THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 549/2020
In the matter between:

BERTIE VAN ZYL (PTY) LIMITED
T/A ZZ2

FIRST APPELLANT

TOMATO PRODUCERS’
ORGANISATION

SECOND APPELLANT

NOORDELIKE UIE KOMITEE

THIRD APPELLANT

FRESH PRODUCE IMPORTERS’
ASSOCIATION NPC

FOURTH APPELLANT

and

MINISTER OF AGRICULTURE,
FORESTRY AND FISHERIES

FIRST RESPONDENT

PRODUCT CONTROL FOR
AGRICULTURE

SECOND RESPONDENT

LEAF SERVICES (PTY) LIMITED
THIRD RESPONDENT

NEJAMOGUL TECHNOLOGIES &
AGRIC SERVICES

FOURTH RESPONDENT

AGENCY FOR FOOD SAFETY
(PTY) LIMITED

FIFTH RESPONDENT

IMPUMELELO AGRIBUSINESS
SOLUTIONS (PTY) LTD

SIXTH RESPONDENT

PERISHABLE PRODUCTS
EXPORT CONTROL BOARD
SEVENTH RESPONDENT

SOUTH AFRICAN MEAT
INDUSTRY COMPANY

EIGHTH RESPONDENT

Neutral citation: Bertie Van Zyl (Pty) Ltd t/a ZZ2 and Others v Minister
of Agriculture, Forestry and Fisheries and Others
(549/2020) [2021] ZASCA 101 (14 July 2021)

Coram:
PETSE DP, and SALDULKER, MAKGOKA JJA and
GOOSEN and UNTERHALTER AJJA

Heard:
10 May 2021

Delivered: This judgment was handed down electronically by
circulation to the parties’ representatives by email, publication on the
Supreme Court of Appeal website and release to SAFLII. The date and
time for hand-down is deemed to be 14h00 on 14 July 2021.

Summary: Constitutional challenge to the power of an assignee to
determine its fees – s 3(1A)(b)(ii) of the Agricultural Product Standards
Act 119 of 1990 – s 25(1) of the Constitution – deprivation of property –
rule of law – s 195(1) of the Constitution – judicial review – procedural
fairness – rationality review.

ORDER

On appeal from: Gauteng Division of the High Court, Pretoria (Baqwa
J, sitting as the court of first instance):
1.
The appeal is upheld with costs, including the costs of two counsel,
to the extent set out in 3.2  and 3.3 below.
2.
The appeal is otherwise dismissed.
3.
The order of the high court is set aside and substituted with the
following order:
‘3.1  The application to declare s 3(1A)(b)(ii) read with s3A(4) of
the Agricultural Product Standards Act 119 of 1990 ( the
Act) unconstitutional and invalid is dismissed.
3.2 The second respondent’s determination of inspection fees in
terms of s 3(1A)(b)(ii) of the Act published as Notice 1 of
2017 in Government Gazette 40537 dated 6 January 2017 is
reviewed and set aside.
3.3
The costs of the review are to be paid by the first, second,
and eighth respondents, including the costs of two counsel,
where so employed.’

JUDGMENT

Unterhalter AJA (Petse DP, and Saldulker, Makgoka JJA and
Goosen AJA concurring):

Introduction
[1] The first appellant, Bertie Van Zyl (Pty) Ltd t/a ZZ2, grows various
types of fruit. The second and third appellants, Tomato Producers’
Organisation and Noordelike Uie Komitee, are voluntary associations,
which promote the interests, respectively, of tomato and onion growers.
The fourth appellant, Fresh Produce Importers’ Association NPC, is a
‘Not for Profit Corporation’; it promotes the interests of fresh produce
importers. The appellants brought an application in the Gauteng Division
of the High Court, Pretoria (the high court) for an order to declare
s 3(1A)(b)(ii) read with s 3A(4) of the Agricultural Product Standards Act
119 of 1990 (the Act) unconstitutional and invalid. The appellants also
sought to review and set aside the determination of inspection fees by the
second respondent, Product Control for Agriculture (Procon).

[2] The Act controls the sale, export and import of certain agricultural
products. The first respondent (the Minister) may prohibit the sale of a
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, with regards to a particular product, for the purposes
of the application 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.’ I shall refer to this provision, read with s 3A(4), which
requires the owner of the product to pay the fee, as ‘the challenged
provision’.

[3] The appellants in their application before the high court cited the
assignees designated by the Minister. Procon is an assignee. So too is the
seventh respondent, the Perishable Products Export Board (the Board).
The Board is recognised as a juristic person in terms of the Perishable
Products Export Control Act 9 of 1983 (the PPEC Act). The Board is
tasked with the orderly and efficient export of perishable products. The
Board has also been designated as an assignee under the Act. The
Minister, Procon, the eighth respondent, South African Meat Industry
Company (Meatco), and the Board opposed the application, though the
Board limited its opposition to the appellants’ constitutional challenge.

[4] In the high court, the appellants contended that the challenged
provision is a deprivation of property that infringes s 25 of the
Constitution. The challenged provision was also said to offend against the
rule of law and s 195(1) of the Constitution.1 Section 195(1) sets out the
basic values and principles governing public administration. The high
court (per Baqwa J) dismissed this constitutional challenge. It also
dismissed the review of Procon’s fee determination on the basis that the

1 Constitution of the Republic of South Africa, 1996.

appellants had failed to exhaust the remedy of appeal available to them in
terms of s 10 of the Act. An order for costs, including the costs of two
counsel, was made in favour of Procon, the Board and Meatco. With the
leave of the high court, the appellants appeal to this Court.

The constitutional challenge
[5] The constitutional challenge has a simple premise. Section 2(3)(a)
of the Act permits the Minister, with regard to a particular product, to
designate a person, having particular knowledge of that product, an
assignee for the purposes of the application of the Act. Procon and  other
respondents were designated as assignees by the Minister. Section 3(1A)
permits fees to be charged in respect of the powers exercised and the
duties performed by an assignee. The fee that shall be payable is the fee
determined by the assignee. Among the powers exercised by an assignee
is the power of inspection. It follows that when the assignee exercises a
power of inspection, a fee is payable by the owner of the product
inspected. That fee is determined by the assignee.

[6] The appellants complained that the power of the assignee to
determine its fees is a unilateral determination, not subject to supervision,
nor to ministerial or other control. Such an untrammelled power, the
appellants contended, cannot survive constitutional scrutiny. First, the
challenged provision is a deprivation of property that infringes s 25 of the
Constitution. Second, the challenged provision offends against the rule of
law and s 195(1) of the Constitution. Although the appellants in their
heads of argument sought to revive a challenge, not pursued before the
high court, based on s 217 of the Constitution, as to the legality of
Procon’s appointment, this challenge was abandoned before us. And
nothing more need be said of it.

[7] I commence with a consideration of the s 25 challenge. The
appellants contended that the power of the assignee to determine the fees
it may charge in respect of the powers conferred upon it, without
constraint or supervision, constitutes an arbitrary deprivation of property
that infringes s 25 of the Constitution.

[8] The first issue that requires consideration is this. Does the
determination of a fee and the obligation to pay that fee, upon the
exercise by the assignee of its powers, constitute a deprivation of
property? First National Bank of SA Ltd t/a Westbank v Commissioner
SARS and Another (First National Bank)2 has long stood as the leading
authority as to the conceptual components that make up s 25. It proposes
a capacious conception of property, while eschewing a comprehensive
definition of deprivation. The cases have tended to shy away from this
terrain, and have rather assumed a deprivation of property, and then
considered the more familiar territory of arbitrariness. However, the
Constitutional Court has, since First National Bank, explained that a
constitutionally significant deprivation of property requires an
interference with a property right that is substantial, in the sense that it
‘must be extensive to have a legally significant impact on the rights of the
affected party’.3 With a somewhat different emphasis, O’Regan J put the
matter this way in Mkontwana v Nelson Mandela Metropolitan
Municipality and Another:4

2 First National Bank of SA Ltd t/a Westbank v Commissioner SARS and Another 2002 (4) SA 768;
(2002) 7 BCLR 702 (CC) (First National Bank).
3 Jordaan and  Others v City of Tshwane Metropolitan Municipality and  Others [2017] ZACC 31;
2017 (11) BCLR 1370; 2017 (6) SA 287 (CC) para 59.
4 Mkontwana v Nelson Mandela Metropolitan Municipality and Another 2005 (2) BCLR 150; 2005 (1)
SA 530 (CC) para 89.

‘There can be no doubt that some deprivations of property rights, although not
depriving an owner of the property in its entirety, or depriving the holder of a real
right of that real right, could nevertheless constitute a significant impairment in the
interest that the owner or real right holder has in the property.’

[9] The appellants contended that the owner’s liability to pay the
assignee’s fee amounts to a deprivation of property. This contention
encounters the following difficulty. The appellants do not challenge the
regulatory scheme of the Act in terms of which certain agricultural
products may only be sold according to prescribed classes, grades or
standards. Executive officers and assignees are appointed under the Act
to carry out inspections so as to enforce this regulatory scheme. The Act
permits fees to be charged in respect of the powers exercised and the
duties performed by executive officers and assignees. The fees are
charged for the service rendered by executive officers and assignees.
Owners thus receive consideration for the payment of fees – the
inspection of their products to ensure that they may be sold in compliance
with the Act. That is not a deprivation of property any more than the
payment of a price for goods sold and delivered constitutes such a
deprivation. To receive a service for a fee is not a deprivation of property.

[10] It is of course the case that the regulatory impost under the Act is
not a voluntary exchange because compliance with the Act is not
optional. But that was not the appellants’ complaint. They do not say that
the regime of inspection and its object is unnecessary or fails to secure
something of value, both for the public and the owners who sell
agricultural products regulated under the Act. Nor, as I understand their
case, do the appellants contend that a fee should not be payable for the
inspections that take place. No objection is raised to the prescribed fees

raised by the executive officers. Rather, their complaint is that the
assignees are given the power to determine the fee for which they carry
out their duties. This demonstrates that it is not the requirement that a fee
is payable that constitutes the deprivation of property. Rather, it is the
power given to the assignee, without supervision, to determine the extent
of the fee that is said to be objectionable.

[11] That too cannot amount to a deprivation of property. First, if the
power is exercised to determine a reasonable fee for the service given,
there is no deprivation of property. The owner gets fair value for the fee
paid. But even if the fee is considered excessive, of what property is the
owner deprived? To pay more for something than it is thought to be
worth may be a common place experience, but it is not a deprivation of
property rights. It is a bad regulatory bargain. It creates an obligation to
pay more. It is difficult to conceptualise what specific property rights are
thereby encumbered or restricted. The owner’s liabilities increase to the
extent of any excess, but no right to identifiable property is thereby
diminished.

[12] Second, if the appellants’ complaint is ultimately as to how an
assignee might exercise its power to determine a fee, without oversight,
then, even on the appellants’ argument, the power is capable of being
exercised in a manner wholly consistent with s 25. Therefore, it follows
that there is no warrant to declare s 3(1A)(b)(ii) unconstitutional and
invalid. This is an application of the principle articulated in S and Others
v Van Rooyen and Others:5 any power is capable of being abused, but that
has no bearing on the constitutionality of the law concerned. The exercise
of the power by an assignee, in a particular case, may give rise to

5 S and Others v Van Rooyen and Others 2002 (8) BCLR 810; 2002 (5) SA 246 (CC) para 37.

complaint. Though, for the reasons given, I am unpersuaded that it is a
complaint that the owners have been deprived of their property within the
meaning of that concept in s 25.

[13] Third, the appellants’ case, on this score, suffers from a further
difficulty. If the property cannot be identified in respect of which the
deprivation takes place, the consideration of arbitrary deprivation in terms
of s 25 cannot take place. First National Bank,6 holds that an arbitrary
deprivation is one where the law does not provide a sufficient reason for
the deprivation. That is determined by considering the deprivation in
question and the ends sought to be achieved by the impugned law. But if
the property rights affected are unclear, the extent of their deprivation
cannot be ascertained, and hence the question of arbitrariness cannot be
determined.

[14] I find, therefore, that the appellants have not made out a case that
s 3(1A)(b)(ii) infringes s 25 of the Constitution.

[15] The appellants also contended that the challenged provision
offends against the rule of law and s 195(1) of the Constitution. This
contention cannot be sustained. Section 1(c) of the Constitution gives
expression to the supremacy of the Constitution and the rule of law.
These values, so the Constitutional Court has held, inform the
Constitution, but do not give rise to enforceable rights that permit of the
invalidation of legislation.7 This is also the proper characterisation of
s 195 of the Constitution. Section 195 sets out the basic values and
principles governing public administration, but it does not contain

6 First National Bank para 100.
7 Minister of Home Affairs v National Institute for Crime Prevention and the Reintegration of
Offenders (NICRO) & Others 2004 (5) BCLR 445; 2005 (3) SA 280 (CC) para 21.

enforceable rights.8 The appellants submitted that they do not seek to
vindicate any rights, but rather that the challenged provision ‘runs afoul
of s 195(1)(f) of the Constitution’. Without justiciable rights to enforce,
there is no basis upon which this Court may declare invalid a law that is
inconsistent with a value or principle. Accordingly, the appellants’
constitutional challenge to s 3(1A)(b)(ii) cannot prevail.

The review
[16] The appellants brought under review the appointment by the
Minister of Procon as an assignee, and in the alternative, sought to review
Procon’s determination of inspection fees in terms of s 3(1A)(b)(ii) of the
Act. As to Procon’s determination of fees, the high court held that the
appellants had failed to exhaust their internal remedy in terms of s 10 of
the Act, and consequently the high court declined, in terms of s 7(2)(a) of
the Promotion of Administrative Justice Act 3 of 2000 (PAJA), to
entertain the appellants’ review.

[17] Section 10(1) of the Act provides as follows:
‘Any person whose interests are affected by any decision or direction of the executive
officer or an assignee under this Act, may appeal against such decision or direction to
the Director-General.’
The issue is this: did the appellants enjoy a remedy under s 10(1) to
appeal their dissatisfaction with the fees determined by Procon?

[18] The appellants contended that they had no such remedy.
A determination of fees is not a direction. It is also not a decision, so they
argued, because a decision means a decision that determines a dispute or
issue. Although a decision may also mean a decision to do something, the

8 Chirwa v Transnet Ltd and Others [2007] ZACC 23; 2008 (3) BCLR 251 2008 (4) SA 367 (CC)
paras 74 -76.

Afrikaans text of s 10(1) uses the word ‘beslissing’, which connotes the
adjudication of a dispute or some issue.9 Since the determination of a fee
is not a decision, so defined, s 10(1) provided the appellants with no
remedy.

[19] The respondents opposing this aspect of the appeal contended that
the words ‘any decision’ in s 10(1) should not be read narrowly. Procon
referenced meanings of ‘beslissing’ in an Afrikaans dictionary that
include, ‘handeling van te beslis’, and hence to make up one’s mind. The
respondents also submitted that a more generous reading of a decision
would be a more sensible interpretation.

[20] There are limits to the utility of semantic contestation by recourse
to dictionaries. Reading the Act as a whole does not yield a consistent use
of language or concepts. Section 10(1) references any decision or
direction. The scheme of the Act designates an executive officer or
assignee as exercising powers and performing duties. The actions
resulting from such exercise or performance are not given uniform
descriptions. As the inspections, gradings and samplings contemplated in
s 3A indicate, the exercise of powers by an assignee may variously result
in classifications, inspections, cancellations, and directions. It is not at all
clear that the exercise of these powers strictly amounts to a direction or a
decision, in the sense of a determination of a dispute. But if that is so,
then s 10(1) appears to have a very narrow remit and lacks utility.
However, if the exercise of the powers of an assignee in s 3A does fall
within the meaning of a decision in terms of s 10, it is not clear why a fee
determination is not also a decision.

9 The word ‘beslissing’was so held to have this meaning in the interpretation of the Medical Schemes
Act 131 of 1998 in Bonitas Medical Fund v The Council for Medical Schemes [2016] ZASCA 154;
[2016] 4 All SA 648 (SCA) para 17.

[21] It is unnecessary, however, to express a definitive view. The high
court did not consider the application of s 7(2) of PAJA in the light of the
Constitutional Court’s decision in Koyabe.10 The Constitutional Court
there recognised that the duty to exhaust internal remedies, though
valuable, should not be rigidly imposed, and that the exceptional
circumstances referenced in s 7(2)(c) of PAJA depend upon the facts and
circumstances of the case.

[22] In the present case, there is considerable ambiguity as to whether a
fee determination that may affect many owners is the type of decision
contemplated by s 10(1) of the Act. The appellants observe that an appeal
in terms of s 10(1) must be lodged in the prescribed manner. The Minister
promulgated prescribed fees in respect of appeals concerning specific
products, but not against the determination of fees by assignees.
The Minister’s understanding of s 10(1) does not determine its meaning.
But it does evidence the lack of clarity as to the appeals that may be
brought in terms of s 10(1). Given these uncertainties, in my view, the
failure by the appellants to appeal under s 10(1), even if this was an
available remedy, should not frustrate the appellants’ review. Where the
right to appeal is not made plain in the legislation, and, at best, it is cast
as a right and not an obligation, the high court should have permitted the
appellants, in the interests of justice, to proceed with their review. And I
do so find.

[23] I proceed to consider the merits of the appellants’ review. The
appellants’ review challenged Procon’s determination of fees on two

10 Koyabe and Others v Minister for Home Affairs and Others [2009] ZACC 23; 2009 (12) BCLR 1192
2010 (4) SA 327 (CC) paras 38 – 40.

principal grounds. First, the appellants complained that the determination
was procedurally unfair. Second, the appellants alleged that the
determination was irrational. I consider these challenges in turn.

[24] The parties are in agreement that although the challenged provision
does not prescribe a procedure to be followed so as to determine a fee, the
determination must comply with the requirements of procedural fairness.
Since it is also common ground that the determination of the fee is
administrative action, the parties are in agreement that s 4 of PAJA is of
application. Section 4 of PAJA sets out what an administrator must
decide so as to give effect to the right to procedurally fair administrative
action. In this case, Procon decided to follow a notice and comment
procedure.

[25] The appellants complain that the notice and comment procedure
followed by Procon failed to result in a fee determination that was
procedurally fair. They point out that the Regulations on Fair
Administrative Procedures, made in terms of s 10 of PAJA, require,
amongst other matters, that the notice calling for comment by the public
must be published in the Government Gazette and in a newspaper or
newspapers that are distributed throughout the country and that the notice
must contain sufficient information about the proposed administrative
action to enable members of the public to submit meaningful comment.
Furthermore, s 4(3)(a) of PAJA requires the administrator to take
appropriate steps to communicate the administrative action to those likely
to be materially and adversely affected by it and call for comments from
them.

[26] The appellants alleged that Procon fell short. The proposed fees
were published in the Government Gazette, but in no newspaper, nor over
the radio and electronic media. The publication was in English only.
The publication of the proposed fees did not disclose the basis or
methodology used to determine the proposed fees. In particular, Procon
failed to provide information as to whether the proposed fees were
determined so as to recover costs or allowed also for a profit to be earned.
In sum, for the public to make meaningful comments, the public must be
given sufficient information. The public was not properly informed, and
hence the notice and comment procedure was not fair.

[27] Procon set out in its answering affidavit the extensive consultative
process that it followed with affected parties, in the course of which
comments were received concerning the proposed fees. The appellants
participated in this process and provided comments. Procon avered that it
took these comments into account in making its fee determination. The
fact that Procon did not agree with the methods of costing, reflected in
certain of the comments received, did not mean that these comments
‘were not recognised and considered’. In sum, the consultative process
afforded the appellants a reasonable opportunity to participate, and it was
thus fair.

[28] The record shows that there was indeed an extensive consultative
process followed. Procon received comments on its proposed inspection
fees from numbers of affected persons. The first appellant provided
comments. But the yield of the process by way of comments does not
meet the principal complaint made by the appellants as to its fairness.
Two notices inviting comments in respect of Procon’s proposed fees were

published in the Government Gazette: the first on 14 October 2016, and
the second on 24 November 2016.

[29] The proposed inspection fees in the first notice reflected 3
categories. Each category listed various products. The proposed
inspection fees were as follows: category 1, 1.8c per kg; category 2, 1.6c
per kg; category 3, 1.4c per kg. The notice further indicated that the levies
per kilogram would be based on net weight, and prices exclude VAT.
A caveat was laid down: where an inspection service is delivered and
levies are not sufficient to cover costs, ‘[Procon] reserves the right to, at
its discretion, charge hourly and /or kilometre rates. . .’. These rates were
then set out. In the second notice, certain revisions were made to the rates
in each category, and the specified products listed in categories 1 and 3
were reduced, with residual products listed in category 3 as ‘unspecified
vegetables’ at an inspection fee of 1.4c per kg.

[30] What is entirely absent from the two notices was any indication as
to how the inspection fee was arrived at. Nor was there an explanation as
to what determined the differential in the rates as between the categories
in the first notice, and within the categories in the second notice. The first
notice, as indicated, does reference the risk that the levies may not cover
costs. But nothing is said as to whether the fees are fixed to recover costs
or make a profit, and if so, how the rate expressed in cents per kilogram,
in different categories, achieves that end.

[31] In my view, these omissions irredeemably compromise the fairness
of the consultative process that was followed. It is clear from certain of
the comments received that the basis of the proposed fees was questioned.
In one meeting, held on 27 September 2016 between the first appellant,

Procon, and representatives of the Department, the first appellant raised
the issue as to the basis upon which Procon used a rate per kilogram when
products had different values unrelated to weight.  The recorded response
is that ‘[Procon] will engage with [the first appellant] on the matter.’
What was required of Procon in the notices calling for comment was
information as to the basis of a fee based on weight, the rationale for the
fee structure, the logic underpinning the categories, rate differentials and
their relation to cost recovery.

[32] Absent this information, those affected by the proposed fee
determination, including the appellants, were not placed in a position to
make meaningful and informed comments. As a result, the consultative
process did not meet the requirements of procedural fairness. The fee
determination made by Procon cannot stand, since it is the outcome of an
unfair process. It must be reviewed and set aside.

[33] The appellants also sought to review Procon’s determination of
inspection fees on the basis that it was irrational, arbitrary and capricious.
The exercise of public power, including the power to determine
inspection fees by an assignee, must have a rational basis. In Democratic
Alliance v President of South Africa,11 the Constitutional Court framed
rationality review thus:
‘The aim of the evaluation of the relationship is not to determine whether some means
will achieve the purpose better than others but only whether the means employed are
rationally related to the purpose for which the power was conferred’.

[34] The essential complaint that the appellants made in the founding
affidavit is this. The determination of inspection fees by Procon,

11 Democratic Alliance v President of South Africa [2012] ZACC 24; 2012 (12) BCLR 1297; 2013 (1)
SA 248 (CC) para 32.

published in the Government Gazette on 6 January 2017, followed the
revision of the proposed fees, described above. In category 1, the listed
products are charged an inspection fee of 1.8c per kilogram. In category
2, the listed products attract an inspection fee of 1.6c per kilogram, save
for cauliflower and pumpkins that are charged a fee of 0.8c per kilogram.
In category 3, the inspection fee for products, including ‘unspecified
vegetables’, is 1.4c per kilogram, save for cabbages that are charged 0.8c
per kilogram. The appellants contend that to charge fees in different
categories according to weight means that products that weigh more
attract a higher fee than products that weigh less, although the services to
be rendered in respect of the products are the same. Nor is there any
evident basis for the differentiation in fees as between and within
categories. The determination of fees is accordingly irrational.

[35] The powers and duties conferred upon assignees in terms of the
Act are public powers. Their purpose is to enforce the regulatory scheme
of the Act. The regulatory scheme seeks to control the sale, export and
import of certain agricultural products. The power of an assignee to
determine a fee is no different from the characterisation of the assignee’s
other powers and duties. It is a public power, conferred to permit the
assignee to carry out a public function, which is, to enforce the regulatory
scheme of the Act. The purpose of the power of the assignee to determine
a fee is to permit the assignee to be compensated for the cost of carrying
out its duties in a competent and efficient manner. The question is then
whether the fees determined by Procon are rationally related to this
purpose.

[36] In its answering affidavit, Procon set out a lengthy disquisition as
to the methodology it used to calculate the inspection fees. The deponent

explained that Procon calculated its costs for each of the markets to be
served, estimated the anticipated volumes of product in each market
expressed in kilograms, and then calculated the anticipated income it
would need to derive, expressed as a rate of cents per kilogram, so as to
break-even.

[37] What this exposition failed to explain was how the anticipated
number of inspections and the costs associated with those inspections is
rationally expressed by reference to the weight of the anticipated sales of
products in each of the markets. While the volume of the products that
require inspection is of relevance to a determination of cost, wholly
unexplained is how that cost increases with the unit weight of a particular
product. Nor does the deponent make intelligible how different products
come to be categorised in categories 1, 2 or 3 and the differences in the
fee, expressed in cents per kilogram, both within and between categories.

[38] The purpose of the power to determine inspection fees, as I have
explained, is to secure compensation sufficient to meet the assignee’s
costs of carrying out its public duties in a competent and efficient
manner. The determination of fees made by Procon is not rationally
related to this purpose. The inspection fees, expressed in cents per
kilogram for each product, arranged in 3 categories, with differential fees
within and between categories, have no discernible or cognisable
connection to the costs incurred by Procon so as to carry out its duties in
a competent and efficient manner. The appellants’ rationality review is
thus established.

Conclusion
[39] The appellants’ appeal succeeds in part and fails in part. The
appellants
sought
to
have
the
challenged
provision
declared
unconstitutional and invalid. The appellants, I have found, cannot prevail
on this issue. The appellants’ review of Procon’s fee determination is
however well founded. The high court did not consider the merits of the
review because it found that the appellants had failed to exhaust their
internal remedy. In that it erred, and the appeal in respect of the high
court’s order dismissing the review succeeds.

[40] As to the question of costs, the appellants submitted that their
constitutional challenge should have been dealt with on the basis of the
well-known principle in Biowatch Trust v Registrar, Genetic Resources
and Others.12 An unsuccessful litigant in constitutional litigation should
ordinarily not be ordered to pay the costs of litigation brought to vindicate
their constitutional rights. The Board accepted the application of this
principle to the appellants’ constitutional challenge, should their appeal
be unsuccessful. Procon and Meatco submitted that because Procon is a
‘Not for Profit Company’, without state funding, it should be awarded
costs, as the high court had ordered. The Minister contended that the
appellants, more especially the first appellant, were ‘financially driven’ in
bringing their constitutional challenge and hence the litigation had a
commercial object and was not an attempt to vindicate a constitutional
right.

[41] The submissions made by the Minister, Procon and Meatco cannot
be accepted. The identity of a respondent as a ‘Not for Profit Company’

12 Biowatch Trust v Registrar, Genetic Resources and Others [2009] ZACC 14; 2009 (10) BCLR 1014;
2009 (6) SA 232 (CC) at para 21.

does not alter the application of the principle that a litigant seeking to
vindicate its constitutional rights should not be discouraged from doing so
by the risk of an adverse costs order. Parties in the position of Procon and
Meatco must decide whether to oppose a constitutional challenge in the
knowledge that their successful opposition carries a cost, and the
determination of the constitutional question is a public good that
promotes our constitutional order. As to the Minister’s submission, the
vindication of a constitutional right may be commercially advantageous,
but that does not detract from the importance that generally attaches to
the freedom with which these rights may be litigated.

[42] It follows that, in my view, no costs order should be made in
respect of the failure by the appellants to prevail in their appeal on the
constitutional challenge. So too, the high court, which did not direct
specific treatment to this issue in its award of costs, should have applied
the Biowatch principle to the unsuccessful outcome of the constitutional
challenge. As to the outcome of the appeal in respect of the review, there
is no reason why the costs should not follow the result.

[43] The following order is made:
1.
The appeal is upheld with costs, including the costs of two counsel
to the extent set out in 3.2  and 3.3 below.
2.
The appeal is otherwise dismissed.
3.
The order of the high court is set aside and substituted with the
following order:
‘3.1  The application to declare s 3(1A)(b)(ii) read with s 3A(4) of
the Agricultural Product Standards Act 119 of 1990 (the Act)
unconstitutional and invalid is dismissed.

3.2
The second respondent’s determination of inspection fees in
terms of s 3(1A)(b)(ii) of the Act published as Notice 1 of
2017 in Government Gazette 40537 dated 6 January 2017 is
reviewed and set aside.
3.3
The costs of the review are to be paid by the first, second,
and eighth respondents, including the costs of two counsel,
where so employed.’

______________________
DN UNTERHALTER
ACTING JUDGE OF APPEAL

Appearances
For appellants:
M C Maritz SC (with him B C Stoop SC)
Instructed by:
Bernhard Van Der Hoven Attorneys,
Pretoria
Rosendorff
Reitz
Barry
Attorneys,
Bloemfontein.

For first respondent:
C E Puckrin SC (with him H C Janse van
Rensburg)
State Attorney, Pretoria
Instructed by:

State Attorney, Bloemfontein.

For second, fifth
and eighth respondents:
H Epstein SC (with him M Mostert)
Instructed by:
Fairbridges
Wertheim
Becker,
Johannesburg
Phatshoane
Henney
Attorneys,
Bloemfontein.

For seventh respondent:  A M Breitenbach SC
Instructed by:
Mothle Jooma Sabdia Inc., Pretoria
Matsepes, 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:

14 JULY 2021
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
Bertie Van Zyl (Pty) Ltd (T/A ZZ2) and Others v The Minister of Agriculture, Forestry and Fisheries and Others
(549/2020) [2021] ZASCA 101 (14 July 2021)
Today the Supreme Court of Appeal (SCA) handed down a judgment upholding the appeal against the Gauteng
Division of the High Court, Pretoria in part with costs, including the costs of two counsel.
The first appellant in this case was Bertie Van Zyl (Pty) Ltd t/a ZZ2. The second and third appellants were Tomato
Producers’ Organisation and Noordelike Uie Komitee. The fourth appellant was Fresh Produce Importers’
Association NPC who is a Not for Profit Corporation. The appellants brought an application in the Gauteng
Division of the High Court, Pretoria (the high court) for an order declaring s 3(1A)(b)(ii) read with s 3A(4) of the
Agricultural Product Standards Act 119 of 1990 (the Act) unconstitutional and invalid. The appellants also sought
to review and set aside the determination of inspection fees by the second respondent, Product Control for
Agriculture (Procon).
The appellants in their application before the high court cited the assignees designated by the Minister. Procon
was an assignee. So too was the seventh respondent, the Perishable Products Export Board (the Board). The Board
was recognised as a juristic person in terms of the Perishable Products Export Control Act 9 of 1983. The Minister,
Procon, the eighth respondent, South African Meat Industry Company (Meatco), and the Board opposed the
application, though the Board limited its opposition to the appellants’ constitutional challenge.
In the high court, the appellants contended that the challenged provision was a deprivation of property that
infringed s 25 of the Constitution. The challenged provision was also said to offend against the rule of law and s
195(1) of the Constitution. The high court (per Baqwa J) dismissed this constitutional challenge. It also dismissed
the review of Procon’s fee determination on the basis that the appellants had failed to exhaust the remedy of appeal
available to them in terms of s 10 of the Act. An order for costs, including the costs of two counsel, was made in
favour of Procon, the Board and Meatco. With the leave of the high court, the appellants appealed to this Court.
In the SCA the appellants complained that the power of the assignee to determine its fees was a unilateral
determination, not subject to supervision, nor to ministerial or other control. Such an untrammelled power, the
appellants contended, could not survive constitutional scrutiny. First, the challenged provision was a deprivation
of property that infringed s 25 of the Constitution. Second, the challenged provision offended against the rule of
law and s 195(1) of the Constitution.
According to the SCA, the first issue that required consideration was did the determination of a fee and the
obligation to pay that fee upon the exercise by the assignee of its powers constitute a deprivation of property? The
SCA held that to receive a service for a fee was not a deprivation of property. This demonstrated that it was not

the requirement that if a fee was payable that constituted the deprivation of property. Rather, it was the power
given to the assignee, without supervision, to determine the extent of the fee that was said to be objectionable.
The SCA was of the view that if the appellants’ complaint was ultimately as to how an assignee might exercise
its power to determine a fee, without oversight, then, even on the appellants’ argument, the power was capable of
being exercised in a manner wholly consistent with s 25. Therefore, the SCA held that it there was no warrant to
declare s 3(1A)(b)(ii) unconstitutional and invalid. It was also found that the appellants had not made out a case
that s 3(1A)(b)(ii) infringed s 25 of the Constitution.
The appellants also contended that the challenged provision offended the rule of law and s 195(1) of the
Constitution. The SCA held that the contention could not prevail on the basis that without justiciable rights to
enforce, there was no basis upon which this Court could declare invalid a law that was inconsistent with a value
or principle.
Further, on the issue whether the appellants enjoyed a remedy under s 10(1) to appeal their dissatisfaction with
the fees determined by Procon, the appellants contended that they had no such remedy. The appellants argued that
a determination of fees was not a direction and the SCA was of the view that since the determination of a fee was
not a decision, so defined, s 10(1) provided the appellants with no remedy. The respondents opposing this aspect
of the appeal contended that the words ‘any decision’ in s 10(1) should not be read narrowly. However, the SCA
emphasised that if the exercise of the powers of an assignee in s 3A fell within the meaning of a decision in terms
of s 10, it was not clear why a fee determination was not also a decision.
The appellants’ review challenged Procon’s determination of fees on two principal grounds. First, the appellants
complained that the determination was procedurally unfair. Second, the appellants alleged that the determination
was irrational. In this regard the SCA held that the consultative process did not meet the requirements of
procedural fairness. It was also held that the fee determination made by Procon could not stand, since it was the
outcome of an unfair process. Therefore it must be reviewed and set aside. The SCA also found that the
determination of fees made by Procon was not rationally related to this purpose. The appellants’ rationality review
was found to have been established.
The SCA found that the high court had not considered the merits of the review because it found that the appellants
had failed to exhaust their internal remedy. The SCA held that in that aspect the high court erred, and the appeal
in respect of the high court’s order dismissing the review succeeded. The SCA was of the view that no costs order
should be made in respect of the failure by the appellants to prevail in their appeal on the constitutional challenge.
As to the outcome of the appeal in respect of the review, there was no reason why the costs could not follow the
result. In the result, the appeal was upheld with costs, including the costs of two counsel, in respect of the order
of the high court to dismiss the review of the second respondent’s determination of fees made in terms of s
3(1A)(b)(ii) of the Act. The appeal was dismissed in respect of the order of the high court dismissing the
application to declare s 3(1A)(b)(ii) read with s 3A(4) of the Act unconstitutional and invalid and the order of the
high court was amended.

~~~~ends~~~~