Smith v Minister of Environmental Affairs and Tourism: Republic of South africa and Another (5929/02) [2003] ZAWCHC 4; [2003] 1 All SA 628 (C) (11 February 2003)

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[2003] ZAWCHC 4
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Smith v Minister of Environmental Affairs and Tourism: Republic of South africa and Another (5929/02) [2003] ZAWCHC 4; [2003] 1 All SA 628 (C) (11 February 2003)

IN THE HIGH COURT OF
SOUTH AFRICA
(Cape
of Good Hope Provincial Division)
REPORTABLE
Case No. 5929/02
In
the matter between:
ISAK
SMITH
Applicant
and
THE
MINISTER OF ENVIRONMENTAL AFFAIRS
AND
TOURISM: REPUBLIC OF SOUTH AFRICA First Respondent
THE
CHIEF DIRECTOR:
MARINE
AND COASTAL MANAGEMENT Second Respondent
JUDGMENT: DELIVERED 11 FEBRUARY
2003
DAVIS
J:
Introduction.
Applicant
and 28 other subsistence fishermen from Lamberts Bay mandated one
Elgar Bonthuys to assist them in the preparation and submission
of
twenty nine applications for the right to undertake limited
commercial fishing in west coast rock lobster in Lamberts Bay.
In
Government Gazette No. 22517 of 27 July 2001 first respondent
published a General Notice headed ‘Invitation, to apply for rights
to undertake commercial fishing rights ….. in terms of (Government
Notice 1771 of 2001 (‘Government Notice’)).
Section 18
of the
Marine Living Resources Act 1998
….’
The following passage in the Government Notice
was of particular relevance: ‘All applicants are herewith informed
that any application
submitted without proof of proper and timeous
payment of the stipulated fee at the time of lodgment will not be
considered.’ The
Government Notice contained a further warning ‘No
applications received after 12h00, Friday, 13 September 2001 will be
accepted
or considered. It is the applicant’s responsibility to
ensure that the application reaches the Rights Verification
Unit/Department
by the closing date. Delays by the Post Office,
courier or other delivery services will not be considered a valid
reason for accepting
a late application’.
It was common cause that 13 September 2001 fell on
a Thursday and not a Friday. On 13 September 2001 (Thursday), having
paid the
R500,00 application fee as required in terms of the
Government Notice, Bonthuys and two of the 28 other subsistence
fishermen presented
themselves before 12h00 at the receiving centre
in Sea Point. A large queue had already formed and they were
therefore unable to
submit their application before 12h00 as required
in the Government Gazette. However, persons who were in the queue
prior to 12h00
were not considered to be late applicants and were
handed a ‘time cut-off disc’ which indicated that all such
persons were present
before the closing time for receipt of the
applications. Given the practicalities involved in the processing
of thousands of applications,
it was not possible to accept all
applications physically before 12h00.
In
his founding affidavit applicant states: ‘Bonthuys and two of the
Applicants…..were duly issued with discs…to indicate that
they
had arrived prior to noon in order to submit the applications.
However it was only some five hours later that they gained entrance
to the room where the applications were receipted. Upon their
entering the room where the applications were to be receipted, it
transpired that Bonthuys was only in possession of the original
application whereas the formalities stipulated that there had to
be
two copies of each application. The officials present, acting on
behalf of Second Respondent, refused to accept the applications
until
such time as copies had been obtained.’
It
appeared that Bonthuys was advised to return on the following day,
Friday 14
th
September 2001, with the necessary copies as well as a letter of
explanation as to why these copies had not accompanied the
application
form which should have been handed in on Thursday 13
September 2001. Bonthuys returned on Friday 14 September with the
application
form together with the copies which were required.
On
12 December 2001 applicant received a letter from first respondent in
which he was advised that his application had been rejected
on the
basis that it had been improperly lodged because it was received
late.
Applicant
appealed unsuccessfully, to first respondent who dismissed the appeal
on a basis which had been set out in a report prepared
by second
respondent thus: ‘[A]s the time limits (12h00 on 13 September
2001) is legislated and worded in a peremptory manner,
an
administrator (whether myself or the Minister) is prohibited from
deviating from the time limit, unless the Department was in
some way
culpable for the late lodgment. As such I was proscribed from
considering the appellant’s application which was lodged
late.
Having had regard to both the appellants appeal and the affidavits
and the supporting documentation provided by the Rights
of
Verification Unit and Mr Robertson, it is submitted that appellants
applications were not lodged timeously and properly.
Applicant
now seeks an order reviewing and setting aside the decision of first
respondent in terms whereof applicant’s appeal against
the decision
of second respondent was rejected and reviewing and setting aside the
decision of second respondent in terms whereof
applicants application
to undertake commercial fishing of west coast rock lobster was
rejected.
Applicant’s
Case.
Mr
Abel, who appeared together with Mr Stephens on behalf of applicant,
contended that the provision relating to the closing time
and date
for the submission of applications as contained in the Government
Notice was not peremptory. According to Mr Abel, the
intention of
the legislature was to bring into operation a new system of
allocation of fishing rights based
inter
alia
on transparency,
justice and sustainability of resources which took into account –
an
applicant’s previous involvement in industry,
the
transformation of South Africa from an unequal society into one
based
inter alia
on freedom, dignity and equality recognising the acute imbalances of
personal wealth and the need for transformation and empowerment
sustainability
of resources and the allocation of rights where the following
considerations would apply: ‘All South Africans and
those in
coastal communities especially, should as far as possible benefit
from the limited marine living resources along our shores
and in our
oceans’. (Policy guidelines attached to the Government Notice).
Mr
Abel therefore submitted that the new framework was intended to be
as inclusive as possible and hence constitute an instrument
to
empower those that were previously disadvantaged such as applicant
and the other 28 subsistence fishermen from Lamberts Bay.
It could
never have been the purpose of respondents that the Government
Notice, read as a whole, would exclude the very people
whom the new
framework was aimed to benefit, purely as a result of a non material,
non compliance with the requirements for an application.
Mr
Abel further referred to the ambiguity in the language employed in
the Government Notice. Certain provisions were clearly of a
peremptory nature while the wording was not to that effect insofar as
other provisions were concerned.
Thus the
following provision was peremptory: ‘All applicants are herewith
informed that any application submitted without proof
of proper and
timeous payment was stipulated free at the time of lodgment will not
be considered’. That this provision was peremptory
was supported
by the further requirement that application fees had to be paid into
the bank account of the Right of Verification
Unit and that a deposit
slip had to be attached to each application form and further that
this must occur before submission of applications.
The
same peremptory quality did not necessarily apply to those sections
of the Government Gazette which had been relied upon by respondents
in arriving at its decision with regard to applicant’s application.
In this connection Mr Abel made three points. He firstly
contended
that the phrase ‘no application received after 12h00 Friday 13
September 2001 will be accepted or considered’ was ambiguous
in
that it was common cause that Friday was in fact 14 September 2001.
Accordingly, he submitted that second respondent should have
accepted
the lodgment of all applications up to 12h00 on Friday 14 September
2001. Secondly, he submitted that a qualification to
this
requirement indicated that respondents were possessed of a
discretion. The Government Notice provided ‘No amendments,
alterations
or additions can be made to an application after the
closing date,
except where
such amendment, alteration or addition is in response to a specific
request from the Rights of Verification Unit or the
Department
(my emphasis). Mr Abel thus submitted that respondents had a
discretion to allow an applicant to add to an application by
supplementing
it with copies of the original application if they had
so requested additional copies.
Thirdly,
Mr Abel referred to an annexure to the Government Notice entitled
‘Important Information – You must read this carefully
before
filling in your application’. Clause 20 of this portion of the
document stated ‘If you fail to comply with the requirements
set
out in the Government Gazette Notice Policy Guidelines and
Application Form your Application may
not
be considered or, if
considered, refused’.(my emphasis). Mr Abel contended that this
provision was clearly discretionary as it
employed the verb ‘may’
and hence allowed for the discretion of respondent and functionaries.
For these reasons, he contended
that second respondent had
misinterpreted the law in concluding that he had no discretion to
condone the filing of a late application.
The
Pepper Bay Fishing Application.
After
the application had been heard, it transpired that a similar
application had been brought by Pepper Bay Fishing (Pty) Ltd against
the same respondents in case No. 6584/02. It was therefore decided
between the presiding judge in the Pepper Bay Fishing case,
Louw
J
and
myself
that further argument
should be heard to the extent that the two applications raised
similar legal points. Mr Farlam, who appeared
on behalf of Pepper
Bay Fishing (Pty) Ltd raised an additional point regarding the
peremptory nature of the power conferred on respondents.
He referred
to section 81(1) of the Marine Living Resources Act 18 of 1998
(‘MLRA’) which provides ‘If in the opinion of
the Minister
there are sound reasons for doing so, he or she may, substitute the
conditions that he or she may determine, in writing
exempt any
person or group of persons or organ of state from a provision of this
Act.
Thus,
if an applicant failed to pay an application fee properly determined
in terms of section 25 of MLRA at the time of the lodging
of an
application, the Minister may exempt the applicant from complying
with the terms of section 25. Furthermore, if an applicant
failed to
submit an application in the manner determined by the Minister in
terms of section 18(2) an exemption from the requirements
of that
section could be granted to the applicant.
Mr
Farlam therefore submitted that there was an overriding discretion
conferred on the Minister in terms of section 81 of the MLRA
which
was both necessary and desirable. Absent the respondent’s
discretion, particularly in cases where an irrelevant error had
been
committed when submitting an application, a grave injustice could be
caused to an unfortunate applicant. In this connection
Mr Farlam
referred to warnings issued by our courts against the imposition and
application of inflexible and over-rigid policies
see
Hamatha
and Another v Chairperson Peninsula and Technicon Internal
Disciplinary Committee and Others
2002(5)
SA 449(SCA) at para 9: Wade
Administrative
Law
(7
th
ed) at 361-362:
Chairman,
Board on Tariffs and Trade v Brenco Inc and Others
2001(4)
SA 501(SCA) at 520 H – 521 H.
Respondents’
Arguments.
Mr Rose Innes who appeared together with Ms Bawa
on behalf of respondents, emphasised the legislative basis upon which
the Government
Gazette had been published. Section 18(1) of the MLRA
provided that no person shall undertake commercial fishing unless the
right
to do so has been granted to such person by the Minister.
Second respondent was, in terms of section 79, delegated with the
Minister’s
powers under section 18 to grant fishing rights in the
west coast rock lobster sector.
Section
18(2) of the MLRA provided that an application for a fishing right
referred to in sub-section (1) shall be submitted to the
Minister in
the manner that the Minister may determine. The Minister was
therefore empowered to lay down a procedure to regulate
the
submission of applications, which he had done in the Government
Gazette. In so doing he was entitled to include peremptory
requirements
for the achievement of a successful application.
Mr
Rose Innes described the context in which the Government Gazette had
been published. It was anticipated that there would be thousands
of
applications across the twenty two sectors which would have to be
decided upon by first respondent or, as it transpired by either
second respondent or the Deputy Director General to whom first
respondent delegated his powers. The opening and closing dates in
each sector were the same, being 27 August 2001 and 13 September
2001. More than 5,000 applications were received across the various
sectors. Approximately 3,500 of these applications were submitted on
the last day. In the west coast rock lobster sector alone,
1,959
applications were received, of which 353 were for full commercial
rights and 1 606 were for limited commercial rights. Some
150 had
been improperly lodged, of which 130 applications were late.
According
to Mr Rose Innes, two essential issues arose for decision in the
application being, 1) was the application timeously lodged
and 2) if
not, was the closing date of 13 September a peremptory provision and
therefore did the second respondent have a discretion
to entertain a
late application.
Mr
Rose Innes submitted that there could be no dispute as to the
question of timeous lodgment. The application including the original
and two copies of the application form and the annexures were
submitted on Friday 14 September 2001. Although Mr Bonthuys had been
in the queue before 12h00 on Thursday 13 September 2001, he was not
in possession of the requisite copies. The closing date for
applications had clearly been stipulated as at 12h00 on 13 September
2001. The reference to Friday 13 September was manifestly an
error
but applicant had understood the closing date to be 12h00 on Thursday
13 September 2001. He had not been misled by the error
and he and
the other fishermen had instructed Mr Bonthuys to submit the
applications on Thursday 13 September 2001.
Mr
Rose Innes further referred to the requirements in the Government
Gazette that an applicant ‘must submit one original application
form and two copies’. In his view this was a peremptory provision,
the exact nature of which was conveyed by the word ‘must’.
Referring
to the second question, Mr Rose Innes submitted that the
determination of whether the relevant provisions of the Government
Gazette were peremptory in nature or conferred a discretion, turned
in the first instance on an interpretation of the language which
had
been employed. In the section headed ‘Submission of applications’
in the Government Gazette, a number of peremptory requirements
were
set out including:
Applications
will be submitted on the approved application form;
The
submission of one original application form and two copies of the
application form and all its annexures.
Applications
were not to be submitted by facsimile and the application would be
submitted by 12h00 on 13 September 2001.
With
regard to the latter requirement the words employed were ‘No
applications….will be accepted or considered’. In the view
of Mr
Rose Innes, this was a compelling indication that this provision was
couched in a peremptory form. This conclusion was reinforced
by the
express provision that delays by the Post Office, courier or other
delivery service will not be considered as valid reason
for accepting
a late application.
Turning
to the reliance placed by applicant on paragraph 20 of the document
headed ‘Important Information – You must read this
carefully
before filling in your application’ which followed upon the
invitation to apply for rights to undertake commercial fishing,
Mr
Rose Innes submitted that this document was aimed at the potential
applicant as opposed to the decision maker. It constituted
a guide to
the completion of the application form and hence could not be
elevated to a legal status beyond this purpose
To
the extent that any significance was to be attached to this document,
paragraph 12 was of particular importance in that it provided:
‘The
application form must reach one of the following addresses before the
stipulated closing date and time as set out in the Government
Gazette
Notice dated 27 July 2001’.
If paragraph 20 was construed to provide for a
general and wide discretion, it would mean that potentially no
provision in the Government
Gazette was peremptory. This construction
of the provision would have obliged respondent to exercise a
discretion in relation to
any aspect of non compliance. Respondents
would have had to consider, for example, whether to condone the
failure to complete an
application form, to attach the necessary
documents, to submit the requisite number of copies, to submit the
application timeously
or to the prescribed address. Taken to its
extreme, respondents would potentially have had to exercise a
discretion in relation
to the failure to submit any application form.
Viewed accordingly, paragraph 20 did no more than alert the
prospective applicant
to the fact that, should there be a failure to
comply with the requirements this may, depending on the particular
requirement, have
one of two consequences. If the requirement was
peremptory and in the nature of a formal jurisdictional requirement,
such as the
timeous submission of an application form, a failure to
comply therewith would result in the application not being
considered. If,
however, the requirement relating to the merits and
there was non compliance with policy guidelines, the application
would be considered
but, depending on the merits or lack thereof, it
may be refused.
Evaluation.
Section
33 of the Constitution of the Republic of South Africa Act 108 of
1996 (‘the final Constitution’) provides that everyone
has the
right to administrative action that is lawful, reasonable and
procedurally fair. In the evaluation of any administrative
decision,
the underlying principle of procedural fairness must be given effect.
However as
Zulman JA
noted in
Chairman, Board on
Tariffs and Trade v Brenco Inc
2001(4)
SA 511 (SCA) at para 14 ‘There is no single set of principles for
giving effect to the rules of natural justice which will
apply to all
investigations, enquiries and exercises of power, regardless of their
nature. On the contrary, courts have recognised
and restated the
need for flexibility in the application of the principles of fairness
in a range of different contexts’.
Zulman
JA
went on to cite a
dictum
of
Sachs
LJ in
Re
Pergamon
Press Ltd
[1970] 3 All ER
535
(CA) at 542 e …’In the application of the concept of fair
play, there must be real flexibility, so that very different
situations
may be met without producing procedures unsuitable to the
object in hand….
It
is only too easy to frame a precise set of rules which may appear
impecable on paper and which may yet unduly hamper, lengthen,
and
indeed, perhaps even frustrate…. the activities of those engaged in
investigating or otherwise dealing with matters that fall
within
their proper sphere. In each case careful regard must be had to the
scope of the proceeding, the source of its jurisdiction
(statutory in
the present case), the way in which it normally falls to be conducted
and its objective’.
In
a similar fashion
Craig
Administrative Law
(4
th
ed) at 516 states ‘A public body endowed with discretionary powers
is not entitled to adopt a policy or rule which allows it to
dispose
of a case without any consideration of the merits of the individual
applicant who is before it…..A general policy is allowed
provided
that due consideration of the merits of an individual case takes
place, and provided that the contents of the policy is
regarded as
intra vires’.
Manifestly,
these
dicta
must
be read within terms of the cautionary remark of
Chaskalson
CJ
in
Minister
of Public Works and Others v Kyalami Ridge Environmental Association
and Another
(
Mukhwevho
intervening
) 2001(3) SA
1151(CC) at 1184 E, ‘Ultimately procedural fairness depends in each
case upon the balancing of various relevant factors,
including the
nature of the decision, ‘rights’ affected by it, the
circumstances in which it is made, and the consequences resulting
from it’.
Absent
a consideration of the Government Notice and its contents as well as
the specific context in terms of which the Government
Notice was
published as sketched by Mr Rose Innes in argument, the idea that an
official should be entitled to reject an application
which was
properly completed and where payment was timeously lodged so that the
only difficulty with the entire application concerned
copies
delivered a day late offends an elementary application of the value
of justice. That value dictates that an application
generated by a
person whose very livelihood might depend upon the successful
outcome thereof is entitled to have his or her case
considered even
if the final decision might be adverse. It is this value which
informs the very principle of procedural fairness
enshrined in
section 33 of the Constitution.
The
question which arises is whether a combination of the objectives of
respondent in drafting the Government Notice and the provisions
thereof are sufficient to justify a different conclusion. The
objective of first respondent was to ensure that its officials were
able to process a vast number of applications expeditiously so as to
award rights to successful applicants. This is an understandable
objective in that respondents would wish to reduce the discretion of
its officials to a minimum so as to obviate a complex and time
consuming processes of reviews and further appeals.
Without
expressing any definitive view as to whether such an approach can be
challenged under our law, it is clear that where respondents
adopt
such an approach, the documentation drafted to inform affected
parties has to be unambiguous and clearly designed to ensure
that a
reasonable reader would know the consequences of any form of
non-compliance with the requirements for an application.
While
Mr Rose Innes may well be correct that the application form
information sheet (‘information sheet’) was aimed at the
potential
applicant and that it was intended to serve as a guide for
the completion of the application form rather than as a guide to the
decision
maker, an affected party was entitled to take full account
of that which was contained in the information sheet.
Paragraph
3 of the information sheet informed potential applicants that ‘The
application form is issued together with a copy of
the policy
guidelines. The guidelines inform you of the policy considerations
that the Minister, or his delegate, will take into
account in
considering the application. You are accordingly advised to read the
policy guidelines carefully and to ensure that your
application deals
fully with issues raised in the guidelines’.
Paragraph
20 of the information sheet informed an applicant thus: ‘If you
fail to comply with the requirements set out in the Government
Gazette Notice policy guidelines an application form your application
may
not be considered or, if
considered, refused. (my emphasis).
A
reasonable applicant examining this documentation would be entitled
to conclude that a failure to comply with any of the requirements
as
set out in the application form would not result in automatic
invalidity but rather that the application may be considered or
may
not be considered. If it was considered, presumably it could then be
accepted or refused.
Paragraph
3 of the information sheet therefore enjoined potential applicants to
read the policy guidelines carefully and to ensure
that the
application dealt fully with issues raised therein. Paragraph 20 of
the information sheet informed the prospective applicant
that there
was a discretion given to the decision maker as to whether to condone
a defective application. Significantly, there are
paragraphs in the
information sheet which clearly informed the reader that
non-compliance would be visited with a refusal to consider
the
application. For example, paragraph 2 provides that if an applicant
fails to comply with the requirements of submitting an application
form provided by the department your application will be rejected.
Paragraph 14 informed applicants that ‘you may not submit an
application by telefax. An application submitted by way of telefax
will not be considered.’
Viewed
accordingly, the reasonable reader would have concluded that, in
certain instances such as those specified in paragraph 2 and
14 of
the information sheet, no discretion was available to a decision
maker to condone a defective application. However in other
cases,
pursuant to the wording of paragraph 20, a discretion would be so
available.
Significantly,
the following passage appears in a report provided by second
respondent upon which first respondent based its decision
to reject
the appeal: ‘[I]t is submitted, that as the time limit is
legislated and worded in a peremptory manner, an administrator
(whether myself or the Minister) is prohibited from deviating from
the time limit, unless the Department was in some way culpable
for
the late lodgment. As such I was proscribed from considering the
appellant’s application which was lodged late.
An
examination of the Government Notice reveals no reference to the
caveat
that,
where the Department was in some way culpable for the late lodgment,
an application received after due date could still be accepted.

Manifestly, the absence of a discretion in such a case would offend
all sense of fairness. The Government Notice does however provide:
‘No amendments, alterations or additions can be made to an
application after the closing date, except where such amendment,
alteration
or addition is in response to a specific request from the
Rights of Verification Unit or the Department. Hence the evidence
placed
before the court did support, even on respondents version, the
presence of a discretion where the respondents were at fault, or
where
they decide to make a request to an applicant.
In
the present case the only irregularity with the completion of
applicant’s application form concerned the absence of copies in
the application form. The reason for this absence is set out in a
letter written by Mr Bonthuys to the Rights of Verification Board
on
17 September 2001 ‘When it came to handing in the applications, we
found to our dismay that the copies thereof were on their
way back to
Lamberts Bay as they had been inadvertently left in a colleague’s
boot of his car’.
The
ambiguities in the documentation generated by respondents designed to
inform prospective applicants of the correct procedures,
coupled with
a blanket refusal to even consider the applications of applicant and
the other 28 fishermen offends the very basis
of the value of
justice upon which the foundational principle of procedural fairness
is predicated.
In
an answering affidavit, on behalf of respondents Mr Kleinschmidt, the
Deputy Director General: Marine and Coastal Management Department
of
Environmental Affairs and Tourism is somewhat vague in his
description of respondents policy, particularly when he states 'It
was understood that the applications from applicants who arrived
after 12h00 would be receipted but this did not mean that they would
be accepted. It was repeatedly reiterated that there was no guarantee
that late application forms would be accepted, even though
it was
agreed that they would be receipted’
This
passage supports the conclusion that, while there was no guarantee
that a late application form would be accepted, neither was
there a
peremptory prohibition against a consideration thereof.
Conclusion.
Given the importance of procedural fairness as a
Constitutional value, a decision which refused to consider an
application where the
only defect was the omission of copies of the
application form, cannot be justified as complying with a
constitutionally mandated
standard of fairness. In all the
circumstances of this particular case, an inflexible policy offends
the principle of procedural
fairness. It is important to emphasize
that this finding does not imply that applicant is entitled to having
their applications accepted
by respondents. The practical
significance is that applicant is entitled to have his application
considered.
ORDER.
1. The
decision of first respondent of 14 June 2002, in terms whereof
applicants appeal against the decision of second respondent
was
rejected, is set aside.
The
decision of second respondent, in terms whereof applicant’s
application to undertake commercial fishing of west coast rock
lobster was rejected on 12 December 2001, is set aside.
The
application of applicant pursuant to the publication of General
Notice 1771 is remitted to first and second respondent for

reconsideration.
First
and second respondent, jointly and severally are ordered to pay the
costs of this application, including the costs of two
counsel and
the costs occasioned by the hearing on 11 December 2002.
______________
D
M DAVIS.