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[2016] ZAGPPHC 862
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South African Poultry Association v Minister of Agriculture (39597/2016) [2016] ZAGPPHC 862 (21 September 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
Number: 39597/2016
DATE:
21/9/2016
In
the matter between:
SOUTH
AFRICAN POULTRY
ASSOCIATION
…....
APPLICANT
And
THE
MINISTER OF AGRICULTURE,
FORESTRY
AND
FISHERIES
.................................................................
1
st
RESPONDENT
THE
RED MEAT INDUSTRY
FORUM
............................................................
1
st
INTERVENER
ASSOCIATION
OF MEAT IMPORTERS
AND
EXPORTERS
....................................................................................
2
nd
INTERVENER
MIKON
FARMING CC
….............................................................................
3
rd
INTERVENER
AD-LUCK
HOLDINGS
PROPRIETARY
LIMITED
….......................................................................
4
th
NTERVENER
SOUTH
AFRICAN
NATIONAL
CONSUMER UNION
…....
5
th
INTERVENER
JUDGMENT
Fabricius
J,
1.
In
terms of the Amended Notice of Motion, the Applicant seeks an order
reviewing and setting aside
Regulations
Regarding
Control over the Sale of Poultry Meat made by the Respondent in terms
of the
Agricultural Products Standards Act
119
of 1990
("the
Act)
as published under
Government Notice R471 in Government Gazette 39944 of 22 April 2016.
In the alternative, an order is sought reviewing
and setting aside
Regulation 5,
and the Annexure to the
Regulations.
Further, an after the grant of an order in the review
application. The intervening parties were granted leave to intervene
by an
order of this Court on 2 August 2016.
2.
The
parties hereto managed to produce some 4000 pages of affidavits with
annexures, including various reports, submissions, Minutes
of
meetings, electronic mails and reports emanating from various media.
All types of topics were dealt with, debated and discussed
in the
greatest possible detail over a period of at least five years.
In February
2011, the
Department
issued a
notice referring to the abuse by a certain producer by injecting
excessive quantities of brine into chicken, in
some
instances ranging from 30
to 60% in
individual quick frozen portions.
The
Department regarded this abuse as a threat to consumer safety and
stated that it had asked the Agricultural Research Council
("ARC")
to conduct a research on brine injection of chicken meat. Interim
results indicated an excessive moisture loss
during
could cause a risk to consumers. One envisaged solution would be
accurate
labelling of products.
3.
In
Applicant's Heads of Argument it was stated that at the heart of this
case lies the question of the maximum brining levels iimposed
in the
new
Regulations
in respect of chicken portions. Such
portions are brined as "Individually Quick Frozen". It was
said that in simplest
form, brine is a salt-water solution used to
preserve vegetables, fish, meat and poultry for long periods of time.
It can also
be mixed with other flavourings such as spices, to
enhance the taste, succulence and over-all appeal of the food
products. "Brine"
is defined in the
Regulations
with
reference to the Regulations on Labelling and Advertising of Food
Stuffs (R 146 of 1 March 2010
in GN 32975),
published
under the
Food Stuffs, Cosmetics and Disinfectants Act 54 of
1972
as "A solution of Sodium Chloride in water where
the solution is used for curing, flavouring, and/ or preserving the
food".
Brining can be done by soaking meat or poultry in a
brine solution, or by injecting. The poultry or meat with brine.There
is no dispute that the most common method amongst South African
producers of brining Individually Quick Frozen (IQF) chicken, is
by
injection. Until the promulgation of the new
Regulations
on
2 2 April 2016, there was no brining limit imposed in respect of the
individual chicken portions. These
Regulations
will
come into being on 2 2 October 2016, giving tile relevant producers
therefore a period of six months to adapt whatever processes
are
followed by then.
4.
It
was said that it was common cause that brining introduces a range of
benefits which include the following:
4.1
Brining restores and enhances the organoleptic characteristics of the
product, such as succulence, texture and tenderness;
4.2
Brining adds flavour and taste to the product;
4.3
Frozen chicken portions are juicier and more tender when injected
with brine, provided that the brine injection was done responsibly;
brined
chicken was not unhealthy.
It
was said on behalf of Applicant that SAPA has no difficulty, in
principle, with the regulation of brining and the imposition
of a
maximum brining limit for chicken portions. It contended however that
the Minister did not act lawfully when making the
Regulations
that impose a new brining limit of 15% . In the Founding
Affidavit under
"Grounds
of Review", the Applicant summarized the following grounds:
1.
The process which preceded promulgation of the new
Regulations
was procedurally unfair and flawed;
2.
The permissible brine limit as stipulated in the
Regulations
is arbitrary and/ or irrational and/or unreasonable, for the
following reasons:
2
.1 There was no scientific basis for the brine limits;
2.2
Alternatively, the scientific basis relied on for the
determination of the brining limits was fundamentally flawed;
2.3
There was no consideration of the economic impact of the
brining cap;
2.4
There was no consideration of the reports that were submitted
by SAPA;
2.5
The considerations that the Minister did have regard to, were
irrelevant;
2.6
The
Regulations
make arbitrary distinctions in
respect of different categories of poultry;
2.7
The Regulations are incapable of proper enforcement.
3.
The Minister failed to exercise an independent discretion and
acted under the unauthorized or unwarranted dictates of another
person.
5.
The
first and third grounds were not argued during the hearing, although
Mr G. Budlender SC on behalf of the Applicant said at the
end of the
hearing that these grounds were not abandoned.
6.
Having
regard to the contents of the affidavits and annexures, and all the
relevant or irrelevant topics that were debated in great
detail, any
Court would be delighted to hear that its duties were not concerned
what the relevant brining level should be, thawing
and cooking
processes, whether or not any particular process resulted in loss of
nutrients, and whether or not brining contributed
to the taste or
texture of an individual portion.
7.
In
the very detailed Heads of Argument filed by the Applicant only two
grounds were relied upon, namely the procedural challenge,
as it was
put, and on a substantive level whether the new
Regulations
are
rational and/or reasonable.
8.
It
was contended that the making of the new
Regulations
constituted administrative action and Applicant therefore
relied in the first instance on the
Promotion of Administrative
Justice Act 3 of 2000 (" PAJA"),
and in the
alternative it relied on the principle of legality. It must however
be remembered that
PAJA
must apply where it is
applicable, and general norms such as legality may only be resorted
to See:
Comair v Minister of Public Enterprises
2016 (1) SA 1
(GP) at par.
21.
9.
Where
administrative action that affects the public is relevant, the
provisions of Section 4 of
PAJA
must be followed. In
this particular instance, the Minister decided to follow the process
provided for by Section 4 ( 1) (b) , namely
a "notice and
comment procedure in terms of Sub-section ( 3 )".
According
to Sub-section ( 3 ), if a notice and comment procedure is followed,
the particular administrator must -
a)
Take appropriate steps to communicate the administrative action to
those likely to be materially and adversely affected by it
and called
for comments from them;
b)
Consider any comments received;
c)
Decide whether or not to take the administrative action, with or
without changes; and
d)
Comply with the procedures to be followed in connection with notice
and comment procedures prescribed.
1
0.
It
would at this stage be appropriate to describe Applicant's status
herein. In the
Founding
Affidavit it said that it was a voluntary Association representing
the interests of all sectors of the Poultry Industry
in South Africa.
One such sector is the broiler producers. SAPA' s membership has at
various times during the period preceding
the promulgation of the new
Regulations
represented between 50 % and 80% of broiler
production in South Africa, which are directly affected by the new
Regulations.
By broiler produce, they referred broadly
to the commercial production of chicken products available for
consumption. Within the
category of broiler production, there are
producers who focus on the fresh poultry market, the general frozen
poultry market and
the IQF market. The IQF producers, so it was said,
produce at least 63 % of all poultry products consumed in South
Africa. It was
their interests that were fundamentally threatened by
the new Regulations and these also had a serious adverse impact on
the price
of IQF chicken.
11.
It
is however clear that there were many other stakeholders in the
poultry industry that were involved in the relevant process.
On
7
August 2015, the Minister met with interested parties and the
Minutes of that meeting are annexed to the Answering Affidavit as
well as the attendance register. This indicated that there were 13
stakeholders in the poultry industry present. These included
representatives of Nando' s, the South African National Consumer
Union, the Heart and Stroke Foundation, the Red Meat Producers
Organisation, the AIME, the Association of Meat Importers and
Exporters, NRCS, Astral Foods, Rainbow Chicken and Department of
Health. I will deal with this Minute again hereunder, but I may just
add at this stage that Mr Lovell on behalf of SAPA, and also
the
deponent to the Applicant's Founding Affidavit, stated that Applicant
supported the Poultry
Regulations
and the regulation of the poultry industry. The Minutes also reflect
that SAPA was not opposed to the 15% brining limit,
but needed
clarification of how this level was determined. From Respondent’s
Answering Affidavit it appears, with reference
to these Minutes, that
from 13 stakeholders in the poultry industry who voiced or raised
issues in the meeting, only two were clearly
opposed to the brining
limit of 15% for chicken portions.
12.
On
behalf of the interveners, Mr Epstein SC submitted that there could
be no serious quarrel with the proposition that Government
was
entirely correct in deciding that appropriate levels of brining in
frozen chicken pieces had to be regulated. As I have said,
even
Applicant recognised this. Numerous other organizations and citizens
have also called for the regulation of this particular
industry,
mostly in the context of consumer protection.
13.
The
Department therefore embarked upon a process in terms of
PAJA
by calling for comments on a new proposed
Regulation.
The "Old" Regulations appear in Government Gazette
Notice R988 dated 25 July 1997 in Government Gazette 18155. On 10
March
2006, the Directorate: Food Safety And Quality Assurance
published a notice stating that the Office was in the process of
amending
the
Regulations
concerning control over the
sale of poultry meat as published by Government Notice No. R946 of 17
March 1992 as amended. It stated
that the Regulations needed to be
adjusted to be in line with the ever-changing needs of the industry.
The Office therefore required
the inputs of the Industry regarding
proposed standards for the injection of moisture in frozen products
and grading of portions.
It also stated that "Food Safety"
would also be addressed. On 21 April 2006 ,
Applicant
accepted the invitation to comment and said the following: "The
process of
enhancing
animal protein by injecting brine into meat has been standard
practice for
many
years throughout the world." ..."Today the majority of raw
frozen poultry products produced in South Africa are injected
with
brine. Most of the responsible bigger producers have ensured that the
process of brine injection is done in a controlled manner
that
enhances the natural flavour and texture of the
product."..."Unfortunately there are irresponsible
operators that
abuse the process of injecting poultry products solely
to maximize financial gain. Unofficial reports indicate that some
poultry
is extended by up to 40 % resulting in a poor quality product
with high thawing and cooking losses."..."lt is therefore
of utmost importance that some form of regulation and declaration be
formalised to prevent unfair competition and to protect consumers
from being exploited". It then made certain proposals which
clearly indicate that it was not against the process of brine
injection.
'1
4.
As
I have said, on 1 June 2012 the Department published its proposed
Regulations for comment. Even prior to that, on 2 6 .July 2011,
Applicant had written a letter to the Deputy Director-General of the
Department referring to a meeting that was held of the concept
that
the best way forward for the development of appropriate regulations
"which we desire", was for all regulatory bodies
to be
properly and factually informed of the processes used by the
Industry, both locally and elsewhere.
15.
The
chronology of events between 2 006 up to the publication of the new
Regulations
in 2016 indicated, on my count, that the
process followed by the Department involved the holding of 19
meetings with all possible
stakeholders and the writing and receiving
of 52 letters and emails. In this particular context, I have a
dictum
of Sachs J in mind in
Minister of Health and Another v New
Clicks South Africa (Ply) Ltd
2006
(2)
SA
311
(CC) at par. 630.
"The forms of facilitating an
appropriate degree of participating in law-making process are indeed
capable of infinite variation.
What matters is that at the end of the
day a reasonable opportunity is afforded to members of the public and
all interested parties
to know about the issues and to have an
adequate say".. Also, in
Ci
t
y
of Tshwane Metropolitan
in par. 6 7: "Public
participation should not be elevated to co-governance or equal
sharing of executive budgetary responsibilities".
The chronology
of events was also
part
of the interveners' Answering Affidavit, and its correctness was not
an issue herein. It presented in chronological order all
that had
occurred during a five year consultation period. Every possible item
was debated during this period and, again with reference
to the
New
Clicks
decision
supra
it must be remembered that what
is necessary is that the nature of the concerns of different sectors
of the public must be communicated
to the law-maker and taken into
account in formulating the regulations. Hearings before parliamentary
committees are also involved,
as well as
debates
in Parliament. The particular Minister does not have to read
thousands of pages received from the general public and respond
to
them.An analysis of any such responses must be left to officials
whose responsibility is to consider the comments received and
to
report to the Minister on them. No perfect process under Section 4 of
PAJA
is required, but only c:1 fair process. Not every
procedural flaw will invalidate the consultation process. It is clear
that the
Regulations
were also to the WTO of what the
Department intended to do, further consultations took place
thereafter. All relevant factors were
considered by the Department
who ultimately put a proposal before the Minister. A holistic view of
the five year consultation process
leads me to the conclusion that a
fair process was followed. It would be an impossible burden to simply
repeat the chronology of
events herein, and to comment thereon by way
of reference to each individual meeting, letter and email. I have
considered
the process as a whole and deem it to be fair. The following was said
in this context in the Heads of Argument on behalf
of the
interveners: "Ultimately, it is difficult to conceive of a more
thorough consultation process than the five years process
embarked
upon by DAFF in this case. The evidence suggests that SAPA viewed the
process as unfair because it was denied opportunities
to co-direct
the process. This is evidence by the fact that on numerous occasions
SAPA forgot that it is part of the "regulated"
and not a
part of the "regulator"...Yet, despite its position in
society qua citizen, it took it upon itself to bombard
the Government
with its own research and took it upon itself to suggest that to
draft a code of good practice and recommendations
...That the
Minister does not agree with SAPA does not render the process
unfair". I agree with those submissions, whilst
at the same time
lauding Mr Lovell's commitment, though it was unduly dogmatic.
One
such example of Applicant's approach is a letter written to the
Minister on 23 February 2016 ("KL71"). The letter
consists
of 15 pages and annexed to that are scientific reports of some 58
pages. The first such report concerned "THAWING
AND COOKING
LOSSES AND SENSORY EVALUATION OF THREE DIFFERENT TREATMENTS OF IQF
MIXED CHICKEN PORTIONS". Part 2 of this report
consisted of "SENSORY EVALUATION OF THREE
DIFFERENT TREATMENTS OF IQF MIXED CHICKEN PORTIONS".
A further annexure was the G:ENESIS report of 19 March 2014. This
report addresses the likely impact of brining regulations
on
domestic producers of individually Quick Frozen chicken portions. It
did not concern the interests of the consumers. No doubt
this is one
example of why Counsel for the intervening parties suggested that
the Minister must have been
overwhelmed
by SAPA' s productive efforts, whilst at the
same time forgetting that
the power
to draft regulations lies with the Minister
and not a voluntary association, however
well-meaning its efforts may
be.
16.
The
result of the above is that I find that there is no
merit in the submission that the
process
which preceded promulgation of the new Regulations
was procedurally
unfair
and flawed.
17.
Is
the permissible brine limit as stipulated in the regulations
arbitrary and/or
irrational
and/or
unreasonable?
I
have mentioned the individual points of criticism under this heading
in par. 4 above. At the outset I must immediately say that
it is not
for a Court to decide what the optimum brining percentage ought to
be, assuming that this percentage can be scientifically
determined.
Fortunately that is not my function. Were it otherwise, a the
addition to peri-peri and garlic would make a chicken
kebab more
tender or tasteful. It may well be that a different percentage to 15%
is more appropriate.
Having
regard to all the documentation, reports and analysis produced, the
level seems to range between 8 and 25 % . The fact that
the Minister
chose a15% cap on brining cannot make his decision either arbitrary,
irrational or unreasonable, unless a Court can
find that the decision
is not rationally related to a legitimate Government purpose.
18.
In
Pharmaceutical Manufacturers of SA in re: Ex Parte President of
the Republic of South Africa
[2000] ZACC 1
;
2000 (2) SA 674
(CC) at par. 90,
the
following was said: "The setting of this [rationality standard]
does not mean that the Courts can or should substitute
their opinions
as to what is appropriate for the opinions of those in whom the power
has been vested. As long as the purpose sought
to be achieved by the
exercise of public power is within the authority of the functionary,
and as long as the the decision simply
because it disagrees with it
or considers that the power was exercised inappropriately". In
similar vein, in
Minister of Health v Treatment
Action Campaign (No. 2)
[2002] ZACC 15
;
2002 (5) SA 721
(CC),
it
was said at par. 9 8: "This Court has made it clear on more than
one occasion that, although there are no bright lines that
separate
the rules of the legislature, the Executive and the Courts from one
another, there are certain matters that are pre-eminently
within the
domain of one or other arms of Government and not the others. All
arms of Government should be sensitive to and respect
the separation
..." Another illustrative decision is
South
African
Association of Personal Injury Lawyers
v Minister of Justice and Constitutional
Development
2013 (2)
SA 583
(GNP)
and
2014 (3) SA 134
(CC).
In this
case the Government had imposed a 25 % cap as a maximum contingency
fee that legal practitioners (Attorneys) were entitled
to receive in
litigation conducted on a contingency basis. The Association of
Personal Injury Lawyers had argued that a 25 % cap
was too low to
provide a sufficient incentive for practitioners to take on risky
cases on contingency basis. The Constitutional
Court held that it
needed onlypurpose of regulating contingency fees. The Court held
that the Act, which imposed a 2 5%
maximum, did
achieve this purpose and that it mattered not whether this was the
best cap that it could have imposed. It could
well have been that a
30 to 3 5% limit was preferable, but this did not matter. All that
was relevant was whether the particular
cap imposed by Government was
reasonably capable of achieving the legitimate purpose for which it
was created.
19.
With
the above in mind Counsel for the intervening parties argued that the
relevant dicta, applied to the facts of this case, meant
that it
matters not whether a 5% brining limit would be better than a 15%
limit, or that 15 % was even better than 8 % . The only
relevant
question was whether or not the cap ultimately imposed by the
Minister, namely 15% , was reasonably capable of achieving
DAFF's
stated purpose, namely to protect consumers. On behalf of Applicants
it was conceded by Mr Budlender SC that a Minister
would have had a
discretion to impose a particular limit argument, the
Regulations
and the 15 Jc'. limit was not aimed at deceptive practices of
producers, but rather at the quality of the particular products. He
suggested that the Minister ought to have said that there was no
scientific basis for a zero percentage, for argument's sake, and
should have accepted the 2 5 % proposal contained in certain
scientific reports presented to the Department. Great play was made
of the later comments of Prof. Hugo in this context who referred to a
brining percentage in the context of taste, and suggested
that more
research be done regarding the aspect of quality. The purpose of his
report was therefore not to suggest an optimal brine
limit. I must
immediately interpose to say that in my view there is no duty on the
Minister to impose an optimal brining level
(if such even exists). It
is abundantly clear that even well-qualified scientists differ on
that particular point, and practices
in foreign states also show a
great variation. His duties and powers are misconceived if it is
suggested that he could only impose
a 15% limit if the scientific
research indicated, almost beyond a reasonable doubt, that the 15%
was the optimal limit for the
protection of consumers. Mr
Budlender SC Department, the Minister was obliged to find
a capping range of
between 20 and 2 5%. I
do not agree with that approach at all. It is clear from the
Agricultural Products Standards Act 119 of 1990,
read
as a whole together with either the old or the new
Regulations,
that they are substantially made for the protection of the
consumer. Why else would there be repeated references to "quality
control", "false
or
misleading descriptions for products", and similar phrases in
the same vein? It is clear from the provisions of Section
15 of the
Act
that the Minister may make regulations which, in his
opinion, may be necessary or desirable in order to achieve or promote
objects
of this
Act.
20.
After
representations by the Industry were received, the relevant
percentage was increased from 8 % to 15% in the revised Draft
Regulations. This is clear from the Minutes of the meeting held on 23
October 2015 with Applicant and other stakeholders. Having
regard to
the duties of the Minister/Government in this 15% limit as a
compromise after having considered the views of at least
20
stakeholders. The Minutes of a meeting with the Minister of
7
August 2015 is particularly instructive in this context. I have
referred to these Minutes previously ("BMM15"). In the
preamble to the Minutes, it was stated on behalf of the Department
that the main purpose of the meeting called by the Minister
was to
provide the various stakeholders an opportunity to air their view on
the proposed amendment, with special emphasis on the
brining issue.
As I have said above, the Minute clearly indicates that Lovell on
behalf of Applicant stated that he supported the
Poultry Regulations
and the regulation of the Poultry Industry. He also stated that
Applicant needed clarity on how the 15% level
for portions came
about. He also mentioned that due to the high levels of illiteracy in
this country, accurate labelling of brine
injection on packaging
should be considered. On behalf of the National Consumer Union it was
said that no brine should be added
to chicken at all. The Heart and
Stroke Foundation in turn expressed concerns about the salt content
in brine with reference to
consumers' health issues. The Red Meat
Producers that this level should be standardised across all
regulations. The Association
of Meat Importers and Exporters wanted
to see lower levels of brine injection. The Legal
Metrology submission was that
brining levels should be kept as low
as possible, because consumers would otherwise be misled since
chicken was sold by mass.
Dr Louis Theron, a consultant for
Applicant stated that the exact levels of brine injection cannot be
scientifically determined.
The only way to resolve the brining issue
was for all parties involved to come to an agreement. Rainbow
Chicken, a major producer
in South Africa, supported the draft and
the capping of the brining levels. In the context of tenderness, it
was stated that 20%
was the optimum level.
21
.
The
response of the Minister was significant in the context of the
argument that he was obliged to take a decision only on the basis
of
conclusive scientific submissions made to him. He said the following:
•
"The Department will
ensure an environment where all different views are taken into
account;
•
The
Minister also emphasized the fact that there is no place for self-
speculation;
•
The issue of labelling
may not solve the problem with respect to sodium in that there is
also an illiteracy problem;
•
The public looks upon the
Ministry to take into account the issue of food security alongside
food safety;
•
The interests of the
consumers will be taken into account in finding a way forward;
•
The Minister stated that
a decision will not be taken on the spot since he has to engage the
Minister of Health, parliamentary processes
and also find a balance
between all the expressed views."
2
2.
The
submissions of the intervening parties on this topic were the
following:
2
2 .1 Government has been entrusted with the task of considering
whether a cap ought to be imposed on brining and, if so, what
an
appropriate cap ought to be;
22.2
Expertise of highly qualified functionaries was relied upon in order
to discharge this task;
22.3
They deemed a 15% cap on brining to be appropriate, because it could
adequately protect the rights of consumers whilst at the
same time
preserving the succulence and/or quality concerns raised by those who
believed that the individual quick freeze process
dries out the
chicken pieces;
22.4
SAPA was itself content as far back as 2 2 February 2011 with the
brining cap of 15%, meaning that it had no concerns over
succulence
and/or quality when chicken pieces were brined at that level;
22.5
The Minister, duly advised by DAFF and its qualified team, embarked
on a lengthy consultation process that extended over a
number of
years in order to receive and consider as many material views on the
matter as it reasonably could;
2
2.6 The competing views of interested and affected parties were all
considered, even though the ultimate decision made by the
Minister
may not have found favour with everybody
2
2.7 Just because an industry participant, like SAPA, does not like
the outcome of a decision to impose a cap at 15% , does not
mean that
the decision is reviewable.
2
3
I
agree with these submissions.They are based on accurate
dicta
of
the Constitutional Court decisions that I have referred to and the
interpretation of the
Agricultural Product Standards Act
and
its
Regulations.
The Department considered all relevant
views and research findings and arrived at a compromise percentage of
15% . It is my view,
as I have said, that it was not obliged to wait
until presented to it. The determination of such level is not an
exact science,
and neither the Act, nor the Regulations envisaged
thereunder require such an exact scientific conclusion. The Minister
was only
obliged to consider all views, including views and opinions
expressed by experts, and that he did. It is clear from all relevant
documentation that the 15% was a compromise determination and I
specifically hold that he was entitled to make such. The Minister
could obviously not say on his own
accord
whether a percentage of 10 or 15 % was the optimal percentage or any
higher or lesser percentage. He relied on all opposing
views and then
exercised his own well-informed discretion. On 22 February 2011, a
meeting was held with representatives of Applicant
and certain
producers of which meeting Mr Lovell from Applicant was the Chairman.
Under the heading of a paragraph titled "Flavour
Enhancement",
Mr Lovell said "15% is acceptable for the equivalence mark and
above that to be seen as extra". There
can be no doubt from a
proper interpretation of all the relevant Minutes of meetings, expert
reports and correspondence that both
flavour enhancement issues, and
consumer protection issues were discussed
24.
On
15 September 2015, the Minister approved the new
Regulations.
Apart from this not being the end of the consultation
process, inasmuch as further meetings were held with the Department
and the
Minister, Applicant also addressed another letter to the
Minister on 23 February 2016. I have referred to this letter together
with its extensive annexures in paragraph 15 above. The letter dealt
with the technical and economic effects of brining at a 30%
level. It
mentioned a discussion around the quality of the product at a 25 %
brining level, and refers to the proposition
that a 30 %
brining level does not lead to consumer deception. In its conclusion,
its suggestion was that "the
indisputable
consequence of a 15 % portion brining limit is an increase in the
price of production". In the context of consumer
deception, it
suggested a process of adequate labelling so that the
consumer would not know what he/she is
purchasing. On 4
April ;201 6 , the Minister then granted permission to proceed with
the immediate publication of the new
Regulations.
On 6
April 2016, the Minister wrote to Applicant, acknowledging certain
previous correspondence, and involving other equally important
stakeholders. As I have said, the new
Regulations
were
published on 2 2 April 2016.
25.
After
the publication of the
Regulations,
Prof A. Hugo from
the University of the Free State made the following comment on
certain statements made by the Applicant Association.
He said amongst
others that it was extremely important that brine injection levels
must be regulated. He did not think that it
was necessary to do
research to regulate brine injection. HE thought that it was possible
to make a realistic recommendation on
brine injection level based on
international good manufacturing practices and international
literature. He also mentioned that
there were some poultry companies
that were: in favour of accepting the 15 % maximum level proposed by
the Department. Another
significant comment is the following, which
obviously was made
ex post facto,
but at the same time it is
clear that it does relate to issues that were actually considered
before the
Regulations
were approved the quantity of
added brine in chicken is challenging and problematic. The essence of
the problem is that it is basically
impossible to differentiate
between the + / -
70
% water that occurs naturally in chicken
,and the water added in the form of brine. Weighing before and after
injection was the
only really accurate method to determine the added
brine level. The chicken industry must realise that it is just as
difficult
to regulate the 15 % brine injection level proposed by DAFF
as it is to regulate the 25 % brine injection level proposed by SAPA.
2
6.
Another
report was that of "Econex", dated 2 August 2016 . It
commented amongst others on the G:ENESIS report that I have
mentioned, which only deals with the interests of IQF producers. It
also deals with the costs aspect. The final and most important
conclusion, according to the author, was that "the price that
consumers will pay to receive the same nutritional value as
prior to
the regulations will not increase, while they will experience the
benefits of reduced sodium in their diet."
27
.
In
the light of the above references, which are not intended to be
all-embracing, I find the following:
2
7
.1 According to law, there needs to be no absolutely
correct scientific basis for the brine limits, and indeed it seems to
be common
cause upon a proper analysis that such cannot be
scientifically determined as if it were the speed of light;
2
7.
2 The scientific basis relied upon by the Department was
generally of such a nature as to have enabled the Department and
ultimately
the Minister to have determined a limit of brine on the
basis of compromise and reasonableness;
2
7.3 Although there was no formal "regulatory impact assessment
or economic study", that Applicant sought or demanded,the
economic impact of the brining cap was indeed considered by the
Department. Again, the Applicant has asked the wrong question in
this
context. It is extremely precision say what the likely impact of the
new
Regulations
on the
producing
stakeholders will be. This depends on a number of invariables and in
fact,a number of large producers of frozen chicken
pieces in
South Africa do not agree that the new
Regulations,
as
a matter of course, would make the purchase of chicken pieces less
affordable for consumers and more expensive for producers.
The
following is said in the Respondent's Answering Affidavit in this
context (par. 3 52 ):
"Although
it is admitted that DAFF had not conducted an economic study of the
impact of the brining percentage of 15% , DAFF
was presented with
arguments and presentations regarding the economic impact and,
furthermore as appears from pages 1507 and 1508
of the record, the
economic impact was taken into consideration by the Minister when
approving the Regulations". On the basis
of the so-called
Plascon-Evans test, I must accept this answer.
See:
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984
The
G:ENISIS report was not only sent to the Department, but also to the
Minister himself on 23 February 2016. The Minister in fact
acknowledged receipt thereof. One can therefore reasonably infer from
this as well, apart from the statement under oath, that economic
factors were considered.
2
7
.4 Upon a holistic reading of all the debates concerning all
the relevant issues, it is clear that the Minister did have regard to
the interests of the consumers. Whether one would label these
interests as "preventing deceptive practices" or not, is
not the issue. It is abundantly clear from all the submissions made
to the Departments that there were numerous objections to the
habit
of certain producers to inject excessive volumes of brine into
chicken portions. Tile alternative of accurate labelling was
also
considered in the greatest possible detail in this context, and it
was justifiably found that the largest number of consumers
of chicken
in South Africa were either not sufficiently literate to read and
interpret the scarcely concentrated on the price.
I therefore hold
that the new
Regulations
were issued in the interests
of the consumer to prevent excessive brining.
2
7.5 I also do not agree that the 2 5% limit is incapable of proper
enforcement.
As
Prof Hugo stated: the same level of enforcement for a 15% limit is
required as would be for a liimit of 2 5 % , or any other
percentage.
The
Agricultural Products Standard Act
deals with
topics of enforcement and it cannot be said that merely because a 15%
limit was now introduced by way of the Regulations,
that any existing
enforcement process has suddenly become ineffective or impossible.
28.
The
Amended Notice of Motion, as I have said, seeks the setting aside of
the
Regulations,
alternatively, setting asid13
Regulation 5
and the Annexure to the
Regulations.
I have already concluded that there is no basis for such,
especially not
in
respect of the first mentioned prayer. A further order is sought that
the
my order. The position at the moment is that the
Regulations
come into effect on 22 October 2016, and I
indicated to the parties in Court that I would deliver judgment
before that day. The
suspension of the coming-into-effect of the
Regulations was opposed by the intervening parties. Mr Budlender SC
submitted that
I could make this order in terms of the provisions of
Section 8 ( 1) (e) of
PAJA.
This section provides for
remedies in proceedings for judicial review, and states that a Court
could grant a temporary interdict
or other temporary relief. Mr
Budlender SC suggested that the latter part of this section granted
me a power of a
sui generis
nature. In the original Notice of
Motion an interdict was sought in this context.
Whether
or not this power is sui generis or not, I do not need to decide for
present purposes. The Applicant submitted that if the
review
application did not succeed, its members would need time so that they
could adjust their business practices and deal with
the sizeable
stocks of chicken that had been brined at level higher than those
permitted by the
Regulations.
They therefore needed a
"window period", and suggested an eight week period which
would suffice to design new packaging,standard
operating procedures
and training measures to bring their businesses in line with the
Regulations,
and reformulate their brine recipes. On
behalf of the intervening parties, it was submitted that SAPA did not
explain why its members
would only take these steps after my
judgment. It is clear that the Minister foresaw the need for an
"adjustment period"
and thus included into the
Regulations
the six months window period. It is also clear from the
affidavits that RCL, the second largest producer, indicated that they
would
be compliant as at 22 October 2016. Astral, the largest
producer, also said that it would be compliant and would adjust
their
business by 2 2 October 2016. These two producers have 6 8 % of the
market for brine IQF chicken according to the Intervener's
Answering
Affidavit. Furthermore, all producers should have taken all relevant
steps to adjust their businesses on the basis that
Regulations
are valid, binding and enforceable. In this context reference
was made to the decision in
Oudekraal Estates (Pty) Ltd v City
of Cape Town
2004 (6) SA 222
(SCA) at par. 26,
where it was
held that "the proper functioning of a modern state would be
considerably compromised if all administrative acts
could of the Act
in question". Mr Budlender SC suggested that the
Oudekraal
decision was distinguishabl on the basis that the producers
are acting lawfully at the moment. They were not ignoring the
Regulations.
In my view, that is not the relevant
consideration: they know that the
Regulations
will come
into effect on 22 October 2016, and had no way of knowing when I
would be able to give judgment in this application, having
regard to
the term roll, and other duties that I have to perform. In that
context however, I was asked to make an order as soon
as possible and
certainly well in advance of my judgment on the whole of the
application. I am
of
the view that I certainly do have a discretionary power in this
context taking into account the provisions of
PAJA
that
I have referred to. Whether or not I am dealing with an interdict, or
a power related thereto, is not the decisive question.
There is no
doubt that the
Regulations
are of a poly-centric
nature. I have previously held that it is usually not competent for a
Court to substitute its own opinion
for a policy decision lawfully
made by Government.
See:
Comair v Minister of Public Enterprises
2016 (1) SA 1
at 26
I
see no reason for deviating from that sound principle which was also
said to be the following, in
Minister of Home Affairs and
Others v Scallabrini Centre and
Others
2013 (6) SA 421
(SCA) par. 59
"It is not the province of
Courts when judging the administration, to make their own evaluation
of the public good, or to substitute
the personal assessment of the
social and economic advantage of a decision. We should not expect
Judges therefore to decide whether
the country should join a common
currency or to set a level of taxation. These are matters of policy
and the preserve of other
branches of Government and Courts are not
constitutionally competent to engage in them".
29.
The
Minister deemed it fit to grant a window period of some six months.
On the facts of this case I deem this to be a reasonable
period and
there is no reason to extend it, having regard to what other major
producers either have done or are able to do before
the relevant
date. The Applicant has certainly not made out a clear case in this
context and in the exercise of my discretion I
do not deem it proper
to suspend the
Regulations
for any period beyond 22
October 2016. I deem the
dictum
in National Treasury and
Others v Opposition to Urban Tolling alliance
2012 (6) SA
223
(CC) at par 63,
to be an appropriate consideration. The
Minister considered the implications of the
Regulations
and
provided for a six month window period. There is no good reason why a
Court should simply impose its own such period. This would
not be
constitutionally appropriate.
30.
Mr
Budlender SC did not argue in Court that the Minister failed to
exercise an
independent
discretion when approving the
Regulations,
and in any
event there is
no
basis for such.
31.
The
result of all of the above is that the following order is justifiable
upon the facts, having regard to the relevant legal principles:
31.1
The application is dismissed with costs including the costs of two
Counsel.
________________
JUDGE
H.J FABRICIUS
JUDGE
OF THE GAUTENG HIGH COURT, PRETORIA DIVISION
Case
number: 3 9 59 7 / 2016
Counsel
for the Applicant:
Counsel
for the 151 Respondent:
Counsel
for the lnterveners:
Adv
G. Budlender SC
Adv
K. Pillay
Adv
J. Bleazard
Instructed
by: Edward Nathan Sonnenbergs Inc
Adv
C. Puckrin SC
Adv
H. C. Janse van Rensburg
Instructed
by: The State Attorney
Adv
H. Epstein SC
Adv
K. Hopkins
Adv
T. Govender
Instructed
by: Fairbridges Wertheim Bekker
Date
of Hearing: 12
September 2016
Date
of Judgment: 21 September 2016
at 10:00