REPORTABLE
IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case No: 491/97
In the matter of:
SOUTH AFRICAN CLOTHING INDUSTRIES
(PTY) LTD t/a PRESTIGE LINGERIE
Appellant
and
THE DIRECTOR, DEPARTMENT OF TRADE
AND INDUSTRY
First Respondent
MINISTER OF TRADE AND INDUSTRY
Second Respondent
Coram:
Mahomed CJ, Hefer, Grosskopf, Marais JJA et
Mpati AJA
Date of hearing:
8 November 1999
Date of delivery:
26 November 1999
Trade and Industry  -  Export Incentives Scheme  -  Participating exporters not
entitled to select claim period with each claim submitted.
J U D G M E N T
Hefer JA

Hefer JA
[1] During 1990 the Department of Trade and Industry initiated a
scheme known as the General Export Incentive Scheme to encourage
the export of certain goods.   The scheme was introduced as a State
prerogative and was phased out at the end of 1997 but while it was in
operation it had the effect of legislation (South African Co-operative
Citrus Exchange Ltd v Director-General: Trade and Industry and
Another 1997(3) SA 236 (SCA) at 238I-239G) which bound  participating
exporters and government officials alike. This entailed inter alia that
participating exporters had to submit periodic claims for the payment of
incentives earned in a prescribed manner and within a prescribed time.
[2] The appellant is a manufacturer and exporter of clothing and
lingerie. It participated in the scheme from 1990 and until 1994 its claims
were duly met. But during 1995 the Department refused to pay part of its
claim for the period from July 1994 to June 1995.   The appellant sought
relief in the Transvaal Provincial Division of the High Court by way of an
application to review the Department’s refusal. Roux J dismissed the
application and subsequently granted leave to appeal to this Court.
[3] Guidelines for its practical operation were published before the

scheme came into effect and revised from time to time thereafter.   At
issue in the appeal is the interpretation of the guidelines relating to the
selection of a so-called “claim period”.   For an  understanding of what a
“claim period” really meant (the definition of the term in guideline 1.2
being entirely unhelpful) one has to turn to guidelines 3.2 and 3.3.   The
claim with which we are concerned was governed partly by Revision No
3 (which came into effect on 1 January 1994) and partly by Revision No
4 (which came into effect on 1 April 1995).   After Revision No 3
guidelines 3.2 and 3.3 read as follows:
“3.2
Claimants must furnish the required basic information on form
Annexure 2 to the Department each time when they submit a claim
under this scheme.
3.3
Approved claimants can, according to their particular needs, select
to have their claims paid out at six or twelve monthly intervals.
Claim periods must correspond with the claimant’s financial year, ie
half year and year ends and claimants must indicate on form
Annexure 2 (see paragraph 3.2 above) their selected claim period
(ie six or twelve months).   The claim period which has been chosen
by a claimant, will only be reviewed in exceptional circumstances
and must be fully motivated by the claimant.”
The only material change in Revision No 4 was that the concluding
sentence of guideline 3.3 was amended to read:
“The claim period which has been chosen by a claimant, will only be
reviewed in exceptional circumstances and must be fully motivated by the
claimant before the expiry date of the selected claim period.”
[4] Of further relevance is guideline 4.3.1 which contained the

provision on which the Department relied for its refusal to pay the
appellant’s claim in full.   After Revision No 3 it read as follows:
“Claims must be prepared timeously as only claims received
within three months after the claim period expires will be
entertained.”
[5] In its first Annexure 2 form submitted during 1990 the appellant
selected a six months claim period and the same period was reflected
in each form submitted thereafter with every claim until the end of June
1994.   The claim for the period from 1 July 1994 to 30 June 1995 was
submitted during September 1995 and for the first time the
accompanying Annexure 2 form reflected a twelve months claim
period.
[6] The Department refused to pay the claim relating to the first six
months because it was of the view that it had been received out of time.
The respondents support this view.   They reason  that a claimant’s first
selection (ie the selection in the first Annexure 2 form submitted to the
Department) remained binding until reviewed under the concluding
sentence of guideline 3.3; the appellant did not ask for the review of its
selected period of six months; in order to qualify for payment the claim
relating to the period 1 July to 31 December 1994 had to be received
within three months after the last date;  it was only submitted during

September 1995 and could thus not be considered.
[7] The appellant’s case  is that claimants were entitled to select a new
period with the submission of each claim and that it did so when it
submitted the claim in question.
[8] There are several reasons why the appellant’s contention cannot
be sustained.   The first is that the wording of the first sentence of
guideline 3.3 after Revision No 3 is against it.   Approved claimants were
only allowed to select the intervals at which they required payment of
their claims and , for the simple reason that no single claim can be paid
“at ... intervals”, this is entirely inconsistent with the appellant’s
submission that each selection related to a particular claim and was to
be made after the accrual of the claim.   The sentence can only mean
that each approved claimant was entitled to select the intervals at which
all his claims were to be paid.
[9] Although it is obvious to me that the appellant’s case really falls at
the very first hurdle I will mention  the other reasons why I am not able to
accept the construction for which it contends.
[10] It seems equally obvious to me that it is exports which had taken
place within the chosen claim period which gave rise to the claims which
could be made for that period.   If this were not so, the provisions limiting
the period of time for the submission of claims would be rendered entirely

nugatory.   If, as counsel for appellant contends, an exporter, when
making a claim, is not only free, but obliged, to select simultaneously what
period is to govern its submission, no claim could ever be late.   The
scheme plainly postulated that when and as each claim accrues there will
be in place a chosen period by reference to which it will be possible to
ascertain the last date upon which such a claim could be made.
[11] Bearing in mind that the scheme was administered by a department
of state and was funded with state money, it comes as no surprise that
the guidelines envisaged a measure of consistency in the submission of
claims. Government departments operate on strictly controlled budgets
and the Department of Trade and Industry could not possibly have
budgeted for the scheme if claimants were allowed a random and
mutable selection of the time for payment of claims which we know from
experience were sometimes massive.   It is understandable, therefore,
that the selection was limited to either six or twelve months coinciding
with year and half year ends.
[12] It stands to reason that constant unilateral changes in selections
would have had a serious effect, not only on the Department’s ability to
budget properly, but also on its ability to control the submission of claims
under guideline 4.3.1.   It would indeed have left the door wide open for
abuse if each claimant were allowed to select a new claim period

whenever a fresh claim was submitted: all that he or she would have to
do in order to obtain payment of a claim which had not been submitted
within three months after the  expiry of a selected  six months period
would be to change the selection to twelve months and thus circumvent
guideline 4.3.1. Such a result could never have been intended.
[13] Then there is the history of guideline 3.2.   Until October 1991 an
Annexure 2 form containing the claimant’s “basic information” and the
selection of a claim period had to be filed once only and it had to be
done before the submission of the first claim.   Moreover, there was
at that stage no provision for the review of the selection.   In other words,
there was room for only one selection which could not be changed under
any circumstances.   How it came about that an Annexure 2 form had to
be submitted with each claim appears from a circular letter in the
following terms which was sent to claimants during October 1991:
“Due to the fact that some claimants neglect to inform the Department of
address changes and other adjustments to basic company particulars, the
processing of claims is often delayed while cheques and promissory notes
go astray as a result of incorrect address information.
Under the circumstances claimants would in future be required to submit the
Annexure 2 to the claim form with every claim, irrespective of whether the
particulars in question have been amended or not.   Claims received without
this form will not be processed.”
The mere fact that this requirement was incorporated in guideline 3.2

when Revision No 2 took effect during 1992 and was retained in
subsequent revisions affords no ground for suspecting that the intention
was to depart from the previous regime (which, as I have indicated, left
no room for changing a selection) save to the extent that a selection
once made, might be reviewed in exceptional circumstances.
[14] Moreover, the need to fully motivate a desired change of claim
period does not fit readily into a scheme which, as the appellant would
have it,  permits a fresh unilateral selection whenever a new claim is
submitted.   Appellant’s counsel sought to meet this by drawing attention
to the fact that claimants could select either six or twelve months
according to their needs, and suggesting that a change may be
required when there is a change in a claimant’s needs.   That begs the
question.   The submission assumes that the phrase applies whenever
a claim is made. If it is confined to the claimant’s initial choice, as I think
it is, then it cannot be invoked to justify a subsequent unilateral alteration.
[15] So much for the appellant’s construction.   Needless to say none
of the problems which I have mentioned present themselves on the
construction put forward by the respondents.   Their construction is
entirely logical and strictly in accordance with the wording and history of
the guidelines.   In my view it is correct.
[16] The parties are agreed that the appeal falls to be dismissed if the
respondents’ contention is upheld.

The appeal is accordingly dismissed with costs including the
costs of two counsel.
____________
JJF HEFER
Judge of Appeal
Mahomed CJ
Grosskopf JA
Marais JA
Mpati AJA