‘(1) The Minister may in writing delegate or assign to any staff member in the Ministry of Land Reform any power or duty conferred or imposed on the Minister by this Act, except the power granted under sections 76, 76B and 77. (2) A delegation or assignment by the Minister under subsection (1)- (a) may be effected subject to such conditions as the Minister may determine; (b) may be withdrawn or varied by the Minister; and (c) shall not preclude the Minister from exercising or performing any power or duty so delegated or assigned. [78] Section 76 (2) of the Act provides as follows: ‘(2) For the purposes of imposing land tax the regulations referred to in subsection (1) may also provide for- the method of calculating such tax and the due date for payment and manner of collection and recovery of such tax (including the payment of interest on such tax); (b) the valuation of agricultural land by a valuer and the manner in which such valuation shall be carried out; (c) the appointment and functions of a valuer; (d) the preparation of a valuation roll by a valuer, the contents of such valuation roll and the manner in which an objection or appeal against such roll may be lodged by an owner;’ (Underlined for emphasis). [79] From the provisions of ss 76(2) and 79A of the Act, it is quite clear that a valuer is not a staff member in the Ministry of Land Reform nor does the Minister have the power to value agricultural land. It thus follows that the valuer is not a delegee of the Minister but a delegee of Parliament. I agree with Mr. Gauntlett who argued that the valuer is possessed with authority from Parliament to value agricultural land. The question that needs to be answered therefore is whether the valuer is either expressly or by necessary implication, authorised by Parliament to further delegate the powers
[179] The general principle referred to in the Bio Watch Trust matter was set out in the case of Affordable Medicines Trust and Others v Minister of Health and Others where Mr Justice Ngcobo said: ‘The award of costs is a matter which is within the discretion of the Court considering the issue of costs. It is a discretion that must be exercised judicially having regard to all the relevant considerations. One such consideration is the general rule in constitutional litigation that an unsuccessful litigant ought not to be ordered to pay costs. The rationale for this rule is that an award of costs might have a chilling effect on the litigants who might wish to vindicate their constitutional rights. But this is not an inflexible rule. There may be circumstances that justify departure from this rule such as where the litigation is frivolous or vexatious. There may be conduct on the part of the litigant that deserves censure by the Court which may influence the Court to order an unsuccessful litigant to pay costs. The ultimate goal is to do that which is just having regard to the facts and circumstances of the case. In Motsepe v Commissioner for Inland Revenue this Court articulated the rule as follows: '(O)ne should be cautious in awarding costs against litigants who seek to enforce their constitutional right against the State, particularly where the constitutionality of the statutory provision is attacked, lest such orders have an unduly inhibiting or ''chilling'' effect on other potential litigants in this category. This cautious approach cannot, however, be allowed to develop into an inflexible rule so that litigants are induced into believing that they are free to challenge the constitutionality of statutory provisions in this Court, no matter how spurious the grounds for doing so may be or how remote the possibility that this Court will grant them access. This can neither be in the interests of the administration of justice nor fair to those who are forced to oppose such attacks.' [180] In the Bio Watch Trust matter Mr Justice Sachs justified the general rule that an unsuccessful litigant ought not to be ordered to pay costs as follows: ‘[23] The rationale for this general rule is threefold. In the first place it diminishes the chilling effect that adverse costs orders would have on parties seeking to assert constitutional rights. Constitutional litigation frequently goes through many courts and the