IN THE HIGH COURT OF ESWATINI
JUDGMENT
CIVIL CASE NO: 1122/2018
In the matter between:
TERENCE EVERZARD REILLY N.O. 1ST APPLICANT
ELIZABETH REILLY N.O. 2ND APPLICANT
JAMES WEIGHTON REILLY N.O. 3RD APPLICANT
PETROS MGCIBELO NGOMANE N.O. 4TH APPLICANT
and
THE DIRECTOR OF VETERINARY & LIVESTTOCK
SERVICES 1ST RESPONDENT
THE PRINCIPAL SECRETARY FOR AGRICULTURE
AND CO-OPERATIVES 2ND RESPONDENT
THE MINISTER OF AGRICULTURE AND
CO-OPERATIVES 3RD RESPONDENT
THE ATTORNEY-GENERAL, ESWATINI 4TH RESPONDENT
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Neutral Citation: Terence Everzard Reilly N.O. & 3 Others v The Director of Veterinary & Livestock Services & 3 Others (1122/2018 [2019] SZHC 14 (12 February 019)
CORAM: NKOSINATHI MASEKO J
FOR APPLICANTS: ADVOCATE PAUL KENNEDY SC with him
ADVOCATE CHRISTIAAN BESTER instructed by
MR K.J. MOTSA of ROBINSON BERTRAM
ATTORNEYS
FOR RESPONDENTS: MR V. MANANA of the ATTORNEY GENERAL’S
CHAMBERS
DATE HEARD: 06/08/2018
DATE OF ISSUE OF ORDER: 09/08/2018
DATE DELIVERY OF FULL JUDGMENT: 12/02/2019
PREAMBLE: Administrative law – Statutory discretion of administrative functionary – Whether exercised fairly in issuance of Import Permits – Failure to afford Applicants Audi Alteram partern.
Held: Failure to afford the Applicants the right to be heard constitute a failure of justice and an arbitrary and unfair exercise of the statutory discretion rendering the whole administrative process to be reviewed and set aside.
[1] On the 24th July 2018, the Applicants launched an urgent Application
and seeking the following orders.
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1. The Applicants’ non-compliance with the Rules of the
above Honourable Court in regard to service and time
limits is condoned and the Application is permitted to be
heard as one of urgency.
2. The decision of the Respondent to grant the veterinary
import permits listed below subject to condition seven
thereto is corrected and reviewed by amending the
decision to grant each such veterinary import permit
without condition seven or any condition having a similar
effect:
2.1. Import Permit No. AH50/GAMECH/2016/0013
granted on 11 June 2018 in respect of fifteen (15)
Tsessebe;
2.2. Import Permit No. AH50/GAMECH/2016/0014
granted on 11 June 2018 in respect of five (5) Sable
Antelope.
2.3. Import Permit No. AH50/GAMECH/2016/0015
granted on 11 June 2018 in respect of fifteen (15)
Tsessebe;
2.4. Import Permit No. AH50/GAMECH/2016/0016
granted on 11 June 2018 in respect of twenty (20)
Sable Antelope;
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2.5. Import Permit No. AH50/GAMECH/206/0019
granted on 26 June 2018 in respect of twenty (20)
Tsessebe;
2.6. Import Permit No. AH50/GAMECH/2016/0020
granted on 26 June 2018 in respect of twenty (20)
Tsessebe.
3. The first to third Respondents are hereby interdicted and
restrained from:
3.1. imposing or purporting to impose any conditions
that have the effect of restricting, inhibiting or
prohibiting the importation of the wild animals
forming the subject of the veterinary import permits
described in 2.1 to 2.6 above;
3.2. interfering in anyway with the import of the wild
animals forming the subject of the veterinary import
permits described in 2.1 to 2.6 above.
4. The First Respondent is ordered to pay cost including
certificate costs of Counsel of this Application.
5. In the event that one or more of the Second to Fourth
Respondents choose to oppose the relief sought, such
Respondents are ordered to pay the costs of this
Application together with the First Respondent in solidum
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jointly and severally the one paying the others to be
absolved.
6. Granting the Applicants such further and/or alternative
relief as may be just in the circumstances.
[2] The First Applicant Terence Everzard Reilly N.O. filed the Founding
Affidavit and annexures thereto in support of this Application
[3] The Application was served on all the Respondents including the
Attorney General on the 24th July 2018.
[4] The Respondents served and filed their Notice of Intention to Oppose
the Application on the 27th July 2018.
[5] On the 31st July 2018 the First Respondent filed and served the
Answering Affidavit and annexures thereto in opposition to the
Application.
[6] The First Applicant filed and served his Replying Affidavit on the 2nd
August 2018.
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THE PARTIES
[7] The 1st to 4th Applicants are trustees of The Big Game Trust, a
conservation trust delegated with the obligation to administer The
Game Act No. 51 of 1953 as amended which was promulgated to
preserve the wildlife of the Kingdom of Eswatini. This obligation on
Big Game Parks was bestowed through Legal Notice No. 142 of 1998
herein marked as Annexure BG 2 and correspondence from the King’s
Office dated the 5th July 2007 herein marked as Annexure BG 3 which
clearly states in paragraph 2 as follows:
‘This office would like to inform you of changes in the official responsibilities for wildlife in Swaziland.
The King’s Office is the responsible Authority for the administration of National Wildlife and or CITES (Convention on International Trade in Endangered Species). We also inform you that Big Game Parks has been delegated the official mandate to administer and manage The Game Act of Swaziland, CITES, and all other international conventions/agreements on wildlife and is thus the official mandated Management Authority for the National Conservation of Wildlife …’
[8] The First and Second Respondents are public servants and officials of
the Ministry of Agriculture and Co-operatives and the 3rd Respondent
is the political head of the Ministry.
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HISTORY OF THE MATTER
[9] On the 9th May 2018 Big Game addressed correspondence to the First
Respondent requesting for an import permit for 40 Tsessebe from
Touchstone Game Ranch, Waterberg Limpopo South Africa to Mkhaya
Game Reserve. The correspondence from Big Game Parks to the 1st
Respondent is herein marked Annexure BG 5. On the 15th May 2018
the 1st Respondent issued a Veterinary Import Permit herein marked
Annexure BG 8, whereby clause/condition 7 of the import permit
presented for a minimum period of 30 days quarantine on the
imported animals.
[10] Further requests for import permits were made respectively:-
(i) for 15 Tsessebe from De Beers Inglewood Dronfield Nature
Reserve Kimberly, South Africa on 28th May 2018 to
Mkhaya Game Reserve – Annexure BG 6
(ii) for 15 Tsessebe and 5 Sable Antelope from Bona Bona,
Wolmarranstaad North Province, South Africa on 28th May
2018 to Mkhaya Game Reserve – Annexure BG 7.
(iii) for 20 Sable Antelope from Touchstone Game Ranch,
Waterberg Limpopo, South Africa on 7th June 2018 to
Mkhaya Game Reserve – Annexure BG 8.
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[11] It is common cause that the condition 7 as stipulated in the permit
issued on the 15th May 2018 presented a frustration to Big Game
Parks. In fact all the permits that were issued by the 1st Respondent
contained condition 7. In a letter dated 8th June 2018 and marked
Annexure BG 10 at page 69 of the Book of Pleadings – First Applicant
raises a concern over the delay in issuing the import permits by the
First Respondent and also the frustration caused by condition 7,
wherein at paragraphs 2-3 he states as follows:
‘We have applied for veterinary import permits for the import of Tsessebe and Sable Antelope. We are accustomed to receiving import permits from your office within a day or two, but it has now been two weeks since our last application and the veterinary office has been evasive in giving us reasons as to what is causing the delay.
We finally spoke to Dr. Patrick Dlamini who informed us that the delay has been caused by deliberation among yourselves over new import conditions. It is obvious that these conditions are not workable for many wildlife species and especially Tsessebe. The new conditions are in effect one step away from closing down the game industry of Eswatini as they require that huge additional cost and risk is placed on wild animals through extended periods of confinement, double capture, testing and handling.
Tsessebe, and many other wildlife species, are of temperaments which cannot handle extra traumas, which do result in unnecessary suffering, injury and major mortalities.
These new conditions have come unilaterally as a bolt out of the blue, without notice to, nor consultation with stakeholders. Complying with your conditions would seriously compromise our standards of ethical and professional handling of wild animals
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and we therefore are unable to comply with the conditions on the Eswatini side due to the grave risk they pose to the animals concerned. It is currently unknown if the South Africans will be able, or indeed willing to comply with such conditions on their side, more especially as these are rare animals that are listed as threatened or protected species in South Africa legislation.
[12] It is common cause that the Condition 7 as contained in the import
permits is the cause of these proceedings. It is therefore very crucial
that I reproduce it verbatim –
7. Upon arrival the animals shall be adequately kept isolated from other animals resident on the Game Reserve for a minimum period of thirty (30) days, during which any abnormalities and/or signs of disease shall be reported immediately to the State Veterinary Officer in the Region.
[13] On the other hand the 1st Respondent insisted on the enforcement of
this condition despite the pleas by the Applicants that it will result to
mortalities to the Tsessebe in particular because of their
temperamental nature.
THE PROCEEDINGS
[14] These proceedings were launched by the Applicants as a last resort
after pleas and negotiations were turned down by the 1st Respondent.
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[15] On the 6th June 2018 Annexure BG 9 Dr. Patrick Dlamini sent an
email correspondence to the Applicant wherein in paragraphs 1-2 he
states as follows:
‘With reference to the above stated subject, please note that there have been a point of emphasis especially with regards certain species of animals (cloven hoofed artiodactlys) regarding the conditions of importation that has often been overlooked and yet is a key disease risk management tool for imported animals.
The import conditions also noted by audit inspectors as a weak point in our sanitary controls for wildlife is the need for Post Importation Quarantine/Isolation at destination for 30 days. Cloven hoofed animals are considered in that high risk for FMD and other diseases, whether they have been obtained through auctions or not. This measure in accordance to The Animal Disease Act 7/1965 is as applies for bovine importation and may be demanded for any species of animal from any country as risk analysis may indicate.’
[16] It is common cause that during the period May-July 2018 there was
an exchange of correspondence between the 1st Applicant and 1st
Respondent.
[17] On the 11th June 2018 Annexure BG 11, First Respondent responded
partly as follows to First Applicant’s correspondence of the 8th June
2018. At paragraph 3-4 he states as follows:
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‘--- These groups of animals come from different sources and therefore may not have the same health status. I am further informed that the veterinarians were concerned with mixing animals from different sources. Isolation of imported or any other newly introduced animal is a standard sanitary procedure. Isolation enables identification, closer monitoring and decision making on the newly introduced animals. If the threat level was perceived higher, the Veterinary Services would have put a condition for quarantine (confinement), which is indeed a much higher standard, required double fencing and stricter veterinary supervision ---
In your letter, you mention new conditions that have been introduced into the permit, but you did not specify the conditions. I note that in the import permit, for Tsessebe, recently issued to Big Game Parks there is a requirement for freedom from Peste des Petits Ruminants (PPR) and Brucellosis. The species is susceptible to both diseases. Fortunately RSA is free from PPR. As for Brucellosis, may be the requirement to test may be waived but the requirement that the game farm of origin is free stands. So let me reiterate that sanitary conditions in a permit are not introduced abruptly, with malicious intents, but are a result of a desk top risk assessment taking into consideration the species and farm of origin. In addition conditions may be time bound or change with time depending on epidemiology of disease.’
[18] On the 14th June 2018 Annexure BG 16 First Applicant respondent
partly in this matter to the First Respondent’s letter of the 11th June
2018 – Annexure BG 11 –
‘We have also received 5 Import Permits dated 11 June 2018 for Tsessebe, Sable and Springbok from RSA which have dropped
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the requirement for a CA testing and isolation on farm of origin, which we appreciate.
However, for reasons already detailed in my letter of 08 June 2018, please withdraw condition 7 of these 5 Import Permits which require isolation of the animals at destination in Eswatini. As requested in my last letter please simply revert to the original import conditions which have been applied for many years without a single adverse incidence of veterinary significance, in order to enable the successful introduction of these rare animals into the Kingdom.
Please appreciate that to comply with your new requirement of isolation at destination, a game capture helicopter would have to be hired, animals chased out of the isolation area, and those that refused would have to be shot out contrary to good conservation practice. The entire cleaning out of an area would be suitable for the envisaged importation of these animals is highly unlikely as small cloven hoofed animals will be overlooked and the envisaged isolation would therefore be ineffective/compromised.
Notably this condition would also require a major upgrade of the fences of such an area to exclude burrowing animals which is in any event impractical.’
[19] The First Respondent responded partly in the following manner on the
20th June 2018 – Annexure BG 18.
‘The Directorate of Veterinary Services is mandated by The Animal Diseases Act 7/1965 to draw up appropriate import conditions; guided by International Standards and Epidemiology of Animal Disease both at source and destination. The Directorate has carefully reconsidered your urgent appeal
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against the import conditions for game and it has been found prudent to reiterate the position as follows:
1) Import permits are species, time, source and epidemiological situation specific. Specific diseases affect specific species e.g. FMD affects cloven hoofed animals, Avian influenza affect birds. It is therefore not possible to have a standard Import Permit for all species, all sources and all epidemiological situations. 2) Isolation of imported animals is a standard sanitary procedure and enables close monitoring of the imported animals. To consciously remove such a condition from an import permit would be unethical and unprofessional.’
[20] First Applicant was quick to respond to the correspondence of 20th
June 2013 Annexure BG 18 herein referred to above, this was on the
25th June 2018 – Annexure BG 19. I refer to a caption of this
correspondence –
‘We are well aware of the needs of different species of wild animals, having captured, restrained, transported and relocated them for export and import, with due regard for their widely known behavior differences, for well over 50 years.
You mention “it is therefore not possible to have a standard import permit for all species, all sources and all epidemiological situations”. We are not asking for this. As has been requested repeatedly in previous correspondence, we are requesting the same conditions now as have been normally applied for the importation of antelope species for more than 50 years without any disease issues arising in this entire time frame. These conditions have stood the test of time and if they have worked
13 so well in the past why change them if there is no current evidence to suggest that change is necessary, particularly when these changes, as in the current case, will cause unnecessary trauma, injury and mortality?
You mention “Isolation of imported animals is a standard sanitary procedure and enables close monitoring of the imported animal”. Isolation of imported game animals has not been a standard sanitary procedure for 50 years – in all this time it has not been norm – why now?
You further mention “to consciously remove such a condition from an import permit would be unethical and unprofessional.” Your statement directly contradicts the fact that we have been importing antelope for over 50 years without this conditions of isolation at destination, and never in all this time was this considered necessary and never were issues ever raised of being unethical or unprofessional – why now?
It is well known in conservation circles that Tsessebe is one of the species that cannot be kept confined as this leads to certain suffering, injury and death. This had been explained to you. We are therefore surprised that you persist in requiring isolation, when you have been told by long standing wildlife practitioners what the consequences will be, particularly when you know too that previous successful importations have not carried this requirement – and have been free of any disease consequences.
You have already conceded dropping the new conditions of CA testing and 30 day isolation at source. If you will not concede the free release of the animals at destination, as has been the norm in the past 5 decades without any adverse veterinary complications ---- please let me know by return as our only alternative will then be to seek recourse on this issue. We do not want to do this but the wildlife industry of Eswatini is being unnecessarily put at risk.’
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[21] Again on the 9th July 2018, the First Applicant addressed the
following correspondence (Annexure BG 24) to the First Respondent –
‘The Sable are being collected purely because the sellers have now become impatient with BGP as a result of the undue delays caused by imposition of the requirement of confinement. They have been waiting for us to collect the Sable and Tsessebe ever since we purchased them on the sale of 26 May 2018, and have been keeping them on our behalf at our risk and expense for all this time. A decision has therefore been taken to collect the Sable as this species does not display the adverse behavioural issues when in confinement to the same extent that some other species do, including Tsessebe. Confinement will compromise the safety of the Sable but the risk is not as great as it is with Tsessebe, for which species confinement definitely cannot be contemplated due to the certainty of suffering, injury and death. We therefore appeal to you, yet again to re-issue the Import Permits for Tsessebe without the requirement of confinement, so that these animals can be released safely, directly onto the veld, as has repeatedly been the case over the past decades for antelope species from South Africa.
Collecting the Sable and Tsessebe separately, will involve two trips of approximately 1 500km to the North West Province instead of one, at great financial cost, to Big Game Parks, but in the absence of a permit without the requirement of confinement for the Tsessebe we have no alternative but to do this. We do hold solid evidence from experts to substantiate our stand in this matter.’
[22] I have included these captions from the various correspondence for
anyone reading this judgment to fully apprehend the issues. In
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technical matters as these concerned here it would be dangerous to
summarize the correspondences because the precise meaning may not
be fully appreciated and or there may be crucial facts that are left out.
[23] The bottom line though is that the Applicants were going through a
stressful period due to the refusal by the First Respondent to waive
the so called Condition 7.
[24] It is common cause that Big Game Parks is a household institution in
the country designated by legislation i.e. The Game Act to administer
that Act amongst their obligations of nature conservation. Big Game
Parks is responsible for Hlane Royal National Park, Mlilwane Wildlife
Sanctuary and Mkhaya Game Reserve.
[25] Big Game Parks is a specialist wildlife entity managed by specialist
and experienced wildlife practitioners. These are not part-time wildlife
specialists but fully fledged practitioners of vast experience in the field
of wildlife and nature conservation. It is not easy to ignore a
statement from the First Applicant when he says they have been
exporting, importing, transporting and resettling wild animals for over
fifty years and most importantly that during this period there was
never any adverse veterinary complications. I note further that this
allegation has not been materially disputed and no professional
evidence is forthcoming from the Respondents to rebut this allegation.
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APPLICANTS’ EXPERT EVIDENCE
[26] Mr. Kennedy who appeared on behalf of the Applicants referred me to
numerous correspondence from veterinarians who are experts in the
different provinces in RSA where the animals were being imported as
outlined herein below:
1. Annexure BG 25 is correspondence from Dr. T. Dakwa –
State Veterinarian, Maquassi Hills – Directorate –
Veterinary Services of the Chief Directorate: Agricultural
Services, Department of Rural, Environment and
Agricultural Development.
In this correspondence Dr. T. Dakwa confirms that Bona
Bona Game Lodge is in the Foot and Mount Disease free
zone of South Africa and further that currently the farm is
not under any veterinary restrictions for a disease or
parasite.
2. Annexure BG 26 is correspondence from Dr. McDonald
Gayakaya BVSC of Kimberly State Vet Office who
confirms that Dronfield Game Farm belonging to De Beers
Consolidated Mines Ecology Section is in the Foot and
Mouth Disease Free Zone of South Africa. Currently the
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farm is not under any veterinary restrictions for any
disease or parasite.
3. Annexure BG 27 is correspondence from Dr. E. Klemp –
State Vet Mokopane Limpopo who confirms that
Touchstone Game Ranch is in the Foot and Mouth Free
Zone of South Africa and that the farm is currently under
no veterinary disease or parasite.
4. Annexure BG 28 is correspondence titled Veterinary
Opinion from Dr. AC Uys Esc, BVSC, Msc of the North
West Wildlife Veterinary Services, Newlands, Pretoria.
Owing to the importance of this correspondence, I shall
reproduce verbatim all of it to enable any person reading
this judgment to appreciate the contents thereof and why
I have decided the matter in the manner in which I have
done. This correspondence is addressed to MR T E
REILLY – MLILWANE WILDLIFE SANCTUARY
LOBAMBA SWAZILAND
RE: VETERINARY OPINION ON THE TEMPORARY
CONFINEMENT OF TSESSEBE (Damaliscus lunatus)
‘I, Dr. AC Uys, am a registered veterinarian with the South African Veterinary Council and have been practising full- time in the Wildlife Sector since 1999, where I have been involved in formal conservation efforts and the intensive commercial ranching of most Southern African herbivore spieces.
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Tsessebe are species fraught with translocation management complications. As a very selective grazing antelope with very specific and abrupt ecotone requirements. The hierarchial dominance and territorial social structures of family groups (consisting of adult cows, offspring and a dominant male) make it dangerous to mix social groups due to fatal dominance struggles and territorial encounters.
In the progressive South African Wildlife Ranching sector as well as the conservation sector Tsessebe are rarely confined as it is common knowledge they do not adapt to supplementary rations due to specialized feeding and grazing requirements resulting in heavy losses in confinement. Tsessebe are also renowned for continuous pacing of enclosures in attempts to escape which inevitably leads to exhaustion and death with or without myopathy. These particular behavioral traits of Tsessebe have been known to result in mortalities of 50-70% and are usually exacerbated by preceding capture events as they are species highly susceptible to mortality from capture myopathy (mortalities also as high as 50%). The heavy losses to be expected from confining Tsessebe are not acceptable at all in terms of animal welfare perspective and can be mitigated by free release of the animal into areas large enough to establish territories and provide access to the specific habitat requirement. I would not consider releasing forty Tsessebe into an area of less than 3000 hectares of suitable habitat to minimize potential losses to aggressive and nutritional stress.’
[27] I must state that Dr. AC Uys’s confirmatory Affidavit reveal the vast
experience that he has as a veterinarian and full-time wildlife
practitioner. He has clearly articulated that the Tsessebe species “are
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renowned for continuous pacing of enclosures in attempts to
escape which inevitably leads to exhaustion and death with or
without myopathy”.
[28] I have no doubt in my mind that the Tsessebe species is a very
temperamental species and due to their behavioural traits they are
not suited to be confined to enclosures as this can easily result to a
mortality of 50-70%. For example Annexure BG 12 is an Import
Permit for 15 Tsessebe from Bona Bona Game Farm. Now if these are
to be isolated and kept in confinement at Mlilwane for 30 days as per
the controversial Condition 7, it means that approximately 7-10 of the
animals may die due to their aggressiveness to each other. This is
totally unacceptable. It appears to me that as regards the Tsessebe
species Condition 7 would be a weapon of mortality of this species.
This condition would never serve the supposedly good purpose which
the 1st Respondent had intended, instead it would be counter-
productive and actually cause the death of these animals as opposed
to saving them and the other species.
[29] Dr. AC Uys is corroborated by Dr. David Cooper who works for the
Ezemvelo Kwa Zulu Natal Wildlife as a Veterinarian. He has worked
at Ezemvelo for about 23 years and he has vast experience in game
capture and translocations. In correspondence addressed to the 1st
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Applicant dated the 18th July 2018 and marked as Annexure BG 30
he states the following in so far as confinement of Tsessebe species is
concerned and I quote:
‘In response to your query regarding the boma confinement of Tsessebe I have no hesitation in recommending against it. Tsessebe are known for their excessive aggression towards each other when confined in a small area and in spite of tranquilisation large scale mortalities will be inevitable.
For the same reason transport in single crates rather than in a mass compartment is the method standardly adopted within the industry as the principal veterinarian attached to Ezemvelo’s game capture unit for the last 23 years I can personally attest to the above. Administering different tranquilizers and combinations as well as piping of the horns has made no difference to the outcome and free release is the only means of ensuring a successful outcome.’
[30] I must state that the expert opinion referred to in casu by the
specialist wildlife practitioners clearly indicate that only those wildlife
professional dealing with this species practically and on a daily basis
are the ones best suited to testify and make recommendations on the
mortality dangers of capture, isolation and or confinement of the
Tsessebe species.
[31] Mr. Kennedy further referred to Annexure BG 31 correspondence
dated 19 July 2018 from the Faculty of Veterinary Services –
University of Pretoria where Dr. J.C.A. Steyl BVsc, MSc (vet) – a Senior
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Lecturer in Veterinary Pathology states as follows and I quote him verbatim:-
‘RE: VETERINARY AND WELFATE CONCERNS ASSOCIATED ACCOMODATION DURING THE CAPTURE AND RELOCATION OF TSESSEBE (Damascus lunatus)
In my experience as Wildlife Veterinary Pathologist and consultant, Tsessebe are one of the most challenging species to capture and even more difficult to successfully relocate. The single most common cause of mortalities in Tsessebe relate to maladaptation at the relocated destination.
Tsessebe are known to be a highly strung species that do not adapt well to intensive captive (e.g. boma) conditions, even if tranquilized. They are often aggressive towards each other (Burroughs, 1993) and intra-species fighting often result in trauma related fatalities such as limb fractures and penetrative chest or abdominal horn wound (the anatomical shape of their horns makes it difficult to successfully apply protective piping). It is therefore recommended that this species not be confined to bomas or small camps (<20Ha) for periods longer than 3 days (the duration of effective long acting tranquilizing) and even if they were to be confined it is recommended to keep all males apart. Their reluctance to feed under boma conditions is also an important factor that restricts longer term confinement.
It is for these reasons that wildlife auctions in South Africa would normally not place Tsessebe under boma conditions for public inspection but rather opt for catalogue sales. The poor performance of this species in confined spaces is also the reason why it is not commonly, if at all exhibited in zoos.
The most success with Tsessebe adaption at a new location has been achieved through veld-to-veld relocation’.
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[32] I must point out again that despite the persistent request by the
Applicants to have the Import Permits issued without Condition 7, the
1st Respondent declined the said requests.
[33] It is clear from the submissions by Mr. Kennedy that the expert
opinion is that the Tsessebe species is temperamental and
translocations can best be carried through veld-to-veld relocations
and not confinement.
[34] Mr. Kennedy argued that this application was in terms of the common
law, alternatively based on the Applicants’ constitutional right under
Section 33 of the Constitution of Eswatini, this being the right to be
heard and to be treated justly and fairly in accordance with the
requirements imposed by law including the requirements of
fundamental justice and fairness.
[35] It is common cause that the 1st Respondent performs administrative
functions on behalf of the Ministry of Agriculture and Co-operatives –
the 3rd Respondent. These administrative functions are governed by
administrative law which describes the powers of the administration
and the ways in which those powers may be exercised and controlled.
It prescribes what the administration must do, its obligations, as well
as what it may not do. Further, administrative law provides a number
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of remedies for what may be termed as maladministration – this is a
broad term encompassing the improper exercise of administrative
powers and the failure to carry out legal obligations.
[36] I must state that where an entity or individual wishes to challenge
maladministration it is usually confronted with several different
options under the auspices of administrative law. These options
might well include an appeal on the merits to an administrative
tribunal and/or approaching the courts on judicial review
proceedings.
[37] It is this option of judicial review that the Applicants in casu have
chosen and thus instituted these proceedings. I have no doubt in my
mind as to the urgency with which this matter was eventually filed in
Court by the Applicants, this urgency is certainly not self-created.
The reasons advanced by the Applicants for bringing this matter
before court are genuine and do not in any manner whatsoever
amount to an abuse of Court process.
[38] There is no doubt that the import permits were requested by the
Applicants and issued by the 1st Respondent’s office for the
importation of those specific animal species which had been
purchased from the South African game farms. Further that these
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animals were currently being kept at the Seller’s game farms at the
financial expense of the Applicant whilst this issue of Condition No. 7
was being deliberated herein before Court.
[39] It appears from the numerous correspondence between the parties
that the contested Condition 7 in the permits was imposed by the 1st
Respondent without consulting and or giving the Applicants an
opportunity to make presentations on its unsuitability in the
importation of the Tsessebe species.
[40] The question therefore is whether such action of the 1st Respondent in
issuing the permits with Condition 7 without affording the Applicants
the opportunity to make presentations is an administrative function
subject to review in terms of administrative law. The answer is in the
affirmative.
[41] In the case of Msibi and Another v Director Veterinary Services and
Another (3863) (2009) SZHC 62 Mabuza J (as she then was) at pages 3,
17 and 18 respectively stated as follows:
‘The Applicants are challenging the enforcement of a new procedure for the issuance of stock removal permits which has been put in place by the Director of Veterinary Services, the 1st Respondent. They complain that this new procedure is causing serious prejudice and frustration in the operations of their business.
In Pharmaceutical Manufacturers of South Africa in Ex Parte President of the Republic of South Africa 2000 (2) SA 674,
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President Mandela sought to bring legislation into operation by exercising his prerogative powers. The legislation affected the pharmaceutical industry many of whom had not been consulted but who were directly affected ----. President Mandela was challenged by the pharmaceutical industry and had to concede his error. The Constitutional Court held that the decision of the President was unlawful and unconstitutional even though it was taken in good faith.
Similarly it appears that this new procedure was put in place without proper and extensive consultations, appropriate regulatory infrastructure such as enough manpower, motor vehicles and computer technology for smooth operations. At paragraph 85 of the Pharmaceutical case it was held -
“It is a requirement of the rule of law that the exercise of power by public functions should not be arbitrary. Decisions must be rationally related to the purpose for which the power was given, otherwise they are in effect arbitrary and inconsistent with this requirement even if the person who took the decision took it mistakenly and in good faith believing it to be irrational. Such a conclusion would place form above substance and undermine an important constitutional principle. Arbitrariness by its very nature is dissonant with these core concepts of our new constitutional order”.
In Swaziland the Constitution is the Supreme law. Any other statute or regulation is subject to the Constitution. In this case Act No. 7 of 1965 (Stock Diseases Act) is subject to the provisions of the Constitution. Before the 1st Respondent exercises any power vested in him by the 1965 Act, he should first ascertain in the Constitution if he will not be violating any Constitutional provisions particularly the Bill of Rights and generally the rule of law. Clearly the 1st Respondent failed to do this.
It is my finding that the decision complained of is arbitrary and must be set aside by this court and it is so ordered.’
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[42] I must state that in casu the circumstances are similar to the Msibi
case (supra). It is the unilateral administrative action of the 1st
Respondent that is complained of by the Applicants. As I indicated
above herein, there were numerous correspondences wherein the
Applicants were literally begging the 1st Respondent to relax or waive
Condition 7 because of the devastating effect it was going to have on
the Tsessebe species. Such pleas were not accepted by the 1st
Respondent notwithstanding certification and professional assurance
from State Veterinarians in the Provinces in the Republic of South
Africa who all stated that the Tsessebe and the other species sought to
be imported by the Applicants were disease free and in particular that
game farms were situate in Foot and Mouth Disease Free Zones.
[43] It is clear that the 1st Respondent has the discretion to either impose
or waive the contested Condition 7. It is therefore the exercise of that
discretion bestowed upon the 1st Respondent by the Animals Diseases
Act No. 7 of 1965 as amended that has to be evaluated as to whether
it was exercised fairly, reasonably and without arbitrariness.
Section 6 provides as follows:
‘Importation of stock’
‘6 (1) On and after the date of publication no stock shall
be imported into Swaziland except as provided in
these regulations.
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(2) Anyone desirous of importing stock into Swaziland shall first make application to the Director of Veterinary Services for a permit stating therein –
(a) the number and kind of stock which it is desired to introduce;
(b) the country, or province, and the particular District thereof from which they come;
(c) the route by which they will travel;
(d) the ultimate destination of each animal and, if required, will produce a certificate from a Government Veterinary Surgeon or some duly authorized officer stating that the stock is free from disease and have not come from an infected area.
(3) On receipt of these particulars, the Director of Veterinary Services may grant a permit for the importation of the stock provided such information is not prohibited by any special regulation and subject to such conditions as he may consider desirable to impose in order to protect Swaziland against the introduction and spread of disease.
(4) The Director of Veterinary Serviced may order that any stock entering Swaziland be detained and inoculated against any disease or be tested for any disease or be cleaned, dipped or disinfected in such a manner as he may direct’.
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[44] I must state that the Applicants duly complied with the provisions of
Section 6 (2) in so far as listed requirements are concerned. This
included the certification of “free from disease” from the respective
Government Veterinary Surgeons of the various Provinces in the
Republic of South Africa where the Tsessebe were being imported.
[45] Everything depended entirely on the 1st Respondent in exercising his
discretion in the imposition of conditions on the import permits. It is
this discretion that is clearly evident in Subsections 3 and 4. The
operative word herein is “may”. This clearly indicates that the 1st
Respondent is vested with discretionary powers by the legislation
during his process or function of issuing the permits to the people or
entities who have filed applications.
[46] The question is whether in these peculiar circumstances of this matter
whether the 1st Respondent exercised his discretion fairly and just
and in accordance with the Constitution in particular Section 33
which provides as follows:
“Right to Administrative Justice”
‘33. (1) A person appearing before any administrative authority has a right to be heard and to be treated justly and fairly in accordance with the requirements imposed by law including the requirements of fundamental justice or
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fairness and has a right to apply to a court of law in respect of any decision taken against that person with which that person is aggrieved.’
[47] I am of the considered view that the 1st Respondent was duty bound
to, firstly, inform the Applicants of its intention to include Condition 7
in the Import Permits and, secondly, to invite them to appear before
him or his officers to make representations on why they feel Condition
7 should not be included in the Import Permits. The 1st Respondent
did not do that, instead they issued the Import Permits with Condition
7 without giving the Applicants the opportunity to present their case.
The 1st Respondent clearly imposed Condition 7 and, further,
vigorously dismissed the numerous requests by the Applicants to
waive or relax the said Condition 7.
[48] This conduct of the 1st Respondent resulted to a maladministration
whose basis was the failure of the 1st Respondent to exercise his
discretion fairly as bestowed on him by Section 6 Subsections 3 and 4
respectively. The reading of these Subsections is crystal clear that the
1st Respondent exercises his discretion in the issuance of these import
permits and the conditions to be imposed therein. However, such
discretion must be exercised fairly and just and in accordance with
the requirements imposed by law including the requirements of
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fundamental justice and fairness as sanctioned by Section 33 of the
Constitution (supra).
[49] Cora Hoexter in her work titled ADMINISTRATIVE LAW IN SOUTH
AFRICA at page 111 stated as follows:
‘While statutory rights to review or appeal were sometimes granted by the legislature, judicial supervision of administrative decision making in the pre-democratic era took place largely in terms of the common law. A century ago, in Johannesburg Consolidated Investment Co. v Johannesburg Town Council 1903 TS 111 at 115 Innes CJ described the common-law review power as follows:
“Whenever a public body has a duty imposed on it by statute, and disregards important provisions of the statute, or is guilty of gross irregularity or clear illegality in the performance of this duty, this Court may be asked to review the proceedings complained of and set aside or correct them. This is no special machinery created by the legislature; it is a right inherent in the Court.”’
[50] It is trite law that this Court has inherent jurisdiction to review any
administrative decision where it can be shown that the administrative
functionary exercised its discretion unfairly and or disregarded
fundamental principles of natural justice in the discharge of its
functions. This is the case in casu.
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[51] The Johannesburg Consolidated Investment case (supra) is a clear
demonstration that the common-law review powers of this Court in
such cases dates back to the last century and is by no means a new
development in administrative law. This common-law review powers
of the Court has graduated into the constitutional dispensation as can
be seen from Section 33 of the Constitution of the Kingdom of
Eswatini.
[52] I am alive to the fact that the 1st Respondent’s prime objective is to
ensure that all animals imported into the country are disease free as it
were, and that Section 6 (3) and (4) of the Act empowers him and his
officers with the discretion to impose whatever suitable conditions to
prevent either the introduction and or spread of diseases. However,
such discretion must be exercised fairly and based on the peculiar
circumstances of each case.
[53] In casu the circumstances were such that there was no threat of the
introduction and or spread of diseases by the animals sought to be
imported. As observed above, on numerous occasions, sufficient
evidence was tendered by the Government/State Veterinarians in the
respective Provinces that the animals were disease free and from
disease free game farms. The 1st Respondent was duty bound to
exercise his discretion in favour of a waiver of Condition 7 because
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there is no threat of any disease either being introduced and or being
spread by the Tsessebe species. Further the temperamental condition
of the Tsessebe species had been explained to the 1st Respondent
through numerous correspondence from expert professionals.
Further it is hardly expected that the Applicants can import the
Tsessebe species into their game establishment without ascertaining
their disease free status.
[54] It is against this background that the refusal by the 1st Respondent to
waive Condition 7 is without factual basis and therefore the exercise
of that discretion under Section 6 (3) is unfair, unreasonable and
unlawful and thus subject to review by this Court.
[55] In the case of Administrator Transvaal v Traub 1989 (4) SA 731 (A) at
758F Corbett CJ stated as follows:
‘the two forms of expectation may be interrelated and even tend to merge. Thus the person concerned may have a legitimate expectation that the decision by the public authority will be favourable, or at least that before an adverse decision is taken he will be given a fair hearing’.
[56] In the case of SA Roads Board v Johannesburg City Council 1991 (4)
SA (1) A the Court stated as follows:
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‘This Court has expressed a preference for the view which regards the audi-principle as a rule of natural justice which comes into play whenever a statute empowers a public official or body to do an act or give a decision prejudicially affecting an individual in his liberty or property or existing rights, or whenever such an individual has a legitimate expectation entitling him to a hearing ----’
[57] In the case of Heatherdale Farms v Deputy Minister of Agriculture 1980
(3) SA 476 (T) at 486 F-G, Colman J stated as follows:
‘Firstly, that the person concerned must be given a reasonable
time in which to assemble the relevant information and to
prepare and put forward his representations; secondly he must
be put in possession of such information as will render his right
to make representations a real, and not an illusionary one.’
[58] In dealing with fairness of administrative actions and decisions, in the
case of Micro Projects CC v Klerksdorp Local Municipality, 2004 (1) SA
16 (SCA) paragraph 13 Conradie AJA stated the following:
‘Fairness must be decided on the circumstances of each case. It may in given circumstances be fair to ask a tenderer to explain an ambiguity in its tender; it may be fair to allow a tenderer to correct an obvious mistake; it may, particularly in a complex tender, be fair to ask for clarification or details required for its proper evaluation. Whatever is done may not cause the process to lose the attribute of fairness or, in the local government sphere, the attributes of transparency, competitiveness and cost-effectiveness.’
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[59] I have referred to this case deliberately to demonstrate that
administrative functionaries must exhibit fairness and patience at all
times during the performance of their discretionary functions. The
information from experts which was submitted by the Applicants was
compelling enough to have the 1st Respondent waive or withdraw
Condition 7 on the Import Permits for the Tsessebe species. He was
under a legal duty as a public officer discharging administrative
functions to invite the Applicants for a full presentation of their case
and a full interrogation of the issues. This was not done when it
should have been done simply to exhibit fairness and impartiality in
the exercise of his discretionary powers.
[60] There is no doubt that the Tsessebe species is unique owing to its
temperamental behaviour but the Applicants had taken all
precautions to ensure that the species was to be imported into the
country disease free.
[61] The expert opinion and information placed before 1st Respondent as
regards the behaviour aspect of these animals and the certification of
disease free from the various Government Veterinarians in the
different Provinces are factors which the 1st Respondent was not
supposed to ignore in the exercise of his discretionary powers in terms
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of Section 6 (3) when the Applicants were literally on their knees
begging him to relax Condition 7. The Applicants had complied with
Section 6 (2) (a), (b), (c) and (d) and including providing the
certification from the Government Veterinarians of the various
Provinces that the animals sought to be imported were disease free.
[62] It is the refusal by the 1st Respondent to waive the Condition 7 despite
the pleas of the Applicants who had complied with Section 6 (2) of the
Act and further provided expert evidence of the unsuitability of
confinement of the Tsessebe species that the action of the 1st
Respondent in his exercise of his discretion by refusing to waive or
relax Condition 7 which had been imposed on the Applicants without
them being afforded an opportunity to present their case, and in
flagrant disregard of Section 33 of the Constitution, all these factors
renders the discretion of the 1st Respondent to have been exercised
(i) unfairly;
(ii) partially;
(iii) unreasonably
(iv) unlawfully;
(v) arbitrarily and,
(vi) without due process
and thus liable to be reviewed and set aside by this Court.
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[63] I am therefore of the considered view that the Applicants have
established a clear right against the imposition of Condition 7 which
has the effect of restricting, inhibiting and or prohibiting the
importation of the wild animals forming the subject matter of these
proceedings.
[64] Further the Applicants have demonstrated in detail the irreparable
harm they have suffered and stand to suffer further due to the refusal
by the 1st Respondent to waive and or relax Condition 7 on the Import
Permits.
[65] Further the Applicants demonstrated that no amount of damages in
due course would compensate their establishment for the reputational
loss it will suffer should these animals not be allowed to be imported
into the country, nor will a damage award (if granted) serve as
adequate compensation if the animals cannot be imported into the
country.
[66] Owing to the urgency of the matter, on the 9th August 2018 I granted
some of the orders prayed for in the Notice of Motion pending delivery
of the full judgment, except the order of costs.
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[67] I will not repeat the orders I granted on the 9th August 2018 and
instead I will issue the order as to costs which I reserved on the 9th
August 2018 as follows:
the Respondents are ordered to pay costs of this Application on
the ordinary scale and this includes the costs of two Counsel.
It is so ordered.
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