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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 400/2022
In the matter between:
TOP LAY EGG CO-OP LIMITED First Appellant
GEORGE SHWARTZEL
BOERDERY (PTY) LTD Second Appellant
and
MINISTER OF AGRICULTURE,
FORESTRY AND FISHERIES First Respondent
EXECUTIVE OFFICER: AGRICULTURAL
PRODUCT STANDARDS, DEPARTMENT
OF AGRICULTURE: FOOD SAFETY
AND QUALITY ASSURANCE Second Respondent
FOOD SAFETY AGENCY (PTY) LTD Third Respondent
(REG:2013/130308/07)
AGENCY FOR FOOD SAFETY AND
QUALITY (PTY) LTD Fourth Respondent
(REG:2016/258115/07)
AGENCY FOR FOOD SAFETY Fifth Respondent
Neutral Citation: Top Lay Egg Co -op Ltd & Another v Minister of
Agriculture, Forestry and Fisheries & Others (400/2022)
[2023] ZASCA 67 (16 May 2023)
2
Coram: SALDULKER, MOTHLE AND MATOJANE JJA AND
NHLANGULELA AND UNTERHALTER AJJA
Heard: 16 March 2023
Delivered: 16 May 2023
Summary: Administrative Law – delayed review – Agricultural Product
Standards Act 119 of 1990 – designated assignees – whether the third
respondent is the designated assignee – whether the assignee had the power
to inspect products and charge the producers ’ fees – whether the provision s
relating to the determination of fees are reviewable on various grounds in
terms of the Promotion of Administrative Justice Act 2 of 2000.
______________________________________________________________
ORDER
______________________________________________________________
On appeal from : Gauteng Division of the High Court , Pretoria (Bokako AJ
with Tlhapi J and Phahlamohlaka AJ sitting as Full Court of appeal):
1 The appeal is dismissed.
2 The appellant is ordered to pay the respondent s’ costs of appeal,
including the costs of two counsel where applicable.
______________________________________________________________
JUDGMENT
______________________________________________________________
Mothle JA (Saldulker and Matojane JJA and Nhlangulela and Unterhalter
AJJA concurring)
[1] The central issue in this appeal is the interpretation of a letter written by
the first respondent, the Minister of Agriculture, Fores try and Fisheries (the
3
Minister), in which he designated Agency for Food Safety (the fifth
respondent) as the assignee. The designation as assignee was made in terms
of s 2(3) of the Agricultural Product Standards Act 119 of 1990 (the Act).
Before dealing with the grounds of appeal, it is apposite to deal briefly with the
scheme of the Act, the background facts and the trajectory of the litigation
which led to this appeal.
[2] The purpose of the Act is to ensure that products sold to the public are in
accordance with the prescribed class or grade, comply with the prescribed
standards, and are packed, marked and labelled accordingly, do not contain
prescribed prohibited substances or contain a prescribed substance. These
requirements are for the benefit of both consumers an d the producers or
stakeholders involved. To give effect to this legitimate purpose, s 2 of the Act
empowers the Minister to designate an official in the Department of
Agriculture, Forestry and Fisheries (the Department) as an executive officer
and designate a person, undertaking, body, institution association or board as
an assignee.
[3] The scheme of the Act was succinctly stated by this Court in Bertie van
Zyl (Pty) Ltd t/a ZZ2 and Others v Minister of Agriculture, Forestry and
Fisheries And Others1 (Bertie van Zyl) as follows:
'The Act controls the sale, export and import of certain agricultural products. The first
respondent (the Minister) may prohibit the sale of prescribed product unless it
complies with prescribed classifications and standards. In terms of s 2(1) of the Act,
the Minister may designate a person in the employ of the Department of Agriculture
(the Department) as the executive officer to exe rcise the powers and perform the
duties conferred under the Act. The minister may also, in terms of s 2(3 )(a),
designate a person,2 with regards to a particular product, for the purposes of the Act.
A person so designated is styled an 'assignee' in respect of that particular product.
The Act permits the executive officer and an assignee to conduct inspections aimed
1 Bertie Van Zyl (Pty) Ltd and Others v Minister of Agriculture, Forestry and Fisheries and
Others [2021] ZASCA 101; [2021] 4 All SA 1 (SCA) at para 2.
2 Person includes a legal person, undertaking, body, institution, association or board.
4
at ensuring that ce rtain agricultural products meet the prescribed classification s and
standards. They charge fees to do so. In the case of the executive officer the fee is
prescribed. In the case of the assignee, the Act stipulates in s 3(1A )(b)(ii), that ‘the
fee determined by such assignee shall be payable . . .’ (Footnote added.)
[4] The following are the background facts and trajectory of the litigation that
led to this appeal. On 15 July 2018, the Minister issued a public invitation for
submission of bids regarding the appointment of assignees in respect of
agricultural products. Eleven bids from prospective assignees were received.
On 18 July 2018, t he prospective assignees were invited to attend an
information session concerning the minimum requirements n ecessary for the
selection of assignees. Among the eleven bids was that of the Food Safety
Agency (Pty) Ltd (third respondent). When the third respondent, as one of the
prospective assignees, made its presentation for the bid in a public session, it
mentioned that it is a registered company trading as Agency for Food Safety. I
will return to this aspect in detail as it constitutes the first ground of appeal.
[5] In a letter dated 9 December 2016, addressed to Dr Nel of the
third respondent, the Minister designated the third respondent, which had
submitted the bid, as assignee, by referring to it by its trade name . The
litigation between the parties and the grounds of this appeal arose from the
Minister’s letter designating the third respondent as assignee. The letter reads
thus:
‘Dear Dr. Hein Nel
DESIGNATION AS AN ASSIGNEE IN TERMS OF THE AGRICULTURAL
PRODUCT STANDARDS ACT, 1990 (ACT NO. 119 1990)
I, Senzeni Zokwana, Minister of Agriculture, Forestry and Fisheries hereby in terms
of secti on 2(3 )(a) of the Agricultural Product S tandards Act, 1990 (Act 119 1990),
designate Agency for Food S afety for the application of section 3(1) and 4A wi th
respect to the inspection of regulated animal products (poultry meat and eggs, as
well as any other meat and meat products for which regulations maybe promulgated).
The minister reserves the right to revoke the assignment should circumstances
dictate otherwise.
5
I trust that you will execute your duties to the best of your abilities.
Yours Respectfully
MR S ZOKWANA, MP
Minister of Agriculture, Forestry and Fisheries
DATE: 9-12-2016’.
(Own emphasis.)
[6] Consequent upon the receipt of the letter of designation, the third
respondent mandated its wholly-owned subsidiary company, Agency for Food
Safety and Quality (Pt y) Ltd (the fourth respondent ), to conduct inspections
and exercise the powers of assignee in respect of poultry products, on its
behalf. Top Lay Egg Co -Op Limited (the first appellant ), is a primary co -
operative which market s and sell s agricultural products on behalf of its 51
members, who conduct business as egg producers . The first appellant
markets and supplies its members’ eggs and other poultry -related agricultural
products to major retailers such as Massmart Group, Shoprite Holdings, Pick
‘n Pay and the Spar Group. George Schwartzel Boerdery (Pty) Limited (the
second appellant), also conducts business in the production and sale of eggs.
The control, sampling, packaging and quality assurance over the sale of
poultry is regulated under the Act.
[7] On 19 March 2018 , the first and second appellant, including two
companies also conducting business in poultry products, namely, Eggbert
Eggs (Pty) Limited (Eggbert) and WW Bartlet Poultry Farm (Pty) Limited
(Bartlet), launched an application i n the Gauteng Division of the Hig h Court,
Pretoria (the high court) , against the M inister and four respondents. In
essence, the appellants sought relief before the high court in the following
terms: first, whether the Minister designated the third respondent or the fourth
respondent as assignee; second, whether the powers in terms of ss 3A, 7 and
8 of the Act were also conferred upon the assignee; third, whether the
determination of fees by the assignee was reviewable in terms of PAJA on the
grounds that they were, allegedly, arbitrary; capricious or irrational.
6
[8] All five respondents opposed the application. The Minister was the first
respondent and Mr BM Makhafola, a di rector in the Department who the
Minister had designated as Executive Officer , was the second respondent.
The second respondent deposed to the answering affidavit on behalf of the
Minister and the Department (the government respondents). The three other
respondents opposing the application were the third , fourth and fifth
respondents (the assignee respondents) . In their answering affidavit to the
appellant’s application, the governm ent respondents, in addition, raised three
points in limine, namely; that the first appellant lacked locus standi; that there
was a delay in instituting the review proceedings and that the appellants had
failed to exhaust internal remedies.
[9] Apart from the order to invalidate the invoices submitted for payment by
the fourth respondent to the second applicant, t he application was dismissed
with costs by Davis J, who also refused to grant the applicants leave to appeal
the order of the high court . The applicants petitioned this Court and on
26 August 2020 were granted leave to appeal to the Full Court of the Gauteng
Division of the High Court (the full court), b y Ponnan JA and Unterhalter AJA.
The full court similarly d ismissed the appeal with costs , except the order
invalidating the invoices. Aggrieved by the decision of the full court on appeal,
the first two appellants3 again approached this Court with a request for special
leave to appeal. On 11 April 2022, Plasket JA and Phatsoane AJA granted the
appellants special leave to appeal. It is thus with special leave to appeal that
this matter comes before us.
[10] In their first ground of appeal, the appellants contend that the identity of
the designated assignee letter caused confusion . The Minister’s letter of
designation refers to ‘Agency for Food S afety', which the appellants contend,
is a non-existent person or entity. On inquiry, so the appellants contend, they
could not find an entity registered as ‘Agency for Food Safety’. In addition, the
fourth respondent exercised the powers to conduct the inspection at their
3 Eggbert and Bartlet, the third and fourth applicants in the high court, were not participants in
the appeal in this Court.
7
premises, which also issued monthly i nvoices for the service , even though
they were not designated as an assignee. In addition, the Executive Officer in
the Government Gazette No 40545 dated 13 January 2017, and subsequent
Government Gazettes 40621 of February 2017 and 40847 of 19 May 2017 ,
referred to an entity known as ‘Agency for Food Safety (Pty) Ltd’, a company
that was non -existent. Consequently, so continues the contention by the
appellant, there was disparity and confusion as to the identity of the actual
designated assignee.
[11] The Executive Officer appended the suffix ‘(Pty) Ltd’ to the trade name.
This connotes a different entity that resulted in confusion, particularly as
published in the Government Gazettes. It conveyed that the trade name
‘Agency for Food Service’ is a registered company, separate and independent
from the third respondent. In this regard, there is some merit in the appellants’
contention. However, this occurred in 2017, just after the designation of the
assignee. The institution of proceedings in the high court in March 2018, was
preceded by the exchange of correspondence one year earlier during 2017,
between the app ellants’ attorneys Moolman & Pienaar I ng, and the second
and fourth respondents . The issue of the designated assignee ’s identity
featured in the correspondence exchanged . In a letter dated 2 January 2018
and in reply to a letter of demand by the appellants’ attorneys, VFV attorneys
acting for the third and fourth respondents, wrote thus:
‘1. We confirm that we act on behalf of both Agency for Food Safety and Quality (Pty)
Ltd (AFSQ) [fourth respondent] , a wholly owned subsidiary of Food Safety Agency
(Pty) Ltd t/a Agency for Food Safety (AFS) [third respondent] (“our clients”) whom
has approached us for advice and assistance herein.
2. Kindly take note that AFS has been appointed as an assignee by the Department
of Agriculture, Forestry and Fisheries in terms of the Agricultural Product Standards
Act 119 of 1990 (“the Act”). . .
3. Although AFS i s the appointed assignee as mentioned above, they render quality-
check services through their wholly owned subsidiary being AFSQ. This was done in
order for poultry inspections to be kept separate from abattoir (red meat) inspections.’
8
[12] The letter makes clear the issue of identity and the relationship
between the assignee respondents . Therefore, b efore instituting the
proceedings in the high court, the appellant s were made aware that the
designated ‘Agency for Food Safety ’ is a trad ing name of the company Food
Safety A gency (Pty) Limited, the third respondent. Further, any
misunderstanding concerning the involvement of the fourth respondent was
explained and reasons given. It is also evident from the appellants’ founding
affidavit, by their own admission, that they were aware that A gency for Food
Safety is a trade name of Food Safety Agency (Pty) Ltd . The appellants’
founding affidavit deposed to by Mr Petrus Jacobus Pienaar, stated as
follows:
'The Fifth Respondent is A GENCY FOR FOOD SAFETY , an entity, the correct
citation which is unknown, with offices at 2 […] The H[…] Street, Lynnwood, Pretoria,
Gauteng. Alternative at 4 […] G[…] Office Park, 6 […] J[…] Drive, Garsfontein,
Gauteng. Reference is also made in documentation at the disposal of the applicants,
to Food Safety A gency (Pty) Ltd trading as Agency for Food Safety .' (Own
emphasis.)
[13] The appell ants’ deponent pleaded the sam e address of the
fifth respondent as being also the address of the third and fourth respondents
respectively. In the same affidavit , the appellants provide a list of documents
they relied upon to support the contention that there was a disparity and
confusion about the identity of the entity. The list of these documents, notably,
excluded the 2 January 2018 letter from VFV attorneys . The relationship
between the third respondent and both the fourth and fifth respondents was
again explained in the answering affidavit of the government respondents,
deposed to by the Executive Officer. T he identity of the assignee respondents
is clarified with reference to the copy of the public presentation made by th e
fourth respondent and other do cuments attached thereto , consistent with the
letter from VFV attorneys.
[14] Further, in the answering affidavit deposed to by Mr Louis Visagie o n
behalf of the assignee respondents, the identity of the third respondent, with
9
the fifth respondent as its trade name, is explicitly stated, with reference to the
third respondent’s business plan , which had been submitted in response to
the bid. The business plan is attached as an annexure to the assignee
respondents’ answering affidavit, again, consistent with , and as proof of the
January 2018 letter of VFV attorneys. Similarly, the identity of the fourth
respondent in relation to the third respondent is explained in detail in the same
answering affidavit . In essence, the fourth respondent is a wholly owned
subsidiary of the third respondent, dedicated to executing the duties of the
assignee. The third respondent is in fact the designated assignee.
[15] In reply, the appellants provided no evidence to contradict the proof of
the identity and relationship of the assignee respondents as presented by
both the government responden ts and the assignee respondents in their
answering affidavits. Having been provided with incontrovertible documentary
evidence of the identity and relationship of the assignee respondents, there is
no explanation for why the appellants persisted with this ground of appeal.
Thus, the claim on appeal that the designation of the assignee caused
disparity and confusion is contrived. Whatever confusion may initially have
been caused was dispelled. This ground of appeal has no merit and stands to
be dismissed.
[16] The second ground of appeal, also emanating from the Minister’s letter,
dealt with the powers conferred and those not conferred on the assignee. In
the letter of designation of the assignee, the Minister, in pronouncing the
designation of the third respondent by its trade name as assignee, wrote: ‘I . .
. designate Agency for Food Safety for the application of sections 3(1) and 4A
with respect to the inspection of regulated animal products . . .’ The appellants
contend that the Minister only delegated or assigned the assignee the power
in terms of s 3(1) and s 4A of the Act. The se powers, it is further contended ,
exclude the power to: conduct inspections, grade and sample for quality
control in terms of s 3A; determine and charge fees in terms of s 3(1A)(b)(ii);
enter premises, investigate and sample in terms of s 7; and seize a product,
material or books in terms of s 8 of the Act. The appellants’ approach to the
10
interpretation of the letter is based on a presumption that what is specifically
included, excludes what is not mentioned.4
[17] This presumption is not applicable in this case for the following
reasons. First, t he powers conferred upon the Executive O fficer by the
Minister, includes s 3A, s 3(1A), s 7 and s 8 of the Act . By law these powers
are designated to the assignee, unless expressly (as opposed to impliedly)
provided otherwise. This comes about for the following reason. The Minister
did not expressly provide in the letter of designation that s 3A, s 3(1A), s 7 and
s 8 of the Act are excluded. I n the first sentence of the letter , the designation
as assignee is made in terms of s 2(3)(a) of the Act, for the purposes of the
application of this Act. Section 2(3)(b) of the Act provides:
‘(b) An assignee thus designated shall–
(i) unless expressly provided otherwise and subject to the directions of the executive
officer, exercise the powers and perform the duties that are conferred upon or
assigned to the executive officer by or under this Act, with regard to the product
referred to in (a);
(ii) in the case of a juristic person, notwithstanding anything to the contrary contained
in any other law or in the absence of any express provision to that effect, be
competent to exercise the powers and perform the duties referred to in subparagraph
(i); and
(iii) unless the Minister in a particular case otherwise directs , have no recourse
against the State in respect of expenses incurred in connection with the exercis ing of
such powers or performance of such duties.’ (Own emphasis.)
[18] Second, s 3(1), s 4 and s 4A of the Act deal with control over the sale
of the products of different classes. Section 3(1) deals with the locally
produced class sold locally , s 4 deals with exported products, sold abroad ,
while s 4A deals with imported products sold locally. Therefore, the common
feature in reference to s 3(1) and s 4A of the Act, is that both classes of
products are being sold and consumed locally, in the Republic of South Africa.
4 The presumption arises from the maxim ‘Expressio unius est exclusio alterious rule, applied
by this Court’ in Faure en ‘n Ander v Joubert en ‘n Ander NO 1974 (4) SA 939 (AA).
11
In all three classes of products , the Minister is authorised to exercise
discretion to prohibit the sale of a product, subject to conditions applicable to
each class of product. In order for the Minister to exercise such discretion, an
inspection, grading, sampling, investigation or seizure of the product will first
have to be made by either the executive officer or the assignee. The operative
sections of the Act , namely ss 3A, 3(1A), 7 and 8 , which the appellants
contend have been excluded, are indispensable for, and cannot be logically
severed from, the exercise of the power in s 3(1) and s 4A of the Act.
[19] Third, the Minister in designating the third respondent by its trade name
as assignee, conveyed a clear intent and purpose for the application of s 3(1)
and s 4A of the Act. He unequivocally declared in the letter that the application
of the two sections of the Act referred to, was ‘with respect to the inspection of
regulated animal products . . .’ The assignee is thus expected to exercise the
inspection powers in regard to regulated animal products, mainly poultry. This
necessitates invoking the powers and duties in s 3A , which , logically as a
consequence, triggers s 3(1A) (b)(ii) to charge fees , s 7 to enter into the
premises to investigate and sample as well as s 8 to seize a product,
materials or books. Therefore, by interpreting the reference to s 3(1) and 4A of
the Act in isolation from the rest of the text in the relevant paragraph of the
Minister’s letter, the appellants failed to ascribe a proper meaning and context
to what the letter sought to convey. This Court in Natal Joint Municipal
Pension Fund v Endumeni Municipality 5 underscored the importance of the
context in the interpretation of statutes and other legal instruments. This Court
stated thus:
‘Over the last century there have been significant developments in the law relating to
the interpretation of documents, both in this country and in others that follow similar
rules to our own. 6 . . . The present state of the law can be expressed as follows.
5 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; 2012 (4) SA
593 (SCA) para 18.
6 Ibid at fn 13: ‘Spigelman CJ describes this as a shift from text to context. See “From Text to
Context: Contemporary Contractual Interpretation ”, an address to the Risky Business
Conference in Sydney, 21 March 2007 published in J Spigelman Speeches of a Chief Justice
1998 – 2008 239 at 240. The shift is apparent from a comparison between the first edition of
Lewison, The Interpretation of Contracts and the current fifth edition. So much has changed
12
Interpretation is the process of attributing meaning to the words used in a document,
be it legislation, some other statutory instrument, or contract , having regard to the
context provided by reading the particular provision or provisions in the light of the
document as a whole and the circumstances attendant upon its coming into
existence. Whatever the nature of the document, consideration must be given to th e
language used in the light of the ordinary rules of grammar and syntax ; the context in
which the provision appears ; the apparent purpose to which it is directed and the
material known to those responsible for its production.’ (Own emphasis.)
[20] The purpose of appointin g an assignee is to enable the M inister to
control agricultural products that are being sold locally and those exported.
The control of these products is to ensure that safe and healthy products are
sold to the consumer. The assignee is appointed for the purposes of
exercising the powers to inspect, grade and sample the products for purposes
of quality control. To fulfil this task, assignee s must exercise the relevant
powers in the Act. Therefore, the appellants’ contention that the Mini ster, in
designating the assignee, excluded the power to inspect the product and to
determine and charge a fee for the service , is wrong in law. The assignee
derived these powers not only from the text of the letter by the Minister, but
also ex- lege, in terms of s 2(3) of the Act. Therefore , this ground of appeal
has no merit and falls to be rejected.
[21] The third grou nd of appeal is premised on the preceding two grounds.
The appellants contend that only the fi fth respondent, which is non -existent,
was appointed assignee, but it was not designated with the power to carry out
inspections and to determine and charge fees. Therefore, so continues the
appellants’ contention, the high court and the full court erred in holding that
fees may be levied as ‘inspection fees ’ per month per egg produced or
packaged, ‘whether actual inspections had taken place.’ There is no method
of determination of th e fees for inspection duties, and therefore the fees
charged for the inspections conducted, stands to be reviewed and set aside in
terms of s 6(2)(e)(ii) and (f) of the Promotion of Administrative Justice Act 2 of
that the author, now a judge in the Court of Appeal in England, has introduced a new opening
chapter summarising the background to and a summary of the modern approach to
interpretation that has to a great extent been driven by Lord Hoffmann.’
13
2000 (PAJA), on the grounds of the assignee having acted arbitrarily,
capriciously or irrationally.
[22] The second appellant alleged that it r eceived t wo invoices from the
fourth respondent, dated 11 December 2017 and the other on 29 January
2018, each payable at the end of that month. The invoices referred to
precisely the same number of eggs. It further alleges that there was an invoice
in November 2017 that it received from the fourth respondent, although , as it
alleged, no inspection took place. The second appellant sought to have these
invoices reviewed and set aside.
[23] In their answering affidavit, the assignee respondents deny that the
determination of the fees was arbitrary, capricious and irrational. Their
version, which was accepted by the high court and the full court, is that two
consultative workshops were hel d on 20 April 2017 and 4 May 2017, wi th the
role players in the industry. Significantly, Mr Gawie Rossouw, a director of the
third applicant, Eggbert, attended the meetings and made proposals which led
to the reduction of fees.
[24] There were two main proposals which c ame out of the workshops.
First, because of the risk profile of eggs, the initial communication dated
21 February 2017, referring to holding monthly inspection s, was substituted
with a proposal that quarterly inspections be conducted. Seco nd, a proposal
that the relevant fee for inspections as published by the Minister at that time,
was R 0, 0015 per egg, be reduced to R 0,005 per egg. After considering its
budget, the assignee respondents adjusted the fee to R 0 , 0006 per egg. The
charge remained per egg, in that it was approved and supported by the role
players because it catered for producers that do not package as well as those
that package. It is a fee based on the costs of providing the service across the
industry, which were budgeted for, including inspection of packaging and
labelling.
[25] Section 3(1A)(b)(ii) of the Act provides that an assignee is empowered
to determine and charge fees for the performance of the duties in terms of the
14
Act. The fees determined by such assignee shall be payable . Section 3(4)
provides that the fees are recoverab le from the owner of the product . As it
stands, there are no Regulations published as to the procedures and a
prescribed method of determining fees. The appellants’ attack on these
shortcomings or lacunae in the legal framework is misplaced, as no order is
sought against the Minister or the Department. The absence of a proper legal
framework cannot be attributed to the assignee respondents. The attempt by
the Executive O fficer to initiate such Regulations for consideration by the
Minister, came under attack as soon as the initial draft was published in the
Government Gazette, and the initiative was sadly aborted.
[26] There is no doubt, as expressed by this Court in Bertie Van Zyl 7 that
the powers conferred upon assignees in terms of the Act, inc luding to
determine and charge fees, are public powers. The exercise of the powers to
determine fees is an administrative decision and consequently it must comply
with the provisions of s 4 of PAJA. It is not disputed that t he assignee
respondents went through a consultative process to determine fees, which the
appellants did not attend, though other role players such as Eggbert did. In
the absence of a legal framework that determines the procedure and method
of calculation of the fee pa yable, the participation and contribution made by
the role players at the meeting , met the requirement of procedural fairness.
The proposals made by Mr Rossouw led to the reduction of the fee applicable
at that stage, R 0,0015 per egg, to less than half of it, R 0,0006. The
consultative process enabled the assignee, who bears the ultimate power to
decide, to determine a fee based on a budget, the expected service and costs
considerations. Therefore, the allegation that the determination of the fee was
arbitrary, capricious and irrational cannot be sustained and was correctly
rejected by the high court and the full court. This ground of appeal is also
unmeritorious and stands to be rejected.
[27] The high court ruled in favour of the responde nts on the points in
limine, but only after the court had adjudicated the matter on the merits. The
7 Footnote 1 para 35.
15
high court’s ruling on these procedural objections was confirmed by the full
court. For the purposes of this appeal, it will thus be superfluous to deal with
the procedural objections, in view of the considerations and the findings made
on the merits in this judgment. Thus, the points in limine need not detain us
further.
[28] There was an attempt by the appellants in this Court, seemingly
inspired by the decision of this Court in Bertie van Zyl, belatedly to raise a new
ground of appeal on procedural unfairness in terms of s 6(2)(c) of PAJA. Apart
from the fact that the facts in this appeal are distinguishable from those in
Bertie van Zyl, this new ground was not raised as part of the relief sought in
the notice of motion and affidavits before the high court . In addition, the
appellants did not seek and obtain leave from this Court to introduce a new
ground of appeal. The respondents objected thereto, and correctly so.
Therefore nothing further need be said of it.
[29] The appeal stands to be dismissed with costs and there is no reason
why the costs should not follow the result.
[30] In the result, I make the following order:
1 The appeal is dismissed.
2 The appellant is ordered to pay the respondents’ costs of appeal,
including the costs of two counsel where applicable.
_______________________
SP MOTHLE
JUDGE OF APPEAL
APPEARANCES:
For the appellants: M G Roberts SC with E Roberts
16
Instructed by: Moolman & Pienaar Inc, Potchefstroom
C/O Pieter Skein Attorneys, Bloemfontein
For 1st and 2nd respondents: C E Puckrin SC with KD Magano
Instructed by: State Attorney, Pretoria
C/O State Attorney, Bloemfontein.
For 3rd, 4th, 5th respondents: G Naude SC with A Thompson
Instructed by: VFV Attorneys, Ashlea Gardens
C/O Symington De Kok Attorneys,
Bloemfontein