Duncan v Minister of Environmental Affairs and Tourism and Another (2/2009) [2009] ZASCA 168; [2010] 2 All SA 462 (SCA) ; 2010 (6) SA 374 (SCA) (1 December 2009)

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[2009] ZASCA 168
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Duncan v Minister of Environmental Affairs and Tourism and Another (2/2009) [2009] ZASCA 168; [2010] 2 All SA 462 (SCA) ; 2010 (6) SA 374 (SCA) (1 December 2009)

THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case number: 2/2009
In the matter between:
GLEN DUNCAN APPELLANT
and
THE MINISTER OF ENVIRONMENTAL
AFFAIRS AND TOURISM FIRST RESPONDENT
CHIEF DIRECTOR: RESEARCH
ANTARCTICA AND ISLANDS OF THE
DEPARTMENT OF ENVIRONMENTAL
AFFAIRS AND TOURISM SECOND RESPONDENT
Neutral citation:
Duncan v The
Minister of Environmental Affairs
and Tourism
(2/2009)
[2009]
ZASCA 168
(1 December 2009)
CORAM: Streicher, Brand, Mlambo, Malan JJA
et
Leach AJA
HEARD: 12 November 2009
DELIVERED: … 1 December 2009
SUMMARY
: Review – refusal
of fishing licence under s 18 of MLR Act 18 of 1998 –
appellant seeking to enforce substantive legitimate
expectation to
acquire licence – question whether competent in our law left open
because legitimacy of expectation held not to
be established on the
facts – further reliance on legitimate expectation to be heard
prior to refusal – also dismissed on the
facts.
_____________________________________
ORDER
_____________________________________
On appeal from
: Cape High
Court (Nagan AJ sitting as court of first instance).
The appeal is dismissed with costs, including the costs
occasioned by the employment of two counsel.
_____________________________________________________
JUDGMENT
______________________________________________
BRAND JA
(Streicher,
Mlambo, Malan JJA
et
Leach
AJA concurring):
[1] The appellant is a commercial fisherman. The first
respondent is the Minister of Environmental Affairs and Tourism. The
second
respondent is the Chief Director in the same State department
(‘the Department’) who is responsible, inter alia, for the marine

and coastal management branch of the Department. For the sake of
convenience I shall refer to the first respondent as the Minister,
to
the second respondent as the Chief Director and to both of them as
the respondents. On 4 November 2005 the appellant applied
for a
licence to undertake commercial fishing for traditional line fish in
terms of
s 18
of the
Marine Living Resources Act 18 of 1998
.
Acting under delegated authority of the Minister in terms of
s 79
,
the Chief Director refused his application. His appeal to the
Minister in terms of
s 80
was also unsuccessful. In the event
the appellant brought an application in the Cape High Court for these
two decisions to be reviewed
and set aside. In due course, the court
a quo (Nagan AJ) dismissed this application with costs. The appeal
against that judgment
is with the leave of Traverso AJP in the court
a quo.
[2] The licence that the appellant applied for was a
long term licence for the eight year period from 1 January 2006 to 31
December
2013. As appears from the reasons given by the Minister and
the Chief Director for their decisions, they refused the appellant’s

application on one single ground: to wit, that he had failed to
demonstrate access to a 'suitable line fish vessel'. At first sight

this reason comes across as rather curious because the appellant was
the owner/skipper of the MFV Endeavour which, from a commercial
point
of view, was by all accounts undoubtedly suitable for catching line
fish. But it is common cause that the requirement of
a 'suitable
vessel' is to be understood in the light of a document entitled 'The
Traditional Line Fish Policy' which was issued
by the Department and
published in the Government Gazette during June 2005 (the policy
document).
[3] The policy document contained a full exposition of
the departmental policies and objects in regard to the long term line
fishing
licences that were about to be issued at that time. It also
informed prospective applicants for these licences of the
requirements
with which they would have to comply. One of these
requirements was stated thus:
‘
All applicants need to
demonstrate access to a suitable line fish vessel. A suitable vessel
in the traditional line fishery is a
vessel that:
is either a ski-boat or
traditional wooden deck boat of approximately 10 metres or less
(this criterion should be flexibly applied
by the delegated
authority) that is currently operating in the fishery. The vessel
must be certified by SAMSA as being safe for
fishing; and
is geared for hand line
fishing.’
[4] The appellant’s vessel, the Endeavour, is not a
ski-boat or a traditional wooden deck boat, also known in the trade
as a 'chukkie'.
The Endeavour belongs to a class described as freezer
boats. Its specifications are substantially different from those of
ski-boats
and chukkies. These differences are vividly illustrated by
the following table originating from the respondents’ answering
papers:
DETAILS
ENDEAVOUR
TYPICAL SKI-BOATS
CHUKKIES
LENGTH
16,58m
5m-8,9m
6m-11m
GROSS TONNAGE
66,65
1,5-3
5-20
HOLD CAPACITY TONN
ES
± 30
1-3
3-5
CREW
25
5-11
5-16
[5] The appellant’s licence application indicates his
appreciation that the Endeavour did not comply with the description
of a
‘suitable vessel’ in the policy document. Hence he proceeded
to motivate why it should nonetheless be regarded as ‘suitable’

in the following way:
‘
I have been utilising this
vessel [the Endeavour] for the past eight years, initially to land
squid and later line fish . . .
In and during 2001, I submitted
an application for a right of access in terms of
s 18
of the
Marine Living Resources Act within
the traditional line fish sector.
On this application being successful I have been using this vessel to
target and harvest traditional
line fish.
The vessel has been certified to
carry 25 crewmen using the line fish method and have been doing so
since the allocation was made
. . ..
It is, however, noted with
concern that the suitability of the vessel is determined by its
length. The policy goes further and indicates
that the length should
not exceed 10 metres (which discretion should be flexibly applied).
The policy, however, does not clarify
or pronounce or offer any
further details regarding the flexibility of the discretion . .
..
It is however submitted that the
vessel, Endeavour, despite it being longer than the average vessel
within the traditional line
fish sector, is a suitable vessel for the
targeting and landing line fish especially if one considers the
economic sustainability
of the traditional line fish business. As
stated in previous annexures, the vessel is . . . [inter alia] fitted
with a blast and
holding freezer. This allows the rights holder to
operate for longer periods at a time, deliver product of prime
quality and negates
the fluctuating and varying factors which
perpetuate the line fish sector.’
[6] The appellant’s thesis that he should have been
granted a long term licence to continue his line fishing business by
means
of the Endeavour because he had been allowed to do so since
1995, was elaborated upon in his review application. Accordingly, the

appellant explained in his founding affidavit that he had been
involved in the fishing industry for most of his adult life. Since

1995, so he said, he had been actively involved in both the
traditional line fish sector and the squid sector as skipper and
later
the skipper/owner of the Endeavour. In 2001, however, he was
compelled to choose between line fish and squid as a result of a
notice
published by the then Minister in the Government Gazette under
s 16 of the Act. In terms of the notice the Minister declared

that an emergency had occurred in the line fishing sector, excluding
tuna and hake. In order to protect stocks of line fish species
from
being depleted and commercially oversubscribed, so the notice
proceeded, the following restrictions were imposed until further

notice:
‘
(1) The Total Applied Effort
(TAE) [as defined in the Act] in respect of line fish shall be
restricted to 450 vessels with a maximum
of 3450 crew;
(2) A right in the line fish
sector may not be granted to any person who holds a commercial
fishing right in respect of any sector
of the fishing industry.
(3) Hake and tuna will no longer
form part of line fish, but will from the coming into operation of
these restrictions, constitute
two separate sectors within the
fishing industry . . . ‘
[7] Because he was compelled to make an election in
terms of paragraph (2) of the notice, so the appellant said, he made
his calculations
and decided that line fish would be more profitable
than squid. When invitations for fishing licence applications were
invited
by the Department in 2001, he therefore applied for line fish
only and not for squid. The licence that he applied for was for a

medium term of four years between 2001 and 2005. The vessel he
nominated in his application was the Endeavour. On that occasion
his
application was successful. The reasons why other applications did
not succeed, were published at the time in a general statement
by the
Department. One of the reasons given was that these unsuccessful
applicants had failed to meet with an essential requirement
for a
licence which was formulated thus:
‘
Ownership of or access to an
appropriate vessel. An appropriate vessel is typically a small
vessel between approximately 5m and
10m in length with two outboard
motors, such a ski-boats. . . . '
[8] The conclusion he drew from all this, so the
appellant said, is that, despite the fact that in 2001 a suitable
vessel was also
described as one of less than 10 metres in length,
the Endeavour was then regarded as ‘suitable’ though it obviously
exceeded
that length. In 2005, so the appellant contended, nothing
material had changed. The TAE was still determined by the Minister at

450 vessels and 3450 crewmen and there was no apparent reason why the
Endeavour would suddenly become non-suitable for purposes
of a long
term licence. Moreover, the appellant continued, long term licences
were granted in 2005 for vessels which also exceeded
10 metres in
length. In this regard he referred, by way of example, to a vessel,
the Kowie, for which a licence was granted, despite
the fact that it
was 13,4 metres long. In this light, so the appellant's founding
affidavit concluded, the refusal of his application
on the sole basis
that his vessel was 3 metres longer is, for that reason alone,
manifestly unreasonable.
[9] In his answering affidavit, the Chief Director
explained that his decision not to accept the Endeavour as a suitable
vessel
must be understood against the precarious state of our line
fish stocks. More pertinently, he said, stock assessments performed

since the 1980s showed that most commercially exploited species of
line fish had been depleted to dangerously low levels. By December

2000 the situation had not improved. Consequently the then Minister
declared the environmental emergency in the fishery to which
the
appellant referred. Pursuant to the declared emergency, the Minister
determined, as we know, that the TAE in this fishery shall
be
restricted to 450 vessels with a maximum of 3450 crew. With regard to
vessels, it had been considered for some years that smaller
vessels
of less than 10 metres in length should be given preference in the
fishery. These smaller vessels are typically the ski-boats
and wooden
deck boats or chukkies. They are far less efficient than larger
freezer vessels such as the Endeavour. Consequently
they have a much
smaller impact on an already compromised resource. Large vessels are
less affected by adverse weather conditions.
They can stay at sea for
longer periods. While ski-boats and chukkies have to return at the
end of each day, the Endeavour, for
example, can stay out for two
weeks. The operational range of freezer boats is up to 2 000
kilometres while the maximum range
of traditional vessels is no more
than 80 kilometres.
[10] Further studies completed in 2003 showed, so the
Chief Director continued, that a substantial number of the species in
the
traditional line fish sector had collapsed. Others were in a
state of collapse but were fished in large quantities as this was
often the only way in which vessel operators could generate
sufficient income. In these circumstances the limit placed on the
type
of vessel in 2005 was designed to reduce the fishing pressure
applied by larger freezer vessels, capable of trips of long duration

and range, to stocks on the Agulhas offshore bank. The objective in
this regard was to allow the Agulhas offshore bank to act as
a refuge
for these resources to recover. As they recover they should start to
feed the inshore area which is the typical area fished
by ski-boats
and chukkies. The further problem with larger vessels such as the
Endeavour, so the Chief Director explained, is that
they have a
history of targeting over-fished species, such as carpenter, because
they are capable of reaching the distribution
range of these species.
[11] With regard to the Kowie, a vessel that the
appellant brought into comparison, it was pointed out by the Chief
Director that
the Kowie is a fairly large traditional wooden deck
boat which was built more than 40 years ago. Though it is 13,4 metres
in length
(versus the 16,58 metres of the Endeavour) it has a gross
tonnage of 17 (versus the 66,65 of the Endeavour) and a holding
capacity
of 4 tons (versus the 30 tons of the Endeavour) and a crew
of 16 (versus the Endeavour's 25). Based on information supplied by
the appellant and by the operators of the Kowie, so the Chief
Director pointed out, the superior efficiency of the Endeavour is

illustrated by the fact that it caught about twice as much fish in
kilogram per crewmember per day as the Kowie. It is an appreciation

of these issues, so the Chief Director concluded, that resulted in
the decision reflected in the policy document to restrict 'suitable

vessels' to ski boats and chukkies of approximately ten metres or
less.
[12] On 6 March 2006 the appellant was informed by the
Chief Director that his application for a long term licence had been
refused
because he did not 'demonstrate access to a suitable vessel'.
In his refusal letter, the Chief Director also referred to a document

entitled 'General reasons for decisions on the allocation of rights
and effort in the traditional line fish sector' which was published

at the same time. The appellant then launched his appeal to the
Minister in terms of s 80. In his letter of appeal, which
had
been prepared by his attorney and covered 25 pages, he sought to
persuade the Minister that the Chief Director had erred in
refusing
his application on the basis that the Endeavour was not a suitable
vessel. But, as we now know, the argument was unsuccessful
in that
the Minister confirmed both the Chief Director's decision and the
reasons that he gave. Relying on the decision of this
court in
Minister of Environmental Affairs and Tourism
v Scenematic Fourteen (Pty) Ltd
2005 (6) 182
(SCA) para 35, the respondents contended at the outset that it is
only the Minister's decision under s 80 that
is reviewable,
because it constituted a complete re-hearing and a fresh
determination of the appellant's application on the merits.
The
appellant, on the other hand, disputed that this was so. I find this
question unnecessary to decide for present purposes. For
the sake of
argument I will assume in the appellant's favour that the decision of
the Chief Director is reviewable as well.
[13] The starting point of the appellant’s argument as
to why he should have been granted a long term licence, was his claim
that
he had a legitimate expectation of being awarded such a licence
in respect of the Endeavour and that he was entitled to enforce
that
expectation. This argument immediately raised the question whether
the substantive protection or enforcement of a legitimate
expectation
is competent in our law. In its original role the doctrine of
legitimate expectation has been recognised as affording
no more than
the right to a fair hearing before an adverse decision is taken (see
eg
Administrator, Transvaal v Traub
[1989] ZASCA 90
;
1989
(4) SA 731
(A) at 758C-G). In English law, where the doctrine
originated, its operation has, however, in recent years been extended
so as
to afford a claim to compel substantive compliance with the
expectation (see eg
R v North and East Devon
Health Authority, Ex parte Coughlan
[2001] QB
213
(CA);
R (Bibi) v Newham London Borough
Council
[2001] EWCA Civ 607
;
[2002] 1 WLR 237
(CA);
R
(Abdi and Nadarajah) v Secretary of State for the Home Department
[2005] EWCA Civ 1363).
Other Commonwealth
jurisdictions, on the other hand, which also inherited the doctrine
of legitimate expectation from English Law,
have refused to follow
the English extension of substantive protection (see eg The High
Court of Australia in
Attorney-General for the
State of New South Wales v Quin
(1990) 170
CLR 1
and the Supreme Court of Canada in
Reference
Re Canada Assistance Plan
(BC)
[1991] 2 SCR
525
;
Mount Sinai Hospital Centre v Quebec
(Minister of Health and Social Services)
2001 SCC 41
;
[2001]
2 SCR 281).
Thus far our Constitutional Court has found it
unnecessary to decide whether or not we should follow the English
example (see eg
Premier, Mpumalanga v
Executive Committee, Association of State-Aided Schools, Eastern
Transvaal
1999 (2) SA 91
(CC) para 36;
Bel
Porto School Governing Body v Premier, Western Cape
[2002] ZACC 2
;
2002
(3) SA 265
(CC) para 96). And in
Meyer v Iscor
Pension Fund
2003 (2) SA 715
(SCA) paras 27
and 28, the question was pertinently left open by this court.
[14] Since
Meyer
,
the results of extensive academic research and analysis have been
published (see eg Cora Hoexter
Administrative
Law in South Africa
(2007)
382
et seq
;
John Campbell 'Legitimate expectations: The potential and limits of
substantive protection in South Africa
(2003) 120
SALJ
292
; Geo Quinot 'The developing doctrine of substantive protection of
legitimate expectations in South African administrative law' (2004)

19
SA Public Law
543).
These publications will undoubtedly be of valuable assistance when
eventually the time comes in an appropriate case, as it
presumably
will, for our courts to cut the Gordian knot. But this is not that
case. Even if substantive protection of legitimate
expectations were
to be recognised as part of our law, the appellant has in my view
failed to lay the foundation for his claim
of a legitimate
expectation to acquire a long term licence in respect of the
Endeavour.
[15] Reliance on the doctrine of legitimate expectation
for any purpose presupposes that the expectation qualifies as
legitimate.
The requirements for the legitimacy of such expectation
have been formulated thus:
(a) The representation inducing the expectation must be
clear, unambiguous and devoid of any relevant qualifications.
(b) The expectation must have been induced by the
decision maker.
(c) The expectation must be reasonable.
(d) The representation must be one which is competent
and lawful for the decision-maker to make.
(See eg
National Director of
Public Prosecutions v Phillips
2002 (4) SA 60
(W) para 28;
South African Veterinary Council
v Szymanski
2003 (4) SA 42
(SCA) para 19;
Woolf, J Jowell, A Le Sueur,
De Smith's
Judicial Review
6 ed (2006) paras 12-029
et
seq.
)
[16] The grounds on which the appellant relied for his
substantive legitimate expectation of being awarded a long term
licence in
respect of the Endeavour were summarised by his counsel as
follows:
He had been an active participant in the traditional
line fish sector since 1995 as skipper and later skipper/owner of
the vessel.
In 2001 he had to abandon a lucrative portion of his
livelihood in applying for a medium term licence in the line fish
sector
in order to stay within the policy guidelines as formulated
by the Department.
The Endeavour had throughout been registered with the
Department as a commercial fishing vessel and had been lodging catch
returns
with the Department in respect of her operation since 1995
and the appellant had complied with all obligations under the medium

term licence.
By granting a medium term licence the respondents had
blessed appellant’s vessel nomination in the past and implicitly
considered
it to be a suitable vessel.
The policy document indicated that the suitable vessel
requirement would be flexibly applied and a number of vessels the
length
of which exceeded 10 metres were awarded long term licences.
[17] As I see it, the appellant could not have expected
to acquire a long term licence without any reservation and whatever
the
circumstances. This is particularly so because he knew that the
concept of a medium term licence had been introduced as a precursor

to long term licences and to provide the Department with a window of
observation and research. Common sense therefore dictates
that even
in the appellant's own mind his subjective expectation must have been
subject to some reservations and conditions in
the light of what the
uncertain future might bring. But what would these conditions and
reservations entail? Would it be that fish
stocks remain the same; or
that the number of participants in the industry remains constant; and
so forth? The applicant does not
say. In consequence I do not believe
that the representations he relied upon met the first requirement of
certainty and unambiguity.
[18] As to the second of the stated requirements, it is
clear that most of the factors relied upon by the appellant cannot be
ascribed
to the Chief Director or the Department. If the appellant,
for example, believed that he would acquire a long term licence
because
he had been involved in the industry since 1995 or because he
had complied with the terms of his medium term licence, that is not

something that he had been told by the Department. Any expectation
based on these factors could therefore only be inspired by the

appellant's own beliefs. The same goes for his decision in 2001 to
opt for line fish and not to apply for squid. The appellant
did not
allege that there was any intimation by the Department that if he
gave up squid he could expect to acquire a right to catch
line fish.
Giving up squid was a precondition for his application in 2001, not a
guarantee that the application would be granted.
Hence the appellant
gave up squid at his own risk and because he thought that line fish
would be more profitable. As I see it,
only two of the factors relied
upon by the appellant could possibly be laid at the door of the Chief
Director or the Department.
These are (a) the fact that the appellant
had been granted a medium term licence for the same vessel and, (b)
the statement in
the policy document that the suitable vessel
requirement would be flexibly applied.
[19] As to the first of these two factors, it would not,
in my view, be reasonable for the appellant to expect to acquire a
long
term licence simply because he was granted a medium term fishing
right. He knew that his medium term licence was granted for a
specific period only, from 1 January 2002 until 31 December 2005. Any
expectation to the contrary would be in conflict with s 18(6)

which, inter alia, provides that:
'All rights granted in terms of
this section shall be valid for the period determined by the Minister
. . . whereafter it shall
automatically terminate and revert back to
the State to be reallocated in terms of the provisions of this Act .
. ..'
[20] As I see it, the same can be said for the other
factor possibly attributable to the Chief Director or the Department,
ie the
statement in the policy document that the suitable vessel
requirement would be flexibly applied. But again, any expectation
based
on that factor would simply not be reasonable. An application
of the requirement flexible enough to allow the Endeavour which did

not qualify at all, would in effect render the requirements of a
suitable vessel nugatory. In the end I do not believe that any
of the
factors relied upon by the appellant – whether attributable to the
decision-maker or not – would, either singularly
or collectively,
provide a sufficient basis for characterising his alleged expectation
as reasonable. They would all raise the
rhetorical question as to why
it would be reasonable for a person who realised that he did not meet
one of the essential requirements
for a licence to expect that he
would nonetheless acquire that licence because he had been involved
in the industry for ten years;
or because he had been lodging the
prescribed catch returns; or because of any of the other factors on
which the appellant purported
to rely. For these reasons I conclude
that the appellant failed to establish the legitimacy of his alleged
expectation to acquire
a long term licence.
[21] That, however, is not the end of the matter. On the
appellant's papers and even in the written heads of argument filed on
his
behalf in this court, his case turned on the substantive
protection of his alleged legitimate expectation to acquire a long
term
licence in respect of the Endeavour. But in oral argument there
was an unmistakable shift in focus. What his counsel then contended

for relied on the conventional, procedural role of the legitimate
expectation doctrine as formulated, eg in
Traub
(at 758E-G), to the effect that the person concerned may have a
legitimate expectation to be heard before an adverse decision is

taken. Departing from this premise appellant's counsel submitted that
on the face of it the requirements for a suitable vessel
imposed in
2005 were substantially the same as those pertaining to a medium term
licence in 2001. Since the Endeavour had been
regarded as suitable in
2001, so the argument went, the appellant had a legitimate
expectation in 2005 to be given fair warning
in advance that the
goalposts had shifted; that the Endeavour may no longer be regarded
as suitable; and to be given the opportunity
of persuading the Chief
Director that, although the Endeavour does not strictly comply with
the requirements stated in the policy
document, it should nonetheless
be approved as a suitable vessel.
[22] As I see it, this argument rests on substantially
firmer ground than the appellant's attempt at enforcement of a
substantive
legitimate expectation. Yet, for the reasons that follow,
I do not believe it can succeed. The policy document contained
sufficient
detail to explain what type of vessel would be suitable.
The appellant plainly understood that the Endeavour did not satisfy
these
criteria. He thus made specific separate representations in
that regard. These representations have been fully set out earlier in

this judgment (para [5] above). As appears from the quotation, the
appellant inter alia reminded the Chief Director that the Endeavour

had been utilised in the industry for eight years and that it had
been granted a medium term licence in 2001. He then set out to

motivate why, despite its excessive length, the Endeavour should be
approved. In his answering affidavit the respondents said –
and it
is not disputed – that the appellant's motivation had been
considered and that he was given a further opportunity to deal
with
the issue on appeal. In this light, I believe that any legitimate
expectation of an opportunity to persuade the respondents
that the
Endeavour was a suitable vessel, had been satisfied.
[23] When met with these obstacles during argument,
counsel for the appellant introduced a further change of tack. What
he then
contended for was in essence that the appellant could
legitimately expect to be granted an opportunity to persuade the
Chief Director
that the requirements for a suitable vessel, as set
out in the policy document, were not only unreasonable but in fact
misconceived.
Had the appellant been given this opportunity, so the
argument went, he could explain to the Chief Director that it was
wrong to
think that freezer boats like the Endeavour would impose
undue pressure on threatened species and that, in any event, there
were
other, more effective ways of protecting these species than by
excluding freezer boats from the sector completely. To my way of

thinking, a proper analysis of this argument shows that it
effectively relies on a legitimate expectation to be consulted about

the contents of the policy document. Thus understood, the argument
founders on the undisputed fact that the content of the policy

document was formulated after extensive consultations with a wide
variety of interested parties. This appears, inter alia, from
the
following statement by the Chief Director:
'The draft traditional line fish
policy was published in isiXhosa, Afrikaans, isiZulu and English in
the Government Gazette and
on the Department's website and copies
were distributed along the coastline. For purposes of public
consultation, the notice and
comment process set out in the
Promotion
of Administrative Justice Act 3 of 2000
and its regulations were
adopted. As part of the notice and comment process, a series of
public meetings were held in order to
assist interested and affected
parties who cannot read or write or who otherwise needed special
assistance. In April 2005 consultations
with communities took place
in 15 venues along the coast regarding the draft traditional line
fish policy. At each consultation,
every comment was recorded and
documented . . . At the end of the consultation process, more than
1700 fishers between Port Nolloth
and Durban had been heard orally.
Apart from the hundreds of oral comments which were recorded, the
Department also received more
than 330 written comments on the
policy. Significant changes were made to the policy after the
comments were considered. In May
2005, Cabinet approved the 19
"
sector specific
policies
" and
the "
General
policy
".
[24] Finally it was contended on the appellant's behalf
that the decisions by the respondents were reviewable under
s 6(2)
of the
Promotion of Administrative Justice Act 3 of 2000
. In support
of this contention the appellant sought to rely on a contravention by
the respondents of virtually every sub-section
of
s 6(2).
Hence
it was submitted, by way of illustration, that the respondents'
decisions were taken for an ulterior purpose or because of
the
unauthorised or unwarranted dictates of another person
(s 6(2)(e)(ii)
and (iv)); that the decisions were not rationally connected to the
purpose for which they were taken or to the information before
the
respondents or to the reasons given by them
(s 6(2)(f)(ii))
; and
that the decisions were so unreasonable that they could not have been
taken by a reasonable person
(s 6(2)(h)).
I do not think it is
necessary to record and discuss the content of these submissions in
any detail. Suffice it to say, in my view,
that in the light of the
background facts and the reasons given by the respondents for their
decisions, I find the appellant's
contentions based on
s 6(2)
of
PAJA without any merit at all. This inevitably leads me to the order
I propose.
[25] The appeal is dismissed with costs, including the
costs occasioned by the employment of two counsel.
..……………..
F D J BRAND
JUDGE OF APPEAL
Counsel for the Appellants: S F Burger SC
M Steenkamp
Instructed by: Dawson Edwards & Associates
Cape Town
Correspondents: McIntyre & Van der Post
Bloemfontein
Counsel for the Respondents: W R E Duminy SC
E A De Villiers-Jansen
Instructed by: The State Attorney
Cape Town
Correspondents: The State Attorney
Bloemfontein