Jacobus Johannes Kemp NO and Others v Dr JJH Van Wyk and Others

The appellants applied to the first respondent (Director of Animal Health) for a permit to import 98 sable antelope from Zimbabwe. About a year before this application, in April 2002, the Directorate of Animal Health imposed an embargo on the importation of cloven-hoofed animals from Zimbabwe due to the breakdown of foot-and-mouth disease control measures in Zimbabwe. The fourth appellant, a veterinary adviser, applied for the permit in June 2003, proposing a regime of testing and quarantine to eliminate any disease risk. The first respondent refused the application. The appellants alleged that when the fourth appellant visited the offices in July 2003, the first respondent summarily wrote "refused" across the application and cited the complete ban on importation. The first respondent claimed he had already considered and refused the application on 30 June 2003 based on departmental recommendations and disease protection policies. The High Court at Pretoria dismissed the appellants' application to set aside the refusal.

• Whether the first respondent exercised his discretion lawfully when refusing the permit
• Whether reliance on an existing policy/embargo precluded the proper exercise of discretion
• Whether the first respondent was required to consider the appellants' proposed alternative measures in isolation of the existing embargo
• Whether the directive issued under section 6(3)(a) of the Animal Diseases Act 35 of 1984 was valid

The appeal was dismissed with costs.

A public official vested with statutory discretion may lawfully exercise that discretion in accordance with an existing policy, provided: (1) the official independently considers whether the policy is appropriate to the circumstances of the particular case; and (2) the official does not elevate the policy into a binding rule that precludes the exercise of discretion altogether. The distinction is between a tribunal that adopts a policy and applies it after hearing an applicant (lawful), versus a tribunal that passes a rule determining not to hear any application of a particular character (unlawful fettering of discretion). In regulatory contexts involving risk management, decision-makers are entitled to initiate and enforce preventative policies and are not required to re-evaluate those policies merely because an alternative proposal is presented, provided they remain willing to consider whether something exceptional in a particular case warrants departure from the policy.

The court observed that the directive issued under section 6(3)(a) of the Animal Diseases Act may have been invalid because that provision contemplates a directive being issued only where the director knows or suspects that an animal is about to be imported in contravention of the Act or a permit condition, not as a general prohibition. However, the court noted this was not material because the directorate had an embargo in place as a matter of policy, and it was this policy embargo (not the directive) that was instrumental to the refusal. The court also noted, without deciding, that the role of reviewing courts is not to evaluate the soundness of an official's view on substantive matters (such as adequacy of disease prevention measures) but only to determine whether the decision was arrived at lawfully.

This case is significant in South African administrative law for clarifying the relationship between discretionary decision-making and policy adherence. It establishes that administrative decision-makers may lawfully apply existing policies when exercising statutory discretions, provided they independently satisfy themselves that the policy is appropriate to the particular case and do not treat the policy as a binding rule that eliminates discretion. The judgment reinforces the principles from Britten v Pope (1916 AD 150) in the modern constitutional context and provides guidance on when policy application constitutes lawful exercise of discretion versus unlawful fettering of discretion. It is particularly relevant in regulatory contexts where officials must balance individual applications against broader public policy objectives, such as disease control and risk management.