Birch v Klein Karoo Agricultural Co-Operative Ltd

• Jurisdiction: South Africa
• Judge: Hoexter JA, Vivier JA, Goldstone JA, Nicholas AJA and Van Coller AJA
• Judgment Date: 19 March 1993
• Citation: 1993 (3) SA 403 (A)
• Hearing Date: 08 March 1993
• Court: Appellate Division

Vivier, JA.:

The appellant is an ostrich farmer in the Grahamstown district. E The respondent is a co-operative society incorporated under the provisions of the Co-operatives Act 91 of 1981 ('the 1981 Act'). The respondent, which is based in Oudtshoorn, has as one of its objects the disposal of ostriches and ostrich products. At the request of the respondent, the Minister of Agriculture, acting under and by virtue of the powers F conferred upon him by s 241(3)(b) of the 1981 Act, by Government Notice R981, published in the Government Gazette of 17 May 1988, declared that from that date no producer of ostriches or ostrich products in the Republic of South Africa would be allowed to sell or otherwise dispose of any ostriches or ostrich products otherwise than through the respondent. In terms of the notice 'ostrich products' were defined to mean anything G derived from ostriches, whether processed or not, but not ostrich-eggshells. Specifically excluded from Government Notice R981 were, firstly, the sale or disposal of ostriches and ostrich eggs by a producer to any producer in a specified exempted area and, secondly, the sale or disposal of ostrich products by a producer if those ostrich products had H already been sold or otherwise disposed of once in any form whatsoever through the respondent.

The appellant thereafter applied on notice of motion to the Cape Provincial Division for an order declaring Government Notice R981 to be invalid, on the ground that by issuing the notice the Minister had exceeded his powers under the enabling legislation. The application was I opposed by the respondent. The matter came before Marais J who dismissed the application with costs but granted leave to the appellant to appeal to this Court.

Section 241 of the 1981 Act, pursuant to which Government Notice R981 was issued, does not itself contain any enabling provision conferring upon J the Minister a power similar to that which had previously been

Vivier JA

A vested in him by s 102(1) of the Co-operative Societies Act 29 of 1939 ('the 1939 Act') which was repealed by the 1981 Act. Section 241(3)(a) of the 1981 Act provides, however, that any notice or proclamation issued or deemed to have been issued under s 102 of the 1939 Act and which was in force immediately before the commencement of the 1981 Act shall, the repeal of such section notwithstanding, continue in force until it is B withdrawn by the Minister under para (b) of that subsection. In terms of para (b) the Minister may amend, substitute or withdraw any notice or proclamation issued or deemed to be issued under s 102 of the 1939 Act. By Government Notice R981 previous Government Notices 640 of 9 May 1958, 1166 C of 31 July 1959 and 875 of 5 June 1970 were repealed and new provisions were substituted. The question whether the Minister was empowered to issue Government Notice R981 accordingly turns on a proper construction of s 102(1) of the 1939 Act.

That Act repealed and superseded all existing legislation governing D co-operative societies and companies. Under the Co-operative Societies Act 28 of 1922 ('the 1922 Act') there had been no form of compulsion. A farmer was free to join a co-operative society or company as he pleased and only those who had voluntarily become members of a society or company were bound by the regulations thereof. Non-members were free to dispose of their agricultural products or manufacture them into the finished product as they pleased (Orient Tobacco Co Ltd v Koöperative Tabakplanters E Vereniging 1927 AD 49 at 54). In 1925 the 1922 Act was amended by Act 38 of 1925 ('the 1925 Act') and in terms of s 17(1)...