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[1988] ZASCA 115
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Harlington Investments (Pty) Ltd. v Director-General, National Health and Population Development and Another (316/87) [1988] ZASCA 115 (29 September 1988)
316/87 /mb
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE
DIVISION)
In the matter between:
HARLINGTON INVESTMENTS (PTY) LTD
APPELANTE
and
THE
DIRECTOR-GENERAL: NATIONAL HEALTH
AND POPULATION DEVELOPMENT
1ST
RESPONDENT
SAINT INTERNATIONAL CC
2ND RESPONDENT
CORAM
: CORBETT, VAN HEERDEN, SMALBERGER, KUMLEBEN
JJA et, NICHOLAS AJA
HEARD
: 13
SEPTEMBER 1988
DELIVERED
: 29 SEPTEMBER 1988
JUDGMENT
KUMLEBEN
, JA
1/...
1.
Appellant initiated proceedings in the Transvaal Provincial
Division of the Supreme Court for the review of a decision of first respondent.
It applied on Notice of Motion, as a matter of urgency, for the issue of a rule
nisi
calling upon respondents to show cause the following day why:
"2.1. The decision taken at Pretoria on 30 March 1987 in terms of which 16
containers of imported mechanically deboned poultry were
released from detention
and declared fit for sale and communicated to the Second Respondent in a telex
purportedly from the First
Respondent should not be corrected and set aside in
terms of rule 53(1)(a)."
(The decision in question was that 16 containers of
mechanically deboned
poultry ("MDP"), which had been detained
by first respondent, be released to
second respondent.) In
addition an order was sought that the relief set out
in
paragraph 2.1. above operate as an interim order pending the
decision on the return day of the rule. A founding affidavit
of appellant's managing director, Mr. Shefer, was lodged in
2/...
2.
support of the application, together with a short affidavit of
Professor Holzapfel, a microbiologist of the Faculty of Agriculture
of the
University of Pretoria.
First respondent learned of the pending
application for the first time on
the morning of the hearing.
The papers were taken to the home of Mr Harvey,
the sole
member of second respondent, the previous night. In the
absence
of anyone to receive them, they were left at his
home. Mr Harvey was away at
the time. The next morning,
that is, on 3 April 1987, the matter was called in court.
Since there had
been no opportunity to lodge answering
affidavits, first respondent sought
leave to lead
viva voce
evidence in rebuttal of the allegations in the
foundine
affidavits in an attempt to prevent the grant of the
order
sought. Such leave was granted. First respondent called
two
witnesses, namely, Dr Stevens, the Director: Foodstuffs,
Cosmetics and Disinfectants in the Department of National
3/...
3. Health and Population Development ("Department of
Health") and Mr Lotter, the manager of second respondent. They had not had
sufficient
time to become fully conversant with the facts of the case with the
result that they fared badly under cross-examination. At the
conclusion of their
evidence, and after argument, Smit J granted the relief sought and made the
provisional order returnable on 2
June 1987.
Before that date respondents lodged answering affidavits in which the grounds
alleged by appellant (Mr Shefer on its behalf) for claiming
that the decision be
set aside, and the facts relied upon, were canvassed in detail. After the
answering affidavits with annexures
had been served on appellant, three further
affidavits sworn by Mr Shefer were lodged in connection with interlocutory
matters, which
arose before the application was argued on the merits. In the
second of these affidavits, dated 25 May 1987, he said:
4/...
4.
"I am advised that at this stage it is inappropriate and improper in terms of
Rule 53 for me to prepare and deliver affidavits replying
to the affidavits
filed on behalf of first and second respondents. I wish to place on record that
my failure at this stage to respond
on oath to such affidavits is not to be
construed as an admission of the contents
thereof."
He did in fact in that affidavit proceed
to deal with and
dispute the allegations of one deponent, Mr P R du Toit, but,
despite what
appears to have been foreshadowed in the quoted
passage, no further replying
affidavits were forthcoming from
him, or from any one on behalf of appellant,
on thé merits
(apart from one of Professor Holzapfel which did not
deal
with material allegations in the answering affidavits).
The
allegations in the answering affidavits therefore
stand
uncontradicted, except in so far as they are in conflict
with
averments in the founding affidavits.
The mattêr came before Kriegler J on the return day, On 9 June 1987
judgment was delivered: dismissing the application to review
and set aside the
decision; discharging the
rule nisi
; and ordering that appellant bear the
costs
5/...
5. (excluding those stated in the order) on an attorney and
client scale. Leave was, however, granted to appeal to this court on the
merits
and against the costs order.
As I have indicated, a number of subsidiary or interlocutory applications
were made before the matter was argued on the return day.
They included an
application to anticipate the return day (with an in
limine
counter-application); one to dismiss the application with reliance upon the
provisions of sec 35 of the General Law Amendment Act,
62 of 1955; and an
application for an order compelling first respondent to deliver further
documents in compliance with the provisions
of Uniform Rule of Court 53(l)(b).
These applications have no bearing on the issues now before this court on appeal
and it is therefore
unnecessary to consider any of them.
The following background facts are either common cause or are undisputed.
6/...
6.
Appellant is an importer of food products including large
quantities of MDP. Second respondent is one of its main trade competitors.
MDP
is a processed form of poultry meat and is used as a "filler paste" in certain
meat products. In common with other foodstuffs
it is susceptible to bacterial
contamination. Hygienic conditions in the slaughtering, preparing and storage of
MDP are necessary
to restrict the bacterial content within safe margins.
The duty of ensuring that imported MDP and other meat products are within the
prescribed bacterial limits, and do not present a health
hazard, is entrusted to
officials of the Department of Agricultural Economics and Marketing ("the
Department of Agriculture") in
terms of the Animal Slaughter, Meat and Animal
Products Hygiene Act, 87 of 1967 ("the Meat Hygiene Act"). Dr Coetzee, the
Deputy-Director
of
7/...
7. the Directorate of Veterinary Services of the Department
of Agriculture, in his affidavit explains in detail how these functions
are
carried out in terms of the relevant regulations. It is the responsibility of
officials of his Department to be satisfied that
the product in question is fit
for human consumption. The procedure adopted in the case of an imported meat
product is that it is
released by the customs officials into the custody of
officials of the Department of Agriculture. It is their duty to ensure that
there has been compliance with the conditions of the import permit, that the
importation is in accordance with the relevant regulations,
and that the product
is safe for human consumption. In this regard Dr Coetzee said:
"Die mees logiese en praktiese wyse om die beheer
uit te
oefen is dat vereis word dat sertifikate
deur 'n veearts wat deur die
Regering van die land
van herkoms daartoe gemagtig uitgereik word waarin
8/...
8. onder andere gesertifiseer word dat vleis die higiênese standaarde en
ander vereistes kragtens die
Vleishigiënewet
gestel,
nakom."
In addition certain other documents are to
be examined to ensure that the imported product from the time of shipment has
been conveyed
and stored in accordance with the requirements of this Department.
In certain circumstances independent tests are carried out before
releasing the
product to the importer.
The irradiation of MDP and other food products is a
process whereby food is subjected to atomic ionization for a twofold purpose:
firstly, to erradicate certain bacteria (salmonellae) that may be present; and
secondly, to reduce the level of other bacteria and
thus increase the shelf life
of the product after it has been thawed. Once irradiation has taken place, it is
no longer possible
to determine what
9/...
9. the bacterial levels prior to irradiation were. Certain
bacteria produce toxins. Irradiation has no effect on the level of toxins
present in the product before irradiation takes place. Matters relating to
irradiation of foodstuffs fall under the control and supervision
of officials of
the Department of Health. Paragraph 2 of Regulation 1600, published under
Government Notice R1600 of 22 July 1983,
and made in terms of sec 15(1) of the
Foodstuffs, Cosmetics and Disinfectants Act, 54 of 1972, ("the Foodstuffs Act")
provides that:
"No foodstuff which has been irradiated shall be
sold unless the Minister or the Director-General
has, in writing, approved the sale of such
irradiated
foodstuff."
The detention and release
of the 16 containers came
about in this way. In October 1986 the Department of
10/,..
10. Agriculture became concerned about the bacterial
levels of some MDP imported from Europe, because they were excessively high.
This concern was conveyed to local importers. In January 1987 this Department
evaluated the whole situation and decided to suspend
the importation of MDP from
two abbatoirs in France and one in West Germany. (It is to be noted that
irradiation was not an issue.)
This resulted in some 20 containers of MDP
imported by appellant from one or other of the two French abbatoirs being
impounded and
rendered unavailable to appellant for sale in the Republic. In the
circumstances, as Shefer put it:
"...Applicant suspended the implementatioh of existing contracts with France and
re-contracted with more reliable suppliers in the
U.K. and Holland on less
favourable terms.
Inter alia
the product was more
expensive."
11/...
11.
Shefer thereafter learned that appellant's
competitors,
including second respondent, had in the second half
of
January 1987 imported into South Africa between 500 and 800
tons of MDP
from French suppliers and that these consignments
had been subjected to
irradiation prior to shipment. On 20
March 1987 Shefer reported this to Dr
Stevens. As no
permission had been granted to sell irradiated MDP in
terms
of paragraph 2 of Regulation 1600, it was decided to detain
all
available MDP imported from France since 1 January 1987.
The order of
detention, issued on 23 March 1987, had the
effect of placing the contents of
such containers under
embargo wherever they were at the time. As at the date
of
the detention order 6 of the 16 containers had been cleared
by the
Department of Agriculture and were in transit to, or
in the possession of, second respondent's customers. A
further 6 were thus
cleared before the issue of the
rule nisi
on 3 April 1987. I should mention that 2 of the 16
containers (numbered Peru 272017/2 and Peru 272100/6) were,
12/...
12.
in fact, not imported by second respondent but by
Eskort
Natal and Ranch Intertrade respectively. (The question
whether
these two firms should not have been joined was
raised in some
correspondence, but not pursued further and
need not be considered in this
appeal.) The 14 containers in
which second respondent was interested were
ordered from one
source in France, a manufacturing company called "SOCIETE DE
PROTEINES
INDUSTRIELLES" ("SPI").
Once the necessity to obtain a permit in terms
of
paragraph 2 of Regulation 1600 was brought to his
attention,
Mr Harvey promptly applied, on behalf of second respondent,
to Dr Stevens for the necessary approval in terms of the
Regulation. Dr
Coetzee and Dr Stevens were also anxious to
have the fate of these containers
decided without delay. (The
value of the MDP in the 14 containers of second
respondent
was approximately R500 000,00.) On 26 March 1987 they had
a
discussion with the commercial attaché of the French Embassy
in Pretoria, one Monique Chapelle, as a result
13/...
13. of whích she sent a telex message to the
veterinary authorities in France. In it she asked them to furnish the necessary
certification to satisfy the requirements of both Departments. In reply three
telex messages - addressed to her as "Mrs Agriculture
Attache"- were sent by Dr
Adroit, the Controller General, Chief of Veterinary Service and Food Hygiene of
the Minister of Agriculture
in France. In them the 16 containers were identified
and in regard to all of them Dr Adroit certified:
(i) That the MDP exported had been inspected by an official of the French
Veterinary Department.
(ii) That the MDP was in accordance with the South African standards before
ionization.
(iii) That the level of ionization was 3 kGy (an abbreviation for kiloGray,
which is the unit of measurement of irradiation).
(iv) And that, in reference to the 14 containers ordered by second
respondent, the SPI factory was visited on 19 March 1987 by a French
veterinarian who was totally satisfied with the plant and the manner in which it
was being run.
14/...
14. In South Africa, irradiation of foodstuffs up to a
maximum of 10 kiloGrays is regarded as completely safe and as posing no danger
to the consumer.
This information satisfied Dr Stevens that the requirements of both
Departments had been met. He then gave second respondent the necessary
approval
in writing for the sale and distribution of its fourteen containers. This had
the effect of releasing them from detention,
which in turn gave rise to the
application.
The argument in support of the application has been anything but consistent.
Appellant, according to the founding affidavit of Shefer,
based its case for
setting aside the decision on grounds which may be thus summarised:
15/...
15.
(a)
That in
taking the decision to release the containers for sale, Dr Stevens failed to
exercise his discretion "in terms of the Act
and Regulations", or to "apply the
criteria in terms of the Act and the regulations", or to act "in the public
interest" or to apply
his mind to the matter.
(b)
That first respondent's decision to release the containers
"constitutes a declaration with retrospective effect."
(c)
That Dr Stevens did not have the necessary delegated authority to
take the decision.
The short judgment delivered by
Smit J on 3 April 1987, when
granting the provisional order, does not
indicate the grounds
upon which it was based. In argument before Kriegler J
on
the return day, Mr Mostert, who at that stage appeared on
behalf of the
appellant, argued ground (c) above but not
grounds (a) and (b) and advanced
two additional arguments.
Firstly, to quote from the judgment of Kriegler J,
that "the
décision to release the containers was not a real one
but
merely a formality pursuant to a 'deal' negotiated between
16/...
16.
SPI, the French Embassy in Pretoria and first respondent's
Department." And secondly, that the telex message of 30 March 1987 sent
to
second respondent conveying the approval for the release of the containers was
vague and did not constitute a valid approval in
terms of paragraph 2 of
Regulation 1600. These submissions were rejected by Kriegler J, who in addition
gave his reasons for concluding
that ground (a) was without substance. He
accordingly discharged the rule. Leave to appeal on the merits was, as I have
said, granted
by Kriegler J, essentially on the question of the validity of the
delegation, though such leave was not restricted to this ground.
Leave was also
granted to appeal against the award of costs on an attorney and client
scale.
Mr Shaw, who appeared for the appellant on appeal, abandoned ground
(c) above. He, however,submitted that the application ought to
have succeeded,
and the
rule nisi
confirmed, on grounds not at any previous stage raised
or
17/...
17. argued. Firstly, he submitted, that Dr Stevens was not
entitled to rely upon the assurances and certification of Dr Adroit, as
contained in the telex messages, in reaching his decision to release the
containers. Alternatively, inasmuch as documents originating
from France (which
came to hand after the decision was taken) showed, as regards some of the
containers,that Dr Adroit's certification
was in certain respects incorrect,
this in itself constituted a ground for setting aside the decision.
In regard to both these contentions, Mr Visser, who
appeared on behalf of first respondent, submitted that in
deciding in any
given case whether permission in terms of
paragraph 2 of Regulation 1600
should be granted, the only
relevant consideration - "jurisdictional fact" as
he put it -
to be taken into account is whether the degree of
irradiation was within
the South African prescribed limits
and that therefore the MDP did not
present a health hazard
18/...
18.
due to irradiation
. Having regard to this
jurisdictional
fact, the decision of Dr Stevens, so counsel
submitted,
cannot be faulted and the fact that other considerations
were
taken into account is therefore irrelevant. Mr Shaw did not
contend
that Dr Adroit's certification of the dosage of
irradiation was incorrect.
Thus, if Mr Visser's argument is
sound, it provides a partial answer to Mr
Shaw's first
submission (in that only the reliance upon the
certification
as regards irradiation can be questioned) and a
complete
answer to his. alternative argument (in that the correctness
of
the certification of the degree of irradiation is not
challenged). Mr Shaw,
however, argued that paragraph 2 of
Regulation 1600 authorised Dr Stevens to
call for evidence to
satisfy himself that pre- irradiation levels of bacteria
conformed to South African standards as laid down by the
Department of
Agriculture. And, so counsel submitted, in
this particular case, he was obliged to do so because, when
the containers were passed by officials of the Department of
19/...
19. Agriculture, they were unaware of the irradiation
before shipment. Inasmuch as Dr Stevens, in conjunction with Dr Coetzee, did
in
fact call for such wider certification, I am prepared to assume in favour of
appellant that the scope of paragraph 2 of Regulation
1600 is as wide as Mr Shaw
contends.
The question is therefore whether in both respects Dr Stevens was entitled to
rely on the assurances in the telex messages. I have
no doubt that he was. In
Builders Ltd. v Union Government
1928 A.D. 46
Wessels JA at page 60
stated with approval two propositions which manifestly apply to the present
case, namely:
"1. That where a statute appoints an official or other person to decide any
question of fact or mixed law and fact, he must honestly
address his mind to the
subject.
2. He need not adopt the procedure of a court of law. He may obtain his facts
as he thinks best."
20/.,.
20.
(See too
Zarkalis v Chief Immigration Officer
1976(2)
S.A. 431 (R., A.D.) 433C.)
Dr Stevens did just that. The source to which he turned for certification was
an impeccable one. Dr Adroit was the highest veterinary
authority in France. Dr
Coetzee confirms, in the passage quoted earlier in this judgment, that it is
standard practice to obtain
an assurance from responsible officials overseas
that there has been compliance with South African standards when meat products
are
imported from abroad and that this is often the only practicable procedure
to adopt. Dr Stevens had no reason to think that the certification
of Dr Adroit
would not be reliable and accurate. To require him to have called for the source
material on which the certification
was based - as was submitted in argument -
is to my mind quite unwarranted.
21/...
21 .
Mr Charrier, the general manager of SPI, came out
to
South Africa at the request of second respondent for
consultations in
connection with this case. He also
furnished one of the answering affidavits.
He brought with
him analyses, signed by Dr Helmer of the French Department
of
Veterinary Services, relating to 12 of the 16 containers.
These
certificates reflected tests carried out to ensure that
the MDP conformed to
the French standards as regards the
presence of bacteria prior to
irradiation. The results of
such tests are recorded on these certificates.
They were
annexed to Mr Charrier's affidavit. At some stage after
service
of the answering affidavits legal representatives
(though they were not relied upon in argument before Kriegler
J). They
revealed - and this was conceded on appeal before
us - that certain bacterial levels were in fact not in
accordance with
South African requirements and
that to that extent the certification and assurance in Dr
22/...
22.
Adroit's telex message were incorrect. Since this was
conceded by counsel for the respondents, it is unnecessary to go into further
details in this regard.
Mr Shaw's alternative argument relied on this inaccuracy. He submitted, to
quote from his written heads of argument, that:
"Doctor Stevens acted on the fundamental assumption of receiving a proper
certificate which he did not receive. His decision was,
therefore, not a
decision based on the information he required and which he thought he
had;..."
and for this reason, so counsel argued, the
decision to
release the containers cannot stand and should be set aside.
It was submitted, in short, that whenever an administrative
decision is
taken in good faith, based on facts which are
subsequently shown to be incorrect, the decision is to be set
aside. This
argument is without merit and counsel was
unable to cite authority in its support. It is hardly
necessary to point out that such would not be a ground for
23/...
23.
rescission of a civil judgment in a court of law (cf
Estate Garlick v Commissioner for Inland Revenue
1934 A.D. 499
at 502)
and in the field of criminal law the fact that a witness is shown to have
committed perjury is in itself not a reason for
setting aside the conviction (cf
Mokoena v Minister of Justice and Another
1968 (4) S.A. 708
(A) and
R
v Maharaj
1958 (4) S.A. 246
(A) 248G.) Similarly, in the case of an
administrative decision, the mere fact that it was based on incorrect evidence
or information
cannot vitiate it.
In
Administrateur van Suidwes-Afrika en 'n Ander v Pieters
1973(1)
S.A. 850(A), in reference to an administrative act involving the grant or
refusal of a permit, this court held at page 857H
to 858B:
"Die verlening van 'n onbeperkte administratiewe diskresie aan 'n statutêr
gemagtigde beteken egter nie op sigself dat 'n besluit
van die gemagtigde onder
geen omstandighede deur die Howe
hersienbaar
24/...
24.
is nie. (
Johannesburg Consolidated Investment Co. v. Johannesburg Town
Council
,
1903 T.S. 111
op bl. 115). Waar die statutêr gemagtigde sy
administratiewe diskresie nie uitoefen nie, of nie na behore uitoefen nie, of
waar hy hom in die uitoefening van sy bevoegdhede aan 'n growwe
onreëlmatigheid of 'n duidelike onwettigheid skuldig maak soos,
bv., waar
hy die uitdruklike of geïmpliseerde voorskrifte van die magtigende bepaling
verontagsaam, of hom deur ongeoorloofde
bybedoelings laat lei, kan die Howe sy
besluit hersien. (
Shidiack v. Union Government
,
1912 A.D. 642
op bl. 651
- 2, en
Judes v. District Registrar of Mining Rights, Krugersdorp
,
1907
T.S. 1046
op bl. 1051). Met 'n behoorlike en opregte uitoefening van 'n
diskresie, kan die Howe egter nie inmeng nie, selfs nie indien geoordeel
sou
word dat die besluit verkeerd of onbillik is nie. (
Shidiack
se saak,
supra
op bl. 652, en
Jeewa v Dönges, N.O. and Others
,
1950
(3) S.A. 414
(A.A.) op bl. 423)."
Neither of the two
arguments presented to us establish a right of review on any of the grounds set
forth in the above passage.
25/...
25.
At the start of argument on appeal the court raised the
question whether the appellant had the necessary
locus standi
to bring
the decision on review. In
Director of Education, Transvaal v McCagie and
Others
1918 A.D. 616
at 621 this court held that:
"The principle of our law is that a private individual can only sue on hisown
behalf, not on behalf of the public. The right which
he seeks to enforce, or the
injury in respect of which he claims damages, or against which he desires
protection, will depend upon
the nature of the litigation. But the right must be
available to him personally, and the injury must be sustained or apprehended
by
himself. Here we have to do with an application to set aside proceedings alleged
to have been taken in contravention of a statute;
and the question arises
whether the respondents had such a personal interest in the matter as entitled
them to invoke the assistance
of the Court."
As
appears from the passage quoted from Shefer's founding
affidavit, this application was prompted by the fact that
appellant's source of supply of MDP from France had been
26/...
26.
curtailed and it was obliged to purchase f rom a
more
expensive and less convenient source. It was for this reason
that it objected to second respondent importing from SPI
without the necessary permission. It is open to some doubt
whether this can be regarded as a sufficiently direct
interest in the
matter to entitle appellant to challenge the
propriety of the permission granted (cf
Roodepoort-
Maraisburg
Town Council v Eastern Properties (Prop.) Ltd.
,
1933 A.D. 87
at 101 and
Cabinet of the Transitional
Government
for the Territory of South West Africa v Eins
1988(3) S.A. 369 (A) 388).
However, in the light of the
conclusion on the merits, and since the point
was not fully
argued before us, it is not necessary to decide it. Nor is
it necessary to determine whether it was open to appellant
to advance Mr Shaw's argument when it was not the basis on
which the
review was launched and was based on facts, and
inferences from facts, set out in annexures to one of the
replying affidavits of second respondent.
27/...
27.
It remains to consider the correctness of the
order
as to costs. The punitive order was based on the fact that
the material
allegations on which appellant relied to obtain
a
rule nisi
were
without any foundation. They were
convincingly refuted in the answering
affidavits to the
extent that, as has been mentioned, no replying affidavits
on
the merits were forthcoming. The inescapable inference is
that they
were irresponsibly and recklessly made. The more
serious of such unfounded
allegations were: that "the French
veterinary certificates were false and
completely
unreliable"; that first respondent relied upon
French
certification "which in the past has proved to be
totally
unreliable"; that the second respondent and other competitors
of
applicant had since the second half of January 1986
"imported into South Africa between 500 and 800 tons of MDP
from French suppliers, who had experienced similar levels of
rejection during the last quarter of 1986"; that MDP imported
by second respondent was on arrival in South Africa "found to
28/...
28.
be quite sterile and in fact in some instances a nil
bacteria
level had been found"; and finally that the irradiation of
MDP
shipped to second respondent from France "had concealed
the massive bacterial contamination levels previously
infecting the
product." These far-reaching allegations were
clearly aimed at creating the
impression that the MDP in the
16 containers constituted a health hazard. This too was
refuted by the rebutting evidence. These unwarranted
averments resulted in
the 16 containers remaining in
detention from the time the
rule nisi
was granted (on 3 April
1987) until the judgment in the court a
quo
(on 9 June 1987)
inevitably causing prejudice and inconvenience to the
second
respondent and the customers involved. It is true that
one
of the
allegations, viz. the inaccuracy of French
certification, proved to be partially correct. However, since
the evidence produced by Mr Charrier was not known to
appellant at the time of his assertion that the French
veterinary certificates were "completely unreliable", this
29/...
29.
disclosure in his favour makes his conduct hardly less
reprehensible.
In the circumstances I am satisfied that Kriegler J exercised a proper
discretion in awarding costs on the attorney and client scale
to
respondents.
In the result the appeal is dismissed with costs, including, in the case of
first respondent, the costs of two counsel.
M E KUMLEBEN
JUDGE OF APPEAL
CORBETT JA)
VAN HEERDEN JA)
concur
SMALBERGER JA) NICHOLAS AJA)