THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 1031/2024
In the matter between:
THE REGISTRAR OF ANIMAL IMPROVEMENT APPELLANT
and
THE CHIANINA CATTLE BREEDERS’
SOCIETY OF SOUTH AFRICA FIRST RESPONDENT
THE MINISTER OF AGRICULTURE, LAND REFORM
AND RURAL DEVELOPMENT SECOND RESPONDENT
ADVOCATE TSHIFHIWA TSHITEREKE N O THIRD RESPONDENT
MR P M MOLAPO N O FOURTH RESPONDENT
DR L E MATJUDA FIFTH RESPONDENT
Neutral citation: The Registrar of Animal Improvement v The Chianina Cattle
Breeders’ Society of South Africa and Others (1031/2024) [2026]
ZASCA 117 (9 September 2026)
Coram: NICHOLLS, MBATHA, UNTERHALTER and BAARTMAN JJA
and NORMAN AJA
2
Heard: 08 May 2026
Delivered: 9 September 2026
Summary: Animal Improvement Act 62 of 1998 (the Act) – Promotion of
Administrative Justice Act 3 of 2000 (PAJA) – whether the high court was correct in
granting declaratory relief and an order of substitution in a review application relating
to the registration of the first respondent as an animal breeders’ society under the Act
– whether the first respondent was obliged to exhaust the internal appeal process
provided for in s 23 of the Act before approaching the court – whether it was entitled
to rely on PAJA without seeking exemption under s 7(2) of the Act – whether the Act
confers a specialist, discretionary power on the Registrar.
3
ORDER
On appeal from: Gauteng Division of the High Court, Pretoria (Jacobs AJ sitting as
court of first instance):
The appeal is dismissed with costs.
JUDGMENT
Nicholls JA (Mbatha, Unterhalter and Baartman JJA concurring):
Introduction
[1] This appeal concerns the registration in South Africa of an ancient Italian breed
of cattle known as Chianina, specifically the registration of the Chianina Breeders’
Society. On 16 February 2024, the Gauteng Division of the High Court, Pretoria (the
high court) ordered the Registrar of Animal Improvement (the Registrar) to register the
Chianina Cattle Breeders’ Society (the Breeders’ Society) as an animal breeders’
society in terms of the Animal Improvement Act 62 of 1998 (the Act). The central issue
is whether the high court was correct to grant an order of substitution or whether, by
doing so, it usurped the powers of the Registrar.
[2] The Registrar appeals the high court decision with the leave of this Court. The
second respondent is the Minister of Agriculture, Land Reform and Rural Development
(the Minister). The third to fifth respondents are cited in their capacity as members of
the Chianina Appeal Board (the Appeal Board) appointed by the Director General of
the Department of Agriculture. The third respondent is Mr Tshifhiwa Tshitereke,
chairperson of the Appeal Board and a practising advocate; the fourth respondent is
Mr Molapo, a businessman and the fifth respondent is Dr Matjuda, a veterinarian with
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expertise in the field of animal improvement. No relief is sought against these three
respondents, except in the event of opposition.
[3] The first issue to be dealt with is the Registrar’s application for condonation for
the late filing of his heads of argument and the re-instatement of the appeal. Although
the State Attorney, Pretoria alerted the State Attorney, Bloemfontein that the heads of
argument had to be filed by 28 April 2025, it was only on 26 September 2025 that they
were filed. As was pointed out by the Breeders’ Society, they were filed five months
late with no adequate explanation. The reasons provided were vague and
contradictory: the State Attorney, Pretoria was on leave; she was in court attending to
another matter; there were no photocopiers available; she was involved in the
shortlisting of procurement panels; she was sick for a week, to name but some. This
hardly justifies the assertion of the State Attorney, Bloemfontein that ‘the delay was
caused by a series of events outside the Applicant’s control but is reasonable and
should be accepted by this Honourable Court’. However, despite the serial failures of
the State Attorney, this matter has dragged on for far too long and it is the interest of
justice that the delay be condoned so that the merits can be addressed and the matter
finally resolved. This should not be understood as encouragement of professional
laxity. Condonation is granted and the appeal is re -instated, with costs to be paid by
the Registrar, as tendered.
[4] Registration under the Act ensures the breeding, identification and utilisation of
genetically superior animals to improve their performance and production.1 An ‘animal’
is defined as ‘a kind of animal or an animal of a specified breed of such kind of animal
which has in terms of section 2 been declared as an animal for the purposes of this
Act’.2 A ‘breed’ ‘means a population of animals which produces progeny possessing a
Act’.2 A ‘breed’ ‘means a population of animals which produces progeny possessing a
high degree of genetic stability as evidenced by identifiable uniformity in breed
standards and performance’.3 When animals are declared to be a breed, s 2 of the Act
1 The preamble of the Animal Improvement Act reads: ‘to provide for the breeding, identification and
utilisation of genetically superior animals in order to improve the production and performance of animals
in the interest of the Republic; and to provide for matters connected therewith’.
2 Section 1 of the Animal Improvement Act.
3 Section 1 of the Animal Improvement Act.
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is applicable, and the breed is closely regulated and monitored. Section 2 provides
that the Act shall apply to any animal or breed of animal as gazetted by the Minister,
on request. In respect of foreign breeds the Minister is obliged to consider international
law and comments of interested parties.
[5] A ‘stud book animal’ is one recorded in the herd book kept by the registering
authority.4 The Stud Book and Livestock Improvement Association (the Stud Book) is
the registering authority which performs the role of a breeders’ society until the
applicable breeders’ society is recognised. 5 An animal breeders’ society promotes a
specific breed and records and registers animals of that breed. It promotes the genetic
improvement of the animal and applies breed standards.
[6] The definition of an animal breeders’ society is ‘a group of persons promoting
the breeding, the recording or registration, the genetic improvement and the use of a
kind of animal or an animal of a specified breed of such kind of animal, determining
and applying breed standards, recommending in its sole discretion the recording or
registration of an animal or a specified breed of a kind of animal bred in or imported
into the Republic, and who is registered in terms of section 8(7)(a)(i)’.
[7] Section 7 sets out the requirements for registration, as a semen collector, while
s 11 sets out the requirements for registration as an animal breeders’ society . It
provides that a group of people may be registered as an animal breeders’ society if
an animal has been declared as such in terms of s 2 , no breeders’ society exists for
that animal and it has a compliant constitution.6
[8] The Act confers upon the Registrar discretionary powers by virtue of s 4(1) and
4(2). In terms of s 4(1) it provides that ‘any discretionary power conferred on the
registrar in terms of this Act, other than those conferred by section 16 or 17, shall not
be exercised by him or her to the prejudice of any applicant or any other person who
be exercised by him or her to the prejudice of any applicant or any other person who
4 Section 1 of the Animal Improvement Act.
5 Section 29 (3) of the Animal Improvement Act.
6 Section 11(1) (a)–(d) of the Animal Improvement Act.
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appears to the registrar to be an interested party, without giving such applicant or such
other person an opportunity to be heard within such period as may be prescribed or,
if no period has been prescribed, within such reasonable period as the registrar m ay
determine’. The Registrar is given the power to extend such period either before or
after its expiry.
Background
[9] The presence of the Chianina breed in South Africa has a long history. The
breed is reportedly one of the oldest pure breeds in the world, originating in Italy and
recorded as far back as Roman times. It has several attributes that make it ideal to
cross with locally adapted breeds. It is docile , very fertile and its carcass yields lean
meat substantially above the industry norm. It has been registered in Namibia since
2018.7
[10] The Chianina Breed was recognised under the Livestock Improvement Act 25
of 1977 (the Livestock Act), the precursor to the present Act. In 2001, Mr Christiaan
Daniel de Jager (Mr De Jager), a Chianina breeder, obtained a permit from the former
Registrar to import 120 Chianina embryos. When the draft regulations were published
before the promulgation of the present Act, Chianina was recognised under the
heading ‘Breed of Animals’ under the subcategory of ‘Cattle’. When the new Act came
into operation on 21 N ovember 2003, the Chianina breed was included in Table 7
annexed to the regulations which were promulgated by the Minister in the Government
Gazette.8 All stud animals kept the status that they had under the Livestock Act.
[11] On 12 September 2006, the present Registrar also approved Mr De Jager’s
application for the importation of 250 straws of semen and 27 embryos of Chianina
bulls and cows, respectively. The deponent to the founding affidavit in this matter, Mr
Jan Gerhardus Klopper, a Chianina cattle farmer and Deputy President of the Chianina
Society, states that after having participated in Phase C testing at the Department’s
Society, states that after having participated in Phase C testing at the Department’s
7 Chianina Cattle Breeders’ Society of Namibia.
8 Animal Improvement Regulations GN 25732, GG 461, 21 November 2003.
7
Agricultural Research Council (ARC), the Registrar registered two Chianina bulls as
semen donors with over 10 000 doses of bulls’ semen having being sold in South
Africa.
[12] On 25 May 2007, the Minister amended the regulations, 9 but inadvertently
omitted any reference to the Chianina breed and various other breeds of cattle. It is
agreed by all parties that this was an oversight on the part of the Minister. Nothing was
done to rectify this error.
[13] On 11 July 2007, Mr Charl Hunlun of the South African Stud Book advised the
Registrar of a number of mistakes in the regulations under the heading of ‘Cattle
Breeders’. He noted that ‘The following breeds, for which transactions had been
effected for some time on INTERGIS do not appear in the tables: Tuli; Charbray;
Chianina; Salers; Wagyu.’ The Integrated Registration and Genetic Information
system (INTERGIS) is a computer system which stores all pedigreed animals, the
prefixes and suffixes and individual records of registered animals, as well as details of
the stud and the breeder’s name. A response from the Registrar a week later indicated
that they ‘were still working on the new list of breeds to be declared plus re -instate
those breeds that we inadvertently omitted in the previous publication…’.
[14] Eighteen months after the 2007 regulations, in October 2009, the Minister
instead of amending Table 7 referring to declared animals, amended Table 1 dealing
with fees and inserted declared animals on this table. While Wagyu and Tuli were
reinstated, no reference was made to the Chianina breed.
[15] In 2012, applications were made by Keman Beleggings CC (Keman) and by Mr
De Jager for permits to import Chianina semen straws and embryos from Italy. Keman
was in the business of farming stud Chianina cattle. The Registrar, on 20 August 2012,
approved the application of Mr De Jager to import 78 frozen embryos. However, the
application by Keman was refused in October 2012 on the basis that the Chianina
application by Keman was refused in October 2012 on the basis that the Chianina
9 Animal Improvement Regulations, GN 29840, GG 503, 25 May 2007.
8
breed was removed from the table of recognised breeds in South Africa. This was
despite the fact that the Registrar had declared two Chianina bulls as official artificial
insemination bulls for the selling of semen straws to any interested persons in South
Africa, during 2007.
[16] This prompted Keman to approach the high court for a declarator that the Act
is applicable to the Chianina breed. Murphy J made the following order of court, dated
24 February 2014, by agreement between Keman and the Registrar:
‘1. The exclusion of the Chianina breed from table 7(b) annexed to the Regulations published
in terms of Section 2 of Act 62 of 1998 as contained in Government Notice R935 dated 2
October 2009 is hereby declared invalid and set aside.
2. The decision of the [Registrar] to refuse the Appellant’s application for an official permit to
import semen and embryos of Chianina is declared invalid and set aside…’
3. The matter is referred to the [Minister] to consider whether the removal of the Chianina
breed as an animal or breed of animals should be reversed.
4. The [Minister] is ordered to reach a decision within a period of 6 months from 24 February
2014.
5. That each party is to pay its own costs’.
[17] Notwithstanding the court order’s express declaration that the Registrar’s
refusal to allow Keman to import semen straws and embryos of Chianina was invalid
and set aside, in October 2017, Keman’s application for an import permit was again
refused. The reason given for this was that ‘Chianina is not recognised as a breed in
terms of the Animal Improvement Act (Act 62 of 1998)’.
[18] This refusal was taken on appeal by Keman. Despite delays occasioned
primarily by the Registrar, a decision by the relevant internal appeal board at that time,
was made on the 8 October 2018. The appeal board found that ‘the Chianina breed
was a listed bre ed as at the date of the application…and a recognised breed under
the Animal Improvement Act’ and that the Registrar had ‘misdirected himself and
the Animal Improvement Act’ and that the Registrar had ‘misdirected himself and
erred’ in finding to the contrary. It held that it was common cause that before October
2009 the Chianina bree d was listed under the Act and that on the Minister’s and
9
Registrar’s own version, the removal of the Chianina breed was a procedural flaw.
Further, the effect of Murphy J’s order was to re -instate the breed. The appeal board
in that matter was of the view that it was not within its remit to grant a permit as thi s
was a power specifically reserved for the Registrar. It thus set aside the Registrar’s
decision of 30 October 2017 and remitted the issue of the permit back to the Registrar
to be reconsidered on the basis that the Chianina breed is a listed breed under the
Act.
[19] Once again on 26 November 2018, the Registrar refused Keman’s import
application and indicated that an impact study assessment was currently being
undertaken, and the application for a breeders’ association would only be considered
once the assessment was complete. The Registrar stated that South Africa did not
have an agreed veterinary import protocol with Italy for the import of bovine embryos
from Italy to South Africa and the two countries were in discussions. Italy had
apparently disclosed the existence of a genetic defect in the Chianina breed. The issue
of the defect was never alluded to again.
[20] On 17 May 2019, the Minister finally restored the status of the Chianina breed
by publishing ‘regulations relating to amendment of table 7 of the regulations’. 10
Chianina was included in the additional list to Table 7 under ‘locally adapted and
regularly introduced breeds’
[21] While Keman was making its various applications for import permits, the
Breeders’ Society was attempting to get recognised as a breeders’ society in terms of
the Act. It applied on three occasions to be registered as a breeders’ society. In order
to be registered various requirements have to be met as contemplated under s 11 of
the Act which provides:
‘11 Animal breeders’ society
(1) A group of persons may be registered as an animal breeders' society if-
(a) the kind of animal or a specified breed of such kind of animal with which such a group of
10 Animal Improvement Regulations, GN 42464, GG 647,17 May 2019.
10
persons is concerned, has been declared in terms of section 2 to be an animal for the purpose
of this Act;
(b) no other such registration has been granted in respect of an animal breeders' society which
is concerned with the same breed of such kind of animal;
(c) the constitution of such group of persons specifically provides-
(i) for the promoting, breeding, recording or registration, genetic improvement and use of
a kind of animal or an animal of a specified breed of such kind of animal;
(ii) for the determination and the application of breed standards, and for the
recommendation, in its sole discretion, to a registering authority of the recording or the
registration of an animal or of a specified breed bred or imported into the Republic;
(iii) for the continued commitment to animal improvement;
[…]’.
[22] The Breeders’ Society made its first application in 2014. No decision was made
in respect of the first application and it seems this application was not pursued. In
October 2018, in light of the order of Murphy J in February 2014 as well as the Appeal
Board decision in the Keman matter in October 2018, another application was made
to the Registrar to approve the Breeders’ Society registration. The Registrar
responded on 26 November 2018 in the same letter in which the Registrar refused
Keman’s import permit . He stated that he could not approve the registration as an
impact assessment study was being undertaken. It was therefore premature for the
Registrar to consider the application for a Breeders’ Society until the impact study was
complete. All the more re ason, said the Registrar, because Chianina was a foreign
animal.
[23] The third, and final, application for registration was sent on 27 May 2019,
approximately two weeks after the Minister had amended the regulations to include
Chianina in Table 7 of the Regulations. No response to this application was
forthcoming. The Breeders’ Society sent reminders to the Registrar on 30 September
forthcoming. The Breeders’ Society sent reminders to the Registrar on 30 September
2019, 31 October 2019, and 1 November 2019, requesting a reply. The response of
the Registrar, dated 6 November 2019, merely stated that the Registrar was applying
his mind and in the process of making a decision.
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[24] When no response had been received by 25 March 2020, the Breeders’ Society
served its notice of appeal in terms of s 23(1) 11 of the Act on the Registrar’s office in
which it sought an order directing the Registrar to register the applicant as a breeders’
society. This was premised on the Registrar’s failure to decide whether to register the
Breeders’ Society. The notice of appeal elicited the response that the Registrar would
revert at the end of the 2020 Coronavirus Disease lockdown. Very little transpired over
the next couple of years, apparently as a result of the lockdown.
[25] Two years later, on 4 April 2022, the Minister appointed the third, fourth and
fifth respondents as members of the Chianina Appeal Board. It is apt to tabulate the
various attempts the attorneys of the Breeder’s Society made to get the appeal under
way:
‘(i) On 10 May 2022 they addressed a letter to the Chairperson of the Appeal Board, the
State Attorney and the Registrar stating that in terms of s 23(10) of the Act, the Appeal Board
was obliged to deliver judgment within 90 days of its appointment, namely before 4 July 2022.
They requested Board directives and pointed out that in the two years since they had served
their notice of appeal, no opposition had been received.
(ii) On 12 May 2022, an electronic copy of the appeal documentation was sent to the fourth
respondent, Mr Molapo.
(iii) On 13 May 2022, a hard copy of the appeal documentation, was served on the
Chairperson of the Appeal Board.
(iv) On 19 May 2022, Chairperson of the Appeal Board (the Chairperson) telephonically
informed the attorney of the Breeder’s Society, that the directives had been sent to the State
Attorney three weeks ago. Thereafter a directive was issued on the same day, dir ecting the
Breeders’ Society to file and serve its founding papers within 20 days and the Registrar its
11 Section 23 sets out the appeal procedure and the powers of the appeal board. Section 23 provides
that:
‘Appeals
…
that:
‘Appeals
…
(10) An appeal board-
(a) shall within 90 days of its appointment in terms of subsection (1) come to a decision;
(b) may confirm, set aside or amend the decision or direction concerned which is the subject of
the appeal; and
(c) may make such order in connection therewith as it may deem fit.’
12
defence within 20 days on receipt of the founding papers.
(v) On 25 May 2022, the Breeders’ Society’s attorneys advised the members of the Appeal
Board and the Registrar that the notice of appeal constituted its founding papers. In the same
letter a request was made that the Chairperson consider abridging the time limits by requiring
the Registrar to file by 2 June 2022 with their reply by 7 June 2022, in order to ensure that a
decision could be made within the prescribed 90 days.
(vi) On 26 May 2022, the state attorney, requested the Breeders Society’s attorneys to file
their papers as per the directive. (It should be noted that hard copy of the notice of appeal and
supporting documents had been delivered to the State Attorney on 25 March 2020, more than
two years prior.) An electronic copy of the documentation had also been delivered on 25 May
2022, the day before.
(vii) On 30 May 2022, a hard copy of the appeal documents was again served on the State
Attorney.
(viii) On 1 June 2022, the Breeders Society’s attorneys sent an email to the State Attorney
confirming that the hard copies and been delivered and asking who she represented as no
one had come on record from the State Attorney’s office. The email was copied to all the
parties and attached to it was an electronic copy of the index and paginated papers.
(ix) On 9 June 2022, the appeal bundle was served on the State Attorney and she was
requested to come on record to indicate who she represented.
(x) On 22 June 2022, the Breeders Society’s attorneys again alerted the Chairperson that
no opposing papers had been served within the time frame of the directive. The chairperson
was asked to urgently convene a session of the Appeal Board and provide a date, time and
venue of the appeal.
(xi) On 27 June 2022, a week later, the Chairperson of the Appeal Board issued a directive
that the appeal would be heard on 29 June 2022 at his chambers in Sandton.
(xii) On 29 June 2022, the Appeal Board did not proceed but instead the Chairperson
(xii) On 29 June 2022, the Appeal Board did not proceed but instead the Chairperson
interviewed the parties on his own. Mr Shangisa who appeared for the Registrar stated the
Registrar was unwell and due to the death of Mr Dukada, the previous counsel for the Registrar
(whose death had taken place during February 2022), the Registrar was not in a position to
proceed. But, added Mr Shangisa, the Registrar intended filing ‘something as soon as
possible’. After discussion the parties agreed to truncated time periods with the appeal to be
heard on 2 July 2022. The Chairperson said he would confirm this with other members of the
Appeal Board.
(xiii) Upon resumption of the meeting the Chairperson informed the parties that the other
13
two board members were not available on such short notice. The view was that the Registrar
should be afforded an opportunity to be heard and therefore the parties should agree to
reasonable time periods and liaise with the Minister to appoint another appeal board.
(xiv) On 30 June 2022, the Chairperson issued a ‘written ruling’ removing the matter from
the roll and setting out what had transpired on the 29 June 2022. He stated that while he
sympathised with the appellants regarding the delay, he could not close the door o n the
Registrar who ‘had signalled its intention to participate in the appeal proceedings.’
[26] None of the above is disputed. Having been unable to procure a hearing of the
Appeal Board, the Breeders’ Society approached the high court for judicial review
under s 6(2)(g) and 6(3)(a)12 of the Promotion of Administrative Justice Act 3 of 2000
(PAJA). These sections provide for judicial review where an administrator has failed
to make a decision.
[27] The Breeders’ Society sought the following relief:
(i) The approval of application of the Breeders’ Society to be registered as an
animal breeders’ society;
(ii) That the Breeders’ Society be issued with a registration certificate within five
days;
(iii) That the Breeders’ Society’s particulars be recorded in the register and this be
gazetted
(iv) That the Registrar of Companies be notified so as to record the name of the
Breeders’ Society as an animal breeders’ society in the register of companies
as provided for in terms of s 7(8)(c) of the Act;
(v) Costs against the Registrar on an attorney client scale with no cost sought
12 Section 6 of PAJA provides that:
‘Judicial review of administrative action
…
(3) If any person relies on the ground of review referred to in subsection (2) (g), he or she may in
respect of a failure to take a decision, where-
(a) (i) an administrator has a duty to take a decision;
(ii) there is no law that prescribes a period within which the administrator is required to take that
decision; and
the administrator has failed to take that decision, institute proceedings in a court or tribunal for judicial
review of the failure to take the decision on the ground that there has been unreasonable delay in
taking the decision;or’.
14
against the other respondents except in the event of opposition.’
The high court granted the order in its totality but did not grant punitive costs against
the Registrar. It is this judgment and order which is on appeal before this Court.
In this Court
[28] The Registrar raised several defences in his heads of argument. In the main,
these relate to whether a judicial review was permissible in these circumstances. He
contends that s 23 of the Act provides for internal remedies and the Breeders’ Society
impermissibly abandoned the appeal process set out in s 23 by refusing to participate
further. An internal appeal process must be followed to finality, unless a court exempts
a party from exhausting internal remedies prior to litigation. In addition, argued the
Registrar, the high court misconceived the discretionary powers of the Registrar when
it held that the registration of a society does not require any specialised skill. A
declarator and order of substitution was inappropriate and usurped the statutory
powers of the Registrar.
[29] On the merits of whether the Breeders’ Society should have been registered,
the Registrar’s argument is twofold. First, it was premature to register the Breeders’
Society until an impact study assessment had been finalised, and second, that the
Chianina breed was not registered on the INTERGIS system.
[30] The latter submission is puzzling in view of the fact that Chianina had been
registered as an ‘animal’ on the INTERGIS system since 1998. This fact was confirmed
by Mr Jacob van der Westhuizen (Mr van der Westhuizen), the general manager of
the South African Stud Book (the Stud Book) and Animal Improvement Association, in
his affidavit dated 4 May 2023. Mr van der Westhuizen’s duties from June 1997 to
November 2004 were to establish and implement the INTERGIS system. From
November 2004 to January 2009 his j ob description was Team Leader: Animal
Recording and Improvement and Manager of the INTERGIS. Documentary proof of
Recording and Improvement and Manager of the INTERGIS. Documentary proof of
the Chianina breed’s registration on the system was attached to his affidavit.
15
[31] This notwithstanding, the Registrar pursued the defence of non-registration on
INTERGIS right up until the hearing, despite irrefutable proof to the contrary. There
can be no doubt that the Registrar was aware of this information, if not immediately,
then over the years. But he apparently thought fit to state this as a ground of appeal
and advance it in his heads of argument. To persist with a defence knowing it to be
false, is something that this Court considers grave conduct. It is an abuse of process.
Counsel for the Registrar correctly conceded that this defence was unsustainable and
relied only on the absence of an impact assessment study.
[32] Regarding the lack of an impact study, the Registrar declined to consider the
Breeders’ Society’s second application until the environmental impact study was
complete. In his letter dated 26 November 2018, already referred to, the Registrar
said, ‘at prese nt an impact study assessment is currently being undertaken and it
would be premature to approve breed standards at this stage’. In his answering
affidavit in this appeal, the Registrar stated that where an animal is not recorded on
the INTERGIS system, a breeders’ society cannot be approved. The reasoning
appears to be that because there was no recordal on INTERGIS, there was no impact
assessment study done, and thus no locally approved standards of the Chianina
breed. To date, there is no indication of the progress, if any, of the impact assessment
study.
[33] Once again this is a factually incorrect assertion. Chianina has been registered
on the INTERGIS system since 1998, with the applicable breeding standards. The
unique computer system records pedigrees, individual records of registered animals,
the prefixes and suffixes, and the particulars of the stud and breeders’ names. Since
2017 the INTERGIS system has been in the sole control of ARC and since 3 April
2019, the ARC has had all the details of the Chianina breed to update on the system.
2019, the ARC has had all the details of the Chianina breed to update on the system.
These updates take place annually. In the absence of a breeders’ society, the Stud
Book acts as the registering authority and registered Chianina and their pure -bred
offspring.
16
[34] Mr van der Westhuizen explained that the Stud Book, in consultation with
Chianina breeders, determines the application of the breeding standards. Due to the
fact that the Chianina is a 2000 year old pure -bred animal, the breeding standards of
the country of origin, Italy, were used. The relevant breeding standards are annexed
to his affidavit. He also states that no impact studies are required where a breed has
already been recognised as such in terms of the Act.
[35] The Registrar criticises the Breeders’ Society for referring to breed standards
originating from Italy. The impact assessment study, says the Registrar, is applied to
breeds which are not indigenous to South Africa to evaluate whether they would add
value and their impact on the South African environment, in line with s 24 of the
Constitution which seeks to protect the environment.
[36] It is hard to fathom what effect an impact assessment study could possibly have
on the breeding standards or what the value of it would be some 28 years after the
Chianina breed was first registered on the INTERGIS system, and after it had been
registered as an animal. The breed is already in the country and the Italian breeding
standards have been accepted for decades. If, for example, the study were now to find
that the Chianina breed was environmentally unsound because it drank too much
water, this is an issue that should have been addressed before it was registered as an
animal in the Livestock Act. An impact assessment study is not a requirement to
register a breeder’s society.
Was the Breeders’ Society obliged to exhaust internal remedies
[37] The Registrar contends that the Breeders’ Society cannot refuse to participate
in an internal appeal process envisaged by s 23 of the Act, while simultaneously
invoking PAJA, an exemption would first have to be sought. Further, submits the
Registrar, a new appeal board was constituted to hear the appeal, but the Breeders’
Society had refused to attend.
Society had refused to attend.
[38] There can be no doubt that PAJA requires a party to exhaust all internal
17
remedies before resorting to litigation. 13 The internal mechanisms of administrative
bodies are designed to be speedy and cost -effective. Approaching a court for relief
before the administrative body is given the opportunity to decide the matter under its
appellate process is subversive of what th e legislature requires, in a standard case.
This Court has held that to insist on exhausting internal remedies first, is not merely a
technical requirement. A person seeking an exemption from this, must show that there
are exceptional circumstances and it is in the interests of justice to grant an
exemption.14
[39] However, the duty to exhaust internal remedies should not be rigidly imposed
or be used by administrators to frustrate the aggrieved litigant and shield the
administrative process from judicial scrutiny. 15 The Constitutional Court has held that
the requirement to exhaust internal remedies is not absolute, and where to pursue an
internal remedy would be futile or ineffective, PAJA permits an aggrieved party to
approach the courts directly, upon a showing of exceptional circumstances that justify
the failure to exhaust internal remedies. 16 The internal remedy must be capable of
providing effective redress for the complaint. If it does not, the required threshold of
exceptional circumstances is met. 17 The question is whether the administrator, the
Registrar, has conducted himself in such a manner so as to frustrate the Breeders’
Society and render the internal remedy futile and ineffective.
13 Section 7 of PAJA provides that:
‘Procedure for judicial review
…
2(a) Subject to paragraph (c), no court or tribunal shall review an administrative action in terms of this
Act unless any internal remedy provided for in any other law has first been exhausted.
(b) Subject to paragraph (c), a court or tribunal must, if it is not satisfied that any internal remedy
referred to in paragraph (a) has been exhausted, direct that the person concerned must first exhaust
such remedy before instituting proceedings in a court or tribunal for judicial review in terms of this Act.
(c) A court or tribunal may, in exceptional circumstances and on application by the person concerned,
exempt such person from the obligation to exhaust any internal remedy if the court or tribunal deems it
in the interest of justice.
14 Pine Glow Investments (Pty) Ltd v Minister of Energy and Others [2025] ZASCA 75; [2025] 3 All SA
314 (SCA); 2025 (6) SA 474 (SCA) para 61.
15 Koyabe and Others v Minister for Home Affairs and Others (Lawyers for Human Rights as Amicus
Curiae) [2009] ZACC 23; 2009 (12) BCLR 1192 (CC); 2010 (4) SA 327 (CC) para 38 (Koyabe).
16 Ibid para 38.
17 Nichol and Another v Registrar of Pension Funds and Others [2005] ZASCA 97; 2008 (1) SA 383
(SCA) para 18.
18
[40] The Breeders’ Society utilised the internal remedy available to them and lodged
an appeal in terms of s 23(1) of the Act on 25 March 2022. This was after no response
was forthcoming in respect of the third application they had lodged almost three years
earlier on 27 May 2019. The attorneys of the Breeders’ Society did their utmost to
ensure that the internal appeal was heard within the 90 day period prescribed by the
Act, once members of the Appeal Board were appointed. They were met with a
resounding silen ce. To now suggest that an internal remedy is available to the
Breeders’ Society because the Director General has appointed a new appeal board in
August 2023 does not withstand scrutiny. By that date, the Breeders’ Society had
launched their present application. The newly constituted appeal board’s term would
have expired after 90 days. Only two members were appointed to the appeal board,
when three are required by the Act. 18 Even more importantly, based on past
experience, there is no guarantee that any new appeal board would complete their
mandate in the required 90 day period. This would result in further delays of a matter
that has taken 12 years since the first application was launched in 2014.
[41] In my view, having been confronted with obfuscation and dilatoriness, the
Breeders’ Society was well within their rights to approach the high court for a decision
which, the administrative functionaries appeared either unable or unwilling to make. In
view of the 12 year delay from the time the first application was made in 2014, the
internal remedy cannot be considered to be effective redress. Failure to make an
application for an exception under s 7 of PAJA does not disqualify the courts from
entertaining the matter, where exceptional circumstances exist and it is in the interests
of justice to do so. 19 Here the facts make it plain that exceptional circumstances do
exist. Indeed, it is hard to imagine a case that might more readily constitute exceptional
circumstances.
circumstances.
Was an order of substitution warranted?
[42] PAJA permits a court to grant any order that is just and equitable, including, in
18 Section 23(3)(a) and (b) of the Animal Improvement Act.
19 Koyabe para 73.
19
exceptional circumstances, an order to substitute or vary an administrator’s decision.20
Our courts have acknowledged that this is an exceptional remedy and the default
position should be remittal to an administrative body. 21 The power to substitute must
be exercised with circumspection and in accordance with the requisite degree of
judicial deference to constitutionally-ordained administrative bodies.22
[43] The Registrar complains that the order of substitution amounts to usurpation of
the powers vested in him as a specialist functionary. He is the custodian of the Act and
oversees its implementation which is to ‘provide for the breeding, identification and
utilisation of genetically superior animals in order to improve the production and
performance of animals in the interests of the Republic; and to provide for matters
connected therewith’.23 He contends that the evidence before court was that an impact
study assessment into the animal was necessary in order to preserve the environment.
[44] The Constitutional Court in Trencon Construction24 and this Court in Makhanya
N O v Goede Wellington Boerdery (Pty) Ltd25 stated the factors to be considered when
determining whether a substitution order is justified. The first is whether the court is in
as good a position as the administrative authority to make the decision. The second is
whether the end result will be a fo regone conclusion and remittal would be waste of
time. The third is whether the decision maker has exhibited bias or incompetence to
such a degree that it would be unfair to expect the applicant to submit to its jurisdiction.
Finally, the further considera tion is whether a further delay will cause unjustifiable
prejudice to the applicant.26 All these factors are of application in this matter.
20 See s 8(1) (c)(ii)(aa) of PAJA provides that: ‘substituting or varying the administrative action or
correcting a defect resulting from the administrative action; or’.
correcting a defect resulting from the administrative action; or’.
21 Trencon Construction (Pty) Ltd v Industrial Development Corporation of South Africa Limited and
Another [2015] ZACC 22; 2015 (5) SA 245 (CC); 2015 (10) BCLR 1199 (CC) para 42 (Trencon
Construction).
22 Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs Tourism and Others [2004] ZACC 15;
2004 (4) SA 490 (CC); 2004 (7) BCLR 687 (CC) para 47.
23 Preamble of the Animal Improvement Act.
24 Trencon Construction para 40.
25 Makhanya N O v Goede Wellington Boerdery (Pty) Ltd [2012] ZASCA 205; [2013] 1 All SA 526 (SCA);
2012 JDR 2323 (SCA) para 42.
26 Trencon Construction paras 51-59.
20
[45] Whether the court is in as good a position as the administrative decision-maker
often depends on the extent of specialised knowledge and expertise required to make
the decision. The Registrar relies on s 8(2) of the Act which provides that the Registrar
determines the form and the prescribed manner in which the application for registration
of a breeders’ society should be submitted. He contends that this affords him the
discretion to require an impact study assessment before registration can be approved.
As the Breeders’ Society has failed to conduct such a study it does not qualify to be
registered because breed standards cannot be formulated without one.
[46] This is another factual inaccuracy. As pointed out above there are breed
standards which have been registered on the INTERGIS system. If the Registrar is of
the view that the breed standards are insufficient, in terms of s 16(3) (c) of the Act, he
can request the Breeders’ Society for an evaluation and recommendation.27 At present
the Stud Book is the registering authority with the breeding standards, and has been
since the Chianina was first registered as an ‘animal’. The Registrar has not raised
any concerns with them regarding inadequate breeding standards.
[47] What the Registrar fails to comprehend is that he has taken no decision on any
of the three applications for registration for a breeders’ society since the first
application in 2014. Therefore, no reasons have been provided for his decision. The
Registrar seems to conflate the requirements for registration of an ‘animal’ with those
of a breeders’ society. Breeding standards are required for the registration of an
animal, but not for the registration of a breeders’ society.
[48] Based on the evidence, the decision is indeed a foregone conclusion. Once an
animal has been registered, which requires specialised knowledge, no scientific
expertise is required for the purposes of registering a breeders’ society. Section 11 of
expertise is required for the purposes of registering a breeders’ society. Section 11 of
the Act which has been quoted above sets out the requirements for the registration of
27 Section 16(3)(c) of the Animal Improvement Act provides as follows: ‘If the registrar is of the opinion
that the breed standards are not consistent with a provision of this Act or that it is undesirable for some
or other reason, he or she may refer such standards to the a nimal breeders' society concerned with a
written request to make a recommendation thereon on the grounds set out in the request’ .
21
a breeders’ society. To reiterate, these include that the animal has been declared to
be an animal under s 2 of the Act; no registration for a breeders’ society of same breed
exists; and, the constitution of the breeders’ society contains certain provisions. These
are to specifically provide for promoting the breed and ensuring genetic improvement,
to determine and apply breed standards, and for the continued commitment to animal
improvement.
[49] The Registrar has not suggested that the Constitution is lacking in any way nor
that there is a breeders’ society previously registered for the Chianina breed. Instead,
the Registrar relies solely on the lack of an impact assessment study which is not a
requirement for the registration of a breeders’ society. He states that because there
were no local breeding standards, the Chianina was not recorded on INTERGIS and
therefore he could not approve the application to be registered as an animal breeder’s
society. As has been shown this is factually incorrect.
[50] From the facts set out above, it is incontrovertible that the Registrar has
exhibited a stubborn refusal, over years, properly to consider the applications before
him. Therefore, it would be unfair to expect the Breeders’ Society to submit to his
jurisdiction again. In the face of court orders, the findings of the internal appeal body
and the amendment of regulations, this ought, at the very least, to have compelled the
Registrar to consider the applications by the Breeders’ Society. Instead, he has
remained obdurate in his refusal to do so.
[51] Aligned to this conduct is the delay which has resulted in considerable prejudice
to the Breeders’ Society. The Chianina were registered as a breed in the old Livestock
Act and have been recorded on the INTERGIS system since 1998. Their omission in
the current Act was an acknowledged error. The first application was brought in 2014,
a second in 2018 and the application which is the subject of this appeal, in 2019,
a second in 2018 and the application which is the subject of this appeal, in 2019,
without a decision ever having been m ade by the Registrar. Even when an internal
appeal was brought as a result of his failure to decide, the Registrar and the other
administrative functionaries made it impossible for the appeal to be heard within the
22
prescribed time limits. The ineluctable conclusion is that the inexplicable and
inexcusable delays were designed to frustrate the registration of the Breeders’ Society.
[52] This case is a manifestation of disgraceful administrative conduct (and a
recurring failure to act), with indifference to time limits and the consequences for the
Breeders’ Society. Fully accepting that courts are loathe to grant orders of substitution,
there are times when the regulatory body is so incompetent and so indifferent to the
effects of its obdurate attitude, that courts are obliged to step in. This is one such case.
Farming is an important industry that employs thousands of people and on whom
South Africa’s food security depends. Courts ask no more than that administrative
functionaries perform the duties entrusted to them. Constant obfuscation and delays
do not serve the country and amount to an abdication of duty.
The second judgment
[53] The judgment of my colleague, Norman JA, (the second judgment) is premised
on what she considers to be fundamental errors of fact and law on my part. The major
criticism seems to be that I misconceived the application as one for the registration of
the Chi anina breed as an animal as opposed to the registration of the Chianina
Breeders’ Society. This is an incorrect characterisation. The reason for the focus on
the registration as an animal is the Registrar’s conflation of the requirements for
registration of an animal with those of an animal breeders’ society.
[54] Scientific expertise is necessary for the registration of the animal, including the
requirement for an impact assessment study. This view seems to have been shared
by the Registrar who se complaint regarding the order of Murphy J was that ‘it was
premature to register the Chianina breed as an animal in the absence and the
conclusion of an impact study into the Breed’. He goes on to say that he nonetheless
complied with the court order because he was ‘advised that an order of court stands
complied with the court order because he was ‘advised that an order of court stands
and must be obeyed whether it is right or wrong.’ However, instead of applying to have
the court order appealed, the Registrar has seen fit to instead transpose the impact
assessment study requirement on the registration of the Breeder’s Society.
23
[55] On whether the internal remedies had been exhausted, the second judgment
finds that the Breeders’ Society abandoned the appeal. I disagree. As stated earlier
and in light of the facts set out above, I am of the view that the Appeal Board did not
fulfill it s administrative duties within the requisite time limit, despite the Breeders’
Society’s best efforts to have the appeal hearing completed within the statutory term
of office of the Appeal Board. My finding is that a further delay would have been
unconscionable and warranted the court’s intervention.
[56] The second judgment holds that the failure to apply for an exception as
envisaged in s 7(2)(a) and (c) of PAJA28 is fatal to the Breeders’ Society’s case. These
sections provide that no court shall review administrative action in terms of PAJA
unless any internal remedy has been exhausted or an application is made, in
exceptional circumstances, to exempt a party fro m this obligation. The second
judgment holds that because the Minister was responsible for the delay by not
correcting his omission to recognise the Chianina breed in the regulations, there is no
justification for my finding of exceptional circumstances an d the concomitant relief
sought against the Registrar.
[57] This position cannot be sustained on the facts. The Regulation was amended
to include the Chianina breed on 17 May 2019. Nevertheless, the Registrar remained
supine. This was five years after the court order of Murphy J specifically set aside, and
declared invalid, the removal of the Chianina breed from the regulations, on 24
February 2014.
[58] The second judgment apparently criticises the veracity of Mr van der
28 Section 7 of PAJA provides that:
‘Procedure for judicial review
…
2(a) Subject to paragraph (c), no court or tribunal shall review an administrative action in terms of this
Act unless any internal remedy provided for in any other law has first been exhausted.
…
Act unless any internal remedy provided for in any other law has first been exhausted.
…
(c) A court or tribunal may, in exceptional circumstances and on application by the person concerned,
exempt such person from the obligation to exhaust any internal remedy if the court or tribunal deems it
in the interest of justice.’
24
Westhuizen’s affidavit on the basis that he does not mention that he gave the Registrar
access to all the data. This is a surprising contention in light of the fact that since the
settlement agreement dated 16 November 2017 between the Department of
Agriculture and the Stud Book, ARC has had the sole right to operate INTEGRIS. It is
unthinkable that the Registrar would not have had access to the Department’s own
data. Mr van der Westhuizen is further criticised for not dealing with the issue at hand,
namely whether the Breeders’ Society has a constitution which deals with breed
standards, and whether it had been issued with the necessary prefixes and suffixes.
This was not his role. Mr Van der Westhuizen pertinently states that he has been asked
to indicate whether the Chianina was registered on the INTERGIS computer system .
This was in response to the Registrar’s assertion that ‘not a single Chianina cattle was
ever recorded in the Integrated Registration and Genetic Information System
‘INTERGIS’ which is the system used by the Department in terms of the Act to record
all animals on its database for the purposes of improvement’. Mr Van der Westhuizen
responded in the affirmative, saying that the breed ha d been registered since 1998
and the unique prefixes and suffixes are stored on the system.
[59] The focus of the second judgment is that I erred by ordering the registration of
the Breeders’ Society when the peremptory requirement s of s 11 were not met. As
such this is said to be a clear case of judicial overreach. Section 11 which has been
quoted above provides that a group of persons can be registered as breeders’ society
where a breed has been declared an animal, there is no other registration as a
breeders’ society for this breed and the constitution specifically provides for the
promotion of the breed, the continued animal improvement and the determination and
application of breed standards.
application of breed standards.
[60] The reliance on s 11 to find that specialised scientific expertise was required for
registration of a breeders’ society is misplaced. Once again this fails to distinguish the
requirements for registration as an animal and those for the registration of the
Breeders’ Society. Section 11(1)(c)29 does nothing more than require the constitution
29 Section 11 of the Animal Improvement Act provides that:
25
of a breeder’s society to provide for the determination and application of breeding
standards in order that a specified breed be registered or imported into South Africa.
In this instance the Chianina breed had been registered as an animal or breed of
animal and had been imported into South Africa for decades. There is no indication
that the Italian breeding standards used at the time for the registration as an animal
did not meet requirements for the African environment. Today the Chianina breed are
imported without restriction into Botswana, Zambia, Mocambique and Namibia, the
latter using Chianina cattle that originated from South Africa.
[61] The point that the second judgment seems to miss is that the cumulative effect
of the delay and incorrect insistence on an impact study for purposes of registering an
animal breeders’ society has resulted in the society being denied an effective internal
remedy. For these reasons, I cannot accept the findings and conclusion reached in
the second judgment.
[62] In my view the appeal falls to be dismissed. Had costs been sought on a
punitive scale, I would have awarded these too.
[63] In the result, the following order is made:
The appeal is dismissed with costs.
C E HEATON NICHOLLS
JUDGE OF APPEAL
‘Animal breeders' society
(1)…
(c) the constitution of such group of persons specifically provides-
(i) for the promoting, breeding, recording or registration, genetic improvement and use of a kind
of animal or an animal of a specified breed of such kind of animal;
(ii) for the determination and the application of breed standards, and for the recommendation, in
its sole discretion, to a registering authority of the recording or the registration of an animal or
of a specified breed bred or imported into the Republic;
(iii) for the continued commitment to animal improvement;
(iv) for the manner in which the constitution may be amended; and.’
26
Norman AJA (dissenting):
[64] I have read the well -reasoned judgment penned by my colleague Nicholls JA
(the first judgment). I am grateful to her for the narration of the facts. I do not agree
with the findings and the orders made in the first judgment. Where I rely on facts that
have not been set out in the first judgment, I shall incorporate those herein for context.
[65] As a starting point, I wish to set out the nature of the appeal. The appeal is
directed against the order of Jacobs AJ, which reads as follows:
‘1. It is hereby declared that the application of The Chianina Cattle Breeders’ Society of South
Africa submitted to the first respondent for its registration as an animal breeders’ society in
terms of Act 62 of 1998 be approved;
2. The first respondent is ordered to, within 10 days from the date of this order:
2.1 register the applicant as an animal breeders’ society in terms of the said legislation and to
issue the applicant with a registration certificate as contemplated by sub-section 8(7)(a)(ii) of
Act 62 of 1998;
2.2 record the applicant’s prescribed particulars in the register kept in terms of
sub-section 8(7)(b) and s 5(1) of Act 62 of 1998; and
2.3 cause notice to be given in the Gazette of the registration of the applicant and to notify the
Registrar of Companies to record the name of the applicant as an animal breeders’ society in
the register as provided for in terms of s 8(7)(c) of Act 62 of 1998.
3. The first respondent shall pay the applicants costs of this application.’
[66] The orders of the high court are directed at the Registrar of Animal
Improvement, who is the appellant herein (the Registrar). This appeal does not relate
to the registration of the Chianina cattle as a breed as found in the first judgment . It
lies against the order declaring the approval of the registration of the Chianina
Breeders’ Society (the Breeders’ Society) as an animal breeders’ society and the
ancillary orders mentioned above.
ancillary orders mentioned above.
[67] It is so that the Registrar relied on PAJA in defending the application . I shall
deal with the preliminary legal objections raised by the Registrar based on PAJA
because they have been addressed in the first judgment. Before doing so, I revert to
the nature of the appeal before us and what it entails. Reference to the order granted
by Murphy J is a relevant starting point.
27
Murphy J’s order
[68] The Keman case, in my view, is only relevant as background facts but not for
the resolution of this appeal. The order of Murphy J is recorded in the first judgment.
Murphy J‘s order related only to the Keman application and no other. I highlight this
because in the first judgment it is stated that ‘[t]his appeal concerns the registration in
South Africa of an ancient Italian breed of cattle known as Chianina , and specifically
the registration of the Chianina Breeders’ Society.’(Emphasis added.) This appeal is,
with respect, not about the registration of the Chianina breed because the high court’s
order before us made no orders relating to the registration of the Chianina breed
because it was not seised with that issue.
[69] Murphy J, referred the matter to the Minister to consider whether the removal
of the Chianina breed as an animal or breed of animals should be reversed. In the first
judgment it is found that the effect of Murphy J’s order was that ‘[o]nce this was so,
the old regulations which included the Chianina breed would have been operative.
There is no reason why the Registrar had to wait for the amendment of the regulations,
particularly as all parties were in agreement that the omission of the Chianina breed
was an error.’
[70] I disagree with the statement for two reasons . First, this statement does not
take into account the referral of the matter back to the Minister , for him or her to
consider whether the removal of the Chianina breed is to be reversed. That order
amounted to the remedy that a court would make after a declaration of invalidity where
it allows the competent authority to consider and or correct the defect as envisaged in
s 172(1)(ii) of the Constitution. Second, without knowing the intention of the parties,
one is left to speculate that the order may have had the effect of suspending the
invalidity order pending the decision of the Minister; or that its operation was delayed
invalidity order pending the decision of the Minister; or that its operation was delayed
until after the expiry of six months that was given to the Minister, or that it was
operative immediately. However, lack of knowledge of the intention of the parties does
not permit an interpretation that ignores the referral order. Both the first judgment and
the high court do not deal with the referral order.
[71] The Constitutional Court stated that ‘[i]n the Supreme Court of Appeal,
Cameron JA in De Kock […] held that “[t]he effect of a declaration of invalidity must
28
rather depend on the terms and context of the order the Court . . . issues”. The order
must be interpreted on the terms and the context of the order together with the
judgment as a whole.’30
[72] Section 12(2)(a) of the Interpretation Act 33 of 1957 provides that repeal does
not ‘revive anything not in force or existing’ when the repeal takes effect, unless a
contrary intention appears. Thus, this indicates that new regulations may need to be
promulgated, unless legislation or a court order expressly preserves or revives the
previous regime.
[73] A court’s remedial powers under s 172(1)( b) flow from a declaration of
constitutional invalidity under s 172(1)(a) of the Constitution, which in and of itself does
not revive the previous regulations. Instead, a court has remedial powers under
s 172(1)(b) to fashion a just and equitable remedy, for example by: (a) suspending the
declaration of invalidity; (b) ordering those existing regulations remain in force for a
specified period; (c) reading words into the regulations (in exceptional circumstances);
or (d) directing the Minister to promulgate fresh regulations. Absent such an order, the
consequence is often a regulatory vacuum.
[74] Again, because that was not the issue before the high court or an issue before
us, it ought not to detain us. It has limited relevance to the consideration of whether
the Registrar is responsible for the delay attributed to him, an issue I turn to below.
The 12-year long delay
[75] The Breeder’s Society accepts that on 25 May 2007, it is the Minister who
inadvertently left out any reference to the Chianina breed and various other breeds
when he was amending the regulations. Again, on 2 October 2009, the Minister,
instead of amending Table 7, amend ed Table 1 dealing with fees. On
24 February 2014, Murphy J granted the order discussed above . The Breeders’
Society filed its first application for registration as a breeders ’ society on
Society filed its first application for registration as a breeders ’ society on
24 October 2014. The Breeders’ Society alleged that it was not possible to apply
earlier due to the inadvertent removal of the Chianina breed from the Act. On
30 Cross-Border Road Transport Agency v Central African Road Services (Pty) Ltd and Another [2015]
ZACC 12; 2015 (5) SA 370 (CC); 2015 (7) BCLR 761 (CC) para 22.
29
8 June 2018, the Breeders’ Society filed its second application for registration.
[76] On 17 May 2019, the Minister published regulations wherein the Chianina breed was
included in Table 7. A period of some 12 years had lapsed from 2007, when the Chianina
breed was inadvertently omitted from the regulations , until it was reinstated (the Minister’s
error). Subsequent thereto and on 27 May 2019, the Breeders’ Society filed a third application
for registration. There are no details given as to why the Breeders’ Society needed to file the
second and third applications and yet rely on the first application on its delay ground.
[77] The Registrar stated under oath that he complied with Murphy J’s order on 4 June
2016. The Minister only published the regulations where the Chianina Breed was included in
Table 7 on 17 May 2019. Among the correspondence directed by the Registrar to the
Breeders’ Society was a letter dated 26 November 2018, which was only responded to by the
Breeders’ Society on 30 September 2019.31 The relevant portion reads:
‘6. I can take you into my confidence and disclose that the country of origin being Italy of the
Breed has indicated that there is a genetic defect in the breed. In this regard I am awaiting
written confirmation of the above and shall share it with you to enable us to work together.
7. As regards also the Breeders Association wherein you the writer of the letters are serving
as attorneys and are proposed as a members in the association. Only Mr De Jager is in
possession of Chianina cattle in the country. Could you kindly indicate the circumstances in
which the other members obtained the breed?
8. As you already know the breed standard comes from the country of origin which form the
core of an association of a breed. At present an impact assessment is currently being
undertaken and it would be premature to approve breed standards at this stage.
9. That being the case your application for breeders association will properly be considered
9. That being the case your application for breeders association will properly be considered
once an Impact Study Assessment has been completed. All the more reason for the latter
since the breed in question is a foreign animal.’
[78] The Breeders’ Society responded on 30 September 2019 and served its notice
of appeal in terms of s 23(1) of the Animal Improvement Act on 25 March 2020. What
transpired before the Appeal Board resulted in the appeal being removed from the roll.
Details of what transpired between the parties and the Appeal Board are dealt with in
the first judgment. At the time the application was brou ght before the high court , the
Director-General had approved the request for the re- appointment of the Appeal
31 Some 10 months later.
30
Board on 6 March 2023, to deal with the appeal of the Breeders’ Society. In response
to these allegations, the Breeders’ Society contends that it has lost all confidence in
the respondents (the Minister, the Registrar, and the Appeal Board). On 20 April 2023,
the Breeders’ Society advised the Chairperson of the Appeal Board, the third
respondent, that it would not participate in the appeal proceedings. The preliminary
legal objections relating to non -compliance with certain provisions of PAJA that are
raised by the Registrar are set out in the first judgment.
The impact assessment study
[79] In his answering affidavit, the Registrar gave detailed reasons why he required
an impact study assessment alluded to in his correspondence exchanged with the
Breeders’ Society. I shall summarise his reasons as follows:
(a) That the Registrar complied with the order of Murphy J on 4 June 2016 ; the
court had already pronounced that the Chianina is an animal but that is not the end of
the matter; the Registrar must still take the matter further by ensuring that the animal
is conducive to the South African eco -system and would not harm i t, to have the
necessary prescribed standards for the Chianina so as to assist the breeding
association to stay true to the mandate of safely dealing with and breeding the animal;
all principles relating to what qualifies a breeders society have not been me t; the
suitability of the animal to the environment and to other animals and indigenous
livestock resources; to scientifically study the animal and its patterns, to conclusively
see how it reacts to South African conditions and territory, how to protect ou r grass
and water resources against huge foreign bred animals such as Chianina which
consume large natural resources and take up a lot of terrain.
(b) To investigate its rate of reproductive production; possibility of the new breed
converging and interbreeding with indigenous breeds; to investigate possible loss of
converging and interbreeding with indigenous breeds; to investigate possible loss of
indigenous breed diversity; to investigate possible erosion or disappearance of local
genotypes and sustainability of local breeds for the benefit of present and future
generations; the Breeders’ Society has not fulfilled the conditions for registration as a
breeders association as contemplated in the Act; that animal improvements shall take
place by means of INTERGIS in order to integrate pedigrees and performance of
animals as provided in s 5 of the Act.
(c) The impact study assessment on the Chianina breed had not been completed,
and as a result, there were no locally approved standards of the Chianina breed. As a
31
foreign animal, he contended, South Africa could not rely on standards from the
animal’s country of origin. South Africa has to determine the environmental impact of
the Chianina breed within our environment. He stated that the Breeders’ Society had
not done this. He further stated that the Chianina breed is not recorded on the
INTERGIS. He stated that an impact assessment study is applied to breeds that are
not indigenous to South Africa for the purposes of ensuring that the breed will add
value to existing animals and their impact on the environment. In this regard, he relied
on the provisions of s 24 of the Constitution. He contends that as per s 5 of the A ct,
Chianina cattle data recorded by the breeders on the INTERGIS is incomplete.
(d) The Act requires animals to be recorded and registered on INTERGIS, as
animal improvement and tracking can only be done through recording on INTERGIS.
If the animal is not recorded on INTERGIS, the society concerned or association
cannot be approved; Section 11 of the Act makes it peremptory for a breeder’s society
constitution to incorporate breeding standards. Breed ing standards are the
performance characteristics of the animal, they are vital in determining the genetic
superiority of the animal. The standards that the Breeders’ Society relies on are from
Italy, where the Chianina breed originated.
(e) At the end of 2018, the impact assessment on the Chianina breed had not been
completed and was therefore not recorded on the INTERGIS. In deciding that an
impact assessment study was required, he exercised his discretion. The provisions of
s 5 of the Act expressly provide that the animal improvements shall take place by
means of INTERGIS in order to integrate pedigrees and performance of animals.
[80] The Breeders’ Society dispute s the allegations on breeding standards and
impact assessment studies on the basis that the stud Chianina cattle and their
offspring had historically been registered and are being registered on the INTERGIS
offspring had historically been registered and are being registered on the INTERGIS
computer system. The Chianina cattle are, in the sole discretion of the SA Stud Book,
evaluated in terms of the Italian breeding standards and therefore impact assessment
studies are irrelevant. It further contends that the Animal Improvement Act does not
require an impact assessment study before a cattle breeders’ society can be
registered. It contends that the determination and application of breeding standards is
the sole discretion of the breeders’ society, presently the SA Stud Book.
[81] Once the Breeders Society is registered, that discretion will vest in it. It does
32
not lie within the Registrar’s powers to e valuate the Chianina’s breeding standards
and the adequacy thereof. The allegation made by the Registrar that not a single
Chianina cow was ever recorded by the breeders on the INTERGIS is false.
[82] In its application the Breeders ’ Society agrees with some of the contentions
made in the Keman app eal. I shall refer to the portions where there is reference to
breeding standards:
‘[By] excluding the breed from the Act, the Registrar loses his right of control to ensure that
the herd’s breeding standards are maintained and that the breed is improved. The legal
position as set out above, creates a dichotomy: the registered Chianina herd is subject to the
prescripts of the Act, but newcomers can undermine the purpose of the Act by importing
substandard genetic material or by implementing incorrect breeding standards. If this position
is allowed to continue it will in the long run undermine our industry and it will adversely affect
the country’s food security.’ (Emphasis added.)
[83] It seems to me that the Breeders ’ Society, on the one hand, recognises the
control that the Registrar has on breed improvement and maintenance of breeding
standards, when it relies on the Keman application but dis putes the obligations that
the Registrar has, when convenient.
[84] It is found in the first judgment that: it is hard to fathom what effect an impact
assessment study could possibly have on breeding standards; or what value it would
have some 28 years after the Chianina breed was first registered on the INTERGIS
system; the registration of a breeders’ society is concerned with whether the purpose
of the Act is best served by having the Stud Book administer and promote the breed
or the individual breeders who farm in competition with other breeds in the country ;
and that an impact assessment study is not a requirement to register a breeder’s
society. (Emphasis added.)
society. (Emphasis added.)
[85] Section 11(1)( d) provides that a group of persons may be registered as an
animal breeders’ society if ‘ such group of persons complies with such requirements
as may be prescribed’. The Registrar commissioned an impact assessment study for
the reasons he advanced.
33
[86] The Act defines ‘breed standards’ to mean: ‘a written set of phenotypic or
genotypic standards of excellence determined and applied in terms of the constitution
of an animal breeder’s society for a kind of animal’.
[87] Mr van der Westhuizen deposed to the affidavit in his capacity as a General
Manager of the SA Stud Book. What is apparent from his affidavit is that the INTERGIS
system is accessed by or operated on the SA Stud Book and Agricultural Research
Council (ARC). They had managed the INTERGIS system as a joint venture prior to
October 2011. He explains the role that SA Stud book played as a registering authority
and as an animal breeders’ society. Nowhere in his long explanation about registration
of new breeders does he mention that he or SA Stud Book gave all that data to the
Registrar.
[88] In fact, he deals with the upload of the data between SA Stud Book and ARC,
and that ARC has supplied the SA Stud Book with a username and password to
access its file protocol transfer (FTP), computer server. There is no mention of that
information being loaded on the departmental INTERGIS or access being given to the
Registrar.
[89] According to Mr Van der Westhuizen, SA Stud Book, a registration authority
that also acts as an animal breeder’s society, has, in consultation with the Chianina
breeders, determined the application of breeding standards. He confirmed that the
Italian standards have been applied.
[90] In a letter dated 11 October 2012, written to the legal representatives of Keman
relating to importation of the embryos, the Registrar stated, amongst others:
‘4. The Department did not issue the registration certificates you attached. Ho wever,
investigation into attached registration certificates is on – going.
[…]
7. We do not have control over SA Studbook, as such we do not have any official information
that you require.’ (Emphasis added.)
[91] The explanation given by Mr van der Westhuizen suggests that it is SA Stud
[91] The explanation given by Mr van der Westhuizen suggests that it is SA Stud
Book that applies for the issuance of prefixes and suffixes by ARC. After the ARC has
34
approved them, SA Stud Book will supply other particulars of the participants to ARC.
ARC will then record them on the INTERGIS.
[92] Mr van der Westhuizen does not deal with the case at hand whether the
Breeders’ Society has a constitution that deals with the breed standards , whether it
has been issued with the prefixes and suffixes or the necessary certificates necessary
for its registration.
[93] In any event , for as long as the Registrar’s decision to commission an impact
assessment study has not been challenged frontally before the high court, either by
way of review or declarator, or before the internal Appeal Board, it stands.
Registrar’s competence
[94] One of the requirements of the Act is for the Minister to designate an officer in
the department who has an appropriate tertiary qualification in the field of animal
improvement as the Registrar of Animal Improvement, who shall exercise the powers
and perform the duties conferred or imposed upon the Registrar under this Act.32
[95] The record indicates that the current Registrar, who is the appellant herein, is
a scientist. According to the judgment of the high court, the Registrar authored and
contributed to some of the textbooks relied upon by the high court. There is no doubt
that the Registrar is duly qualified to make any inquiry in connection with the Breeders’
Society as he deemed necessary 33, which would include, as in this case the impact
assessment study.
Failure to exhaust internal remedies
[96] The Registrar had raised, as a point in limine, the Breeders’ Society’s failure to
exhaust internal remedies and relied in this regard on the provisions of s 23(1) of the
Act. He also relied on the provisions of s 7(2)( a) and (c) of PAJA and contended that
the Society failed to apply for exemption from compliance with s 7(2)(a), failed to show
that there were exceptional circumstances and that it was in the interests of justice to
exempt it from compliance with the provisions of s 7(2)(a).
exempt it from compliance with the provisions of s 7(2)(a).
32 Section 3(1) of the Animal Improvement Act.
33 Section 8(4) of the Animal Improvement Act.
35
[97] The Breeder’s Society made an election to abandon the appeal process. When
it made that election, it subjected itself to the provisions of PAJA read together with
the Animal Act. An appeal is an internal remedy built into the Act to cater for aggrieved
persons who operate within the agricultural or animal sector. The Act provides in
s 23(3) how an Appeal Board should be constituted. It provides that the Appeal Board
shall consist of a person who has legal knowledge 34 and two persons who , in the
opinion of the Director-General, have ‘expert knowledge’ of the subject of the appeal.35
The first judgment has found that the internal remedy could not have been found to be
effective redress after 12 years. It is also stated in the first judgment that failure to
apply for exemption does not disqualify the courts from entertaining the matter . I
disagree for these reasons:
[98] The Appeal Board that was appointed by the Director -General consisted of
three persons as provided in terms of the Act. They are cited as third to fifth
respondents and described by the Society as: Advocate Tshifhiwa Tshitereke, an
advocate and the Chairpe rson of the Appeal Board, Mr P M Molapo, a major
businessman, and Dr L E Matjuda, a veterinarian and an expert in the field of animal
improvement.
[99] The Animal Improvement Act sets out the procedure to be followed by the
Appeal Board and the powers of the Chairperson thereof in s 23(7). The Appeal Board
has powers that may be summarized as follows: to subpoena any person who may
give material information concerning the subject matter, to produce that document, to
be interrogated, to appear before him or her at a time and place specified in the
subpoena; and the chairperson may retain for examination any document so
produced;36 administer an oath to or accept an affirmation from any person called as
witness;37 call any person present at the hearing as a witness and interrogate him or
witness;37 call any person present at the hearing as a witness and interrogate him or
her or even require him to produce any document under his or her control; 38 it also
34 Section 23(3)(a) of the Animal Improvement Act.
35 Section 23(3)(b) of the Animal Improvement Act.
36 Section 23(7)(a) of the Animal Improvement Act.
37 Section 23(7)(b) of the Animal Improvement Act.
38 Section 23(7)(c) of the Animal Improvement Act.
36
permits legal representation.39
Appeal process
[100] On 29 June 2022, two members of the Appeal Board were not present due to
the fact that they were not provided with sufficient time to attend the appeal
proceedings. Counsel who represented the Registrar indicated that the Registrar’s
erstwhile counsel had passed away, and the counsel that took over had not had an
opportunity to consult with the Registrar, who was reported to be sick. In the end, the
appeal was removed from the roll.
[101] Once an appeal was lodged against the Registrar’s decision or direction on
25 March 2020, the matter fell squarely within the powers of the Director-General, who
must appoint members to serve on it. The Registrar wrote to the Breeders’ Society,
six days after the lodgment of the appeal, on 31 March 20 20, and indicated that they
would revert to the Breeders’ Society after lockdown. The Director-General appointed
the members to the Appeal Board on 4 April 2022. On the day of the hearing of the
appeal, the Registrar was legally represented. There are broad sweeping allegations
made by the Breeders’ Society against the Appeal Board that the Breeders’ Society
has lost all confidence in it, without stating facts demonstrating how the Appeal Board
failed to conduct itself in a proper manner. The fact that two members of the Appeal
Board could not attend due to short notice cannot be regarded as an indication of bias
and would not lead to an inference of bias by a reasonable person based on
reasonable grounds. The procedure at the hearing of the appeal is determined by the
Chairperson.40 The dates for the hearing of the appeal were dates that the Breeders’
Society’s counsel proposed to the Chairperson, who issued directives accordingly.
The allegations that the Appeal Board played into the hands of the Registrar are not
supported by any facts, and the high court ought to have dismissed them out of hand.
[102] The Breeders’ Society decided not to participate further in the appeal process,
[102] The Breeders’ Society decided not to participate further in the appeal process,
which was a remedy available to it. It abandoned the appeal process and brought the
application to the high court. The Appeal Board has very wide powers on appeal,
including the power to con firm, set aside, or amend the decision or direction of the
39 Section 23(9) of the Animal Improvement Act.
40 Section 23(8) of the Animal Improvement Act.
37
Registrar which is the subject of the appeal;41 and may make such order in connection
therewith as it may deem fit.42
[103] In Nichol and Another v Registrar of Pension Funds and Others, 43 this Court,
when faced with a similar issue, stated:
‘The Appeal Board therefore conducts an appeal in the fullest sense – it is not restricted at all
by the Registrar’s decision and has the power to conduct a complete rehearing,
reconsideration and fresh determination of the entire matter that was before th e Registrar,
with or without new evidence or information. This is not disputed by Nichol. It has also never
been suggested that the Appeal Board has been tainted by any of the alleged procedural or
substantive irregularities of which Nichol complains. I th erefore cannot agree with the
argument advanced by counsel for the appellants to the effect that the Appeal Board would
be unable to give effect to their constitutional rights to fair administrative action and would not
be able to ‘make a declaration of in validity’ in respect of the impugned decisions of the
Registrar, as opposed to ‘simply setting aside’ such decisions. As detailed in the previous
paragraph, the powers of the Appeal Board are certainly extensive enough to afford Nichol
the same relief (if justified) as that sought by him in the main application, namely an order
‘reviewing and setting aside’ the relevant decisions of the Registrar, in particular the issue of
a certificate in terms of s 14(1)(e) of the PF Act in respect of the transfer of business from the
Sage Schachat Fund to the Sage Group Fund.’44
[104] The remarks expressed in Nichol apply equally herein. The Appeal Board that
is appointed in terms of the Animal Improvement Act has extensive powers. It is trite
that s 7(2) of PAJA places a procedural obstacle in the way of a person wishing to
review an administrative action. It provides:
‘(a) Subject to paragraph (c), no court or tribunal shall review an administrative action in terms
of this Act unless any internal remedy provided for in any other law has first been exhausted.
(b) Subject to paragraph (c), a court or tribunal must, if it is not satisfied that any internal
remedy referred to in paragraph (a) has been exhausted, direct that the person concerned
must first exhaust such remedy before instituting proceedings in a court or tribunal for judicial
review in terms of this Act.
(c) A court or tribunal may, in exceptional circumstances and on application by the person
41 Section 23(10)(b) of the Animal Improvement Act.
42 Section 23(10)(c) of the Animal Improvement Act.
43 In Nichol and Another v Registrar of Pension Funds and Others [2005] ZASCA 97; 2008 (1) SA 383
(SCA); [2006] 1 All SA 589 (C) (Nichol).
44 Ibid para 22.
38
concerned, exempt such person from the obligation to exhaust any internal remedy if the court
or tribunal deems it in the interest of justice.’
[105] Section 7(2) of PAJA requires that all internal remedies be exhausted unless
exceptional circumstances exist and the person concerned brings an application to be
exempted from the requirement. Courts have consistently confirmed the importance
of complying with this requirement. 45 The Breeders’ Society complains that its
attorneys attended the ‘purported’ appeal proceedings. There are no facts to support
the allegation that it was a ‘purported’ appeal. It complained that the Chairperson
interviewed the parties on his own. There was nothing untowa rd with the process
followed by the Chairperson, where the other members of the Board were not
available. There were three appointed Appeal Board members in terms of the Act. It
has also never been suggested that the Appeal Board was tainted by any of the
alleged procedural concerns of which the Breeders’ Society complains. Instead, it
appears that the Breeders’ Society was not happy with the pace at which the appeal
was handled. The Breeders’ Society’s disappointment as a result of the appeal not
proceeding does not constitute sufficient reason to bypass the Appeal Board. The
Breeders’ Society will be able to obtain the relief it sought before the high court, if
justified, before the Appeal Board. The issue of whether the Breeders’ Society meets
the requirements for registration as a Breeders’ Society and the reasons for the impact
assessment study will be interrogated efficiently by the Appeal Board , given its wide
powers and the expertise of its members.
[106] The Constitutional Court held (per Mokgoro J) that ‘[i]nternal remedies are
designed to provide immediate and cost -effective relief, giving the executive the
opportunity to utilize its own mechanisms, rectifying irregularities first, before
opportunity to utilize its own mechanisms, rectifying irregularities first, before
aggrieved parties resort to litigation.’ 46 And, further that ‘approaching a court before
the higher administrative body is given the opportunity to exhaust its own existing
45 Koyabe and Others v Minister for Home Affairs and Others (Lawyers for Human Rights as Amicus
Curiae) 2010 (4) SA 327 (CC) (2009 (12) BCLR 1192; [2009] ZACC 23) (Koyabe); Basson v Hugo and
Others 2018 (3) SA 46 (SCA) ([2018] 1 All SA 621; [2018] ZASCA 1) ( Basson); Member of Executive
Council for Local Government, Environmental Affairs and Development Planning, Western Cape and
Another v Platz NO and Another [2017] ZASCA 175; 2017 JDR 1964 (SCA); Pine Glow Investments
(Pty) Ltd v Minister of Energy and Others 2025 (6) SA 474 (SCA); [2025] 3 All SA 314; [2025] ZASCA
75.
46 Koyabe para 35.
39
mechanisms undermines the autonomy of the administrative process. It renders the
judicial process premature, effectively usurping the executive role and functions.’47
Only the Minister is empowered to amend or pass regulations
[107] The Breeders’ Society relied on the provisions of ss 6(2)( g) and 6(3)( a) of
PAJA. It contends that the Registrar is incompetent and had acted with malice
because it took him 12 years to rectify the error. The 12 -year delay is also put at the
doorstep of the Registrar in the first judgment.
[108] There is only one person who is empowered to make regulations in terms of
the law, and that is the Minister. The Registrar does not have those powers in terms
of the Animal Act. It follows that there is no basis in law to blame the Registrar for the
errors or omissions of the Minister. I find that the acceptance by the Breeders’ Society
that the Minister omitted the Chianina breed from the regulations is not consistent with
its persistent blame directed at the Registrar. The 12-year period that is being used to
justify the exemption from exhausting internal remedies may have been justifiable if
the relief before the high court was sought against the Minister and not the Registrar.
The Registrar does not have powers to declare any kind of animal or an animal of a
special breed of such kind of animal to be an animal in terms of s 2 of the Animal Act.
The blame of the 12 -year delay levelled against the Registrar is, with respect,
misplaced.
[109] I find that the failure by the Breeders’ Society to apply for exemption as
envisaged in s 7(2)(a) and ( c) of PAJA is fatal to its case. With the 12 -year delay
correctly placed at the Minister’s doorstep, there are no exceptional circumstances to
warrant the relief sought against the Registrar.
[110] The only way to rectify an omission or an error in the regulations is to publish
amended regulations by the Minister as is enjoined by s 28 of the Animal Act.
amended regulations by the Minister as is enjoined by s 28 of the Animal Act.
Regulations are subordinate legislation, and they must be published and gazetted. I
have addressed the finding in the first judgment that there was no need for the
Registrar to wait for an amendment in the light of Murphy J’s order. I need not repeat
47 Ibid para 36.
40
myself, save to state that Murphy J was empowered to make any order that is just and
equitable as found in State Information Technology Agency SOC Limited v Gijima
Holdings (Pty) Limited 48. Murphy J, directed the Minister to revisit the issue of whether
the removal of the Chianina as a breed was to be reversed within six months. That in
effect impacted on the same relief that was sought before Murphy J.
[111] The Breeders’ Society did not take steps to compel the Minister to rectify the
error for 12 years, as the only person empowered to make regulations in terms of the
Animal Improvement Act and also directed by the order of Murphy J to take steps in
relation to the issue.
[112] In Minister of Finance v Afribusiness, the Constitutional Court stated:
‘It is trite law that subordinate legislation must be created within the limits of the empowering
statute. If they are not, the exercise of the power is unlawful and may be set aside like an
unlawful act of any other functionary who has acted outside the p owers conferred upon her
by the Legislature. This means any regulations promulgated by the Minister under the
Procurement Act, including the impugned regulations, must be consistent with the
Procurement Act. If they are not, the Minister acted beyond the scope of the powers conferred
on him by the Legislature. No matter how clear the regulations are, it is necessary to consider
the empowering provision and the intention of the Legislature as reflected in the Procurement
Act.’49 (Emphasis added.)
Non – compliance with the peremptory requirements for registration
[113] I now turn to the issue of registration of the Breeders ’ Society. The Animal
Improvement Act defines an animal breeders society:
‘means a group of persons promoting the breeding, the recording or registration, the genetic
improvement and the use of a kind of animal or an animal of a specified breed of such kind of
animal, determining and applying breed standards, recommending in its sole discretion the
animal, determining and applying breed standards, recommending in its sole discretion the
recording or registration of an animal or a specified breed of a kind of animal bred in or
imported into the Republic and who is registered in terms of s 8(7)(a)(i).’
[114] The Registrar contends that the Breeders ’ Society has not yet fulfilled the
48 State Information Technology Agency SOC Ltd v Gijima Holdings (Pty) Ltd [2017] ZACC 40; 2018
(2) BCLR 240 (CC); 2018 (2) SA 23 (CC) (Gijima) para 53.
49 Minister of Finance v Afribusiness NPC [2022] ZACC 4; 2022 (4) SA 362 (CC); 2022 (9) BCLR 1108
(CC) (Afribusiness) para 41.
41
conditions of registration as contemplated in the Act. The application by the Breeders’
Society did not comply with some of the requirements provided for in the Anim al
Improvement Act. In terms of Regulation 7(1) an application for registration of a
Breeders’ Society shall:
‘(a) be submitted to the registrar on a form that is obtainable from the office of the registrar
for this purpose;
(b) be signed by at least seven persons who individually own animals of the breed and
kind of animals to be promoted by the envisaged animal breeders society and each
signature shall be confirmed by two witnesses; and
(c) be accompanied by-
(i) the application fee specified in item 5 of Table1 in the Annexure;
(ii) a copy of the constitution of the society concerned;
(iii) certification by the organization referred to in section 15(3)( a) of the Act, that
provision has been made for the registration of prefixes, suffixes and herd designation
marks; and
(iv) certification by the organization referred to in subparagraph (iii) that the
constitution makes provision for the recording of pedigree data in a manner that is in
line with internationally acceptable specifications.’
[115] Section 15(3)(a) of the Animal Improvement Act provides:
‘A certificate referred to in subsection (2)( a) or ( b) shall only be issued if the registering
authority concerned has registered on behalf of the breeder of the animal concerned a prefix
or a suffix to indicate animals bred by him or her, with the organisation which is contracted by
the Department to operate the integrated registration and genetic information system.’
[116] The Breeders’ Society’s application submitted to the Registrar dated 27 May
2019, was accompanied by a letter from its attorneys, Van Heerdens Incorporated,
where they stated:
‘In light of the aforesaid official recognition of the breed, and correction of its status, you are
kindly requested to:
1. Recognise the Chianina Cattle Breeder’s Society of South Africa as a Breeder Society
1. Recognise the Chianina Cattle Breeder’s Society of South Africa as a Breeder Society
in terms of Sections 8 and 11 read with Regulation 7 of the Animal Improvement Act, 62 of
1998.
In this regard we attach hereto for your attention the following documents:
(i) Application for Registration as a Breed Society.
(ii) Appendix with seven signatories of dedicated Chianina Breeders.
42
(iii) Constitution of the Chianina Cattle Breeders Society of South Africa
(iv) Prove(sic) of payment of fees in the amount of R1480 (as per item 14 on the tariffs
issued by your offices on 5 June 2018 to our offices)
2. Again, consider the import application for semen and embryos by Keman Beleggings
CC within the next day or two.
If you have any enquiries in the aforesaid regard kindly revert to this office before making your
decision.’
[117] In the application by the Breeders’ Society before the high court, the
constitution of the Breeders’ Society was omitted from the record. This Court was not
favoured with a copy of the constitution. Apparent from the list above is that the
certifications referred to in terms of regulation 7(1)(iii) and (iv) were not attached.
[118] Regulation 7 is couched in peremptory terms as the word ‘shall’ is used. It
follows that if those documents were not attached to the application, there was no
compliance with the regulation and s 15(3) (a) of the Animal Improvement Act. The
Registrar’s response that ‘the applicant has not yet fulfilled the conditions for
registration as a Breeders ’ Society as contemplated in the Act’ was well made. The
Breeders’ Society, through its attorneys, had indicated that the documents were
submitted in compliance with, among others, regulation 7, when it knew or ought to
have known that not all the requirements were met. Nowhere in the application or the
appeal is there mention of the certifications referred to in regulation 7, by the Breeders’
Society. None were attached for the benefit of the high court or the Appeal Board. The
high court failed to consider those requirements which are peremptory when it decided
to step into the Registrar’s shoes. Such failure constitutes a misdirection.
[119] The affidavit of Mr van der Westhuizen demonstrates that the SA Stud Book is
also registered as both as registering authority and as an animal Breeders’ Society. It
also registered as both as registering authority and as an animal Breeders’ Society. It
is also concerned with the same Chianina Breed. Section 11( b) of the Act provides
that: ‘no other such registration has been granted in respect of an animal breeder’s
society which is concerned with the same breed of such kind of animal ’. This
requirement was not addressed by the Breeders’ Society in its application.
[120] The finding by the high court that the approval of the application by the
43
Breeders’ Society was a foregone conclusion , is not supported by the facts as
demonstrated above. There was non -compliance with statutory provisions and the
high court with its order approved an application that was not legally compliant. By so
doing, the high court misdirected itself, and this Court is at large to interfere with its
decision.
[121] Had I commanded the majority, I would uphold the appeal with costs; set aside
the order of the high court, substitute it with an order dismissing the application with
costs. That would be the end of the matter. However, the first judgment has dealt with
the merits of the matter, and I am obliged to address its findings where I hold a contrary
view.
The merits
[122] In the first judgment, it is found that it is not necessary to do an Impact
Assessment Study. First, the Breeders’ Society makes allegations of bias against the
Registrar. It is trite that the test, on reasonable apprehension of bias, is objective rather
than subjective. In Turnbull-Jackson v Hibiscus Coast Municipality ,50 the
Constitutional Court indicated that:
‘Whether an administrator was biased is a question of fact. On the other hand, a reasonable
suspicion of bias is tested against the perception of a reasonable, objective and informed
person. To substantiate, borrowing from Sv Roberts:
(a) There must be a suspicion that the administrator might-not-would-be biased.
(b) The suspicion must be that of a reasonable person in the position of the person affected.
(c) The suspicion must be based on reasonable grounds.
(d) The suspicion must be one which the reasonable person would-not might-have.’
[123] The allegation of bias is linked to the required impact assessment study by the
Registrar. The Breeders’ Society accused the Registrar of ignoring, among others, the
advice of his predecessor, Mr Ramsay, that it has never been a requirement that the
impact assessment study be undertaken.
impact assessment study be undertaken.
[124] In response to the advice given to the Breeders’ Society by Mr Ramsay, the
50 Turnbull-Jackson v Hibiscus Coast Municipality [2014] ZACC 24; 2014 (6) SA 592 (CC); 2014 (11)
BCLR 1310 (CC) para 30.
44
Registrar stated that his view is not binding on him as a scientist because he is bound
by the Act to bring to bear on this issue his professional view and exercise his
discretion unfettered by his predecessor’s views. He did not know what considerations
Mr Ramsay took into account when he gave the advice to the Breeders’ Society. The
advice was contained in a screenshot from social media. The Breeders’ Society,
instead of engaging with the Registrar meaningfully on the impact assessment study,
has instead found the very idea of such a study to be ridiculous. No one enquired from
the Registrar how far he was with the study and how long it would take. He set out his
reasons, which I recorded above.
[125] In the first judgment, it is found that the Registrar has not indicated that the
Breeders’ Society’s constitution is lacking in any way. I disagree, because the
Registrar made it clear in his letter dated 26 November 2018 that, among others, ‘the
breed standards come from the country of origin which form the core of an association
of a breed. At present an impact study assessment is currently being undertaken and
it would be premature to approve breed standards at this stage.’ The breed standards
would have been provided for in the constitution of the Breeders’ Society as required
by s 11(1)(c) of the Animal Improvement Act.
[126] Section 11(1)(c) of the Animal Improvement Act specifically provides that:
‘(1) A group of persons may be registered as an animal breeder’s society if –
[…]
(c) the constitution of such group of persons specifically provides-
(i) for the promoting, breeding, recording, or registration, genetic improvement and use of a
kind of animal of a specified breed of such kind of animal;
(ii) for the determination and application of breed standards , and for the recommendation, in
its sole discretion, to a registering authority of the recording or registration of an animal or
of a specified breed bred or imported into Republic;
of a specified breed bred or imported into Republic;
(iii)for the continued commitment to animal improvement’ (Emphasis added.)
[127] The Breeders’ Society indicated that it will use Italian breeding standards. The
Registrar made it clear that the impact assessment study is for developing South
45
African breeding standards. In my view, if the Chianina has been imported and bred
in the country for many years as the Breeders’ Society contends, it is not irrational for
the purposes of animal improvement, to develop South African breeding standards.
That would be for the benefit of the South African environment and its agricultural
industry as stated by the Registrar. If the Breeders’ Society is using Italian standards,
it means that it has not determined any South African breeding standards but will
simply apply Italian breeding standards.
[128] In any event, the Registrar is a scientist who has stated that he has expertise
in this field and has been entrusted with the responsibility to safeguard the interests
of the country. Mr Ramsay is not the repository of the power to discharge the purpose
of the Animal Improvement Act, the current Registrar is.
[129] Mr van der Westhuizen, as stated earlier, did not engage with the reasons that
the Registrar advanced, which are consistent with the purpose of the Act. For these
reasons, I find that the criticism of the Registrar’s requirement for an impact
assessment study, without a proper consideration of his reasons , by the high court
constitutes an error.
The Substitution Order
[130] The high court disagreed with the submissions of the Registrar that the decision
to register or not to register the applicant as an animal Breeder Society involves
specialist or scientific skills and that he or the Appeal Board would be more equipped
to make that decision. The first judgment agrees with the high court in this regard. I
disagree, with respect for these reasons:
(a) The reasons given by the Registrar for his insistence on an impact assessment
study are detailed. Those reasons are not dealt with either by the Society, Mr Ramsay,
or Mr van der Westhuizen.
(b) The Breeders’ Society, in responding to the Registrar’s letter of 26 November
2018 on 30 September 2019, 51 where the Registrar indicated that he was not in a
2018 on 30 September 2019, 51 where the Registrar indicated that he was not in a
position to approve breeding standards, made the following remarks:
51 Almost nine months later.
46
‘With due respect Mr Registrar, this statement of you is utterly ridiculous. There is nothing
premature about approving the breeding standards. [Chianina] has its origin in Italy and the
breed standards are very specifically set down. Same can be obtained on the internet site of
the Italian breeders association…That is the standards we will be applying in SA. Should the
breeders in South Africa later on wish to make changes to these standards they will do so in
accordance to the constitution of the breeders society.’ (Emphasis added.)
(c) What this means is that the Breeders Society lost sight of the obligations of the
Registrar. The purpose of the Animal Improvement Act is to provide for the breeding,
identification, and utilization of genetically superior animals in order to improve the
production and performance of animals in the interest of the Republic, and to provide
for matters connected therewith. The definitio n of ‘animal improvement’ means the
scientifically based identification of genetically superior animals by means of
integrated registration and genetic information system or in a manner approved by the
registrar and the discerning use thereof to improve the production or performance
ability of the animal population in the interest of the Republic.52 (Emphasis added.)
[131] Lastly, it is apt to mention that the Breeders Society delayed in instituting the
proceedings that are the subject matter of this appeal. The reason for requiring
reviews to be instituted without undue delay is to ensure certainty and promote legality:
time is of utmost importance. In Merafong,53 the Constitutional Court held:
‘A further and related reason to remit the matter to the High Court is this. Merafong accepts
that the Minister’s ruling was administrative action. Whether under PAJA, or legality review, it
was obliged to institute proceedings to review the decision witho ut unreasonable delay. The
was obliged to institute proceedings to review the decision witho ut unreasonable delay. The
rule against delay in instituting review exists for good reason: to curb the potential prejudice
that would ensue if the lawfulness of the decision remains uncertain. Protracted delays could
give rise to calamitous effects. Not just for those who rely upon the decision but also for the
efficient functioning of the decision -making body itself. Had Merafong instituted a review
application, as it ought, the Court hearing it would have had to consider whether the delay
precluded its challenge.’ (My emphasis).
[132] The high court erred in granting a substitution order in a matter that fell within
the remit of the Registrar. It, with respect, failed to follow the principles set out by the
52 Section 1 of the Animal Improvement Act.
53 Merafong City v AngloGold Ashanti Ltd [2016] ZACC 35; 2017 (2) BCLR 182 (CC); 2017 (2) SA 211
(CC) (Merafong) para 73.
47
Constitutional Court in Gijima 54 in that it did not declare the decision of the Registrar
to commission an impact assessment study which already underway, invalid or his
failure to approve the Breeders’ Society’s application for registration pending such
study to be invalid and provide a remedy, instead of making a decision about an issue
that fell squarely within the powers of the Registrar. It failed to balance the interests of
the Breeders’ Society with those of the Registrar, who is enjoined to safeguard the
interests of the country’s animal improvement in terms of the Act.
[133] It approved an application of the Breeders’ Society which was not compliant
with regulation 7(1) and s 15(3)(a), which provisions are peremptory. It did not even
have the constitution of the Breeders’ Society and the certifications referred to in
regulation 7(1) and thus did not possess the necessary and relevant material to
impose its decision on the Registrar. 55 Having recognized the knowledge of the
Registrar in the field for having authored some of the authorities relied upon by it, its
finding that the Registrar’s decision was unreasonable and procedurally unfair
constitutes a misdirection. The high court failed to consider the cautionary principles
applicable to prevent separation of powers harm.
[134] In the Economic Freedom Fighters,56 judicial authority was a subject of litigation
where the Constitutional Court stated:
‘Courts should not interfere in the processes of other branches of government unless
otherwise authorised by the Constitution. It is therefore not for this Court to prescribe to
Parliament what structures or measures to establish or employ respectively in order to fulfil
responsibilities primarily entrusted to it. Courts ought not to blink at the thought of asserting
their authority, whenever it is constitutionally permissible to do so, irrespective of the issues
or who is involved. At the same time, and mi ndful of the vital strictures of their powers, they
must be on high alert against impermissible encroachment on the powers of the other arms
of government.’
54 Gijima fn 50 above.
55 The Constitutional Court in Trencon Construction (Pty) Ltd v Industrial Development Corporation of
South Africa Ltd [2015] ZACC 22; 2015 (5) SA 245 (CC); 2015 (10) BCLR 1199 (CC) at para 48
cautioned that ‘[a] court will not be in as good a position as the administrator where the application of
the administrator’s expertise is still required and a court does not have a ll the pertinent information
before it.’
56 Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v
Speaker of the National Assembly and Others [2016] ZACC 11; 2016 (5) BCLR 618 (CC); 2016 (3) SA
580 (CC) para 93.
48
[135] In Intertrade Two ,57 Plasket J (as he then was), cautioned as follows:
‘It is not necessary to decide the issue because it is simply not possible for this court to take
the decision to award the mechanical and electrical tenders to Intertrade, much as I
sympathise with it for the shameful treatment it has had to endure at the hands of some
functionaries in the Provincial Government over a protracted period of time. The availability of
proper and adequate information and the institutional competence of the court to take the
decision for the administrative decision -maker are nece ssary prerequisites that must be
present, apart from ‘exceptional circumstances’, before a court can legitimately assume an
administrative decision-making function. This, it seems to me, is a minimum requirement of
rational decision-making, a fundamental requirement of the rule of law. In this case, because
of the absence of proper estimates, because of the flaws in the evaluations of the tenders and
because of the unknown consequences on the tenders of the inexcusable passage of time,
both prerequisites are absent. If this court was to award the tenders to Intertrade, it would act
arbitrarily and in conflict with the rule of law because it would not have a rational basis for
concluding that the award of the tenders would be ‘fair, equitable, transparent, co mpetitive
and cost-effective’, as required by s 217(1) of the Constitution.
I am acutely aware that the appellant will, no doubt, feel that it has been robbed of the prize
to which it considers itself entitled. After all, it is not to blame for the way in which the tender
process has been handled. I understand that, but wider interests and principles are involved.
Courts, like any other institutions that exercise public power in terms of the Constitution, are
duty-bound to act in terms of the rule of law and its principle of legality.
Courts are, furthermore, duty-bound to respect the separation of powers, an important pillar
Courts are, furthermore, duty-bound to respect the separation of powers, an important pillar
of the Constitution. Indeed, administrative law is, itself, an incident of the separation of powers,
a point made in the following terms by Chaskalson P in the Pharmaceutical
Manufacturers case:
“Whilst there is no bright line between public and private law, administrative law, which forms
the core of public law, occupies a special place in our jurisprudence. It is an incident of the
separation of powers under which courts regulate and control the exercise of public power by
the other branches of government. It is built on constitutional principles which define the
authority of each branch of government, their inter -relationship and the boundaries between
them”.’
57 Intertrade Two (Pty) Ltd v MEC for Roads and Public Works, Eastern Cape, and Another 2008 1 All
SA 142 (Ck); 2007 (6) SA 442 (Ck) (Intertrade Two) paras 43-46.
49
[136] I find that for all the reasons set out this is a clear case of judicial overreach by
the high court and its decision should not be allowed to stand.
Conclusion
[137] In conclusion, I find that the high court erred in granting the substitution order
as it impermissibly usurped the powers of the Registrar. It follows that the appeal
should succeed. On the issue of costs there is no reason to depart from the normal
rule that costs should follow the result. Had I commanded the majority , I would have
granted the following order:
1 The appeal is upheld with costs.
2 The order of the high court is set aside and is substituted with the following order:
‘The application is dismissed with costs’
____________________
T V NORMAN
ACTING JUDGE OF APPEAL
50
Appearances:
For the appellant: MZ Makoti with L Rakgwale
Instructed by: State Attorney, Pretoria
State Attorney, Bloemfontein
For the first respondent: HJ de Wet SC
Instructed by: VHI Attorneys, Pretoria
Rosendorff Reitz Barry Attorneys,
Bloemfontein.