THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 267/2016
In the matter between:

SA METAL GROUP (PROPRIETARY) LIMITED
APPELLANT

and

THE INTERNATIONAL TRADE ADMINISTRATION
COMMISSION
FIRST RESPONDENT

THE MINISTER OF ECONOMIC DEVELOPMENT
SECOND RESPONDENT

Neutral citation:
SA Metal Group (Pty) Ltd v The International Trade Administration
Commission (267/2016) [2017] ZASCA 14 (17 March 2017)

Bench:
Ponnan, Leach, Majiedt and Willis JJA and Fourie AJA

Heard:
1 March 2016

Delivered:
17 March 2016

Summary:  Appeal – s 16(2)(a)(i) Superior Courts Act 10 of 2013 – dismissal of
appeal where judgment or order sought would have no practical effect or result.

_____________________________________________________________________

ORDER
______________________________________________________________________

On appeal from: Western Cape High Court, Cape Town (Dolamo J sitting as court of
first instance):

Save for the costs of the application by the first respondent to adduce further evidence
on appeal, the appeal is dismissed with costs, such costs to include those consequent
upon the employment of two counsel.
______________________________________________________________________

JUDGMENT
______________________________________________________________________

Ponnan JA (Leach, Majiedt and Willis JJA and Fourie AJA concurring):

[1] This may laconically be described as a scrap about scrap, in which counsel were,
at the outset of the hearing, required to address argument on the preliminary question of
whether the appeal and any order made thereon would, within the meaning of s
16(2)(a)(i) of the Superior Courts Act 10 of 2013, have any practical effect or result.
After hearing argument on this issue, the appeal was dismissed on 1 March 2017 in
terms of that section. It was intimated then that reasons would follow. These are the
reasons.

[2] Courts should and ought not to decide issues of academic interest only. That
much is trite.1 Section 16(2)(a)(i) provides:
„When at the hearing of an appeal the issues are of such a nature that the decision
sought will have no practical effect or result, the appeal may be dismissed on this ground alone.‟

1 See Legal-Aid South Africa v Magidiwana & others [2014] 4 All SA 570 (SCA) and the cases there cited.

Of its predecessor, s 21A of the Supreme Court Act 59 of 1959,2 this court stated:
'The purpose and effect of s 21A has been explained in the judgment of Olivier JA in the
case of Premier, Provinsie Mpumalanga, en 'n Ander v Groblersdalse Stadsraad 1998 (2) SA
1136 (SCA). As is there stated the section is a reformulation of principles previously adopted in
our Courts in relation to appeals involving what were called abstract, academic or hypothetical
questions. The principle is one of long standing.'3

[3] The primary question therefore – one to which I now turn – is whether the
judgment sought in this appeal will have any practical effect or result. It arises against
the backdrop of the following facts: The scrap metal supply chain in this country begins
with the collection by informal operators, who sell the metal to recyclers. Recyclers,
including the appellant, SA Metal Group (Pty) Ltd (SA Metal) – one of the largest scrap
metal dealers in South Africa – process the metal, which they then either export or sell
to the local scrap processing industry such as steel mills, mini mills and foundries. The
scrap-processing industry then manufactures products, which it onsells to various
downstream industries such as the mining, automotive, construction and agricultural
sectors. Historically, the export price of scrap metal had a direct bearing on the price at
which scrap metal was sold within the domestic market. According to the second
respondent, the Minister of Economic Development (the Minister), parts of the scrap-
processing industry are in a dire state and have experienced substantial decline over
the last decade. Job losses and closures have been the order of the day, and the
dramatic decline in parts of the domestic scrap-processing industry has impacted
negatively on Government‟s infrastructure-build programme and its imperative of
deepening downstream manufacturing.

[4] South Africa is a founding member of the World Trade Organisation Agreement
and also a signatory to the General Agreement on Tariffs and Trade of 1947 (the
GATT). The South African Government acceded to the GATT and its accession was

2 Section 21A(1) of the Supreme Court Act 59 of 1959 provided:
'When at the hearing of any civil appeal to the Appellate Division or any Provincial or Local Division of the
Supreme Court the issues are of such a nature that the judgment or order sought will have no practical
effect or result, the appeal may be dismissed on this ground alone.'
3 Coin Security Group (Pty) Ltd v SA National Union for Security Officers & others 2001 (2) SA 872 (SCA)
para 7.

published in the Government Gazette. Parliament approved the agreement in the
Geneva General Agreement on Tariffs and Trade Act 29 of 1948. The World Trade
Organisation Agreement was the outcome of the so-called Uruguay Round of the GATT
negotiations and was concluded in Marrakesh by the signing of some 27 agreements
and instruments in April 1994 by the members including South Africa.4  The Preamble to
the GATT reads:
„The Governments of . . . :
Recognizing that their relations in the field of trade and economic endeavour should be
conducted with a view to raising standards of living, ensuring full employment and a large and
steadily growing volume of real income and effective demand, developing the full use of the
resources of the world and expanding the production and exchange of goods,
Being desirous of contributing to these objectives by entering into reciprocal and mutually
advantageous arrangements directed to the substantial reduction of tariffs and other barriers to
trade and to the elimination of discriminatory treatment in international commerce.‟

[5] Domestically, that is echoed in the International Trade Administration Act 71 of
2002 (the Act), which seeks to „foster economic growth and development in order to
raise incomes and promote investment and employment in the Republic . . . .‟.5 Section
7 of the Act established the first respondent, the International Trade Administration
Commission (ITAC). ITAC is obliged to carry out the functions assigned to it in terms of
the Act or by the Minister or that arise out of an obligation of the Republic in terms of a
trade agreement.6 Section 5 of the Act empowers the Minister to issue trade policy
statements or directives. According to s 6(1) of the Act:
„The Minister may, by notice in the Gazette, prescribe that no goods of a specified class
or kind, or no goods other than goods of a specified class or kind, may be–
. . .
(c)
exported from the Republic; or

4 See Progress Office Machines v SARS 2008 (2) SA 13 (SCA) para 5; Bridon International GMBH v
International Trade Administration Commission 2013 (3) SA 197 (SCA) para 12; International Trade
Administration Commission & another v South African Tyre Manufacturers Conference (Pty) Ltd & others
(738/2010) [2011] ZASCA 137; 2011 JDR 1161 (SCA) para 1.
5 Section 2 of the Act.
6 Section 15 of the Act.

(d)
exported from the Republic, except under the authority of and in accordance with the
conditions stated in a permit issued by the Commission.‟
In terms of s 7(2), ITAC is subject to any trade policy statement or directive issued by
the Minister in terms of s 5 and any notice issued by the Minister in terms of s 6.

[6] On 10 May 2013 the Minister published „a policy directive on the export of
ferrous and non-ferrous waste and scrap metal‟ (the directive) in terms of s 5 of the Act.7
The directive provided:
„2.
(a)
Ferrous and non-ferrous waste and scrap metal should not be exported
unless it has first been offered to domestic users of scrap, for a period determined by ITAC, and
at a price discount or other formula determined by ITAC intended to facilitate local rather than
export sale.
(b)
To ensure the type and quality of scrap metal that is intended for export are accurately
reflected on applications for export permits, all permit applications should be accompanied by
confirmation by a metallurgical engineer or a suitably qualified person, confirming the type,
quality and quantity of scrap at hand for export, and information as to when and where such
scrap metal may be inspected by prospective buyers.‟
The concluding paragraph of the directive reads:
„Should this directive be found to be in conflict with any provision of a trade agreement
which is binding on South Africa, ITAC should apply it in a manner which ensures compliance
with such agreement.‟

[7] What motivated the directive is explained by the Minister thus:

„In the last decade, many steel mills, secondary smelters and foundries have been
forced to close shop as a result of being unable to make ends meet. This was caused, amongst
other things, by their inability to afford scrap metal at the prices at which scrap metal was
available for sale locally – which was effectively the same price at which the scrap was being
offered to international purchasers of scrap metal. The closure of these businesses caused job
losses and a reduction in the supply of steel products manufactured from recycled scrap metal
for sale to end users such as mining houses . . . .

7 Policy Directive on the Exportation of Ferrous and non-Ferrous Waste and Scrap Metal, GN 470, GG
36451, 10 May 2013.

This state of affairs also affected the quality of the scrap metal which was available for local use
because most of the high quality scrap was exported. These combined difficulties facing the
domestic industries caused an economic crisis in respect of which government had to intervene
. . . .
It was in the light of the economic crisis described above that I issued the Directive, which led to
the publication by ITAC of the original Guidelines and the amended Guidelines. I shall refer to
the Directive and the Guidelines collectively . . . as “the price-preference system”.
. . .
The Directive and Guidelines constitute interventions to address the crisis in the scrap-
processing industry. They form part of a much broader economic strategy on the part of
government.‟

[8] In accordance with the directive, on 2 August 2013 ITAC published „export
control guidelines on the exportation of ferrous and non-ferrous waste and scrap‟8 (the
guidelines) which, to the extent here relevant, provided:
„. . . scrap metal will be allowed to be exported only if the scrap metal concerned was
offered to domestic consumers at a price that is 20% below international spot prices for the
published types and grades of scrap metal.
. . .
ITAC will exempt affected exports from these requirements to the extent that application of
these requirements would be in conflict with South Africa‟s obligations under an existing trade
agreement. The guidelines will be applied and implemented in such a manner that they are
consistent with any binding trade agreement.‟
On 12 September 2014 ITAC published amended guidelines (the amended guidelines).
Paragraph 8.7 thereof read:
„ITAC will exempt affected exports from these requirements to the extent that application
of these requirements would be in conflict with South Africa‟s obligations under an existing trade
agreement. Where such an allegation is raised with ITAC, it must be raised at the time an
application form is submitted to ITAC and must be in sufficient details for ITAC to understand
the nature and basis of the allegation. ITAC will consider the merits of an allegation and make a
decision that will be determinative thereof for purposes of the export permit application.‟

8 ITAC Export Control Guidelines on the Export of Ferrous and non-Ferrous Waste and Scrap, GN R543
GG 36708, 2 August 2013.

[9] On 20 October 2014, SA Metal applied for ten permits for the export of scrap
metal. It sought an exemption in each instance from the price preference system
primarily on the basis that the application of those requirements would be in conflict with
South Africa‟s obligations under the GATT. On 30 October 2014 ITAC, asserting that
„subjecting the application to the guidelines would not violate South Africa‟s obligations
under the GATT‟, refused SA Metal‟s request. Aggrieved by that refusal, SA Metal
applied to the High Court, Western Cape Division, Cape Town seeking:
„1.
An order in terms of Sections 6 and 8 of the Promotion of Administrative Justice  Act 3
of 2000 reviewing and setting aside the decision taken on 30 October 2014 by the first
respondent refusing to exempt the applicant‟s ten applications for export permits made
on 20 October 2014 annexed to the founding affidavit as “GB4” and “GB5” (“the permit
applications”) from the price preference system administered by it, and on that basis
refusing to grant the export permits;
2.
An order substituting for the decision of the first respondent described in paragraph 1

above the following decisions:
2.1
SA Metal‟s applications dated 20 October 2014 for export permits are exempted from the

price preference system;
2.2
SA Metal‟s applications dated 20 October 2014 for the following permits are granted:
2.2.1 Two permits to export 500 metric tons of grade 201 steel scrap each;
2.2.2 Two permits to export 20 metric tons of copper scrap each of the grade known

internationally as “Millberry”;
2.2.3 Two permits to export 20 metric tons of copper scrap each of the grade known

internationally as “Berry”;
2.2.4 One permit to export 50 metric tons, and one permit to export 40 metric tons, of copper

scrap of the grade known internationally as “Birch/Cliff”;
2.2.5 Two permits to export 50 metric tons of brass scrap each of the grade known

internationally as “Honey”;
3.
An order directing the first respondent forthwith to issue export permits in accordance

with the aforesaid decisions;
4.
Alternatively to paragraphs 2 and 3 above, an order remitting the permit applications and

the application for exemption from the price preference system for reconsideration by the

first respondent and directing the first respondent to take a decision within five (5) days

of the date of this order in accordance with such directions as the Court may make.‟
The High Court (per Dolamo J) dismissed the application but granted leave to SA Metal
to appeal to this court.

[10]  Inasmuch as: (a) ITAC‟s refusal had occurred during October 2014; and (b) the
proposed dates in SA Metal‟s applications for the export of the scrap metal was
November 2014 to January 2015, we were required to consider, at the hearing of the
matter, whether the appeal should be entertained at all. To that end, counsel were
requested to file supplementary heads of argument and present argument as to whether
it was not appropriate to deal with the matter in terms of s 16(2)(a)(i) of the Act.

[11] In this regard, every case has to be decided on its own facts. And efforts to
compare or equate the facts of one case to those of another are unlikely to be of
assistance.9 SA Metal‟s notice of motion sought to review and set aside ITAC‟s refusal
to exempt its ten applications for export permits. Each application by SA Metal related to
specified items of scrap metal that were to be exported from November 2014 to January
2015 and said to be available for inspection at named locations. The permits did not
relate to scrap metal in generic terms. Rather, the relief sought was directed at
permitting SA Metal to export the specified scrap metal referred to in the applications. It
must be accepted that it would be impermissible for SA Metal to use the export permits
for any other scrap metal but those the subject of the applications.

[12] Counsel for the appellant was constrained to concede that the setting aside of
the High Court order now and the granting of prayers 1 to 3 of SA Metal‟s notice of
motion would plainly have no practical effect. He accordingly sought to rest his case on
prayer 4. But, prayer 4 is not a self-standing prayer. What is sought in prayer 4, in the
alternative to the main relief, is an order „remitting the permit applications and the
application for exemption from the price preference system for reconsideration by
[ITAC]‟. In context, the permit applications contemplated in prayer 4 can only be those

9 The Kenmont School & another v D M & others (454/12) [2013] ZASCA 79; 2013 JDR 1365 (SCA) para
12.

envisaged in prayer 2. And, as prayer 4 inexorably follows upon prayers 1 to 3, the fate
of the former is inextricably linked to the latter. There obviously can be little point in now
remitting the 20 October 2014 permit applications for reconsideration by ITAC. Given
the passage of time there can be nothing for ITAC to reconsider. To remit the matter to
ITAC in circumstances such as this, where the issue has become hypothetical, abstract
or academic, would be meaningless and amount to an act in futility.10 Moreover, even
were we to incline to the view that the high court was wrong in declining to grant a
declaratory order, there would be no point in referring the matter back to that court.11

[13] Faced with that difficulty, there was some attempt by Counsel to suggest that the
review also encompassed within its ambit a much broader challenge to the price
preference system, which, so the argument went, remained a live issue. But, that was
specifically eschewed by SA Metal in the court below. SA Metal had there pointed out
that when regard is had to the answering affidavits of ITAC and the Minister, it was
obvious that both of them had misconceived its (SA Metal‟s) case. It accordingly sought
to set matters to right when it stated in its replying affidavit:
„ITAC appears to be under the erroneous impression that SA Metal seeks a mandatory
interdict, and seeks to challenge the price preference system generally. The Minister, too,
appears to be under the impression that SA Metal seeks to impugn the price preference system
generally for being in violation of the GATT . . . .‟
„SA Metal‟s application is not a challenge to the price preference system generally . . . The
application is for an order reviewing and setting aside the decision made by ITAC on 30 October
2014 in respect of the export permit application . . . .‟
SA Metal thus made it plain that the relief sought was limited to the ten permit
applications annexed to its founding affidavit.

[14] It was nonetheless urged upon us that this is an appropriate matter for the
exercise of this court`s discretion to allow the appeal to proceed. In that regard we were

10 „A hypothetical interest is one that is expressly claimed, but is neither real nor true. And an academic
interest is one that is not related to a real or practical situation and is, therefore, irrelevant.‟ (Giant
Concerts CC v Rinaldo Investments (Pty) Ltd & others 2013 (3) BCLR 251 (CC) para 51).
11 West Coast Rock Lobster Association & others v The Minister of Environmental Affairs and Tourism &
others [2011] 1 ALL SA 487 (SCA) para 45.

referred to Natal Rugby Union v Gould.12 The fallacy in the approach of SA Metal,
however, is to assume, erroneously so, that what confronts us in this matter - as in
Gould’s case - is a discrete legal issue. As I shall show, it is not. As was explained in
Centre of Child Law v The Governing Body of Hoërskool Fochville:13
„This court has a discretion in that regard and there are a number of cases where,
notwithstanding the mootness of the issue as between the parties to the litigation, it has dealt
with the merits of an appeal (see, inter alia, Natal Rugby Union v Gould 1999 (1) SA 432 (SCA)
([1998] 4 All SA 258); Land en Landbouontwikkelingsbank van Suid-Afrika v Conradie 2005 (4)
SA 506 (SCA) ([2005] 4 All SA 509); The Merak S: Sea Melody Enterprises SA v Bulktrans
(Europe) Corporation 2002 (4) SA 273 (SCA)  and Executive Officer, Financial Services Board v
Dynamic Wealth Ltd 2012 (1) SA 453 (SCA)). With those cases must be contrasted a number
where the court has refused to enter into the merits of the appeal.14 The broad distinction
between the two classes is that in the former a discrete legal issue of public importance arose
that would affect matters in the future and on which the adjudication of this court was required,
whilst in the latter no such issue arose.

[15] In my view, this case plainly falls into the latter of the two categories alluded to
above.15 As best as I could discern the argument, the discrete legal issue alluded to
harked back to the price preference system, which, as I have already pointed out, had
been specifically disavowed on the papers. What is more, as the orders sought had
become moot and the relief prayed for was no longer competent, the attack, in truth,
became one that was directed at the reasoning of the court below. However, an appeal
does not lie against the reasons for judgment, but rather against the substantive order
made by a court.16

12 Natal Rugby Union v Gould 1999 (1) SA 432 (SCA).
13 Centre of Child Law v The Governing Body of Hoërskool Fochville 2016 (2) SA 121 (SCA) para 11.
14 See for example: Radio Pretoria v Chairman, Independent Communications Authority of South Africa &
another 2005 (1) SA 47 (SCA); Rand Water Board v Rotek Industries (Pty) Ltd 2003 (4) SA 58 (SCA);
Minister of Trade and Industry v Klein NO [2009] 4 All SA 328 (SCA); Clear Enterprises (Pty) Ltd v
Commissioner, South African Revenue Service and Others [2011] ZASCA 164 (29 September 2011);
Kenmont School and Another v D M and Others [2013] ZASCA 79 (30 May 2013) and Ethekwini
Municipality v South African Municipal Workers Union and others [2013] ZASCA 135 (27 September
2013) and Legal Aid South Africa v Magidwana [2014] ZASCA 141.
15 See Qoboshiyane NO and Others v Avusa Publishing Eastern Cape (Pty) Ltd and Others 2013 (3) SA
315 (SCA) para 5.
16 Western Johannesburg Rent Board & another v Ursula Mansions (Pty) Ltd 1948 (3) SA 353 (A) at 355;
Absa Bank v Mkhize and Two Similar Cases 2014 (5) SA 16 (SCA) para 64.

[16] A further string to SA Metal‟s bow is that the issue in this appeal will arise
„regularly‟ in respect of export permit applications. There is, however, no reason to
believe that a „large number of similar cases‟, as SA Metal put it, can be anticipated.
ITAC is required to consider mero motu whether exports should be exempted from the
price preference system. The amended guidelines make it plain that a prospective
exporter is required to raise the exemption issue when it applies for an export permit,
and must do so „in sufficient detail for ITAC to understand the nature and basis of the
allegation‟. Although the price preference system has been in place since 2013, no
other exporter appears to have raised the exemption issue. It thus seems that the only
exporter likely to raise that issue „regularly‟ is SA Metal itself.

[17] SA Metal‟s submission therefore amounts to this: even if the determination of the
present appeal would have no practical effect for present purposes, this court should
nonetheless decide the appeal because SA Metal intends to raise the exemption issue
when it applies for export permits in the future. However, the fact that SA Metal may
have an intention to rely on the exemption issue in future applications does not mean
that there is a „discrete legal issue of public importance‟ before the court. The directive,
which was published in May 2013, is effective for five years. At the end of that period „it
will be reviewed to determine whether it should be terminated or extended for a limited
period, with or without amendment‟. The directive thus only has approximately one year
to run. It follows that any decision of this court would therefore have limited application.

[18] In circumstances where SA Metal has itself chosen to limit its relief to the ten
permit applications, there can be no reason of public interest why the court should
decide an appeal that would have no practical effect. The appellant is bound to the relief
that it sought and if that relief has now become academic, it cannot resort to a general
justification for pursuing the appeal. The general justification being that a similar legal
issue may arise in relation to other export applications. If the appellant had wanted to
have such an issue decided, it ought to have sought such relief and properly motivated
for its grant in the public interest.

[19] In effect what SA Metal really seeks is to have this court express a view on a
legal conundrum that may arise in the future without in any way affecting the position
between the parties to the present dispute. The essential flaw in SA Metal‟s case is one
of timing or ripeness.17  As it was put in Clear Enterprises (Pty) Ltd v SARS,18 whatever
issues may arise in those matters are not yet „ripe‟ for adjudication. In Coin Security
Group (Pty) Ltd v SA National Union for Security Officers,19 Plewman JA quoted with
approval from the speech of Lord Bridge of Harwich in the case of Ainsbury v Millington
[1987] 1 All ER 929 (HL), which concluded:20
„It has always been a fundamental feature of our judicial system that the Courts decide
disputes between the parties before them; they do not pronounce on abstract questions of law
when there is no dispute to be resolved‟.

[20] After all, courts of appeal often have to deal with congested rolls. And, as Innes
CJ observed in Geldenhuys & Neethling v Beuthin,21 they „exist for the settlement of
concrete controversies and actual infringements of rights, not to pronounce upon
abstract questions, or to advise upon differing contentions, however important‟. That
was echoed by the Constitutional Court in National Coalition for Gay and Lesbian
Equality & others v Minister of Home Affairs22 when it said:
„A case is moot and therefore not justiciable if it no longer presents an existing or live
controversy which should exist if the court is to avoid giving advisory opinions on abstract
propositions of law.‟

[21] SA Metal‟s appeal was accordingly dismissed at the hearing of the matter in
terms of s 16(2)(a)(i) of the Superior Courts Act. That leaves costs: In this court ITAC
sought leave to adduce further evidence on appeal. The evidence was to the effect that
an inspection by it revealed that SA Metal no longer had custody of the scrap metal, the

17 Ferreira v Levin NO & others; Vryenhoek v Powell NO & others 1996 (1) SA 984 (CC) para 199.
18 Clear Enterprises (Pty) Ltd v SARS (757/10) [2011] ZASCA 164.
19 In Coin Security Group (Pty) Ltd v SA National Union for Security Officers & others 2001 (2) SA 872
(SCA) para 9.
20 At 930g.
21 Geldenhuys & Neethling v Beuthin 1918 AD 426 at 441.
22 National Coalition for Gay and Lesbian Equality & others v Minister of Home Affairs & others 2000 (2)
SA 1 (CC) para 21 footnote 18.

subject of the ten permit applications. That application was opposed by SA Metal. The
opposition gave rise to a dispute of fact that was incapable of resolution on the papers.
In argument, ITAC accepted that the evidence sought to be introduced was not strictly
necessary for the determination of the appeal and accordingly did not persist with the
application. It follows that the application must be dismissed.

[22] The Minister did not seek any costs in respect of the aborted application. SA
Metal, however, did. SA Metal persisted in an obviously unmeritorious appeal despite a
note from the registrar of this court more than two months prior to the hearing of the
matter raising mootness and enquiring whether the appeal was being persisted in. In
addition, the costs of the application for leave to adduce evidence constitute a miniscule
portion of the overall costs of the appeal. I accordingly take the view that there should
be no order as to costs insofar as that application is concerned. Save for those costs,
the costs of the appeal must otherwise follow the result.

[23] In the result:
Save for the costs of the application by the first respondent to adduce further evidence
on appeal, the appeal is dismissed with costs, such costs to include those consequent
upon the employment of two counsel.

_________________
V M Ponnan
Judge of Appeal

APPEARANCES:

For Appellant:

LS Kuschke SC (with him E F van Huyssteen)

Instructed by:

Bernadt Vukic Potash & Getz, Cape Town

Lovius Block, Bloemfontein

For First Respondent:

S Du Toit SC (with him F Ismail)

Instructed by:

The State Attorney, Cape Town

The State Attorney, Bloemfontein

For Second Respondent:

A Cockrell SC (with him A Friedman)

Instructed by:

Webber Wentzel, Cape Town

Honey Attorneys, Bloemfontein

SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

17 March 2017

STATUS

Immediate

Please note that the media summary is intended for the benefit of the media and does
not form part of the judgment of the Supreme Court of Appeal.

SA Metal Group (Pty) Ltd v The International Trade Administration Commission
(267/2016) [2017] ZASCA 14 (17 March 2017)

Today the Supreme Court of Appeal (SCA) dismissed an appeal by SA Metal Group (Pty) Ltd
against a judgment of the Western Cape High Court, Cape Town.

The issue on appeal was whether, given the passage of time, the judgment sought in the
appeal would have any practical effect or result within the meaning of s 16(2)(a)(i) of the
Superior Courts Act 10 of 2013.

The dispute arose against the backdrop of a policy directive by the Minister of Economic
Development. In accordance with this directive the International Trade Administration
Commission (the ITAC) published guidelines on the export of ferrous and non-ferrous waste
and scrap. On 20 October 2014, SA Metal applied for ten permits for the export of scrap
metal. In each instance, it sought an exemption from the price preference system on the basis
that the application of these requirements would be in conflict with South Africa’s obligations
under the General Agreement on Tariffs and Trade (GATT). On 30 October 2014, ITAC
refused all ten applications, asserting that the application of the guidelines would not violate
the country’s obligations under the GATT. Aggrieved by that refusal, SA Metal applied to the
High Court primarily to review and set aside ITAC’s decision. The High Court dismissed the
application, but granted leave to appeal to the SCA.

On appeal, the SCA held that given that ITAC’s refusal occurred in October 2014, and that
the dates proposed by SA Metal for the export of the scrap metal were November 2014 to

January 2015, the matter had become moot and the decision of the court would thus be of no
practical effect. Substantiating its conclusion, the court further held that the relief sought by
SA Metal did not raise a discrete legal issue of public interest, or an issue affecting the
position between the parties in the present matter.