Independent Food Processors (Pty) Ltd v Minister of Agriculture and Others

JurisdictionSouth Africa
Citation1993 (4) SA 294 (C)

Independent Food Processors (Pty) Ltd v Minister of Agriculture and Others
1993 (4) SA 294 (C)

1993 (4) SA p294


Citation

1993 (4) SA 294 (C)

Court

Cape Provincial Division

Judge

van Niekerk J

Heard

May 20, 1991; May 21, 1991; May 22, 1991; May 23, 1991; May 27, 1991; May 28, 1991; May 29, 1991; May 30, 1991; June 2, 1991; June 3, 1991; June 4, 1991; June 5, 1991; June 6, 1991; June 10, 1991; June 11, 1991; November 18, 1991; November 19, 1991; November 20, 1991; November 21, 1991; November 25, 1991; November 26, 1991; November 28, 1991; December 4, 1991 April 27, 1992; April 28, 1992; April 29, 1992; April 30, 1992

Judgment

June 5, 1992

Flynote : Sleutelwoorde B

Agriculture — Dairy products — Marketing Act 59 of 1968 — Scheme in C terms of Act regulating marketing of dairy products — Amendments to scheme, involving imposition of levies on non-manufacturing milk distributors, published — Plaintiff (a milk-distributing company) instituting proceedings for order declaring proclamations publishing amendments to scheme to be invalid, including two proclamations published D before plaintiff company registered (ie Proc R297 of 1987 and Proc R808 of 1987) — Locus standi of plaintiff in respect of proclamations published before plaintiff's registration — Plaintiff having sufficient interest to establish its locus standi in relation to Proc R297 of 1987 and Proc R808 of 1987 — If valid, such proclamations would render plaintiff liable for payment of levies — Plaintiff having direct and pecuniary interest E sufficient to afford it locus standi — Plaintiff, both as individual and as member of group of non-manufacturing milk distributors affected by consequences of acts in question, entitled to rely on failure of Dairy Board and Minister to afford other milk distributors a hearing before publishing of proclamations. F

Agriculture — Dairy products — Marketing Act 59 of 1968 — Scheme in terms of Act regulating marketing of dairy products — Amendments to scheme, involving imposition of levies on non-manufacturing milk distributors, published — Validity of — Proclamation R297 of 1987, Proc G R808 of 1987, Proc R1506 of 1988 and Proc R307 of 1989 invalid as being discriminatory against non-manucfaturing milk distributors — Effect of such enactments was to shift obligation to pay levies and special levies on milk from producers to distributors in order to fund Dairy Board's scheme of providing financial assistance to dairy product manufacturers — H Additional effect thereof to undermine economic viability of non-manufacturing distributors contrary to intention of Legislature and to subsidise latter's competitors.

Agriculture — Dairy products — Marketing Act 59 of 1968 — Scheme in I terms of Act regulating marketing of dairy products — Amendments to scheme, involving imposition of levies on non-manufacturing milk distributors, published — Validity of — Proclamations R297 of 1987, R808 of 1987, R1506 of 1988 invalid for want of compliance with s 9(2) of Act — Failure of marketing council to investigate proposed amendments — Policy of marketing council to support any amendment to Dairy Control Scheme proposed by Dairy Board provided Board's decision unanimous — J Marketing Council

1993 (4) SA p295

A making no independent enquiries into proposed amendments — Minister consequently not fully informed as to material facts by Dairy Board or marketing council — Information that producers and non-manufacturing distributors of milk opposed to amendments and levies excluded by Dairy Board from Minister and marketing council — Proclamation accordingly void B and of no force and effect.

Agriculture — Dairy products — Marketing Act 59 of 1968 — Scheme in terms of Act regulating marketing of dairy products — Amendments to scheme, involving imposition of levies on non-manufacturing milk distributors, published — Validity of — Proclamation R297 of 1987 C invalid for want of compliance with s 12(1) or (2) of Act — Only scheme or amendment of scheme which can be published in Government Gazette in terms of s 14(1) or s 15 of Act is one referred to in s 12(1) or (2) — Such proposed scheme or amendment thereof required to have been accepted by Minister — Proclamation R297 of 1987 published on 13 February 1987 but D Minister only having approved and signed it on 3 March 1987 — Proclamation R297 of 1987 accordingly invalid.

Agriculture — Dairy products — Marketing Act 59 of 1968 — Scheme in terms of Act regulating marketing of dairy products — Amendments to scheme, involving imposition of levies on non-manufacturing milk E distributors, published — Validity of — No provision in Act which expressly or impliedly excludes audi alteram partem principle or principles of natural justice from process of decision-making by Dairy Board in proposing amendments to Dairy Control Scheme or in imposition of levies — Likewise nothing in Dairy Control Scheme expressly or impliedly F excluding operation of audi alteram partem principle — Dairy Board guilty of obvious bias in favour of large scale dairy businesses and failing to afford non-manufacturing milk distributors a hearing before reaching decisions to propose amendments to scheme and imposition of levies — Clear circumvention of rules of natural justice established — G Proclamations R297 of 1987, R808 of 1987, R1506 of 1988 and R307 of 1989 accordingly invalid.

Headnote : Kopnota

The applicant, a purchaser and distributor of milk, applied in a Provincial Division for an order declaring Procs R297 of 13 February 1987, R808 of 10 April 1987, R1506 of 29 July 1988 (and operative from 1 September 1988) and R307 of 24 February 1989, published in terms of the H provisions of the Marketing Act 59 of 1968, to be ab initio void. In the alternative an order was sought declaring that certain levies imposed in terms of Procs R297 of 1987, R808 of 1987, R1506 of 1988 and R1754 of 1988 were void. Proclamations R297 of 1987, R808 of 1987 and R1506 of 1988 purported to amend the Dairy Control Scheme established and published in Proc R290 of 10 November 1978 for the regulation of the marketing of dairy products. The applicant relied on various grounds for the orders prayed. I The applicant had been registered as a company late in April 1987, had commenced doing business on 29 July 1987 and had been registered with the Dairy Control Board (the second defendant) on 30 July 1987. Relying on the fact that the plaintiff had only come into existence upon its registration late in April 1987, the defendant raised a point in limine challenging the plaintiff's locus standi to seek orders declaring Procs R297 of 1987 and R808 of 1987 to be void on the ground that they had been published prior J to the plaintiff coming into existence.

1993 (4) SA p296

A Held, that it appeared from the pleadings and evidence that the plaintiff had shown a sufficient interest to establish its locus standi in relation to all the proclamations under attack, and more specifically Procs R297 and R808 of 1987: these two proclamations, if valid, would render the plaintiff liable for the payment of certain special levies and ordinary levies.

Held, accordingly, that the plaintiff had a direct and pecuniary interest B sufficient to afford it locus standi to challenge the disputed enactments: the evidence had furthermore shown that the plaintiff was already in the course of formation towards the end of 1986, prior to the publication of the disputed proclamations, and had a material interest shared by a large number of existing concerns in the proposed changes effected by them.

Held, further, that the plaintiff was entitled to rely on the failure of the Dairy Board and the Minister to afford other milk distributors who C were not manufacturers of dairy products a hearing before publishing the proclamations: the plaintiff, both as an individual and as a member of the group of non-manufacturing milk distributors which had been subjected to the consequences of the acts in question, had a legal interest in the failure to afford that group a hearing.

Held, accordingly, that the point in limine had to be dismissed.

On the merits of the dispute between the parties, the Court made, inter alia, the following findings:

(1)

D The plaintiff contended that the defendants' acts and the relevant delegated enactments had not been authorised by the Marketing Act as they discriminated against non-manufacturing distributors. The Court held on the evidence that the effect of the amendments to the scheme and the levies which had been imposed thereunder was to shift the obligation to pay levies from the producers of milk to the distributors. The purpose of so doing was to impose the burden E of funding the Dairy Board's scheme of financial assistance to the dairy product manufacturers on, inter alia, non-manufacturing distributors. The Court held, further, that the additional effect thereof was to undermine the economic viability of the non-manufacturing purchasers and distributors of milk contrary to the intention of the Legislature and to subsidise their competitors, the manufacturers and co-operative dairies. The Court accordingly held that, on the evidence, the discriminatory nature F of the amendments to the Dairy Control Scheme and of the imposition of the levies on the non-manufacturing distributors had been established. The proclamations were accordingly held to be invalid on the grounds of their discriminatory nature.

(2)

It was further contended by the plaintiff that Procs R297 of 1987, R808 of 1987 and R1506 of 1988 had not been enacted in accordance with the formalities prescribed by the Marketing Act, in G particular that there had been no proper investigation by the National Marketing Council (the third defendant) as required by s 9(2)(a) of the Act. The Court found that, on the face of it, s 9(2) required as an...

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3 practice notes
  • Cianam Trading 104 CC v Peters MP
    • South Africa
    • Gauteng Division, Pretoria
    • 12 December 2014
    ...1910 TS 372 at 379. [2] Jacobs v Waks 1992 (1) SA 521 (A) at 534-535. Independent Food Processors (Pty) Ltd v Minister of Agriculture 1993 (4) SA 294 (C) at [3] ZASCA 34 (29 March 2012) at para 16 [4] Koyabe v Minister for Home Affairs 2010 (4) SA 327 (CC) at para 38. [5] Section 2(2) and 2......
  • Tiffin v Woods
    • South Africa
    • Cape Provincial Division
    • 26 April 2007
    ...Diamond v Minister of Justice 1934 AD at 38; See also: Independent Food Processors (Pty) Ltd v Minister of Agriculture & Others 1993 (4) SA 294 (C) at 328 C-H; Sefularo v President of Boputhatswana & Another 1994 (3) SA 80 (B) at 82D-83E; Mokgoko & Others v Acting Rector, Setlogelo Techniko......
  • Unlawful Occupiers of Reminder of Portion 0052 of The Farm Elandsfontein v The Magistrate, Brits Magistrate's Court: H Glass NO
    • South Africa
    • Transvaal Provincial Division
    • 14 September 2007
    ...506, para 25 [9] Sachs v Minister of Justice 1934 AD 11 at 37 See also Strydom v Die land - en landbou van S.A. 1972 (1) 801 (A) [10] 1993 (4) SA 294 (C) 320 F - 321 [11] Minister of Public Works and Others v Kyalami Ridge Environmental Association and Another 2001 (3) SA 1151 (CC) 1184, pa......
3 cases
  • Cianam Trading 104 CC v Peters MP
    • South Africa
    • Gauteng Division, Pretoria
    • 12 December 2014
    ...1910 TS 372 at 379. [2] Jacobs v Waks 1992 (1) SA 521 (A) at 534-535. Independent Food Processors (Pty) Ltd v Minister of Agriculture 1993 (4) SA 294 (C) at [3] ZASCA 34 (29 March 2012) at para 16 [4] Koyabe v Minister for Home Affairs 2010 (4) SA 327 (CC) at para 38. [5] Section 2(2) and 2......
  • Tiffin v Woods
    • South Africa
    • Cape Provincial Division
    • 26 April 2007
    ...Diamond v Minister of Justice 1934 AD at 38; See also: Independent Food Processors (Pty) Ltd v Minister of Agriculture & Others 1993 (4) SA 294 (C) at 328 C-H; Sefularo v President of Boputhatswana & Another 1994 (3) SA 80 (B) at 82D-83E; Mokgoko & Others v Acting Rector, Setlogelo Techniko......
  • Unlawful Occupiers of Reminder of Portion 0052 of The Farm Elandsfontein v The Magistrate, Brits Magistrate's Court: H Glass NO
    • South Africa
    • Transvaal Provincial Division
    • 14 September 2007
    ...506, para 25 [9] Sachs v Minister of Justice 1934 AD 11 at 37 See also Strydom v Die land - en landbou van S.A. 1972 (1) 801 (A) [10] 1993 (4) SA 294 (C) 320 F - 321 [11] Minister of Public Works and Others v Kyalami Ridge Environmental Association and Another 2001 (3) SA 1151 (CC) 1184, pa......

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