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[2015] ZAWCHC 103
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Relmar Holdings (Pty) Ltd v Minister of Agriculture, Forestry And Fisheries and Another (4122/2015) [2015] ZAWCHC 103 (30 July 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case No:
4122/2015
DATE: 30 JULY
2015
In
the matter between:
RELMAR
HOLDINGS (PTY)
LTD
........................................................................................
Applicant
And
THE
MINISTER OF AGRICULTURE,
FORESTRY
AND
FISHERIES
...................................................................................
First
Respondent
LINDE
MOUTON, ACTING CHIEF DIRECTOR:
FINANCIAL
MANAGEMENT
...............................................................................
Second
Respondent
JUDGMENT
DELIVERED
ON 30 JULY 2015
BOQWANA,
J
Introduction
[1]
The applicant brought an urgent
application seeking an order that:
1.1
It is entitled to participate in and bid at
the auction of abalone described as follows:
“
South
African Wild Abalone (dried), consisting of three lots namely Lot A
(load 7): 2399.83 kg; Lot B (load 8): 1821.08 kg; Lot
C (load 9):
2681.12 kg.”
scheduled
for 10:00 a.m. on 10 March 2015, and any auction or sale of the
abalone on a later date.
1.2
The requirement
in
paragraph 1.2 of the ‘auction rules’ for the sale of
confiscated abalone, administration rules and procedures dated
10
March 2015
is declared invalid and is
set aside
.
[2]
The respondents opposed the
application. The auction which was scheduled for 10 March 2015 was
postponed by agreement between the
parties, pending the outcome of
this application.
Application to
strike out
[3]
Prior to the hearing of the merits,
the applicant brought an application to strike out paragraphs 31, 35,
39, 40, 44, 45- 47, 54,
72 of the answering affidavit on the basis
that they constituted inadmissible hearsay evidence. The respondent
opposed the application
to strike out as well.
[4]
Most of these paragraphs deal with
an investigation allegedly instituted by the Department of
Agriculture, Forestry and Fisheries
(‘the Department’)
against the applicant and its sole director Mark Anthony Raynard
(‘Raynard’).
[5]
In paragraph 31 the respondents
allege that the applicant and Raynard were being investigated for
fraudulent export of abalone.
Mr Burger SC who appeared for the
applicant argued that the deponent to the answering affidavit (i.e.
the second respondent) did
not reveal the source of her information
regarding the investigation and who was conducting the investigation.
Accordingly, the
allegation contained in paragraph 31 is vague and
should be struck out.
[6]
As regards paragraph 35 of the
answering affidavit, Mr Burger submitted that the second respondent
being an official of the Department
had not explained what personal
knowledge she had of the applicant using the services of Greystone
Trading (‘Greystone’).
[7]
Paragraphs 39 and 40 are attacked on
the basis that the second respondent did not allege in these
paragraphs who was doing the investigation
or what the source of her
information was. It is further contended that paragraph 44 amounted
to double hearsay because Justin
Enslin (an official who is a Chief
Marine Conservation Inspector in the Department) was informed by a
certain Faizel Daniels (‘Daniels’)
that he sublet a
portion of the premises in Gordon’s Bay to his personal friend,
Raynard, without the owner’s knowledge.
Enslin’s
confirmatory affidavit has since been filed. The applicant initially
took issue with the late filing of Enslin’s
confirmatory
affidavit but retracted its objections during the hearing of the
matter after considering reasons that were offered
for the late
filing on behalf of the respondents.
[8]
Paragraphs 45 to 47 and 54 are
attacked on the same basis as other paragraphs that I already dealt
with, which is that they do not
reveal who was doing the
investigation and the source of the deponent’s information.
In regard to paragraphs 72 and
75, Mr Burger submitted that the
second respondent did not provide any evidence to show how she would
know that the abalone was
not incorrectly graded in support of her
denial. According to him, the applicant had the abalone inspected by
a food expert, Deon
Larry (‘Larry’).
[9]
It was argued on behalf of the
respondents by Mr de Villiers-Jansen that the second respondent is
one of the senior officials in
the Department. The second respondent
is an Acting Chief Director: Financial Management in the Department.
It is alleged in the
answering affidavit that a Chief Director:
Financial Management of the Department is a person authorised to sell
confiscated abalone.
It was submitted by Mr de Villiers-Jansen that
the second respondent should know about the investigations in the
Department by
virtue of her office. The second respondent also
alleged that she had personal knowledge of the contents of her
affidavit. Mr Burger
contended that the general allegation of
personal knowledge of the contents in her affidavit was not enough;
the second respondent
should have stated who was doing the
investigation and how she came to know about it.
[10]
I
have applied my mind to this issue and have had regard to the fact
that the second respondent is a person in charge of selling
confiscated abalone, she also wrote the letter dated 5 March 2015
conveying the decision of the Department to the applicant that
it
would not be able to participate in the upcoming sale of confiscated
wild abalone held by the Department, as per auction rules,
due to
ongoing investigations into it and Raynard in respect of
contraventions of the Marine Living Resources Act
[1]
(‘the
Act’), including its regulations. It is this letter which gave
rise to the urgent application.
[11]
It
was held in
President
of the Republic of South Africa and Others v M & G Media Ltd
[2]
that:
‘
[31]
The opportunity to acquire knowledge may emerge from the duties of
the deponent and the office he or she occupies, as well
as the
seniority of the deponent within the office and his or her prior
experience with similar activities or procedures within
the office.
The nature of the deponent’s office may therefore provide
evidence that the deponent would, in the ordinary course
of his or
her duties, acquire personal knowledge of the information in
question. In addition to the standard operating procedures
of an
office and the post occupied by a deponent providing a basis for
alleging personal knowledge of certain facts, circumstances
specific
to the particular record at issue and the specific exemption claimed
could support a deponent’s claim to personal
knowledge.’
[3]
[12]
It is not far-fetched, in my view,
to deduce that the second respondent, who is the Acting Chief
Financial Director within the Department
in charge of selling
confiscated abalone, would be aware of the investigation by virtue of
her office. I accept that she could
have been more specific about who
was conducting the investigation within the Department; I however do
not agree that she would
not be privy to the information pertaining
to the investigations conducted by the Department. This is
particularly so because she
has to enforce the Rules which are the
subject matter of this application, which Rules exclude persons who
are being investigated
from participating in the auction. She is
therefore not far removed from the investigations, as Mr Burger
suggests.
[13]
She may not necessarily have
mentioned the names of those who conducted the investigations. She
has however, in certain respects,
attached documentation as an
indication of why the investigations against the applicant were
necessary. She further authored
the letter dated 5 March 2015
to convey to the applicant that it would not participate in the
auction because it was under investigation.
In my view the
allegations in paragraph 31 that the Department is holding an
investigation are not vague. That paragraph should
therefore remain.
[14]
I do take Mr Burger’s point
that certain of the allegations in paragraph 35 are conclusory in
their nature. That paragraph
states that the applicant utilised the
services of Greystone. That has not been established and it
cannot be concluded simply
from the documents attached. That kind of
conclusion should in my view be left to the investigation process.
The striking out of
the conclusory statement in paragraph 35 does not
affect the remaining allegations dealing with the investigation
against the applicant
and Raynard in relation to the Greystone
activities.
[15]
In regard to parts of paragraph 39,
reference to the
‘
Department’s
officials’ examining the contents of all cartons and found that
it contained 22 040 units of dried
abalone...’
is
broad in that the officials who examined the contents are not named;
the remaining part of that paragraph however is not, as
it could be
ascertained from the permits used to export whether or not they had
expired. In my view paragraph 39 should remain.
[16]
The statement in paragraph 40 that
‘the applicant’ was a subject of investigations in
Gordon’s Bay, is not supported
by the allegations that follow
relating to what Enslin found in relation to the Gordon Bay alleged
illegal activities and what
he was told by Daniels. No mention is
made of the applicant’s name in those allegations but only that
of Raynard. That, however,
does not mean that the allegation that
Raynard and the applicant are being investigated in relation to those
activities is factually
incorrect and should be struck out.
[17]
Paragraph 45 should be treated in
the same manner as paragraphs 31 and 39. The statement in paragraph
46 is a general statement,
it must therefore remain.
[18]
Paragraphs 47 and 54 are simply
allegations. It is however possible that the manner in which those
statements have been crafted
could create an impression that a
finding of wrongdoing has already been made, which is not the case.
Those paragraphs should be
struck out, only in so far as they
conclude that the applicant and Raynard have contravened the Act
based on the allegations in
the answering affidavit as that finding
has not yet been made. There is however nothing wrong in alleging
that the allegations
point to possible contravention of the Act.
[19]
Paragraphs 72 and 75 amount to a
denial by the second respondent that the abalone was incorrectly
graded. I agree with Mr
Burger that the second respondent does
not place further facts to support her denial. Her denial amounts to
a bare denial and does
not create a dispute of fact. This issue
however becomes relevant on the question of which version should be
accepted by the Court
on that point. Such paragraphs should therefore
remain.
Applicant’s
case
[20]
The applicant’s sole director,
Raynard, has been involved in the abalone industry for 20 years,
first as a diver and also
with the purchase, processing and sale of
abalone. He stopped diving about 3 years ago and now conducts
business through
the applicant. Raynard alleges that the
applicant is a holder of both a permit issued by the Department to
engage in Marine
Aquaculture activities and a permit to operate a
fish processing establishment (‘exemption holder’). He
further alleges
that neither he nor the applicant has ever been found
guilty of any offence in terms of the Act and its regulations nor
have they
violated any Act or regulations as far as he is aware.
[21]
He further alleges that a few years
ago a rumour, which is untrue, was doing the rounds that he had
a [business] relationship
with an employee of the Department, a
certain Dr Mayekiso, whom it was alleged would have invested in his
company. This rumour
unfortunately led to some state officials
forming a personal vendetta against the applicant and acting unfairly
towards him and
the applicant.
[22]
The Department was due to hold an
auction of confiscated abalone on Tuesday, 10 March 2015. This
is evidenced by an invitation
letter dated 5 March 2015 attached to
the founding affidavit as annexure MR3, signed by the second
respondent and sent on behalf
of the Department to an entity called:
‘Ocean Star Fishing’. This letter,
inter
alia
, states that:
‘
...The
Department
hereby invites you
to attend a sale of confiscated South African Wild Abalone (dried)
This
sale will consist of three lots namely: Lot A (load 7); 2399.83kg;
Lot B (load 8) 1821.08 kg; Lot C (load 9); 2681.12kg...’
(Own
emphasis)
[23]
This letter also attached a packing
list of animals and grades for Lots A to C as well as auction rules
titled as:
‘
Sale of Confiscated
Abalone Administration Rules and Procedures dated 10 March 2015’,
which are the subject of this application (‘the
March 2015 auction rules’).
[24]
The applicant contends that it was
not the first time that this particular abalone was advertised to be
sold. It referred
to another document titled:
‘
Sale
of Confiscated Abalone Administration Rules and Procedure’
dated 04 February 2015 attached as annexure ‘MR4’
to the founding affidavit (‘the February 2015 auction rules’).
The description of the abalone in paragraph 1.3 of MR4 is identical
to the description of abalone in paragraph 1.4 of MR3.
[25]
Key to the March 2015 auction rules
is clause 1.2 which the applicant contends was introduced to exclude
it from participating in
the auction. This clause is not
contained in the February 2015 rules. The said clause 1.2 reads as
follows
:
‘
1.2
The Department of Agriculture, Forestry and Fisheries (‘Department’)
will send official letters of invitation to
prospective South African
buyers/bidders with valid wild abalone processing rights, export and
marketing capabilities. Only bidders/buyers
with an official
invitation from the Department will be allowed to participate in the
sale.
For the purposes of the aforesaid
sale, any person who contravened and/or contravenes the Marine Living
Resources Act, 18 of 1998
( MLRA), including its subsequent
regulations or any person who is andor are subject to an
investigation conducted by the Department
in respect of any
contravention of the MLRA including its regulations, shall be
excluded from the sale
.’
(Own
emphasis)
[26]
The applicant alleges that it had
shown interest in attending the previous auction (i.e. the February
2015 auction) and was told
by the Department that it could not
participate because it did not have a fish processing permit. It
subsequently obtained that
permit.
[27]
The planned sale of abalone
scheduled to take place on 04 February 2015 was cancelled as
evidenced by an email dated 03 February
2015. The email was
apparently sent to the applicant and another person by one Laeeq
Aspeling (‘Aspeling’).
The email, inter alia,
stated that:
‘
...
Kindly be informed that due to circumstances beyond the Department’s
control, the planned sale of abalone
scheduled for 4
February 2015, is hereby cancelled.
The
Department will reschedule and all parties will be informed of the
new date in due course
.
Please accept our
sincerest apologies for any inconvenience caused...’
[28]
The applicant contends that the
Department went ahead to arrange a new auction without informing it
as promised in the aforementioned
email. A representative of the
applicant Larry, who is apparently a food expert who had previously
inspected the abalone, was informed
by other sources of the proposed
auction. He then enquired from the second respondent on 04
March 2015 about this. A number
of telephone SMS messages ensued
between Larry and the second respondent. The second respondent
promised to revert to Larry
the following Monday when she got back in
office as she was on leave at that time. She also requested
that further communication
be made
via
email and not SMS. Larry confirmed the conversation they had in an
email.
[29]
The applicant did not hear anything
from the Department. Larry became aware that the auction was to be
held on Tuesday, 10 March
2015. He then sent an email dated 06 March
2015 at approximately 11:25 to the second respondent informing her
about the Department’s
invitation sent to other persons about
the sale, which was to take place the following week, but that no
paper work was sent to
the applicant. Larry requested that the
necessary documents be sent urgently to the applicant so that it
could participate.
[30]
From this, the applicant concluded
that the Department stealthily wanted to exclude it from the auction
and deliberately tried to
keep it in the dark. This is because
on 04 March the second respondent advised that she would only be back
in the office
on Monday 09 March, which was the day before the
auction. She however sent the notification about the sale to
other persons,
the following day, which was 05 March, but
deliberately did not reply to Larry’s email.
[31]
The second respondent instead
responded after hours by way of an email at 5:53pm on Friday 06 March
2015 as follows:
‘
Dear
Sir
PARTICIPATION
OF RELMAR HOLDINGS (PTY) LTD IN THE SALE OF CONFISCATED
SOUTH AFRICAN WILD ABALONE (DRIED)
Your email addressed
to the Department of Agriculture, Forestry and Fisheries, Barch:
Fisheries Management (“the Department”)
dated March 2015
herewith refers.
The Department would
like to thank Relmar Holdings (Pty) Ltd for their interest in
participating in the upcoming abalone sale.
It is with regret
however that the Department inform Relmar Holdings (Pty) Ltd that it
will not be able to participate in the upcoming
sale of the
confiscated wild abalone held by the Department as per the auction
rules. This is due to ongoing investigation in Relmar
Holdings (Pty)
Ltd/Mark Raynard by the Department in respect of contraventions of
the
Marine Living Resources Act, 18 of 1998
, including its
regulations...’
[32]
According to the applicant, the
second respondent pretended that she would only return to the office
on 09 March whilst the letter
she sent to the applicant is dated 05
March 2015. The applicant alleges further that the Department
intentionally did not dispatch
the letter on Thursday 05 March 2015
but waited until after business hours on Friday 06 March 2015 to
dispatch same to the applicant.
[33]
As regards the reasons advanced by
the respondents to exclude the applicant from the auction, Raynard
states that he knew of no
investigation and therefore could not
defend himself or the applicant as he had not been informed of what
the investigation was
about. It was unfair, in his view, that
his rights, and those of the applicant, to make a living and to do
business were
taken away from them by a secret process. Secondly, the
auction rules were suddenly changed prior to the auction taking place
because
the respondent wanted to exclude Raynard from the auction due
to a personal vendetta against him. Thirdly, he had obtained advice
that the requirement that excludes those being investigated from the
bidding process was incorrect and
ultra
vires.
[34]
Raynard contends further that he has
been informed that the basic principle of law is that if an
allegation is made against him
[or anyone else], he has a right to be
informed thereof and he should receive an opportunity to defend
himself against such allegation
and this was not done. He could
therefore not be disqualified on this basis. His contention is that
he cannot be disqualified
from doing business and from taking part in
an auction due to the excuse that the Department is currently busy
with an investigation
and simply because someone made a false
accusation against him.
[35]
Raynard further alleges that the
auction rules for the proposed auction on 04 February 2015 did not
contain the words that were
contained in paragraph 1.2 of the bidding
requirements for the auction of 10 March 2015. According to him,
those were suddenly
included and the only conclusion that he could
derive from this was that, the rule was suddenly included by the
respondents in
an attempt to exclude him from the auction.
[36]
Raynard submits that
rule 1.2
contained in the bidding requirements of 10 March 2015 is invalid
because it is inconsistent with Section 28 (1) of the Act.
[37]
According to him the Act prescribes
grounds upon which the right, licence or permit of a holder may be
cancelled. The respondents
could not change the procedure to
set their own requirements.
[38]
The applicant alleges that it
possesses a permit to process fish and has a right to participate
like anyone else on an equal footing
in the auction and not to be
unfairly excluded. According to the applicant, the only way that the
respondents could prevent it
or Raynard or anyone else from bidding
was to follow the procedures as set out in Section 28 (1) of the Act
and they did not do
this.
[39]
It further alleges that Larry, who
is a food expert and who inspected the abalone, informed Raynard that
the abalone had been graded
incorrectly. According to the applicant,
the abalone is dried and kept at room temperature. Larry
informed Raynard that there
is no risk in storing the abalone for a
further 2 years, and that the quality of the abalone will not be
affected in anyway.
If the abalone is frozen, it will be able
to last for years.
[40]
The applicant states that it appears
that only four companies participated in the past abalone auctions,
it is in the interest of
the Department that as many people as
possible participated in the auction in order for the highest
possible price to be obtained.
It submits that is not in the
Department’s best interest as alleged by the applicant to
artificially reduce or eliminate
the competition at the auction.
Respondents’ Case
[41]
The respondents allege that on 27
November 2009, the Department adopted a Policy for the management and
handling of confiscated
abalone (‘the Policy’). In terms
of the Policy, it may impose auction rules which have to be accepted
by potential
bidders before the commencement of the auction. The
Chief Director: Financial Management is authorised to sell the
confiscated
abalone.
[42]
The respondents contend that the
Rules were formulated to facilitate the sale of confiscated abalone.
They allege that confiscated
abalone is a product of illegal
activity; accordingly, it would be contrary to public policy for an
organ of state to create a
mechanism which would facilitate a sale,
directly or indirectly, to the very person from whom the abalone was
seized. Such a mechanism
would not reduce illegal activity
surrounding the abalone fishery. On the contrary, once confiscated,
the person from whom the
abalone is seized could simply attend an
auction and potentially outbid competitors and acquire the
confiscated abalone anyway.
In light of the changing circumstances in
the abalone fishery and the ever presence of illegal activity, the
Rules will of necessity
require amendment from time to time.
[43]
The Rules in their recent form
exclude persons who have contravened the Act or are contravening it
or are subject to an investigation
by the Department from bidding at
any auction conducted by the Department.
[44]
The Department brought about this
amendment to the rules because it considered that auctions at which
confiscated abalone would
be auctioned could be attended by persons
who are being investigated for dealing in illegal abalone activities
or by representatives
on their behalf.
[45]
The respondents contend that the
Rules are in keeping with the provisions of the Act. They are
directed at preventing persons who
have contravened or are
contravening the Act or who are being investigated by the Department
from bidding at auctions and furthering
their legal activity
unabated.
[46]
Further, the confiscated abalone
becomes the Department’s property. It will dispose of the
abalone in a manner it deems
appropriate. The Rules in any
event constitute tender conditions which determine a bidder’s
eligibility. It is not
unreasonable for the Department in the light
of the circumstances surrounding the abalone fishery to stipulate
that it will not
permit persons who are the subject of an
investigation into illegal abalone activity to bid at its auctions.
[47]
The respondents allege that the
Department is investigating the applicant and Raynard for fraudulent
export of abalone. According
to them, it is not unusual for any
person under investigation not to know of the investigation.
Investigations are not made known
for fear that those subject to
investigation could jeopardise it.
[48]
Without getting into too much detail
about the nature of the investigations, the respondents allege that
the applicant and Raynard
are being investigated in respect of three
incidents. The first one has to do with permits that were
issued in favour of
the applicant one on 08 May 2014 and valid
until 07 August 2014 and another issued on 16 July 2014 and expiring
on 14 October
2014, allowing export of no more than 2241 and 2145
dried and frozen abalone of lawful size, respectively. In
respect of
each permit the total number of animals may not exceed
942.25kg and 824.45kg, respectively.
[49]
On 17 August 2014 a certain
Greystone Trading completed a customs declaration form to export 25
cartons containing 500kg of abalone
with a transaction (customs)
value of R25 000. On 20 August 2014 Greystone sought to export
the goods by air to the importer,
Hung Fly Trading and Development in
Hong Kong. In this regard an air waybill number 749-0089044-4
and an invoice made out
by Greystone to Hung Fly Trading and
Development are attached to the answering affidavit.
[50]
It is alleged further that
simultaneously with the aforementioned export on 20 August 2014,
Greystone sought to export 20 cartons
containing 400kg of abalone.
In this regard an air waybill with number 749-0089043-3 is attached
to the answering affidavit.
It is alleged that both
consignments referred to above were examined by customs officials at
Cape Town International Airport.
They found that the cartons
contained dried abalone which was sought to be exported utilising the
permit issued on 08 May 2014
in favour of the applicant which had
expired. In consequence, the customs official seized 12 cartons
under the air waybill
749-0089044-4 and 25 cartons under the air
waybill with number 749-0089043-3, being a total of 37 cartons
containing 740kg of dried
abalone. They also seized a permit which
was issued in favour of the applicant issued on 16 July 2014 and
valid until 14 October
2014. The seized cartons were handed to the
Department official who examined the contents of all the cartons and
found that they
contained 2204 units of dried abalone. Apart from the
fact that the permit utilised had expired, the quantity found
exceeded the
number of abalone permitted for export by far.
Because the permits found were issued to the applicant, the
Department commenced
an investigation into the applicant and Raynard
which is nearly complete.
[51]
It is further alleged that the
applicant and Raynard are also being investigated in connection with
another confiscation of abalone
in Gordon’s Bay. In this
regard, it is alleged that in and during October 2014, Enslin
received information of a possible
illegal, unregulated and
unreported abalone processing facility (‘at certain premises in
Gordon’s Bay’). The
premises were designed to process
abalone illegally. All the abalone found was seized together
with the equipment and purpose-built
drying racks and chemicals used
to dry abalone. A certain Daniels, who was a tenant in the premises
allegedly, informed Enslin
that he sublet a portion of the premises
without the owner’s knowledge to a personal friend of his,
Raynard.
[52]
It is further alleged that Raynard
is also a director of Tuna Marine (Pty) Ltd (‘Tuna Marine’).
Tuna Marine and Raynard
are also being investigated with respect to
the illegal packaging of abalone on the Tuna Marine premises.
The illegally packaged
abalone was allegedly placed between legal
consignments of abalone and exported under the permit used to export
the legal consignments.
The investigations against Tuna Marine and
Raynard concern illegal exports to theFar East in the region of
300 000kg of abalone
fraudulently using Tuna Marine permits.
[53]
The respondents submit that the
confiscated abalone is valued at millions of rands.
[54]
The Department submits further that
it is entitled to determine the condition under which its auctions of
confiscated abalone will
be held as well as the eligibility of
bidders.
[55]
The second respondent denies the
allegation that she undertook to communicate the next auction date to
Larry or the applicant when
contacted by him via SMS; she states that
all she said was that she was on leave and would respond to him upon
her return and that
he must communicate to her by email.
[56]
She further states that she
interrupted her leave in order to attend to the invitations
concerning the auction which was scheduled
for 10 March 2015.
She prepared the invitations and the letter to the applicant on 05
March 2015. The letter was however
sent on 06 March 2015
because she had to obtain clarity surrounding the investigation.
[57]
She states that further bidding
conditions were amended, but not because of an alleged vendetta
against the applicant or Raynard
but for substantial reasons.
The
applicant’s response to the alleged investigations
[58]
The applicant denies involvement in
any illegal activities. Most importantly it feels aggrieved that its
name and that of Raynard
have been smeared without them having been
given the opportunity to answer for themselves. It further argues
that the allegations
are based on hearsay evidence.
[59]
The applicant and Raynard deny that
they are the persons from whom the abalone which would be auctioned
was confiscated. This is
however not what is being alleged by the
respondents.
[60]
The applicant alleges that it did
not make use of the services of Greystone. It made use of the
services of Ashraf Cassiem
or Siyathembana Trading 155 (Pty) Ltd in
order to arrange for the export of the abalone under the two
permits. It attaches
a copy of the permit that it used together
with two waybills underwhich the dry abalone was exported, according
to it, lawfully,
on 23 May 2014 and 02 June 2014 respectively.
[61]
The applicant contends further that
neither it nor Raynard have exported anything else under that permit.
It further alleges that
the original permit is kept by customs when
the abalone is exported. It used the permit attached to the
replying affidavit
on 25 July 2014, and a copy of the waybill dated
25 July 2014 in respect of that permit is also attached. Raynard
contends that
he has no idea what annexure LM8 to the answering
affidavit, a waybill from a Kimberley company, has to do with him or
the applicant.
According to the applicant there is no evidence
that Greystone acted on behalf of the applicant, and if Greystone got
hold of the
permit at a later point in time, it must be declared by
customs and Greystone.
[62]
The applicant further contends that
neither it nor Raynard has let or sublet the premises which are
referred to in Gordon’s
Bay. Raynard alleges that he merely
assisted Daniels in searching for tenants but had nothing to do with
Daniels and the
tenants business. He had discussed this
allegation with Daniels who denies that he had informed Enslin that
he had sublet
the premises to Raynard. Raynard alleges that he
knew nothing about the business being conducted on the premises in
respect
of the alleged illegal abalone and the unsubstantiated
accusations against the applicant and him are just another attempt to
smear
their names. Raynard submits that the respondents cannot use
the condition in the rules to unfairly exclude the applicant from the
auction.
Discussion
[63]
The crux of the applicant’s
case is that the prohibition against attending and bidding at an
auction for the sale of confiscated
abalone if a person is being
investigated for a contravention of the Act is irrational and unjust
and must be set aside.
[64]
It appears to me that the nature of
the relief sought in the papers does not always align with what has
been presented
to be the nub of the
applicant’s case in its heads of argument. My understanding of
the relief sought in the notice motion
is that the Court is asked to
order that the applicant is entitled to participate in the auction
and to declare rule 1.2 as invalid
and set it aside. The reasons
given in the founding affidavit as to why the said rule should be set
aside are the following. First,
it is alleged that the rule is
inconsistent with section 28 (1) of the Act. In this regard the
applicant submits that the only
way the respondents can exclude it or
anyone else to bid is to follow the procedure set out in section 28
(1) of the Act. Second,
it alleges that it appears that only four
companies participated in the past abalone auctions, and it is not in
the interest of
the Department to artificially reduce or eliminate
the competition at the auction. Third, the principle of
audi
alterum partem
was not followed. The
applicant submits that it had the right to be informed of the
allegations against it and Raynard and be given
an opportunity to
defend themselves and they cannot just be disqualified from doing
business and participating in an auction due
to an excuse that the
Department is currently busy with an investigation.
[65]
Mr Burger however submits in the
opening paragraphs of his heads of argument that
‘
this
is an application to set aside the
decision
of the second respondent
to exclude the
applicant from an auction of confiscated abalone...’. He
further submits that
‘
the substance
of this application is to set aside
the
unjust and unfair administrative action
of the Respondents by excluding the Applicant from the auction of
abalone in terms of the Marine Living Resources Act. No. 18 of
1998...’ (Own emphasis)
[66]
He
further goes on to outline the right to administrative action that is
lawful, reasonable and fair entrenched in section 33 of
the Bill of
Rights as well the provisions of section 3(1) of the Promotion of
Administrative Justice Act
[4]
(‘PAJA’), which states that:
‘
(1)
Administrative action which materially and adversely affects the
rights or legitimate expectations of any person must be procedurally
fair.’
[67]
There are, in my view, two decisions
that took place in this case. The first relates to the rule 1.2
sought to be declared invalid
and set aside and the second is the
decision that flows from the application of the rule, namely, the
decision to exclude the applicant
from the auction as per the auction
rules, which decision was communicated to the applicant
via
a letter dated 5 March 2015.
[68]
The Court however, as per the relief
sought in the notice of motion is not asked to ‘review’
and set aside the decision
communicated by the second respondent to
the applicant that it could not participate in the auction because of
the auction rules
but rather to declare rule 1.2 invalid and set it
aside.
[69]
Mr Burger does however in his heads
of argument revert to the case that the Court is sought to determine
in terms of the notice
of motion, namely, that rule 1.2 must be
declared invalid. Firstly, he argues that the rule is irrational and
unjustified on the
basis that the duty of the respondents is to
realize the highest possible amount from the sale of the abalone,
which amount would
accrue to the state. The best way to achieve this
is to arrange an auction where everyone with knowledge and means can
bid, so
that a reasonable price can be achieved. The fact that only
four companies previously participated immediately raises concerns
about whether there is genuine competition between the bidders. In
his view, it does not matter whether any of the bidders were
convicted under the Act. The only purpose of the auction is to
achieve the highest price. He argues that if such a person bids
at
the auction, it can only serve to drive the price up to a reasonable
level, not to improperly benefit such a person convicted.
Such a
person can only benefit if he or she pays too little for the abalone,
not if the auction price is a market price. Any benefit
that there
might be is due to the auction not being attended by enough
interested buyers, not because of any previous illegal activity.
Accordingly, the prohibition that a person may not bid if he is
convicted is irrational and not justified.
[70]
Secondly, he argues that the
prohibition that a person may not bid at the auction because they are
being investigated is even more
irrational or far-fetched because
anyone’s say-so without any substance can apparently cause an
investigation. There is no
opportunity for the person being
investigated to defend himself. Once the investigation is completed
(regardless of the outcome
of the investigation) the prohibition
ceases.
[71]
Thirdly, the Act at section 28(1)
spells out the policy that a person has to be heard before his rights
are affected. It provides
that, under certain circumstances
(including a contravention of the Act or a conviction thereunder),
persons be given written notice
before the right or permit is
cancelled or suspended.
[72]
Mr
de Villiers-Jansen argued that what the applicant seeks is a setting
aside of what it terms the unjust and procedurally unfair
administrative action of the respondents by excluding the applicant
from the auction of abalone in terms of the Act. The nub of
its case
therefore according to the respondents is that they were not given an
opportunity to be heard before the decision to exclude
them was
taken. That according to the respondents is a review case and not an
application for a declarator.
[5]
[73]
Whilst
there appears to be conflation by the applicant of the principles
applicable to the relief sought in its notice motion with
those
applicable to the relief as articulated in the heads of argument, the
applicant’s case appears to be based on the broad
principle of
legality and that is how I would approach it. It has been held
that
‘
...legality
also has a wider meaning that goes beyond administrative action, and
this is probably the more common usage of the term
today. Here it
refers to a broad constitutional principle that governs the use of
all public power rather than the narrower realm
of administrative
action.
’
[6]
Rationality
of the rule
[74]
In
the decision of
CCMA
v Law Society, Northern Provinces
[7]
the
Supreme
Court of Appeal held that:
‘
[22]
. . . The constitutional requirement of rationality is an incident of
the rule of law which requires all public power to be
sourced in law.
When making laws the legislature is constrained to act rationally and
not capriciously or arbitrarily. It must
act to achieve a legitimate
government purpose.
A
decision whether a legislative provision or scheme is rationally
related to a governmental object entails an objective enquiry
.
[8]
As it was stated by the Constitutional Court:
[9]
‘
It
is by now well settled that, where a legislative measure is
challenged on the ground that it is not rational, the court must
examine the means chosen in order to decide whether they are
rationally related to the public good sought to be achieved.
It
remains to be said that the requirement of rationality is not
directed at testing whether legislation is fair or reasonable or
appropriate. Nor is it aimed at deciding whether there are other or
even better means that could have been used. Its use is restricted
to
the threshold question whether the measure the lawgiver has chosen is
properly related to the public good it seeks to realise.
If the
measure fails on this count, that is indeed the end of the enquiry.
The measure falls to be struck down as constitutionally
bad.’
(Own emphasis)
[75]
The respondents submit that they had
good reason to limit participation in the auction by making it
available only to those who
are invited. There are certain
policy considerations that are important, one of which is that the
Department does not want
to get involved or engage with entities or
persons who are either convicted of illegal abalone activities or
under investigation
in terms of the Act. It may happen that a
person caught with illegal abalone and from whom it is confiscated
and which abalone
is to be placed on auction could be feeding a
certain market of illegal abalone dealers. When abalone is
confiscated it is
sold or it goes on auction. In the absence of such
a rule (excluding those convicted or being investigated from
participating in
the auction), the person from whom the abalone was
confiscated or the representative of that person, or a person who is
subject
to investigation in respect of illegal abalone activities may
be given an opportunity to recover confiscated abalone. The Rules
are
put in place to curb such a scenario and to ensure that the
Department does not find itself in a position where it actually
facilitates some form of illegal activity. Those are valid policy
considerations, in my view.
[76]
According to the respondents, the
illegal exploitation of wild abalone in South Africa has been
escalating since the 1990’s
despite increased enforcement,
leading to the decline of the resource in some sections of its range.
All wild abalone fishing
was banned in 2008 was but re-opened
in later years. Despite measures introduced in an attempt to reduce
abalone poaching, it remains
a problem and has increased since the
re-opening of commercial abalone fishery. Illegal abalone dealings
present a serious threat
to the sustainability of the resource. The
Department can therefore not be criticised for introducing measures
focused on creating
an effective monitoring and enforcement
mechanism.
[77]
The Policy on handling of
confiscated abalone dated 27 November 2009 provides in paragraph
2.8.1 that, ‘When dried abalone
is confiscated which does not
require any processing, the abalone can be made available for
immediate sale through an auction’.
It
also states in clause 2.8.5 that,
‘Auction
rules are made available to the processors and must be signed and
accepted before the commencement of the auction
.
A reserve price can be placed on the consignment of the auction.
Offers are increased at intervals of at least $ 500.00 per subsequent
offer.’ It is clear that the
Policy
does make provision for the creation of the auction rules although is
quiet on what the rules should say.
[78]
In
Minister
of Education for the Western Cape v Beauvallon Secondary School
[10]
the Court restated a warning that:
‘
Courts
must be wary of trespassing into the domain of public officials by
interfering with decisions entrusted by the Constitution
or
legislation to them. As long as there is a rational connection
between the facts and information available to a public official
and
the achievement of the purpose falling within the power being
exercised, a court cannot interfere merely because it considers
a
decision to be wrong or that a different outcome would have been
preferable.’
[79]
Mr
Burger had no quarrel with the fact that those participating in the
auction must be holders of the necessary permit. It seems
to me a
person convicted for contravening the Act would naturally not be a
holder of a permit
[11]
as the
permit would have necessarily been revoked, following steps mentioned
in terms of section 28 (1) of the Act.
[80]
Even if the convicted person held a
permit, the auction process is very selective and no one may
participate without an invitation.
This much is stated in the
impugned rule 1.2. At the start of his argument, Mr Burger
submitted that the applicant challenged
the last three lines of the
said rule, which dealt with the prohibition to participate in the
auction by reason of an investigation,
contravention of the Act or
conviction. He however corrected that when this was pointed out
by Mr de Villiers- Jansen and
submitted that the applicant challenges
the entire rule 1.2. Be that as it may, it appears that auctions had
been by invitation
even before the introduction of rule 1.2. The
applicant states in the founding affidavit that apparently only four
companies participated
in the auction in the past.
[81]
The applicant’s challenge is
that the invitation limitation is not in the interest of the
Department, as it eliminates competition
and does not afford the
Department the highest price. Whilst Mr Burger’s argument is
valid, the point is that this is not
a ‘normal’ auction.
This is an auction of abalone that has been seized from illegal
activities, which activities the
Department seeks to contain. Those
considerations cannot be ignored, in my view. The auction of
confiscated abalone cannot be separated
from the wider policy
considerations that the respondents have put in place in their
efforts to curb illegal activities.
[82]
There is nothing irrational, in my
view, in restricting the pool of participants in the auction. It is
contended on behalf of the
respondents that in terms of the Policy
the Department has a right not to approve a sale if the prices
offered are too low. It
determines its price based on a model of
comparing recent sales of abalone. The respondents also submit
that the rules prohibit
bid rigging. Once the bidding starts,
prospective bidders are given an opportunity to make reserve price
offers, which they
can only make in minimum increments of $500.00.
When bidding closes the Department would consider the highest revised
price offer.
At this stage the Department could decide not to
sell if it is not satisfied with the highest offer. The
Department sets
a reserve price in respect of each load to be
auctioned. This according to the respondents is consistent with
the provisions
of section 63 (1) (b) of the Act which requires a
reasonable price. Section 63(1)(b) provides that:
‘
If
any fish or other thing of a perishable nature is seized in terms of
section 51 the Minister may, notwithstanding any other provision
of
this Act –
..
(b)
cause the sale of the fish or other thing a
t
a price which is reasonable in the circumstances
and,..’
(Own emphasis)
[83]
The reason offered by the
respondents on why the bidding process does not cater for everyone is
sensible, in my view. The argument
that the only purpose of the
auction is to achieve the highest price regardless of who
participates is therefore unsustainable.
[84]
Turning to the argument that the
rule 1.2 is invalid because it is inconsistent with section 28.
Section 28 (1) of the Act provides
as follows:
‘
(1)
If a holder of any right, licence or permit in terms of this Act –
(a)
has furnished information in the
application for that right, licence or permit, or has submitted any
other information required
in terms of this Act, which is not true or
complete;
(b)
contravenes or fails to comply with a
condition imposed in the right, licence or permit;
(c)
contravenes or fails to comply with a
provision of this Act;
(d)
is convicted in terms of an offence in
terms of this Act; or
(e)
fails to effectively utilise that right,
licence or permit, the Director-General made by written notice
delivered to such holder,
or sent by registered post to the said
holder’s last known address, request the holder to show cause
in writing, within a
period of 21 days from the date of the notice,
why the right, licence or permit should not be revoked, suspended,
cancelled, altered
or reduced, as the case may be.’
[85]
Section 28 does not apply in the
present matter. It provides for a situation where the Minister
decides that he/she needs
to withdraw, revoke, cancel, or alter an
existing permit. In this case there was never communication to the
applicant that the
Minister wanted to revoke or alter its permit as
the case may be. The notification that should be given by the
Director-General
in terms of that provision to a holder applies to
the situations outlined in section 28(1) (a) to (e), in respect of
which such
holder is subsequently given an opportunity to show cause
in writing why the licence should not be revoked, suspended,
cancelled,
altered or reduced [by the Minister]. There appears to be
no consideration at this point about revoking, cancelling, suspending
or reducing the applicant’s licence.
[86]
I now turn to the issue of
audi
alteram partem.
In this instance the
rule is attacked for being irrational on the basis that no
opportunity is given to the person investigated
to be heard. It is
submitted by applicant that a person is investigated simply on
someone else’s say-so and that once that
investigation is
completed the prohibition ceases, regardless of the outcome of the
investigation.
[87]
According to Mr de Villiers-Jansen,
the validity of the rule cannot be linked to procedural fairness
because the rules do not require
procedural fairness in order to be
valid. He further argued that if the Policy that empowers the
Department to make the Rules
is not under attack (which is the case
in this matter) then the Rules remain valid. He submitted that the
decision to exclude the
applicant must be seen as separate and
distinct from the empowering provision, i.e. the rule. In his view,
the applicant could
have argued that its right to procedural fair
administrative action has been affected because it was not heard
before the decision
to exclude it was taken. However, it did
not do so. The rule was attacked, and on the basis of procedural
fairness, which,
according to the respondents, is not required for a
rule’s validity.
[88]
Mr
Burger referred to the judgment o
f
Chairman, State Tender Board, and another v Supersonic Tours (Pty)
Ltd
[12]
.
The Court said the following in that judgment:
‘
[14]
The STB is an ‘organ of State’ as defined in s239 of the
Constitution, incorporated in the definitions section,
s 1, of PAJA.
The STB made a ‘decision relating to imposing a restriction’
as contemplated in para
(d)
of the definition of ‘decision’ in s 1 of PAJA. The
decision was an exercise of a public power in terms of legislation,
viz the regulations quoted above, and that requirement of
‘administrative action’ as defined in s 1 of PAJA is
accordingly
fulfilled. The decision had immediate and direct legal
consequences for Supersonic. The decision accordingly
constituted
an ‘administrative action’ as defined in s 1
of PAJA and the provisions of PAJA are applicable: compare
Grey’s
Marine Hout Bay (Pty) Ltd v Minister of Public Works
[13]
.
The
rights of Supersonic were materially and adversely affected by the
decision and Supersonic was consequently entitled to procedural
fairness of s 3(1) of PAJA.’
[89]
The crux of the appeal in the
State
Tender Board
case was that Supersonic
was at no time advised that it was suspected of fraud or having acted
in bad faith, or that the STB was
considering disqualifying it for
either of these two reasons. The court found that the decision of the
State Tender Board was procedurally
unfair as contemplated in s 6(2)
(c) and fell to be set aside in terms of s 8(1), of PAJA.
[90]
Mr Burger argued that there is no
logical difference between a State Tender Board telling Supersonic
that it could not tender in
future and the Department saying that the
applicant cannot come and bid at an auction in future. According to
him, the same principle
applied.
[91]
Mr de Villiers-Jansen submitted that
the case of
State Tender Board
was distinguishable from this case. First, the relief sought in
that case was an order setting aside a decision on review.
Second,
Supersonic had already been awarded the tender in that particular
case. In that context the Court held that the decision
to
exclude Supersonic from further tenders was administrative action and
one could understand that in that context a procedurally
fair process
had to be followed. In this case, he argued, there was no correlation
between the process of administrative action
and the relief that is
being sought because even if there should have been some process to
be followed it did not affect the validity
of the rule that was being
sought to be set aside.
[92]
Whilst
Mr de Villiers-Jansen’s argument may be convincing on the
distinctions to be drawn from
State
Tender Board
case, it has been held that the principle of fairness is ‘inherent’
in the rule of law.
[14]
It was
held in
Albutt
v Centre for the Study of Violence and Reconciliation, and others
[15]
that ‘although there is no right to be pardoned, an applicant
seeking pardon has a right to have his application “considered
and decided upon rationally, in good faith, [and] in accordance with
the principle of legality.
’
[93]
The
court in
Albutt
went
further to say that
‘
to
pass constitutional muster therefore, the President’s decision
to undertake the special dispensation process, without affording
victims the opportunity to be heard, must be rationally related to
the achievement of the objectives of the process.
’
It
appears that the effect of such decision is that the principle of
legality might well impose a standard of procedural-fairness
with
respect to the exercise of public power where it would be irrational
not to do so.
[16]
[94]
I do not understand the applicant’s
case to be that it should have been heard prior to the introduction
of the rule; its case
(although not clearly stated as such) is rather
that there should be or should have been some form of a fair
procedure
(audi alteram partem
)
mechanism built into the rule, such that one is given an opportunity
to be heard before being excluded because of an investigation,
in a
similar vein to that provided for in section 28(1) of the Act, which
affords a person a chance to show cause why his, her
or its right,
license or permit should not be revoked. The applicant contends that
the rule is irrational because it means a person
could effectively be
excluded simply on someone’s say-so. The key question in this
particular instance, as I understand it,
is whether there should be
allowance within the rule for a person who is being investigated to
be heard ‘as matter of rationality’
prior to a decision
being made to exclude him, her.
[95]
I have already found that there is a
rational connection between rule 1.2 and the public good it seeks to
realise. The lack of an
express
audi
provision in the rule does not make it invalid. The issue of not
being heard does not lie with the rule, but with the application
of
the rule in my view.
[96]
The wording of the rule in its
current form does not in itself exclude that possibility that the
person under investigation is in
fact heard before an auction takes
place. Each case must however be dealt with in its own context.
[97]
An investigation is an on-going
process. The outcome of the investigation may find that the
allegations are without any substance.
The fact that the product at
an auction may not have been seized from the person under
investigation and wishing to participate
does not make the rule
irrational, in that the objectives of the respondents must be seen in
the wider sense which is to curb a
cycle of illegal activities.
[98]
I accept that in this instance the
applicant’s director was not aware that he and the applicant
were subjects of an investigation
until the applicant was told by the
second respondent in a letter dated 5 March 2015. The reason given by
the respondents for not
informing the applicant up to such a date is
that it is at times not in the interest of the Department to advise
the subjects of
the investigation as that may jeopardise the
investigation process.
[99]
I am not persuaded by the contention
that the Rules were created purely to ensure that the applicant was
excluded from the auction.
In support of such a contention the
applicant pointed to the fact that the previous Rules did not have
such a condition and alleged
a vendetta of persons in the Department
against him. That is all speculative. It must also be borne in mind
that the previous rules
excluded the applicant from participating
because it did not have the required permit at that stage.
[100]
Mr Burger submitted further that the
applicant had a legitimate expectation that it would be informed of
the next auction, in the
light of the prior promise made to it. It
also had a right and a legitimate expectation as a holder of a permit
to process abalone,
to participate in the auction of the abalone.
According to him the applicant had not been convicted of any wrong
doing and wanted
to participate in the auction. In this regard
Mr Burger referred to section 3(1) of PAJA which refers to a right or
a legitimate
expectation. He argued that while the Department
does not have to inform anybody in respect of the investigation, if
that
investigation is going to affect a person’s rights, such
as the right to participate in an auction or a tender, then that
person must first be heard.
[101]
It is argued on behalf of the
respondents that it is not correct to suggest that the permit that
the applicant has authorises or
entitles it to participate in an
auction. The applicant has two permits being to engage in Marine
Aquaculture activities, which
includes the processing of abalone and
to operate a fish processing establishment. These permits therefore
could not be used as
a basis or the authority to participate in the
auction. The possession of a permit simply goes to the eligibility of
a person to
participate in the auction but not to whether or not a
person qualifies to participate as of right.
[102]
The respondents further submit that
the email that was sent to the effect that interested parties would
be notified of the date
of the auction could not be seen to create a
legitimate expectation to participate in the auction itself.
Furthermore the fact
that the applicant possesses two permits does
not create a legitimate expectation to participate in the auction.
What could
very well create a legitimate expectation would be if the
applicant or any interested person met the requirements set out in
the
rules or the auction conditions. At the stage of the initial
cancellation of the auction, all the applicant was told was that the
auction would be rescheduled and the parties would be informed of the
date of the next auction.
[103]
In
the judgment of
Duncan
v Minister of Environment Affairs and Tourism and another
[17]
the court held as follows:
‘
[15]
Reliance on the doctrine of legitimate expectation for any purpose
presupposes that the expectation qualifies as legitimate.
The
requirements for the legitimacy of such expectation have been
formulated thus;
(a)
The representation inducing the expectation
must be clear, unambiguous and devoid of any relevant complication.
(b)
The expectation must have been induced by
the decision-maker.
(c)
The expectation must be reasonable.
(d)
The representation must be one which is
competent and lawful for the decision-maker to make.’
[104]
I am persuaded by the respondents’
argument that the permits did not give the applicant the right or a
legitimate expectation
to participate in the auction. They gave it a
right to engage in Marine Aquaculture Activities and to operate a
fish processing
establishment. Furthermore, the email could not have
created a legitimate expectation. It only stated that the applicant
would
be notified of the next date of the auction. It must also be
remembered that although an email was written to the applicant about
the postponed auction, the applicant was not eligible to participate
in the February 2015 auction, in any event, because it did
not have a
permit.
[105]
The
email could not in itself be seen as an invitation. The recipients of
the initial letter informing parties of the reschedule
would still
need to be invited and still decide whether or not to
participate.
[18]
Therefore,
until such time that an invitation to participate in an auction was
actually extended to a person there could be no
legitimate
expectation. Furthermore, in terms of the Policy persons that
get invited would have to accept the rules by signing
for acceptance
thereof.
Bona fides of
the investigation
[106]
I am satisfied that on the face of
it the respondents have been able to show that there existed
legitimate reasons that necessitated
an investigation. The Court is
not called upon to determine on the balance of probabilities whether
the allegations are true, and
is not in a position to do so. The
truthfulness of the allegations is for the investigation process to
determine. However, the
details of the allegations may be relevant to
the extent they can assist the Court in its finding whether the
investigation was
warranted and
bona
fide
. It would indeed be an act of
utmost bad faith if the applicant’s claims that the
investigations were malicious were to be
found to be true. On
the face of what is before this Court, however, I am unable to find
that the investigation is not
bona fide
.
[107]
For reasons set out above, the
applicant’s application must fail and costs must follow the
result.
[108]
I therefore make the following
order:
1.
The application is dismissed with costs.
N
P BOQWANA
Judge
of the High Court
APPEARANCES
FORTHE
APPLICANT: Adv L Burger SC
INSTRUCTED
BY: Smith Tabata Buchanan Boyes, Cape Town
FOR
THE RESPONDENTS: Adv E de Villiers-Jansen
INSTRUCTED
BY: State Attorney, Cape Town
[1]
No.
18 of 1998
[2]
2012
(2) BCLR 181 (CC); 2012 (2) SA 50 (CC)
[3]
President
of the Republic of South Africa and Others v M & G Media Ltd
supra at para 31
[4]
No.3
of 2000.
[5]
It
was held in
Minister
of Education for the Western Cape v Beauvallon Secondary School
2014
(5) BCLR 547
(CC);
2014 (3) SA 481
(CC) (25 March 2014) - the
implementation of policy is generally administrative in nature. In
determining whether a decision
by a public official is
administrative or executive in nature, a close analysis is required
and that it must be remembered that
a decision heavily influenced by
considerations of policy is a clear indication of it being executive
in nature.
[6]
See
Administrative Law in South Africa, Second edition, 2012, Cora
Hoexter at page122. See also
Judicial
Service Commission and Another v Cape Bar Council and Another
2012
(11) BCLR 1239
(SCA);
2013 (1) SA 170
(SCA);
[2013] 1 All SA 40
(SCA) at para 21
[7]
(005/13)
[2013] ZASCA 118
(20 September 2013)
[8]
Law
Society of South Africa & others v Minister for Transport &
another
2011 (1) SA 400
(CC) paras 32 and 33.
[9]
Law
Society of South Africa & others v Minister for Transport &
another
2011 (1) SA 400
(CC) paras 34 and 35 and Pharmaceutical
Manufacturers Association of SA & another: In re Ex parte
President of the Republic
of South Africa & others
[2000] ZACC 1
;
2000 (2) SA
674
(CC) paras 85 and 86 and see Affordable Medicines Trust &
others v Minister of Health & others
[2005] ZACC 3
;
2006 (3) SA 247
(CC) paras
75-78.
[10]
Minister
of Education for the Western Cape v Beauvallon Secondary School
supra at para 38
[11]
See
clause 1.1 of Sale of confiscated abalone Administrative rules and
procedures dated 04 February 2015 and clause 1.2 of the
Sale of
confiscated abalone Administrative rules and procedures dated 10
March 2015.
[12]
[2008] ZASCA 56
;
2008
(6) SA 220
(SCA) at 227 C to E, para 14
[13]
[2005] ZASCA 43
;
2005
(6) SA 313
(SCA)
(2005 (10) BCLR 931)
at paras 23, 24 and 28
[14]
See
Administrative Law in South Africa, Second Edition, 2012, Cora
Hoexter at page 420
[15]
2010
(3) SA 293
(CC) at para 49.
[16]
See
Murcott “Procedural fairness as a component of legality: Is a
reconciliation between Albutt and Masetlha possible?”
in
2013
SALJ 260
at 260.
[17]
2010
(6) SA 374
(SCA) at para 15
[18]
See
paragraph 22 referring to a letter dated 05 March 2015 as an
example of an invitation letter