Republic of South Africa
IN THE HIGH COURT OF SOUTH AFRICA 

Case No: 19123/2012

In the matter between:

And

MINISTER OF LOCAL GOVERNMENT, ENVIRONMENTAL 

REASONS FOR ORDER DATED 16 NOVEMBER 2012 IN 

[1] This is an application in terms of rule 53(1) of the uniform rules of court for the review and setting aside of the decision made on 17 September 2012 by the first respondent to refuse the issuing of a permit to import and keep two white rhino on the Boschenbach private game reserve which is owned by the applicants.
[2] Interim relief sought by the applicants to compel the first respondent to issue a permit pending the final outcome of the review was not persisted with and has become academic save in relation to costs.

[5] In relation to the grounds of review the applicants in essence submit that:
5.1. The respondent misunderstood what was required of the applicants in order for a permit to be issued;
5.2. Alternatively, and although the respondent indeed understood what was required, it deliberately and consistently sought to impose conditions not stipulated in terms of the relevant legislation and its own policies.
[6] It is the respondent’s contention that it at all relevant times understood what was required of the applicants and that it is the applicants who acted improperly in launching these proceedings in circumstances in which no decision had yet been made, and no decision could have been made, since the applicants persistently refused and/or failed to meet the stipulated requirements for the issue of such a permit.

[7] The salient facts of this matter are as follows.

[10] The Boschenbach reserve (the total extent being approximately 2000 hectares) is comprised of the following properties or farms:

10.3. Trekpoort Annex and Trekpoort are registered in the name of the first applicant under title deed no T49206/2001.

10.5. Portion 1 of the Farm Holfontein No 72 (the correct description should read portion of portion 1 and portion 2 of the Farm Holfontein No 72) held by the first applicant under title deed no T35049/11.
[11] The first applicant has apparently applied for the consolidation of portion 9 of the Farm Trekpoort Annex, portion 4 of the Farm Trekpoort and portion 1 of the Farm Holfontein No 72 under the same title deed and the application is pending.
[12] The applicants state that by the beginning of 2009 they had invested more than R10 million in the development of the private game reserve, including the renovation of existing buildings and housing facilities, the erection of new buildings and facilities, the construction of fences in accordance with the requirements and prescriptions of the respondent, the appointment of experts to conduct environmental and impact studies, the purchase and import of various wildlife species, compliance with legislation relating to the issue of permits and firearm licences as well as marketing and advertising expenses.

[14] The applicants applied for and were duly issued with CAE’s in 2002, 2005 and 2007. These were issued after the respondent on each occasion inspected and approved Boschenbach’s fences. A further CAE was issued on 9 March 2012 as a result of the order of this court dated 7 March 2012 after the respondent agreed to the issue of such a certificate pending the final outcome of the roads application.
The permit application

[18] The Ordinance to which the respondent refers is the Environmental Ordinance. Section 47A thereof stipulates that:
‘47A. (1) Notwithstanding anything to the contrary contained in this ordinance, no person shall, without a permit authorising him or her to do so -
(a) hunt, capture, possess, import into, export from or transport through the Province, buy, sell, receive as a donation or donate any rhinoceros, or

[19] Section 73 of the Environmental Ordinance provides that:
Permits etc. to be issues by Board

[emphasis supplied]
[20] The Board referred to in s 73 means the Western Cape Nature Conservation Board established in terms of s 2 of the Western Cape Nature Conservation Board Act No 15 of 1998.

[22] The applicants had previously submitted a game management plan to the respondent. This plan was submitted during 2006 and was presumably acceptable to the respondent since it had issued both permits and CAE’s both prior to and subsequent to receipt of the game management plan (i.e. in 2002, 2005 and 2007) in respect of a number of other species of game.
[23] The respondent’s GTUP contains the following requirements for white rhino for properties with game management plans:

Anti-poaching plan recommended 
Captivity permit
Fencing specifications as per CapeNature’s Minimum specifications for adequate enclosure, dated 14 October 1976, as amended, as well as additional requirements for the keeping of white rhinoceros. ’
[24] The GTUP also contains the following requirements for white rhino for properties without game management plans:
‘Habitat assessment 
Anti-poaching plan recommended Captivity permit
Fencing speculations as per CapeNature’s Minimum specifications for adequate enclosure, dated 14 October 1976, as amended. ’

[26] Nonetheless, Mr Pretori us (who had been suggested by Mr Van Deventer), inspected Boschenbach during August 2011 and immediately confirmed that although its habitat, on the face of it, was not suitable to keep black rhino, white rhino would be able to adapt to the area and could be successfully introduced to the reserve. Mr Pretorius also perused the existing game management plan of the applicants, which as I have mentioned was compiled and submitted to the respondent during 2006, and concluded that it was sufficient and that he could not add anything to it.

[29] However the requirements for the import and keeping of white rhino where there is already a game management plan in place (and this must mean in the sense that such a plan has already been approved by the respondent as is the case in the present matter) do not seem to include the submission of any further plan or assessment. It is only, according to the respondent’s GTUP, in instances where the applicant party’s property does not have a game management plan that a habitat assessment is required. Accordingly, to the extent that much is made on the papers by the respondent about the inadequacy of the applicants’ game management plan for purposes of the permit for white rhino, it seems to me that the essential issue to be addressed is whether the habitat assessment included in the game management plan resubmitted to the respondent in support of the application for a permit to import and keep white rhino met the requirements of the respondent. I will return to this issue below.

[32] Having purchased the two white rhino the applicants were in a position to complete the formal permit application since they had the requisite information pertaining to the specific rhino purchased. The formal application was submitted to the respondent on 2 April 2012. On the same day the relevant official in the respondent’s Department forwarded the formal application to Mr Hornimann, an inspector employed by the respondent.
[33] Mr Hornimann is the official charged with the inspection of the applicants’ boundary fences. The respondent’s applicable fencing specifications for white rhino in an area larger than 250 hectares (as is the case with Boschenbach) stipulate that it is not necessary to have a boma or for the fences to be reinforced with cabling. However
'.....'n goeie wildwerende heining wat na inspeksie goedgekeur word, word vereis’
And

[34] The respondent states that electrified fencing is thus a requirement. The applicants state that their fencing is already electrified but has not been activated on portions C-D and H-l thereof. The applicants explain that Mr Hornimann informed them that it is not necessary to actively electrify portion C-D which is located on inaccessible terrain. This is not denied by the respondent.
[35] Although there were many allegations and counter-allegations on the papers regarding the condition of the fencing the photographs annexed by the applicants reflect that they are indeed in a good condition. The real dispute (apart from the height of the fencing which I deal with below) pertained to portion H-l.

[39]I return to the chronology of events. During an inspection at Boschenbach on 18 April 2012 the applicants’ Mr Breytenbach enquired from Mr Hornimann about the progress and outcome of the application for the permit. Mr Hornimann undertook to investigate and on the same day sent the applicants an email to which was annexed a letter signed by him and dated two days earlier, i.e. 16 April 2012 which reads as follows:
RE: BOSCHENBACH HABITAT ASSESSMENT FOR WHITE RHINO
The North West Area Task Team evaluated the habitat assessment and the following comments and recommendations were made:
The habitat assessment and information submitted does not comply with the current Game Translocation and Utilization Policy (GTUP). The North West Area Task Team recommended that the applicant submit the following to allow for an accurate evaluation:
•	
•	Maps of the farm and layout of boma structures/camps and watering points
•	The applicant also has to provide a detailed anti-poaching plan as recommended by the GTUP policy.
Certificate of adequate enclosure for this species. The fence for the property Boschenbach, as per inspection done on 13 - 15 March 2012, does not comply for Rhino.

[40] The applicants state that they were taken aback by the contents of this letter and formed the view that the respondent was being unreasonable and acting in direct contradiction to its own guidelines and policies for the following reasons:
40.1. The habitat assessment submitted during February 2012 as part of the game management plan had been approved and supported by the expert suggested by Mr Van Deventer of the respondent. Furthermore since February 2012 and despite various enquiries by the applicants the respondent had given no indication that the assessment did not comply with any existing policies or guidelines;
40.2. The respondent was already in possession of maps of Boschenbach since they had been provided on a regular basis since 2002;

40.4. The applicants had always complied with all fencing requirements, including for the keeping of rhino;
40.5. The applicants were already in possession of a valid CAE for Boschenbach since the respondent had consented thereto in the order of this Court dated 7 March 2012 and has had issued such a certificate two days later on 9 March 2012.

[41] Save for taking issue with compliance by the applicants of the fencing requirements stipulated by the respondent the latter did not take issue with these allegations. The respondent focused only on the habitat assessment submitted by the applicants as part of the game management plan but failed to provide any explanation for why it had not earlier reverted to the applicants.
[42] On 19 April 2012 the applicants wrote to the respondent conveying their concerns about the letter of 16 April 2012. No response was received. On 2 May 2012 and following further enquiries regarding the reasons for the respondent’s delay Mr Hornimann sent the applicants an email attaching an example of what the respondent regarded as an appropriate habitat assessment.

[45] On 9 May 2012 (i.e. a day before the applicants received the respondent’s letter dated 7 May 2012) the applicants submitted a third habitat assessment. The respondent states that this too was defective and was dealt with in a letter addressed by the respondent to the applicants’ attorney. The letter records that:

45.5. The application was thus pending due to the fact that the applicants had not complied with the “prescribed” requirement for a complete habitat assessment and the respondent was not in a position to consider the application until it was provided.

[47] The applicants state that despite the submission of the complete habitat assessment and every possible effort to comply with every demand and request of the respondent, nothing further happened.
[48] Finally, on 18 September 2012 the applicants’ attorney addressed a further letter to the respondent in which a demand was made for the respondent to provide written reasons as to why the application was not finalised and whether there were still any outstanding requirements. A response was requested by close of business on the following day.
[49] The applicants state that the respondent did not reply to this letter as requested.
Instead on 19 September 2012 the applicants’ Mr Breytenbach was summoned by his workers who informed him that there several police officers on the reserve who had been instructed by Mr Van Deventer to investigate charges relating to the illegal digging of a hole on a public road and an illegal foreign hunting party allegedly operating there. The applicants deny that any of these allegations were true. After the applicants’ legal representative spoke telephonically to one of the police officers they left the reserve.

‘Dear Mr Breytenbach
BOSCHENBACH: WHITE RHINO HABIT A T ASSESSMENT

•	The current and proposed habitat improvement is not considered adequate for the introduction of the White Rhino.
•	Adequate measures are not in place to secure and manage the property.
•	Assessment criteria implemented by other conservation authorities in South Africa for the introduction of Rhino are strict and at the moment this application does not comply with these criteria. ’
[emphasis supplied]

[52] Thereafter and also on 1 October 2012 the applicants’ attorney addressed an email to the respondent calling for reasons for the conclusions reached in Dr Baard’s letter of 17 September 2012.

[53] When again no response was received the applicants launched the present application on an urgent basis on 4 October 2012. As previously indicated although the review proceedings were brought on an urgent basis the interim relief sought by the applicants was for the respondent to issue a permit for the two white rhino pending the outcome of the review proceedings.

55.1. The applicants were to provide clarity on how the current conditions on the property would be improved both in respect of grazing and the provision of adequate water for the rhino;

55.3. Details were provided about the overstocking of animals on Boschenbach.
[56] Mr Hignett proceeded to state the following:
‘

‘Please see attached letter from Mr Breytenbach’s attorney for your information and records.

[emphasis supplied]
[58] The contents of this email had not been disclosed by Mr Hignett when he deposed to the answering affidavit in respect of the urgent interim relief. The respondent later sought to explain away Mr Hignett’s communication to the respondent’s attorney as follows:
‘

[60] The record of the proceedings filed by the respondent also reveals the following:

60.2. The WAC sub-committee met on 4 July 2012. There are no minutes of this meeting since on the respondent’s version the WAC does not keep minutes of its meetings;
60. 3. The WAC requested further information which was provided by Mr Hornimann on 27 July 2012. He informed them that he had visited Boschenbach on 24 July 2012, made mention of the origin of the two rhino concerned, made reference to the building of a boma (no longer relevant in these proceedings) and provided information concerning both the proposed provision of grazing and rehabilitation of the land.
60.4. On 31 August 2012 the North West Area Task Team provided further information to the WAC. That letter contains similar comments and recommendations to its previous letter. Again neither this letter nor the comments and recommendations it contains were provided to the applicants.
[61] No further internal communications are contained in the respondent’s record of proceedings other than those relating to communications subsequent to the applicants’ attorney’s letter dated 18 September 2012 to which I have already referred.
[62] When the matter came before me in motion court I informed the legal representatives of the parties that their respective experts should hold a meeting in order to identify those aspects which could be agreed as well as those which would still be in dispute. A meeting of the experts was accordingly held on 16 October 2012.
[63] The following issues were resolved:

63.2. Boschenbach has sufficient water;
63.3. Boschenbach has sufficient shade;
63.4. It is not necessary for the applicants to import additional rhino for breeding purposes since the two already purchased are able to adapt and survive provided that the respondent’s habitat concerns are adequately addressed.
[64] What was not resolved at the meeting were the following:
64.1. Grazing requirements, although all parties were agreed that grazing could be appropriately addressed with supplementary feed. It is noted that this had already been proposed in the applicants’ June 2012 habitat assessment but ignored by the respondent;
64.2. Carrying capacity (or overstocking) of animals on Boschenbach. It is noted that this had not previously been a concern of the respondent when it had regularly issued permits for other species of wild animals as well as CAE’s;
64.3. The respondent’s fencing requirements, specifically portion H-l of the perimeter fence.

[68] On 7 November 2012 the applicants’ attorney was advised that the sub-committee meeting referred to by the respondent had in fact taken place a day earlier. Since the applicants were not made aware of the date of the meeting they had not yet formulated a response. However in a letter of the same date a detailed timetable was proposed for the implementation of the action plan. That timetable reflects that the action plan will be completed by the latest November/December 2013. In light of the pending court date the respondent’s attorney was requested to furnish a reply by not later than close of business on 8 November 2012.
[69] At the commencement of proceedings on 12 November 2012 I was informed that the respondent had not furnished a response and indeed no response was furnished to either the proposed action plan or timetable until I specifically directed the respondent to furnish such a response. Once the respondent finally produced its response the parties were able to agree on a total of ten special conditions for the importation of the rhino which was then handed in to Court. Needless to say the only outstanding - and still apparently burning - issue was that relating to the fencing specifications of the respondent, who continued to insist that the boundary fence of Boschenbach had to be electrified in its entirety and a minimum height of 2.4 metres, including portions C-D and H-l.

[71] Having regard to the factual background which I have detailed above it was my view that applying the aforementioned test the applicants were entitled to an order reviewing and setting aside the decision of the respondent. To sum up: (a) In reaching his decision to refuse the permit application Dr Baard had either misunderstood the respondent’s own requirements - in accordance with the relevant legislation and its own policies and on its own version as set out on the papers; or he had not been properly informed of the true facts by the relevant officials of the respondent before he made his decision; and (b) the conduct of the relevant officials of the respondent was such that they had also misunderstood or had indeed understood but deliberately and persistently sought for reasons that are not explained to impose conditions which the legislation and the respondent’s own policies do not require.

72.1. where the end result is in any event a foregone conclusion and it would merely be a waste of time to order the functionary to reconsider the matter;
72.2. where further delay would cause unjustifiable prejudice to the applicant;
72.3. where the functionary has exhibited bias or incompetence to such a degree that it would be unfair to require the applicant to submit to the same jurisdiction again; and
72.4. where the court is in as good a position to make the decision itself.

“The mere fact that a court considers itself as qualified to take the decision as the administrator does not of itself justify usurping that administrator’s powers ...; sometimes, however, fairness to the applicant may demand that the Court should take such a view. ”
This, in my view, states the position accurately. All that can be said is that considerations of fairness may in a given case require the Court to make the decision itself provided it is able to do so. ’

‘Since the normal rule of common law is that an administrative organ on which a power is conferred is the appropriate entity to exercise that power, a case is exceptional when, upon a proper consideration of all the relevant facts, a court is persuaded that a decision to exercise a power should not be left to the designated functionary. How that conclusion is to be reached is not statutorily ordained and will depend on established principles informed by the constitutional imperative that administrative action must be lawful, reasonable and procedurally fair. ’

[79] To my mind it was wholly unnecessary for the applicants to have had to approach Court for the relief sought in the review proceedings. If the respondent had merely properly applied itself to the issues at hand the matter could have been resolved long before it was argued and there should have been no need for this Court to have to intervene to effectively ‘case manage’ a process which resulted in consensus being reached on all issues save for that relating to the fencing which transpired to be nothing other than a red herring. In addition the outcome was that the applicants were successful and there is no reason why costs should not follow the result.

Conclusion:

[81] It was for these reasons that I made the order of 16 November 2012.

JICLOETE
[10 December 2012]

ORDER IN “THE RHINO APPLICATION”
Having heard counsel for the applicants and the first respondent and having read the
papers filed of record IT IS ORDERED THAT:
1. The first respondent’s decision to refuse the issuing of a permit to import and keep two white rhino in favour of the Boschenbach Private Game Reserve, which decision was taken on 17 September 2012 and conveyed to the applicants on 1 October 2012, is set aside.

4. Reasons for this Order shall be furnished on the application of the applicants and/or the first respondent in accordance with rule 49(1 )(c).
BY ORDER OF COURT
THE REGISTRAR
Mostert & Bosman

Cnr Carl Cronje and Tygerfalls Boulevard
Tygervalley

CL AN WILLIAM, WESTERN CAPE PROVINCE

1. The boundary fence around Boschenbach shall be retained at a minimum height of 1.8 metres and shall at all times be actively electrified save for positions C - D and H - I thereof.
2. The old fields A and B referred to at page 1 of the Action Plan furnished by Boschenbach on 31 October 2012 (“the Boschenbach action plan”) shall be planted with the grasses referred to at page 5 of the Boschenbach action plan, according to the timeline as indicated in the letter dated 7 November 2012, which planting shall be completed by not later than April 2013.
3. The removal and/or reduction of the wildlife referred to at paragraphs 5 and 6 of the Boschenbach action plan shall commence in March 2013 and shall be completed by September 2013.
4. Until the new grasses planted as described in paragraph 4 above have established themselves, Boschenbach will provide the necessary supplementary feed for any white rhino brought unto Boschenbach.
5. Should any of the conditions referred to in paragraphs 4 to 6 not be met Cape Nature will be entitled to demand in writing that Boschenbach comply with such conditions within 60 days. If such demand is not complied with Cape Nature shall be entitled to revoke the permit granted in terms hereof.
acknowledges in writing that such purchaser/transferee is bound by such this 

7. The permit holder must liaise with its own expert, Mr Gert Pretorius, regarding the appropriate seed mix and preparation of old lands prior to seeding, and if necessary specialists with Worcester Veldreservaat, Vula Environmental and Renu-Karoo Veld Restoration.
8. The permit holder shall keep full records of steps taken in compliance with the conditions referred to in paragraphs 4 and 5 above, and shall permit CapeNature to have access to Boschenbach and the said records on 7 days written notice.
9. All rhino must be marked (micro-chipped) as per Government Notice No. 304 of 10 April 2012 (Government Gazette No. 35248).