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[2021] ZAGPPHC 241
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Registrar of Animal Improvement and Another v Appeal Board and Others (45235/18) [2021] ZAGPPHC 241 (26 March 2021)
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA
CASE
NO: 45235/18
REPORTABLE:NO
OF
INTEREST TO OTHER JUDGES:NO
REVISED:NO
Date:26
March 2021
In
the matter between:
REGISTRAR OF ANIMAL
IMPROVEMENT
FIRST APPLICANT
DEPARTMENT OF
AGRICULTURE,
SECOND APPLICANT
FORESTRY AND FISHERIES
AND
APPEAL
BOARD
FIRST RESPONDENT
SOUTH AFRICAN BOERBOEL BREEDERS'
SOCIETY
SECOND RESPONDENT
SOUTH AFRICAN STUD BOOK AND
ANIMAL
THIRD RESPONDENT
IMPROVEMENT ASSOCIATION
JAKKIE
ERASMUS
FOURTH RESPONDENT
JOHAN
KRUGER
FIFTH RESPONDENT
JENS
GUNTER
SIXTH RESPONDENT
JUDGMENT
Van der Schyff J
Introduction
[1] In
this application, the applicants approached the court to (i) review
and set aside a decision of the Registrar dated 10 April 2012 (the
'first decision'), (ii) review and set aside a decision of the
Appeal
Board dated 29 June 2017 (the 'second decision'), and (iii) declaring
the registration of the South African Boerboel Breeder's
Society
('SABBS') unlawful and invalid and setting aside its certificate of
registration. Due to the substantial time delay between
the decisions
and the review application, the court is also required to determine
whether condonation should be granted for the
belated legality and
Promotion of Administrative Justice Act, No. 3 of 2000
('PAJA')-reviews, respectively.
Factual
Background
[2]
The following chronology sets the context and factual background
wherein the condonation application, and if successful, the review
applications with the requested declarator are to be adjudicated:
i.
21 November 2003: Under the regulations promulgated in terms of the
Animal Improvement
Act, No. 62 of 1998 (the 'AIA'), the Boerboel is
legally recognised as a breed;
ii.
2 October 2009: The Boerboel is declared as a landrace in Table 7(a)
of the
regulations published under the AIA;
iii.
13 March 2012: A group of Boerboel breeders applied with the
Registrar to be registered
as an animal breeders' society, the SABBS;
iv.
10 April 2012: The Registrar registers the SABBS and issues a
certificate to that
effect;
v.
2 May 2012: The Registrar suspends the registration of the SABBS;
vi.
22 January 2013: The SABBS and two of its members launched an
application in this
court under case number 3152/13 seeking, amongst
others, the review and setting aside of the decision by the Registrar
to suspend
the registration of the SABBS and a declarator to the
effect that the SABBS is legally registered as an animal breeding
society;
vii.
20 February 2014: The South African Stud Book and Animal Improvement
Association
('the SASBAIA') submits a Boerboel breed standard to the
Registrar in terms of section 16(3)(b) of the AIA. The Registrar does
not object to the breed standard;
viii.
10 March 2014: The opposed review application under case number
3152/13 is heard
by Webster J;
ix.
2 September 2014: Webster J sets aside the suspension of the SABBS's
registration
by the Registrar and declares it to be a legally
registered animal breeders' society;
x.
14 November 2014: The Registrar gives notice of the registration of
the SABBS
as an animal breeders' society as from 10 April 2012, in
the Government Gazette;
xi.
11 July 2015: The SABBS adopts an amended constitution which includes
the breed standards
for the Boerboel;
xii.
10 August 2015: The SABBS submits the amended constitution containing
breed
standards to the Registrar;
xiii.
11 September 2015: The Registrar addresses a letter to the SABBS
informing it that
he could not approve the amended constitution. The
Registrar also decides not to authorise any export permit for black
Boerboels
in terms of the AIA;
xiv.
9 November 2015: The SABBS launches an appeal against the Registrar's
decision dated
11 September 2015;
xv.
29 June 2017: The Appeal Board overturned the Registrar's decision to
refuse
an amendment to the constitution of the SABBS;
xvi.
29 June 2018: The present review application is issued.
The decisions
[3] Ponnan
JA acknowledged in
Altech Radio Holdings (Pty) Ltd and Others v
City of
Tshwane Metropolitan Municipality
(1104/2019)
[2020] ZASCA 122
(5 October 2020) in para [1], that '[s]tate
self-review is a novel, but burgeoning species of judicial review
that has occupied
the attention of our courts in a number of recent
decisions.' In this application, the first applicant,
inter alia,
seeks that its own decision to approve the original constitution
of the SABBS and to register the SABBS as an animal breeders' society
in terms of the AIA be reviewed and set aside. It is established that
an organ of state seeking to review its own decision must
do so on
the principle of legality and cannot rely on PAJA –
Buffalo
City Metropolitan Municipality v Asla Construction (Pty) Ltd
2019
(4) SA 331
(CC) at 344B.
[4] The
novel context within which this review application is to be
considered
is not only that the decision to register the SABBS as an
animal breeders' society was taken as long ago as 10 April 2012, but
that this court issued a declarator on 2 September 2014 that the
SABBS is legally registered as an animal breeders' society in terms
of the AIA and that the Registrar, the current first applicant, had
to comply with the provisions of s 8(7)(c) of the AIA. The
judgment
of this court was not appealed, and the first applicant complied with
the order.
[5] The
applicants contend that the current ground for review proffered by
them was not heard or considered by the court in the 2014-review
application. The first applicant states that he was erroneously
under
the impression that the SABBS's application for registration met the
statutory criteria. He only recently realised that the
registration
application was fatally flawed in that the constitution that was
submitted did not contain the breeding standards
of the SABBS. This
lacuna
was thus not brought to the review court's attention.
The applicants argued that it was not an aspect that the 2014
review-court
had to decide on, and on this basis, the review can now
be considered.
[6]
I disagree. A court of law has declared that the SABBS is a legally
registered
animal breeders' association in terms of the AIA. The
declarator surpassed the first applicant's initial decision to
register the
SABBS and its subsequent decision to suspend the SABBS's
registration. Section 19(b) of the Superior Courts Act 10 0f 2013
prescribes
that the Supreme Court of Appeal or a Division exercising
appeal jurisdiction may, in addition to any power as may expressly be
provided for in any other law, receive further evidence. I accept
that it would have been difficult for a deponent who stated under
oath that he –
'received in his official capacity and
application "…
through Dr Pierre van Rooyen of the SA
Studbook, a registering authority registered in terms of the Act
…"
from the applicants for the registration of the 1st applicant "…
as a Breeder's Society", "accompanied by the relevant
documents in terms of the Act and regulations,"
to make an about-turn to state that
the constitution received in actual fact did not meet the
requirements of the AIA, and request
the appeal court to accept new
evidence. However, the first applicant eventually made its u-turn and
wants this court to review
and set aside the decision, which was
subsequently entrenched in a court order, almost ten years after the
decision was initially
taken. Webster J's declarator surpassed the
first applicant's decision, and a court order replaced the
administrative decision.
As far as the first decision is concerned,
there is no longer an administrative decision that can be reviewed,
only a court order
that had to be appealed. If the applicants took
issue with the declarator, they had to appeal the Webster J order and
apply to
adduce new evidence. This court cannot sit as a court of
appeal.
[7] However,
even if I am incorrect in the above approach, the Supreme Court of
Appeal
explained in
Gqwetha v Transkei Development Corporation Ltd
and Others
2006 (2) SA 603
(SCA) paras 22-23, that it is
essential for the efficient functioning of public bodies that a
challenge to the validity of their
decisions for judicial review
should be initiated without undue delay. Not only may the failure to
bring a review application within
a reasonable time cause prejudice
to those who rely on the decision, but there is a strong public
interest element in both certainty
and finality (
Altech
Radio
Holdings, supra,
para [16]). Although a legality review does not
have to be brought within a fixed period, it must be brought within a
reasonable
time. The Constitutional Court held in
Khumalo and
Another v Member of the Executive
Counsel
for
Education,
KwaZulu
Natal
2014 (5) SA 579
(CC) para [44], that a legality review must be
initiated without undue delay but that courts have the power to
either overlook
the delay or refuse a review application in the face
of an undue delay. In assessing undue delay in the context of a
legality review,
the court held that it must first factually be
determined whether the delay is unreasonable or undue, and secondly,
whether the
court's discretion should nevertheless be exercised to
overlook the delay. In
Valor IT v Premier, North West Province and
Others
[2020] 3 All SA 397
(SCA) para 30, the Supreme Court of
Appeal explained that –
'Whether, in the event of the delay
being found to be unreasonable, condonation should be granted
involves a 'factual, multi-factor
and context-sensitive' enquiry in
which a range of factors – the length of the delay, the reasons
for it, the prejudice to
the parties that it may cause, the fullness
of the explanation, the prospects of success on the merits –
are all considered
and weighed before a discretion is exercised one
way or the other.'
[8] As
for the reason for the undue delay in instituting these review
proceedings,
the first applicant explains that he was unhappy with
the decision of the Appeal Board, a decision taken on 29 June 2017,
and was
'later advised' that both his decision as the decision of the
Appeal Board fell 'foul of PAJA and the Constitution' and are liable
to be reviewed and set aside. The first applicant acknowledges that
the unreasonable delay in bringing the review application needs
to be
explained. He explains that there was a delay in referring the matter
to the State Law Adviser due to internal discussions
that ensued and
different opinions on the matter. The Appeal Board's decision was
referred to legal services early in July 2017
and subsequently
referred to the State Law Adviser for an opinion in September 2017. A
second opinion was obtained in December
2017, and counsel was briefed
in February 2018. Counsel's opinion was received on 14 March 2018.
This opinion introduced a new
dimension in that it concluded that the
first applicant's initial decision in April 2012 was materially
flawed and liable to be
reviewed and set aside. In considering this
explanation, I have to consider that the state's legal
representatives were already
privy to all the facts surrounding the
basis on which the first decision was taken, due to the review
application that was decided
by Webster J. No issue was taken with
the validity of the second respondent's constitution at that time.
[9] Section
9(a) of the AIA determines that an animal breeders' society is a
juristic
person from its registration date. The second respondent
informed the court that it has more than 800 members worldwide and
more
than 36 000 Boerboels listed on its database. It receives more
than 4000 Boerboel birth notifications annually, and during the
period 2016 to 2019, it concluded approximately 1,200 Boerboel
appraisals and registrations. It was argued that setting aside the
'SABBS' registration will have a material negative impact on the
business of the SABBS and its members. The consequences are too
ghastly to contemplate'. The applicants are aware of the impact that
the setting aside of the decision might have and proposed
that this
court devise an order that would ensure that all the decisions and
actions taken by the first respondent remain intact
and with legal
force, despite the first respondent being deregistered as an animal
breeder society.
[10] The
crux of the applicants' contentions is that the decision to register
the second
respondent was unlawful because, when the decision was
taken, the second respondent's constitution did not contain breed
standards
for the Boerboel. Section 11(i)(c)(ii) of the AIA
determines that:
'A group of persons may be registered
as an animal breeder's society if-
(a)
…
(b)
…
(c)
the constitution of such
group of persons specifically provides –
i. …
ii. for the
determination and the application of breed standards …"
[11] The
AIA itself sets the context within which this section is to be
interpreted. In section
1 of the AIA, the following definitions are
relevant:
'animal breeders' society"
means a group of persons promoting the breeding, the recording or
registration, the genetic improvement and the use of a kind of
animal
or an animal of a specified breed of such kind of animal, determining
and applying breed standards, recommending in its
sole discretion the
recording or registration of an animal or a specified breed of a kind
of animal bred in or imported into the
Republic, and who is
registered in terms of section 8 (7) (
a
) (i);
"breed
standards"
means a written set of phenotypic or genotypic
standards of excellence determined and applied in terms of the
constitution of an
animal breeders' society for a kind of animal.'
[12] The
constitution that accompanied the second respondent's application for
registration as
an animal breeding society contains the following
relevant clauses:
i.
Clause 9- Council … in particular shall have the power –
(o) To draw up and see the maintaining
of 'Minimum Breed Standards" and to lay down minimum
performance, reproduction, and
other standards
ii.
Bye-Laws – 1.1 Animals will only be taken up in the Stud Book
of the Society
after approval according to the "Minimum Breeding
Standards" as stipulated by Council from time to time; 10.2 No
animal,
which does not comply with the 'Minimum Breeding Standards"
as determined by Council, shall be eligible for registration;
[13] The
second respondent's constitution provided for the determination of
minimum breeding
standards. It empowered the council of the society,
duly elected in terms of the constitution, to draw up and lay down
the minimum
breeding standards. The constitution prescribed how
decisions were to be taken. It set the quorum of the council and
prescribed
voting procedures. The second respondent's constitution
sufficiently provided for the determination of breeding standards
when
their application for registration was accepted. The legislature
did not prescribe that the 'determined' breeding standards had
to be
incorporated in the constitution. The fact that the second respondent
subsequently amended its constitution to incorporate
the breeding
standards does not detract from the fact that the constitution
provided for determining and applying breeding standards
prior to it
being amended.
[14]
In light of the above, condonation for the undue delay in instituting
this review application
is refused.
[15] The
issue of the amended constitution underpins the second decision taken
on review. The
Appeal Board held, in favour of the second respondent,
that it was entitled to amend its constitution to incorporate
breeding standards
and that the first applicant erred in declining to
approve the amendment. The first applicant explains that the clause
that triggered
his decision not to approve the first respondent's
amended constitution was the clause recognising that black Boerboels
can be
registered. The Registrar declined to approve the attempted
amendments and reasoned that the amendment was null and void until
scientific proof was provided that the colour black is a variant in
the breed. However, the Appeal Board found that the determination
and
application of breeding standards are matters falling within an
animal society's jurisdiction and that the Registrar can only
decline
to accept the amendment when it contravenes any provision of the AIA.
The applicants did not indicate which provisions
of the AIA were
contravened, except for relying on their belated interpretation of
the AIA that rendered the second respondent's
2012 constitution
flawed. The applicants did not refer to any legislative provision
indicating that any entity other than the second
respondent is
empowered to determine breed standards, which breed standards include
the colour requirements of Boerboels.
[16] The
Appeal Board provided its fully reasoned ruling on 29 June 2017. It
is evident from
this written ruling that the Appeal Board considered
all the relevant facts and arguments and correctly interpreted and
applied
the relevant provisions of the AIA. The applicants do not
have any prospect of success on the merits of the review. In
addition,
no acceptable explanation is provided for the fact that the
review proceedings were then only launched in June 2018, with the
notice
of motion dated 29 June 2018. In the meantime, breeder members
of the second respondent suffer prejudice as they cannot export black
Boerboels. As a result, condonation is refused.
[17] As
far as an appropriate costs order is concerned, it is evident that
the applicants acted
after they obtained legal advice. I am of the
view that the facts do not necessitate any deviation from the
principle that costs
follow suit. Neither is a punitive costs order
appropriate.
ORDER
In
light of the above, the following order is granted:
1.
The application is dismissed with costs.
E van der Schyff
Judge of the High Court, Gauteng,
Pretoria
Delivered: This judgement was prepared
and authored by the Judge whose name is reflected and is handed down
electronically by circulation
to the Parties/their legal
representatives by email and by uploading it to the electronic file
of this matter on CaseLines. The
date for hand- down is deemed to be
26 March 2021.
Counsel for the
applicant:
GB Botha SC
Instructed
by: State
Attorney
Counsel for the
respondents:
DE Van Loggerenberg SC
Instructed
by: McIntyre
Van der Post Attorneys
Date of the
hearing: 22
February 2021
Date of
judgment: 26
March 2021