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[2019] ZAWCHC 14
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Zest Polyurethanes (Pty) Limited v Minister of Trade & Industry (15216/2017) [2019] ZAWCHC 14 (20 February 2019)

IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
no: 15216/2017
In
the matter between:
ZEST
POLYURETHANES (PTY)
LIMITED
Applicant
and
THE
MINISTER OF TRADE &
INDUSTRY
Respondent
Heard:
4 February 2019
Delivered:
20 February 2019
JUDGMENT
MYBURGH
AJ
:
Introduction
[1]
The applicant
seeks the following relief:
“
1.
That the decision of the dti, dated 20 June 2016, not to pay the
applicant the approved grant amount, or any amount at all (“the

decision of the dti”), be reviewed and set aside, in terms of
section 8(1)(c) of the Promotion of Administrative Justice
Act 3 of
2000 (“the PAJA”);
2. That
the decision of the dti be remitted to the dti with the following
directions, in terms of section 8(1)(c)(i) and (d) of
the PAJA:
2.1
the applicant’s failure to state the correct number of
employees in its application for the MCEP grant (which was
subsequently
correct) is not in itself fatal to the application;
2.2
the dti erred in finding that the applicant’s number of
employees in any year of the incentive period was less than the

applicant’s number of base-year employees at the date of the
application;
2.3
the dti is directed to determine and pay within two months of the
date of the order the correct amount of the grant that is
payable to
the applicant in accordance with its claims submitted on 14 March
2014 and 30 April 2015.
3. That
the costs of the application be paid by the dti, should it oppose the
relief sought
”
.
Preliminary
objections
[2]
The
respondent (the dti) raised three preliminary objections to the
application.  Firstly, it took issue with the manner in
which it
was cited, secondly it objected to the application on the basis that
it had been instituted in excess of 180 days since
the impugned
decision, and thirdly it contended that the Manufacturing Competitive
Enhancement Programme (‘the MCEP’)
was no longer in
operation and hence the dti was not in a position to give effect to
the relief sought in the application.
[3]
The
objections, which are of a technical nature, did not feature
prominently when the matter was argued as the respective counsel,

quite rightly, remained focused on the merits of the application.
However, to the extent necessary:
1.
I condone the incorrect
citation of the respondent and grant its correction from the
“
Department of
Trade and Industry”
to the “
Minister
of the Department of Trade and Industry”
’;
2.
I find that the delay was
explained, excusable and the 180-day period is accordingly extended
and;
3.
that the suspension of
the programme does not preclude granting the relief sought as the
application relates to a decision made
at a time when the programme
was operative.
The
facts
[4]
The
material facts are, in essence, common cause.
[5]
The applicant
carries on the business of manufacturing and marketing polyurethane
coatings and mesh, and is situated in Montague
Garden, Cape Town.
[6]
In 2012 (or
thereabouts) the dti established the MCEP. In the ‘
programme
guidelines’
,
under the heading “
Programme
Description
”,
it is stated that:
“
The objective of the
incentive is to promote enterprise competitiveness and job
retention
”.
[7]
It bears mention,
at the outset, that t
he
grant was not dependent on an
applicant employing a certain number of people. However, it did
require an approved applicant to maintain
its level of employment
after approval of the grant. The retention of employment levels was
thus more akin to a resolutive condition,
or a secondary, rather than
a primary purpose.  However, nothing turns on this nuance.
[8]
The grant provided
that an applicant could seek the disbursement of the grant in two
payments and these claims would be made by
way of the submission of a
particular claim form, along with certain documents.
[9]
The programme
guidelines also provided for an appeal process.  However, it was
agreed by counsel for the parties that the applicant
was not
precluded from seeking relief on the basis that an internal appeal
had not been exhausted.
[10]
On 10 April 2013,
the applicant submitted its application for the grant, on 28 June
2013 it was approved and on 18 July 2013 the
applicant was notified
of the approval.
On
23 July 2013 the applicant signed and returned the requisite letter
of acceptance to the dti.
[11]
On 15 September
2013, the applicant commenced with commercial production utilising
the first batch of equipment purchased and the
following day it
notified the dti of the commencement.  On 24 February 2014, the
applicant paid R1 162 050.00 to the
suppliers of the first batch
of equipment.
[12]
On 14 March 2014,
the applicant, through Sasfin, submitted its first claim to the dti.
Mr Johann Juan van Tonder
(‘Van Tonder’), the financial manager of the applicant,
explained what transpired:
“
During the process of
preparing the first claim form, Sasfin identified what appeared to be
a discrepancy in the applicant’s
employment numbers and queried
whether the applicant’s employment numbers had increased.
I confirmed that they had
not.  The difference between the
applicant’s employment numbers as per its Employment Equity
Report (and the original
application form), on the one hand, and the
formula annexed to the programme guidelines, on the other hand, was
identified at this
time.  I informed the applicant’s
independent auditors, MGI Bass Gordon GHF of the discrepancy, because
they would need
to clarify the position in their factual finding
report.
As required by the programme
guidelines, the claim form was signed by both the applicant and the
independent auditors, MGI Bass
Gordon GHF.  It was accompanied
by a first factual findings report by MGI Bass Gordon GHF, dated 11
March 2014.  It was
also accompanied by a letter from MGI Bass
Gordon GHF relating to the applicant’s employment information,
dated 11 March
2014.  …
The first claim form sets out
the employment numbers at the date of the first claim as follows ….
(A schedule states the correct
total to be 59.)
Paragraph 24 of the first
factual findings report relates to the applicant’s employment
numbers at the date of the first claim.
In this regard, the
report confirms the employment numbers as set out in the (first)
claim form as follows:
‘
The
total number of employees differentiating between full-time vs.
seasonal employees and total hours worked for the claim period
agrees
to the underlying wage and payroll records.’
P
aragraph
25 of the first factual findings report relates to the applicant’s
(base year) employment numbers at the date of
the application.
In this regard, the report states as follows:
‘
Base
employees
as per application form: 81
Please
refer to enclosed letter, ‘
employment confirmation
’
which explains that the employee numbers in the application were
overstated and should have been as follows:
Permanent
employees: 21
Full-time
equivalent of temporary employees: 28
Corrected
base employees: 49
The
letter, ‘
Employment
confirmation
’
set out the reasons for the error highlighted above
”
.
The letter relating to the
applicant’s employment numbers (referred to in the factual
findings report as the ‘employment
confirmation’ letter)
states as follows:
“
When
the Manufacturing Competitiveness Enhancement Programme (MCEP)
application for Zest Polyurethanes (Pty) Limited (‘the

Company’) was submitted, an Employee Equity Report was used to
determine the number of employees by the Company’s external

service provider assisting with the application – as opposed to
the actual payroll information as at that date.
The
number of the employees stated as permanent on the Employee Equity
Report indicated the total amount of employees employed during
the
two year period between 01/10/2010 - 30/09/2012 and
did not
account for employees leaving the company during the period
,
resulting in the number of permanent employees being significantly
overstated in the application.
We
c
onfirm
that based on our review of the payroll records provided to us, that
the relevant employee details of the Company were as
follows:
·
As at
28/02/2013 Zest Polyurethanes (Pty) Ltd had a total of 49 full time
equivalent employees, being 28 permanent staff and full
time
equivalent of 21 temporary staff members (54 428 hours at 1920
equivalent hours)
·
As at
28/02/2014 Zest Polyurethanes (Pty) Ltd had a total of 59 full time
equivalent employees.
We,
MGI Bass Gordon GHF, as the Independent Reviewers of Zest
Polyurethanes (Pty) Ltd, confirm that the entity currently has more

full time equivalent employees than when the application was
submitted’
”
.
(Emphasis supplied)
[13]
Regarding
Van Tonder’s setting out
of the position and the MGI Bass Gordon GHF letter, the following is
significant:
1.
The applicant only
became aware of what was clearly an inadvertent error, on 11 March
2014 when it was pointed out by Sasfin three
days before the
submission of the first claim.
2.
On submission of
the first claim on 14 March 2014, the applicant provided the dti with
a full explanation of the error including
the reasons why it was
made. The applicant also corrected the error.
3.
On receipt of the
first claim, dti was thus able to consider the claim with reference
to the true position (and not the incorrect
position) regarding the
applicant’s retention of employees.
4.
In the
circumstances, by the time the dti made the impugned decision, any
inaccuracy in the employee numbers had been rectified
and hence it
cannot be said that it was in any way prejudiced by the mistake on
the part of the applicant.
5.
The error had no
impact on the approval of the application for the grant.  It was
tentatively suggested that, increased employment
figures, on
application, would advantage an applicant
vis-à-vis
other applicants.
However, there was no case made out that it was, in fact, the
position and in the absence of that, it remains
a speculative
proposition.
[14]
Regarding the
number of employees at the time of the application for the grant, the
dti contended that, due to the time lapse, it
had no way of verifying
that this was indeed the case.  This submission does not assist
the dti for two reasons:
1.
In the first
instance, the dti could not conclusively verify the base number of
employees at the time of application for the grant
by way of an
inspection of the premises and a head count of employees after
application for the grant had been made. At best and
inspection of
the premises was one of the things the dti was empowered to do to
verify the information provided by the applicant.
The base employment
figures had to be calculated with reference to a period prior to the
submission of the application rather than
the position at a
particular point in time.  The base employment figures could
thus only be verified with reference to the
company records for this
period and there was no indication that the lapse of time, in this
instance, precluded an effective verification
by way of an inspection
of the premises and the company records.
2.
In the second
instance, the lapse of time cannot be laid at the door of the
applicant. It was of the dti’s making. The dti
knew of the
correct position on 14 March 2014, eight months after the approval of
the grant and on receipt of the first claim.
After that the dti took
more than two years to make the impugned decision despite a concerted
effort by the applicant to engage
with it regarding the matter. The
question must be asked what the applicant was to do in the face of an
unresponsive dti.
[15]
The first claim
was not paid, and neither was the second claim, which was submitted
on 30 April 2015.  By the time of the second
claim, the
applicant had spent another R1 235 180.00 for the rest of the
equipment which brought its expenditure to the full R2 250 000.00

it had committed to invest.  However, it did not have the
benefit of the grant of R900 000.00 for which it had applied
and
which had been approved by the dti.
[16]
A further but very
minor error, in paragraph 25 of the Second Factual Findings Report of
MGI Bass Gordon GHF, was identified when
preparing the application.
However, this has no impact on the determination of this matter.
[17]
On 28 October 2015
the dti suspended the MCEP with immediate effect.  However, the
suspension specified that “
the
Department will continue to honour all approved applications
”
and hence the suspension has no relevance when deciding this matter.
[18]
Following the
submission of the two claims:
1.
On 24 February
2016, 10 months after the submission of the second claim Van Tonder
emailed the dti requesting feedback as to the
status of the claims.
The dti did not respond.
2.
On 1 March 2016,
Angelique Massey of Sasfin sent a follow-up email to the dti and on
the same day, Phololo Morolo of the dti responded
stating that “
The
client received a letter sometime last year regarding the project.
I will try locate a copy to that effect
”.
3.
On 25 April 2016,
a month later and nothing heard of the dti, Angelique Massey sent a
follow-up email to Phololo Morolo and then
on 4 May 2016 she sent a
further follow-up email.  Nothing was forthcoming.
4.
On the same date,
Van Tonder addressed an email to Phololo Morolo.  In this email
he recorded that the applicant had not received
any payment or
explanation from the dti.  At this stage it was already more
than a year since the submission of the second
claim.
5.
On 10 May 2016,
Angelique Massey addressed another email to Phololo Morolo asking if
the dti had found the letter the latter she
had referred to in her
email of 1 March 2016.  Phololo Morolo did not reply.
6.
On 11 May 2016,
Magedeline Thwala of the dti responded to Angelique Massey.  Her
response contained nothing of consequence.
7.
On 14 June 2016,
more than a month later, Angelique Massey addressed a letter to Hawie
Viljoen of the dti, again seeking feedback
as to the non-payment of
the claims.
8.
On 15 June 2016
Hawie Viljoen replied.  However, his email is little more than a
request for more time.
9.
On 1 July 2016,
Angelique Massey, having heard nothing despite the many assurances
that the applicant’s query was being attended
to, emailed the
dti again.
10.
Finally, on 11 July 2016,
Minah Sihlangu of the dti replied, stating that:  “
As
per our records claims
were not paid due to a
reduction in employment.  Please see attached letter which was
sent to Johann Van Tonder (
johannvt@duran.co.za
)
on the 28
th
June 2016
”
(‘the letter’).  On the same day, Angelique Massey
pointed out that the email address had been spelt incorrectly,
and in
all likelihood this is the reason why the email, with its attachment,
had not been received.
[19]
The decision under
review is encapsulated in the letter that reads as follows:
“
RE: MANUFACTURING
COMPETITIVENESS ENHANCEMENT PROGRAMME (MECP)
We are in receipt of your
claim dated 14/03/2014.  Please note that your claim does not
meet the requirements of the Manufacturing
Competitive Enhancement
Programme (MCEP) and is therefore not considered for payment since
the
[should read
there]
was a reduction
in number of jobs:
1.
Any reduction in total
number of employees, as compared to average employment levels for a
twelve (12) month period prior to the
date of application, will
disqualify the applicant.  Any claims not yet evaluated or paid
will immediately lapse and no obligation
will accrue to the dti on
such claims.  Para 3.3.3.2
”
.
[20]
The
letter was sent to the applicant two years and three months after the
submission of the first claim and one year and three months
after the
dti inspected the applicant’s premises.
[21]
The indifference
of the dti in dealing with the queries of the applicant was
unfortunate, given that the applicant had expended
a substantial
amount of money and geared up its operations expecting that 40% of
its capital expenditure would be covered by the
grant.
[22]
Counsel for the
dti mentioned that the grant was gratuitous and that this is a
relevant consideration.
In
my view it is not.
[23]
Cachalia, JA, in
the
National Lotteries
Board
case
[1]
,
which involved a denial of an application for a grant, held as
follows:
“
[39]  I mentioned
at the outset that the funds of the board are aimed at supporting
socially worthy projects and, that for
the years under review, the
board failed to disburse R6 billion. The rigid and inconsistent
application of the guidelines, at least
partly, explains why this has
happened. Equally distressing is that the board does not appear to
understand its mandate properly.
Mr Nevhutanda, the chairperson
of the board and the deponent to its answering affidavit, seems to
hold the view that grants
given by the board are ‘gratuities,’
which are allocated at the board’s discretion. He is wrong. The
board holds
public funds in trust for the purpose of allocating them
to deserving projects. And it must ensure that these funds are
allocated
to those projects, provided of course that they meet the
necessary requirements. The funds do not belong to the board to be
disbursed
as its largesse
”
.
[24]
The grant is not
gratuitous. The MECP programme is an initiative of the executive,
with a statutory underpinning that serves a national
imperative to
enhance competitiveness. The applicant at all stages of the process,
and particularly after approval of its application,
acquired rights
to be treated in an administratively fair manner.
Error
not fatal
[25]
The
applicant’s inadvertent error, when applying for the grant, had
no impact on the approval (or otherwise) of the grant.
A case was not
made, that overstating the employment numbers advantaged the
applicant.  It was not required of an applicant
for a grant to
employ a certain minimum number of people. The error was thus not
material as the purpose of the grant was achieved
despite its making.
[26]
Regarding
the making of the error, the facts of the
National
Lotteries Board
case
[2]
are similar.
[27]
It
is significant that the case involved an application for a grant,
rather than (for example) an application for a fishing quota
where
the making of an error on application has ramifications
vis-à-vis
the
other applicants. In a fishing quota matter, different applications
are weighed up against each other and applicants (who compete
inter
se
)
are allocated a percentage of a finite total catch. Thus, by making a
mistake an applicant can steal a march on the competing
applicants.
Furthermore, any subsequent adjustment of one applicant’s quota
means that the quotas of other successful applicants
need to be
adjusted. This situation, which is different to that of the present
matter, calls for a strict approach to mistakes.
[28]
It
is instructive to refer to
National
Lotteries
case
in some measure of detail.
Cachalia,
JA, discussing the correct approach to the application of guidelines
states the following:
“
[7] As I mentioned at
the beginning, the disputes over the three applications all concern
how the DAs applied the guidelines when
declining them. The board
submits that its guidelines are clear, not unduly burdensome and must
be complied with to the letter.
Counsel for the board urged us to
have regard to the fact that because the board processes large
numbers of applications, which
is an onerous administrative
responsibility, it cannot be expected to investigate every
application that does not adhere strictly
to the guidelines.
Moreover, counsel for the board submitted, the board’s staff
establishment is limited and its employees
are constrained to apply
the guidelines strictly. The board thus contends that by refusing to
consider the three applications here
in issue, it was merely applying
the guidelines. It is therefore necessary to consider the status of
the guidelines issued by the
DAs and how they are meant to be applied
within the context of the Act’s statutory framework. …
[9] So, the Act and the
applicable regulations make it clear that the requirements for
applications are to be found in the regulations.
This does not mean
that DAs may not develop guidelines of the sort here in issue to
assist them in making their decisions. Indeed,
because the grant or
refusal of an application involves the exercise of a discretion, our
courts have recognised that it is prudent
for decision-makers to
apply guidelines or general criteria to assist them with this task.
And, provided that these
criteria are compatible with the enabling legislation, the only
constraint is that they may not be applied
rigidly or inflexibly in a
particular case.
(The
reference here is to
MEC
for Agriculture, Conservation, Environment & Land Affairs v Sasol
Oil (Pty) Ltd
2006
(5) SA 483
(SCA)
[2006] 2 All SA 17
, para 19.)
For
if they are applied in this manner the decision-maker elevates the
guideline to an immutable rule and thereby fetters its discretion,

which it may not do.
(The reference here is to
Foodcorp
(Pty) Ltd v Deputy Director-General, Department of Environmental
Affairs & Tourism: Branch Marine & Coastal Management
2006
(2) SA 191
(SCA)
[2005] 1 All SA 531
, para 9.)
[10] At the same time
decision-makers must be consistent, particularly when dealing with
large numbers of applications, as the board
does. There is therefore
a tension between having to apply a guideline strictly and
consistently when making multiple decisions,
and applying it flexibly
in a particular case. It is this anxiety that motivates the
litigation on the board’s part –
a point counsel for the
board sought to drive home by insisting that a strict application of
the guidelines is unavoidable. But
this problem is inherent with
multiple decisions, and does not relieve an administrator of the duty
to consider each application
individually and justify every decision.
The law requires nothing less. And it is no defence for the board to
attempt to relieve
itself of this duty by complaining that it has
insufficient or inadequately trained staff to do this.
[11] That the guidelines in
issue here in the main serve a useful purpose, and generally accord
with the regulations, is not disputed.
Their object is to ensure that
moneys are disbursed only to grantees that are demonstrably capable
of administering them for their
intended purpose and also that
applicants for funding are treated similarly. In addition they
minimize the danger of fraud. When
receiving an application for
funding the decision-maker’s mind must be directed to these
purposes. In doing so, it is entitled
to treat some aspects of the
guidelines as peremptory requirements, such as that the financial
statements of grantees be audited.
For it would be untenable to
insist on this requirement for some organisations, but not for
others. However, it is not entitled
to treat every departure from its
literal prescriptions as fatal. Not even statutory formalities are
approached in this way. The
real question a decision-maker must ask
itself is whether the object of the guidelines has been achieved.
(The reference here
is to
Unlawful
Occupiers, School Site v City of Johannesburg
2005
(4) SA 199
(SCA)
[2005] 2 All SA 108
, para 22.)
If
it has, then insignificant or technical instances of non-compliance
should generally be condoned
”.
[29]
Thus,
the making of the error was not fatal to the application for the
following reasons:
1.
The grant was of an
uncompetitive nature and thus the correction of the mistake had no
impact on other applicants for grants both
at the approval stage and
thereafter.
2.
Base-employment level had
no effect on the approval (or otherwise) of the grant.
3.
The making of the mistake
and its subsequent correction did not undermine the purpose of the
grant.
4.
The inflexibility of the
dti in failing to consider the correction of the error amounted to a
failure to exercise its discretion
or an impermissible fettering of
its discretion.
[30]
It must be borne
in mind that by the time the decision was made on 20 June 2016, the
dti had known, for well over two years, that
the true employment
level at the time the applicant applied for the grant, was not 81
employees, but 49 employees.  At all
relevant times the dti was
able to decide on the true facts, but for reasons not known, it
appears to have elected not to do so.
Thus, it cannot be said that
the making of the error informed the decision.  Rather, it was
the failure, on the part of the
dti, to work with what it had been
told were the correct figures.
The
law and its application to the facts
[31]
The grounds upon
which the applicant seeks to review and set aside the decision are
that irrelevant considerations were considered,
relevant
considerations were not considered, and hence that the decision was
so unreasonable that no reasonable person could have
made it.
[32]
The provisions the
applicant relies on are sections 6(2)(e)(iii) and 6(2)(h) of the
Promotion of Administrative Justice Act, 3 of
2000 (‘PAJA’)
which read as follows:
“
(2) A court or
tribunal has the power to judicially review an administrative action
if –
..
(e) the action was taken –
...
(iii) because irrelevant
considerations were taken into account or relevant considerations
were not considered.
...
(h) the exercise of the power
or the performance of the function authorised by the empowering
provision, in pursuance of which the
administrative action was
purportedly taken, is so unreasonable that no reasonable person could
have so exercised the power or
performed the function
”
.
[33]
It
was argued on behalf of the dti that this ground of review fails at
the level of fact because the applicant had no automatic
right to
amend its base figures and that the dti was given a discretion to
accept such correction or not.
[34]
In
my view, this submission does not have merit, for two reasons:
1.
It is clear that
the dti failed to exercise its discretion at all regarding the
mistake. It did not consider the amendment or correction
and did not
decide to accept it or not. The dti cannot, after the fact, rely on
new reasons.
[3]
2.
The dti simply
ignored the correction, worked with the initial incorrect base
figures (despite knowing that these figures were incorrect)
and
concluded that there had been a reduction in the number of employees.
3.
If the dti had
exercised its discretion regarding the correction, it would have said
so when communicating its decision.  It
did not do so.
[35]
In
the circumstances, when the dti took the impugned decision, it did so
with on the basis of
irrelevant
considerations (the incorrect figures) and failed to consider
relevant considerations (the correct figures). It could
also be said
that the impugned decision was not rationally connected to the
information before the decision-maker.
[36]
The question that
then remains is whether doing so was
‘
so
unreasonable that no reasonable person could have so exercised the
power’
.
[37]
Counsel
for the dti referred to the
Bato
Star Fishing (Pty) Limited v Minister of Environmental Affairs and
Tourism and Others
case
[4]
,
where
the following was held
:
“
[44]
There was some debate in the supplementary heads filed by the parties
as to the precise meaning of s 6(2)(h) of PAJA, which
provides that,
if a decision ‘is so unreasonable that no reasonable person
could have so exercised the power’, it will
be reviewable ....
In determining the proper meaning of s 6(2)(h) of PAJA in the light
of the overall constitutional obligation
upon administrative
decision-makers to act ‘reasonably’, the approach of Lord
Cooke provides sound guidance.
Even if it may be thought that
the language of s 6(2)(h), if taken literally, might set a standard
such that a decision would rarely
if ever be found unreasonable, that
is not the proper constitutional meaning which should be attached to
the subsection.
The subsection must be construed consistently
with the Constitution and in particular s 33 which requires
administrative action
to be ‘reasonable’.  Section
6(2)(h) should then be understood to require a simple test, namely
that an administrative
decision will be reviewable if, in Lord
Cooke’s words, it is one that a reasonable decision-maker could
not reach.
[45]
What will constitute a reasonable decision will depend on the
circumstances of each case, much as what will constitute a fair

procedure will depend of the circumstances of each case. Factors
relevant to determining whether a decision is reasonable or not
will
include the nature of the decision, the identity and expertise of the
decision-maker, the range of factors relevant to the
decision, the
reasons given for the decision, the nature of competing interests
involved and the impact of the decision on the
lives and well-being
of those affected. Although the review functions of the Court now
have a substantive as well as a procedural
ingredient, the
distinction between appeals and reviews continues to be significant.
The Court should take care not to usurp the
functions of
administrative agencies. Its task is to ensure that the decisions
taken by the administrative agencies fall within
the bounds of
reasonableness as required by the Constitution. ...
[48] In
treating the decisions of administrative agencies with the
appropriate respect, a Court is recognising the property role
of the
Executive within the Constitution.  In doing so a Court should
be careful not to arbitrate to itself superior wisdom
in relation to
matters entrusted to other branches of the government.  A Court
should thus give due weight to findings of
fact on policy decisions
made by those with special expertise and experience in the field.
The extent to which a Court should
give weight to these
considerations will depend upon the character of the decision itself,
as well as on the identity of the decision-maker.
A decision
that requires an equilibrium to be struck between a range of
competing interests or considerations and which is to be
taken by a
person or institution with specific expertise in that area must be
shown respect by the Courts.  Often a power
will identify a goal
to be achieved, but will not dictate which route should be followed
to achieve that goal.  In such circumstances
a Court should pay
due respect to the route selected by the decision-maker.  This
does not mean, however, that where the decision
is one which will not
reasonably result in the achievement of the goal, or which is not
reasonably supported on the facts or not
reasonable in the light of
the reasons given for it, a Court will not review that decision.
A Court should not rubber stamp
an unreasonable decision simply
because of the complexity of the decision or the identity of the
decision-maker
”
.
[38]
Reference
was also made to
Dumani
v Naire and Another
[5]
,
where the Supreme Court of Appeal held that:
“
The
enquiry before this court is not whether the presiding officer was
correct in his conclusion that Dumani was guilty on three
of the
charges.  The main enquiry before this court is whether the
presiding officer’s decision is so unreasonable that
no
reasonable person could have reached it
”.
[39]
Applying
the considerations enumerated above:
1.
The touchstone is whether
a reasonable decision-maker could reach the impugned decision.
2.
Whether this is so or not
depends on the peculiar facts, considering,
inter
alia,
the nature of
the decision and its impact on the lives and well-being of the people
involved.
3.
The decision reject and
not pay the claims of the applicant impacted severely on the
applicant, which had made investments on the
basis of the grant
approval.
4.
The decision had very
real financial consequences for the applicant as a business and the
people involved in the applicant in various
capacities such as
employees and owners.
5.
All this called for a
well-considered measured approach by the decision- maker. In this
matter there is little evidence of that.
6.
While a court must attain
a balance and be careful not to usurp the powers of the
decision-maker and arbitrate to itself superior
wisdom, there is no
danger of that in this case given the degree of unreasonableness on
the part of the dti.
7.
The
decision speaks of a good degree of indifference as to its
consequences. It was also based, at best, on an incomplete
consideration
of the facts. It was, in the words of Lord Cooke “
one
that a reasonable decision-maker could not reach”.
Conclusion
[37]
In the circumstances I find for the applicant and order as follows:
1. the
decision of the dti, dated 20 June 2016, not to pay the applicant the
approved grant amount, or any amount at all, is hereby
set aside, in
terms of section 8(1)(c) of the Promotion of Administrative Justice
Act 3 of 2000 (“the PAJA”);
2. the
decision is remitted to the dti with the following directions, in
terms of section 8(1)(c)(i) and (d) of the PAJA:
2.1
the applicant’s failure to state the correct number of
employees in its application for the MCEP is not fatal to the
application;
2.2
the dti erred in finding that the applicant’s number of
employees in any year of the incentive period was less than the

applicant’s number of base-year employees at the date of the
application;
2.3
the dti is directed to determine and pay within two months of the
date of the order the correct amount of the grant that is
payable to
the applicant in accordance with its claims submitted on 14 March
2014 and 30 April 2015.
3. The
costs of the application are to be paid by the dti, such costs to
include the costs of two counsel.
______________________________
P
A MYBURGH
Acting
Judge of the High Court
21
February 2019
Appearances
:
For
the applicant: Advocate D Mitchell SC
Advocate
M Townsend
Instructed
by Chennells Albertyn Attorneys
For
the respondent: Advocate K Pillay
Instructed
by the State Attorney
[1]
National Lotteries
Board v SA Education and Environment Project
2012 (4) SA 504
at 516H-517A.
[2]
National
Lotteries Board
(
supra
).
[3]
National Lotteries Board
supra
at 513 C
Jicama
17 (Pty LTD v West Coast District Municipality
2006 (1) SA 116
at
121 E – 122 D (where reference was made to Westminster City
Council, Ex parte Ermakov [1996] 2 All ER (CA) at 315
h –
316
d
)
[4]
2004
(4) SA 490 (CC).
[5]
(144/2012)
[2012] ZASCA 196
; 2013 2 (SA) 274 (SCA); 2013 [2] All SA 125 (SCA).