Although in theory in
South Africa there are four legal bases of review of trade remedies, the way
courts have interpreted cases means that in practice there are only two bases
left: review of a final determination and a claim for damages (only in cases of
gross negligence by the government). High Court decisions may be appealed to
the Supreme Court of Appeal, and constitutional issues may be further appealed
to the Constitutional Court. Although earlier judgments generally only
considered administrative issues, courts have recently started to also consider
substantive issues (the facts before the investigating authority), but judges
generally defer to the authority as a specialist institution – although judges
then finds that the Ministers of Trade and of Finance, rather than the
authority, actually make the final determinations. Judicial reviews are
tedious, time consuming and often not based on legislation, but based on the
court’s interpretation of“legality”, ie what court’s think should have
happened. This makes judicial review a gamble, especially for foreign companies
that have to put up security for any costs incurred in judicial review. The
creation of an International Trade Tribunal would go a long way to addressing
most of these issues.