Director-General of the Department of Agriculture, Forestry and Fisheries for the Republic of South Africa and Another v Nanaga Property Trust represented by its Trustee for the time-being (4689/2014) [2016] ZAECGHC 22 (21 April 2016)

NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

CASE NO: 4689/2014

In the matter between

THE DIRECTOR-GENERAL OF THE DEPARTMENT

OF AGRICULTURE, FORESTRY AND FISHERIES

FOR THE REPUBLIC OF SOUTH AFRICA

First Applicant

THE HONOURABLE THE MINISTER OF

AGRICULTURE, FORESTRY AND FISHERIES

FOR THE REPUBLIC OF SOUTH AFRICA

Second Applicant

and

NANAGA PROPERTY TRUST REPRESENTED

BY ITS TRUSTREE FOR THE TIME-BEING

Respondent

JUDGMENT IN RESPECT OF

APPLICATION FOR LEAVE TO APPEAL

HARTLE J

1. The applicants (respondents a quo) have applied for leave to appeal against my judgment delivered in the above mater on 16 February 2016.

2. The respondent (applicant a quo) opposes the application.

3. From the numerous grounds relied upon by the applicants, which are outlined in the notice of application, it is obvious that the anticipated appeal is not directed against the primary reasons indicated in the judgment for setting aside the impugned administrative decision.

4. In this regard I found that the official who made the decision was not authorized to do so.

5. For the rest, I made it clear in my judgment that my remarks concerning the merits of the applicants’ “purported decision” were limited to mere observations. They do not go to the ratio of my judgment.

6. The nature of an obiter dictum is that it does not bind any other court, even lower courts. It is a mere expression of an opinion upon points of law which is not necessary for the decision of the case. At most it is valued as a reasoned statement which may well influence another court in future decisions, but it is not binding on such other courts.[1]

7. Mr. Cole suggested as the chief motivation why I should allow the appeal that I have made it difficult for the Department going forward because of the views expressed in the judgment concerning the unique approach it adopted in the decision making process and, from what I can gather, intends to continue to subscribe to. This is however not a valid basis upon which to grant leave to appeal.

8. Leave to appeal may only be given in the circumstances set forth in section 17 of the Supreme Court Act, No. 10 of 2013 (“SCA”), which provides as follows:

“17. Leave to appeal.—(1) Leave to appeal may only be given where the judge or judges concerned are of the opinion that—

(a) (i) the appeal would have a reasonable prospect of success; or

(ii) there is some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration;

(b) the decision sought on appeal does not fall within the ambit of section 16 (2) (a); and

(c) where the decision sought to be appealed does not dispose of all the issues in the case, the appeal would lead to a just and prompt resolution of the real issues between the parties.”

9. It goes without saying that the appeal does not fall within the ambit of section 16(2)(a) of the SCA.

10. This subsection provides that:

“(2) (a) (i) When at the hearing of an appeal the issues are of such a nature that the decision sought will have no practical effect or result, the appeal may be dismissed on this ground alone.”

11. Since the applicants cannot ask upon appeal that the impugned decision be set aside, there is self evidently no practical effect or result to be achieved by the proposed appeal. No administrative decision can be revived thereby. The decision that was made is history and had its own unique circumstances. What the applicants appear to hope for (by the stated grounds for the application) is an academic opinion from a full bench. This is plainly impermissible and leave to appeal should not be granted for such a self-serving purpose however challenged the Department might feel by my contrary viewpoint of how the National Forest Act, No. 84 of 1998 ought to be interpreted. Neither does Mr. Cole’s motivation on behalf of the applicants suggest any other compelling reason why the appeal should be heard, except that I have supposedly expressed firm opinions on the matter. If my views on the subject are wrong, as they may well be, then it remains open to the Department to simply persuade other courts in possible similar litigation of the wrongness of such views held. The Department’s comfort lies in the protection afforded to them by the stare decisis principle of application in our courts, the corollary of which is that obiter dicta do not bind other courts.

12. In the result the application for leave to appeal is dismissed, with costs.

_________________

B HARTLE

JUDGE OF THE HIGH COURT

DATE OF HEARING : 18 April 2016

DATE OF JUDGMENT: 21 April 2016

Appearances:

For the applicants: Mr. S H Cole instructed by N N Dullabh and Co., 5 Bertram Street, Grahamstown (Ref. Mr. Wolmarans/sa)

For the respondent: Mr. DH De la Harpe, instructed by De Jager & Lordon Inc., 2 Allan Street, Grahamstown (Ref. W De Jager/M235)

[1] Jajbhay v Cassim 1940 TPD 182 at 185.