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[2016] ZAGPPHC 870
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Caine Brothers (Pty)Ltd v Minister of Agriculture,Forestry and Fisheries and Others (45861/2016) [2016] ZAGPPHC 870 (23 September 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION,
PRETORIA
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
Case
number: 45861/2013
DATE:
23/9/2016
In
the matter between:
CAINE
BROTHERS (PTY)
LTD
.........................................................................
APPLICANT
and
MINISTER
OF AGRICULTURE, FORESTRY
AND
FISHERIES
..............................................................................
FIRST
RESPONDENT
THE
TRUSTEES OF THE SURREY ROAD
PROPERTY
TRUST
Being
KANTHILALL PREMRAJH N.O.
And
SITA
PREMRAJH
N.O
.................................................................
SECOND
RESPONDENT
Heard:
23 September 2016
Delivered
3 March 2016
JUDGMENT
A.A.LOUW
J
Introduction
[1]
The application is a review of the decisions made by the first
respondent (and her delegate) to grant consent to divide immovable
property in terms of the sub-division of Agricultural Land Act, 70 of
1970.
[2]
The applicant trading as Triple A Beef is the owner of the largest
cattle farm and feedlot, as well as an abattoir in KwaZulu
Natal. It
is clear that the applicant wants to expand its agricultural
activities to the property owned by the Surrey Road Property
Trust,
represented by its two trustees herein as second respondent.
[3]
Since the second respondent acquired the property it continuously
sought the necessary permissions to enable it to use the property
for
business purposes. The exact nature thereof has changed during
extended hearings before the development tribunal for KwaZulu
Natal
which heard the case in terms of the
Development Facilitation Act, 67
of 1995
. These proceedings were also opposed by the present
applicant.
[4]
After the decision of the tribunal to approve a land development
application in terms of
section 25
of that act, the appellant had an
appeal to the development appeal tribunal for the province. It was
unsuccessful there as well
and in review applications to the KwaZulu
Natal Division of the High Court as well as the Supreme Court of
Appeal.
[5]
The SCA gave judgment on 30 May 2016 and except for varying costs
orders of the trial court, the appeal by the present applicant
was
dismissed. Thus, at present the consent granted to the trust to
utilise the property for commercial purposes stand. It is not
necessary for purposes of this application to define exactly the
scope and detail of the commercial enterprises. The other hurdle
the
second respondent had to clear was to obtain consent to the
sub-division of its agricultural land in terms of Act 70 of 1970
(the
Act). On 27 June 2011 a delegate of the first respondent signed a
decision confirming that the second respondent's application
had been
granted by consent number 46184. In terms of this consent the
property was divided into nine smallish portions which were
consistent with the second respondent's intended use as set out
above, leaving a remainder of 162,83ha. This was notwithstanding
the
applicant's opposition of the application.
[6]
The applicant appealed to the minister against the decision to grant
this consent. In a letter signed by Ms Tina Joemat-Pettersson
on 13
March 2013 the following is stated:
"I
have carefully assessed your appeal to withdraw the consent granted
by the committee responsible for the assessment ofapplications
lodged
in terms of sub-division of Agricultural Land Act, Act 70 of 1970 and
decided to not withdraw their decision." (sic)
The
letter then proceeds to furnish reasons set out in eight
sub-paragraphs.
The
record
[7]
In terms of uniform rule 53 (1)(b) the minister is obliged to furnish
a record of the proceedings. Astoundingly, she did so
on 16 September
2013 delivering a slim bundle of documents - a mere 21 pages.
[8]
The astonishment grows when it is noted that pages 7-15 of that
bundle relate to a sub-division decision in respect of a farm
in
Mpumpalanga and therefore has got nothing to do with this case at
all.
[9]
There is no chronology to this bundle. The first six pages are a
memorandum by applicant's attorneys forwarded to the Department
summarising the applicant's representations in objecting to the
sub-division. However the annexures referred to in this memorandum
are not to be found anywhere. It is further of importance to note
that there were two other objectors besides the applicant and
that
letters from them were also appended to the letter from the
attorney. These are not contained in the bundle.
[10]
The duty of an administrator in a review application in regard to the
furnishing of a record is trite. It has been stated that
every scrap
of paper relevant to the deliberation process must be furnished.
[11]
At a later stage a number of lever arch files divided into 22 volumes
(some 2100 pages) were delivered, I am not sure by whom.
These papers
are marked "supplementary record". The provenance of these
documents is not clear to me. There is no affidavit
by the minister
to deal with the defective first record and to place the further
documents furnished in proper context.
[12]
What is however clear to me is that the documents in these bundles,
on a scanning through thereof, are primarily the documents
that
served before the development tribunal. The cardinal problem that I
have is that a number of these documents in these 22 volumes
came
into being after the decision now under review was taken.
[13]
Counsel for the first respondent agreed with me that the failure to
provide a proper record makes it impossible for me to make
a finding
on the merits of the review. Counsel for the second respondent was
constrained to argue that, although some documents
came into being
later, I must have regard to documents which, to paraphrase him,
"must clearly have been considered by the
minister". I may
not embark on such a road. It will be guess-work for me, to in the
light of the above, take a definite stance
on what documents the
minister had considered or not, or perhaps more correctly stated,
which documents did in fact form part of
the record.
[14]
This conclusion leaves only the remedy to be granted to be decided
upon. The failure to provide a proper record,
so as to provide
an aggrieved
party
a remedy in
court,
breach constitutional rights including the s 33 and s 34
rights
[1]
.
[15]
As a fair review is now unattainable to the applicant, the only
solution is that the decision of the minister has to be set
aside. If
the second respondent still wishes to get sub-division in terms of
the Act, the only solution seems to be that a fresh
application be
delivered. Obviously all the parties as set out in the letter from
applicant's attorney dated 7 July 2010 have to
be given notice of
such an application.
Inspection
in loco
[16]
I proceed to remark in an obiter way about the fact that an
inspection in loco was held without the applicant having had any
notice of such an inspection. The applicant only became aware from
the answering affidavit of second respondent herein that an
inspection was held during which officials of the department were
present, together with representatives of the first respondent.
[17]
It is laudable to hold an inspection of agricultural land before such
a momentous decision as sub-division is taken, however
at such an
inspection all parties or none of the parties should be present. It
is unacceptable that the second respondent's
deponent
and other representatives of the trust were present as they could
have made statements at such an inspection which
may not have been
correct and in respect of which the applicant thus had no opportunity
to make corrections, should it have wished
to do so.
[18]
To hold an inspection without the presence of the applicant in this
case as well as the other objectors referred to in
the
attorneys letter of 7 July 2010, is a violation of the
audi
alteram partem
rule
Costs
[19]
I can see no reason for burdening the second respondent with a cost
order. The review cannot be properly decided on the record
and for
present that reason only the applicant is successful. Too hold the
second respondent liable for costs would be to hold
it responsible
for the gross ineffectiveness of the Department and the lack of
professionalism exhibited by the attorneys of the
first
respondent. Cost therefore has to be paid by the first
respondent.
[20]
As to the costs occasioned by the interlocutory application to the
evidence in the case between
Gonawakhe Informal Settlement
Residents Association and Others v Caine Brothers (Pty) Ltd
and Others
under case number: 5480/14 in the KwaZulu Natal
Division of the High Court of South Africa, I share this sentiments
of the Supreme
Court of Appeal.
[21]
I fail to see the relevance of these extra volumes
introduce in this review application. The second
respondent has
to pay the applicant's costs occasioned by the introduction of these
papers.
Order
[22]
The following order issues:
1.
The decision by the first respondent
dated 13 March 2013 is reviewed
and set aside.
2.
The first respondent is
ordered to pay the applicant's costs of
this application. These costs exclude the costs set out in the next
paragraph.
3.
The second respondent is
ordered to pay the applicant's costs in
regard to the interlocutory application for the introduction of the
evidence in the
Gonawakhe Informal Settlement Residents
Association
case number 5480/14 in the High Court of KwaZulu
Natal Division.
___________________
A
A. LOUW
[1]
Hoexster
Administrative Law
in South Africa
(2nd
edition) p 528