IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 021530/2022
In the matter between:
BERTIE VAN ZYL (EDMS) BPK
(T/A ZZ2) First Applicant
TOMATO PRODUCERS’ ORGANISATION Secon d Applicant
NOORDELIKE UIE KOMITEE (PTY) LTD Third Applicant
KORKOM POTATOES AND ONIONS Fourth Applicant
LEBOMBO GROWERS (PTY) LTD Fifth Applicant
CITRUS GROWERS ASSOCIATION OF SOUTHERN AFRICA Sixth Applicant
And
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED : YES
(4) Date: 17 March 2025
Signature: _
2
PRODUCT CONTROL FOR AGRICULTURE First Respondent
THE MINISTER OF AGRICULTURE, FORESTRY
& FISHERIES Second Respondent
JUDGMENT
NYATHI J
A. Introduction
[1] The Agricultural Products Standards Act 119 of 1990 (“the Act”) provid es for
control over the sale and export of certain agricultural products by an off icer in
the service of the Department of Agriculture (“the executive officer”) . The Act
also empowers the Minister to des ignate any person having particular knowledge
in respect of an agricultural product , as assignee in respect of that product
(Section 2(3)(a)). An assignee thus designated, exercises subject to the
directions and control of the executive officer, the powers of the executive officer
in respect of that product (Section 2(3)(b)).
[2] The first respondent , Product Control For Agriculture (“Prokon”) , was designated
as assignee in terms of Section 2(3)(a) of the Act . In discharging its duties as
assignee, Prokon performs inspections on fresh fruit and vegetables to ensure
compliance with the applicable regulations pertaining to the grading , packing and
marking of such fresh produce.
[3] Assignees are entitled in terms of Section 3(1A) to determine and charge fees in
respect of their services. Accordingly, Prokon determined its fees which it
published on 11 March 2022 (hereinafter “Prokon’s Fee Determination”).
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[4] The first applicant (“ZZ2”) who is a producer of products listed in the Fee
Determination and the Second to Fifth applicants whose members are also
producers of certain listed products , seek the review and setting aside of
Prokon's Fee Determination.
[5] Prokon’s Fee Determination constitutes ad ministrative action, and the applicants
contend that such determination was unlawful and falls to be reviewed and set
aside.
B. Applicants’ contentions
[6] On 6 January 2017 Prokon published its initial fees in respect of the inspection
services rendered by it. The first applicant (ZZ 2) and others brought an
application to review and set aside Prokon's determination of its initial fees . After
four years of litigation , ZZ2 and its co-applicants were ultimately successful in
their review based on the isolate d ground that the notice and comm ent procedure
followed by Prokon was flawed .1
[7] Following Prokon's second fee determination, published on 11 March 2022, ZZ2
and the other applicants have followed the same modus operandi as in the earlier
application. They waited just under six months before launching this second
review application, again applying for Prokon's fee determination to be reviewed
and set aside.
1 Bertie van Z yI (Pty) Ltd t/a ZZ2 v Minister of A griculture Forest ry and Fisheries [2021] 4 All SA 1 (SCA).
4
C. The purpose of the application
[8] The Applicants contend that Prokon’s Fee Determination was unlawful,
unreasonable and procedurally unfair . They seek to have the Fee Determination
reviewed and set aside as contemplated in section 7 of the Promotion of
Administrative Justice Act 3 of 2000 (“PAJA”) because:
8.1 Prokon’s Fee Determination is ultra vires the provisions of
Section 3(1A) read with Section 3A(1)(c) of the APS Act;
8.2 Prokon's fee determination was procedurally unfair in that
Prokon deprived interested parties of the opportunity to
comment meaningfully on a number of material issues; and
8.3 Prokon determined its fee in a manner that is irrational and/or
arbitrary and/or capricious and/or Prokon's decision was not
rationally connected to the purpose for which it was taken.
D. Prokon’s contentions and conditional counter -application :
[9] Prokon denies the contentions by the applicants above and avers that :
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9.1 the review application is an abuse of process;
9.2 that the applicants have an internal remedy that they ought to
have exhausted first; and
9.3 that in any event, the review application was not brought within
a reasonable time.
[10] Prokon also brought a Conditional Counter application wherein it seeks, in the
event of the Court upholding any of the Applicants' complaints and electing to
declare Prokon's Fee Determination invalid, that such a declaration of invalidity
be suspended pending finalisation of a new fee determination process. The
Applicants oppose Prokon's Conditional Counter Application. This issue must
also be determined.
E. Genesis of Prokon’s second fee determination from ZZ2’s perspective
[11] On 14 September 2021, Prokon invited the first applicant to participate in a virtual
meeting on 21 September 2021 “to discuss Prokon's application for the
promulgation of new inspection fees on regulated fresh fruit and vegetables” .2
The invitation referred to a ‘Memorandum in respect of the Determination of New
Inspection Fees on Regulated Fresh Fruits and Vegetables’ that was available
on Prokon’s website tog ether with a summary thereof.
[12] Because the Memorandum (which purports to set out the methodology applied
by Prokon to determine inspection fees to be charged) required a detailed study,
the first applicant objected that a week' notice was inadequate under the
2 Annexure FA1.
6
circumstances. The first applicant also expressed a desire to secure legal
representation during the meeting, given the history of th e subject -matter.3
[13] In response to the first applicant’s objection, Prokon wrote back stating that the
purpose of the meeting would be “purely and simply to explain the methodology
implemented by Prokon in the determination of its fees ” and that adequate
opportunity to comment would be provided after the proposed fees have been
published.4
[14] During the virtual meeting on 21 September 2021 , which was attended on behalf
of the first applicant , Mr Booysen (who is Prokon's Chief Executive Officer)
summarised the contents of the Memorandum by way of a Power Point
presentation. A copy of the Power Point presentation (that was mailed to
participants prior to the meeting together with an Agenda), is attached as
Annexure FA6. A copy of the agenda is attached as Annexure FA7.
[15] Mr Booysen thereafter invited the participants to participate in a question -and-
answer session. Mr van Straaten (who represented the Pineapple Growers
Association, asked Mr Booysen if a 20 -ton consignment is received on the
market, but only 10 tons are inspected, will the inspection fees be charged on
the total consignment or only on the kilograms inspected. Mr Booysen gave the
following answer:
'A: An inspection is conducted as per consignment as specified in the Act
and the regulations. If a consignment consists of the same cultivar, same
class, same size and comes from the same farmer it is regarded as a single
3 A copy of the First Applicant's objection is attached to its founding affidavi t as Annexure FA4 .
4 Annexure FA5 dated 20 October 2021.
7
consignment and the inspection fee will apply to the total consignment,
notwithstanding the fact that only 10 tons were inspected ’.
[16] Ms Rademeyer (who represented the first applicant) objected that insufficient
time was allowed to prepare for the Zoom meeting and that it will comment at a
later stage. The Chairperson Dr T Mutengwe who represented the Minister, then
proposed that interested parties be given until 5 October 2021 to comment and
this proposal was accepted by those present.
[17] In a letter dated 23 September 2021, Mr Bernhard Van der Hoven who is ZZ2's
attorney, drew the attention of Prokon's attorneys to the fact that when ZZ2
objected to the short notice given for the meeting, Prokon answered that the
purpose of the meeting was only to explain the methodology implemented by
Prokon in the determination of its fees. Mr Van der Hoven requested Prokon to
explain why Prokon deviated from the stated purpose of the meeting and if the
question -and-answer session was intended to serve as public participation
process. A copy of Mr Van der Hoven's letter is attached as Annexure FA9.
[18] On 5 October 2021, Prokon extended the date for submissions to Wednesday
13 October 2021 . A copy of the Notice is attached as Annexure FA11.
[19] The first applicant did comment on the proposed inspection fees . A copy of Mr
van der Hoven’s letter dated 13 October 2021 with the comments attached fees
on the following two grounds:
8
19.1 Prokon based its fees on the weight of products without justifying
that it would cost more to inspect products with a higher weight
per unit compared to those with a lower weight;
19.2 Prokon does not justify that “own regulated products inspections
cost 50% more than shared regulated products inspections”.
[20] In their reply to the first applicant's comments, Prokon's attorneys invited the
former to attend a further meeting during which the calculation of the fees will be
explained. A copy of the letter dated 22 October 2021 is attached as Annexure
FA13.
[21] The first applicant accepted Prokon's invitation to attend the meeting
notwithstanding the fact that it had become clear that any further explanation
could not affect or change Prokon's view.
[22] As pointed out, the first applicant did attend the follow up Zoom meeting held on
Wednesday 20 October 2021 at 10:00 to further discuss the application for the
promulgation of new inspection fees on regulated fresh fruits and vegetables. A
copy of the Notice of the meeting is attach ed as Annexure FA14.
[23] On 5 November 2021 in Notice 646 of 2021 (Government Gaz ette 454/62),
Prokon published its proposed inspection fees for public comment. A copy of the
Notice (hereinafter referred to as “Prokon’s Notice of Proposed Fees”) is
attached as Annexure FA15.
[24] Prokon’s Notice of Proposed Fees stated that its inspections would apply to two
specified categories of products: (1) own regulation products inspections and (2)
share d regulation products inspections. The products that fall into each of these
categories are set out in a Table that also contains the inspection fee to be
charged in respect thereof:
9
24.1 For shared regulation products: 1c/kg
24.2 For own regulation products: 1.5c/kg
[25] Prokon’s Notice of Proposed Fees was accompanied by what Prokon described
as the methodology applied to determine the inspection fees. The Notice also
stated that the full memorandum pertaining to the proposed inspections fees was
available on Prokon's website.
[26] After the publication of Prokon’s Notice of Proposed Fees and its methodolo gy,
the applicants more fully commented thereon, by way of a letter written by Mr
van der Hoven , attached to the papers as Annexure FA 16. The nub of the
applicants’ objection s was:
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26.1 Prokon intends to base its inspection fees on the weight of a
product without justifying that it would cost more to inspect
products with a higher weight than those that weigh less;
26.2 Prokon does not justify why "own regulated prod ucts inspections
cost 50% more than shared regulated prod ucts inspections ”.
26.3 Prokon did not meaningfully consider alternative methods to
deter mine its fees and in particular the possibility of determining
its fees based on the time required for the inspection;
26.4 No facts are provided why an inspection twice per week would
be required.
26.5 Prokon should consider the possibility of conducting random
inspections which would probably allow it to render its services
in a more cost effective manner;
26.6 The classification into own products and share d regulation
products appears to be arbitrary and it is not explained on what
basis own regulation products would attract a higher fee; the
arbitrariness of the classification appears (amongst others) from
the fact that onions, shallots and tomatoes are cla ssified as own
regulation products and which would require a determination if
these products are seeded or seedless, deep cutting to
determine if split stone is present on stone fruits, determination
of sugar/ starch ratio, and destructive testing ;
26.7 Prokon should rationally consider the possibility of determining
inspection fees with relation to the time actually spent on the
inspection; the determination of fees on this basis will result in
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producers of products that weigh more (avoc ados, watermelons
etc) not being unfairly discriminated against;
26.8 Prokon does not indicate if fees will be calculated with reference
to product actually inspected and the weight thereof or if fees will
be determined per total weight of the consignment delivered by
the producer;
26.9 Inspections would be done only at markets in the bigger
metropoles; it is not explained why inspections are required at
these venues under circumstances where markets had already
inspected the quality, grading, packing etc of the produce put up
for sale; P rokon does not intend to exercise its statutory duties
in smaller municipalities and in rural areas, thereby depriving the
general public of the benefits of the Act; Prokon's entire funding
model appears to be flawed as a result.
[27] On 10 December 2021, Prokon thanked the first applicant for respo nding to its
invitation to comment on the proposed insp ection fees and stated that it was in
the process of evaluating the response and will communicate with it again. A
copy of the letter is att ached as Annexure FA17.
[28] Prokon followed -up with a letter dated 27 January 2022 (Annexure FA18) ,
wherein it rejected the applicants’ objections that fees should not be charged per
kilogram.5 Prokon asserted that the Memorandum on its website provided
stakeholders with sufficient information as to how the inspection fees were
determined6.
5 Para 3 and 8 2 of letter dated 27 January 2022.
6Ibid Para 2 .
12
[29] Prokon also confirmed that after consideration of the comments received from
industry stakeholders “against explan ations provided in the methodology
document” it shall persist with its proposal that there wo uld be 2 categories and
a difference in inspection fees (Paragraph 3) .
[30] Prokon also insisted that inspections would be conducted at the most
appropriate frequency, point and time to ensure that the inspection service
remains cost effective and to ensure that Prokon who operates on a costs
recovery basis, provide an inspection service in terms of its mandate as assignee
(paragraph 4).
[31] Finally, Prokon stated that inspections would not be limited to fresh produce
markets in the bigger metropoles and will be conducted on different fresh
produce markets and at retail level (paragraph 9).
[32] Prokon then published the fees it imposed in terms of Section 3(1A)(a)(ii) of the
APS Act on 11 March 2022 in GN 877 of 11 M arch 2022 in Government Gazette
46032. A copy of Prokon's Inspection Fees is attached as Annexure FA19
(hereinafter ‘Prokon's Fee Determination' ).
[33] The applicants’ eventual response was to launch this review application. Before
I set out the formal grounds for the review as laid out in the application, I propose
to deal with the 2 points in limine that were raised by the Prokon .
F. The points in limine
[34] Prokon alleges that this review application is an abuse of process because:
13
34.1 the applicants have failed to exhaust internal remedies before
resorting to the courts. And
34.2 the application was not brought within a reasonable time as
envisaged by Section 7 of PAJA.
34.3 For the se reasons, it was submitted on behalf of Prokon , the
applicants are non -suited.
[35] This review application is a sequel to the earlier application which culminated in
the Supreme Court of Appeal judgment reported as Bertie Van Zyl (Pty) Ltd t/a
ZZ2 and Others v Minister of Agriculture, Forestry and Fisheries and Others
(549/2020) [2021] ZASCA 101 (14 July 2021) . The main bone of contention here,
as in the instant case was the first Fee Determination by Prokon . In that case,
the failure to exhaust internal remedies as provided by section 10 of the Act, was
dealt with and disposed of. UNTERHALTER JA writing for a unanimous bench ,
held that :
“…Given these uncertainties, in my view, the failure by the appellants to appeal
under s 10(1), even if this was an available remedy, should not frustrate the
appellants’ review. Where the right to appeal is not made plain in the legislation,
and, at best, i t is cast as a right and not an obligation, the high court should have
permitted the appellants, in the interests of justice, to proceed with their review.
And I do so find. ”
[36] The second objection by Prokon is that the applicants “…waited just under si x
months before launching this second review application , again applying for
Prokon’s fee determination to be reviewed and set aside. ”7 It was submitted on
behalf of the applicant that the application was filed on 2 September 2022, which
7 Para 8 First Respondent’s Heads of Argument.
14
is 5 months and 20 days after the date of the fee dete rmination, which is before
the laps e of 180 days provided for in PAJA.
[37] In Valor IT v Premier, North West Province and Others8, it was held that
“Whether a delay is unreasonable is a factual issue that involves the making of
a value judgment. Whether, in the event of the delay being found to be
unreasonable, condonation should be granted involves a ‘factual, multi -factor
and context -sensitive’ enqu iry in which a range of factors – the length of the
delay, the reasons for it, the prejudice to the parties that it may cause, the
fullness of the explanation, the prospects of success on the merits – are all
considered and weighed before a discretion is e xercised one way or the other”.
[38] With these views being pondered, it follows that the points in limine cannot
prevail .
[39] I proceed to deal with the merits of the applicants’ review app lication.
G. THE GROUNDS FOR REVIEW OF PROKON’S FEE DETERMINATION
Prokon’s Fee determination was ultra vires the Act
[40] Section 3(1A)(a) of the Act pr ovides that fees may be charged in respect of the
powers exe rcised and duties performed by the executive officer of the assignee
(as the case may be), “to ensure co mpliance with this Section”.
[41] Section 3(1A)(b) further particularises that, in the case of powers exercised and
duties performed by the executive officer, the prescribed fee shall be payable.
8 [2020] ZASCA 62; [2020] 3 All SA 397 (SCA); 2 021 (1) SA 42 (SCA) at para 30.
15
Where the assignee has exercised the powers and performed the duti es, the fee
determined by such assignee shall be payable.
[42] The Applicants argue that as a result, Section 3(1A)(a) should be read with and
is qualified by what is set out in Section 3(1A)(4): fees may be charged in res pect
of the powers exercised and duties performed by the executive officer of the
assignee to ensure com pliance with Section 3 of the Act but the owner shall be
liable to pay such fee onl y if the executive officer or an assignee performed an
action contemplated in Section 3A(1)(b), (c), (d) or (e). Only then '...the owner of
the product in question shall pay the prescribed fees or the amount determined
by the assignee, as the case may be, f or such action.'
[43] The purpose of the Act is to compensate the executive officer or an assignee for
services rendered that will have some value to the owner . In Bertie Van Zyl (Pty)
Ltd t/a ZZ2 v Minister of Agriculture, Forestry and Fisheries9 the SCA stated as
follows:
“[9] …The Act permits fees to be charged in respect of the powers exercised and
the duties performed by executive officers and assignees. The fees are charged
for the service rendered by executive officers and assignees. Owners thus
receive consideration for the payment of fees – the inspection of their products
to ensure that they may be sold i n compliance with the Act …”
[44] The applicants submitted that , on a proper interpretation of Section 3(1 A)(a)(ii)
read with Sections 3A(1) and 3A(4) of the Act:
44.1 an assignee has the power, and the owner has the duty to pay
the fee determined by the assignee to compensate the assignee
9 [2021 ] 4 All SA 1 (SCA) ; [2021] ZASCA 101.
16
for the exercise of its powers and the performance of its duties
set out in Section 3A(1)(b) — (e); and
44.2 an assignee has no power to charge a fee unless such fee is
charged in respect of an action taken in respect of a quantity of
a product as contemplated in Section 3A(1)(b) — (e),
[45] Prokon calculated its inspection fees on the basis that it would be entitled to
charge the owner per consignment. In other words, Prokon's Fee Determination
allows it to inspect a random number of products in a consignment and then
require the owner of a product to pay for such inspection and in addition thereto,
a fee on the uninspected products merely because these pro ducts were present
at the place where Prokon conducted its inspection.
[46] As a result, Prokon ’s Fee Det ermination obliges an owner to pay an assignee
not on ly for actions undertaken as contemplated in Section 3A(1)(b) – (e), but
also an additional amount that would constitute a levy or a tar iff imposed by
Prokon on owners of products .
[47] Prokon is not entitled to charge a levy or t o impose a tariff on owners . It cannot
charge a fee for services not actually rendered: in ter ms of Section 3(1A) read
with Section 3A(1)(c) , Prokon may only charge a fee in respect of an action it in
fact did perform.
[48] Prokon’s Fee Determination is clearly ultra vires the provisions of Section
3(1A)(a)( ii) read with Sections 3A(1) and 3A(4) of the Act. Its Fee Determination
falls to be reviewed and set aside on this ground alone.
[49] In Pharmaceutical Manufacturer s Association of SA : In re Ex parte President of
the Republic of South Africa and others10 decision of the Constitutional Court ,
10 2000 (2) SA 674 (CC).
17
Chaskal son P explained the principle of legality in the constitutional era as
follows :
“[50] What would have been ultra vires under the common law by reason of a
functionary exceeding a statutory power is invalid under the Constitution,
according to the doctrine of legality."
Prokon’s Fee Determination was procedurally unfair
[50] Prokon decided to follow a notice and comment procedure and in terms of
Section 4(3)(a) of PAJA , Prokon had to take appropriate steps to communicate
the administrative action to those likely to be materially and adversely affected
by it and call for comments from them.
[51] The applicant s contend that Prokon fe ll short of what it was obliged to do in that
it failed to provide interested parties with sufficient information concerning
material aspects of its proposed administrative action to enable them to submit
meaningful comments.11
[52] Prokon did not comply with these statutory obligations and thus deprived
interested parties of the opportunity to comment meaningfully on mater ial issues
concerning its proposed inspection fees. These were the frequency of
inspections they decided upon, the method of categorization of products and
their pricing as well as Prokon’s failure to make material documentation which it
relied upon available . These were guidelines by the Organisation for Ec onomic
Cooperation and Development (‘OECD’).
11 Regulation 18(3)(a) of the Regulations on Fair Administrative Procedures, 2002 (GN R1022 in GG 23874 of 31 July
2002) requires the notice containing proposed administrative action to contain 'sufficient information about the
proposed administrative action to enable members of the public to submit meani ngful comments'.
18
[53] This deprivation of material documentation appears to be a repeat of an earlier
oversight which caused the SCA in the earlier appeal matter of Bertie van Zyl to
comment as follows:
“…What was required of Procon in the notices calling for comment was
information as to the basis of a fee based on weight, the rationale for the fee
structure, the logic underpinning the categories, rate differentials and their
relation to cost recovery.
[32] Absent this information, those affected by the proposed fee determination,
including the appellants, were not placed in a position to make meaningful and
informed comments. As a result, the consultative process did not meet the
requirements of proc edural fairness. The fee determination made by Procon
cannot stand, since it is the outcome of an unfair process. It must be reviewed
and set aside. ”12
[54] The applicants alleged that Prokon again fell short of what Regulation 18(3)
requires . It failed to provide the general public with sufficient information relating
to the rationale and logic underpinning the frequency of inspections, the
categorisation of products into the applicable two categories , the rate
differentials and their relation to cost recovery.
[55] In the circumstances, Prokon’s Fee Determination was procedurally unfair. It
falls to be reviewed and set aside as being procedurally unfair as well.13
12 Bertie van Zyl para 36 Supra.
13 Also see : South African Fruit and Ve getable Canners Association v Im pumelelo A gri Business Solutions ( Pty) Ltd
[2021] ZAGPPHC 227, 2021 3 All SA 242 (GP) paras [18] & [ 38].
19
Irrationality and/or arbitrariness:
[56] Prokon determined the fees in a manner that is irrational and/or arbitrary and/or
capricious and/or Prokon's decision was not rationally connected to the purpose
for which it was taken .
[57] In Pharmaceutical Manufacturers Association of SA and Another: In re Ex parte
President of the Republic of South Africa14 the Constitutional Court held that for
the exercise of public power to be valid, a decision taken must be rationally
connected to the purpose for which the power was conferred.
[58] Quite recently , in Minister of Water and Sanitation v Sembcorp Siza Water (Pty)
Ltd,15 the Court re -affirmed that an irrational decision will be set aside , stating:
“[47] But it bears emphasis that there is a distinction between
irrationality relating to the decision itself and irrationality relating to the
procedure leading up to that decision. The presence of each of them is fatal
to the exercise of power. If the procedure followed is such that it could not
result in achieving the purpose for which the power was conferred, the
purported action must be set aside. The same result must follow if the
decision taken would equally not lead to the attainment of that purpose.”
[59] The Constitutional Court emphasised the caution that rationality in so far as the
exercise of public power revolves on whether there was a rational connection
between the decision taken or procedure followed, and the purpose for which
the power was granted. If there is such a connection, the review challenge based
on this ground must fail.16
14 2000 (2) SA 674 (CC) at para [85].
15 2021 (10) BCLR 1152 (CC) .
16 Supra at para [60].
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[60] The thrust of the applicants ’ objection against Prokon ’s fee determination as
being not rationally connected to the purpose for which it was taken comes from
two angles , namely, Prokon’s basing of inspection fees on the weight of
produce inspected per kilogram and the categorisation of inspection fees
into shared regulation s and own regulations. [emphasis added].
60.1 The applicants submit that the agricultural products that fall in
each of the two categories (shared regulations and own
regulations) differ greatly in respect of weight and size and it
behoves no argument that the fees payable following an
inspection of a consignment of water melons (1c per kg), would
be considerably more than an inspection of a consignment of
garlic (1.5c per kg), chillies (1c per kg) or parsnip (1c per kg), for
example.
60.2 The outcome of charging per weight of the product in this is a
higher fee being payable by owners of products that weigh more
and a lesser fee payable by owners of products that weigh less.
This is despite the fact that Prokon would perform exactly the
same services in respect of both categories of owners.
[61] Realising that Prokon’s fee determina tion was riddled with the same difficulties
as was the case with its earlier determination of 6 January 2017, which was
review ed and set aside in the SCA decision Bertie van Zyl , the applicant brought
this to the attention of the respondent.17
[62] Prokon again based its Fee Determination on the weight of the product. Prokon
has thus brazenly ignored the SCA's clear finding and did so despite the first
applicant's objections .
17 Annexure “FA16” to founding affidavit , being a letter from Van den Hoven Attorneys dated 3 December 2021.
21
[63] The SCA had made it clear, that the determination of a fee per consignment
based on the weight thereof per kilogram, would be arbitrary and cannot
rationally be linked to the costs incurred by Prokon in exercising its powers and
performing its duties contemplated in Section 3(1) rea d with 3A(1)(b) to (e) of the
APS Act.
The categorisation of inspection fees into shared regulations and own
regulations:
[64] In its Fee Determination, Prokon motivated the inclusion of products into the two
categories (own regulation inspections and shared regulation inspections) on the
basis of 'the extent of the resources (labour finances etc) allocated for conducting
the inspections'.
[65] In its answering affidavit, Prokon elaborately explains the categorisation of
products into these categories and the imposition of a higher inspection fee in
respect of one of these, on the basis that own regulation products have specific
regulations that must be complied with which results in own regulation products
requiring more time, labour and res ources.18
[66] It is the applicant’s contention that Prokon has not complied with its fee
determination but broadened the categories in its answering aff idavit by:
Including cactus pears, figs, granadi llas, kiwi fruits, mangoes, persimmons,
pomegranates , watermelons and melons in the category “shared regulation
products”. This is problematic because the aforementioned fruits and vegetables
have each its own set of regulations containing restrictive and prescriptive
provisions specifically with regard to each .
18 Answering affidavit paras 156 to 164.
22
[67] The specificity of the provisions variously lays down methods of inspection based
on ripeness standards, maturity requirements and quality.19 As a result, and
applying Prokon’s criterion to use the labour and resources and time spent on
an inspection, the above listed produce ought to be in the ir own regulation
category. Instead, and strang ely, Prokon included th ese fruits and vegetables on
the shared regulation category.
[68] In practice, the inspection time required for cactus pears, figs, granadillas, kiwi
fruits, mangoes, persimmons and pomegranates would be considerably more
than what would be required for carrots, for example. Yet, Prokon imposed an
inspection fee of 1c/kg in respect of carrots and the same fee for cactus pears,
figs, granadillas, kiwi fruits, mangoes, persimmons, pomegranates, watermelons
and melons.
[69] Prokon cannot explain this anomaly in the time and resources expended on the
inspection of the produce in the foregoing example.
[70] Prokon has also sought to rely on a purported survey it belatedly conducted
during January and February 2022 to justify an increase in inspection fees in
respect of own regulation products. That survey is manifestly inaccurate
however, as appears from random examples20 that were extracted and referred
to by the applicant from said survey. The discrepancies in the time it took
inspectors to inspect produce is astonishing, for ex ample, On 3 February 2022
Mr Martin Setswane required 135 minutes to inspect 29 carrots. On 13 January
2022, it took him only 12 minutes to inspect 28 carrots. There is no explanation
for the difference.
19 Part II Government Gazette No. 41723 of 22 June 2018 .
20 Supplementary founding affidavit para 5.12 read with answering affidavit para 165, referred to in applicant’s heads
of argument.
23
[71] The unavoidable conclusion is that Prokon’s categorisation of products into own
regulation inspections and shared regulations inspections and the fee differential
in respect of produce falling into eac h category, is arbitrary and irrational.
Frequency of the inspections :
[72] Prokon stated that a twice a week inspection of products optimises the
cost/ inspection ratio, minimises cost and is sufficient to ensure that non -
conforming produce do not reach the consumer.21
[73] Prokon stated that it based its decision that a frequency of two inspections per
product per week would be required, on its experience “based on quality
assurance inspections conducted during the past 18 months”. It also added that
the suggested frequency of twice a week inspection has also been tested and
accepted in the retail environment during the past three years.
[74] The applicants’ gripe with Prokon’s decision on frequency of inspection and the
categorisation of products into the two categories and the fees it determined in
respect of each such ca tegory is that Prokon cannot rationally explain the
reasons thereof by for example, providing particulars of the 18 months
experience and whether standard operating procedures existed. This, according
to the applicants , meant that Prokon’s inspectors were left to their own device s
when it came to determining frequency and the categorisation.
[75] The applicants accordingly submitted that Prokon’s decision to calc ulate its fees
based on historical product volumes, cannot be rationally related to the purpose
for which it exercised its power, namely, to determine its fees.
21 In para 2.10 of the Memorandum and in its Fee Determination para 1.10.
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H. CONCLUSION
[76] The applicant’s rationality review has been established as shown above. The
application to review and set aside Prokon’s Fee Determination in terms of
Section 3(1A)(a)(ii) of the APS Act published in the Government Gazette No.
46032 of 11 March 2022 , succeeds.
[77] The respondents made a submission regarding a conditional counter -application
that in the event that this court should find for the applicant, then the court should
invoke the provisions of section 172 of the Constitution and suspend the
operation of such find ing. I am not persuaded that this section is applicable in
this instance and will leave the matter at that.
[78] In so far as costs a re concerned, there was no case made for any departure from
the normal rule that costs follow the costs. Accordingly, the first respo ndent shall
cover the applicant’s costs including the costs of two counsel , to be taxed on
scale B.
J.S. NYATHI
Judge of the High Court
Gauteng Division, Pretoria
Date of hearing: 29/07/2024
Date of Judgment: 17 March 2025
On behalf of the Applicant : Adv. M.C. Maritz SC
With him: Adv. B .C. Stoop SC
25
Duly instructed by: Bernhard Van Der Hoven Attorneys, Pretoria
e-mail: elmari@bvdh.co.za / bernhard@bvdh.co.za
On behalf of the Responde nt: Adv. A. Bester SC
With him : Adv. M. Mostert
Duly instructed by: Fairbridges Wertheim Becker
c/o: MACINTOSH , CROSS & FARQUHARSON ; Pretoria.
e-mail: cfe@macintoshcross.co.za ; akika@mcinc.africa
Delivery : This judgment was handed down electronically by circulation to the parties' legal
representatives by email and uploaded on the CaseLines electronic platform. The date for hand -
down is deemed to be 17 March 2025.