Fleming v Fleming and Another (328/87) [1988] ZASCA 158; [1989] 4 All SA 417 (AD) (29 November 1988)

Fleming v Fleming and Another (328/87) [1988] ZASCA 158; [1989] 4 All SA 417 (AD) (29 November 1988)

The court held that the relevant regulations at the time prohibited the transfer of egg production permits, and the second respondent was not empowered to substitute permit holders or issue a new permit to the first respondent. The issuance of permit 4/125/06 to the first respondent was therefore ultra vires and a nullity. The prohibition in regulation 9 was absolute and applied to the administrative authority, not merely to private parties. The appellant's rights in permit 4/125/05 were not determined, as the appeal focused on the validity of the first respondent's permit. The conduct of the second respondent, who took sides in the dispute and persisted in an incorrect interpretation of...

Citation
[1988] ZASCA 158
Parties
Appellant: Martha Maria Fleming; Respondent: Gideon Steyn Fleming; Respondent: Chief Executive Officer of the Egg Board
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
29 November 1988
Case Number
328/87
Procedural Posture
Civil Appeal / Appeal From the Transvaal Provincial Division
Outcome
Appeal upheld with costs against both respondents, including costs of applications for leave to appeal.
Judges
Corbett, Joubert, Vivier, Steyn, Eksteen
Legal Topics
Statutory Permit Transfer, Delectus Personae, Egg Production Regulation, Nullity of Administrative Action
Administrative Law Land and Property Statutory Permit Transfer Delectus Personae Egg Production Regulation Nullity of Administrative Action

Case Brief

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Parties

Martha Maria Fleming

Appellant

Gideon Steyn Fleming

Respondent

Chief Executive Officer of the Egg Board

Respondent

Procedural Posture

Civil Appeal / Appeal From the Transvaal Provincial Division

Legal Issues

  1. 1 Whether the transfer and issuance of egg production permits by the second respondent was valid under the governing statute and regulations.
  2. 2 Whether the first respondent acquired any rights in permit 4/125/06.
  3. 3 Whether the appellant retained rights in permit 4/125/05.

Ratio Decidendi

The court held that the relevant regulations at the time prohibited the transfer of egg production permits, and the second respondent was not empowered to substitute permit holders or issue a new permit to the first respondent. The issuance of permit 4/125/06 to the first respondent was therefore ultra vires and a nullity. The prohibition in regulation 9 was absolute and applied to the administrative authority, not merely to private parties. The appellant's rights in permit 4/125/05 were not determined, as the appeal focused on the validity of the first respondent's permit. The conduct of the second respondent, who took sides in the dispute and persisted in an incorrect interpretation of...

Court Disposition

Appeal upheld with costs against both respondents, including costs of applications for leave to appeal.

Orders

  • The appeal succeeds with costs, including costs of the application for leave to appeal in both courts.
  • The order of the court a quo is set aside and replaced with: 'The application is dismissed with costs, which are to be paid jointly and severally by the applicant and the second respondent.'