THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

Reportable

CASE NO: 335/04

In the matter between :

JACOBUS JOHANNES KEMP NO
First Appellant
ALIDA KEMP NO
Second Appellant
CHRISTIAAN FREDERICK MULLER NO
Third Appellant
DANIËL JACOBUS GOOSEN
Fourth Appellant

- and -

DR JJH VAN WYK
First Respondent
DIE MINISTER VAN LANDBOU NO
Second Respondent
MEAT INDUSTRY FORUM OF SOUTH AFRICA
Third Respondent

________________________________________________________________________
Before:
HOWIE P, SCOTT, MTHIYANE, NUGENT & MLAMBO JJA
Heard:
18 AUGUST 2005
Delivered:
19 SEPTEMBER 2005
Summary:
Administrative law – discretion – whether application of policy
precludes proper exercise of discretion.
________________________________________________________________________

J U D G M E N T
________________________________________________________________________

NUGENT JA

NUGENT JA:
[1] A public official who is vested with a discretion must exercise it with an
open mind but not necessarily a mind that is untrammelled by existing principles
or policy. In some cases the enabling statute may require that to be done, either
expressly or by implication from the nature of the particular discretion, but
generally there can be no objection to an official exercising a discretion in
accordance with an existing policy if he or she is independently satisfied that the
policy is appropriate to the circumstances of the particular case. What is
required is only that he or she does not elevate principles or policies into rules
that are considered to be binding with the result that no discretion is exercised at
all.  Those principles emerge from the decision of this court in Britten v Pope
1916 AD 150 and remain applicable today.
[2] What is in issue in this appeal is the discretion that is conferred by the
Animal Diseases Act 35 of 1984 upon the Director of Animal Health (at the
material time that was the first respondent) to grant or to refuse a permit for the
importation of animals into this country. Without such a permit the importation
of animals is prohibited by s 6(1)(a) of the Act. The appellants applied to the
first respondent for a permit to import 98 sable antelope from Zimbabwe, which
the first respondent refused. An application by the appellants to the High Court
at Pretoria to set aside the refusal was dismissed by Hartzenberg J but he granted
them leave to appeal to this court.

[3] About a year before the appellants applied for the permit, in April 2002,
the Directorate of Animal Health (which has statutory responsibilities to protect
livestock against disease) decided to impose an embargo upon the importation of
cloven-hoofed animals from Zimbabwe. In accordance with that decision the
first respondent also purported to issue a directive as contemplated by s 6(3)(a)
of the Act prohibiting the importation of cloven-hoofed animals or their
products from Zimbabwe. The decision to impose the embargo was made after
the directorate was informed by the Chief Veterinary Officer of Zimbabwe that
measures to control the spread of foot-and-mouth disease (a viral disease of
cloven-hoofed animals) in that country had broken down and that outbreaks of
the disease were occurring.
[4] The following extract from a letter written by the Chief Veterinary Officer
of Zimbabwe summarises the risks that are associated with the disease:
‘[Foot-and-mouth disease] is the most important trans-boundary disease in the world. It has
gained this reputation because it is highly contagious, lowers livestock production, and causes
immediate suspension in trade of animals and animal products from infected countries or
regions.’
It is not disputed that the occurrence of the disease in the pastoral regions of this
country would place the livestock industry at considerable risk. Apart from the
cost that would need to be incurred to control and eradicate the infection a mere
suspicion on the part of our trading partners that livestock might be infected is

capable of resulting in an immediate suspension of all trade in meat and other
livestock products.
[5] The fourth appellant, who is the veterinary adviser to the remaining
appellants, made the application for the permit on their behalf in June 2003. At
that time the animals were being held at a quarantine station in Zimbabwe. The
first appellant was aware of the existence of the embargo when he applied for
the permit, but in the application for the permit he proposed that the animals that
were to be imported would be subjected to a regime that entailed testing them
before they entered the country, placing them in quarantine upon their arrival,
and releasing them from quarantine only after further testing had positively
established that they were free of the virus. In the opinion of the fourth appellant
that would remove any risk of the virus being imported.
[6] After receiving no reply to the application the fourth appellant visited the
offices of the Directorate of Animal Health on about 3 July 2003 to make
enquiries. He was told that the first respondent was not available but when he
heard the first respondent’s voice in an adjoining office he approached him and
enquired as to the fate of the application. To his surprise, so he alleges, the first
respondent told him that they should not waste one another’s time, took the copy
of the application that the fourth appellant was holding and, without further ado,
wrote across it ‘refused’. When the first respondent was asked why he had done
so, according to the fourth appellant, he said that there was a complete ban on
the importation of cloven-hoofed animals from Zimbabwe.

[7] The first respondent acknowledged that an encounter with the fourth
appellant occurred at about that time, and that in the course of the encounter he
probably did write the word ‘refused’ across the copy of the application, but he
said that he did so only in confirmation of an earlier decision that he had made
to refuse the application. He said that he had been away from his office for most
of June 2003 and that he saw the application for the first time upon his return on
30 June 2003. Meanwhile the application, together with other similar
applications, was considered at a meeting of officials in his department that was
convened for that purpose. After considering all the applications the officials
concluded that it was not in the interests of the country, and contrary to the
disease protection policies of the department, to permit the importation of the
animals, and they resolved to recommend to the first respondent that the
applications should all be refused. When the first respondent returned to his
office on 30 June 2003 he was informed of the recommendation and he then
read the appellants’ application. He said that it was immediately apparent to him
that a permit should indeed be refused and he decided accordingly. He then gave
instructions for his decision to be conveyed to the appellants in accordance with
ordinary administrative procedures but before that was done he had the
encounter with the fourth appellant that I have described.
[8] In argument before us, and in the court a quo, the appellants submitted, on
the basis of inferences that were sought to be drawn from some of the facts, that
the first respondent could not have considered the application at all, that his

evidence to the contrary was untrue, and that the matter should have been
referred for the hearing of oral evidence to determine that fact. I disagree. I do
not think the inferences that were sought to be drawn were the only, nor even the
probable, inferences to be drawn from the facts. The first respondent’s evidence
was not contradicted by countervailing evidence, it was supported by the
confirmatory evidence of the relevant officials, and is not improbable. In those
circumstances there were no proper grounds for the matter to be referred for the
hearing of oral evidence and it falls to be dealt with in accordance with the
ordinary principles that apply when final relief is sought in application
proceedings.1
[9] It must be accepted, then, that the first respondent indeed considered the
application, albeit briefly, before deciding to refuse it. But in my view what is to
be inferred from his evidence, although it is not expressly stated, is that the
general embargo upon the importation of animals from Zimbabwe was
instrumental to, and probably decisive of, his decision.
[10] The various further submissions that were made on behalf of the
appellants need not be traversed in any detail because they really all came down
to this: It was submitted that the first respondent’s reliance upon the existence of
the embargo in making his decision excluded the proper exercise of his
discretion and for that reason he acted unlawfully. What he was required to do,

1 As enunciated in Stellenbosch Farmers’ Winery Ltd v Stellenvale Winery (Pty) Ltd 1957 (4) SA 234 (C) 235E-
G and elaborated upon by this court in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA
623 (A) 634E-635C.

so it was submitted, was to consider the proposals that were put forward by the
appellants, in isolation of the existing embargo, and to refuse the application
only if those proposals were demonstrably inadequate to obviate the risk of the
disease being introduced. I do not think that is correct. That would suggest that
the first respondent’s function was limited to adjudicating upon the adequacy of
preventative measures that were proposed by potential importers, and that he
was not entitled to initiate, and then enforce, preventative measures devised by
himself, which is manifestly not so. The whole scheme of the Act is directed
towards authorizing the Directorate of Animal Health, through its director, to
initiate measures to protect the country’s livestock against the risk of disease,
which necessarily contemplates that preventative policies would be formulated
to that end, and that the discretion to grant or refuse permits would be exercised
within the framework of those policies.  If the decision to impose the embargo
was itself lawful (and there is no suggestion that it was not) I do not think the
first respondent was called upon (though it was open for him to do so) to re-
evaluate its imposition merely because he was presented with an alternative
proposal that might have been equally effective. He was entitled to evaluate the
application in the light of the directorate’s existing policy and, provided that he
was independently satisfied that the policy was appropriate to the particular
case, and did not consider it to be a rule to which he was bound, I do not think it
can be said that he failed to exercise his discretion. As it was explained in R v
Port of London Authority; Ex parte Kynoch, Ltd [1919] 1 KB 176, 184 :

‘There are on the one hand cases where a tribunal in the honest exercise of its
discretion has adopted a policy, and, without refusing to hear an applicant, intimates to him
what its policy is, and that after hearing him it will in accordance with its policy decide
against him, unless there is something exceptional in his case … [I]f the policy has been
adopted for reasons which the tribunal may legitimately entertain, no objection could be taken
to such a course. On the other hand there are cases where a tribunal has passed a rule, or come
to a determination, not to hear any application of a particular character by whomsoever made.
There is a wide distinction to be drawn between these two classes.’
And in British Oxygen Co. Ltd v Minister of Technology  [1971] AC 610 (HL)
625D-E:
‘What the authority must not do is to refuse to listen at all. But a Ministry or large
authority may have had to deal already with a multitude of similar applications and then they
will almost certainly have evolved a policy so precise that it could well be called a rule. There
can be no objection to that, provided the authority is always willing to listen to anyone with
something new to say – of course I do not mean to say that there need be an oral hearing.’
[11] I agree with the remarks in those cases. In the present case it cannot be
said that the first respondent considered himself bound to refuse the permit
because of the existence of the embargo. His evidence establishes sufficiently
that he indeed evaluated the application and concluded independently that the
embargo was appropriate to the particular case. That he reached that conclusion
after only briefly considering the application is hardly surprising. The first
respondent was an experienced official who had seen and considered similar
proposals, which he considered to be inadequate to obviate the risk, on many
previous occasions, and it does not fall within the province of a reviewing court

to evaluate the soundness or otherwise of his view.  What a court is concerned
with in review proceedings is only whether the decision was arrived at lawfully.
In my view there are no proper grounds for finding that the first respondent’s
decision to refuse the permit was reached unlawfully.
[12] There is one further issue that can be dealt with briefly. I have already
indicated that at the time the embargo was imposed the first respondent also
purported to issue a directive in terms of s 6(3)(a) of the Act prohibiting the
importation of cloven-hoofed animals or their products from Zimbabwe. The
appellants submitted that the directive was invalid because s 6(3)(a)
contemplates such a directive being issued only where the director knows or
suspects that any animal is about to be imported in contravention of the Act or in
contravention of any condition of a permit.2 Perhaps the directive was indeed
misdirected but that is not material. The directorate had in place an embargo as a
matter of policy at the time the application was considered and the inference is
clear that the existence of the embargo was instrumental to the refusal of the
permit. That the first respondent also issued the directive takes the matter no
further whether or not the directive was invalid.

2 ‘S 6(3)(a) The director may, if he knows or on reasonable grounds suspects, that any animal or thing is,
contrary to any provision of this Act, or any condition of a permit –
(i)
being removed, or has been removed, from any place outside the Republic, for the purpose of
importing it into the Republic; or
(ii)
about to be imported by any person into the Republic; or
(iii)
present on or in any conveyance, or forms part of any consignment, which is being or has been
brought or sent by any person to the Republic,
direct that the animal, thing, consignment or portion thereof determined by him, shall not be imported into the
Republic or unloaded or removed from the conveyance, as the case may be, except with his consent and, if he
has determined conditions in connection therewith, in accordance with such conditions.’

[13] In my view it cannot be said that the first respondent acted unlawfully in
reaching his decision to refuse the permit and the application to set aside that
decision was properly dismissed. The appeal is dismissed with costs.

_____________________
R.W. NUGENT
JUDGE OF APPEAL

HOWIE P)
SCOTT JA)
MTHIYANE JA)
CONCUR
MLAMBO JA)