Bohler Udderholm Africa (Pty) Ltd v The Manufacturing Development Board

• Judge: Pretorius J
• Judgment Date: 05 June 2006
• Citation: 2006 JDR 0484 (T)
• Docket Number: 1347/2005
• Hearing Date: 08 March 2006
• Court: Transvaal Provincial Division

Pretorius J:

This is an application for review of the decision of the first respondent not to grant Small and Medium Enterprise Development Programme Incentives to the applicant.

The applicant is a manufacturer of special steels with its principal place of business at 1 Isando Road, Isando.

The applicant applied to the first respondent on 14 February 2003 for Small and Medium Enterprise Development Programme Incentives (SMEDP).

The SMEDP came into existence during 1999 in terms of the Manufacturing Development Act, No 187 of 1993. Only certain legal entities could participate in the SMEDP namely, companies, close corporations, partnerships, sole proprietorship and co-operations. Divisions were excluded from participating.

The reason for this exclusion is that the SA Institute for Chartered Accountants complained about the Regional Industrial Development Programme (RIDP) where each division had to submit its own financial statements and statements of assets and liabilities as if it were a separate company. This caused great inconvenience and the workload vyas too much.

The first respondent regards a company which has branches in different parts of the country as a company which has "divisions" which do not qualify for incentives in terms of the SMEDP.

2006 JDR 0484 p3

Pretorius J

The applicant operates from various locations in South Africa as set out in their SMEDP application, but contends that it is operating as one entity with one accounting system and therefore do not operate as divisions.

The first respondent set out the process which an application for incentives follows. The last step, after the application has been assessed by the relevant persons, is when it is placed before the Management Committee which consists of the chairperson and two other people.

The Management Committee, during a meeting, re-assesses the application and ensures that it falls within the Board's guidelines.

This Management Committee rejected the applicant's application on 8

March 2004 "as it does not meet the requirements for incentives". There was no further reasons given for this finding.

The applicant launched an appeal against this decision within sixty days, as required, from the date being notified of the refusal.

The applicant addressed a letter, through its attorneys on 5 April 2004, setting out the grounds of appeal. This appeal letter was only acknowledged by the first applicant on 16 July 2004, despite the applicant requesting...