
 The Commission’s final finding may result in a recommendation to– 
 
 (a) impose a countervailing duty equal to or lower than the level of subsidisation;  or 
 (b) terminate the provisional payment. 
 
 
Sub-Part IV – Sunset Reviews 
 
53. Duration of countervailing duties 
 
53.1 Countervailing duties shall remain in plac e for a period not exceeding 5 years from the 
imposition or the last review thereof. 
 
53.2 If a sunset review has b een initiated prior to the lapse of a countervailing duty, such 
countervailing duty shall remain in force un til the sunset review has been finalised. 
 54. Initiation of sunset review 
 54.1 A notice indicating that an countervailing duty will lapse on a specific date unless a sunset review is initiated shall be published in the Government Gazette  approximately 6 months prior to the 
lapse of such countervailing duty. 
 
54.2 The Commission will directly inform interest ed parties known from the original investigation 
or last review of the subject product of the imminent lapse of the countervailing duties as soon as the 
notice contemplated in subsection 1 has been published. 
 
54.3 Interested parties will rece ive 30 days from the publication of the notice contemplated in 
subsection 1 to request a sunset review. 
 
54.4 In the event that the SACU industry requests  that the countervailing duty be maintained, it 
shall provide the Commission with a proper application containing the necessary information to 
establish a prima facie  case that the removal of the countervailing duty will be likely to lead to the 
continuation or a recurrence of injurious subsidised exports. 
 54.5 If the Commission decides to initiate a sunset  review, it shall publish an initiation notice in 
the Government Gazette  prior to the lapse of such duties. Such  notice shall contain the information as 
contemplated in section 41. 
 
55. Notification 
 
55.1 The government of the country concerned shall be informed of the imminent lapse of the 
countervailing duty as contemplated in section 54.1. 
 
55.2 The government of the country concerned an d all other known interested parties shall be 
notified of – 
  (a) the initiation of the investigation; or  (b) the termination of the proceeding; 
 
after the relevant notice has appeared in the Government Gazette .   
 G/SCM/N/1/ZAF/2/Add.1 
Page 26  
 
 56. Review procedure 
 
56.1 A sunset review shall consist of a single investigation phase.  
 
56.2 The Commission may verify such informatio n as it deems necessary to confirm the accuracy 
and the adequacy of any information submitted by any interested party. 
 57. Information required 
 57.1 Following publication of the notice in terms of section 54.1 the SACU industry shall indicate whether it will request a sunset review to be undertaken.  
57.2 The SACU industry shall provide the Commissi on with detailed information in the prescribed 
format indicating the likelihood of a continuation or recurrence of subs idised exports and injury in the 
event that the countervailing duty is removed. 
 57.3 Once a sunset review has been initiated in  terms of section 54.4 the exporters and foreign 
producers shall be required to submit information in the required format to enable the Commission to 
make a finding on subsidisation.  Exporters and foreign producers shall not be precluded from 
supplying any other information they may deem relevant. 
 57.4 The Commission may require importers to supply any information the Commission deems necessary.  Importers shall not be precluded from supplying any other information they may deem 
relevant. 
 
58. Non-cooperation 
 
58.1 Where the SACU industry does not request a sunset review or does not supply the required 
information following a notice published in terms of section 54.1 within the deadline indicated in 
section 54.2, the Commission will recommend that the countervailing duty lapse on the date indicated 
in such notice. 
 
58.2 Where the SACU industry has supplied the required information and the exporter or foreign 
producer does not cooperate within the time frames contemplated in section 42, the Commission may 
rely on the facts available to reach its final decision. 
 59. Final recommendation 
 
 The Commission’s recommendation may result in the withdrawal, amendment or 
reconfirmation of the original countervailing duty. 
 
 
Sub-Part V – Anti-Circumvention Reviews 
 
60. Circumvention 
 
60.1 Other than circumvention contemplated in su bsections 2(a) and (d), circumvention shall be 
deemed to take place if one or more of the following conditions are met:   (a) a change in the pattern of trade between third countries and South Africa or the 
common customs area of the Southern African Customs Union; 
   
  (i) which results from a practice, process or work;  G/SCM/N/1/ZAF/2/Add.1 
 Page 27 
 
 
  (ii) for which there is no or insufficient cause or economic justification other than the 
imposition of the countervailing duty;  and 
 
 (b) remedial effects of the countervailing duty are being undermined in terms of the 
volumes or prices of the products under investigation. 
 
60.2 For purposes of anti-circumvention the following types of circumvention shall be treated 
separately: 
 
 (a) improper declaration of –    (i) the value or volume of the product; 
  (ii) the origin of the product; or 
  (iii)  the nature or cla ssification of the product. 
 
 (b) minor modifications to the prod uct subject to countervailing duty; 
 (c) the export of parts, components and sub- assemblies with assembly in a third country 
or within the common customs area of the Southern African Customs Union; 
 (d) absorption of the countervailing duty by either the exporter or the importer; 
 (e) declaration under a different tariff heading, even where such different tariff heading 
does provide for the clearance of that product; 
 (f) any other form of circumvention as may be submitted for the Commission’s 
consideration. 
 
60.3 Any instance of circumvention as contemplat ed in subsection 2(a) shall be referred to the 
Commissioner for the South African Revenue Servic e for further investigation.  This shall not 
preclude the Commission from taking countervailing action if the information at the Commission’s 
disposal, including information obtained through su bmissions by interested parties, warrants such 
action. 
 
60.4 Minor modifications of the product shall be deemed to have taken place if the subsequently 
exported product – 
 
 (a) has materially the same production processes, uses the same raw materials and have 
basically the same physical appearance or characteristics; or 
 (b) is a substitute for the product on whic h countervailing duties have been imposed. 
 
60.5 Assembly in a third country or within the common customs area of the Southern African 
Customs Union shall be deemed to take place if the value added in such third country or in the 
common customs area of the Southern African Customs Union does not exceed 25 per cent or does 
not constitute a major transformation process. Such assembly shall not be regarded as changing the 
country of origin. 
 
60.6 The value added in terms of subsection 5 shall be determined with reference to the direct and 
indirect costs of production only and shall not in clude selling, general, administrative or packaging 
expenses or profit. 
 
60.7 Absorption of the countervailing duty  shall be deemed to take place if: 
  (a) the exporter decreases its export price in  any manner to compensate the importer or a 
third party for the extra burden imposed by the countervailing duties, unless there is a 
correspondent decrease in the normal value of the product; G/SCM/N/1/ZAF/2/Add.1 
Page 28  
 
  (b) the importer does not increase its price in line with the countervailing duties, unless 
such importer can provide evidence indicating that it absorbed such countervailing 
duties without assistance from any other pa rty and only from revenue generated by 
the specific product in question; or 
 (c) in cases involving tenders, the tender price is not increased by the effect of the 
countervailing duty. 
 61. Information required 
 61.1 The SACU industry or other interested party shall provide such information that is reasonably 
available to it to indicate that circumvention is taking place.   
61.2 Any request for an anti-circumvention review shall include information of the specific type of 
circumvention that is alleged to take place. 
 
61.3 The Commission may require any interested party to submit such information as it deems 
necessary to properly conduct the review. 
 
61.4 In the event that the party against which the allegation is made does not respond properly 
within the stated deadline, the Commission may make a decision on the facts available to it. 
 
62. Review procedure 
 
62.1 An anti-circumvention review may consist of  either a preliminary and final, or only of a 
single, investigation phase. 
 
62.2 Provided an anti-circumvention complaint is lodged with the Commission within one year of 
the publication of the Commission’s final determin ation, the SACU industry shall not be required to 
update its injury information. 
 
62.3 Notwithstanding the provisions of subsection 2, no injury information shall be required in 
cases of circumvention as contemplated in section 60.2(b) or (c). 
 
62.4 Provided an anti-circumvention complaint is lodged with the Commission within one year of 
the publication of the Commission’s final finding, and in relation to any circumvention alleged in 
section 60.2(b), (c), (d), (e) or (f), the Commission may use the information previously established on the subsidies to determine the margin of subsid isation until such time as  the exporter, foreign 
producer or foreign government has submitted proper information. Provisional payments and 
definitive countervailing duties may be imposed on  the basis of the margin of subsidisation so 
determined. 
 
62.5 In the event that the rele vant interested parties have no t submitted appropriate information 
before the deadline contemplated in section 42 , the Commission may make a preliminary or final 
determination on the basis of the facts available. 
 
62.6 In the event of an adverse preliminary finding as contemplated in subsection 4, and provided 
the relevant interested party had subm itted at least a substantial, if de ficient, response by the deadline 
contemplated in section 42, such party will receive the opportunity to address any deficiencies within 7 days and such additional information will be taken into consideration by the Commission in its final 
finding. 
  G/SCM/N/1/ZAF/2/Add.1 
 Page 29 
 
 
 62.7 In anti-circumvention reviews involving abso rption, the Commission may determine the level 
of the absorption with reference to the failure in movement in the resale price of the subsidised 
imported product. 
 
62.8 The Commission may conduct such verifications as it deems necessary to confirm the 
accuracy and the adequacy of any information submitted by any interested party. 
 63. Final recommendation 
  If the Commission makes a finding that circumvention has taken place the Commission’s final recommendation may result in   
 (a) the increase of countervailing duties to compensate for absorption of countervailing 
duties;  or 
 (b) the extension of the scope of the counterv ailing duties to apply to parts, components 
or substitute like products, new models and the like. 
 
 
Sub-Part VI – Judicial Review 
 
64. Judicial review of preliminary determinations 
 
 Without limiting a court of law’s jurisdiction to review final decisions of the Commission, 
participating interested parties ma y challenge preliminary decisions or the Commission’s procedures 
prior to the finalisation of an  investigation 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 the Commission’s future final decision. 
 
 
Sub-Part VII – Refunds 
 
65. Applications for refunds 
 
65.1 An importer or an exporter may request reimbursement of countervailing duties collected 
where it is shown that the margin of subsidisation, on the basis of which countervailing duties were 
paid, has been eliminated or has been reduced to a level which is below the le vel of the duty in force. 
 
65.2 Other than as contemplated in section 66, any request, containing all prescribed information, 
for a refund shall be submitted during the anniversary month of the countervailing duty and shall 
relate only to the preceding 12-month period. 
 
65.3 An application for refund shall be considered as duly supported by evidence where it contains 
precise information on the amount of the refund of countervailing duties claimed and all customs 
documentation relating to the calculation and paymen t of such countervailing duties.  It shall also 
include, for the relative period under review, information on normal values and export prices to the SACU for the producer or exporter to which the countervailing duty applies. 
 
65.4 Regardless of whether the exporter and the importer are related parties, the exporter may 
supply any information contemplated in subsection 3 direct to the Commission. G/SCM/N/1/ZAF/2/Add.1 
Page 30  
 
  
65.5 The Commission may, at any time after receiving a refund application, decide to initiate an 
interim review, whereupon the information and findin gs from such interim revi ew shall be used to 
determine whether a refund is justified. 
 
66. Refunds following interim reviews   Where the Commission, following an interi m review, recommends that the existing 
countervailing duty be decreased or  withdrawn, the relevant importer or importers may request that 
countervailing duties be refunded in line with the Commission’s findings.   
Part E – Final Provisions 
 
67. Delegation 
 
 Other than final decision-making powers the Comm ission may delegate any of its functions in 
respect of countervailing investiga tions to its inve stigation staff. 
 
68. Transitional application 
 
 These regulations shall apply to all investiga tions and reviews initiate d after the promulgation 
of the regulations. 
 
__________