THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable

Case No: 400/2022

In the matter between:

TOP LAY EGG CO-OP LIMITED                                                First Appellant

GEORGE SHWARTZEL

BOERDERY (PTY) LTD
Second Appellant

and

MINISTER OF AGRICULTURE,

FORESTRY AND FISHERIES
First Respondent

EXECUTIVE OFFICER: AGRICULTURAL

PRODUCT STANDARDS, DEPARTMENT
OF AGRICULTURE: FOOD SAFETY
AND QUALITY ASSURANCE
Second Respondent

FOOD SAFETY AGENCY (PTY) LTD
Third Respondent
(REG:2013/130308/07)

AGENCY FOR FOOD SAFETY AND
QUALITY (PTY) LTD
Fourth Respondent
(REG:2016/258115/07)

AGENCY FOR FOOD SAFETY
Fifth Respondent

Neutral Citation:
Top Lay Egg Co-op Ltd & Another v Minister of
Agriculture, Forestry and Fisheries & Others (400/2022)
[2023] ZASCA 67 (16 May 2023)

Coram:
SALDULKER, MOTHLE AND MATOJANE JJA AND
NHLANGULELA AND UNTERHALTER AJJA

Heard:

16 March 2023

Delivered:

16 May 2023

Summary: Administrative Law – delayed review – Agricultural Product
Standards Act 119 of 1990 – designated assignees – whether the third
respondent is the designated assignee – whether the assignee had the power
to inspect products and charge the producers’ fees – whether the provisions
relating to the determination of fees are reviewable on various grounds in terms
of the Promotion of Administrative Justice Act 2 of 2000.

______________________________________________________________

ORDER
______________________________________________________________

On appeal from: Gauteng Division of the High Court, Pretoria (Bokako AJ with
Tlhapi J and Phahlamohlaka AJ sitting as Full Court of appeal):
The appeal is dismissed.
The appellant is ordered to pay the respondents’ costs of appeal, including
the costs of two counsel where applicable.
______________________________________________________________

JUDGMENT
______________________________________________________________

Mothle JA (Saldulker and Matojane JJA and Nhlangulela and Unterhalter
AJJA concurring)
[1] The central issue in this appeal is the interpretation of a letter written by
the first respondent, the Minister of Agriculture, Forestry and Fisheries (the
Minister), in which he designated Agency for Food Safety (the fifth respondent)
as the assignee. The designation as assignee was made in terms of s 2(3) of
the Agricultural Product Standards Act 119 of 1990 (the Act). Before dealing
with the grounds of appeal, it is apposite to deal briefly with the scheme of the
Act, the background facts and the trajectory of the litigation which led to this
appeal.

[2] The purpose of the Act is to ensure that products sold to the public are in
accordance with the prescribed class or grade, comply with the prescribed
standards, and are packed, marked and labelled accordingly, do not contain
prescribed prohibited substances or contain a prescribed substance. These
requirements are for the benefit of both consumers and the producers or
stakeholders involved. To give effect to this legitimate purpose, s 2 of the Act
empowers the Minister to designate an official in the Department of Agriculture,
Forestry and Fisheries (the Department) as an executive officer and designate
a person, undertaking, body, institution association or board as an assignee.

[3] The scheme of the Act was succinctly stated by this Court in Bertie van
Zyl (Pty) Ltd t/a ZZ2 and Others v Minister of Agriculture, Forestry and Fisheries
And Others1 (Bertie van Zyl) as follows:
'The Act controls the sale, export and import of certain agricultural products. The first
respondent (the Minister) may prohibit the sale of prescribed product unless it complies
with prescribed classifications and standards. In terms of s 2(1) of the Act, the Minister
may designate a person in the employ of the Department of Agriculture
(the Department) as the executive officer to exercise the powers and perform the duties
conferred under the Act. The minister may also, in terms of s 2(3)(a), designate a
person,2 with regards to a particular product, for the purposes of the Act. A person so
designated is styled an 'assignee' in respect of that particular product. The Act permits
the executive officer and an assignee to conduct inspections aimed at ensuring that
certain agricultural products meet the prescribed classifications and standards. They
charge fees to do so. In the case of the executive officer the fee is prescribed. In the
case of the assignee, the Act stipulates in s 3(1A)(b)(ii), that ‘the fee determined by
such assignee shall be payable . . .’ (Footnote added.)

[4] The following are the background facts and trajectory of the litigation that
led to this appeal. On 15 July 2018, the Minister issued a public invitation for
submission of bids regarding the appointment of assignees in respect of
agricultural products. Eleven bids from prospective assignees were received.
On 18 July 2018, the prospective assignees were invited to attend an
information session concerning the minimum requirements necessary for the
selection of assignees.  Among the eleven bids was that of the Food Safety
Agency (Pty) Ltd (third respondent). When the third respondent, as one of the
prospective assignees, made its presentation for the bid in a public session, it
mentioned that it is a registered company trading as Agency for Food Safety. I
will return to this aspect in detail as it constitutes the first ground of appeal.

[5] In a letter dated 9 December 2016, addressed to Dr Nel of the
third respondent, the Minister designated the third respondent, which had
submitted the bid, as assignee, by referring to it by its trade name. The litigation

1 Bertie Van Zyl (Pty) Ltd and Others v Minister of Agriculture, Forestry and Fisheries and
Others [2021] ZASCA 101; [2021] 4 All SA 1 (SCA) at para 2.
2 Person includes a legal person, undertaking, body, institution, association or board.

between the parties and the grounds of this appeal arose from the Minister’s
letter designating the third respondent as assignee. The letter reads thus:

‘Dear Dr. Hein Nel
DESIGNATION AS AN ASSIGNEE IN TERMS OF THE AGRICULTURAL PRODUCT
STANDARDS ACT, 1990 (ACT NO. 119 1990)
I, Senzeni Zokwana, Minister of Agriculture, Forestry and Fisheries hereby in terms of
section 2(3)(a) of the Agricultural Product Standards Act, 1990 (Act 119 1990),
designate Agency for Food Safety for the application of section 3(1) and 4A with
respect to the inspection of regulated animal products (poultry meat and eggs, as well
as any other meat and meat products for which regulations maybe promulgated).
The minister reserves the right to revoke the assignment should circumstances dictate
otherwise.

I trust that you will execute your duties to the best of your abilities.

Yours Respectfully
MR S ZOKWANA, MP
Minister of Agriculture, Forestry and Fisheries
DATE: 9-12-2016’.
(Own emphasis.)

[6] Consequent upon the receipt of the letter of designation, the third
respondent mandated its wholly-owned subsidiary company, Agency for Food
Safety and Quality (Pty) Ltd (the fourth respondent), to conduct inspections and
exercise the powers of assignee in respect of poultry products, on its behalf.
Top Lay Egg Co-Op Limited (the first appellant), is a primary co-operative which
markets and sells agricultural products on behalf of its 51 members, who
conduct business as egg producers. The first appellant markets and supplies
its members’ eggs and other poultry-related agricultural products to major
retailers such as Massmart Group, Shoprite Holdings, Pick ‘n Pay and the Spar
Group. George Schwartzel Boerdery (Pty) Limited (the second appellant), also
conducts business in the production and sale of eggs. The control, sampling,
packaging and quality assurance over the sale of poultry is regulated under the
Act.

[7] On 19 March 2018, the first and second appellant, including two
companies also conducting business in poultry products, namely, Eggbert Eggs
(Pty) Limited (Eggbert) and WW Bartlet Poultry Farm (Pty) Limited (Bartlet),
launched an application in the Gauteng Division of the High Court, Pretoria (the
high court), against the Minister and four respondents. In essence, the
appellants sought relief before the high court in the following terms: first,
whether the Minister designated the third respondent or the fourth respondent
as assignee; second, whether the powers in terms of ss 3A, 7 and 8 of the Act
were also conferred upon the assignee; third, whether the determination of fees
by the assignee was reviewable in terms of PAJA on the grounds that they
were, allegedly, arbitrary; capricious or irrational.

[8] All five respondents opposed the application. The Minister was the first
respondent and Mr BM Makhafola, a director in the Department who the
Minister had designated as Executive Officer, was the second respondent. The
second respondent deposed to the answering affidavit on behalf of the Minister
and the Department (the government respondents). The three other
respondents opposing the application were the third, fourth and fifth
respondents (the assignee respondents). In their answering affidavit to the
appellant’s application, the government respondents, in addition, raised three
points in limine, namely; that the first appellant lacked locus standi; that there
was a delay in instituting the review proceedings and that the appellants had
failed to exhaust internal remedies.

[9] Apart from the order to invalidate the invoices submitted for payment by
the fourth respondent to the second applicant, the application was dismissed
with costs by Davis J, who also refused to grant the applicants leave to appeal
the order of the high court. The applicants petitioned this Court and on
26 August 2020 were granted leave to appeal to the Full Court of the Gauteng
Division of the High Court (the full court), by Ponnan JA and Unterhalter AJA.
The full court similarly dismissed the appeal with costs, except the order
invalidating the invoices. Aggrieved by the decision of the full court on appeal,

the first two appellants3 again approached this Court with a request for special
leave to appeal. On 11 April 2022, Plasket JA and Phatsoane AJA granted the
appellants special leave to appeal. It is thus with special leave to appeal that
this matter comes before us.

[10] In their first ground of appeal, the appellants contend that the identity of
the designated assignee letter caused confusion. The Minister’s letter of
designation refers to ‘Agency for Food Safety', which the appellants contend, is
a non-existent person or entity. On inquiry, so the appellants contend, they
could not find an entity registered as ‘Agency for Food Safety’. In addition, the
fourth respondent exercised the powers to conduct the inspection at their
premises, which also issued monthly invoices for the service, even though they
were not designated as an assignee. In addition, the Executive Officer in the
Government Gazette No 40545 dated 13 January 2017, and subsequent
Government Gazettes 40621 of February 2017 and 40847 of 19 May 2017,
referred to an entity known as ‘Agency for Food Safety (Pty) Ltd’, a company
that was non-existent. Consequently, so continues the contention by the
appellant, there was disparity and confusion as to the identity of the actual
designated assignee.

[11] The Executive Officer appended the suffix ‘(Pty) Ltd’ to the trade name.
This connotes a different entity that resulted in confusion, particularly as
published in the Government Gazettes. It conveyed that the trade name
‘Agency for Food Service’ is a registered company, separate and independent
from the third respondent. In this regard, there is some merit in the appellants’
contention. However, this occurred in 2017, just after the designation of the
assignee. The institution of proceedings in the high court in March 2018, was
preceded by the exchange of correspondence one year earlier during 2017,
between the appellants’ attorneys Moolman & Pienaar Ing, and the second and
fourth respondents. The issue of the designated assignee’s identity featured in
the correspondence exchanged. In a letter dated 2 January 2018 and in reply

3 Eggbert and Bartlet, the third and fourth applicants in the high court, were not participants in
the appeal in this Court.

to a letter of demand by the appellants’ attorneys, VFV attorneys acting for the
third and fourth respondents, wrote thus:

‘1. We confirm that we act on behalf of both Agency for Food Safety and Quality (Pty)
Ltd (AFSQ) [fourth respondent], a wholly owned subsidiary of Food Safety Agency
(Pty) Ltd t/a Agency for Food Safety (AFS) [third respondent] (“our clients”) whom has
approached us for advice and assistance herein.
2. Kindly take note that AFS has been appointed as an assignee by the Department of
Agriculture, Forestry and Fisheries in terms of the Agricultural Product Standards Act
119 of 1990 (“the Act”). . .
3. Although AFS is the appointed assignee as mentioned above, they render quality-
check services through their wholly owned subsidiary being AFSQ. This was done in
order for poultry inspections to be kept separate from abattoir (red meat) inspections.’

[12] The letter makes clear the issue of identity and the relationship between
the assignee respondents. Therefore, before instituting the proceedings in the
high court, the appellants were made aware that the designated ‘Agency for
Food Safety’ is a trading name of the company Food Safety Agency (Pty)
Limited, the third respondent. Further, any misunderstanding concerning the
involvement of the fourth respondent was explained and reasons given. It is
also evident from the appellants’ founding affidavit, by their own admission, that
they were aware that Agency for Food Safety is a trade name of Food Safety
Agency (Pty) Ltd. The appellants’ founding affidavit deposed to by Mr Petrus
Jacobus Pienaar, stated as follows:
'The Fifth Respondent is AGENCY FOR FOOD SAFETY, an entity, the correct citation
which is unknown, with offices at 296 The Hillside Street, Lynnwood, Pretoria,
Gauteng. Alternative at 4A Garsfontein Office Park, 645 Jaqueline Drive, Garsfontein,
Gauteng. Reference is also made in documentation at the disposal of the applicants,
to Food Safety Agency (Pty) Ltd trading as Agency for Food Safety.' (Own emphasis.)

[13] The appellants’ deponent pleaded the same address of the
fifth respondent as being also the address of the third and fourth respondents
respectively. In the same affidavit, the appellants provide a list of documents
they relied upon to support the contention that there was a disparity and
confusion about the identity of the entity. The list of these documents, notably,

excluded the 2 January 2018 letter from VFV attorneys. The relationship
between the third respondent and both the fourth and fifth respondents was
again explained in the answering affidavit of the government respondents,
deposed to by the Executive Officer. The identity of the assignee respondents
is clarified with reference to the copy of the public presentation made by the
fourth respondent and other documents attached thereto, consistent with the
letter from VFV attorneys.

[14] Further, in the answering affidavit deposed to by Mr Louis Visagie on
behalf of the assignee respondents, the identity of the third respondent, with
the fifth respondent as its trade name, is explicitly stated, with reference to the
third respondent’s business plan, which had been submitted in response to the
bid. The business plan is attached as an annexure to the assignee respondents’
answering affidavit, again, consistent with, and as proof of the January 2018
letter of VFV attorneys. Similarly, the identity of the fourth respondent in relation
to the third respondent is explained in detail in the same answering affidavit. In
essence, the fourth respondent is a wholly owned subsidiary of the
third respondent, dedicated to executing the duties of the assignee. The
third respondent is in fact the designated assignee.

[15] In reply, the appellants provided no evidence to contradict the proof of
the identity and relationship of the assignee respondents as presented by both
the government respondents and the assignee respondents in their answering
affidavits. Having been provided with incontrovertible documentary evidence of
the identity and relationship of the assignee respondents, there is no
explanation for why the appellants persisted with this ground of appeal. Thus,
the claim on appeal that the designation of the assignee caused disparity and
confusion is contrived. Whatever confusion may initially have been caused was
dispelled. This ground of appeal has no merit and stands to be dismissed.

[16] The second ground of appeal, also emanating from the Minister’s letter,
dealt with the powers conferred and those not conferred on the assignee. In the
letter of designation of the assignee, the Minister, in pronouncing the
designation of the third respondent by its trade name as assignee, wrote: ‘I . . .

designate Agency for Food Safety for the application of sections 3(1) and 4A
with respect to the inspection of regulated animal products . . .’ The appellants
contend that the Minister only delegated or assigned the assignee the power in
terms of s 3(1) and s 4A of the Act. These powers, it is further contended,
exclude the power to: conduct inspections, grade and sample for quality control
in terms of s 3A; determine and charge fees in terms of s 3(1A)(b)(ii); enter
premises, investigate and sample in terms of s 7; and seize a product, material
or books in terms of s 8 of the Act. The appellants’ approach to the interpretation
of the letter is based on a presumption that what is specifically included,
excludes what is not mentioned.4

[17] This presumption is not applicable in this case for the following reasons.
First, the powers conferred upon the Executive Officer by the Minister, includes
s 3A, s 3(1A), s 7 and s 8 of the Act. By law these powers are designated to the
assignee, unless expressly (as opposed to impliedly) provided otherwise. This
comes about for the following reason. The Minister did not expressly provide in
the letter of designation that s 3A, s 3(1A), s 7 and s 8 of the Act are excluded.
In the first sentence of the letter, the designation as assignee is made in terms
of s 2(3)(a) of the Act, for the purposes of the application of this Act.
Section 2(3)(b) of the Act provides:
‘(b) An assignee thus designated shall–
(i) unless expressly provided otherwise and subject to the directions of the executive
officer, exercise the powers and perform the duties that are conferred upon or assigned
to the executive officer by or under this Act, with regard to the product referred to in (a);
(ii) in the case of a juristic person, notwithstanding anything to the contrary contained
in any other law or in the absence of any express provision to that effect, be competent
to exercise the powers and perform the duties referred to in subparagraph (i); and
(iii) unless the Minister in a particular case otherwise directs, have no recourse against
the State in respect of expenses incurred in connection with the exercising of such
powers or performance of such duties.’ (Own emphasis.)

4 The presumption arises from the maxim ‘Expressio unius est exclusio alterious rule, applied
by this Court’ in Faure en ‘n Ander v Joubert en ‘n Ander NO 1974 (4) SA 939 (AA).

[18] Second, s 3(1), s 4 and s 4A of the Act deal with control over the sale of
the products of different classes. Section 3(1) deals with the locally produced
class sold locally, s 4 deals with exported products, sold abroad, while s 4A
deals with imported products sold locally. Therefore, the common feature in
reference to s 3(1) and s 4A of the Act, is that both classes of products are
being sold and consumed locally, in the Republic of South Africa. In all three
classes of products, the Minister is authorised to exercise discretion to prohibit
the sale of a product, subject to conditions applicable to each class of product.
In order for the Minister to exercise such discretion, an inspection, grading,
sampling, investigation or seizure of the product will first have to be made by
either the executive officer or the assignee. The operative sections of the Act,
namely ss 3A, 3(1A), 7 and 8, which the appellants contend have been
excluded, are indispensable for, and cannot be logically severed from, the
exercise of the power in s 3(1) and s 4A of the Act.

[19] Third, the Minister in designating the third respondent by its trade name
as assignee, conveyed a clear intent and purpose for the application of s 3(1)
and s 4A of the Act. He unequivocally declared in the letter that the application
of the two sections of the Act referred to, was ‘with respect to the inspection of
regulated animal products . . .’ The assignee is thus expected to exercise the
inspection powers in regard to regulated animal products, mainly poultry. This
necessitates invoking the powers and duties in s 3A, which, logically as a
consequence, triggers s 3(1A)(b)(ii) to charge fees, s 7 to enter into the
premises to investigate and sample as well as s 8 to seize a product, materials
or books. Therefore, by interpreting the reference to s 3(1) and 4A of the Act in
isolation from the rest of the text in the relevant paragraph of the Minister’s
letter, the appellants failed to ascribe a proper meaning and context to what the
letter sought to convey. This Court in Natal Joint Municipal Pension Fund v
Endumeni Municipality5 underscored the importance of the context in the
interpretation of statutes and other legal instruments. This Court stated thus:

5 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; 2012 (4) SA
593 (SCA) para 18.

‘Over the last century there have been significant developments in the law relating to
the interpretation of documents, both in this country and in others that follow similar
rules to our own.6 . . . The present state of the law can be expressed 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
context provided by reading the particular provision or provisions in the light of the
document as a 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 context in which the
provision appears; the apparent purpose to which it is directed and the material known
to those responsible for its production.’ (Own emphasis.)

[20] The purpose of appointing an assignee is to enable the Minister to
control agricultural products that are being sold locally and those exported. The
control of these products is to ensure that safe and healthy products are sold to
the consumer. The assignee is appointed for the purposes of exercising the
powers to inspect, grade and sample the products for purposes of quality
control. To fulfil this task, assignees must exercise the relevant powers in
the Act. Therefore, the appellants’ contention that the Minister, in designating
the assignee, excluded the power to inspect the product and to determine and
charge a fee for the service, is wrong in law. The assignee derived these powers
not only from the text of the letter by the Minister, but also ex- lege, in terms of
s 2(3) of the Act. Therefore, this ground of appeal has no merit and falls to be
rejected.

[21] The third ground of appeal is premised on the preceding two grounds.
The appellants contend that only the fifth respondent, which is non-existent,
was appointed assignee, but it was not designated with the power to carry out
inspections and to determine and charge fees. Therefore, so continues the

6 Ibid at fn 13: ‘Spigelman CJ describes this as a shift from text to context. See “From Text to
Context: Contemporary Contractual Interpretation”, an address to the Risky Business
Conference in Sydney, 21 March 2007 published in J Spigelman Speeches of a Chief Justice
1998 – 2008 239 at 240. The shift is apparent from a comparison between the first edition of
Lewison, The Interpretation of Contracts and the current fifth edition. So much has changed
that the author, now a judge in the Court of Appeal in England, has introduced a new opening
chapter summarising the background to and a summary of the modern approach to
interpretation that has to a great extent been driven by Lord Hoffmann.’

appellants’ contention, the high court and the full court erred in holding that fees
may be levied as ‘inspection fees’ per month per egg produced or packaged,
‘whether actual inspections had taken place.’ There is no method of
determination of the fees for inspection duties, and therefore the fees charged
for the inspections conducted, stands to be reviewed and set aside in terms of
s 6(2)(e)(ii) and (f) of the Promotion of Administrative Justice Act 2 of 2000
(PAJA), on the grounds of the assignee having acted arbitrarily, capriciously or
irrationally.

[22] The second appellant alleged that it received two invoices from the fourth
respondent, dated 11 December 2017 and the other on 29 January 2018, each
payable at the end of that month. The invoices referred to precisely the same
number of eggs. It further alleges that there was an invoice in November 2017
that it received from the fourth respondent, although, as it alleged, no inspection
took place. The second appellant sought to have these invoices reviewed and
set aside.

[23] In their answering affidavit, the assignee respondents deny that the
determination of the fees was arbitrary, capricious and irrational. Their version,
which was accepted by the high court and the full court, is that two consultative
workshops were held on 20 April 2017 and 4 May 2017, with the role players in
the industry. Significantly, Mr Gawie Rossouw, a director of the third applicant,
Eggbert, attended the meetings and made proposals which led to the reduction
of fees.

[24] There were two main proposals which came out of the workshops. First,
because of the risk profile of eggs, the initial communication dated
21 February 2017, referring to holding monthly inspections, was substituted
with a proposal that quarterly inspections be conducted. Second, a proposal
that the relevant fee for inspections as published by the Minister at that time,
was R 0, 0015 per egg, be reduced to R 0,005 per egg. After considering its
budget, the assignee respondents adjusted the fee to R 0, 0006 per egg. The
charge remained per egg, in that it was approved and supported by the role
players because it catered for producers that do not package as well as those

that package. It is a fee based on the costs of providing the service across the
industry, which were budgeted for, including inspection of packaging and
labelling.

[25] Section 3(1A)(b)(ii) of the Act provides that an assignee is empowered
to determine and charge fees for the performance of the duties in terms of the
Act. The fees determined by such assignee shall be payable. Section 3(4)
provides that the fees are recoverable from the owner of the product. As it
stands, there are no Regulations published as to the procedures and a
prescribed method of determining fees. The appellants’ attack on these
shortcomings or lacunae in the legal framework is misplaced, as no order is
sought against the Minister or the Department. The absence of a proper legal
framework cannot be attributed to the assignee respondents. The attempt by
the Executive Officer to initiate such Regulations for consideration by the
Minister, came under attack as soon as the initial draft was published in the
Government Gazette, and the initiative was sadly aborted.

[26] There is no doubt, as expressed by this Court in Bertie Van Zyl7 that the
powers conferred upon assignees in terms of the Act, including to determine
and charge fees, are public powers. The exercise of the powers to determine
fees is an administrative decision and consequently it must comply with the
provisions of s 4 of PAJA. It is not disputed that the assignee respondents went
through a consultative process to determine fees, which the appellants did not
attend, though other role players such as Eggbert did. In the absence of a legal
framework that determines the procedure and method of calculation of the fee
payable, the participation and contribution made by the role players at the
meeting, met the requirement of procedural fairness. The proposals made by
Mr Rossouw led to the reduction of the fee applicable at that stage, R 0,0015
per egg, to less than half of it, R 0,0006. The consultative process enabled the
assignee, who bears the ultimate power to decide, to determine a fee based on
a budget, the expected service and costs considerations. Therefore, the
allegation that the determination of the fee was arbitrary, capricious and

7 Footnote 1 para 35.

irrational cannot be sustained and was correctly rejected by the high court and
the full court. This ground of appeal is also unmeritorious and stands to be
rejected.

[27] The high court ruled in favour of the respondents on the points in limine,
but only after the court had adjudicated the matter on the merits. The
high court’s ruling on these procedural objections was confirmed by the full
court. For the purposes of this appeal, it will thus be superfluous to deal with
the procedural objections, in view of the considerations and the findings made
on the merits in this judgment. Thus, the points in limine need not detain us
further.

[28] There was an attempt by the appellants in this Court, seemingly inspired
by the decision of this Court in Bertie van Zyl, belatedly to raise a new ground
of appeal on procedural unfairness in terms of s 6(2)(c) of PAJA. Apart from the
fact that the facts in this appeal are distinguishable from those in Bertie van Zyl,
this new ground was not raised as part of the relief sought in the notice of motion
and affidavits before the high court. In addition, the appellants did not seek and
obtain leave from this Court to introduce a new ground of appeal. The
respondents objected thereto, and correctly so. Therefore nothing further need
be said of it.

[29] The appeal stands to be dismissed with costs and there is no reason
why the costs should not follow the result.

[30] In the result, I make the following order:
The appeal is dismissed.
The appellant is ordered to pay the respondents’ costs of appeal,

including the costs of two counsel where applicable.

_______________________
SP MOTHLE
JUDGE OF APPEAL

APPEARANCES:

For the appellants:

M G Roberts SC with E Roberts
Instructed by:

Moolman Pienaar Inc, Pietermarizburg
C/O Pieter Skein Attorneys, Bloemfontein

For 1st and 2nd respondents:         C E Puckrin SC with KD Magano
Instructed by:

State Attorney, Pretoria

C/O State Attorney, Bloemfontein.

For 3rd, 4th, 5th respondents:         G Naude SC with A Thompson
Instructed by:                                VFV Attorneys, Ashlea Gardens
C/O Symington De Kok Attorneys,
Bloemfontein

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL
From:
The Registrar, Supreme Court of Appeal
Date:

16 May 2023
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does not
form part of the judgments of the Supreme Court of Appeal
Top Lay Egg Co-op Ltd & Another v Minister of Agriculture, Forestry and Fisheries &
Others (400/2022) [2023] ZASCA 67 (16 May 2023)
Today, the Supreme Court of Appeal (SCA) dismissed an appeal from the Full Court of the Gauteng
Division of the High Court, Pretoria (full court). The appeal concerned the interpretation of a letter issued
by the Minister of Agriculture, Forestry and Fisheries (the Minister) by which he designated ‘Agency for
Food Safety’ as an assignee in terms of the Agricultural Product Standards Act 119 of 1990 (the Act).
After the designation, the Food Safety Agency (Pty) Ltd (the third respondent), mandated its wholly-
owned subsidiary company, Agency for Food Safety and Quality (Pty) Ltd (fourth respondent) to
conduct inspections and exercise its attendant powers as assignee, in respect of poultry products.

The appellants were companies conducting business in poultry products, approached the high court for
a declarator and review order, first, whether the Minister in the letter, designated the third or fourth
respondents as the assignee (the identity of the assignee); second, what was the scope of powers
which were conferred to the assignee in terms of the letter; and third, whether the attended powers of
the assignee to determine fees were not arbitrary, capricious and irrational. The high court found the
contentions untenable and dismissed the application, as did the full court on appeal.

On further appeal to the SCA, the appellants raised the same three grounds of appeal. First, the
appellants contended that the Minister’s letter designated ‘Agency for Food Safety' (fifth respondent)
as the assignee. It turned out that the Minister in fact referred to ‘Food Security Agency (Pty) Ltd’ (the
third respondent) by using its trade name in the letter. This had been clarified by correspondence
exchanged between the parties well before the institution of proceeding in the high court. Second, the
appellants contended that the Minister only assigned limited powers in terms of ss 3(1) and 4 of the Act
and the respondents were therefore precluded from performing any powers not expressly mentioned,
such as those in ss 3A, 3(1A), 7 and 8. The SCA rejected that contention and found that s 2 of the Act
provided that once designated by the Minister as an executive officer and as assignee, they are directly
empowered to exercise the powers listed in that section, unless expressly provided otherwise.
Sections 3(1) and 4 were inseparably connected ss 3A, 3(1A), 7 and 8 of the Act. The power to conduct
inspections was expressly stated in the letter. Section 2 of the Act authorised the executive officer or
the assignee to conduct inspections and exercise the attendant powers in respect of the quality of

poultry products. Third, the appellants contended that the determination of inspection fees were
arbitrary, capricious and irrational. Similar to the findings by both the high and full court, the SCA held
that the determination of fees was an administrative action, arising out of an exercise of public power.
In the absence of a regulated legal framework as to how the power should be exercised, s 4 of the
Promotion of Administrative Justice Act 3 of 2000 is applicable. The determination of fees must be made
in consultation with entities whose interests would be affected by the outcome of such determination.
The role-players and stakeholders must be provided with an opportunity to participate, where necessary
to raise their concerns in so far as their interests are affected, and allow the decision-maker to deal with
their concerns. It must be a public participation process. The assignee had met with these requirements,
as a result, the existing fee payable was reduced to less than half.

In the result, the SCA saw no merit in the contentions raised by the appellants and subsequently
dismissed the appeal with costs including costs of two counsel where employed.

~~~~ends~~~~