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HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

 

CASE NO: 032973/2022

(1) REPORTABLE:  NO.

(2) OF INTEREST TO OTHER JUDGES:  NO

(3) REVISED.

DATE: 11 DECEMBER 2024

SIGNATURE

 

In the matter between:

HIGHVELD HONEY FARMS (PTY) LTD                                 Applicant

 

and

 

MINISTER OF AGRICULTURE, LAND REFORM

AND RURAL DEVELOPMENT                                            Respondent

Summary:     In an application for leave to appeal, the applicant sought to overcome shortcomings in its papers in the main application, by indicating an intention to produce further evidence on appeal.  This application had no prospects of success as it did not meet the test for adducing new evidence.  Failing this attempt, the hurdle of a lack of prospects of success on appeal regarding the issue of mootness, which formed the basis for the court refusing the initial review application and declining to grant a declaratory order, could not be overcome.  Insufficient other grounds were advanced as to why it would nevertheless be in the interests of justice to grant leave to appeal.  Application for leave to appeal was consequently refused and the conditional application to cross-appeal accordingly fell away.  Costs followed the event.       

 

ORDER

 

 

1.           The application for leave to appeal is refused, with costs.

 

2.           It is noted that the conditional application for leave to cross-appeal accordingly falls away.

JUDGMENT

The matter was heard in open court and the judgment was prepared and authored by the judge whose name is reflected herein and was handed down electronically by circulation to the parties’ legal representatives by email and by uploading it to the electronic file of this matter on Caselines.  The date of handing-down is deemed to be 10 December 2024.

 

DAVIS, J

Introduction

[1]             In 2019 the applicant applied for a rebate permit for the importing of natural honey.  That application was refused, and the relief sought in the applicant’s subsequent review application was also refused.  The reason for that  refusal was that an order reviewing and setting aside the rebate permit refusal would have no practical effect and the issue was accordingly moot.  The basis for this was that the applicant’s review application only disclosed importation of honey from Zambia, in respect of which a rebate permit would have been “superfluous” (the term used by the decisionmaker in question) as such importation was zero rated.

 

[2]             In order to boost its application for leave to appeal the refusal of the review application on the basis of mootness, the applicant had delivered an “affidavit on mootness” and indicated therein that it would apply to lead further evidence on appeal.

 

A reminder of how the mootness issue arose

[3]             In terms of Section 75(1) of the Customs and Excise Act[1] (the Customs Act), rebates of import duties may be granted in respect of goods listed in Item 2 of Schedule 4 of the Act.   The importing of natural honey is one of the class of goods provided for.

 

[4]             However, honey imported from SADC countries, such as Zambia, may be imported free of duty, i.e zero rated.

 

[5]             In paragraph 44 of the answering affidavit of the second respondent (the nominal decisionmaker in the review application) it was stated that “upon a thorough inspection of the SPS permits provided by the applicant … the rebate permits will be superfluous as no rebate will be payable …”.  This is because these documents referred to imports from Zambia.

 

[6]             In support of this contention, the respondents annexed Annexures SA9 and SA10 to their answering affidavits.  In reply, the applicant only re-annexed the first portion of SA10 (as RA6), excluding the corresponding SPS certificate of even date (19 November 2019), which clearly indicated Zambia as the only country of origin.

 

[7]             Apart from the fact that the abovementioned documents post-dated the applicant’s initial application for a rebate permit, the respondents’ contention that such a permit would be “superfluous” was therefore not rebutted in reply.  Even on a conspectus of all the evidence, let alone the application of the Plascon-Evans-principle, the applicant could therefore not overcome the mootness issue.

 

[8]             The mootness issue had been fully dealt with in paragraphs [56] – [62] of the judgment in the review application.

 

Attempts to cross this hurdle

[9]             The applicant argued that the court was bound to the formulation of the disputes set out by the parties in the joint practice note filed on their behalf in the review application.  That note, however, offered the following point up for adjudication: “7.9 whether the decision of the second respondent taken on 13 April 2022 should be reviewed and set aside”.

 

[10]         Not only do I agree with the respondents that the above issue was formulated wide enough to encompass the issue of mootness, but this issue was also exactly what had been decided by the Constitutional Court in Agribee BEEF Fund Ltd v Eastern Cape Rural Development Agency[2], a decision I relied on in the judgment in the review application.[3]  In that matter, the High Court dismissed the review application on its merits.  The SCA differed and granted the review application, including an order of invalidity but the Constitutional Court ultimately found that the issue was moot as the contract in question  had expired.

 

[11]         The above illustrates that the issue of mootness is inextricably bound up with the consideration as to whether a particular administrative act should be reviewed and set aside or whether a declaration of invalidity should be granted.  It confirms that it would be absurd to expect a court to grant an order which would not have any practical consequences[4].

 

[12]         Faced with this difficulty, the applicant, in its “affidavit on mootness”, indicated that it intended applying for leave to lead evidence on appeal that it had in fact imported honey from other countries during 2019, to wit China, Italy and Uruguay (it will be remembered from the judgment in the review application that different tariffs applied to these countries).

 

[13]         The applicant’s intention to lead this evidence was however qualified as follows in its “affidavit on mootness”: “14 … it remains, firstly, the applicant’s stance that it was not necessary to have proved actual imports in the review application …”.   This argument misses the point: once the respondents have contended that the granting of an order in favour of the applicant would be “superfluous” or have no practical effect, then, when this statement had been left unchecked, the issue of mootness became conclusive, irrespective of the applicant’s “stance”. 

 

[14]         It is trite that, in order to succeed with an application to lead further evidence on appeal, an applicant intending to do so, should furnish a reasonably sufficient explanation for its failure to have produced the evidence earlier[5].

 

[15]         In the present instance, the applicant had decided not to produce the purported evidence, as a result of a conscious decision not to do so.  This much is clear from the passage quoted above from the new “affidavit on mootness”.  Such a conscious decision is usually fatal to an application to later produce the evidence[6].  This should also be the case here.  There was no “failure” to produce the evidence and there is still no “reasonably sufficient explanation” furnished.

 

[16]         A further reason for the lack of prospects of success for the application to lead further evidence, is that the purported evidence, spanning some 64 pages, would prejudice the respondents if they are precluded form an opportunity to deal with it.  Allowing this “evidence” would cause a re-opening of an already long delayed review.

 

[17]         This would impair the “guiding principle” that there should be finality to proceedings and a litigant should therefore not, except in exceptional circumstances, be allowed to adduce further evidence[7].  This matter is not one of those exceptional circumstances. 

 

[18]         I therefore conclude that neither the applicant’s “affidavit on mootness” nor the proposed application to lead further evidence, have indicated a sufficient prospect of success on appeal.

 

Any other compelling reason?

[19]         In a last-ditch attempt at obtaining leave to appeal, the applicant relied on section 17(1)(a)(ii) of the Superior Courts Act[8], by arguing that the whole of the honey importing industry “was waiting” for an outcome of the declaration sought by the applicant and that this constituted a compelling reason to grant leave to appeal.

 

[20]         The respondent was of the opposite view.  It is clear from the papers that circumstances regarding the importing of honey may change from year to year, and different considerations might apply from time to time.  There is also nothing preventing the respondents from publishing new conditions or from, notionally, republishing the 2011 condition.

 

[21]         The contention that “the whole industry” needed a decision on the issue raised by the applicant, implied that the declarator would not only be case-specific but would have a wider impact.  This revives the spectre of non-joinder of other interested parties, such as the Minister of Finance and the Commissioner of SARS, who are involved in the determination of rebates, as well as the Minister of Trade and Industry and ITAC as well as NAML and SABIO.  Although referenced in the applicant’s founding affidavit, these parties have not been cited nor joined in the review application.  It would be improper to grant leave to appeal based on an argument claiming a judgment which would impact on the interests of absent other parties

 

[22]         I therefore conclude that there is no other compelling reason justifying the granting of leave to appeal.

 

Costs

[23]         In the order granted in the main judgment it was ordered that each party pays its own costs.  The exercise of the discretion to order costs in that fashion was largely based on the more or less equal considerations mentioned in paragraph [67] of the main judgment.  Those considerations are not applicable to the unsuccessful application for leave to appeal and I find no reason to deviate from the customary rule that costs should this time round, follow the event.

 

Order

[24]         Consequently, the following order is made:

 

1.          The application for leave to appeal is refused, with costs.

 

2.          It is noted that the conditional application for leave to cross-appeal accordingly falls away.

 

N DAVIS

Judge of the High Court

Gauteng Division, Pretoria

 

Date of Hearing: 05 December 2024

Judgment delivered: 11 December 2024 

 

APPEARANCES:

For the Applicant:	Adv H. P Wessels
Attorney for the Applicant:	Van Der Merwe & Associates Inc,
	Pretoria.
For the Respondent:	Adv H. C Jansen van Rensburg SC
	with Adv P Nyapholi-Motsie
Attorney for the Respondent:	State Attorneys, Pretoria

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