Labuschagne (Visagie) v Minister of Agriculture, Forestry & Fisheries and Others (67725/2015) [2015] ZAGPPHC 694 (6 October 2015)

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

Case No: 67725 / 2015

DATE: 6/10/2015

Before: The Honourable Holland-Müter AJ.

In the matter between:

C S LABUSCHAGNÉ ( VISAGIE )

Applicant

and

THE MINISTER OF AGRICULTURE, FORESTRY

& FISHERIES

1st Respondent

THE SOUTH AFRICAN VETERINARY COUNCIL

2nd Respondent

TINA ENGELS N O

3rd Respondent

EDITH VRIES N O

4th Respondent

JUDGMENT

[1] The matter was heard on 23 September 2015 in the urgent court, the appli-cant requesting that the decision by the 1st, 3rd and 4th respondents whereby she is placed at Vanderbijlpark to preform compulsory community service ( hereafter referred to as “CCS”

) as from January 2016.

[2] The applicant is at present a final year veterinarian student at the University of Pretoria ( Onderstepoort Campus ).

[3] The 1st Respondent is the Minister of Agriculture, Forestry and Fisheries, the department ( hereafter referred to as the “DAFF” ). The DAFF, together with the 2nd Respondent, adopted the concept of CCS as far back as 2003. The applicable legislation was amended during 2012 to provide for such

CCS, with the 1st Respondent responsible to draft the necessary Regulations relating to the performance of CCS. The Regulations are at present not yet adopted but it is envisaged that it will happen during October 2015.

[4] The applicant avers that when registering at first for the degree BSc in Vete-nary Science, the CCS was not compulsory to become a veterinarian. She however became aware of the envisaged CCS and on 10 April 2015 a mee-ting took place at the Onderstepoort Campus between DAFF, the 2nd Re-spondent and the Onderstepoort Veterinary and Para-Veterinary Students Committee ( “OPVSC” ). Although the

applicant did not attend the mee-ting due to study commitments, she was informed that at the meeting the application and implementation

of the CCS was discussed.

[5] The outcome of the meeting was that final year students had to apply for 3 choices in 5 provinces with a total of 15 choices. They were also requested to submit special circumstances as motivation for any request regarding placement in a specific region. The applicant submitted her application on

19 June 2015, listing Pretoria as her place of first choice and setting out her special circumstances in motivation of her choice of Pretoria as being married. She also listed the North West province and Mpumalanga as her second and third choice provinces. Her special circumstance (being married) was recorded by the 1st respondent in “DAFF-3".

[6] I pose the state that although the question of urgency was raised by the respondents, I am satisfied that there were sufficient reasons set out by the applicant in her founding affidavit that urgency existed and that if was not self-created. She had to wait until 31 July 2015, the date until when so-called swaps between students could take place and thereafter engaged with the respondents to resolve that matter. The final date of accepting the allo-cated placements is 30 September 2015. Under the circumstances I am sa-tisfied that the matter is urgent and allowed arguments on the merits to con-

tinue.

[7] In a letter dated 2 July 2015 ( annexure SL-4"), the 3rd respondent, being on

the placement committee, sets out the agreed placement procedure. This en- tailed that one, unique first choices were allocated where no other students

applied for the place. This is not applicable on the applicant. Secondly the first choices were looked at per place, and if there were more applicants for such place than could be accommodated, “special circumstances” were con sidered. If there were no relevant additional information, a ‘lucky draw’ system was applied. Thereafter the process was applied to 2nd choices and thereafter 3rd choices until the 15th choice. Once an applicant’s 15 choices have all been allocated, the “special circumstances” were considered and therefore some students were placed at none of their choices but in the pro-vince of their choice.

[8] In the case of the applicant, the only inference is that she could not be placed at any of her 15 indicated places of choice because Vanderbijlpark was never one of her choices. See par 7.2 of the founding affidavit. If the process described above by the 3rd respondent was applied to the applicant, it can be inferred that her ‘special circumstance’ - being married - ought to have been considered in the second stage after unique requests were considered. There is however no such averment or minutes of the placement committee submitted on behalf of the respondents to indicate the procedure followed.

[9] If the process of selection as set out in the answering affidavit in par 44 to 47 is considered, the only inference is that the applicant’s special circum-stances were only considered after she could not be selected in respect of Pretoria and any of the other choices. This materially differs from what the 3rd respondent informed the applicant on 2 July 2015 as set out above. No indication is given why she could not be placed at any of her 15 elected choices. This is contrary the guidelines explained by the 3rd respondent.

[10] The process followed by the placing committee is in my view not in accor-dance to what was purported to be the selection guidelines.

There is further no indication that the applicant was afforded the opportunity to submit further submissions as to the placement at Vanderbijlpark nor does the pro-cess provide for any internal appeal procedure.

[11] OPVSC raised several concerns with the respondents on 15 July 2015 after a meeting with the stakeholders ( annexure “SL -11" ) with no result. Although the Regulations need to be republished according to the respon- dents, the applicant does not attack the CCS in general. She wants a revisit to the process concerning her placement. This was argued on her behalf at the hearing of the application. The relief sought is not to invalidate the CCS therefore no need arose to comply with Rule 16 (A ) as set out in the heads of argument on behalf of the respondents.

[12] On behalf of the applicant it was submitted that the grounds of review in terms of section 6 of the Promotion of Administration

Justice Act, 3 of 2000 ( PAJA ) is that the administrative action was procedurally unfair [ sec 6 (2)(c) ], taken without consideration of relevant considerations [ sec 6(2) (e)(iii)], and taken arbitrarily [ sec 6(2)(e)(iv)]. The respondents argued the contrary. It was further submitted on behalf of the respondents, with refe-rence to ALLPAY CONSOLIDATED INVESTMENT HOLDINGS (PTY) LTD v CHIEF EXECUTIVE OFFICER, SOUTH AFRICAN SOCIAL SECURITY AGENCY 2014 (4) SA 179 CC on 196-198 that the public interest be assessed not only in relation to the immediate consequen-ces of invalidity, but also in relation to the effect of the order on future pro-curement and social-security matters. It was argued that should I review the administrative action in this instance, the effect on other placings will result in prejudice to other students already placed. I disagree that this is what re- sults from the ALLPAY-case. To follow such submission can only result in the condoning of unfair administrative actions and render the review process powerless.

[13] In my view the applicant has made out a clear case for this court to intervene and to refer the matter back to the respondents for proper consideration ac-cording to their own guidelines. The consideration of ‘special circumstan-ces’ should be done in the second step before a random ‘lucky draw’ isdone.

[14] Taking into account the relief sought by the applicant in her notice of mo-tion, this court cannot order the respondents to place the applicant in Pretoria for the following:

14.1 There is no indication or information as to how many places are available in Pretoria for rendering CCS;

14.2 No record of the placing committee’s actions were placed before me to enable myself to decide on any placement of the applicant in any of her 15 elected choices or of the other students’ placements and the relevant information considered in each instance.

[15] The 2nd respondent indicated in a letter which was handed in at the hearing that it does not oppose the application in that no relief is sought against the 2nd respondent. Under the circumstances no costs will be awarded against the 2nd respondent.

[16] The 3rd and 4th respondents also did not oppose the application, they were cited in their capacity nomine officio as the responsible persons making the decision taken on review. No costs are awarded against them.

[17] After hearing arguments and considering the facts set out in the affidavits, the following order is made:

17.1 The decision taken by the placement committee placing the applicant at Vanderbijlpark is hereby reviewed and set aside;

17.2 The matter is remitted back to the 1st, 3rd and 4th respondents for re-consideration with directions to place the applicant at one of her elected choices in order of choice, taking into consideration her ‘special circumstances’ as indicated by her;

17.3 Granting the applicant leave to approach the Honourable Court on the same papers, supplemented as the circumstances may require, further relief;

17.4 The 2nd Respondent is ordered to pay the costs of the application.

_______________________

HOLLAND-MUTER AJ