HIGH COURT OF SWAZILAND
MILLS (PTY) LTD
CHAIRPERSON OF THE NATIONAL
MARKETING BOARD 1st Respondent
MAIZE CORPORATION 2nd Respondent
SWAZILAND NATIONAL GRAIN PRODUCERS ASSOCIATION 3rd Respondent
Case No. 315/2003
S.B.MAPHALALA – J
the Applicant Advocate Henning SC
the 1st Respondent Advocate W.H.
Zonke Magagula & Co)
the 2nd Respondent MR. B. MAGAGULA
the 3rd Respondent MR. B. SIGWANE
present application is a sequel to a similar application I heard and
decided in a judgment I delivered on the 29th November 2002. In the
latter application which was brought under a certificate of urgency,
the Applicant sought for an order inter alia, declaring the 1st
Respondent, not lawfully entitled to refuse the issue of a permit to
the Applicant. Directing and compelling the 1st Respondent to issue a
permit in terms of Regulation 4 (1) of the Import and Export of
scheduled products forthwith. Costs of suit at attorney and own
client scale payable by the Respondents including counsel's costs.
This matter was argued at great length where at the end I issued an
order in the following terms:
The lst Respondent was to consider the application of the Applicant
within 10 days of
issuance of this order, and; ii) The Applicant was to pay wasted
costs and that of counsel to be taxed.
reasoning advanced in issuing the said order was that I found in the
circumstances which prevailed at that time that the Applicant had
launched the application prematurely, the 1st Respondent not yet
having completed its decisional process. In the present application
the Applicant seeks an order formulated in the following terms:
order calling upon the Chairperson of the National Agricultural
Board to show cause why the decision taken at Mbabane on the 10th
December 2002, in. terms of which NAMBOARD refused the application of
the Applicant dated the 17* October 2003, for the registration as an
importer of white maize in terms of Act 13 of 1985 and Regulation 3
published in the Notice 142 of 2001 and for the issue of a permit in
terms of Regulation 4 published in the Notice 142 of 2001 should not
be reviewed and set aside,
NAMBOARD to register the Applicant as an importer of white maize and
to issue permits to the Applicant to import a maximum of 3,000 tons
of maize per month, in terms of the legislation referred to in
paragraph 1 above;
the Respondent to pay costs of this application;
and/or alternative relief.
the parties have filed the required affidavits in this matter except
the 3rd Respondent.
parties in the litigation.
Applicant is a company registered under the Laws of Swaziland, having
its registered office at King Mswati III Avenue West, Matsapha
Industrial Sites, Kingdom of Swaziland, where it conducts the
business of millers of maize and wheat and producers of stock feeds.
1st Respondent is the National Agricultural Marketing Board
(hereinafter referred to as "NAMBOARD"), a statutory body
corporate established in terms of Section 3 of the National
Agricultural Marketing Board Act, No. 13 of 1985. NAMBOARD is also a
category "A" Public Enterprise Unit administered under the
Public Enterprises (Control and Monitoring) Act, 1989.
2nd Respondent is a company duly registered and incorporated with
limited liability in accordance with the company law of the Kingdom
of Swaziland, with its principal place of business situate at llth
Street, Matsapha Industrial Sites, Matsapha, District of Manzini,
3rd Respondent is a national association of grain producers in
Swaziland. The background.
purposes of fully understanding the Applicant's application, it is
necessary to outline the background facts relating to the Applicant's
business and the maize industry in the Kingdom of Swaziland
Applicant was established in 1989 as a miller of wheat in order to
develop the wheat industry and encourage the Swazi farmers to produce
wheat in the Kingdom.
wheat mill was established in 1991 and is still the only wheat mill
in Swaziland. The Applicant, in consultation with the Government of
the Kingdom of Swaziland, saw this as an opportunity to develop the
local wheat industry and to serve the local consumer. At this stage
Applicant supplies wheat to 80% of the local market requirements.
September 1998, the Applicant entered into the maize industry through
the purchase of a maize mill from Swaziland Milling Company, a
division of Swaki (Pty) Ltd. The purchase included movable property,
silos and the mill plant and equipment, and the brand names.
state owned corporation, the National Maize Corporation (Pty) Ltd,
which was established in 1985 under the Companies Act, 1912 is the
only organization which has been permitted to import maize into
Swaziland. The shareholders of the National Maize Corporation are the
Ministry of Agriculture and the National Agricultural Marketing Board
("NAMBOARD"). Maize and maize products are scheduled
products in terms of the National Agricultural Marketing Board Act,
1985 and a permit is required to import or export scheduled products.
The National Maize Corporation effectively has a monopoly in respect
of the import of white maize and the Applicant has therefore been
compelled to purchase maize from it. The Applicant's requirements
cannot be met by direct purchases made from local farmers.
Applicant has in the past applied for a permit to import maize which
has been refused. "NAMBOARD" requires any person wishing to
engage in importing and exporting scheduled products to register with
and obtain a permit from NAMBOARD in terms of Section 6 of the
National Agricultural Marketing Board Act, 1985. The regulations of
2001 for the import and export of scheduled products provide for
of importers and exporters of scheduled products. In terms of
Regulation 4 (1) the Board shall, upon registration of any person
under Sub-Regulation 3, issue to that person a permit which shall
entitle that person to import or export scheduled products.
chronicle of events
the 17th October 2002, the Applicant made an application for
registration as an importer of white maize and the issue of the
necessary import permit. The application for registration was in
terms of Section 6 which was in the prescribed form and which was
dated the 30th September 2002. The Applicant was issued a receipt in
respect of its registration dated the 30th September 2002.
application was in writing annexed to the Applicant's founding
affidavit marked "B", it consists of affidavits and
to this letter the Applicant addressed further letters to NAMBOARD on
28th October 2003 and 29th October 2002, which letters are annexed as
"G" and "H" respectively. Further letters were
also addressed to NAMBOARD by the Applicant's attorneys of record on
31st October 2002, and 1st November 2002 (annexure "I" and
"J" respectively). According to the Applicant there was no
satisfactory response to the letters from NAMBOARD.
the 5* November 2002, the Applicant brought an urgent application to
this court (under Case No. 3331/02) against NAMBOARD for, essentially
an order compelling NAMBOARD to issue a permit in terms of Regulation
4 (1) of the import and export of scheduled products regulations of
the 29th November 2002, the court granted an order inter alia that
the 1st Respondent is ordered to consider the application of the
Applicant within 10 days of the issuance of the said order.
a letter dated 10th December 2002, NAMBOARD informed the Applicant
that its application was refused. The relevant portion of the letter
annexure "K" reads:
Board having considered the application has directed me to inform you
that your application has not been granted.
Board measured the interests of the local fanners and the need to
encourage the local farmers by protecting them against cheaper
imported white maize; the local availability of white maize; as well
as the current high price of white maize and its products to the
consumer and is of the opinion that, in the light of its mandate
under NAMBOARD Act 13 of 1985, it is not in the overall interest of
the agricultural industry in Swaziland to grant you a permit as
Board will continue to monitor the prevailing situation of the market
with a view to reviewing its position on the importation of white
maize should need arise".
the 17th December 2002, the Applicant wrote to NAMBOARD for full and
detailed reasons in writing for its decision referred to in the
previous paragraph, to be furnished before or on 6th January 2003,
responded to annexure "L" on 10th January 2003. This letter
annexure "M" reads:
Your letter dated the 17th December 2002 addressed to the Chairman
of NAMBOARD refers.
have been directed by the Board to respond to your letter aforesaid
The minutes of the Board on any of its deliberations are
confidential and cannot be distributed to persons who are not members
The Board is not obliged to furnish you with the information
required on your letter under reference. Therefore your request
cannot be acceded to.
Board, however, wishes to assure your goodselves that it shall
continue to monitor the situation and should the circumstances
change in future your application would be considered should you
wish to revive it".
application for judicial review in casu is based upon the above cited
letter and the following further facts and contentions.
facts and contentious founding the application for judicial review.
Applicant contends that the decision-maker failed to apply the audi
alteram parterm in that the covering letter to the application to
NAMBOARD (annexure "F" concluded:
your Board require further information or amplification, the
Applicant would like the opportunity to address you orally..."
contends the Applicant, the decision-maker failed to inform the
Applicant of considerations which it considered detrimental to the
Applicant, and on which the refusal was based.
to the Applicant at paragraphs 12.2, 12,2.1, 12.2.2, 12.2.3 of the
founding affidavit the Minister for Agriculture and Cooperatives
(hereinafter referred to as "The Minister") precluded the
decision-maker from exercising its discretion in respect of the
application in that in a letter dated 4th November 2002, (annexure
"N") the Minister informed NAMBOARD as follows:
hereby wish to remind NAMBOARD that the Ministry's policy regarding
the importation of white maize into Swaziland has not changed. This
therefore means that the National Maize Corporation (NMC) remains the
sole importer of maize into Swaziland.
thereby (sic) a change in policy, the Ministry will direct
7 of the Act provides:
Minister may give directions of a general nature to the Board
relating to the performance of its duties and the Board shall comply
an answering affidavit filed on behalf of NAMBOARD in Case No.
333/02, its Acting Chief Executive Officer stated that NAMBOARD is
bound by directions of a general nature given by the Minister.
(Paragraph 4.1.5, 4.2 and 4.5 of the answering affidavit). In the
preliminary answering affidavit the same deponent on behalf of
NAMBOARD stated that there exists a policy in terms of which NMC is
the only organisation which has been permitted to import white maize
to the Applicant, another factor to be taken into consideration is
that the shareholders and directors of National Maize Corporation
(Pty) Ltd and NAMBOARD are interconnected, which eliminates
impeccable impartiality and independence regarding decision-making.
The shareholders of National Maize Corporation are the Ministry of
Agriculture and Cooperatives and NAMBOARD The Chairperson of NAMBOARD
is also a Director of NRC - the entity which presently enjoys (in the
eyes of NAMBOARD) a statutory monopoly.
paragraph 17 of the founding affidavit the Applicant contends that
the decision-maker did not apply its mind properly to the matter in
view of the following;
The prescription from the Minister which the decision-maker accepted
The failure by the decision-maker to apply the audi rule;
The misunderstanding by the decision-maker regarding the local
The reasons furnished by the decision-maker which reflect ignorance
or negation of the Applicant's case.
Applicant's common law right of legitimate expectation to obtain the
decision-maker failed to apply its mind properly to the matter.
Applicant proceeds at paragraph 18 and lists the ground for review as
The decision-maker failed to apply its mind properly to the matter,
and more particularly:
failed to appreciate the nature of its statutory discretion and
failed to consider the relevant facts, ignored relevant facts and
took into account irrelevant considerations.
paragraph 18.4 the Applicant contends that the decision-maker applied
Government policy and ignored the statutory prescriptions to which it
was bound. The decision-maker abdicated its discretion and followed
the instructions of the Minister.
at paragraph 18.8 the Applicant alleges that the action of the
decision-maker is not rationally connected to;
The-purpose for which it was taken;
The purpose of the empowering legislation;
The information before the decision-maker.
The reasons given by the decision maker.
with the 1st Respondent the defence put forth is that the facts
disclosed in its answering affidavit under Case No. 3331/02, read
with the minutes of the special Board meeting held on 5th December
2002, and other relevant documents, reveal that it has acted
lawfully, honestly, reasonably and rationally.
answering affidavit deposed to by the Chairman of the 1st Respondent,
Prince Mabandla Dhlamini reveals a number of defences to the
Applicant's founding affidavit. A number of points in limine are
raised in paragraphs 2 and 3 under the heading "special
statutory remedies and "absence of facts in support of an
application for review", respectively. In the former it is
contended in paragraph 2,6 that any person aggrieved by a decision of
NAMBOARD not to grant a permit to import and export a scheduled
product has a right to appeal to the Minister in terms of Section 8
of the NAMBOARD Act. Further, at paragraph 2.7 it is submitted that
domestic remedies have not been exhausted and common law remedies are
excluded. On the latter heading it is contended that the Applicant
has failed to furnish any facts which reflect that the 1st
Respondent's decision was:
Irrational or unreasonable; and/or
Procedurally unfair; and/or
Unsupported by reasons.
the merits the 1st Respondent contends that pursuant to the order of
this court dated 29th November 2002 under Case No. 3331/02 where
inter alia the 1st Respondent was ordered to consider the application
of the Applicant within ten days of issue of the order, 1st
Respondent convened on the 5th December 2002, a special meeting of
the 1st Respondent where, inter alia, the provisions of the court
to the attention of the parties present at such meeting. A copy of
the minutes of the special board meeting is annexed marked "PMD2".
to the lst Respondent the minutes of the said meeting, read together
with annexure "K" to the Applicant's founding affidavit,
clearly reflect that the 1st Respondent acted honestly, reasonably
is further contended in this regard that it is relevant to record
that on the 7th March 2003, the 1st Respondent handed the minutes of
the Special Board Meeting held at Encabeni Boardroom on 5th December
to the Applicant and the latter has not supplemented its founding
affidavit after receipt thereof.
paragraph 10 and 11 of the answering affidavit the 1st Respondent
sought to demonstrate that the Board fully considered the
consequences either to grant or refuse such application and that
these were thoroughly investigated and debated by the Board.
paragraph 12 the 1st Respondent dealt with issue that it failed to
understand and appreciate the Applicant's case regarding local
farmers and that this is denied. In this regard the court was
referred to the affidavits of Nyoni and Sikhondze being annexure
"GM4" and "GM5" to the 1st Respondent's answering
affidavit under Case No. 3331/02.
sum, the 1st Respondent's defence to the Applicant's allegations is
that annexure "K" read together with annexure "PMD2"
reflect inter alia, that the 1st Respondent acted honestly,
reasonably and rationally, without bias or any apprehension of bias,
and within the parameters of the law.
2nd Respondent intervened in terms of Rule 12 read with Rule 6 (27)
of the rules of court and was accordingly joined in the main
application. The affidavit in support of the application for
intervention by its Managing Director Sifiso Stephen Nyoni provides
its opposition to the main application as well.
first ground for opposition advanced by the 2nd Respondent is that
the application is defective and bad in law in that it has been
prematurely brought before this court for the following reasons:
Ngwane Mills seeks an order for the review and setting aside of the
decision NAMBOARD to register it as an importer and to issue an
import permit to it.
In addition to the order setting aside the decision of NAMBOARD,
Ngwane Mills seeks an order directing NAMBOARD to register it as an
importer and granting it a permit to import a maximum of 3,000 tonnes
In terms of Section 8 of the NAMBOARD Act, a person aggrieved by a
decision of the Board not to grant a permit to import maize may,
within thirty days of his being informed of such decision, appeal to
the Minister in writing whose decision thereon shall be final.
There is no indication in the main application that an appeal to the
Minister was made and that the Minister has made a decision on the
matter, nor is there any congent explanation why the remedies
outlined in the Act have not been exhausted.
is further submitted in this regard in paragraph 18.6 that Section 8
oust the jurisdiction of the court. In the circumstances, the court
may only exercise jurisdiction in a review of the Minister's decision
not prior to it.
second ground of opposition advanced by the 2nd Respondent is that
the Board exercises its power to grant permits for the importation of
scheduled products to the directions by the Minister. This is
contained in Section 5 read with Section 7 of the Act.
3rd Respondent has not filed any opposing affidavit in this matter,
however, Mr. Sigwane who represented the 3rd Respondent participated
in the arguments before me and submitted Heads of Arguments on behalf
of his client. The argument advanced on behalf of the 3rd Responded
is that in terms of the National Agricultural Marketing Board Act,
1985 under Section 4, the Minister for Agriculture appoints three
persons who represent farmers. The reason why three representatives
for farmers are appointed is to ensure that the interests of the
farming community, including that of the 3rd Respondent are well
safeguarded when the said Board has to sit and consider
grant of import permits to any agricultural importer under Section 6
of the said Act. The lst Respondent ensures that the importation of
scheduled agricultural products is regulated. 1st Respondent is
guided by Government policy and the various interests of the
organizations represented on the Board.
arguments for and against.
matter was argued over three days of full arguments where all parties
filed very comprehensive Heads of Argument for which I am grateful to
counsel who appeared in this rather sensitive and important matter.
For the sake of convenience I shall address the issues raised in this
matter under various heads, as follows; 1) the Board's response to
the application; 2) dictation and abdication; 3) impartiality; 4)
domestic remedies; 5) fairness; 6) audi alterant partem 7) absence of
reasons; 8) applying the mind; 9) legality; 10) antecedent right to
shall proceed to consider the above questions ad seriatum: thus; 1.
The Board's response to the application.
response of the Board to the application can be gleaned from the
Minutes of the Special Board Meeting held at Encabeni boardroom on
the 5th December 2002, and I shall re-produce them herein in extenso,
as it may be necessary for purposes of the present enquiry: thus;
Chairman thanked all the members and he explained why he called the
meeting within a short notice. He said the meeting was called because
of the outcome of the High Court judgment of the case between Ngwane
Mills and NAMBOARD on the urgent application for white maize import
was explained that the judgment was that Ngwane Mills has made an
urgent application to the High Court before the Board took the
decision whether the import permit is to be granted or not and also
Ngwane Mills did not make an appeal to the Minister as it is stated
in the NAMBOARD Act.
The Board was advised to make its decision within ten days from the
2nd of December 2002. The Board -has to demonstrate complete autonomy
when it takes the decision on the matter.
to be clearly written as they may be used as evidence in court.
Members are urged to disregard the letter from the Hon. Minister of
Agriculture and Cooperatives and exercise their own independent
judgment based of the facts at hand. Merits and demerits of not
issuing maize import permit to Ngwane Mills should be clearly stated.
According to NAMBOARD Act No. 13 of 1985 the Board has the power to
issue or not to issue permits of scheduled products".
at paragraph 6 the issue of the Applicant's application is discussed
at length as follows:
Report on the High Court judgement on Ngwane Mills Maize Import
On the urgent application by Ngwane Mills on white maize import
permit members deliberated on merits and demerits of the application
by Ngwane Mills.
It was raised that the function of NAMBOARD is to regulate the import
and export of scheduled products so that the local production is
One member raised that it would be better if the meeting was after
members have met with the Minister of Agriculture and Cooperatives.
Members requested the Chairman of the Board to inform them on the
current situation of National Maize Corporation. The Chairman said it
appeared there has been conflict between Ngwane Mills and National
Maize Corporation but it has been corrected. The Board of National
Maize Corporation advised its Chief Executive Officer on this
conflict. He has been advised to deal with the issue impartially.
Ngwane Mills does not want to buy from National Maize Corporation but
other millers are buying from National Maize Corporation. National
Maize Corporation at that time had 6 500 tonnes of white maize in
National Maize Corporation is negotiating with other financial
institutions like Swazi Bank to buy more maize. If it were not the
financial constraints National Maize Corporation would be having more
white maize in stock.
It was raised that if the Chief Executive Officer of National Maize
Corporation have been contacting NAMBOARD Acting Chief Executive
Officer when making the purchasing decision such problems could have
been avoided by National Maize Corporation.
One member said it is understood that maize is available but at what
price. There is a great concern about the price charged to the
consumer. It was raised that at that time National Maize Corporation
was charging E300.00 more per tonne.
It was raised that there is no guarantee that if Ngwane Mills is
granted with white maize import permit the price will drop. It was
stressed that all private companies
after profits out of the poor local consumer. NAMBOARD will not be
able to control Ngwane Mills when it charges high prices because it
is a private company. NAMBOARD's mandate is to control import and
export of scheduled products not prices. NAMBOARD can discuss with
National Maize Corporation the price issue as a fellow parastatal
organization, but with Ngwane Mills it is impossible for NAMBOARD to
discuss the price issue.
It was reported that if Ngwane Mills is given an import permit it
will be difficult to control it because currently it has been
enjoying the wheat rebate from South Africa, but Ngwane Mills does
not want to honour the facility. It exports flour to South African
It was raised that one might argue that allowing monopoly of maize
importation is allowing the high price but if we allow import permit
of maize farmers will turn to the production of sugar and the country
will not produce white maize which is the staple food. The country
will depend on the imports. To encourage local production of maize,
local farmers should be protected against the lower prices of the
imported white maize. The SACU agreement states that the countries
may protect their local industries.
To stabilize prices at National Maize Corporation government needs to
subvent NMC as it was mentioned in the stakeholders meeting. It was
stressed that NAMBOARD in allowing the indiscriminate importation of
white maize will be contradicting with the Government policy which is
to encourage farmers to grow maize to attain self-sufficiency.
Members said we should think of the future, if the import permit is
granted and there is surplus the local farmer will suffer and the
price of maize will drop and the farmer will not be able to make a
living. One member raised that the issue of local farmer's is clear.
What do we do with the high price because price of maize is high in
South African region?
In response to that it was said National Maize Corporation need to be
advised on its mandate of stabilizing the price of white maize. It
has to consult other stakeholders on the price issue.
One member asked what will happen if Ngwane Mills is not given a
permit. The response was the Ngwane Mills might go t court. If it
goes to court we have to state the power of NAMBOARD in issuing of
permits. NAMBOARD may grant or refuse to grant an import permit.
should not issue white maize import permit to Ngwane Mills.
Acting Chief Executive Officer should reply Ngwane Mills stating
clearly that as per Board's resolution the white maize import permit
will not be granted to him. The Board has measured the interest of
the local farmers
the need to encourage the local production by creating awareness to
the farmers for the need to the local industry. iii) As a regulating
body NAMBOARD should discuss with National Maize
the price issue. iv) To mention that it is not a monopoly but
constant monitoring is required so that we review the system in the
future, v) The Chief Executive Officer of National Maize Corporation
in the pricing issue as a facilitator. If National Maize Corporation
applies for an import permit he should discuss with
would appear to me on a fair assessment of the above excepts of the
minutes of the Board that the Board demonstrated complete autonomy
when it took a decision and members were urged to disregard the
letter from the Minister of Agriculture and Cooperatives and to
exercise their own independent judgment based on the facts at hand
the merits and demerits of not issuing a maize import permit (see
item 6.1 of the minutes the members deliberated the merits and
demerits of the application of the Applicant. At item 6.2 the
function of NAMBOARD was discussed. At items 6.8, 6.9, 6.10, 5.13 the
Board considered in great detail the application by the Applicant
inter alia that there was no guarantee that if the Applicant was
granted a white maize permit the price would drop the 1st
Respondent's mandate was to control the import and export of
scheduled products not prices.
my mind, the facts as re-produced above, reveal that the Board acted
lawfully, honestly, reasonably and rationally, in the circumstances.
is clear from the minutes of the Board that it did not simply follow
the instruction of the Minister or decided in advance to refuse the
application or abdicate its power or did not properly apply its mind,
(see Baxter, Administrative Law, at page 85, 416, 417 and Hoexter et
al, The New Constitutional and Administrative Law Vol. 2 at page 165
- 166). In the case of Schoolbee and others vs Mec for Education,
Mpumalanga & another, 2002 (4) S.A. 877  the court in South
Africa when applying the promotion of Administrative Justice Act No.
3 of 2000, stated that the said Act was in large part a partial
codification of administrative law with specific
to administrative actions. The court further held that in a
constitutional state rationality, reasonableness, fairness and
openness were very important considerations in the evaluation of the
exercise of statutory power under judicial review.
casu, as I stated above the facts reveal that the decision of the
Board was supported by reasons as reflected in the minutes and that
the Board acted rationally, reasonably and fairly. Therefore, it
would appear to me that the Applicant cannot succeed under this head.
Dictation and abdication
accusation by the Applicant is that the Board was dictated upon and
ultimately abdicated its power. This attack eminates from a letter
dated 4th November 2002, (annexure "N") from the Minister
informing NAMBOARD as follows:
hereby wish to remind NAMBOARD that the Ministry's policy regarding
the importation of white maize into Swaziland has not changed, This
therefore means that the National Maize Corporation (NMC) remains the
sole importer of maize into Swaziland. Should there by (sic) a change
in policy, the Ministry will direct accordingly..."
support its case, in this regard the Applicant has cited what is said
by Baxter (supra) at 442 where the learned author states:
power vested in one official or body may not be usurped by another
.... This constitutes an unlawful dictation and a failure by the
person upon whom the power has been conferred to exercise his own
Applicant further relies on the dicta in the case of Cineland (Pty)
Ltd vs Licensing Officer Hhohho District and others 1977 - 78 S.L.R
106 where the following was stated; and I quote:
can conceive of no greater irregularity than for the Government to
instruct a licensing officer, the official appointed for that very
purpose pursuant to the enabling statute, that an application is to
be postponed, and to follow this up with a letter, while the matter
is still subjudice, that the Government has refused the grant of an
additional cinema in Mbabane..."
appears to me that the answer to this vexed question lies within the
provisions of the NAMBOARD Act as to the delegation of the Minister's
powers to the Board and the applicability of the Act.
would appear to me that in this regard Mr. Magagula for the 2nd
Respondent is correct in his submissions that the NAMBOARD Act is a
delegation of the powers of the Minister to the Board.
National Agricultural Marketing Board ("NAMBOARD") is
created by Section 3 of the National Agricultural Marketing Board
Act, 13 of 1985. In terms of Section 5 (a) of the Act the Board may
"register ... importers ... .of scheduled products".
6 (a) of the Act provides that the Board may, in the exercise of its
function in terms of Section 5,
any person wishing to engage or who is engaged in importing and
exporting scheduled products to register with and obtain a permit
from the Board"
Act provides in Section 7 that:
Minister may give directions of a general nature to the Board
relating to the performance of its duties and the Board shall comply
therefore from the above it appears that the exercise of the powers
by the Board in terms of Section 5 is subject to any directions given
to it by the Minister under Section 7. Section 7 empowers the
Minister to give "directions" or a "general nature"
to the Board relating to the "performance of its duties"
and the "Board shall comply therewith" therefore, it is
within this legal framework that the letter from the Minister to the
Board should be viewed.
this regard the submissions made by Mr. Magagula for the 2nd
Respondent compels me to conclude that the Board, if one has regard
to the provisions of the Cereals Act exercises powers delegated by
the NAMBOARD Act, and is an instrument through which the Minister
exercises powers vested in him in terms of the Cereals Act. It
appears to me that the contentious letter from the Minister was
directive issued in terms of Section 7 of the Act. It is a directive
restating the Government policy regarding the importation of maize
into Swaziland. It should be further noted that the import of the
letter is of a general nature and there is nothing in it which
suggests that the Minister was dealing specifically with the
minutes of the Board show clearly that the Board considered the
application and applied its mind. The following is recorded at item
2.0 "the Board was advised to make its decision within ten days
from the 2nd December 2002. The Board has to demonstrate complete
autonomy when it takes the decision on the matter... members are
urged to disregard the letter from the Hon. Minister of Agriculture
and Cooperatives and exercise their own independent judgement based
of (sic) the facts at hand. Merits and demerits of not issuing maize
import permit to Ngwane Mills should be clearly stated. According to
NAMBOARD Act No. 13 of 1985 the Board has the power to issue or not
to issue permits of scheduled products".
was further contended for the Applicant that the referral by the
Board to the Minister constitutes an unlawful abdication of power.
However, in my view on the basis of what happened in the Special
Meeting of the Board and as reflected in the minutes of that meeting
re-produced above (especially item 2.0 therein) I am unable to say
that the Board abdicated its powers as alleged by the Applicant.
hold therefore, for the above reasons that in casu on the facts the
Applicant cannot succeed on this leg of the argument.
appears to me further that the above reasoning apply to other Heads
of Argument advanced by the Applicant viz 4) impartiality; 6)
fairness; 9) applying the mind and therefore for the sake of brevity
I hold that the views expressed under 2nd Head apply in the other
Heads I have just mentioned. I will not therefore address these Heads
individually. Therefore the subsequent numbering of the remaining
grounds will follow a rather haphard fashion.
Respondents contends that
remedies have not been exhausted and common law remedies are
Applicant however contends that having regard to the involvement of
the Minister in the application, the contention by the Respondents is
untenable. In the Cineland case, supra at page 109 G this court
can an Applicant hope to succeed in an appeal to him when the
Government, of which he is a member, has decided in advance that the
application should be refused?"
Applicant further contends in this regard that the authorities are in
any event destructive of this contention. The reference to " any
decision of the Board" in Section 8 of the Act contemplates a
decision reached as a result of valid proceedings by the Board where
the complaint is the illegality or fundamental irregularity of the
decision of the Board, a challenge to the court is appropriate.
this regard the court was referred to the case of Golube vs
Oosthuizen 1955 (3) S.A. 1 (T) where the general rule was enunciated
mere fact that the legislative has provided an extra-judicial right
of review or appeal is not sufficient to imply an intention that
recourse to the court of law should be barred until the aggrieved
person has exhausted his statutory remedies".
court was further referred to the cases of Welkom Village Management
Board vs Letenu 1958 (1) S.A. 490 (AD) and to Rose Innes, Judicial
Review of Administrative Tribunals in South Africa, 75. Furthermore,
that where the issue is one which involves fundamental considerations
of legality, it is highly unlikely that the court will require that
the Applicant to exhaust domestic remedies, (see Local Road
Transportation Board vs Durban City Council 1965 (1) S.A. 586 (AD) at
592 H -594 D and Baxter op cit, 723)
8 of the Act provides that any person aggrieved by the decision of
the Board not to grant an import permit may within 30 days appeal to
the Minister in writing whose decision shall be final.
this regard I agree with the submissions advanced for the 2nd
Respondent that the provisions of Section 8 should be considered
together with Regulation 2 under Schedule II of the Cereals Act which
grants the Minister absolute discretion to grant or refuse a permit.
It appears that the intention of the legislature was clearly to
replace common law remedies by statutory remedies and to make the
Minister the ultimate arbiter with regards to the issue of licences,
(see Baxter op cit 723 - 4 and the authorities therein cited. See
also Madrassa Anjun Islamia vs Johannesburg Municipality 1917 A.D.
718 at 723).
the leading case of Madrassa (supra) Solomon JA's thought that, as a
general principle, the provisions of statutory remedies implies that
the ordinary remedies are replaced, though he accepted that this
presumption would be rebutted by clear evidence to the contrary in
the statute concerned.
legislature intended to limit the remedies available to persons
aggrieved by a refusal to grant a permit to mere administrative
procedures, I am again in agreement with Mr. Magagula in this respect
that appealing to the Minister would have provided an effective
redress mainly due to the complexities of issues involved which are
inextricably intertwined with policy. However, it is my view that it
would be otherwise if the Board acted illegally. In casu it has been
shown that the Board acted in terms of powers vested in it by the
sum, therefore, under this Head of Argument I find that the Applicant
has approached this court without exhausting local remedies.
Audi alteram partem.
Applicant's contention in this regard is premised in a dictum in the
South African case of South African Roads Board vs Johannesburg City
Council 1991 (4) S.A. 1A
page 10 H -1 where the following was enunciated as regards the common
law requirement of audi alterant partem:
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".
Administrator, Transvaal and others vs Zenzile and others, 1991 (1)
S.A. 21 (A) at 37 E-F the court quoted from an English judgment as
everybody who has anything to do with the law well knows, the path of
the law is strewn with examples of open and shut cases which,
somehow, were not, of unanswerable charges which, in the event, were
completely answered; of inexplicable conduct which was fully
explained; of fixed and unalterable determinations that, by
discussion, suffered a charge".
author Baxter, op cit 546 put it this way:
order to enjoy a proper opportunity to be heard, an individual must
be properly appraised of the information and reason which underlie
the impending decision to take action against him".
Applicant in this regard relied further on the eases of Yuen vs
Minister of Home Affairs 1998 (1) S.A. 958 C, 965 B - C, Foulds vs
Minister of Home Affairs and others 1996 (4) S.A. 137 (W), 143 B - C
and the case of Logbro Properties CC vs Bedderson No. and others 2003
(2) S.A. 460 (SCA) at 471 - 472, paragraph 23 - 25.
gravamen of the Applicant's case in this regard is that despite its
request to be heard the Board failed to afford a hearing to the
the stance adopted by the Respondents is that the Board was under no
obligation to hear oral submissions by the Applicant. Annexure "K"
to the Applicant's founding affidavit read together with annexure
"PMD2" hereto clearly reflects that the application was
considered fully by the Board, and the consequences either to grant
or refuse such application were thoroughly investigated and debated
Board. 1 am persuaded by the arguments advanced for the Respondents
as reflected in "PMD2" that the following issues were
discussed by the Board.
The judgment of the High Court of Swaziland (item 1, paragraph 2);
That the board had to demonstrate complete autonomy when it took a
decision and members from the Honourable Minister of Agriculture and
Cooperatives and to exercise their own independent judgment based on
the facts at hand - the merits and demerits of not issuing a maize
import permit (item 2).
The functions of NAMBOARD was discussed (item 6.2);
There was no guarantee that if the Applicant was granted a white
maize permit the price would drop... The first Respondent's mandate
was to control the import and export of scheduled products not prices
issues which came under debate in that meeting of the Board are found
in paragraphs 10.9.6, 10.9.7, 10.9.8 10.10, 10.11 of the answering
affidavit of the Chairman of the Board. In this regard I refer to the
case of Davies vs Chairman, Committee of the J.S.E 1991 (4) S.A. 43
where Zulman J stated the following principles pertaining to judicial
conduct of a statutory body exercising quasi-judicial functions is
subject to review by the Supreme Court
issue before a court on review is not the correctness or otherwise
of the decision under review. Unlike the position in an appeal, a
court of review will not enter into, and has no jurisdiction to
express an opinion on, the merits of an administrative finding of a
statutory tribunal or official, for a review does not as a rule
import the idea of a reconsideration of the decision of the body
remarks of Innes CJ in Johannesburg Consolidated Investment Co. vs
Johannesburg Town Council continue to apply.
court has limited jurisdiction in review proceedings and supervises
administrative action in appropriate cases on the basis of "gross
is no onus on the body whose conduct is the subject matter of review
to justify its conduct. On the contrary, the onus rests upon the
Applicant for review to satisfy the court that good grounds exist to
review the conduct complained of.
rules relating to judicial proceedings do not necessarily apply to
body whose conduct is under review is entitled, subject to its own
rules, to determine the rules of procedure it will follow.
rules of natural justice do not require a domestic tribunal to apply
technical rules of evidence observed in a court of law, to hear
witnesses orally, to permit the person charged to be legally
represented, or to call witnesses or to cross-examine witnesses.
court on review is concerned with irregularities or illegalities in
the proceedings which may go to show that there has been "a
failure of justice". A mere possibility of prejudice not of a
serious nature will not justify interference by a superior court,
present purposes it is my considered view that points 7, 8 and 9
cited above apply in the present case.
casu having regard to annexure "K" to the Applicant's
founding affidavit read with annexure PMD2 referred to by the
respondent. It does not appear to me that the non-appearance of the
Applicant has resulted in a failure of justice. In this regard see
also Jockey Club of South Africa and others vs Feldman 1942 A.D. 340
at 359 and that of Larson and others vs Northen Zululand Rural
Licensing Board 1943 N.P.D. 40.
the above-mentioned reasons I have come to the considered view that
the Applicant cannot succeed under this ground.
Absence of reasons.
the 17th December 2002, the Applicant requested "full and
detailed reasons" for the decision of the Board and further
requested a copy of the minutes of the relevant meeting of the Board
(per Vol. I. 109 -110).
a letter dated 16th January 2002. the Board refused to give reasons
and stated inter alia.
The minutes of the Board on any of its deliberations are confidential
and cannot be
to persons who are not members thereof. 2.2 The Board is not obliged
to furnish you with information required on (sic) your letter under
reference. Therefore your request cannot be acceded to" (per
Vol. I page 111).
Applicant contends in this regard that it is understandable why the
Board failed to give reasons for its decision. The decision was not
based on reason. It was argued in this connection that in the case of
Padfield and others vs Minister of Agriculture, Fisheries and Food &
others 1968 AC 997 at 1006 - 1007 B it was said:
the Minister is to deny the complainant a hearing - and a remedy he
should at least have good reasons for his refusal: and, if asked, he
should give them. If he does not do so, the court may infer that he
has no good reason".
appears to me in casu that the minutes of the Board suffices in this
I rule that the Applicant cannot succeed under this head and further
on the basis of the dicta I have cited in the Davies case (supra)
that the court in review proceedings is concerned with irregularities
which result in a "failure of justice". The mere
possibility of prejudice is insufficient.
remaining issues for determination are (9) legality and (10)
antecedent to trade and I have come to the view that further
discussion thereto would be pointless having regard to my views in
the other points, more particularly the issue of exhausting local
leaves me with only one outstanding matter, that of costs. The issue
for the 2nd Respondent contended that the Applicant has approached
this court without exhausting local remedies and without basis in law
and in fact should be penalised with a punitive costs order. The
Applicant was aware that it had to exhaust the remedies provided for
in the Act prior to approaching this court on review. Despite its
knowledge, it decided to disregard the law and proceeded to bring
was argued further for the 2nd Respondent that the Applicant's
conduct aforesaid has prejudiced the 2nd Respondent who had to incur
huge costs to oppose the matter and this prejudice can appropriately
be compensated by an award of costs on a punitive scale.
for the 1st and 3rd Respondents also adopted the same stance as that
of the 2nd Respondent.
for the Applicant, however argued per contra that it believed its
cause in approaching the court as it did. The case for the Applicant
in this regard was premised on the dicta in the Cineland case supra
at 109 G where the court asked "how can an Applicant hope to
succeed in an appeal to him when the Government of which he is a
member, has decided in advance that the application should be
refused?" The Applicant contended that costs should be on the
award of costs is a matter wholly within the discretion of the court
(see Fripp vs Gibbon & Co. 1913 A.D. 354). Herbstein et al, The
Civil Practice of the Supreme Court of South Africa (4th ed) at 703
states that this is a judicial discretion and must be exercised on
the grounds upon which a reasonable man could have come to the
conclusion arrived at.
is a fundamental principle that, as a general rule, the party who
succeeds should be awarded his costs (see Herbstein (supra) at page
705 and the cases cited thereat.
award of attorney-and-client costs will not be granted lightly, as
the court looks upon orders with disfavour and is loath to penalize a
person who has exercised his right to obtain a judicial decision on
any complaint he may have (see Herbstein (supra) at page 717 and the
cases cited in footnote 146 thereof).
the present case, my view is that the Applicant has exercised its
right to obtain a judicial decision on a legitimate complaint.
Therefore I would award costs in the ordinary scale.
the result, on the above-mentioned reasons the application is
dismissed with costs to include costs of counsel to be taxed in terms
of Rule 68 of the High Courts Rules.