Brief Summary

Administrative Law — Regulations — Interpretation of agricultural regulations — Applicant seeking clarity on the relationship between the Pest Control Operator Regulations and the Agricultural Remedies Regulations — Confusion in the agricultural industry regarding the classification of 'restricted-use agricultural remedy' and 'restricted agricultural remedy' — Court finding that the two classifications are distinct and that the AR Regulations are not subject to the PCO Regulations, thereby alleviating regulatory burdens on farmers.

Comprehensive Summary

Summary of Judgment

1. Introduction

The proceedings took the form of an urgent application in the High Court of South Africa, Gauteng Division, Pretoria, seeking primarily declaratory relief concerning the proper interpretation and interaction of two sets of regulations promulgated under the Fertilizers, Farm Feeds and Agricultural Remedies Act 36 of 1947.

The applicant was CropLife South Africa NPC, an industry representative body for, among others, growers’ associations and participants in the manufacture, supply, and distribution of agricultural remedies. The respondents were the Minister of Agriculture (first respondent) and the Registrar of Fertilizers, Farm Feeds, Agricultural Remedies and Stock Remedies (second respondent), who is responsible for registration functions under the Act and is implicated in the administration of the regulatory scheme.

The dispute arose from perceived uncertainty and operational consequences flowing from the interaction between the Pest Control Operator Regulations, GNR 98 of 18 February 2011 (“the PCO Regulations”) and the Regulations relating to Agricultural Remedy, GN 3812 of 25 August 2023 (“the AR Regulations”). The applicant contended that the regulatory framework had generated widespread confusion within the agricultural sector as to whether “restricted agricultural remedies” introduced in the AR Regulations were subject to the PCO Regulations’ supervision and registration requirements.

Procedurally, the respondents did not file an answering affidavit. Instead, they delivered a notice raising points of law under Uniform Rule 6(5)(d)(iii), including urgency and the proper review pathway (PAJA versus legality). Although the respondents sought, in heads of argument, an opportunity to file an answering affidavit should the preliminary points fail, the court declined to postpone the matter and determined the application on the facts presented by the applicant.

2. Material Facts

The dispute was rooted in the Act’s regulatory architecture for the use of agricultural remedies and the registration and supervision requirements applicable to pest control operators (“PCOs”). The Act defines a PCO as a person who, in the course of trade or occupation, administers agricultural remedies for their intended purpose, and it provides for their registration by the Registrar. The PCO Regulations elaborate on registration requirements, qualifications, skills, and duties.

A key provision in the PCO Regulations defines a PCO acting “for reward” in a manner that excludes an employee performing pest control for an employer on the employer’s property, but contains an important proviso: any employee who handles “restricted-use agricultural remedies” without direct supervision of a registered PCO must be registered as a PCO. The PCO Regulations, however, do not define “restricted-use agricultural remedies”.

Subsequently, the AR Regulations created a defined category of “restricted agricultural remedy”, described as an agricultural remedy for which the Registrar, due to human health or environmental risk concerns, prescribes additional label information and essential conditions relating to display, distribution, use limitations, or qualifications of persons who may use the remedy, with criteria set out in Annexure A.

The respondents’ stance (as articulated in argument) was that “restricted-use agricultural remedy” (PCO Regulations) and “restricted agricultural remedy” (AR Regulations) referred to the same class. On that approach, employees on farms applying Annexure A remedies would require direct supervision by a registered PCO, with the implication that registered PCOs would need to be physically present to supervise such application.

The applicant’s factual case, accepted for purposes of decision because no answering affidavit was filed, was that this interpretation created acute practical and sector-wide difficulties. The applicant alleged that there were insufficient numbers of registered PCOs available to service the industry, that a significant backlog of PCO registrations existed (said to exceed 2000 applications), and that some registration requirements were unclear or outdated, including an educational requirement referencing an NQF 4 qualification alleged to no longer be obtainable. The applicant further alleged that the PCO Regulations required a six-month internship under an existing PCO, which was difficult to complete given the scarcity of supervising PCOs.

In addition, the applicant relied on industry communications indicating that growers faced difficulty procuring and lawfully applying remedies needed for crop protection, with potential consequences for crop health, production, and food security. Although these communications were in the form of letters (raising hearsay objections), the court accepted them in the urgent context, noting the applicant’s position as a knowledgeable industry body.

Chronologically, the court accepted that the parties and industry had been engaged in discussions with the Department of Agriculture, and that on 11 October 2024 draft regulations were published in an attempt to address problems arising from the AR Regulations, though they had not been promulgated. The applicant ultimately brought urgent proceedings after the Registrar allegedly refused in early December 2025 to pursue a cooperative self-review of the AR Regulations, at which point the applicant considered litigation necessary to resolve the uncertainty and consequences.

3. Legal Issues

The central legal questions were, first, whether the matter warranted urgent adjudication, including whether any urgency was self-created and whether hearsay material could be considered in the urgent application.

Second, the court was required to determine, as a matter primarily of law and statutory interpretation, whether the undefined phrase “restricted-use agricultural remedy” in the PCO Regulations included the defined class “restricted agricultural remedy” in Annexure A of the AR Regulations, and whether the AR Regulations were subordinate to, or regulated through, the PCO regulatory regime.

Third, in the alternative relief, the court had to address a question of administrative-law pathway and constitutional doctrine: whether any challenge to the regulations’ validity could properly be brought under the principle of legality (as a constitutional principle within the rule of law), or whether, applying the principle of subsidiarity, such a challenge should have been brought under the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”) on the footing that promulgation/implementation of regulations constitutes administrative action.

These issues involved a combination of legal interpretation, the application of constitutional constraints (including rationality), and an assessment of procedural fairness and appropriateness in motion proceedings where no answering affidavit was filed.

4. Court’s Reasoning

On the procedural posture, the court dealt with the respondents’ attempt to reserve the right to file an answering affidavit if points of law failed. It considered the dilemma identified in motion proceedings where a respondent raises preliminary points without filing answering papers, and referred to authority addressing whether a respondent may assume success on preliminary points. The court was not persuaded by the explanation that the festive season and short service before Christmas prevented an answering affidavit, given the non-voluminous nature of the application and the crispness of the issues. It also considered that postponement would cause material delay and would be undesirable given the urgency. The matter was therefore decided on the applicant’s version of the facts.

On urgency, the court accepted that the sector faced immediate operational and agronomic consequences, including alleged inability to obtain or lawfully apply remedies needed for crop protection. It rejected the contention that urgency was self-created, reasoning that delay was explained by sustained efforts to resolve the matter through engagement with the authorities and the expectation that defects would be addressed through regulatory amendment. The urgency was said to crystallise when cooperative self-review was refused in December 2025. The court placed weight on the potential harm to the farming sector if the AR Regulations were interpreted as respondents contended.

The core of the judgment concerned interpretation. The court applied the interpretive approach articulated in Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA), emphasising context, purpose, and an objective attribution of meaning, with preference for a sensible meaning over one yielding insensible or unbusinesslike results.

The court also applied constitutional interpretive constraints. It stated that legislation must be interpreted consistently with the Constitution, rejecting interpretations that would render the regime inconsistent with constitutional requirements. In addition, it invoked the rationality minimum threshold for the exercise of public power, drawing from Pharmaceutical Manufacturers Association of SA and Another: In re Ex Parte President of the Republic of South Africa and Others 2000 (2) SA 674 (CC). It further referred to authority indicating that legislation should be reasonably clear and precise so that citizens and officials can understand what is expected of them, and held that the existing uncertainty itself implicated that standard.

When pressed on the respondents’ proposed “harmonious” interpretation, counsel contended that the AR Regulations were subordinate to the PCO Regulations and that the concepts of “restricted-use agricultural remedy” and “restricted agricultural remedy” were identical. The court rejected that interpretation on the basis that it would be constitutionally problematic for lack of rationality, given the evidence before it regarding the availability of PCOs, the registration backlog, and the resulting inability of significant parts of the farming sector to access and apply remedies critical to crops. The court reasoned that such consequences would undermine commercial interests in the sector and, more broadly, food and job security, and would be an unbusinesslike outcome.

The court then addressed whether the applicant’s proposed interpretation was reasonably available. It reasoned that the two concepts were not identical, emphasising that different wording was used in the respective regulations and that, had subordination been intended, the AR Regulations could have stated so expressly. On this basis, it found that the class of “restricted agricultural remedy” in Annexure A of the AR Regulations is different from the (undefined) class of “restricted-use agricultural remedy” in the PCO Regulations, and that the AR Regulations are not subordinated to the PCO Regulations.

Although these findings disposed of the primary relief, the court also addressed the alternative constitutional/administrative-law framing. It explained that section 33 of the Constitution guarantees lawful, reasonable, and procedurally fair administrative action, and that PAJA was enacted to give effect to this right. Applying the principle of subsidiarity, it held that where PAJA applies, a litigant should ordinarily not bypass it by relying directly on constitutional provisions or legality. The court reviewed the jurisprudence reflecting divergence in approach, but adopted a “principled” sequence: determine first whether PAJA applies; only if it does not, resort to legality as a “catch-net”.

Relying in particular on Minister of Health and Another NO v New Clicks South Africa (Pty) Ltd and Others (Treatment Action Campaign and Another as Amici Curiae) 2006 (2) SA 311 (CC) and later subsidiarity authority, the court concluded that the implementation of legislation through regulations is administrative action and therefore review proceedings should have been brought under PAJA rather than legality. This was treated as determinative of the alternative review route, though it did not displace the declaratory relief granted on interpretation.

On costs, the court applied the ordinary rule that costs follow the result, finding no reason to deviate given the applicant’s success.

5. Outcome and Relief

The court granted declaratory relief in favour of the applicant. It declared that the class of “restricted agricultural remedy” in Annexure A of the AR Regulations is not included in the class of “restricted-use agricultural remedy” referred to in the PCO Regulations, and it further declared that Annexure A “restricted agricultural remedy” is not subject to the regulatory control of the PCO Regulations.

The respondents were ordered to pay the applicant’s costs on Scale C, including the costs of two counsel where employed.

Cases Cited

Standard Bank of South Africa Ltd and Others v RTS Techniques and Planning (Pty) Ltd 1992 (2) SA 532 (T).

Bader and Another v Weston and Another 1967 (1) SA 134 (C).

Boxer Superstores Mthatha v Mbenya 2007 (5) SA 450 (SCA).

Galp v Tansley NO 1966 (4) SA 555 (C).

Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA).

Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others: In re Hyundai Motor Distributors (Pty) Ltd and Others v Smit 2001 (1) SA 545 (CC).

Pharmaceutical Manufacturers Association of SA and Another: In re Ex Parte President of the Republic of South Africa and Others 2000 (2) SA 674 (CC).

Affordable Medicines Trust and Others v Minister of Health and Another 2006 (3) SA 247 (CC).

S v Mhlungu 1995 (3) SA 867 (CC).

Naptosa and Others v Minister of Education, Western Cape and Others 2001 (2) SA 112 (C).

Minister of Health and Another NO v New Clicks South Africa (Pty) Ltd and Others (Treatment Action Campaign and Another as Amici Curiae) 2006 (2) SA 311 (CC).

SANDU v Minister of Defence and Others 2007 (5) SA 400 (CC).

Albutt v Centre for the Study of Violence and Reconciliation and Others 2010 (3) SA 293 (CC).

Malema and Another v Chairman National Council of Provinces and Another 2015 (4) SA 145 (WCC).

Valuline CC v Minister of Labour 2013 (4) SA 326 (KZP).

Minister of Defence and Military Veterans v Motau and Others 2014 (5) SA 69 (CC).

State Information Technology Agency SOC Ltd v Gijima Holdings (Pty) Ltd 2017 (2) SA 63 (SCA); (641/25) [2016] ZASCA 143.

National Director of Public Prosecutions & Others v Freedom Under Law 2014 (4) SA 298 (SCA).

My Vote Counts NPC v Speaker of the National Assembly and Others 2016 (1) SA 132 (CC).

Legislation Cited

Fertilizers, Farm Feeds and Agricultural Remedies Act 36 of 1947.

Constitution of the Republic of South Africa, 1996 (including section 33 and section 33(3)).

Promotion of Administrative Justice Act 3 of 2000.

Promotion of Access to Information Act 2 of 2000.

Pest Control Operator Regulations, GNR 98 of 18 February 2011 (Government Gazette No. 34020).

Regulations relating to Agricultural Remedy, GN 3812 of 25 August 2023.

Rules of Court Cited

Uniform Rule of Court 6(5)(d)(iii).

Held

It was held that the urgent application was properly before the court and that urgency was not unreasonably self-created in circumstances where the applicant had pursued engagement and amendment processes, and only approached court when those processes failed to resolve the dispute and the consequences for the agricultural sector were said to be immediate and serious.

It was held, on interpretation, that the undefined phrase “restricted-use agricultural remedy” in the PCO Regulations does not encompass the defined class “restricted agricultural remedy” in Annexure A to the AR Regulations. On this basis, it was held that Annexure A “restricted agricultural remedies” are not subject to regulatory control under the PCO Regulations.

It was held, in relation to the alternative constitutional challenge, that to the extent a review of the regulations’ validity was sought, the proper route would have been PAJA (as a matter of subsidiarity), because the implementation of legislation through regulations constitutes administrative action; legality operates as a residual basis only where PAJA does not apply.

LEGAL PRINCIPLES

The judgment applied the principle that statutory and regulatory interpretation is an objective process grounded in text, context, purpose, and the document as a whole, and that a sensible meaning is preferred over one producing insensible or unbusinesslike results, in accordance with Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA).

It applied the constitutional interpretive principle that legislation should be interpreted consistently with the Constitution where reasonably possible, and that interpretations that would render the exercise of public power irrational must be rejected, drawing on Pharmaceutical Manufacturers Association of SA and Another: In re Ex Parte President of the Republic of South Africa and Others 2000 (2) SA 674 (CC).

It recognised that a rationality threshold is a minimum constitutional requirement for the exercise of public power and that regulatory schemes should be reasonably clear and precise so that those affected can understand what is required of them, reflecting the approach in Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others: In re Hyundai Motor Distributors (Pty) Ltd and Others v Smit 2001 (1) SA 545 (CC).

It applied the principle of subsidiarity, holding that where PAJA applies to administrative action, litigants should ordinarily ground review proceedings in PAJA rather than relying directly on constitutional provisions or the principle of legality, treating legality as a residual “safety-net” only when PAJA is inapplicable, consistent with the line of authority including Minister of Health and Another NO v New Clicks South Africa (Pty) Ltd and Others (Treatment Action Campaign and Another as Amici Curiae) 2006 (2) SA 311 (CC) and State Information Technology Agency SOC Ltd v Gijima Holdings (Pty) Ltd 2017 (2) SA 63 (SCA); (641/25) [2016] ZASCA 143.

Croplife South Africa NPC v Minister of Agriculture and Another (2025/248918) [2026] ZAGPPHC 52 (26 January 2026)