Van Zyl (EDMS) Beperk (t/a ZZ2) and Others v Minister of Agriculture Forestry and Fisheries and Others (45144/2017) [2020] ZAGPPHC 283 (24 June 2020)
- Citation
- [2020] ZAGPPHC 283
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- North Gauteng High Court, Pretoria
- Panel
- S A M Baqwa
- Case number
- 45144/2017
More details
- Court
- North Gauteng High Court, Pretoria
- Panel
- S A M Baqwa
- Case number
- 45144/2017
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the application for leave to appeal raised important constitutional and administrative law issues, including the interpretation of statutory provisions and their consistency with the Rule of Law and property rights under the Constitution. The judge was persuaded that there was a reasonable prospect of success on appeal and that the matter involved complex factual and legal questions warranting consideration by the Supreme Court of Appeal. The application for leave to appeal was therefore granted, with costs to be costs in the appeal.
Court disposition
Leave to appeal granted to the Supreme Court of Appeal; costs to be costs in the appeal.
Orders
- Leave to appeal is granted to the Supreme Court of Appeal in terms of Section 17(1) of the Superior Courts Act.
- Costs to be costs in the appeal.
02
Material facts
Parties
Bertie Van Zyl (EDMS) Beperk (T/A ZZ2)
Applicant Counsel: M.C Maritz (SC)Tomato Producers’ Organisation
Applicant Counsel: B.C Stoop (SC)Noordelike Uie Komitee
ApplicantFresh Produce Importers’ Association NPC
ApplicantMinister of Agriculture Forestry and Fisheries
Respondent Counsel: C.E Puckrin (SC)Production Control for Agriculture
Respondent Counsel: H Epstein SCLeaf Services (Pty) Ltd Nejamogul Technologies
RespondentAnd Agric Services
RespondentAgency for Food Safety (Pty) Ltd
RespondentImpumelelo Agribusiness Solutions (Pty) Ltd
RespondentPerishable Products Export Control Board
Respondent Counsel: L.C KellySouth African Meat Industry Company
Respondent Counsel: M Mostert03
Procedural history
Posture
Leave to Appeal / Application for Leave to Appeal to the Supreme Court of Appeal
04
Questions and positions
Legal issues
- 01
Whether Section 3(1A)(b)(ii) read with Section 3A(4) of the Agricultural Product Standards Act is inconsistent with the Rule of Law and/or Section 195(3) of the Constitution.
- 02
Whether the legislative provisions permit arbitrary deprivation of property contrary to Section 25(1) of the Constitution.
- 03
Whether the Applicants are precluded from pursuing a review until internal remedies have been exhausted under PAJA.
- 04
Whether the imposition of inspection fees by assignees is appealable under Section 10 of the Act.
Party arguments
- Applicant
- The applicants argued that Section 3(1A)(b)(ii) read with Section 3A(4) of the Agricultural Product Standards Act is unconstitutional as it violates the Rule of Law and Section 195(3) of the Constitution. They contended that the provisions permit arbitrary deprivation of property, contrary to Section 25(1) of the Constitution. The applicants sought a declaration of invalidity, suspended for 18 months to allow Parliament to amend the legislation. They also challenged the determination of inspection fees by the second respondent, arguing that the process was unlawful and that internal remedies under PAJA should not preclude judicial review in this instance.
- Respondent
- The respondents maintained that the imposition of inspection fees by assignees is a decision appealable under Section 10 of the Agricultural Product Standards Act. They argued that the applicants are required to exhaust internal remedies before approaching the court, as stipulated by Section 7(2)(a) of PAJA. The respondents asserted that the legislative provisions are constitutionally valid and do not permit arbitrary deprivation of property.
05
Court’s reasoning
Legal principles
- 01
Section 17(1) of the Superior Courts Act 10 of 2013
Leave to appeal may only be granted if there is a reasonable prospect of success or some other compelling reason, including conflicting judgments.
- 02
Section 7(2)(a) of the Promotion of Administrative Justice Act 3 of 2000
A party must exhaust internal remedies before seeking judicial review of administrative action.
- 03
Section 25(1) of the Constitution of the Republic of South Africa, 1996
No one may be arbitrarily deprived of property.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the application for leave to appeal raised important constitutional and administrative law issues, including the interpretation of statutory provisions and their consistency with the Rule of Law and property rights under the Constitution. The judge was persuaded that there was a reasonable prospect of success on appeal and that the matter involved complex factual and legal questions warranting consideration by the Supreme Court of Appeal. The application for leave to appeal was therefore granted, with costs to be costs in the appeal.
Obiter and limits
- The matter raises significant constitutional questions regarding the validity of statutory provisions affecting property rights.
- Complex issues of fact and law are present, justifying appellate scrutiny.
Court disposition
Leave to appeal granted to the Supreme Court of Appeal; costs to be costs in the appeal.
- Leave to appeal is granted to the Supreme Court of Appeal in terms of Section 17(1) of the Superior Courts Act.
- Costs to be costs in the appeal.
Source and reliance status
North Gauteng High Court, Pretoria
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
North Gauteng High Court, Pretoria
Judgment
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHERS JUDGES: YES/NO
(3)
REVISED
Case No: 45144/2017
In the matter between:
Bertie Van Zyl (EDMS) BEPERK (T/A ZZ2)
First Applicant
Tomato Producers’ Organisation
Second Applicant
Noordelike Uie Komitee
Third Applicant
Fresh Produce Importers’ Association NPC
Fourth Applicant
and
The Minister of Agriculture Forestry and Fisheries
First Respondent
Production Control for Agriculture
Second Respondent
Leaf Services (Pty) Ltd Nejamogul Technologies Third Respondent
And Agric Services Fourth Respondent
Agency for Food Safety (Pty) Ltd
Fifth Respondent
Impumelelo Agribusiness Solutions (Pty) Ltd
Sixth Respondent
Perishable Products Export Control Board
Seventh Respondent
South African Meat Industry Company Eighth Respondent
LEAVE
TO APPEAL JUDGMENT
BAQWA
J
INTRODUCTION
1 This is an application for leave to appeal to the Supreme Court of Appeal, alternatively to the Full Court of the Gauteng Division, Pretoria, against the judgment and order granted by this Court on 28 February 2020.
2 Section 17 of the Superior Courts Act 10 of 2013 provides as follows:
“(1) Leave to appeal may only be given where the judge or judges concerned are of the opinion that-
(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.”
3 In this matter the Applicants sought an order declaring that Section 3 (1A) (b) (ii) read with Section 3A (4) of the Agricultural Product Standards Act 119 of 1990 (“the Act”) is not in accordance with the Rule of Law and/or Section 195 (3) of the Constitution and/or that it permits the arbitrary deprivation of property contrary to the provisions of Section 25 (1) of the Constitution and to be unconstitutional and invalid.
4 Further, the Applicant sought a declaration of invalidity to be suspended for a period of 18 months to enable the First Respondent and Parliament to enact the required changes to the legislative provisions, which had been challenged, in order to render them constitutionally valid.
5 The Applicants complied with the provisions of Rule16A as the application amounted to a constitutional challenge. They filed a Section 16A notice.
6 The Applicants also sought the review and setting aside of the Second Respondent’s determination of its inspection fees in terms of Section 3 (1A) (b) (ii) of the Act in notice 1 of 2017 published in Government Gazette 40537 dated 6 January 2017.
7 The application was dismissed with costs on the basis that the imposition of fees by assignees was a decision which is appealable in terms of Section 10 of the Act. Furthermore, that the Applicants are
precluded in terms of Section 7 (2) (a) of PAJA from pursuing a review until an internal appeal has been exhausted.
8 The Applicants have raised a challenge against the reasoning and conclusions reached by this Court on the grounds cited in the application for leave to appeal.
9 I have considered the said grounds and submissions by Counsel and I am persuaded that an appeal would have a reasonable prospect of success and that the matter raises important issues of law and complex issues of fact that warrant the attention of the Supreme Court of Appeal.
THE ORDER
10 In the result, the application for leave to appeal is granted in terms of Section 17 (1) of the Superior Courts Act to the Supreme Court of Appeal, costs to be costs in the appeal.
S. A. M. BAQWA
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Heard on
: 23 June 2020
Judgment delivered
: 24 June 2020
Appearances:
For the Applicants
Adv. M.C Maritz (SC)
Adv B.C Stoop (SC)
Instructed by:
Bernhard Van der Hoven Attorneys
For the First Respondent:
Adv. C.E Puckrin (SC)
Adv. H.C Janse van Rensburg
Instructed by:
The State Attorneys
For the Second and Eighth Respondent: Adv. H Epstein SC
Adv. M Mostert
Instructed by:
Fairbridges Wertheim Becker Attorneys
For the Seventh Respondent:
Adv. L.C Kelly
Instructed by:
Mothle Jooma Sabdia Inc.
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