We are aware that the draft upon which we commented was the result of numerous previous drafts developed internally without industry inputs. This document was presented at Nedlac as a fait accompli as it had already been forwarded to cabinet for final approval. We were disappointed with this process as it lacks the consultative transparency, which we have come to expect.

1. CITA BILL

Our experience has been that the administration of the procedures under the present BTT Act (Act 107 of 1986) has been rather lengthy. The ability to perform administrative adjustment to tariffs and trade remedies directly effects the competitiveness of our industries. Our perception is that the proposed CITA Bill will add, substantially to the time of administration which will further hamper, as opposed to improve, our competitive position.

In constituting the Commission, no provision is made for nominations from the social partners for the President to consider. This is contrary to our experiences in other sectors of our economy. For instance, section 4(4)(a) of the Marketing of Agricultural Products Act (no. 47 of 1996) requires the Minister to gazette the request for nominations to the National Agricultural Marketing Council. To our mind this improves representivity, and is in line with the buy in of affected social partners in the process.

1. The provision on public information and reporting requires that the CITA issues an annual report within 6 months of the financial year end.

We believe that an additional subsection under article 22(3) needs to be added. This subsection should require a performance schedule for each application received indicating:

• Outstanding applications from previous years with their original date of receipt.
• Date of applications received during the year.
• Date upon which the CITA’s report on the application was signed off.
• Date of final publication in the Government Gazette.

This improvement will contribute substantially to transparency and good governance. By way of example, this improvement would have brought to light the following historical instances:

1. We have noticed that it is currently not part of the administrative procedure to provide the original applicant with a copy of the Board’s final report. We believe that this should be done.

The Commission is required to evaluate the merits of each application in terms of this article. According to page 10 of the BTT’s 1997 Annual Report (no. 3913) an "Initial merit assessment" is conducted upon receipt of an application by the Board. The standards for this evaluation of merit are not provided. The criteria for a merit assessment are thus unknown. We consider this to be a shortfall in the current legislation, which is perpetuated in the proposed CITA Bill. The importance of this element is that this decision determines whether or not an application is investigated at all.

Furthermore, in the event of a rejection, reasons should be provided substantiating the rejection as measured against the required criteria and the substance of the applicant’s submission.

We understand in terms of Article 30(1)(b) that re-application will not be considered within 6 months of the final decision of the CITA. Another view is that this 6 months commences after publication in the Government Gazette. The latter view has proved unwieldy given the lapse between the application date and the final publication in the Gazette. We would appreciate an interpretative clarification of this wording.

We wholeheartedly support the ability to impose provisional duties in the event of delays.

In terms of this provision the national body of a member state may consider applications from other states within the customs union. Such an application may have an influence upon or be of interest to the industry within the national body’s country. There is however no duty upon the national body to let stakeholders within their country know of the event which is happening in the other state and has been brought to the national body’s attention.

We would like a step inserted to require the CITA to notify SA stakeholders regarding investigations done by the national bodies of other member states.

We do not believe that a committee should have the authority to give final effect to a decision without subsequent ratification by the CITA. We thus propose that the word "or" be replaced wit the word "and" at the end of article 14(5)(a).

The 1969 SACU agreement allows for numerous exceptions to the free trade goal of the customs union. Our experience in some sectors, especially agriculture, has been that these exceptions have established the de facto rule. This is especially so where the BLNS countries have the right to act unilaterally. These exceptions, together with infant industry concessions, have led to the situation where BLNS agro industries enjoy de facto permanent protection. These exceptions are perpetuated in the new agreement and it is seriously doubted that the enhancement of economic development (as listed as an objective in Article 2(e)) equates to sustainable development in light of the de facto permanence of protection.

The establishment of a broad institutional structure lengthens the administration of trade matters as opposed to shortening the process as is our current need. This comment should be read together with the 1^st paragraph under the CITA Bill comment. Also, performance criteria for the institutions listed (a) – (f) need to be drawn up and included. This recommendation should be read with our comment regarding Article 22 of the CITA Bill.

Our view is that the Ministers should meet more often rather than less often. The words "unless agreed otherwise" should thus be deleted.

Article 11(1) requires Tariff Board members to be "experts" from "member states". There is no definition of "expert". We suggest that wording as used in Article 9 (Qualifications) of the CITA Bill be adopted here.

Furthermore there is no indication as to how the Tariff Board will be constituted i.e. number of members and country designations. We suspect that this will delay the effective constitution of the Board.

In order to ensure the effectiveness of the Tribunal it is suggested that the Tribunal be required to deal with matters referred to them within a maximum period of 3 months. Extension of this period should only be under sanction of the Council of Ministers. Furthermore, this timing provision should also be applied to the pre-tribunal negotiations in article 13(5).

The current and ongoing dispute regarding wheat and dairy duty rebates for the BLNS countries was scheduled to be revised in April 2000. Due to a lack of procedural timing rules and delaying tactics by non committed parties this dispute is still unresolved after 28 months.

The consensus required should be on a country basis.

We foresee that the Council will not always concur with the recommendations of the Tariff Board. The word "approve" should thus be expanded to "approve or reject".

Our practical experience of rebate facilities has led us to conclude that in principal these rebates should not be allowed.

In the absence of narrow definitions of the meaning of the exceptions in sub paragraphs (a), (b) and (c) we recommend that no rebate be allowed without the consensus of all member states.

This clause essentially provides a safe haven for pre-existing provisions contrary to the objective of facilitating the cross border movement of goods (Article 2(a)).

In view of the fact that numerous trade restricting measures already exist, we recommend that:

1. Each state prepares a list of these existing measures,
2. Each state notifies the list to the other States and
3. The Council of Ministers agrees as to the continuation, phasing out or abolition of these existing impediments.

In view of the widespread use of infant industry protection, we suggest that:

1. Each state prepares a list of existing industries enjoying infant protection,
2. Each state notifies the list to the other States and
3. The Council of Ministers agrees as to the continuation, phasing out or abolition of these existing infant industry statuses.

In order to ease and facilitate trade, harmonisation should be considered as essential and not as aspirational. The words "strive to" should thus be deleted.

In order to ease and facilitate trade, harmonisation should be considered as essential and not as aspirational. The words "whenever possible" should thus be deleted.

We would like to confirm Government’s undertaking at Nedlac that a consultation process will be followed:

1. in completing outstanding clauses of the draft agreement.
2. in compiling the relevant annexes and regulations to the agreement.

We trust that these comments prove useful in bringing into being efficient and responsive structures within South Africa and within SACU.

We thank you for the opportunity of submitting these comments.