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IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

 

(1)    REPORTABLE: NO

(2)    OF INTEREST TO OTHER JUDGES: NO

 

Case No: 80690/2019

 

In the matter between;

 

HUME, FREDERICK JOHN                                                                                  APPLICANT

 

and

 

MINISTE OF ENVIRONMENTAL AFFAIRS                                                     RESPONDENT

OF THE REPUBLIC OF SOUTH AFRICA

JUDGMENT

RAULINGA J,

1.          The applicant seeks an order directing the respondent to consider the applicant’s appeal against the decision of the Director: Biodiversity Management in the Department of Rural Environment and Agricultural Development: North West Provincial Government to refuse the applicant’s application for export permit ln terms of the National Environment: Biodiversity Act, 2004, Act No: 10 of 2004, ("the Act") to export eleven (11) Rhinoceroses to Vietnam.

2.          In the alternative, the applicant seeks an order to review and set aside the decision If the respondent has already considered the appeal and dismissed it; The applicant also seeks costs of the application.

3.            The applicant Is involved in the breeding business of black and white Rhinoceroses for commercial purposes. He conducts his business activities-In Klerksdorp in the North West Province.

4.         In compliance with the statutory requirements for exporting; the Rhinoceroses, the applicant made an application to the Director of Biodiversity Management in the Department of Agriculture, Rural and Land Development in the North West Provincial Government for an export permit to export 11 celuca Rhinoceroses to zoological Facility in the Social Republic of Vietnam.

5.         The Director, Mr Denga considered the application and made a decision to refuse the application on the grounds that the number of Rhinoceroses that the applicant seeks to export exceeds the required number of five (5), that can be exported to a single destination. Mr Denga is the delegated official of the MEC for the Department of Rural, Development in the North West Province.

6.           According to the respondent, the applicant was advised that he has a right to lodge an appeal against the decision with the MEC of the Department, and that the appeal should be lodged within thirty (30) days of being informed of the decision.

7.           The applicant raises a point in limine, in that, the respondent flied fts answering affidavit after the lapse of six months. In terms of Uniform Rule 6(5)(d)(ii) of Court, the answering affidavit should have been filed.15 days of notice of intention to oppose. The application having been issued on 4 November 2019, and the intention to oppose was served only on 4 December 2019.

8.           The respondent did not file a condonation application to explain the period of lapsed time, nor did the respondent attempt to explain to the Court why such a long period has elapsed prior to its filing its answering affidavit.

9.           It is worth mentioning that at the hearing of the application, the applicant did not persist on this points. The hearing proceeded on the understanding that the late filing of the answering affidavit was condoned.

10.        The applicant submits that it lodged its appeal on 28 May 2.019. Further, that it is evident that the wording of Notice 431 of 2014, in the last sentence that the intention of the respondent was that the authority to handle appeals falls within "The Department ". As such, there can be no other interpretation that this is a description of the respondent In her capacity as Minister.

11.        I am with the applicant that powers of delegation should be restrictively Interpreted and that the body or person which is subjugated such power may not further delegate such power, unless is authorised-Kasiyamhuru v Minister of Home Affairs[1] and BEF (Pty) Ltd v Cape Town Municipality and Others[2].

12.         The applicant also submits that, on 6 December 2019 (after the applicant lodged its application), respondent caused to be published in the Government Gazette a new regulation entitled "Delegation of Powers and Duties under section 80A (3) (b) of the Act in which she purportedly delegates her authority to deal with applications such as this, to the Director- General of the Department of Environment al Affairs, or any functional acting in that position''. Therefore, it is abundantly clear that at the date of lodging the application and for that matter lodging the appeal, the responsibility and the authority to deal with it lodged with the Department, being represented by the relevant Minister in cabinet. As such a new publication in the Government Gazette would not render its implication with retrospective power.

13.         The respondent opposes this application on a legal ground that she has no jurisdiction to consider the applicant's appeal. Consequently, she is legally incompetent. Furthermore, the appeal authority is the MEC in the North West Provincial Government.

14.         The respondent contends that if she considers the appeal and decides on the appeal, she will be acting ultra vires. Consequently, her decision will be unlawful and invalid.

15.         It seems to me that the only issue to be determined is whether the respondent should be ordered to consider and decide on the appeal. This because, the respondent has not decided to refuse the appeal.

16.         It seems to me that the argument of the applicant fs based on the proper interpretation of certain statutory provisions. The locus classicus on the interpretation of statutes or contracts is Natal Joint Municipal Pension Fund v Endumeni Municipality[3] in which the Court held as follows: "interpretation is the process of attributing meaning to the words used in a document, be it legislation, some other statutory instrument or contract, having regard to the contract provided by reading the particular provision or provisions in the light of the document as o whole and the circumstances attendant upon its coming into existence. Whatever the nature of the document, consideration must be given to the language used in the light of the ordinary rules of grammar and syntax, the content in which the provisions appear, the apparent purpose to which it is directed and the material known to those responsible for its reproduction.

Where more than one meaning is possible each possibility must be weighed in the light of all these factors. The process is objective, not subjective...The 'inevitable point of departure is the language of the provision itself and read in context and having regard to the purpose of the provision and the background to the preparation and production of the document".

17.         On a proper interpretation of the relevant statutory provisions and application of the common law, the applicant's application must be dismissed.

18.         Regarding the contention as to where the authority lies to entertain the relief as sought by the applicant, applicant submits that since 14 June 2014, up until 6 December 2019, that Notice-431of 2014 was in force due to the publication In the Government Gazette.

19.         As such, the applicant is further submitting that it-lodged its appeal on 28 May 2018. Accordingly, so the applicant continues to argue, it Is evident from the wording of Notice 431 of 2014, in the last sentence that the intention of the respondent was that the authority to handle appeals falls within "The Department". Therefore, there can be no other interpretation that this is a description of the respondent in her capacity as Minister.

20.         Organs of the State and their Functionaries exercise no public power or perform no function unless conferred upon them by law- Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others[4]. The exercise of public power must comply with the Constitution, which is the Supreme Law and the doctrine of legality, which Is part of that law and the basis for all valid administrative action- Pharmacecitical Manufacturers Association of South Africa and Another: in re Ex Porte President of the Republic of South Africa and Others[5].

21.         AII administrative powers or functions must be sourced from the law. In the absence of authority, organs of the state or their functionaries have no authority to exercise any public power or perform any public function.

22.         Any person who is ·aggrieved by any administrative decision may lodge a review application. Subject to section 7(2)(c), no court or tribunal shall review an administrative action in terms of PAJA unless any internal remedy provided for in any of her law, has first been exhausted- section 7(2) of PAJA.

23.         The application for a permit to e1eport is regulated by section 88 of the Act, 1998 ["NEMA"] read with the regulations provided for by the Convention on International Trade in Endangered Services of Wild Fauna and Flora, 2019 of which South Africa Is a party and the National Appeal Regulations made In terms of section 44(l)(a) of NEMA.

24.         Section 43(1) of NEMA reads:

"Any affected person may appeal to the Minister against the decision taken by any person acting under a power delegated by the Minister under this Act, or a specific environmental management Act"

25.         I agree with the respondent that the Minister ls the appeal authority where the applicant for the permit is an organ of state and the MEC is the appeal authority in all other cases.

26.         Section 43(2) of NEMA reads:

" Any person may appeal to an MEC against a decision taken by any person acting under a power delegated by the MEC under this Act or management Act."

27.         ln my view the Director: Biodiversity Management, who took the impugned decision is the delegated official of the MEC. Therefore, the appeal lies with the MEC and not the respondent.

28.         As a consequence, the respondent Is legally incompetent to consider the appeal.

29.         I also agree with the respondent that the fact that the respondent requires the MECs to submit all applications relating to authorisation of International trade In rhinoceroses to the National Department for consideration and recommendation before makingc1 final decision as the applicant pointed out, is of no consequence. This is an internal measure, to ensure that the Provincial Governments comply with the policy determined by National Government to ensure that the approval of the application for an export permit by the provincial governments comply with the International Covenant and Treaties for which the National Government is a signatory.

30.         The Director-General of the Department ls the delegated official of the respondent to consider the application and make recommendation to the issuing authority; the MEC. Thus, the respondent lacks the authority to consider the appeal against the decision of the issuing authority. What is of importance is that the respondent is precluded by the principle of separation of powers between different spheres of government from considering the appeal - Section 41(l)(f) and (g) of the Constitution.

31.         This Court may not entertain the review because the applicant has not yet exhausted the internal remedy- Section 7(2) of PAJA. Moreover , the respondent has not taken any decision to grant or not grant the permit.

32.         In the premise, the application is dismissed.

 

 

 

JUDGE T. J RAULINGA

JUDGE OF THE HIGH COURT

 

 

APPEARENCES

For the Appellant               :           Adv: A van der Westhuizen

Instructed by                      :           Erwee Incorporated.

For the Respondents          :           Adv: M. S Phaswane

 

Instructed by                     :           State Attorney

Matter heard on                :           08 September 2020

Date of Judgment             :           02 December 2020

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