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IN THE NORTH GAUTENG HIGH COURT, PRETORIA

CASE NUMBER: 49454/2009

DATE: 12 FEBRUARY 2010

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

In the matter between:

KARAN BEEF (PTY)...................................................................................................................APPLICANT

and

DR D.S. NAIDU N.O. …......................................................................................................1^st RESPONDENT

DR TERTIUS BERGH N.O. ….........................................................................................2^nd RESPONDENT

THE NATIONAL EXECUTIVE OFFICER:

THE DEPARTMENT OF AGRICULTURE

IN THE NATIONAL GOVERNMENT............................................................................3^rd RESPONDENT

THE DIRECTOR: VETERINARY SERVICES:

THE DEPARTMENT OF AGRICULTURE

IN THE NATIONAL GOVERNMENT............................................................................4^th RESPONDENT

THE MINISTER:

THE DEPARTMENT OF AGRICULTURE,

FORESTRY & FISHERIES

IN THE NATIONAL GOVERNMENT ….......................................................................5^th RESPONDENT

THE MEMBER OF THE EXECUTIVE COUNCIL:

THE DEPARTMENT OF AGRICULTURE,

RURAL DEVELOPMENT AND LAND ADMINISTRATION

IN THE PROVINCIAL GOVERNMENT, MPUMALANGA........................................6^th RESPONDENT

THE PROVINCIAL EXECUTIVE OFFICER:

THE DEPARTMENT OF AGRICULTURE

IN THE PROVINCIAL GOVERNMENT,

MPUMALANGA.................................................................................................................7^th RESPONDENT

THE MEMBER OF THE EXECUTIVE COUNCIL:

DEPARTMENT OF AGRICULTURE,

FORESTRY & FISHERIES IN THE PROVINCIAL

GOVERNMENT OF KWA-ZULU NATAL....................................................................8^th RESPONDENT

THE PROVINCIAL EXECUTIVE OFFICER:

THE DEPARTMENT OF AGRICULTURE

IN THE PROVINCIAL GOVERNMENT OF

KWA-ZULU NATAL …....................................................................................................9^th RESPONDENT

JUDGMENT

LOUW J

Introduction and chronology

During January 2009 Applicant exported two containers of meat to Germany and Kuwait.

The authorities in Kuwait and Germany rejected the containers on 15 February 2009 and 6 March 2009, respectively.

The Kuwait container arrived back in the Durban harbour on 24 March 2009 and the German container on 17 April 2009.

In respect of both containers of meat, import permits were issued in the name of the Director Veterinary Services of the Department of Agriculture (the Department). The Director Veterinary Services is also the National Executive Officer (NEO) in the Department. The permits were issued in terms of the Meat Safety Act, 40 of 2000 (the Act) and are dated 9 and 16 April 2009 respectively.

During May 2009 the applicant’s driver attempted to collect these containers from the cold storage, where the meat was at that stage, but was not allowed to do so.

On 13 and 14 May 2009 the first Respondent, a Chief State Veterinarian issued rejection certificates in terms whereof all the meat in both containers were condemned.

From the end of May 2009 the applicant directed correspondence to the Department. Of importance is an email dated 3 June 2009 reading as follows:

“Please can we urgently discuss this matter. We would like to be able to check all this product, in the presence of the relevant authorities to confirm whether all the product is a problem or not. How do we go about sorting this out ”

Belatedly, on 15 June 2009 the applicant was provided with the two rejections certificates which were issued, as stated above, a month earlier.

In those certificates the applicant has been instructed within thirty days to destroy the contents of those containers by dumping same into a hazardous landfill site at Shongweni, Kwa-Zulu Natal. That period was extended from time to time. It is currently extended to the date on which an appeal lodged by the applicant to the Minister has been disposed of.

On 3 July 2009 the applicant in terms of s 18 (1) of the Act lodged an appeal with the Minister (fifth respondent). This appeal was lodged on the condtion that the first respondent, Dr Naidu a Chief State Veterinarian, was in fact authorised to take the decision as set out in the certificates of rejection.

On 11 June 2009 the first respondent wrote an internal letter stating inter alia:

“We, as rule, do not separate good product from bad product. If some of the product is not fit for human consumption, then we condemn the entire consignment."

Each container weighs approximately two tons and contains approximately 100 cartons of meat each. The value thereof is estimated at approximately 2 million rand.

The applicant’s main contentions

In argument the applicant advanced three main contentions namely:

1. The first respondent acted ultra vires when he issued the certificates of rejection i.e. he was not authorised to do so by or in terms of the empowering provisions of the Act.

2. Even if so authorised, the powers on which he reportedly relied did not avail him i.e. did not give him the power to condemn the meat.

3. The principles of audi alteram partem were not complied with prior to the decisions to condemn the meat.

Legislation relevant to the ultra vires argument

I refer to the following provisions of the Act.

“ 2 National executive officer

(1) (a) The Minister must designate an officer of the Department who is a veterinarian as national executive officer.

(b)The national executive officer exercises the powers conferred on him or her and performs the duties imposed on him or her by or under this Act, subject to the control and directions of the Minister. ”

“ 3 Delegation and assignment of powers and duties by national executive officer

(1) (a) The national executive officer may delegate any power conferred on him or her or assign any duty imposed on him or her by or under this Act-

(i) to any officer under his or her control;

(ii) to a person who is not an officer; and

(iii) with the approval of the MEC, to a provincial executive officer.

(b) A delegation or assignment under paragraph (a) (ii) may only be made with the approval of the Minister.

(c) A power or duty delegated or assigned to a provincial executive officer may be further delegated or assigned by such provincial executive officer to any officer under his or her control or to an authorised person.

(2) (a) The national executive officer must furnish the officers, authorised persons and provincial executive officers contemplated in subsection (1) with a written authority in which it is stated that the person mentioned therein is authorised to exercise the powers and perform the duties specified therein.

(b) The authorisation contemplated in paragraph (a) may-

(i) be written in general terms;

(ii) refer to cases of a particular nature;

(iii) refer to a specified abattoir; or

(iv) refer to a specified area. “

Delegation

As is clear from s 3 above the NEO may delegate or assign powers and duties to any officer under her control. It is common cause that the first respondent qualifies as such an officer.

I did not understand the applicant to dispute that the NEO had the powers in question (see applicants heads par 10 and 11). Rather it is argued that such powers and duties were not validly further subdelegated.

In her authoritative work Administrative Law in South Africa (2007) Hoexter refers to s 238 of the Constitution of Republic of South Africa and then states the following at page 236:

"Section 238 may be thought to recognise the inevitability of subdelegation in modern government. However, it also imposes a fundamental limitation on the activity. The subdelegation must be ‘consistent with' the relevant enabling legislation, meaning that it must be authorised by that legislation either expressly or by implication. This position is also acknowledged by the PAJA, which states that an administrative action may be reviewed if the administrator who took it ‘acted under a delegation of power which was not authorised by the empowering provision’. ”

The latter reference to PAJA is a reference to section 6(2)(a)(ii) thereof.

The only express subdelegation relied on by the respondents is to be found in annexure “TB5”. This is an undated authorisation by the NEO to the first respondent to exercise certain powers, perform functions and carry out duties under s 3(1) of the Act. The first difficulty with this document is that such powers and duties are not specified therein as required by s 3(2)(a) of the Act. Secondly, as was conceded during argument, this document came into being during the course of this application. It was conceded during argument that this document cannot be relied on to retrospectively authorise the steps taken by the first respondent. This document therefore does not assist the respondents at all.

On behalf of the respondents an argument was presented which, at the most, can be described as implied subdelegation.

For this argument the respondents rely on condition 8 of the import permits which states that samples of meat taken at the import inspection site in South Africa must not exceed a standard plate count maximum. The facts show that samples of both containers were taken by the first respondent and that the results showed that the standard plate count was exceeded by far. The important passage in the import permit reads as follows:

“Should one sample per container not meet this requirement, the meat in the container shall be detained and dealt with as determined by the Director Veterinary Services of South Africa. ” (my emphasis)

This still leaves open the question whether the Director Veterinary Services has on the facts of this case determined what the fate of the disputed meat should be. The respondents’ argument in this regard is best set out in the heads of argument which I quote:

21

The Director: Veterinary Services, Dr Mpho Maja, (the Fourth Respondent) (who is also the NEO (the Third Respondent)) has approved of a Procedure Manual: Inspection Procedure for Imported Meat¹ (“the Procedure Manual”) prescribing the necessary actions to be taken during the inspection of raw meat to ensure compliance with import requirements as stipulated on the relevant import permits and in terms of inter alia the Act. In terms of the Procedure Manual:

21.1 only, inter alia, State Veterinarians may carry out the inspection of meat, sign release documents and rejection certificates²

21.2 the maintenance of the temperature of the meat during transportation³ has to be examined by inter alia checking the cartons for signs of thawing of meat or thawing and refreezing and, if a break in the cold chain is suspected and/or the appearance of the product is not acceptable, bacteriology should be carried out to determine whether the meat is safe for human/animal consumption.⁴ It must also be confirmed that no soiling, contamination or deterioration of the meat in any way took place during transportation, prior to storage.⁵

21.3 rejected consignments will be handled in accordance with the options provided for in the rejection certificate.⁶”

This still does not answer the question whether the first respondent was authorised to condemn the entire consignment of meat. Even if the guidelines dated 23 April 2008 and issued by the NEO (annexure “TB4” to respondents’ papers) can be read to provide for such an option, it is by no means clear that this document is a subdelegation of that specific power to the first respondent.

In accordance with the maxim delegatus delegare non potest there is a presumption against subdelegations and the existence thereof has to be clearly established. I refer to the following two cases.

In CHAIRMAN, BOARD ON TARIFFS AND TRADE V TELTRON (PTY) LTD ⁷ the following is stated at 31 C - D:

“In his answering affidavit the first appellant makes the bald allegation that the Board delegated its functions in respect of this application to the IIC, which consisted of himself and two other members of the Board. The Board itself, it would appear, consists of some 17 members. Nowhere in the papers does the first appellant say when such delegation took place, or how it took place or what the ambit of the delegation was. ”

In KASIYAMHURU V MINISTER OF HOME AFFAIRS AND OTHERS ⁸ it was stated at 651 D:

“The fact of a valid delegation must clearly and satisfactorily be established and an express power of delegation must be interpreted restrictively."

I therefore find that there existed no written authority to the first respondent to condemn the meat as per the certificates of rejection. That was at all relevant times a power of the NEO and she did not make a determination as contemplated by par 8 of the import permit.

That leaves for consideration only the last leg of the applicant’s argument.

Audi alteram partem

The question here is really whether there was a procedurally fair process as contemplated by s 3 of PAJA. Fairness depends on the circumstances of each case as is made clear by s 3(2)(a) of that Act. In this context it is also of importance to bear in mind that, that in terms of s 3(4)(a) of PAJA the ordinary requirements of fairness as stipulated in s 3(2)(b) may be departed from in certain circumstances. These circumstances which are not exhaustive are to be found in s 3(4)(b). The respondents did not explicitly rely on s 3(4) of PAJA and I was not addressed in regard to any of the five factors listed in s 3(4)(b).

The chronology as set out above shows that there was no such urgency in taking the administrative action which justified not giving adequate notice of the proposed administrative action to the applicant, not giving it a reasonable opportunity to make representations and also not giving it a clear statement of the intended administrative action.

The first respondent contemplated to order that the entire consignment of meat be condemned. He could easily, in the time available, have given the applicant notice of the possibility that such a decision could be taken which notice had to be adequate notice coupled with a reasonable opportunity to make representations. This would also have included, had the applicant so desired, an opportunity to the applicant to inspect the meat in the containers and to obtain the opinion of its own experts.

Conclusion

This means that prayers 2 and 3 of the notice of motion have to be granted. I however cannot grant prayer 4. This is on the well-established principle that a court does not assume the duties of the decision maker. Especially in a case which is technical of nature and which requires expertise, I am quite simply not in a position to make such an order.

The NEO must be given the opportunity to make a considered decision on the facts of this case. The matter will therefore be referred back to the third respondent. It is unnecessary for me to prescribe the procedure to be followed, but from the above it is • clear that there must be proper notice and a reasonable opportunity given to the applicant to make representations. Naturally the applicant will have to be given the fullest opportunity to inspect the meat and to obtain expert opinion thereon.

The process I envisage is an open-ended process which will necessitate the investigation of any option which can minimize the applicant’s damages. One of these options is the contention by the applicant that the good meat can be separated from the bad.

In saying this I am not unmindful of the following:

1. The strong contention on behalf of the Respondents that the red meat regulations do not provide for the re-introduction of such meat to an abattoir. See regulations 79 - 83, 84 - 105 and 106-109.

2. The apparent danger of transporting rotten meat inland over hundreds of kilometres. See in this regard also par 5 of the guidelines dated 23 April 2008.

3. That it seems to be an immense task to test each carton individually.

4. The limited personnel resources of the Department. See guidelines par 13.

I of course, do not express any view on the merits of any of the abovementioned factors.

My finding is only that the administrative process was neither lawful nor fair.

In the light of the fact that there is some urgency I intend to order that the decision be made within one month from the date of this judgment.

I therefore make the following order:

1. The decision of Dr Naidu contained in the certificate of rejection dated 13 May 2009 is set aside.

2. The decision of Dr Naidu contained in the certificate of rejection dated 14 May 2009 is set aside.

3. The matter is referred to the National Executive Officer to decide on the fate of the meat referred to in the aforesaid two certificates.

4. Such decision must be taken within one month from the date of this judgment.

5. The third, fourth and fifth respondents are ordered, jointly and severally, to pay the costs of this application including the costs of two counsel.

A A LOUW

JUDGE OF THE HIGH COURT .

ADV FOR APPLICANT: Adv P Ellis SC

Adv AB Rossouw

ATTORNEYS FOR APPLICANT: Jaco Roos Attorneys

ADV FOR RESPONDENT: Adv JH Dreyer SC

Adv HC Janse van Rensburg

ATTORNEYS FOR RESPONDENT: State Attorneys

¹ Answering affidavit: Annexure “TB4”, pp 499 - 508.

² Procedure Manual: para D1 -3.

³ Regulation 126(3)(b) of the Regulations.

⁴ Procedure Manual: p 505, par 9 (2^nd paragraph); p 506, par 9(last paragraph).

⁵ Regulation 126(3 )(c) of the Regulations.

⁶ Procedure Manual: p 507, par 13

⁷ 1997(2)S'A 25 (A) _

⁸ 1999(l)SA 643 (W)

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