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[2016] ZAFSHC 195
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Agricultural Research Council v South African Stud Book and Animal Improvement Associations and Others (5265/2014) [2016] ZAFSHC 195; [2017] 1 All SA 850 (FB) (10 November 2016)
STATE
HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF
SOUTH AFRICA
Case
No.: 5265/2014
In
the matter between:
AGRICULTURAL
RESEARCH
COUNCIL
Plaintiff
and
SOUTH AFRICAN STUD
BOOK AND ANIMAL
IMPROVEMENT
ASSOCIATIONS
1
st
Defendant
PIERRE
VAN
ROOYEN
2
nd
Defendant
CHARL
UYS
3
rd
Defendant
ROBERT
ROLFE VAN DER WESTHUIZEN
4
th
Defendant
JACOB
VAN DER
WESTHUIZEN
5
th
Defendant
HELEN
ELIZABETH THERON
6
th
Defendant
FRITZ
VOORDEWIND
7
th
Defendant
BERNICE
MOSTERT
8
th
Defendant
NICO
DE JAGER
9
th
Defendant
CORAM:
HANCKE,
J
JUDGMENT:
HANCKE,
J
HEARD
ON:
17, 18
and 19 OCTOBER 2016
DELIVERED
ON:
10
NOVEMBER 2016
INTRODUCTION
[1]
The plaintiff instituted action against the defendants for certain
relief,
inter
alia
a declaratory order and interdictory relief, as well as payment of an
amount in access of R90 million.
[2]
The plaintiff’s cause of action is based on
inter
alia
unlawful conduct, transgressing of statutory enactments and
infringement of its copyright.
[3]
After the closing of pleadings, the following order was issued on 26
November 2015:
“
It
is ordered that: (by agreement)
1.
The
issues defined and delineated below shall be decided separately in
terms of Uniform rule 33(4):
1.1
Whether
or not the ARC is “The (only) organisation” contracted by
the department of agriculture (now Department of Agriculture,
Forestry and Fisheries) to operate INTERGIS;
1.2
Whether
or not the LOGIX System been operated by the first defendant fall
within the definition of INTERGIS set out in
section 1
of the
Animal
Improvement Act, No 62 of 1998
; and
1.3
Whether
or not Stud Book as a statutory appointed registering authority,
acting through one, more or all of the 2
nd
to 9
th
defendants:
1.3.1
Is
legally permitted to operate the LOGIX System;
1.3.2
Is
legally obliged to submit or record all pedigree and performance data
received and recorded by it on submitted to it as a registering
authority acting on behalf of breeders’ societies to the ARC –
INTEGIS; and
1.3.3
Is
trading in contravention of the statutory provisions in the manner as
pleaded in paragraphs 86 to 88 of the particulars of claim.”
[4]
At the commencement of the trial the plaintiff (“the ARC”)
and the first defendant (“Stud Book”) agreed
to a further
separation of the issues already separated in the following terms:
“
1.
Whether in the absence of “a manner approved by the registrar”
in terms of the Animal Improvement
Act (No 62 of 1998) (‘the Al
Act’) a breeders’ society/breeder (as defined in the Al
Act) is obliged to submit
pedigree and performance data of its
registered animals (as defined in the Al Act) to the INTERGIS (as
defined in the Al Act);
2.
By
agreement between the parties, if the obligation is confirmed:
a.
an
order to that effect will be made; and
b.
Stud
Book will pay the costs incurred in relation to the trial on
separated issues; and
3.
If
the obligation is not confirmed, the ARC will pay the costs incurred
in relation to the trial on separated issues.
4.
All
the issues are stayed pending the determination by this court of the
issue in paragraph 1.”
[5]
Mr Van Tonder, counsel for the plaintiff, submitted that the
formulation of the issue originates from the following provisions
of
the AI Act, having regard to the name and purpose of the AI Act,
namely ‘animal improvement (in a stated manner) …
in the
interest of the Republic’ and the participants under the AI Act
are ‘breeder[s]’; “animal breeders’
societ[ies]; and registering authorities.’
[6]
The present action thus involves the interpretation and the
application of the Al Act to the affairs of the first defendant
(Stud
Book), being a registering authority and a breeders’ society or
group of breeders’ societies as defined in the
AI Act.
The critical issues is thus whether Stud Book’s members are
expressly or by necessary implication obliged to
submit certain
information to a national data bank (named INTERGIS) relating to the
activities regulated under the AI Act.
[7]
To adjudicate this matter it is necessary to have regard to the
applicable statutory enactments and regulations, the wording
thereof,
as well as certain background circumstances which are undisputed.
[8]
The law regarding the interpretation of a contract is summarised in
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 593
(SCA), where Wallis JA is stated:
“
Over
the last century there have been significant developments in the law
relating to the interpretation of documents, both in this
country and
in others that follow similar rules to our own. It is
unnecessary to add unduly to the burden of annotations
by trawling
through the case law on the construction of documents in order to
trace those developments. The relevant authorities
are collected and
summarised in
Bastian
Financial Services (Pty) Ltd v General Hendrik Schoeman Primary
School
.
The present state of the law can be expressed as follows:
Interpretation is the process of attributing meaning to the words
used in a document, be it legislation, some other statutory
instrument, or contract, having regard to the context provided by
reading the particular provision or provisions in the light of the
document as a whole and the circumstances attendant upon its
coming
into existence. Whatever the nature of the document, consideration
must be given to the language used in the light of the
ordinary rules
of grammar and syntax; the context in which the provision appears;
the apparent purpose to which it is directed
and the material known
to those responsible for its production. Where more than one meaning
is possible each possibility must be
weighed in the light of all
these factors. The process is objective not subjective. A
sensible meaning is to be preferred
to one that leads to insensible
or unbusinesslike results or undermines the apparent purpose of the
document. Judges must be alert
to, and guard against, the temptation
to substitute what they regard as reasonable, sensible or
businesslike for the words actually
used.”
[9]
With reference to the earlier approach to the interpretation of
contracts by Joubert JA in
Coopers
& Lybrand and others v
Bryant
[1995] ZASCA 64
;
1995 (3) SA 761
(A) at 767 – 8, Wallis JA stated the following
in
Bothma-Batho
Transport (Edms) Bpk v S Bothma v Seun Transport (Edms) Bpk
2014 (2) SA 494
(SCA):
“
[12]
That summary is no longer consistent with the approach
to interpretation now adopted by South African courts in
relation to
contracts or other documents, such as statutory instruments or
patents. Whilst the starting point remains the
words of the
document, which are the only relevant medium through which the
parties have expressed their contractual intentions,
the
process of interpretation does not stop at a perceived literal
meaning of those words, but considers them in the light of all
relevant and admissible context, including the circumstances in which
the document came into being.
The former distinction between permissible background and surrounding
circumstances, never very clear, has fallen away. Interpretation
is
no longer a process that occurs in stages but is ‘essentially
one unitary exercise”
See
also:
Bertie
van Zyl v Minister for Safety and Security
2010 (2) SA 181
(CC) at para [22].
BACKGROUND
[10]
It is evident that the defendants recognised the fact that INTERGIS
functions as a national database and that INTERGIS performs
a crucial
important function as the only national recording system.
[11]
At a meeting on 3 November 1998, attended by representatives from
both parties, Dr van Rooyen (second defendant) confirmed
that no
system can be successful without full co-operation of all
participants. Dr van der Westhuizen (fourth defendant)
confirmed the importance that INTERGIS must be maintained in full
operation without any interruption.
[12]
In the Memorandum Agreement between the parties signed on 15 July
1999, the following was stated under the heading:
“
INTERGIS
2000 RELATED PRODUCT DEVELOPMENT:
19.1
It is the intention of the parties that all INTERGIS development and
marketing of new products
shall be a mutual effort to benefit the
Livestock Industry as well as other related industries. The
intellectual property
rights shall remain with the parties.
19.2
Neither one of the parties shall begin the development of any product
or other marketable
item related to INTERGIS 2000 without prior
consultation with the other party and only once the parties are
ad
idem
as to which party, or both, shall do the development and
marketing of the product, shall such development and marketing
proceed.
19.3
It is further the intention of the parties that there should be no
duplication of INTERGIS
2000 products or products to be developed, in
order to prevent any form of competition between the parties.”
[13]
On 25
th
January 1999 the registrar advised Dr van Rooyen that incompatible
systems cannot be allowed and that all participants need to
operate
the INTERGIS due to the fact that the AI Act affects all stock
owners. On 5 May 2005 Dr Van Rooyen confirmed the
outstanding
standard of the system to the exclusion of a foreign system. As
late as 10 February 2010 Stud Book still supported
the need for ‘an
integrated animal recording and improvement plan’.
[14]
In a letter addressed by Stud Book to the Minister of Agriculture,
dated 17 August 2010, Dr van Rooyen expressed some concern
(within
the Livestock Industry), about the deterioration and lack of service
delivery by the ARC. He also stated that the
schemes are
important to the whole livestock industry, and referred to it as ‘
the
world acknowledged National Small Stock Recording and Improvement
Scheme’.
[15]
In a letter dated 22 September 2010 Dr van Rooyen again expressed
concerns regarding serious capacity problems as well as the
deterioration of services. He also stated the following:
“
This
world class, custom made system is accredited by ICAR (International
Committee for Animal Recording). This means that
everything we
do adhere to international standards and is therefore internationally
acknowledged. The INTERGIS is funded
by the (Department of
Agricultural, Forestry and Fisheries (DAFF)), which currently
contracts the ARC to manage the INTERGIS and
the ARC in turn
subcontracted SA Stud Book to manage day to day operation of the
INTERGIS.”
[16]
In a further letter of Stud Book to DAFF, dated 28 February 2011, Dr
van Rooyen confirmed that the current schemes are excellent,
the
INTERGIS Animal Recording System is one of the best in the world and
that the AI Act regulates importations, exportations and
multiplication of genetic material in the country and intends to
ensure ‘effective animal improvement’ of all South
Africa’s livestock resources.
[17]
On 14 April 2011 the then President of Stud Book, Mr C H Nel,
addressed a letter to President Zuma, stating
inter
alia
the following:
“
In
order to identify the genetically superior producers, animal
recording and production measurements need to be performed.
Animal recording has two branches – one is the recording of
pedigrees (births and parentage) whilst the other, the recording
of
reduction measurements (growth rate, litres milk, etc.).
For many years the recording of these
vital measurements has been done by SA Stud Book (pedigree
recording), a private non-profit
organisation as a Registering
Authority under the Animal Improvement Act, 1998 (Act 62 of 1998)
representing the one branch of
the ARC (Production Measurement
Recording) representing the other branch.
The
information from both branches is integrated and processed on a
highly sophisticated, state of the art, Animal Recording computer
system, called INTERGIS.”
[18]
On 13 June 2011 Stud Book confirmed that it represents the life stock
industry and depicted an INTERGIS system as a ‘
highly
sophisticated, excellent and valuable system, that has been up and
running efficiently for more than a decade’.
Any
neglect of it will result in ‘
inevitable
disadvantages and adverse effects, not only to the livestock industry
as a whole and the individual breeders …’.
[19]
On 28 June 2011 Stud Book notified the presidents of breeders’
societies and breeders of its intention to privatise the
livestock
industry recording, operated until then by INTERGIS. In a
letter dated 1 July 2011 by the president of Stud Book
addressed to
Dr Moephuli of the ARC, Mr Nel stated that:
‘
It
should be remembered that there will be no data on the INTERGIS if it
is not submitted by us, the farmers.’
[20]
In the address from Stud Book officials to the Agricultural Portfolio
Committee, the following was
inter
alia
stated:
‘
Now
the INTERGIS is only a system. It is a very highly
sophisticated animal recording system, computer system. That
is
all the INTERGIS is. Its computer hardware and software.
And there the pedigree information and performance information
is
integrated. And from that, the product that you get from that
is the BLUP breeding estimated value which the farmers can
use for
all these schemes to identify the genetically high potential animals
and carry on with breeding. Now …
DAFF
contracted the ARC to manage the INTERGIS
.
That’s again the system. The
Animal Improvement Act, Act
62 of 1998 stipulates that DAFF can contract by choice who must
manage the INTERGIS as the national databasis. Because in
the
Act the INTERGIS is declared as the national database. The ARC
on their turn then subcontracted Stud Book to manage the
day to day
operations of the INTERGIS. For this Stud Book is paid at cost
and all the IT personnel and offices and adaptability
of office space
where the INTERGIS system is, is Stud Book in Stud Book’s
building and Stud Book’s personnel.
And the ARC
subcontracts us to manage the INTERGIS with our IT team.’
[21]
During December 2011 the Service Agreement was terminated, and since
1 December 2011 Stud Book stopped to render any services
to the ARC.
Around the same time the INTERGIS-system was relocated from Stud
Book’s premises in Bloemfontein to ARC’s
premises in
Irene.
[22]
Also of importance is the developments regarding STUD BOOK’S
CONSTITUTION. The 2009 constitution of Stud Book was
submitted
to the registrar for approval on 29 October 2009 and Stud Book was
advised on 6 November 2009 that the constitutional
amendments are
consistent with the AI Act.
Stud
Books 2009 constitution defines in paragraph 1.25 “INTERGIS
2000 as
‘
the
computerised integrated registration and genetic information system
capable of integrating pedigree and performance data of
animals which
is been jointly developed and managed by the Association (Stud Book)
and the Agricultural Research Council: Animal
Improvement Institute.’
Stud
Books 2009 constitution further states that:
‘
Subject
to the provisions of the Act and this Constitution, the objectives
and powers of the Association shall be:
1.
to
encourage and promote the breeding and genetic improvement of the
production potential of animals in South Africa;
2.
to,
jointly with the Agricultural Research Council, Animal Improvement
Institute, manage INTERGIS 2000.’
[23]
Thereafter there was an attempt on 19 October 2011 to amend Stud
Books constitution. A further attempt to amend its constitution
on 31 October 2013 was made and submitted same to the registrar for
approval. The proposed amendments sought deleted the
definition
of INTERGIS 2000 and to introduce a paragraph stating that: ‘
system’
means ‘the computerised LOGIX Animal Recording System used by
SA Stud Book for the recording and processing
of animal data as
supplied by the users of Stud Book’s Animal recording
services.’
[24]
What is of importance is that all the versions of Stud Book
constitution state that:
“
No
such addition to or amendment of the Constitution shall be of any
force or effect until the provisions of the Act, if any, have
been
adhered to.”
[25]
It is also significant to note that all the versions of the
constitution retain the provision that:
“
Subject
to the provisions of the Act in this Constitution, the objectives and
powers of the Association, shall be to encourage and
promote the
breeding and genetic improvement of the production potential of
animals in South Africa, i.e. to conduct animal improvement,
as
defined in the Act.”
[26]
The proposed October 2013 constitution was submitted to the registrar
on 13 January 2014 and on 6 May 2014 the registrar communicated
certain objections to Stud Book.
STATUTORY
LAW
[27]
It is important to have regard to the long title of the Act namely
“
To
provide for the breeding, identification and utilisation of
genetically superior animals in order to improve the production and
performance of animals in the interest of the Republic; and to
provide for matters connected therewith.”
Sheely
v Registrar and Taxing Master
1911
TPD 299.
[28]
The Al Act defines ‘
animal
improvement’
as:
“
The
scientifically based identification of genetically superior animals
by
means of the integrated registration and genetic information system
or in a manner approved by the registrar and the discerning use
thereof to improve the production or performance ability of the
animal population in the interest of the Republic.”
[29]
The ‘
integrated
registration and genetic information system’
means
‘
the
computer system which has been establish in co-operation with the
department to integrate the pedigrees and performance data
of
animals.’
In
the regulations under the AI Act, it is described as ‘
the
National Databank for animal recording and improvement’
.
It
is also important to note that in terms of section 11(1)(c) of the AI
Act animal breeder’s societies maybe registered only
if their
constitutions ‘
specifically
provides … for the continued commitment to animal
improvement.’
[30]
The stated object of the AI Act is to provide for breeding
identification and utilisation of genetically superior animals in
order to improve the production and performance of animals in the
interest of the Republic. (See long title of the AI Act)
[31]
The participants under the AI Act are ‘
breeders;
animal breeders; breeders’ societies; and registering
authorities.’
In
terms of section 11(1)(c) of the AI Act animal breeders societies may
be registered only if their constitutions provides ‘
for
the continued commitment to animal improvement.’
[32]
The statutory definition therefore identifies
“
a
system”
through
which the objective of the AI Act has to be achieved, in the absence
of an alternative
“
manner
to be approved by the registrar.”
The
function of the
“
system”
is
therefore to integrate
“
the
pedigrees and performance data of animals … in the interest of
the Republic.”
[33]
Stud Book is a registering authority and an animal breeders’
society or a group of animal breeders’ societies in
terms of
section 8(7)(a)(ii) of the AI Act. In terms of section 29(3)(d)
of the AI Act, Stud Book shall have the powers of
an animal’s
breeders society.
In
this regard it is important to have regard to section 8(8) of the AI
Act, which reads as follows:
“
The
registration of a person … or registering authority …
is subject to the provisions of this Act and the prescribed
conditions.”
[34]
Stud Book is thus subject to the same obligations pertaining to
animal improvement by means of INTERGIS, unless a different
manner
had been approved by the registrar.
THE
ARGUMENTS
[35]
Mr Van Tonder counsel for the plaintiff, submitted that the function
of the National Database (INTERGIS) dictates the obligatory
participation in INTERGIS, in view of section 11(2)(b)(iv), which
provides that the constitution of a registering authority must
provide that a breeder’s right to direct participation in
INTERGIS is acknowledged in the event of the animal breeder’s
societies failure to comply with its own constitution.
[36]
Counsel for the plaintiff, relying on the wording of section 15(3) of
the AI Act,
[1]
submitted that a
registering authority can only issue a certificate of
registration/recording of an animal, if it has registered
on behalf
of the breeder of the animal concerned a prefix (or suffix) to
indicate animals bred by him or her, with the ARC, being
the
organisation which is contracted by DAFF to operate INTERGIS.
The effect of section 15(3) is that to obtain a
valid
certificate of registration (and of – recording), it has to be
issued in accordance with subsection (3)(a).
[37]
As far as the establishment of schemes are concerned, the Minister
may in a notice in terms of section 20(3) of the Al Act:
“
(a)
designate the person who or the body which shall exercise the powers
and perform the duties conferred or imposed
in terms of the said
notice; and
(b)
authorise such person or body to make rules in consultation with the
organisation contracted by the
Department to operate the integrated
registration and genetic information system.” (INTERGIS)
[38]
The Schemes of the AI Act, the Regulations and the Animal Improvement
Schemes are such that it recognises only one National
Databank (i.e.
INTERGIS) which Databank integrates the pedigrees and performance
data of animals. Although compulsory language
is not used in so
far as participation in Schemes are concerned, the legislative scheme
as a whole is clearly aimed at regulating
and improving breeding
animals by, firstly, direct or indirect participation in a recording
system known and established as INTERGIS
and, secondly, participation
in the Animal Improvement Schemes which is aimed
inter
alia
,
at accurate performance data measurement and recording.
[39]
The submission that the obligation to submit data to INTERGIS exists
only in respect of the data that has been recorded in
terms of a
scheme therefore ignore the clear purpose of the AI Act, which is
aimed at animal improvement through the system described
as
INTERGIS. I agree with Mr Van Tonder’s submissions that
the context of the AI Act clearly indicates that animal
improvement
is to be achieved through the computer system described as INTERGIS,
which is defined in the AI Act and the schemes
to make it clear that
it is to function as an “integrated” system, consisting
of both pedigree and performance data.
[40]
It is the case of Stud Book that it effectively privatised the
schemes and now operates an independent and private scheme.
The
fact that Stud Book is deemed to be a registering authority in terms
of section 29(3)(a) of the AI Act, does not vest it with
the powers
to operate an independent performance recording and testing scheme.
[41]
In terms of section 29(3)(d) of the Al Act, Stud Book shall ‘
…
have the powers of
an animal breeders’ society specified in that section …’
with
reference to section 15 of the AI Act. The definition of
a
registering authority
is ‘
an
animal breeders society as a group of animal breeders’
societies which is registered as such in terms of section
8(7)(a)(ii)’
.
On that basis Stud Book itself remains subject to the obligation of
commitment to animal improvement.
[42]
The question is whether Stud Book is entitled to rely on regulation
8(1)(b)(viii), which provides that if an applicant for
registration
as a registering authority intends operating an independent
performance recording and testing scheme, the application
should be
accompanied by proof from an internationally recognised authority on
animal recording, that the
data
recording and processing system to be used complies with
internationally accepted norms and standards. In view of
regulation
5(1)(b)(v) such application would have been subject to
approval of the registrar. It is, however, common cause that
Stud
Book has never made such an application to the registrar.
[43]
As far as the National Databank is concerned, although the definition
of INTERGIS in section1 of the AI Act does not describe
it as a
national databank, the schemes adopted the phrase in its definition
of INTERGIS. Such a description appears to be
appropriate when
one has regard to the definition of INTERGIS.
[44]
In this regard the Stud Book’s official stance, recorded in an
extract of a minute of a meeting, is significant.
Under the
heading ‘’n NASIONALE DATABANK’, the following is
stated:
“
Na
‘n lewendige uitgebreide bespreking, is die volgende voorstel
eenparig aanvaar:
DAT
as deel van die SKIKKING, die telersgenootskappe die beginsel
ondersteun van ‘n sogenaamde NASIONALE DATABANK en onder
die
volgende voorwaardes deel wil wees daarvan …”
[45]
Mr Knoetze on behalf of Stud Book submitted that performance testing
is not compulsory and therefore the submission of performance
data is
equally not compulsory.
[46]
Mr Van Tonder, with reference to the definitions in section 1 of the
AI Act and the wording of section 11(1)(c)(iii), submitted
that the
statutory duty to submit available performance data (in addition to
pedigree data), is clearly established on a purposive
and contextual
interpretation. Without this conclusion the AI Act would serve
no purpose to require “continued commitment
to animal
improvement” and by stipulating expressly what the AI Act
regards to be the essence of “animal improvement”.
[47]
I agree with the plaintiff’s argument that a simple answer is
that in so far as performance testing is done, the data
has to be
submitted. A breeder is equally not obliged to breed, yet if it
does so, the available pedigree data has to be
submitted to
INTERGIS. If no breeding takes place no data has to be
submitted. If no performance testing takes place,
no data has
to be submitted.
[48]
Mr Knoetze also contents that LOGIX is INTERGIS. It is however
clear that only the ARC is entitled to operate INTERGIS,
and
consequently, all data should be handed over to and be submitted to
INTERGIS. He also submitted that the manner in which
he does
animal improvement by way of LOGIX, did not have to be expressly
approved by the registrar because Stud Book is a registering
authority. It is however clear that the mere fact that Stud
Book is a registering authority does not approve LOGIX as “a
manner approved by the registrar”.
[49]
It is important to note that section 12(3) of the AI Act does not
provide, as submitted, that the mere failure by the registrar
to
object thereto would be regarded as a deemed approval. It is
also important to note that the registrar expressly objected
to the
2013 attempt in circumstances where it appears that INTERGIS had been
substituted for LOGIX.
[50]
Mr Knoetze’s final argument was that INTERGIS is not a National
Databank. This argument does not take into account
the fact
that the regulation expressly depict INTERGIS as the National
Databank and that the definition is less important that
the stated
function and objective of INTERGIS. Furthermore the AI Act
requires that the pedigree and performance data should
be integrated
on INTERGIS in the interest of the Republic, which clearly supports
the definition. I do not agree with the
argument that there is
‘
no
reason why all data should be on a national databank (INTERGIS)’,
because
it directly contradicts the statutory scheme as mentioned above.
[51]
Stud Book also justifies the exclusion of INTERGIS on the basis of
healthy competition between Stud Book and ARC. It
is important
to note that the ARC’s objectives in terms of the Agricultural
Research Act 86 of 1990 and Duties imposed in
terms of the AI Act
regarding INTERGIS serve the national interest of the Republic,
whereas the objectives and duties of Stud Book
are exclusively
limited to those of its members. I agree with the plaintiff’s
submission that the exclusive access
to a limited database (LOGIX),
as supposed to non-exclusive access to the national (INTERGIS)
database, undermines the interest
of the Republic of having access to
comprehensive data of all breeders. Such access is essential to
DAFF and by extension
to the ARC, to formulate policy and conduct
research to the benefit of all breeders’ societies/breeders and
the entire agricultural
sector. Fragmentation, control of
exclusive access and selective upkeep of a data base to the exclusion
of INTERGIS undermines
this national asset. It is also clear
that breeders are not enhancing the object of the AI Act if they
refuse to submit their
data to INTERGIS.
CONCLUSION
[52]
The ARC is the organisation appointed by DAFF firstly to operate and
manage INTERGIS in terms of section 15(3) of the AI Act,
and secondly
to manage the Animal Improvement Schemes, established by the Minister
of DAFF acting under section 20(1) of the AI
Act. The said
schemes have been established for the evaluation and certification of
the performance of animals with the purpose
of improving the genetic
production potential of such animals. In terms of the
Animal Improvement Schemes, animal particulars
must be kept on
INTERGIS, which is described in the schemes as
“
the
National Databank for animal recording and improvement.
”
[53]
Pursuant to the appointment of the ARC as the sole manager of
INTERGIS, the ARC and Stud Book concluded a Service Agreement
on
INTERGIS operations in terms whereof Stud Book undertook,
inter
alia
,
to perform certain daily operations. The said agreement was
terminated on 10 October 2011.
[54]
As far as Stud Book is concerned, it is a registering authority in
terms of section 8(7)(a)(ii) of the AI Act, and has the
powers of an
Animal Breeders’ Society (sec 29(3)(d)). As such it is
subject to the provisions of the AI Act, and not
vested with powers
to operate an independent performance recording and testing scheme.
[55]
The object of the AI Act is to provide for breeding clarification and
utilisation of genetically superior animals in order
to
improve
the production and performance of animals.
[56]
The AI Act expressly contends that animal improvement has to take
place “by means of the integrated registration and
genetic
information system [INTERGIS] … which is a computer system
which has been established in co-operation with the Department
to
integrate the pedigrees and performance data of animals.
[57]
The ARC’s position as the appointed manager of INTERGIS is not
in dispute. Having regard to the context provided by reading
the
particular statutory provisions, and considering them in the light of
all the relevant circumstances there is no legal justification
for
Stud Book’s refusal to submit all pedigree and performance
data, received or captured by it on LOGIX, to INTERGIS.
[58]
It follows therefore that par 1 of the stated case must be decided in
favour of the plaintiff.
[59]
I regard it necessary to make certain remarks in conclusion.
The stated object of the AI Act is
inter
alia
‘
to
improve the production and performance of animals in the interest of
the Republic.’
Unless
the parties hereto settle their present disputes and animosity, they
undermine the core objective of the AI Act. The
present
position is untenable: On the one hand ARC is the sole manager
of INTERGIS, being the National Databank, while on
the other hand
many breeding associations (if not the majority) discontinued their
association with the ARC, where after their
members submitted their
animal data to Stud Book’s Logix.
It
is necessary for the parties to come together and negotiate a new
‘
Memorandum
of Agreement’
along
the lines of the previous agreement of 15 July 1999. There is
no doubt that the lack of cooperation between the parties
will not be
in the interest of the country.
ORDER
[60]
Accordingly the following order is made:
1.
Par
1 of the stated case is decided in favour of the plaintiff.
2.
Stud
Book is ordered to pay the costs incurred in relation to the trial on
the separated issues.
___________________
S.
P.
B. HANCKE, J
On
behalf of the plaintiff: Adv. Lucas J
van Tonder SC
Assisted
by Adv. A M Heystek
Instructed
by:
Phatshoane
Henney Inc
BLOEMFONTEIN
On
behalf of defendant: Adv. Barnard
Knoetze SC
Instructed
by:
McIntyre
& Van der Post
BLOEMFONTEIN
/eb
[1]
Section 15(3)
reads as follows:
“
(a)
A certificate referred to in subsection (2)(a) and (b) shall only be
issued if the registering authority concerned has
registered on
behalf of the breeder of the animal concerned a prefix or a suffix
to indicate animals bred by him or her with
the organisation which
is contracted by the Department to operat the integrated
registration information system,”