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      The scope of the powers of the Minister of Finance in terms of section 48(1)(b) of the Customs and Excise Act 91 of 1964: An appraisal of recent developments in case law

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          Abstract

          This paper evaluates the scope of the powers of the Minister of Finance upon a request from the Minister of Trade and Industry to amend Schedule 1 to the Customs and Excise Act 91 of 1964 (hereafter, CEA) in respect of imported goods as provided by section 48(1)(b) of the CEA. This assessment entails a case analysis of the High Court decisions in South Africa Sugar Association v the Minister of Trade and Industry 2017 4 All SA 555 (GP) and Pioneer Foods (Pty) Ltd v Minister of Finance 2017 ZAWCHC 110 (29 September 2017). These two cases offer for the first time, clarification on the nature of the power conferred on the Minister of Finance by section 48(1)(b) of the CEA. The High Court in these two cases rejected the argument that the role of the Minister of Finance in respect of the power conferred upon him/her by section 48(1)(b) is that of a "registrar" who merely 'rubberstamps' the decision of the Minister of Trade and Industry. Consequently, the High Court in both matters held that a veto power is conferred on the Minister of Finance which permits him/her to either accept or decline the request of the Minister of Trade and Industry to amend Schedule 1 of the CEA.To the contrary, this paper argues that if the Minister of Finance declines the request of the Minister of Trade and Industry, s/he is not 'giving effect' to the request of the Minister of Trade and Industry as required by section 48(1)(b) of the CEA and is thus acting ultra vires because s/he is assuming powers which never conferred on him/her by the legislature. This paper also argues that the High Court in both matters, misconstrued the relationship between section 48(1)(b) and the "public interest" provisions in section 48 and thus unjustifiably stripped the Minister of Trade and Industry of his/her power to implement an amendment to Schedule 1. In the final analysis, this paper explores the impact of the Customs Duty Act 30 of 2014 on the Minister of Finance's powers in this regard.

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          Most cited references 1

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          "The Roles of the Southern African Customs Union Agreement, the International Trade Administration Commission and the Minister of Trade and Industry in the Regulation of South Africa's International Trade" 2013

           G. Brink (2020)
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            Author and article information

            Contributors
            Role: ND
            Journal
            pelj
            PER: Potchefstroomse Elektroniese Regsblad
            PER
            North-West University (Potchefstroom Campus) (Potchefstroom, North-West Province, South Africa )
            1727-3781
            2018
            : 21
            : 1
            : 1-25
            Affiliations
            orgnameUniversity of Free State South Africa vintic@ 123456ufs.ac.za
            Article
            S1727-37812018000100043
            10.17159/1727-3781/2018/v21i0a4268

            This work is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License.

            Page count
            Figures: 0, Tables: 0, Equations: 0, References: 3, Pages: 25
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