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[2003] ZASCA 77
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Minister of Environmental Affairs and Tourism v Du Toit and Others (129/03, 130/03) [2003] ZASCA 77; [2003] 4 All SA 1 (SCA); 2004 (1) SA 308 (SCA) (5 September 2003)
THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
REPORTABLE
In
the matter between : CASE NUMBER 129/03
THE MINISTER OF
ENVIRONMENTAL
AFFAIRS AND
TOURISM FIRST APPELLANT
MONDE LATEGAN DU
TOIT
MAYEKISO
NO SECOND APPELLANT
and
PEPPER BAY FISHING
(PTY) LTD RESPONDENT
AND
CASE
NUMBER 130/03
THE
MINISTER OF ENVIRONMENTAL
AFFAIRS
AND TOURISM FIRST APPELLANT
THE
CHIEF DIRECTOR: MARINE AND
COASTAL
MANAGEMENT SECOND APPELLANT
and
ISAK SMITH
RESPONDENT
CORAM : HARMS, NAVSA,
BRAND, CLOETE and HEHER JJA
HEARD : 20 AUGUST 2003
DELIVERED : 5 SEPTEMBER
2003
Marine Living Resources
Act â applications for fishing rights â non-compliance with
procedural requirements determined by General
Notice under s 18(2) of
the Act â whether Chief Director as Ministerâs delegate had
discretion to condone such non-compliance
â relevance of s 33 of
the Constitution
JUDGMENT
BRAND JA
/
BRAND JA
:
[1] Although these two
appeals were never formally consolidated, they were argued together,
both in this Court and at some stage
during the proceedings in the
Court
a quo
. The appellants in both matters are the Minister
of Environmental Affairs and Tourism ('the Minister') and the Chief
Director:
Marine and Coastal Management in the same Department ('the
Chief Director').
[2] Both matters arose
from unsuccessful applications by the respondents in the two
appeals, Pepper Bay Fishing (Pty) Ltd ('Pepper
Bay') and Mr Izak
Smith ('Smith'), under s 18 of the Marine Living Resources Act no 18
of 1998 ('the MLR Act') for fishing rights,
more particularly the
right to catch West Coast rock lobster. The Chief Director, acting
under delegated powers, took the view
that both applications were
defective in form and that consequently he was precluded from
considering them on their merits. As
a result both applications were
rejected. Against these decisions, Pepper Bay and Smith lodged
appeals to the Minister in terms
of s 80 of the MLR Act. The
Minister personally considered and thereafter dismissed both
appeals.
[3] Pepper Bay and Smith
thereupon launched separate proceedings in the Cape High Court
seeking these decisions of the Chief Director
and the Minister to be
reviewed and set aside. Initially Pepper Bayâs application was
argued before Louw J while Smithâs application
was heard by Davis
J. When it transpired that the issues involved in the two matters
were substantially the same, the two judges,
sitting together, heard
further argument. Eventually separate judgments were handed down.
(The judgment by Davis J has since been
reported
sub nom Smith v
Minister of Environmental Affairs
[2003] 1 All SA 628
(C).) Both
applications were successful. Subsequently the Courts
a quo
granted leave to appeal to this Court.
[4] As to the background
facts, a convenient starting point is to outline the legislative
framework against which both appeals fall
to be considered.
[5] Section 18(1) of the
MRL Act provides,
inter alia
, that no person may undertake
commercial fishing unless a right to do so has been granted to him
or her by the Minister. In terms
of s 79 these powers could be and
were delegated to the Chief Director.
[6] Section 18(2) of the
MLR Act provides that an application for any right referred to in s
18(1) must be submitted to the Minister
in the manner determined by
him or her. The Minister did so by means of General Notice 1771 of
2001 ('the General Notice') published
in Government Gazette No 22517
of 27 July 2001. The General Notice comprises three parts. The first
part contains an invitation
('the Invitation') to apply for fishing
rights for the 2002 to 2005 seasons in 22 sectors of the fishing
industry, including West
Coast rock lobster. The second part is a
specimen application form which includes certain instructions for
the completion of the
form ('the Instructions'). The third part
contains policy guidelines ('the Guidelines') which inform the
prospective applicant
of the policy considerations that the Minister
- or his delegate â would to take into account when considering
the application
on its merits. The Guidelines deal with the merits
of applications for fishing rights. Since neither of the
applications concerned
were considered on their merits, the contents
of the Guidelines are not directly relevant.
[7] The General Notice
makes reference to a Rights Verification Unit. The explanation for
its existence is that thousands of applications
across the 22
sectors were anticipated in response to the General Notice and this
unit, comprised of individuals not employed by
the State Department
concerned, was appointed on contract in order to receive and verify
the contents of this large number of applications.
[8] The Chief Director
rejected Pepper Bay's application because the application fee
prescribed by the Invitation and the Instructions
had not been paid
timeously. He dismissed the application of Smith because it was not
accompanied by the two copies required by
the provisions of these
two documents. As will shortly become apparent, the appeals turn
largely on the proper construction of
the contents of the Invitation
and the Instructions. It is therefore necessary to quote from them
more extensively than I would
have preferred.
[9] At the outset, the
Invitation sets out a table listing each fishing sector and
indicates the opening and closing dates in each
sector. According to
this table the closing date for all sectors, including West Coast
rock lobster, was 13 September 2001.
[10] Under
the heading 'Application fees' the Invitation contains the following
provisions:
'An application fee of
R6 000.00 (six thousand rand) will be charged for lodging an
application for a right to undertake commercial
fishing, or to
engage in mariculture or to operate a fish processing establishment.
An application fee of
R500.00 (five hundred rand) will be charged for lodging an
application for a [limited] right to undertake
commercial fishing
of:
1) No more than 60 000
oysters per annum using no more than four harvesters;
2) White mussels for
bait purposes;
3) 850 kg or less
Abalone;
4) 1.5 tonnes or less
west coast rock lobster;
5) Linefish Traditional
with no more than four crew members;
6) By means of small
nets (beach seine for mixed shoal fish, drag, gill/drift, cast and
shove).
All applicants are
herewith informed that any application submitted without proof of
proper and timeous payment of the stipulated
fee at the time of
lodgement will not be considered.
No money is to be sent
with the Application Form. Application fees must be paid into the
bank account of the Rights Verification
Unit and proof of such
deposit, by way of deposit slip, must be attached to each
Application Form. Full details are given in the
Application Form.
Application fees are not
refundable. In exceptional circumstances, the Minister may refund
application fees.'
[11] Under
the heading 'Submission of Applications' the Invitation provides:
'Applications
may only be made on the numbered Application Forms supplied by the
Department. Applications submitted on any form
other than the
approved Application Form will not be considered.
An applicant must submit
one original Application Form and two copies of the Application Form
and all its annexures, per sector
or fishery applied for.
â¦
No
application received after 12:00 Friday 13 September 2001 will be
accepted or considered â¦'
[12] In similar vein,
the Instructions give the following explicit warnings to prospective
applicants with regard to the manner
in which the application should
be made:
'IMPORTANT INFORMATION â
YOU MUST READ THIS CAREFULLY BEFORE FILLING IN YOUR APPLICATION.
1. You must fill in the
Application Form and attach the necessary documentation in the
manner prescribed below.
2. The form is numbered
and has been laid out in order to permit it to be scanned
electronically. You may not submit the application
in any other
form. If you fail to comply with this requirement your application
will be rejected.
3. 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. â¦
10. You must submit one
(1) original and two (2) copies of the application. â¦
12. 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. â¦
15. You must pay the
application fee by direct deposit as follows:
Name of account
holder: Rights Verification Unit
Bank: Absa
Account Number: â¦
16. You must pay the
application fee properly and timeously ⦠Proof of payment (bank
deposit slip) must accompany the application
â¦
20. 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. '
(Emphasis in the original.)
[13] The facts giving
rise to the refusal of Pepper Bayâs application are largely common
cause. On 10 September 2001, some three
days before the closing date
for the submission of applications, Pepper Bay deposited a cheque in
the sum of R6 000 in the account
of the Rights Verification Unit
('the RVU') held at Absa Bank, Cape Town. This was done, so it was
subsequently explained by Ms
Gorka, the bookkeeper who wrote out the
cheque on Pepper Bayâs behalf, 'to ensure that payments would be
done timeously and well
before the deadline of 13 September 2001'.
Absa stamped the deposit slip â indicating that the application
fee had been deposited
â and credited the account of the RVU with
the amount of the cheque. On 11 September 2001 Absa noticed,
however, that the cheque
had been post-dated to 28 September 2001.
Consequently it reversed the credit of Pepper Bayâs deposit in the
RVU account. Ms
Gorka's explanation is that she intended to date the
cheque on the day it was completed, i e 28 August 2001, but through
a '
bona fide
administrative error' she mistakenly post-dated
it to 28 September 2001.
[14] On 13 September
2001 Pepper Bay submitted its application form, together with the
deposit slip reflecting that an amount of
R6 000 had been deposited
into the account of the RVU on 10 September. Receipt of this
application was thereupon acknowledged by
the RVU. On 17 September
2001, some four days after the closing date for applications, Absa
sent the post-dated cheque to the RVU
under cover of a standard
letter which informed the addressee that, since the cheque deposited
had been post-dated, the addresseeâs
account had been 'adjusted
accordingly'.
[15] The Chief Director
considered Pepper Bayâs application on 8 December 2001. He
concluded that the application had been 'improperly
lodged' in that
the required application fee had not been paid timeously. His
further view was that he had no discretion to condone
non-compliance
with the requirement of timeous payments. As a consequence he
concluded that he had no authority to consider the
application on
its merits. In the event the application was rejected on purely
procedural grounds. As I have already indicated,
Pepper Bayâs
subsequent appeal to the Minister against the Chief Directorâs
decision was refused. According to the Minister's
stated reasons he
did so because he agreed that the Chief Director had no discretion
to condone non-compliance with the procedural
requirements contained
in the General Notice.
[16] The facts of the
Smith appeal are somewhat more controversial in that many
allegations relied upon by Smith in his founding
papers were denied
on behalf of the appellants. However, following the approach
explained by this Court in
Plascon Evans Paints Ltd v Van
Riebeeck Paints Ltd (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) 634G-635D, the
essential facts upon which a decision can rightfully be based, are
capable of fairly succinct description.
[17] Smith had been a
subsistence fisherman at Lambertâs Bay on the West Coast for
twenty years. His livelihood was derived from
fishing and
particularly from the catching of rock lobster. In response to the
Ministerâs invitation embodied in the General
Notice, he, together
with 28 other subsistence fishermen from Lambertâs Bay, mandated a
chartered accountant, Mr Elgar Bonthuys
('Bonthuys'), to assist them
in preparing their applications for the right to undertake the
commercial fishing of West Coast rock
lobster. Bonthuys was
specifically directed to ensure that their applications complied
with the necessary formalities; that the
relevant application fees
were timeously paid; and that their applications were submitted
before the stated deadline of 12 noon
on Thursday, 13 September
2001.
[18] During the morning
of 13 September 2001, Bonthuys and those assisting him paid the 29
application fees of R500 each required
in terms of the Invitation.
They arrived at the Receiving Centre established by the RVU in Sea
Point, Cape Town before 12 noon
on that day. By that time a long
queue had already formed. As a result they only gained entrance to
the room where applications
were received some five hours later. In
the meantime persons who were in the queue before 12 were handed a
'time cut-off disc'
indicating that they were present at the cut-off
time and were therefore not be regarded as late applicants. The
reason for the
long queue was that thousands of applications were
received on 13 September 2001.
[19] When Bonthuys and
his assistants eventually entered the room where the applications
were received, they realised that they
were only in possession of
the original application forms while the provisions of the General
Notice required submission of the
original form together with two
copies. The copies had apparently been left in a vehicle that had
already returned to Lambertâs
Bay. The officials involved refused
to take receipt of the applications until such time as copies had
been obtained. They also
refused to allow Bonthuys to make copies
and return to the Receiving Centre on the same day. On Friday, 14
September 2003, Bonthuys
went back to the Receiving Centre with the
29 applications. On this occasion the applications were accompanied
by two copies and
the officials involved took receipt of these
documents.
[20] During December
2001, the Chief Director considered the applications of Smith and
his 28 co-applicants. He took the view that
the applications had
been submitted late; that the time periods fixed by the General
Notice were peremptory; and that he had no
discretion to condone the
submission of late applications. As a consequence he refused the 29
applications without considering
them on their merits. Smithâs
appeal to the Minister under s 80 of the MLR Act was unsuccessful
essentially because the Minister
shared the views of the Chief
Director in all material respects.
[21] It is common cause
that 13 September 2001 was a Thursday and that the reference towards
the end of the Invitation to the deadline
as '12:00 on
Friday
13 September 2001' was a mistake. Smith did not suggest that he or
his representatives were misled or in any way influenced by
this
mistake. In fact his clear instructions to Bonthuys, so he says,
were to ensure that his application was delivered at the
Receiving
Centre by 12 noon on
Thursday
13 September 2001. His
contention is, however, that because of the mistake an official of
the Department concerned, one Mr Robertson,
had extended the
deadline to 12 noon on the Friday and that because his application
was lodged before the extended deadline it
cannot be considered
late. In his answering affidavit Mr Robertson denies that he ever
gave such extension. Moreover, he denies
that he was an employee of
the Department or that he had any authority to grant an extension of
the deadline prescribed by the
Minister in the General Notice.
[22] The grounds of
review relied upon by both Pepper Bay and Smith are essentially
twofold. Their first contention is that the
Chief Director and the
Minister, in both matters, erred in concluding that the applications
were 'improperly lodged'. In any event,
so they maintain, the Chief
Director erred in not considering to condone that which he regarded
as the defects in their applications
because he was under the
mistaken impression that the provisions of the General Notice
afforded him no discretion to do so. The
Minister's mistake, they
contend, was his failure to rectify this on appeal.
[23] Pepper Bay's first
argument as to why the Chief Director erred in concluding that it
had failed to pay the application fee
of R6 000 timeously is
based on the fact that on 10 September 2001 the account of the RVU
had been credited by Absa Bank with
this amount. It matters not, so
the argument went, that Absa Bank subsequently reversed this credit
when it realised that Pepper
Bay's cheque had been post-dated to 28
September 2001. In my view the short answer to this argument is that
it is in direct conflict
with the thus far unreported judgment of
this Court in
Burg Trailers SA (Pty) Ltd and Another v Absa Bank
Limited and Others
(delivered on 30 May 2003 under case number
145/02) to the effect that a credit which is provisional in the
sense that it can still
be reversed by the bank does not constitute
payment. This must particularly be so when the credit is indeed
subsequently reversed
by the bank (cf
Erikson Motors (Welkom) Ltd
v Protea Motors and Another
1973 (3) SA 685
(A) 693G-H).
[24] The further
argument by Pepper Bay as to why its application did in fact comply
with the prescriptions of General Notice was
that they do not
require that proper and timeous payment be actually made but only
that
proof
of proper and timeous payment be lodged
with the application. Since the deposit slip duly stamped by the
bank and annexed to its
application constituted such proof, so the
argument concluded, the application had been lodged properly. This
argument, in my view,
amounts to an elevation of the façade
of proof over the substance of payment. What the General Notice
requires is actual
payment of the application fee before the
application is lodged together with proper proof by way of a deposit
slip that such payment
had been made. The notion that incorrect or
false proof of such payment would suffice, is quite untenable.
[25] Smith's contention
in his founding papers as to why his application should be regarded
as having been lodged timeously was
initially based on the
allegation in his founding papers that the stipulated deadline had
been extended by Mr Robertson to 12:00
on Friday 14 September 2001.
This contention, however, became stranded on the pertinent denial by
Robertson in his answering affidavit
that such extension was ever
given. In accordance with the approach to factual disputes in motion
proceedings, as explained in
the
Plascon Evans Paints Ltd
case
supra,
the matter is to be decided on Robertson's version, i e
on the basis that the extension was not granted. In his replying
affidavit
Smith tried a somewhat different tack. At that stage his
contention was that the provisions of the General Notice do not
require
the two copies to be filed
together
with the
original application and that his application was therefore in
proper form, despite the absence of copies, when he initially
sought
to lodge it on 13 September 2001. I cannot agree with the
construction of the provisions of the General Notice which forms
the
basis of this argument. Upon my reading of these provisions an
'application' consists of (a) an original numbered application
form
supplied by the Department together with (b) all its annexures and
(c) two copies of all these documents. And it is an application
in
this form â and no other â which was required to be lodged
before the stated deadline.
[26] For these reasons I
hold that the Chief Director and the Minister cannot be criticised
for their view that neither the application
of Pepper Bay nor that
of Smith complied with the requirements of the General Notice.
[27] This brings me to
the second review ground which is based on the supposition that the
General Notice afforded the Chief Director
a discretion to condone
these procedural defects. This is the ground upon which both review
applications were upheld in the Court
a quo
. It is conceded
by the Minister and the Chief Director that the latter never
professed to exercise any such discretion because
he thought he had
none. As a consequence they also conceded, quite rightly in my view,
that if such discretion should be held to
exist, the review
applications were correctly upheld.
[28] The keystone to the
decision of both Louw J and Davis J was that the Chief Director was
indeed afforded a discretion to condone
procedural defects, in para
20 of the Instructions. It will be remembered that this paragraph
informed the prospective applicant
that:
'if you fail to comply
with the requirements set out in the Government Gazette [i e the
Invitation] the policy guidelines [the Guidelines]
and the
application form [the Instructions] your application may
not
be considered or, if considered, refused'.
Based on the wording of
this paragraph the reasoning of Louw J (with which Davis J found
himself in agreement) proceeded as follows:
'There is no reason why
these words should not be held to mean what they clearly say,
viz
that non-compliance with the requirements
may
result
in the application not being considered at all. The body or
person charged with considering and deciding on the application, may
(not must) therefore decide not to consider the application at all.
Once, however, it is decided to consider the application despite
its
non-compliance with the requirements laid down, the application may
(not must) nevertheless be refused. This can mean nothing
else than
that the decision maker does have the discretion to consider the
application and if it is decided to consider the application,
either
to reject or to grant the application.
â¦
It would make no sense
for the decision maker to be given the discretion to consider an
application under clause 20, but then to
be bound nevertheless to
refuse the application for non-compliance once it is considered.'
[29] Louw J then made
reference to the explicit warning in the Invitation to the effect
that
'any application submitted without proof of
proper and timeous payment of the stipulated fee at the time of
lodgement will not be
considered'
. With regard
to this provision he said the following:
'This provision is set
out in the body of the General Notice [the Invitation] and is not
part of the directions set out in the application
form itself [i e
the Instructions]. To the extent that it is to be read to admit of
no discretion, it is in conflict with clause
20 of the latter. I
think the proposition that the provision contained in the body of
the General Notice should take preference
to and override the
conflicting provision contained in the application form itself,
needs only be stated to be rejected. Although
the information sheet
[the Instructions] may be directed primarily at the prospective
applicants, it is in my view not open to
the decision maker to deal
with the applications on another basis. To do so would offend
against the right to procedurally fair
administrative action. A
provision set out in the General Notice [the Invitation] which many
of the potential applicants may never
have seen cannot fairly be
held to override the provision contained in the application form
which all applicants are told specifically
contained "important
information" which they must "read ⦠carefully before
filling out your application".'
[30] Essential to this
line of reasoning is the notion that the Instructions somehow
outrank the Invitation. That notion has no
validity. This renders
the whole line of reasoning fundamentally flawed. The stated
rationale for the underlying notion is that
the prospective
applicant may not even have seen the Invitation whereas the relevant
provisions of the Instruction were foisted
upon him under the boldly
printed heading of 'important information'. As a matter of fact the
assumption that the individual prospective
applicant may only have
seen the Instructions and not the Invitation might or might not be
true. As a matter of law it is entirely
irrelevant. The Minister was
empowered to issue the General Notice under s 18(2) of the MRL Act.
Its publication in the Government
Gazette was authorised by s 15 of
the Interpretation Act 33 of 1957. Since the General Notice owes
both its existence and authority
to an empowering original law (the
MRL Act) it should be regarded as subordinate or delegated
legislation and interpreted accordingly.
Thus understood the General
Notice, though consisting of three constituent documents, must be
read as one enactment. The fact (if
it be one) that a prospective
reader has read only one of the constituent parts of the enactment
and not the other is of no legal
consequence.
[31] As a general
principle an administrative authority has no inherent power to
condone failure to comply with a peremptory requirement.
It only has
such power if it has been afforded the discretion to do so (see e g
Le Roux and Another v Grigg-
Spall
1946 AD 244
252;
SA
Co-operative Citrus Exchange Ltd v Director General Trade and
Industry and
Another
[1997] ZASCA 6
;
1997 (3) SA 236
(SCA) 241). The Chief
Director derives all his (delegated) powers and authority from the
enactment constituted by the General Notice.
If the General Notice
therefore affords him no discretion, he has none. The question
whether he had a discretion is therefore entirely
dependent on a
proper construction of the General Notice.
[32] Once it is
appreciated that the key to the question lies in the General Notice
as a whole, the obvious starting point is to
construe the special
provisions of the Invitation and the Instructions that Pepper Bay
and Smith had failed to comply with. In
the performance of this
exercise it is to be borne in mind that both the Invitation and the
Instructions are drafted in what is
described in
SA Co-operative
Citrus Exchange Ltd v Director General: Trade & Industry and
Another supra
240A-B as 'narrative form' in contrast with
'familiar statutory language'. The obvious purpose is to render it
easier to understand.
Unfortunately this method of drafting has, as
it often does, the exact opposite result. Time honoured canons of
construction applicable
to 'familiar statutory language' are to be
applied with circumspection. Nevertheless, it cannot be ignored that
the provisions
of the Invitation pertinent to the Pepper Bay case,
on their plain wording, clearly state that the application fee
must
be paid at the time that the application is lodged. Paragraph 15 and
16 of the Instructions are similarly couched in peremptory
terms. An
applicant '
must
pay' the application fee and '
must
pay the application fee promptly and timeously'. The general
principle is, of course, that language of a predominantly imperative
nature such as 'must' is to be construed as peremptory rather than
directory unless there are other circumstances which negate
this
construction (see e g
Sutter v Scheepers
1932 AD 165
at
173-174). Even though the provisions under consideration are drafted
in narrative form, common sense dictates that this principle
be
afforded some weight. An even more significant indication that
timeous payment of the application fee is peremptory is that
the
Invitation contains an explicit sanction for non-compliance with the
provision â an application submitted without proof of
proper and
timeous payment will not be considered (cf
Sutter v Scheepers
supra
174). There is also the more general consideration that
where, as in the present case, a statute provides for the
acquisition
of a right or privilege â as opposed to
the
infringement
of an
existing
right or
privilege â compliance with formalities that are prescribed for
such acquisition, should be regarded as imperative.
(See e g
R v
Noorbhai
1945 AD 58
at 64;
SA Citrus Exchange Ltd v Director
General: Trade and Industry supra
241E-I.) In the end, these
considerations leave no room for any construction of the specific
provisions that Pepper Bay had failed
to comply with, which allows
for a discretion on the part of the Chief Director to condone such
non-compliance.
[33] The same holds true
of the provisions which are relevant in the case of Smith. Again the
Instructions inform the prospective
applicant (in para 1) that 'you
must
fill in the application form and attach the
necessary documents in the manner described below' and (in para 10)
that 'you
must
submit one (1) original and two (2)
copies the application'. It is true that the Instructions do not
contain an express sanction
for non-compliance with these
provisions. Such a sanction is however provided for in the
Invitation which warns the prospective
applicant that no application
(consisting
inter alia
of an original application form
together with two copies) received after the stated deadline of
midday on 13 September 2001 'will
be accepted or considered'.
[34] In view of the
conclusion that the directly relevant provisions of the Invitation
and the Instructions are of a peremptory
nature, the remaining
enquiry is whether para 20 must be understood to reverse or cancel
their clear meaning so as to introduce
a discretion to condone
non-compliance where formerly there was none. The Courts
a quo
found that they did. As appears from the quoted passage from the
judgment of Louw J, he arrived at this conclusion primarily on
the
basis of the word 'may' which he obviously understood to be used in
the paragraph in a permissive sense, i e to mean that the
Chief
Director is permitted to consider the application despite the
non-compliance with procedural requirements. That is not how
I
understand the word 'may' in para 20. Having regard to the context
of the statutory scheme of the General Notice as a whole,
i e in its
three constituent parts, I understand the word 'may' in para 20 to
serve what can be described as a purely predictive
function, to
predict or indicate what 'may' possibly happen in particular
circumstances (cf Black's
Law Dictionary
(1999) 993 and
Garner
Dictionary of Modern Legal Usage
(1995) 552-553). Thus
understood para 20 does no more than to indicate that if there is
non-compliance with the stated requirements,
one of the two
hypothetical possibilities â non-consideration of an application,
or its refusal â could result. The word 'may'
is not permissive,
so creating a discretion (as found by the Court
a quo
)
any more than, in combination with the word 'not', it is
prescriptive (in the sense of 'cannot'). Para 20 therefore alerts an
applicant that non-compliance with the requirements of the
Invitation, the Instructions or the Guidelines may, depending on the
particular requirement, have one of the two stated consequences. The
paragraph does not in itself create a mechanism to deal with
those
consequences. What those consequences are, must be sought elsewhere.
They depend on the requirement itself. If the requirement
is
peremptory, failure to comply will result in the application not
being considered. If, on the other hand, the requirement is
directory the application will be considered but, depending on its
merits, may be refused.
[35] I therefore
conclude that the Chief Director and the Minister were correct when
they understood the General Notice read as
a whole not to confer a
discretion on the Chief Director to condone the defects in either of
the two applications concerned.
[36] On behalf of Pepper
Bay it was argued in the alternative that even if the Chief Director
had no discretion to condone these
procedural defects in its
application, the Minister was at fault in failing to exercise the
independent discretion conferred upon
him by s 81(1) of the MRL Act.
In terms of this section 'the Minister may exempt any person from a
provision of the Act' if in
his opinion 'there are sound reasons for
doing so'. The simple answer to this argument is in my view that the
Minister was never
asked to exercise his discretion under this
section. What the Minister was asked to do, in an appeal under s 80,
was to consider,
the correctness of a decision by the Chief
Director. Moreover, the only relief sought against the Minister in
the Court
a quo
was to set aside his refusal to uphold an
appeal against the Chief Director's decision. In the circumstances
an endorsement of
Pepper Bay's alternative argument would amount to
a review which was never sought of a decision that was never taken â
a position
that can hardly be sustained.
[37] This brings me to a
different topic. In his judgment, Davis J found further support for
the case of Smith in the provisions
of s 33 of the Constitution of
the Republic of South Africa Act 108 of 1996 ('the Constitution').
This section provides the constitutional
guarantee of administrative
action which is lawful, reasonable and fair. His conclusion with
reference to this guarantee is stated
as follows (at 638i-j):
'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 principal of procedural
fairness.'
From the learned Judge's
reasons for this conclusion it is however not entirely clear to me
where, in his view, the conflict with
the constitutional value of
administrative fairness lies. In the course of his reasoning he
refers (at 636b-g),
inter alia
, to authorities supporting the
proposition that an administrative body endowed with a discretionary
power is not entitled to adopt
a policy which allows it to dispose
of a case without considering the merits of the particular case.
That proposition is undoubtedly
true but inapposite. Its whole
underlying supposition is that the administrative authority has a
discretion. After all, any attempt
at the exercise of an
unauthorised discretion by an administrative authority would simply
be
ultra vires
and invalid. Once it is found that the Chief
Director was never afforded a discretion, the stated proposition
therefore does not
apply.
[38] The learned Judge
also seems to have been of the view that if the Chief Director had
been endowed with a discretion to condone,
he should in the interest
of administrative fairness have exercised that discretion in favour
of Smith and his 28 fellow subsistence
fishermen. This appears from
the following statement (at 636g-i):
'[T]he 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 s 33
of the Constitution.'
On a personal level I
obviously share the learned Judge's sympathy for these unfortunate
subsistence fishermen. I can only hope
they have some remedy against
the chartered accountant who, on the available evidence, appears to
be responsible for their plight.
However, the reasoning that
transpires from the quotation again begs the question. It again
presupposes a discretion on the part
of the Chief Director where he
has been found to have none.
[39] The learned Judge
was also swayed by the consideration which appears from the
following further statement (at 638e-g):
'The ambiguities in the
documentation generated by the respondents designed to inform
prospective applicants of the correct procedure,
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.'
For the reasons that I
have given I am of the view that the General Notice read as a whole
is not ambiguous. On more than one occasion
it is explained in the
Invitation and the Instructions that an application form accompanied
by two copies should be lodged by the
stated deadline. In the
Invitation this explanation is accompanied by the explicit warning
that failure to comply with these requirements
will result in the
application not being considered. The Instructions then contain a
further general warning in para 20 which was
maybe unnecessary and,
like most unnecessary statements, unwise. But, be that as it may,
read in the context of the General Notice
as a whole, para 20 could
hardly create any confusion and, more particularly, there is no
suggestion that the chartered accountant
who represented Smith was
in any way confused. In fact, his notice of appeal to the Minister
shows conclusively that he was not.
[40] Ultimately Davis J
seems to have been influenced by his â unexpressed â view that
the General Notice
should
have afforded the Chief
Director a discretion to condone non-compliance with procedural
requirements. That, however, amounts to
an attack on the validity of
the General Notice issued by the Minister as opposed to an attack on
the Chief Director's refusal
to exercise a perceived discretion. The
problem with considering such an attack is that it was simply never
raised. The only decision
by the Minister which both Pepper Bay and
Smith sought to be reviewed was his dismissal of their appeals
against the adverse decisions
of the Chief Director. Nowhere on the
papers is there even a suggestion that the General Notice may be
unconstitutional or in conflict
with the principle of legality (cf
Pharmaceutical Manufacturers Association of SA and Another: In re
ex parte President of the Republic of South Africa and Others
[2000] ZACC 1
;
2000 (2) SA 674
(CC)). Had such an attack on the validity of the
General Notice been made, the Minister would have been afforded the
opportunity
to explain why he thought it necessary not to bestow a
discretion upon the Chief Director to condone non-compliance.
Absent
such an opportunity it would, in my view, be
inappropriate for this
Court to pronounce on issues which were never raised.
[41] The only remaining
questions relate to the matter of costs. First, the appellants were
represented by two counsel in both matters
in this Court as well as
in the Court
a quo
. They seek an order for their costs thus
incurred. Despite arguments to the contrary on behalf of both Pepper
Bay and Smith, I
believe that in all the circumstances the
engagement of two counsel by the appellants cannot be said to be
unjustified. I therefore
propose to grant the costs order sought.
Secondly, there is the matter of the record in the Pepper Bay
appeal. As has happened
in
The Minister of Environmental Affairs
and Tourism and Others v Phambili Fisheries (Pty) Ltd and Another
(unreported judgment of this Court in case number 32/2003 and
case number 40/2003 delivered on 16 May 2003) the parties to the
Pepper
Bay appeal initially failed to comply with the provisions of
Rule 8(7) and 8(9) of this Court. A record of 23 volumes was filed,
of which less than half eventually proved to be relevant.
Fortunately, as a direct result of the admonitions by this Court in
the
Phambili
Fisheries
case, the parties, by
agreement, indicated to the Registrar at an early stage which part
of the record should be ignored.
They thereby avoided any
inconvenience and
prejudice to the Court.
In the circumstances the Minister and the Chief
Director quite rightly
conceded that they were not entitled to recover the costs occasioned
by the preparation of that part of the
record which they later
agreed to be irrelevant. Pepper Bay, on the other hand, did not
insist on any costs order in its favour
with reference to the
irrelevant part of the record. In the circumstances I consider a
costs order in accordance with the appellants'
concession to be an
appropriate one.
[42] In the matter of
Pepper Bay (case number 129/03):
(a) The appeal is upheld
with costs including the costs consequent upon the employment of two
counsel; save that the appellants
are not entitled to recover the
costs of preparing that part of the record which the parties
subsequently agreed to be irrelevant.
(b) The order by the
Court
a quo
is set aside and replaced by an order in the
following terms:
'The application is
dismissed with costs including the costs of two counsel.'
[43] In the matter of
Smith (case number 130/03)
(a) The appeal is upheld
with costs including the costs consequent upon the employment of two
counsel.
(b) The order by the
Court
a quo
is set aside and replaced by an order in the
following terms:
'The application is
dismissed with costs including the costs of two counsel.'
â¦â¦â¦â¦â¦â¦
F D J BRAND
JUDGE OF APPEAL
Concur
:
HARMS JA
NAVSA JA
CLOETE JA
HEHER JA