Kemp NO and Others v Van Wyk NO and Others

The appellants applied to the Director of Animal Health for a permit under the Animal Diseases Act 35 of 1984 to import 98 sable antelope from Zimbabwe. At the time, the Directorate of Animal Health had imposed an embargo on the importation of cloven-hoofed animals from Zimbabwe due to outbreaks of foot-and-mouth disease and the breakdown of disease control measures there. Despite proposals by the appellants to mitigate risk through testing and quarantine, the Director refused the permit. The appellants challenged the refusal in the High Court, arguing that the Director had unlawfully fettered his discretion by rigidly applying the embargo policy. The High Court dismissed the application, and the appellants appealed to the Supreme Court of Appeal.

The appeal was dismissed with costs, and the refusal of the permit to import the animals was upheld.

The case is significant in South African administrative law for clarifying the distinction between lawful reliance on policy and unlawful fettering of discretion. It reaffirms that administrators may apply general policies when exercising discretionary powers, provided they remain open to considering individual cases. The judgment is frequently cited for its endorsement of principles from Britten v Pope and comparative authority on administrative discretion.