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[2016] ZAWCHC 150
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Coastal Links Langebaan and Others v Minister of Agriculture, Forestry and Fisheries and Others (11907/13) [2016] ZAWCHC 150; [2017] 2 All SA 46 (WCC) (31 October 2016)

IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
REPORTABLE
CASE
NO: 11907/13
In
the matter between:
COASTAL
LINKS LANGEBAAN
First Applicant
HENRY
MAKKA
Second Applicant
MARK
BURLING
Third Applicant
ALBERT
MARTIN BLAKE
Fourth Applicant
HARRY
BLAKE
Fifth
Applicant
WILLIAM
BLAKE
Sixth
Applicant
FRED
MAKKA
Seventh Applicant
LES
MAKKA
Eighth Applicant
ALBERT
OCKS
Ninth Applicant
TOMMY
PREZENS
Tenth Applicant
ROBERT
SMITH
Eleventh
Applicant
JOHN
VAN BOVEN
Twelfth
Applicant
OSLEN
VAN BOVEN
Thirteenth
Applicant
TOM
VAN BOVEN
Fourteenth
Applicant
DEON
WARNICK
Fifteenth
Applicant
and
THE
MINISTER OF AGRIGULTURE, FORESTRY
AND
FISHERIES
First Respondent
DEPUTY
DIRECTOR-GENERAL OF THE FISHERIES
BRANCH
OF THE DEPARTMENT OF AGRICULTURE,
FORESTRY
AND FISHERIES
Second Respondent
THE
MINISTER OF ENVIRONMENTAL AFFAIRS
Third
Respondent
DEPUTY
DIRECTOR-GENERAL OF THE OCEANS
AND
COASTAL MANAGEMENT BRANCH OF THE
DEPARTMENT
OF ENVIRONMENTAL AFFAIRS
Fourth
Respondent
SOUTH
AFRICAN NATIONAL PARKS
Fifth
Respondent
WEST
COAST NATIONAL PARKS
Sixth
Respondent
Heard
on:  9 June 2016
Judgment
delivered: 31 October 2016
JUDGMENT
SHER,
AJ:
[1]
The Langebaan lagoon is the only non-estuarine tidal lagoon in South
Africa.  It is situated on the West Coast, approximately
100
kilometres north of Cape Town. The mouth of the lagoon, on its
northern side, is entered via Saldanha Bay
[1]
.
The lagoon is a highly legislated area. It was proclaimed a marine
reserve in 1973 in terms of the Sea Fisheries Act
[2]
and in 1985 it was proclaimed part of the Langebaan National Park,
whose name was later changed to the West Coast National Park.
The
Park covers approximately 40 000 hectares, and includes not only
the lagoon (which extends over some 6 000 hectares),
but also
the Malgas, Jutten, Marcus and Schaapen islands. These islands are
home to almost a quarter of a million sea birds including
gannets,
cormorants and gulls.  In 1998 the lagoon was listed on the
Ramsar List of Wetlands of International Importance
[3]
and in 2000 it was proclaimed a “
marine
protected area
”
(“MPA”)
in terms of the Marine Living Resources Act
[4]
(“MLRA”). It is thus an area of immense ecological
significance. It is home to some 282 bird species, 23 of which

are so-called “
waders”
which
include 15 species of Palearctic migrant birds who travel each
year to the wetlands surrounding the lagoon from regions
as far
afield as Greenland, and Siberia.  Up to 55 000 water birds
have been recorded at the lagoon during the summer
season.
[2]
Because it is entirely marine and has a relatively stable salinity
level it supports dense populations of molluscs and crustaceans,
as
well as some 71 species of marine algae which serve as a food source
for birds and fish.   Dr Sue Jackson, a zoologist
employed
by the Department of Botany and Zoology at the University of
Stellenbosch who prepared a report in this matter at the
instance of
the Legal Resources Centre,
[5]
explains that most warm marine environments are in the tropics and
are thus relatively unproductive whereas the Langebaan lagoon
“
is
an island of warmth within the highly productive cold upwelled waters
of the Benguela Large Marine Ecosystem”,
and as
a result it is an important breeding site and refuge for more than
30 species of bony fish and sharks.
[6]
Amongst the fish which spawn in the lagoon is the southern mullet or
“
harder”
as it
is more commonly known.
[7]
[3]
The high productivity of the lagoon has important implications for
the harder fishery. Harders which breed within the lagoon
are on
average approximately 3 cm longer than the next largest harders
on the South African coast
[8]
and their fecundity results in their stocks being more resilient to
exploitation than slower growing populations elsewhere.
The
parties
[4]
First applicant is a nation-wide voluntary association which was
established in 2003. It operates as a community organisation
which
assists “
small-scale”
fishers, such as the
applicants, to secure their livelihoods and protect their rights.
[5]
Second to fourteenth applicants describe themselves as “
small-scale”
net-fishers.
Seven of them
[9]
are so-called
“
commercial
netfish rights-holders”
ie
persons who are in possession of permits which grant them a statutory
right to fish on the lagoon, pursuant to allocations which
were made
in 2006.  The remaining seven
[10]
are so-called “
interim
relief rights-holders”
who
similarly enjoy a right to fish on the lagoon.  This right was
granted in terms of an Order of the Equality Court in 2010
in the
so-called “
Kenneth
George”
matter,
details of which are set out in the historical background below.
[6]
Although second – fourteenth applicants have been given a right
to fish on the lagoon, this right is not unrestricted.
In this
regard it is a condition of the fishing permits and exemptions which
were granted to the applicants that they may fish
only in a certain
‘demarcated’ section of the lagoon known as Zone A, and
in the waters south of the iron-ore loading
jetty in Saldanha Bay.
They are not permitted to fish in the other zones ie Zone B and Zone
C.  By way of explanation
Zone A, which is at the
northernmost end of the lagoon and which feeds into Saldanha Bay, is
a so-called “
controlled multi-use” z
one where
recreational and commercial line-fishing and commercial and
traditional net-fishing is allowed, together with other activities

such as boating, and yachting.  Zone B is a so-called
“
restricted”
zone where the right to fish can only
be obtained on the issue of the necessary permit and where boating
under motor power is generally
not allowed.  Zone C is an
“
exclusion”
zone and sanctuary where no access
whatsoever is allowed either on foot or by boat.
[7]
Applicants contend that the imposition of the condition in their
permits and exemptions which restricts them from fishing in
Zone B of
the lagoon is arbitrary and irrational.  In this regard they
allege that the scientific evidence available does
not indicate that
net-fishing in Zone B will have an unacceptable ecological impact and
there is no scientific basis for the current
zonation and boundaries
between the various zones.  They point out that the available
data used by the respondents to justify
the restriction is based on
scientific studies which were conducted before 2000 in other areas
along the West and South Coast
and not specifically on the lagoon.
They also aver that the current restriction unfairly discriminates
against them on the
grounds of race and perpetuates past patterns of
discrimination.  Consequently, they seek an order setting aside
the decisions
in terms of which the restrictive conditions were
imposed in their permits and exemptions, a declaratory order granting
them the
(temporary) right to fish in Zone B of the lagoon and a
“
structural interdict”
directing the Department of
Agriculture, Forestry and Fisheries to consult with them and, under
the court’s supervision,
to work out a long-term arrangement
enabling them to have long-term rights to fish on the lagoon.
The
historical background
[8]
Net-fishing in the Langebaan lagoon began in the 1600s when the Dutch
colonists established beach-seine net-fishing (also known
as “
trek
net”
fishing)
which targeted the harder, white steenbras and white stumpnose
species.
[11]
Gill nets
were first introduced by Italian and Portuguese fishermen during the
1860s.
[12]
Conflict
between gillnet fishermen and other fishermen occurred as early as
1905,
[13]
but there were no
formal controls on the fishery until the promulgation of the Sea
Fisheries Act
[14]
in 1973.
The Act made the licensing of gill nets compulsory and introduced
various restrictions on the gear that was used
including the mesh
size and lengths of the nets, with a view to reducing linefish
by-catch.  In terms of the Act the allowable
fishing effort was
also reduced and confined to the Western Cape, and legal catch was
limited to two target species only ie harders
and St Joseph
sharks.
[15]
In addition
the landing of by-catch linefish species was limited to a maximum of
10 fish per permit per day, and was further
subject to minimum size,
closed season and ‘bag limit’ regulation.
[16]
[9]
The applicants’ descendants were traditional net-fishers who
were involved in beach-seining up to at least the early 1700s.

They supplied salted harders to the VOC establishment at the Cape
from as early as 1673.  Initially these traditional fishermen

used seine (also called “
trek”
) nets which were
rowed out into the lagoon and then pulled in from the shore.  In
the late 1890s – 1900s the fishermen
began to make use
ever-increasingly, of gill nets, which are hung vertically in the
water and drift, thereby trapping fish by catching
them on their
gills.  By adjusting the size of the mesh the fishermen were
able to determine the size and species of fish
they wished to catch.
The traditional fishermen of Langebaan gave the different trekking
areas on the lagoon their own names such
as Grootaas, Kleinaas,
Witgat and Grootkos. Various families had their own ‘trek’
sites which were uniformly recognised
and respected.
[10]
In a supporting affidavit Prof Lance Van Sittert
[17]
has described how the arrival and spread of gill nets in the 1890s
and the combustion engine in the early 1900s destabilised the

beach-seine fisheries and led to the demarcation of proclaimed areas
which sought to conserve such fisheries in reserves, until
the late
1900s, when white urban middle-class recreational users and marine
scientists began to ascribe the wide-spread decline
in marine fish
species (which was largely caused by wholesale industrial fishing,
urbanisation and pollution), to the net-fishers
and lobbied for
legislation to be passed to curtail their activities on conservation
grounds.
[11]
The applicants point out that in the 1950s almost everyone in
Langebaan was involved in net-fishing activities in some way
or
another and harders formed a major component of the staple diet of
the local community, together with other species of line
fish and
rock lobster.  In or about 1967–1968 (ie even before the
introduction of the Sea Fisheries Act in 1973), a
fishing permit
system of sorts was introduced, which was aimed at distinguising
recreational fishers from netfishers. In 1969 the
net-fishers lodged
a complaint with the local municipal board about the negative impact
which the recreational fishers were having
on their fishery.  In
order to resolve this conflict municipal officials demarcated the
lagoon by means of beacons, into two
zones.  The net-fishers
were given the right to fish in Zone B ie in that area of the
lagoon which lay roughly south
of a demarcated ‘line’ and
the recreational and other fishers were limited to fish in Zone A
ie that section of
the lagoon which lay to the north of this ‘line’
into the mouth of Saldanha Bay (in the direction of the iron-ore
jetty
which was later erected to provide for the transportation of
shipments of iron ore from the steelworks in Saldanha Bay). On the

promulgation of the lagoon as a marine reserve a further zone, Zone
C, which is situated in the southernmost portion of the lagoon
and
which consists largely of tidal wetland, was added to the
demarcation.  No access to or fishing in Zone C was
allowed,
as it was designed to serve as a complete sanctuary for fish
and birds.
[12]
During the 1970’s many of the applicants’ predecessors
who had been living on farms or land adjacent to the lagoon
were
forcibly moved to Langebaan North in terms of the Group Areas Act, in
accordance with
apartheid
spatial planning policy.
[13]
In 1985, after the lagoon was declared a national park in terms of
the National Parks Act
[18]
it
was placed under the management of the South African National Parks
Board (“
SANP
”
).
At that time net-fishers were still allowed to fish in both Zones A
and B, whereas recreational fishers were excluded from
Zone B and
were restricted to fishing in Zone A only. Shortly after this SANP
started acquiring land aound the lagoon from a number
of white
farmers and landowners.
[14]
In her supporting affidavit Sunde
[19]
has pointed out that whereas ancestors of the Langebaan net-fishers
had lived and worked on these lands for several generations
and had
enjoyed beneficial use of the waters of the lagoon and its marine
resources for decades, no regard was had for their customary
fishing
rights in the contractual arrangements which SANP entered into with
the adjoining landowners.  At or about this time
the ‘trek’
(seine) net-fishery was also outlawed and fishers were restricted to
gill (‘drift’) net-fishing
only.  Nonetheless, the
net-fishers still continued to enjoy access to Zone B.
[15]
During December 1991 SANP concluded the so-called “
Churchaven”
agreement
in terms of which certain portions of the Stofbergsfontein farm were
acquired and incorporated into the West Coast National
Park.
According to Sunde at that time all local landowners who were
resident in the Park were permitted to fish in Zone B,
but fishermen
resident in Langebaan including black fishermen and descendants of
the applicants, were not permitted to do so even
though the
Churchaven agreement provided that fishermen who complied with
“
traditional”
fishing
methods would receive preferential treatment in the allocation of
permits.
[20]
[16]
On 12 June 1992, Regulation 27A(1) of the Regulations made in
terms of the National Parks Act
[21]
was promulgated.  It prohibited the catching or disturbing of
any fish in Zone C under any circumstances, and the catching
and
disturbing of any fish, or the use of any vessel powered by an
engine, in Zone B, without a permit.
[17]
As at 1997 some 27 permits allowed for net-fishing in Zones A and B.
In September 1997 a new draft “
Policy
and Guidelines for Net-fish Permits”
was
introduced and subsequent thereto the total number of net-fishing
permits was reduced to 21.  The new Policy also provided
that
future permits would only be issued for net-fishing in Zone A,
but permits issued prior to 1992 in respect of Zone B
would continue
to be honoured and would be renewed annually, as would the fishing
permits of rights-holders in Churchaven and Stofbergsfontein.

However, this distinction became unworkable and eventually all of the
net-fishing permit-holders were allowed to fish in Zone B.
[18]
Sunde points out that with the expansion of residential development
in Langebaan and the increase of recreational fishing there
were
increasing complaints from recreational anglers (who, at that time,
were still largely white), that the net-fishers were unfairly

targeting their fish stocks.
[19]
With the advent of the MLRA in 1998 the Department of Environmental
Affairs and Tourism took over the allocation of fishing
permits from
SANP.
[20]
On 29 December 2000 the Langebaan lagoon was declared to be a
MPA in terms of the MLRA, and the Act confirmed the pre-1998
zonation
and  restriction on fishing in Zone B, save under the authority
of a fishing permit.  The MLRA sought to introduce
a new
dispensation in terms of which rights to fish were to be allocated
for a number of years at a time, instead of annually.
The Act
also provided that the Minister was to determine the “
Total
Allowable Catch”
(“
TAC”
)
and the “
Total
Applied Effort”
(“
TAE”
)
which was to be apportioned in any year to subsistence,
recreational,  commercial and foreign fishing respectively.
[22]
The Minister was also empowered to determine the TAC or TAE or a
combination thereof in any particular area, or in respect of any

particular species of fish, and in respect of the use of particular
gear, fishing methods or types of fishing vessels.
[23]
In the result the MLRA envisaged that future rights to fish were to
be awarded on the basis of a pre-determined TAC or TAE.
[21]
In 2000 the Minister approved a 40% reduction in the TAE for the
netfishery, declaring that this was done in order to facilitate
the
rebuilding of the harder stock and to remove part-time fishers from
the fishery.  In this regard, and by way of explanation,
the
MLRA defines the TAE as the maximum number of fishing vessels or
fishing method for which fishing vessel licences or permits
to fish
may be issued in respect of a particular species (or group of fish
species), or the maximum number of persons on board
a fishing vessel
for which fishing licences or permits may be issued in respect of
such species.  It appears that subsequent
to the promulgation of
the MLRA, the total number of net-fishing permits issued in respect
of the lagoon was reduced to 11 and
later 10.
[22]
In 2003 and 2004, the National Environmental Management: Protected
Areas Act (“
NEMPAA”
),
[24]
and the National Environmental Management: Biodiversity Act,
[25]
were passed.  The NEMPAA provided that Zone B would continue to
be excluded for commercial net-fish rights-holders, save for
the
Churchaven and Stofbergsfontein net-fishers who were allowed to
continue to net-fish on a commercial basis in Zone B.
[23]
In January 2005 a number of fishermen launched proceedings in the
Equality Court on behalf of traditional artisanal fishermen
and their
communities across the country, including the Langebaan net-fishers.
In their papers it was submitted that the
Government’s failure
to provide subsistence and artisanal fishers with access to marine
resources violated a number of their
constitutional rights, including
the right to equality and the right not to be unfairly discriminated
against, the right to engage
in a trade or occupation and the right
to access sufficient food.  The application coincided with the
allocation of long-term
(10 year) fishing rights in 2005.
In terms of these allocations only 7 net-fishing permits were
allocated to members
of the Langebaan fishing community.  As a
result of the launch of the application in the Equality Court, the
Minister of Environmental
Affairs agreed to a court Order which was
granted on 2 May 2007, in terms of which the State undertook to
develop a policy
for traditional fishers which would give due
consideration to their socio-economic rights and which would ensure
equitable access
to marine resources.  The Order also made
provision for interim relief for “
small-scale”
fishers whilst the policy was finalised, although the net-fishers
were excluded from such interim relief, as it was intended that
they
would be accommodated separately.
[24]
Subsequently, meetings were held between representatives of the
net-fishers and officials of the Department of Environmental
Affairs
and Tourism with a view to discussing the inclusion of the
net-fishers in the interim relief package.  However, it
appears
that no real progress was made in developing a ‘small-scale’
fishing policy and on 19 November 2008 the
interim Order and the
deadline for the promulgation of the policy were extended to 31 July
2009.
[25]
In December 2008 the Department produced a draft “
Small-Scale
Fishing Policy”
which also made no express provision for
the accommodation of net-fishers.  The applicants aver that the
draft policy was
subject to widespread criticism and was subsequently
withdrawn.
[26]
In December 2009 the applicants approached the Equality Court once
again in the application which had been launched (and which
was known
as the “
Kenneth George”
matter) and an Order was
made by agreement in terms of which the Minister was directed to
finalise the policy by 30 July 2010.
The Order also made
provision for the Minister to provide the net-fishers with interim
relief of sorts, on or before 28 February
2010.  The
applicants allege that despite this Order the Minister and Department
did not consult them and by April 2010 they
were still in limbo.
As a result, the net-fishers of Kleinvishoek, Langebaan and
Struisbaai returned to the Equality Court
in April 2010 to seek
interim relief.  In support of their application they provided
affidavits from a number of experts,
including Sunde and Van
Sittert.  In their reports these experts dealt with the
net-fishers’ historical dependence on
traditional fishing as a
source of livelihood and analysed how they had historically been
victim to discriminatory policies, and
bias in favour of commercial
interests in the fishing industry.
[27]
On 1 July 2010 a further Order was made by agreement in terms of
which net-fishers were granted certain interim relief.
In this
regard the Order recorded that an additional 3 exemptions were to be
provided to the Langebaan net-fishers which would
be shared on a
rotational basis amongst the 9 listed “
drift”
fishermen
(ie gillnet fishers).  The Order provided that the exemptions
would be in place subject to conditions to be determined
by the
Minister pending the promulgation, implementation and rights
allocations in terms of a new policy framework, which would

accommodate traditional artisanal net-fishers.
[26]
The subsequent ‘interim relief’ exemptions which were
issued provided that the holders thereof were not allowed to
fish in
Zone B of the lagoon and could only do so in Zone A and in
Saldanha Bay up to the iron-ore jetty.  Although the
Order
provided further that a draft of the new policy would be circulated
for public comment on or before 31 July 2010 (and
to this end
that the parties would report bi-monthly to the court on their
progress on developing and implementing the new policy),
it was not
produced for public comment by the date stipulated.
Nonetheless, it appears that the parties engaged one another
in
consultation on formulating a new policy throughout 2011 and for the
early part of 2012, as a result of which on 20 June
2012 the new
so-called “
Small-scale
Fishing Policy”
(“SSF
Policy”) was finally gazetted.  Although the terms of this
policy are of crucial significance to a proper
consideration of this
matter, prior to discussing them it is necessary to set out further
important events that transpired between
2005 and 2012, particularly
in regard to the issue of other policies.
[28]
Firstly, in 2005 a “
General Policy on the
Allocation
and Management of Long-term Commercial Fishing Rights”
(the
“2005 General Policy”) was published.  It recorded
that persons who had been previously historically disadvantaged
on
account of their race, had also been deprived of access to fishing
rights and it was accordingly necessary to promote their

participation within all branches of the fishing industry in order to
address these historical imbalances and to achieve equity
within the
industry.  Consequently, the policy expressly provided that in
the allocation of long-term commercial fishing rights
the race and
gender of applicants and their members, management and workforce,
would be taken into account.
[29]
In November 2005 the Minister of Environmental Affairs and Tourism
also issued a “
Policy
for the
Allocation
and Management of Commercial Fishing Rights in the Beach-seine (Trek
net) and Gill Net (Drift-net, Set-net) Commercial
Fishery”
(the
“2005 Net-fishing Policy”). It was recorded therein that
prior to the 2001 medium-term rights allocation process,
the
net-fishery had landed approximately 6 000 tons of fish per
annum of which only minimal reportage occurred on the compulsory

monthly catch return forms.  In addition, a survey of more than
50% of permit-holders revealed that less than 10% regarded
themselves
as full-time (beach-seine or gill-net) fishers and only 8% were
bona
fide
full-time
net-fishers who acquired more than 50% of their income from the
fishery.  In most areas permit-holders operated at
a net loss
per annum, with the exception being the gill-net fishers in the
Saldanha Bay-Langebaan area where 50% of the operators
were full-time
fishermen.  The policy noted that the main target species ie the
harder was over-exploited and there was a
direct correlation between
the total applied effort and the status of the stock.  In
addition, there was ‘substantial’
line-fish by-catch
which consisted mostly of over-exploited or collapsed line-fish
species.  Consequently, it was recommended
that management of
the net-fishery was not to take place outside of the traditional
line-fish sector.  In the circumstances
the policy envisaged
that the gill-net fishery in the Oliphants estuary on the West Coast
would be phased out over a 5 to 10-year
period, and because of
general over-subscription prior to 2001 it was recommended that the
293 gill-net permits that were
issued between Port Nolloth on
the West Coast and Nature’s Valley on the South Coast, and the
further 100 gill-net permits
issued to rights-holders in the
Oliphants and Berg River estuaries, should be reduced to levels that
would ‘facilitate’
recovery of the harder stock and
ensure economically viable fisheries for
bona
fide
full-time
fishers.  As a result of this, in the 2001 medium-term net-fish
rights allocations the TAE was  reduced to 162
gill-nets.
The policy recorded further that its objective included allocating
long-term rights in the beach-seine and gill-net
fishery to
traditional fishers in traditional fishing areas along the West and
South-East Coasts and to “
improve
the transformation profile”
of
the sector, whilst at the same time supporting the economic viability
of the fishery and ensuring its environmental sustainability.

Amongst the stipulated exclusionary criteria was a provision that
rights should only be allocated to traditional net-fishers who
had
fished for a living for at least the preceding 10 years.
[27]
It was also indicated that preference would be given to applicants
who relied on net-fishing for a significant portion of
their gross
annual income.
[28]
And
in line with the General Policy, the Net-fishing Policy similarly
emphasised the transformation imperative.
[30]
Some 3 weeks after the grant of interim relief rights in July 2010
the net-fishers requested access to Zone B during the December

holiday period, on the basis that Zone A was overcrowded.  This
request was granted and between December 2010 and January
2011, as
well as during subsequent holiday periods in Easter 2011 and December
2011 – January 2012, they were allowed to
fish in Zone B.
On 19 April 2011 the Deputy Director of Line and Net Fisheries
Management (Department of Agriculture, Forestry
and Fisheries),
motivated the grant of permission to fish over the Easter holiday
period “
to ensure the viability of the net-fish commercial
fishing rights granted to Langebaan net-fishers and to promote food
security
and secure the socio-economic profile of the commercial
fishers in the lagoon, whilst consideration is given to sustainable
utilisation
of the marine living resources”
(sic).
[31]
Notwithstanding these comments, in April 2012 a similar request to
fish over the Easter period was declined by the Director:
Coastal
Biodiversity Conservation (Department of Environmental Affairs).
His reason for refusing the application was that
the area was a
unique and sensitive environment which constituted an important
nursery for the white stumpnose, and according to
him “
net-fishing
by its very nature is particularly destructive and should only be
allowed in very limited circumstances”
.
[32]
A similar request to fish in Zone B during the December 2012 holiday
period was declined on the basis of the conservation importance
of
the Zone.
[33]
On 28 January 2013 second and third applicants were caught
fishing at night in Zone B.  A week later they were again
caught
in Zone B, on two boats the registration numbers of which did not
match the permits which had been granted to them.
On 10 August
2013 a number of the other applicants were found in Zone B whilst
removing gill-nets from the water, and quantities
of harders, white
stumpnose, steenbras, shad and black-tail were confiscated from them,
and they were arrested and their gear and
motor vehicles
confiscated.  It appears that the criminal prosecutions which
followed on these various infringements were
what ultimately
motivated the launch of these proceedings.
[34]
Before turning to consider whether the conditions which were imposed
on the Langebaan net-fishers’ permits and exemptions
in respect
of Zone B were imposed rationally, it remains to refer briefly
to the terms of the SSF Policy,
[29]
and the “
General
Policy on the Allocation and Management of Fishing Rights
”
published
in July 2013
[30]
(the
“
2013
General Policy
”
).
It may be convenient to deal with the latter policy first. It
provided
for the grant of long-term rights for all sectors for a period not
exceeding 15 years
[31]
and
emphasised
that its objective (together with the other fisheries-specific
policies) was to achieve the optimum utilisation and ecologically

sustainable development of marine living resources in order to
conserve such resources for present and future generations and to

this end, to apply a “
precautionary”
approach
based on the protection of the eco-system as a whole, and the
preservation of marine biodiversity.
[32]
As in the case of all the other policies referred to herein and the
MLRA itself, it too emphasised that transformation of
the fishing
industry was a constitutional and legislative imperative
[33]
and
“
an
extremely important consideration”
in
the “
comparative
balance process”
which
had to be engaged upon when allocating fishing rights, and it
required the delegated authority to compare applicants with
one
another individually, rather than against an external benchmark.
[34]
It too emphasised the need to address historical imbalances in
respect of persons who were previously disadvantaged on account
of
their race and gender “
particularly
with regard to access to fishing rights”
.
[35]
[35]
The SSF Policy in turn recorded that during colonial times and during
the
apartheid
era
many traditional fishing communities had been dispossessed of their
lands adjacent to the coast.  Consequently, the policy
aimed to
“
provide
redress and recognition to the rights of small-scale fisher
communities in South Africa previously marginalised and discriminated

against in terms of racially exclusionary laws and policies,
individualised-permit-based systems of resource allocation and
insensitive
impositions of conservation-driven regulation”
.
[36]
[36]
In line with the broader agenda of the transformation of the entire
fishing sector, the policy seeks to provide a framework
for the
promotion of the rights of small-scale fishers in order to fulfil the
“
constitutional
promise”
of
substantive equality.  The policy points out that the commercial
sector was previously dominated by wealthy white capital,
which from
the 1940s onwards was assisted by a range of measures introduced by
the
apartheid
regime to support the
establishment of an export-orientated industry, and as a result many
previously disadvantaged persons were
forced into working for
white-owned fishing entities.  This, together with the
dispossession of land and the introduction
of new fisheries
management, led to many communities losing their customary access to
harvest marine resources and the right to
exercise their traditional
fishing practices.
[37]
[37]
The policy further points out that the small-scale fishery can
contribute to the eradication of poverty and can support food

security, issues which were not addressed by the MLRA.
[38]
It states that the allocation of long-term commercial fishing rights
in terms of the 2005 General Policy was too complex
and competitive
for small-scale fishers and resulted in a large percentage of them
being excluded.
[39]
It
also recognises that the existing approach to fisheries management
based on individual rights allocations on a long-term
basis is
orientated towards the export-driven commercial fisheries sector
[40]
and has contributed to the unfairness of prior decisions in regard to
the allocation of fishing rights, principally in favour of
commercial
and recreational interests without due consideration for the
vulnerability of most small-scale fishing communities who
are
required to compete within a commercial environment.
[41]
Consequently, the policy seeks to establish preferential access for
small-scale fishing communities who have traditionally
depended on
marine living resources for their livelihood
[42]
and advocates a ‘co-management’ approach to the fishery.
As far as transformation is concerned the policy records
that to
achieve this small-scale fishers must regain their access to
traditional fishing areas.
[43]
[38]
The SSF Policy envisages an entirely different way of allocating and
managing fishing rights and proposes moving away from
the previous
individualised permit-based system to a collective rights-based
system. To this end it envisages the formation and
registration of
community-based legal entities in particular areas, which will serve
as rights-holders for small-scale fishing
rights. These entities will
provide a list of persons who will be allowed to exercise
communities’ collective fishing rights,
and who will be
registered as members of the entity. There will be procedures for the
verification of such membership, and the
entity will also draw up a
list of fishers who will go to sea in order to exercise the
allocations awarded, which may have to be
shared on a rotational
basis in order to ensure compliance with the TAC and TAE.
Regulation of the sector will be largely
based on self-regulation.
The
imposition of the restrictive condition in respect of Zone B
[39]
The application was initially aimed at reviewing and setting aside
the restrictive condition in the permits and interim relief

exemptions which was imposed in 2013 and 2014, but was later amended
to include the subsequent repeated imposition of the condition
in the
2015 and 2016 permits and interim relief exemptions.
[40]
Despite this, the only functionary who was responsible for taking a
decision to impose such condition and who sought to explain
it by way
of an affidavit was Thembalethu Tanci, the Deputy Director: Line and
Net Fisheries Management (Department of Agriculture,
Forestry and
Fisheries).  Tanci was responsible for imposing the condition in
the 2013-2014 permit allocations.  He said
that the restrictive
condition had been imposed in all permits that were issued since the
long-term rights allocations in 2006,
and in his imposing of the
condition he had been guided by two considerations.  In the
first place the lagoon was a critically
important site for the
protection of “
threatened”
(sic) bird species,
particularly the Palearctic migrant waders.  Secondly, the
zonation of the lagoon was designed to protect
shallow sandbanks
where “
threatened”
birds and seagrass beds were to
be found, and the deep-water channels where fish spawned.
[41]
Tanci said his reasons for imposing the condition were to:
(i)
manage the harder stock resource to ensure its optimum sustainable
utilisation;
(ii)
facilitate the recovery of certain fish species
including the harders so as to maintain optimum levels of
production
and “
maintain a viable income for
those involved”
;
(ii)
not allow additional effort within the restricted zone as this would
compromise the integrity of the
marine protected area and “
defeat
the purpose”
of the TAE;
(iv)
give effect to the recommendations of the Scientific Working Group
(“
SWG”
)
for the Management of Sustainable Beach-seine and Gill-net (small
net/drift net) Fisheries for the period 2012-2013 which were

contained in a report by one Rob Tarr, the Chairperson of the
Line-Fish Scientific Working Group, and which was dated August 2012;

and
(v)
take account of the fact that net-fishing
resulted in a substantial by-catch which threatens the sustainability

of fish species such as the white stumpnose; and he noted that
certain fish species, notably the harder, have been protected as
the
result of the zonation which is in place and if fishers are allowed
to exploit Zone B the fishery would be “
diminished”
and “
placed
under threat”
(sic).
[42]
Apart from the 2012-2013 SWG report, Tanci also annexed copies of the
2013-2014 and 2014-2015 SWG reports to his affidavit.
He said
that the deponent to the main answering affidavit, Dr Stephen
Lamberth, was the Department’s principal advisor as
regards the
scientific aspects of the fishery.  It may be useful at this
juncture to point out that the affidavit which was
filed on behalf of
third and fourth respondents by Thanduxolo Mkefe the Director:
Coastal and Biodiversity Conservation (Department
of Environmental
Affairs) bears a striking resemblance insofar as its contents are
concerned, to the affidavit of Tanci and the
affidavit of Lamberth,
and in material respects particularly insofar as the reasons for the
imposition of the condition and the
principal motivating
considerations which led thereto are concerned, the 3 affidavits are
almost word-for-word identical. This
is most curious if one bears in
mind that Lamberth was supposedly not one of the decision-makers who
imposed the condition in any
permit or exemption, and was only a
scientific advisor in respect thereof. And although it is not
apparent from his affidavit that
Mkefe was personally involved in any
of the decisions pertaining to the issue of the permits and interim
relief exemptions of any
of the applicants, he too sought to
indicate, in a parroting of the other deponents mentioned, that the
Langebaan lagoon was a
critically important site for the protection
of “
threatened
” bird species, particularly the
Palearctic waders, and he too said that the demarcation of the
different zones in the lagoon
was designed to protect the shallow
sandbanks where such birds and seagrass beds were to be found, and it
also served to protect
the deep-water channels. Mkefe also referred
to research undertaken by Lamberth in regard to lower catch rates,
smaller average
size of harders caught, and historical and
“
anecdotal”
evidence (which was not specified or
set out in any detail), but which was based on Lamberth’s
research, which suggested
that the harder stock was regionally
over-exploited in the Langebaan lagoon.  He also made reference
(in almost identical
language) to the issue of by-catch and made a
similar suggestion that if fishers were allowed to fish in Zone B,
certain fish species
would be “
diminished and placed under
threat”
.
[43]
Be that as it may, it will be apparent from an analysis of Tanci’s
reliance on the contents of the SWG report for 2012-2013,
that the
report was largely predicated on a number of studies which were
co-authored by Lamberth and Hutchings before 2001.
[44]
In fact, when one considers the affidavits of Tanci, Mkefe and
Lamberth, and all the SWG reports, it becomes apparent that
all of
them are underpinned principally by 4 marine studies which were
co-authored by Lamberth, and in respect of which research
was done in
False Bay and along the West Coast between 1998 and 2000.  In
addition, what also jumps out at one is that the
SWG reports for
2013-2014 and 2014-2015, are also almost word-for-word a copy and
paste of the 2012-2013 SWG report of Tarr, and
arrived at exactly the
same recommendations, year after year.
[45]
Lamberth explained in his affidavit that the Scientific Working
Groups are comprised of Departmental scientists and external
experts
from other marine science institutions who are responsible for
interpreting stock analyses which are carried out on various
fish
species, and their interpretation ultimately informs the
determination of the TAC and TAE which is set annually by the
Minister
in terms of the MLRA.
[46]
The 2012-2013 SWG report
[44]
refers to two 3-year studies which assessed the False Bay beach-seine
fishery and the gill-net and beach-seine fisheries in the
South
Western Cape, which were carried out between 1998 and 2000 by
Lamberth and Hutchings, shortly before the call for application
for
rights in these fisheries in 2001.  Until then, approximately
450 licensed permit-holders used about 1 350 nets
and there
were an unknown number of other fishermen who were using
approximately 400 illegal nets.  The majority of these
fishermen
were occasional fishers who fished for short periods of the year,
particularly over the summer and autumn months, and
who were either
semi-retired or otherwise employed, and many participated in the
netfishery simply  to supplement incomes
and food supplies, as
it was not the mainstay from which they derived a living. However,
many of these fishermen were described
as being “
desperately
poor”
.
The authors of these studies were of the view that, overall, there
was excess effort in the fishery.
[47]
As far as data is concerned the studies concluded that on average,
the gill- net fishery accounted for some 3 250 tons
of
harders annually and 650 tons of St Joseph shark (these are the
only two species which net-fishers are legally allowed
to catch) and
a by-catch of approximately 130 tons per annum, which comprised some
27 fish species.  According to these studies
thus, the by-catch
comprised less than 5% of the average annual harder catch.
Based on size – frequency distributions
the authors of the
studies suggested that the harder stock was over-exploited, and that
there was a strong negative correlation
between the effort (ie number
of nets) and the size of fish which were caught.
[48]
It appears that in 2000 the Minister approved a 40% reduction in the
TAE in the harder netfishery in the light of the information
set out
in these studies, with a view to facilitating a rehabilitation of the
stock and the removal of occasional or “
part-time”
fishers from the fishery.  In this regard the TAE was
projected on the number of fishers who, according to the authors
of
the studies, could maintain a viable income.
[49]
According to the 2012-2013 SWG report, future resource assessment for
the beach-seine and gill-net fisheries was to be based
on a 2-year
detailed catch, effort and socio-economic survey which was to be
carried out as part of a National Linefish survey
every 5 years.
However, Tarr said that “
continuous”
annual budget
cuts had prevented this survey from ever being carried out and the
fishery had thus been assessed since 2000 on an
“
ongoing”
basis simply by sample monitoring of changes in size-frequency
distributions, catch-per-unit-effort, and total-catch and species

reports.  Most of the information in this regard was being
obtained from ‘fishery-independent surveys’ (details
of
which were not specified in the report) and from observer reports in
St Helena Bay, on the West Coast.  However, the information
at
hand was clearly unsatisfactory because in their summary of
recommendations the authors of the 2010-2013 SWG report concluded

that the TAE for 2011 should be kept the same as it was for 2010 in
all netfishing areas, because of the “
limited information
available”
.  The authors in fact pointed out that
maintenance of the effort status quo was not due to the fishery
operating at sustainable
levels, but due to the fact that
“
insufficient new data”
was available for “
any
real up-to-date assessment”
of the fishery to be made.
[50]
As far as the Langebaan lagoon was concerned, the authors of the
2012-2013 SWG report pointed out that the TAE for this area
needed
special consideration as it constituted both a National Park and a
MPA which consisted of open, restricted and sanctuary
zones.
They were of the view that any concession which would allow
additional gill-net effort within any of these zones would
compromise
the integrity of the MPA and the purpose of the TAE.  They
pointed out that as at 2000 the TAE for the lagoon had
been set at 5
rights-holders, with each rights-holder being granted a right to use
two nets ie there was a TAE of 10 for the lagoon.
However,
after negotiations with fishermen a compromise had been reached by
which the number of rights-holders was increased to
10 without
any increase in overall fishing effort.  This was done by
reducing the total allowable effort in the adjacent
overlapping area
of Saldanha Bay and dividing operators up into existing fishing zones
in Langebaan, and restricting fishers to
the use of 1 instead of 2
nets.  The result of this was that 5 rights-holders (from
Stofbergsfontein and Churchaven), were
allowed to fish in Zones A and
B (although they were restricted to the use of 1 gill net each in
Zone B), whereas 5 rights-holders
(from Langebaan itself) were
restricted to fishing only in Zone A up to the iron-ore jetty in
Saldanha Bay, also only with the
use of a single net each. The report
was of the view that the awarding of an additional 3 interim relief
exemptions in terms of
the Order of the Equality Court, had, in
exceeding the TAE, compromised the integrity of the MPA, as had
subsequent concessions
allowing gill-net fishers access to the
restricted area over holiday seasons.
[51]
In the concluding paragraph of their report the authors stated that,
given that the National Linefish Survey was not to proceed
in the
near future, it was essential that “
lapsed observer coverage
(contracts)”
be re-started and “
fisher-independent
sampling intensified”
.
[52]
It is thus evident from the 2012-2013 SWG report that the science
underpinning it was based on the four Hutchings and Lamberth
studies
which had been conducted more than 10 years earlier, and its
recommendations were simply a precautionary repeat of the
previous
years’ TAE, which was the same TAE initially set in 2001,
principally because of the absence of up-to-date information.
[53]
As I have pointed out when one considers the 2013-2014 and 2014-2015
SWG reports, it becomes immediately apparent that they
constitute an
almost word-for-word re-statement of the 2012-2013 report, from the
background and the summary to the recommendations
at the end
thereof.  And both these reports also came to the same
recommendation that, because of the limited information
available,
the TAE for the following year should be set as per the year before.
The only difference I was able to discern
in the 2013-2014 report was
that the authors recommended that the additional rights which had
been granted by way of interim relief
in 2010 should be withdrawn.
And both these reports again lamented the lack of any up-to-date
information, and the 2014-2015
report recommended that a
comprehensive fishery catch and socio-economic survey should be
initiated and completed before the allocation
of beach-seine and
gill-net rights in 2015.  In endorsing the 2014-2015 report, the
Chief Director: Fisheries Research and
Development noted that it was
“
another example where lack of funding is compromising good
information on an important small-scale fishery and lack of proper
enforcement
is threatening legitimate livelihoods”
(sic).
[54]
The 2015-2016 SWG report is not included in the record, but there is
no indication from any of the answering affidavits which
were filed
on behalf of any of the respondents that the contents thereof are in
any material way different from the contents of
the preceding
reports, and there can be no doubt that they were not, as the fact
that the TAE for 2015-2016 appears to have been
maintained at the
same level as that for the preceding year, suggests that the
recommendations which were made for 2015-2016 were
essentially the
same as those made in the preceding years.
An
evaluation: reasonableness, rationality and unfair discrimination
[55]
The grounds of review must be evaluated in the context of the
relevant legislation in terms of which the condition to prohibit
the
applicants from fishing in Zone B was imposed in their permits and
interim relief exemptions.  That legislation is the
MLRA.
In declaring the Langebaan lagoon to be a MPA the Minister acted
pursuant to the provisions of the now repealed s 43
of the MLRA.
These provisions allowed for the Minister to declare an area to be a
MPA
inter
alia
to
facilitate fishery management “
by
protecting spawning stock, allowing stock recovery (and) enhancing
stock abundance in adjacent areas”
[45]
or to diminish “
any
conflict that may arise from competing uses”
in
such area.
[46]
Once the
lagoon was proclaimed a MPA, no persons were allowed to fish or
attempt to fish therein without the permission of
the Minister.
[47]
The now repealed s 43 has largely been subsumed within the later
provisions of NEMPAA.
[48]
[56]
The MLRA provides that no person shall undertake commercial fishing
unless a right to undertake or engage in such activity
has been
granted to them by the Minister.
[49]
In granting any such right, the Minister is enjoined not only to give
effect to the objectives contemplated in s 2 of
the Act, but is
also required to have “
particular
regard”
to
the need to permit new entrants to the fishery, particularly those
from historically disadvantaged sectors of society.
[50]
As was pointed out previously, approximately half of the applicants
hold rights in terms of permits granted by the Minister
under these
provisions and the remainder of the applicants enjoy rights in terms
of exemptions which were issued in the form of
interim relief in 2010
pursuant to the
Kenneth
George
Order
in the Equality Court.  These exemptions were issued by the
Minister in terms of s 81 of the Act which provides that
the Minister
may exempt any persons from a provision of the Act if, in his or her
opinion, there are sound reasons for doing so.
[51]
The Act also provides that the Minister may extend the period of
validity of any right which has been conferred, in whole
or in part,
but in doing so, must have regard to any change in the TAC and/or the
TAE.
[52]
[57]
The reference to the TAC and TAE in the context of the awarding of
rights is to be read with reference to the provisions of
s 14 of
the Act.  These provide that the Minister shall determine the
Total Allowable Catch (TAC) and the Total Applied
Effort (TAE) or a
combination thereof,
[53]
and
shall determine the portions of the TAC and/or TAE, or a combination
thereof, which is to be allocated in any year to recreational,
local
commercial and foreign fishing, respectively.  In 2014, these
provisions were amended to include so-called “
small-scale”
fishers
[54]
and a new provision was introduced in the Act
[55]
to deal specifically with small-scale fishing.  To this end, the
Act now provides that in order to achieve the constitutional

objectives contemplated in ss 9(2) and 39(3) of the Constitution
ie in order to advance equality the Minister is required,
subject to
any law relating to MPAs, to establish specific areas or zones where
small-scale fishers may fish,
[56]
and may, within a prescribed period, recognise a community to be a
small-scale fishing community,
[57]
and in doing so, must prescribe the process and procedures that will
apply in regard to the allocation and recognition of rights
of access
by small-scale fisher communities to such areas or zones, and the
procedures which shall apply in the allocation of fishing
rights to
such communities.
[58]
[58]
S 2 of the Act provides that in exercising any power under the
Act, the Minister shall have regard to a number of objectives
and
principles which include not only the need to protect the eco-system
and any species which is not targeted for exploitation
[59]
and the need to apply “
precautionary
approaches”
in
respect of the management of marine living resources
[60]
and the need to conserve such resources for present and future
generations,
[61]
but also the
need to achieve the “
optimum
utilisation”
and
ecologically sustainable development of such resources,
[62]
and the re-structuring of the fishing industry in order to address
historical imbalances,
[63]
and
to promote “
equitable
access to and involvement in”
all
aspects of the fishing industry (with particular reference to the
need to rectify past prejudice against women, youth and disabled

persons) and to achieve equity within all branches of the
industry.
[64]
[59]
With that by way of background, it is time to turn to the grounds of
review raised by the applicants.
[60]
Firstly, with regard to reasonableness, it is appropriate to refer to
the seminal decision in
Bato
Star
[65]
which dealt extensively not only with reasonableness as a ground of
administrative review, but also gave direction as to how the

provisions of the Act which deal with the objectives and principles
set out therein,
[66]
and the
need to have “
particular
regard”
to
the transformation of the industry, are to be dealt with by courts of
law.  In
Bato
Star
the
applicants sought to review certain medium-term fishing allocations
they had been awarded for hake fishing in the deep-sea trawling

sector.  With regard to  review on the grounds of
unreasonableness, the Constitutional Court held that what will
constitute
a reasonable decision will depend on a number of
circumstances, including the nature of the decision, the identity and
expertise
of the decision-maker, the factors relevant to the
decision, the reasons given therefor, the nature of the competing
interests
involved and the impact of the decisions on the “
lives
and well-being of those affected”
.
In considering whether a decision meets the requirements of
reasonableness, the court is required to take care not to “
usurp”
the
functions of administrative agencies.
[67]
And inasmuch as a decision may require a balance to be struck between
a range of competing interests or considerations, and
is to be taken
by a person or entity with specific scientific expertise in that
area, it must be shown the necessary deference
by a court
[68]
and the court “
should
be careful not to attribute to itself superior wisdom”
in
relation to matters entrusted to other branches of Government.
[69]
It is not for the court to second-guess the administrative entity
that must take the necessary decision. In the circumstances,
the
Constitutional Court held that a decision by an administrative entity
will only be reviewable on the grounds of unreasonableness
if it
could be shown that it was not one that another reasonable
decision-maker could have arrived at.  This is a stringent
test,
requiring a fairly high hurdle to be surmounted.
[61]
In
Bato
Star
,
the Court further pointed out that the task of allocating fishing
quotas is a difficult one “
intimately
connected with complex policy decisions”
which
require on-going supervision and management by departmental
decision-makers who are experts in the field.
[70]
In evaluating the facts before it the Court was of the view that
although the Chief Director’s allocation may not have
been the
“
best
decision”
in
the circumstances, it could not be said that it did not attempt to
strike a reasonable equilibrium between the principles and
objectives
set out in the Act, in the context of the relevant circumstances
pertaining to the deep-sea hake trawling sector.
In the result,
the Court was of the view that the decision could not be reviewed on
the grounds that it was unreasonable ie on
the basis that it was not
a decision which could have been arrived at by any other reasonable
decision-maker.
[62]
In their submissions in this matter, the applicants seek to prove
that the science behind the respondents’ decision ie
the
various studies to which I have referred to, which underpin the
annual reports of the SWG groups between 2012 and 2015, was
wrong and
that in the circumstances, the restrictive conditions which were
imposed were unreasonable.  Although there is some
merit in
certain of these submissions (for example, the arguments made by
Lamberth in regard to by-catch as constituting a substantial
portion
of the gill-net catch when in fact, on his own studies, it was less
than 5% and closer to 1-3%), it cannot, in my view,
be said that the
reliance by the respondents on such studies was unreasonable to the
point where no other reasonable decision-maker
would have relied on
such studies or would have arrived at the same decision as they did,
based on such studies.
[63]
I am unable to find on the material which is before me that the
imposition of the restrictive condition in the permits and
interim
relief exemptions, was wrong, as a matter of science, as there are
conflicting opinions by the various scientists and I
cannot find that
on this basis it was unreasonable ie not a condition which another
reasonable decision-maker could and would have
imposed in the
circumstances.
[64]
However, as far as the rationality review is concerned, the matter is
somewhat more complex.
Rationality
[65]
In
Pharmaceutical
Manufacturers
[71]
the Constitutional Court held that it is a requirement of the rule of
law that the exercise of public power by State functionaries
should
not be arbitrary.  In the result, decisions made by such
functionaries must be rationally related to the purpose for
which
such power was given, otherwise they will, in effect, be arbitrary
and irrational.  In order to pass constitutional
muster the
exercise of any public power by State functionaries must comply with
this “
minimum
threshold”
rationality
requirement.
[72]
Whether
a decision is rationally related to the purpose for which a power was
given, calls for an objective enquiry.
If the decision which is
subject to scrutiny meets the objective requirements of rationality,
a court cannot interfere with it
simply because it disagrees with it
or considers that the power was exercised inappropriately.
[73]
The application of an objective test ensures that decisions which are
objectively irrational do not “
pass
muster”
simply
because the person who took such decisions “
mistakenly
and in good faith”
believed
them to be rational.
[74]
[66]
In determining whether a decision is objectively rational, the court
is not to consider whether an alternative or better means
could have
been employed to achieve the desired end, nor can the Court interfere
merely because it considers the decision to be
wrong or considers
that a different outcome would have been better or preferable.
[75]
Thus, assessing rationality is not to be equated with testing for the
“
reasonableness,
fairness or appropriateness”
of
a decision.
[76]
A
rationality enquiry is thus a “
less
stringent test”
than
reasonableness.
[77]
In
assessing whether the decision in question was taken rationally, the
court must be careful not to descend down the “
slippery
path”
that
leads it inadvertently into assessing whether the decision was one
which the court considers to be reasonable. As has been
explained:
“
Rationality
entails that the decision is founded upon reason – in
contradiction to one that is arbitrary – which is
different to
whether it was reasonably made”
.
[78]
All that is thus required is a rational connection between the power
which was exercised and the decision which was made.
[79]
[67]
In
Calibre
Clinical Consultants
,
[80]
the Supreme Court of Appeal held that:
“
In
the ordinary meaning of the term a decision is “rationally”
connected (to the purpose for which it was taken) if
it is connected
by reason as opposed to being arbitrary or capricious”
.
[68]
To satisfy this rational connection requirement, there must be a
“
rationally
objective basis justifying”
the
conduct or decision in question.
[81]
[69]
In
DA
v President of the Republic of South Africa
,
[82]
the Constitutional Court expanded on the nature of the enquiry which
the court must conduct in a rationality review.  It held
that
such an exercise is concerned with an evaluation of the relationship
between the means and the ends ie the relationship, connection
or
link between the means employed to achieve a particular purpose on
the one hand, and the purpose or end itself.
[83]
In evaluating the means selected, the court must therefore inevitably
evaluate the process by which the decision in question
was arrived at
and must consider whether it was a rational process, and it is not
confined to considering whether only the end
ie the decision itself
is rational.
[84]
In the
circumstances, in evaluating and considering the means used for
achieving the purpose for which the power was conferred,
the court
must assess all the steps that were taken as part of the process in
order to achieve the relevant purpose:
“
The
means for achieving the purpose for which the power was conferred
must include everything that he had done to achieve the purpose.

Not only the decision employed to achieve the purpose, but also
everything done in the process of taking that decision constitutes

means towards the attainment of the purpose for which the power was
conferred”
.
[85]
[70]
As part of the exercise therefore, the court must inevitably consider
whether the steps in the process which was undertaken,
were
rationally related to the end sought to be achieved and if not,
whether the absence of a connection between a particular step
(which
was part of the means employed) was so unrelated to the end as to
taint the whole process with irrationality.
[86]
[71]
The Court held further that if there was a failure to have regard for
relevant material in arriving at a decision, such a failure
would
constitute part of the means utilised to achieve the purpose for
which the power was conferred and if such failure had an
impact on
the rationality of the entire process, then the final decision “
may
be rendered irrational and invalid by the irrationality of the
process as a whole”
.
[87]
The analysis thus involves a three-stage enquiry, in which the
following questions are posed:
(i)
Were the facts which were ignored relevant?
(ii)
Was the failure to consider the material concerned rationally related
to the purpose for which the
power was conferred?
(iii)
If not, was the ignoring of the relevant information or material of a
kind which “
coloured”
the
entire process with irrationality and thereby rendered the final
decision irrational?
[88]
[72]
The only functionary who sought to explain why the restrictive
conditions excluding applicants from fishing in Zone B were
imposed
was Tanci, the then Deputy-Director: Line and Natural Fisheries
Management of the Department of Agriculture, Forestry and
Fishing.
As I have pointed out above, in imposing the condition, he had regard
to a single document ie the SWG report of
Tarr for 2012-2013.
If one reads between the lines in the voluminous affidavits filed on
behalf of the respondents, it is
apparent that the other
functionaries who imposed the self-same condition from 2006 onwards,
as well as after Tanci ie between
2014 and 2016, also relied
principally on the recommendations of the SWG reports in doing so, as
these formed the underlying basis
for the TAC and TAE which was set
each year.  As was pointed out above, the 2012-2013 report
relied in turn on the findings
and recommendations of 4 marine
studies conducted by Hutchings and Lamberth between 1998 and 2001,
and it openly lamented the lack
of up-to-date information.  The
subsequent SWG reports for 2013-2014 and 2014-2015, largely
constituted a copy and paste of
the contents of the 2012-2013 report
and all again pointed to the lack of available up-to-date
information.  The selfsame
studies informed the setting of the
TAC and TAE by the Minister in terms of s 14 of the MLRA in 2001, and
notwithstanding the provisions
of s 18(6) of the Act which
provide that the Minister may extend the validity of any rights or
permits issued provided he
has regard for any changes in the annual
TAC or TAE, it is apparent that the limitations on the number of
rights-holders for the
Langebaan lagoon as set in 2001 by the
Minister, were simply applied, as they were, from 2001 onwards, every
year that the permits
and exepmtions were extended without any
attempt to obtain and to have regard for up-to-date information, and
without any up-to-date
re-assessment of the fish stocks and the
biological and conservation considerations pertaining to any impact
or target species,
or the fishery by-catch.
[73]
Tanci, Mkefe and Lamberth pointed out that the exclusion of human
activities from Zones B and C, was motivated principally
by the need
to protect birds (ie  migrant waders) during the feeding season
and the sandbanks where such birds and seagrass
beds were to be
found, rather than the fish in the lagoon. Lamberth said that it was
only “
later
” research which found,
co-incidentally, that the zonal demarcation also resulted in the
protection of deep-water species
such as white stumpnose which
spawned in Zone B and, in his view, the current zonal
demarcations thus accorded with the objectives
of a MPA.  As the
applicants rightly point out, by referring to this
ex post facto
justification the respondents seek to elevate a happy coincidence to
being one of the reasons why they imposed the restrictive
condition,
when it never was.
[74]
The applicants rightly point out that in their own 4 studies
Hutchings and Lamberth identified similar limitations in regard
to
the scientific data which was available to them at the time.
So, in the study entitled “
By-Catch
and Gill Net and Beach-Seine Fisheries in the Western Cape”
,
[89]
the authors pointed out that although reductions in the numbers and
mean size of species targeted by the gill-net fishery were
often as a
result of intrusive fishing pressure, the evidence before them was
not conclusive because the “
size-specific
spatial restrictions”
they
observed could simply be related to “
natural
distribution patterns”
.
They pointed out that the occurrence of particularly large harders in
the Langebaan lagoon was not a recent phenomenon and
even 200 years
ago when Dutch colonists caught these fish in the lagoon, they were
larger than those caught elsewhere along the
West Coast, such as in
Table Bay. Thus the increased size could be related to the increased
availability of food and the relatively
higher water temperature in
the lagoon which allowed for faster growth of the species.  And
it must be noted that already
in this report, Lamberth pointed out
that netfishers could rightly claim an historical traditional right
to fish commercially with
nets on the lagoon and  a
‘co-management’ initiative to reduce by-catch was
“
clearly
going to be better than confrontation”
.
[75]
In a related study entitled “
Catch
and Effort Estimates for Gill Net and Beach-Seine Fisheries in the
Western Cape”
,
[90]
Lamberth stated that a “
once-off
survey”
of
the kind he had engaged in could only provide data on the fishery “
at
one point in time”,
as
catch composition could vary from year to year, and catch-and-effort
estimates arrived at during the study could thus only describe
the
fishery as it had been during the study period ie 1998-1999.
[76]
In the third study, “
Socio-Economic
Characteristics of Gill Net and Beach-Seine Fishers in the Western
Cape”
[91]
Lamberth advised that in order to reduce effort in the fishery
equitably, current and potential new permit holders should be
assessed
on an “
individual
merit”
basis
and in this regard, a number of factors should be taken into account
including proof of past involvement in the fishery, an
economic need
to fish regularly and the financial means to afford the capital
outlay.  In this study he ultimately based his
conclusion that
the harder stock in the lagoon was “
regionally
over-exploited”,
on
lower catch rates, smaller average size (which, on his own
understanding, could well be ascribed to environmental and other
factors) and unspecified ‘historical and anecdotal’
evidence.
[77]
It is, of course, obvious that if one closes off an area which is
home to certain fish or animal species, thereby preventing
such fish
or animals from being caught or hunted, their numbers will increase,
and as they will inevitably live longer because
they will not be
caught or hunted, their size-frequency distribution, to use the
jargon in the studies, will increase. It does
not need an expert to
point this out, as it is a matter of common sense. Put simply, if a
complete ban on fishing was imposed on
the entire Langebaan lagoon,
there can be little doubt that this would result in an improvement in
fish numbers and sizes.
But in exercising the powers they have
in this regard in terms of the MLRA, the Minister and other
departmental functionaries who
must determine whether or not to grant
rights to fish in terms of permits or exemptions, are not required to
have sole regard for
the imperatives of ecological conservation at
the expense of all the other considerations listed in the Act.
Whilst it is
so that the preamble to the Act declares that its
purpose is to provide for the conservation of the marine eco-system,
it also
provides, at the same time, for the “
long-term
sustainable utilisation”
of
marine living resources as well as the “
orderly
access to exploitation, utilisation and protection”
of
such resources and to these ends, to allow for the exercise of
control over such resources “
in
a fair and equitable manner to the benefit of all the citizens of
South Africa”,
[92]
and one of the important objectives which is emphasised both in s 2
as well as s 18(5) of the Act, is the need to transform
the
industry by re-structuring it in order to address historical
imbalances and to achieve equity within all branches of the fishing

industry.  In
Bato
Star
,
[93]
both O’Regan J and Ngcobo J (as he then was) emphasised how
important transformation was in the proper implementation of
the Act
by the relevant functionaries.  The importance of transformation
was also highlighted in each of the various fishing
policies referred
to above, including the 2005 Net-fishing Policy, as well as the SSF
Policy which was published in 2012.
The latter provided, as one
of its principal objectives, for the promotion of “
equitable
access to and benefits from marine living resources taking the
historical background of the fishers into account”
.
[94]
Similarly, all of these policies emphasised the need to ensure
long-term sustainable use and management of the fisheries
and
resources, and (active) development of the fisheries.  The SSF
Policy emphasised that one of its purposes was to maximise
the
benefit of marine living resources for small-scale fishing
communities in such a way as to ensure that they were the “
main
beneficiaries”
of
such resources.
[95]
The
vision outlined in the SSF Policy is of a sustainable, equitable,
small-scale fishing sector in which the “
wellbeing
and livelihood of fishing and coastal communities is secured and the
health of the marine eco-system is maintained”
.
[96]
It also recognises that in order to achieve effective transformation,
small-scale fishers need to regain their lost access
to their
traditional areas.
[97]
[78]
The data on which Tanci and others sought to rely as a basis for
imposing the restrictive condition, may have been good as
at 2001
when the Minister set the new TAE and TAC, but this does not mean
that it held good for 12-15 years thereafter.
And it must
not be forgotten that the very same data was initially used to
allow
the
applicants to fish in the restricted zone, for a number of years at
least, from 2001 until 2006, after which the self-same data
and
information was used to justify their
exclusion
.
Between 2010 and 2013 Dopolo, a marine scientist engaged in research
specific to the lagoon itself, built up his own dataset
in relation
to fish stocks, but by their own admission it was never taken into
account by any of the relevant Departmental functionaries,
at any
time when considering whether to extend the validity of the
applicants’ permits and interim relief exemptions and
to keep
imposing the restrictive condition therein.  Dr Jackson pointed
out, on her analysis of all the data, that there were
large
discrepancies between the results in the dataset of Dopolo and the
datasets on which the Department sought to rely upon religiously

between 2006 and 2012, based on the 1998-2000 Hutchings and Lamberth
studies.  Some of the differences include that according
to
Dopolo’s data, the incidental by-catch from gill-net fishing is
even lower than that estimated generally by Lamberth,
and the top
by-catch species in the lagoon (by mass) is elf, and not white
stumpnose.  In addition, Dopolo and other studies
[98]
showed that some 80 000 kgs of white stumpnose are caught
annually by recreational anglers in Zone A and Saldanha Bay,
a
vastly larger quantity of fish than what could possibly be caught by
fishermen fishing illegally in Zone B.  It is also
apparent from
their own papers that whereas the respondents claim to have been
largely driven by ecological and conservation imperatives
when
imposing the restrictive condition, they do not appear to have had
any regard for the provisions of the SSF Policy or the
imperative for
transformation emphasised in all of the various policies which were
applicable, as well as in the MLRA.  In
setting out his reasons
for imposing the restrictive conditions, Tanci simply listed a number
of conservation factors such as the
need to manage the harder
resources to ensure their recovery and their optimal sustainable
utilisation, and to uphold the integrity
of the MPA and the purposes
of the TAE first set in 2001, and to protect the Palearctic waders
and the seagrass and avoid the exploitation
of juvenile white
stumpnose by-catch, from spawning biomass caught in the deep
channels.  He does not say in his answering
affidavit that
either he or the Department gave consideration to the need to
transform the rights-holders and to give preference
to those
traditional and artisanal fishermen who had an historical claim to
the area, as required by the MLRA, and the various
policies which
were applicable.  Even the SSF Policy emphasises that the
Department is required to prioritise fishery research
and data
collection and states that all conservation and management decisions
should be based on scientific evidence after “
comprehensive
regular
assessments”.
[99]
[79]
To my mind, the respondents’ rationalisation for the imposition
of the condition restricting the applicants from fishing
in Zone B,
which is based on conservation and ecological imperatives, falls down
when one tries to reconcile it with the fact that
notwithstanding
such imperatives, the respondents had no difficulty allowing a number
of rights-holders (initially 5, now 3) who
reside in Churchaven and
Stofbergsfontein, to exercise commercial net-fishing rights in Zone B
ever since the 1990’s.
Lamberth’s explanation for
this state of affairs, is startling, to say the least.  He says
these rights-holders have
been allowed to fish in Zone B (for a
number of years) because they have addresses adjacent to the water,
and adverse environmental
impact is mitigated if fishers do not have
to travel through the waters in boats under power to access their
fish. So in essence
he is saying that by allowing the Churchaven and
Stofbergsfontein rights-holders to fish, they are protecting the
lagoon. In addition,
he claims (with a straight face?) that the
requirement of proximity has a ‘positive effect’ on
excluded fishers because
they in turn do not have to incur petrol and
other operational costs in order to be able to access their fishing
grounds.
This attempt to construe the applicants’
exclusion from the area at the expense of other fishermen as an
exercise of benevolent
protection of the applicants and the
environment is not only facile, but disingenuous.  It also makes
a mockery of the respondents’
purported reliance on
conservation and ecological imperatives as the principal reason for
why the applicants have been excluded
from fishing in Zone B.
If the exclusion was really about these conservation and ecological
imperatives, one would have
assumed that no-one would be allowed to
fish in Zone B at all.
[80]
When one steps back and considers the matter dispassionately, then
the following picture emerges, in summary. Firstly, the
imposition of
the restrictive condition in the annual extension of permits and
interim relief exemptions during the period under
review ie at least
from 2012 to 2016, appears to have been simply the result of the
mechanistic application of a policy position
adopted in 2001 without
an annual application of the mind, on an individual merit basis, in
respect of each and every one of the
applicants.  It also
appears to have been a decision which was arrived at without any
consideration for important information
that should have been
obtained and taken into account, such as up-to-date lagoon specific
detailed catch, effort and socio-economic
surveys as referred to by
the authors of the SWG reports from 2012-2014, and the Dopolo studies
which were available but which
were never had regard for, and without
due and proper regard for certain of the policies, including the SSF
Policy, and the MLRA,
which all required transformation of rights
allocations in the fishery, and which were all similarly ignored.
In allowing
certain fishermen to exercise rights in the self-same
lagoon in which it was alleged that others could not do so for
conservation
and ecological reasons, the imposition of the
restrictive condition occurred arbitrarily and irrationally.
And on the basis
of
DA v President of
the Republic of South Africa
, there
were numerous deficiencies in the steps taken to arrive at the annual
exclusion of the applicants ie in the process in terms
of which the
power in question was exercised and, to my mind, the requirements of
a rational connection between the means and the
end, were not met, in
the years under review. The repeated mechanistic reliance on outdated
datasets which predated the setting
of the 2001 TAE and TAC, and the
mechanistic repetition of the selfsame TAE and TAC for the lagoon,
for every year thereafter,
based on these outdated datasets, which
were valid only at the time, does not demonstrate the necessary
rational connection which
is required between the means and the end.
Put simply, in seeking to simply rely on outdated data which was only
valid in 2001,
to justify excluding the applicants from fishing in
Zone B from 2013 onwards, the respondents adopted, in my view,
defective means
to exercise the powers they had in terms of the MLRA.
On this ground alone, the imposition of the restrictive conditions in
the
permits and exemptions that were issued in the period under
review, falls to be set aside.
[81]
But the applicants also claim that the impact of the decisions which
were taken whereby they were excluded from fishing in
Zone B,
constitutes indirect discrimination on the grounds of race, and such
decisions are thus reviewable on this ground as well,
in terms of the
provisions of s 6(2)(a) of the Promotion of Administrative
Justice Act
[100]
read
together with the equality clause in the Constitution
[101]
and the relevant provision
[102]
of the Promotion of Equality and the Prevention of Unfair
Discrimination Act.
[103]
[82]
S 9(3) of the Constitution provides that the State may not
unfairly discriminate, either directly or indirectly, against
anyone
on a number of grounds including race.
[83]
In
Pretoria
City Council v Walker
,
[104]
the Constitutional Court was concerned with a claim of unfair racial
discrimination by a ratepayer of (then) Pretoria who lived
in an
historically white area where consumption-based tariffs for
electricity and water were levied.  He complained that the

differentiation between residents of the formerly white areas of
“
old”
Pretoria
and residents of historically black areas such as Atteridgeville and
Mamelodi constituted  unfair discrimination on
the grounds of
race, as the residents of the latter areas were charged on the basis
of a flat-rate and not on a consumption-based
tariff.  The
evidence showed that the reason for this differentiation was because
the formerly white areas had adequate facilities
and infrastructure
and were equipped with meters which could record the consumption of
water and electricity, whereas the flat-rate
which was adopted in the
two “
townships”
[105]
was a “
convenient
practical expedient”
levied
because of the non-existent or poor infrastructure, and the absence
of meters.  Langa DP (as he then was), held as follows:
“
The
fact that the differential treatment was made applicable to
geographical areas rather than to persons of a particular race may

mean that the discrimination was not direct, but it does not in my
view alter the fact that in the circumstances of the present
case it
constituted discrimination, albeit indirect, on the grounds of race.
It would be artificial to make a comparison
between an area known to
be overwhelmingly a “black area” and another known to be
overwhelmingly a “white area”,
on the grounds of
geography alone.  The effect of apartheid laws was that race and
geography were inextricably linked and
the application of a
geographical standard, although seemingly neutral, may in fact be
racially discriminatory.  In this case,
its impact was clearly
one which differentiated in substance between black residents and
white residents.  The fact that there
may have been a few black
residents in old Pretoria does not detract from this”
.
[106]
[84]
The approach which was adopted in
Walker
,
was followed by the Constitutional Court in
Mvumvu
.
[107]
The issue before the court in that matter was whether or not a cap on
the amount certain classes of passengers could claim
from the Road
Accident Fund in respect of damages arising from motor vehicle
accidents, constituted unfair discrimination on the
grounds of race.
The evidence before the court was that the vast majority of poor
people in the country were black and the
principal mode of transport
which was accessible to them was public transport in the form of
taxis and buses.  As a result,
the claim was that the relevant
provisions in the Act impacted disproportionately on black people as
opposed to whites.  The
court upheld the claim.  It found
that even though the provisions did not expressly and directly place
a limitation on claims
by black people, at a practical level the
majority of the victims affected were black and thus the provisions
in question discriminated
against black people indirectly and
unfairly, in a manner that was disproportionate to other races.
[108]
So it is the impact of the provisions in question which determines
whether the result constitutes unfair discrimination, and the

intention of the creators thereof however benevolent it may be, is of
no consequence.
[85]
In seeking to justify the applicants’ exclusion from Zone B at
the expense of the 3 resident fishermen from Churchaven
and
Stofbergsfontein, the respondents seek to rely on the provisions of
the 2005 Netfishing Policy, which provide that persons
who do not
live “
adjacent”
to the
fishing zone in respect of which they have applied for fishing
rights, should be excluded from obtaining such rights.
[109]
The policy further provides that even those who live adjacent to the
fishing zone, must have lived there for at least 4 years
before they
are entitled to apply for fishing rights.  These provisions must
be contrasted with those that stipulate that
the delegated authority
should prefer applicants who rely on net-fishing for a significant
proportion of their gross annual income.
The requirement of
residential adjacency appears, at face value, to be intended to
protect the fishery from exploitation by persons
who do not have any
immediate connection with the area, and one can understand the
objectives of such a policy, for example, in
the context of deep-sea
trawling where local fishermen need to be protected from the
rapacious exploitation of marine resources
by foreign fishing
trawlers.  However, in the context of this matter, the
provisions in question serve, perversely, to exclude
persons such as
the applicants who are historically disadvantaged black fishermen
whose ancestors used to live adjacent to the
lagoon before they were
forcibly removed from the area by the
apartheid
regime
as part of its spatial planning.  As it stands, therefore, the
impact of these provisions in the Net-fishing policy,
whilst having a
laudable intention, serves to discriminate indirectly between white
fishermen who now reside alongside Zone B at
the expense of black,
historically disadvantaged fishermen who used to live there.
Although the distinction is sought to
be made on a geographical
basis, the effect thereof is to discriminate unfairly, on a racial
basis, between white and black fishermen,
and thus on this ground too
the imposition of the restrictive condition is unfair and
unconstitutional.
Ad
the relief sought
[86]
In paragraph 5 of the Amended Notice of Motion, applicants seek an
order granting them an entitlement to fish in terms of a
“
structural”
interdict
whereby the respondents are to be directed to enter into negotiations
with the applicants in regard to the allocation
of permanent fishing
rights in the said zone, which process the court is requested to
manage and ultimately approve.  To my
mind, this is not an order
which, for a variety of reasons, the court can and should make.
In the first place, were such
an order to be granted it would
effectively override the TAC and TAE which is set from time to time
by the Minister, in respect
of the lagoon.  It is the Minister’s
function to determine and set these limits, and not the Court’s.
Secondly,
all the experts who filed reports in this matter, including
Dr Jackson (who was engaged by the applicants), agreed that the

available data justifies the protection of parts of the lagoon as a
vital refuge and breeding area for a variety of fish species,

including harder, white stumpnose and elf, and even after reviewing
Dopolo’s data, Dr Jackson was still of the view that
there was
a real danger that uncontrolled fishing in Zone B with a
spill-over into Zone C, would deplete the breeding harder
population,
and would wipe out the stock.  Both Dr Jackson and Prof Attwood
were in agreement that the current advantage given
to recreational
anglers in Zone A was unjustifiable in many respects and there
needed to be an adjustment in this regard.
As previously
pointed out, these anglers are responsible for catching in the order
of 80 000 kgs of white stumpnose (admittedly
mostly adult),
annually in Zone A, and this must surely constitute a greater mass
depletion of the species than the minimal by-catch
(between 1% and
5%) which illegal net-fishers and the Churchaven/Stofbergsfontein
commercial rights’ holders catch annually
in the form of
juvenile fish in Zone B.  Prof Atwood, who is a prominent
conservationist and marine scientist, has recommended
that the
Department of Agriculture, Forestry and Fishing and SANP, should
consider reducing the extent and catch of recreational
fishing in
Zone A in order to minimise conflict between the recreational fishers
and the net-fishers.  Atwood’s suggestion
is that
recreational fishers should be allowed to fish in Zone A only on
certain allocated days of the week or times of the day,
at certain
times of the year, whereas net-fishers should be allowed to fish in
Zone A, more often, and also at night.  Jackson
also suggests
that the current marine zoning should be reconfigured by adjusting
the position of the demarcating ‘lines’
between Zone A
and Zone B thereby reducing the area of Zone B and including
more of it in Zone A, and she also recommended
the preparation of a
fisheries’ management plan for the lagoon which would have due
and proper regard for traditional subsistence
fishermen and which
would afford less prominence to the rights of recreational anglers.
These are not waters into which a
court should venture.  In
Bato
Star
,
the Constitutional Court warned that “
the
task of allocation of fishing quotas is a difficult one, intimately
connected with complex policy decisions”
and
“
requires
ongoing supervision and management”
by
departmental decision-makers who are experts in the field
[110]
and in the judgment of the SCA,
[111]
Schutz JA held that matters such as these require judicial deference
ie “
a
judicial willingness to appreciate the legitimate and
constitutionally-ordained province of administrative agencies; (and)
to
admit the expertise of those agencies in policy-laden or
polycentric issues”
.
[112]
Any determination by the various Departments concerned as to how to
accommodate the applicants as small-scale fishers, will,
of
necessity, require a complex equilibrium to be struck between a range
of competing interests or considerations such as the ecological
and
conservation imperatives versus the requirments of sustainable
utilisation and the imperatives of transformation, and will
have to
be arrived at by persons with specific and special expertise and
experience in the field, and this process must be deferred
to by the
court lest it infringes on the separation of powers.
[113]
[87]
Finally, and most importantly, in the light of the fact that the
Department of Agriculture, Forestry and Fishing and the Department
of
Environmental Affairs, have arrived at a common understanding that
the entire lagoon is to become a no-take zone (this was to
have
happened already at the end of 2015), it would be totally
inappropriate for this court to make an order granting the applicants

some or other right to fish in Zone B.  The best that the
Court can do, with due respect and deference, is to urge those
with
the necessary expertise and skill in the Departments concerned, to
engage with the applicants, who have apparently registered
as a
small-scale fishing community in terms of the SSF Policy, with a view
to arriving at a fair and suitable accommodation in
terms of which
they are granted some rights to fish, of a sort, in such areas as the
experts may deem to be suitable, and on such
terms and conditions as
may be deemed to be appropriate in the light of the various factors
which need to be taken into account
including the applicants’
historical claim to traditional fishing rights, the imperatives of
transformation and the need
for ecological conservation whilst also
allowing for sustainable utilisation and development of the resources
concerned.
[88]
Because the application was launched in 2013, the applicants
originally sought an order setting aside the imposition of the

restrictive conditions in 2013 as well as in the years subsequent
thereto.  Part of the motivation for this was because some
of
the applicants had been charged criminally for fishing in Zone B
illegally in 2013.  Given that these criminal charges
have
subsequently been withdrawn and that the permits were subsequently
renewed, it would, in my view, be improper and entirely
inappropriate
for the court to make any order in respect of the years 2013 –
2015. The permits and exemptions for these years
have long since
expired and the relief sought in respect thereof is moot.
[89]
In the result, I make the following order:
(i)
The restrictive conditions which were imposed in the permits and
interim relief exemptions which
were granted to the applicants for
2016, restricting them from fishing in Zone B of the Langebaan lagoon
and the decisions in terms
of which such conditions were imposed, are
declared to be arbitrary and irrational and to constitute unfair
discrimination against
the applicants on the grounds of race, and
thus unconstitutional, and are reviewed and set aside;
(ii)
First, second, third and fourth respondents shall be liable jointly
and severally (the one paying the
other to be absolved) for the
applicants’ costs of suit, which costs shall include the costs
of two counsel.
________
SHER
AJ
Appearances
:
For
applicants:
Mr J Brickhill (assisted by
Mr M Bishop)
Instructed
by: Legal Resources Centre, Johannesburg (Ms L Wicomb)
For
first to fourth respondents
: Ms K
Pillay (assisted by Ms B Mthamzeli)
Instructed
by: State Attorney, Cape Town (Mr L Manuel)
For
fifth and sixth respondents
: Ms C De
Villiers
Webber
Wentzels, Cape Town (Mr M Diemont).
[1]
Named
after the Portuguese explorer, Antonio de Saldanha in 1503.
[2]
Act
58 of 1973.
[3]
In
terms of the Convention on Wetlands otherwise known as the “
Ramsar”
Convention,
because it was signed in Ramsar, Iran, in 1971.
[4]
Act
18 of 1998.
[5]
Who
are acting on behalf of the applicants.
[6]
At
para 1 of her report dated 9 August 2014.
[7]
Its scientific name is
Liza
richardsonii
.
[8]
Which
are from the Oliphants River estuary
.
[9]
Fifth
to ninth applicants, and eleventh and fourteenth applicants.
[10]
Second
to fourth
applicants,
and tenth, twelfth, thirteenth and fifteenth applicants.
[11]
State
of the Bay Report, 2013/2014 (Saldanha Bay Water Quality Trust).
[12]
Hutchings
and Lamberth “
Likely
Impacts of An Eastward Expansion of the In-shore Gill Net-fishery in
the Western Cape SA – Implications for Management”
Marine
and Freshwater Research 2003, Vol 54 p 39.
[13]
Id
.
[14]
Act
58 of 1973.
[15]
Id
.
[16]
Id
.
[17]
An
historian in the Department of Historical Studies at the University
of Cape Town.
[18]
Act
57 of 1976.
[19]
A
doctoral student in the Department of Environmental and Geographical
Science at the University of Cape Town.
[20]
Clause
10.1.2. of the Churchaven agreement.
[21]
S 29
of Act 57 of 1976.
[22]
S
14(1) and (2).
[23]
S
14(3)(a)-(b).
[24]
Act
57 of 2003.
[25]
Act
10 of 2004.
[26]
Para
5 of the Order.
[27]
Para 8.1(b).
[28]
Para 8.2(e).
[29]
GN 474 in
GG
35455
p
ublished
on 20 June 2012
.
[30]
By way of GN 750 in
GG
36675
of 17 July 2013.
[31]
Para 7.1.1.
[32]
Paras 3.1(a) – (c), and (e) – (f).
[33]
Para 5.1.1 at Part B.
[34]
Paras 5.3.1(c) and (d).
[35]
Para 5.3.1(f).
[36]
Para 1.
[37]
Para 1.1.
[38]
Para 1.2.2.
[39]
Id
.
[40]
Para 1.5(b).
[41]
Para 1.5(e).
[42]
Para 2.1(a).
[43]
Para 4.1.2.
[44]
Which
was released in August 2012.
[45]
S 43(1)(b).
[46]
S
43(1)(c).
[47]
S 43(2)(a).
[48]
Note 1
.
[49]
S
18(1).
[50]
S 18(5).
[51]
S 81(1).
[52]
S
18(6A)(b).
[53]
S 14(1).
[54]
S 14(2).
[55]
S
19.
[56]
S
19(1)(a).
[57]
S
19(1)(b).
[58]
S
19(1)(d)(i) and (ii).
[59]
S 2(e).
[60]
S 2(c).
[61]
S
2(b).
[62]
S
2(a).
[63]
S 2(j).
[64]
S
2(k) rtw (j).
[65]
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Ors
[2004] ZACC 15
;
2004
(4) SA 490
(CC).
[66]
S 2.
[67]
Para
[45], 513B-D.
[68]
Para
[48], 514H-515A.
[69]
Id
at
514G.
[70]
At
para [50], 515F.
[71]
Pharmaceutical
Manufacturers Association of SA and Ano: In re Ex Parte President of
the Republic of South Africa and Ors
[2000] ZACC 1
;
2000
(2) SA 674
(CC) at para
[85]
.
[72]
Id
paras
[85] and [90].
[73]
Id
.
[74]
Id
para
[86].
[75]
Minister
of Education, Western Cape and Ano v Beauvallon Secondary School and
Ors
2015
(2) SA 154
(SCA) para [38] at 169A, referring to
Albutt
v Centre for the Study of violence & Reconciliation & Ors
2010
(3) SA 293
(CC) at para [51].
[76]
Id
at
169D.
[77]
Ronald
Bobroff and Partners Inc v De la Guerre
2014
(3) SA 134
(CC) at para [7].
[78]
Per Nugent JA in
Minister
of Home Affairs & Ors v Scalabrini Centre & Ors
2013 (6) SA 421
(SCA)
para [65] at 439H-I, cited with approval in
National
Treasury and Ano v Kubukeli
2016
(2) SA 507
(SCA) at para [18].
[79]
Id.
[80]
Calibre
Clinical Consultants (Pty) Ltd and Ano v National Bargaining Council
for the Road Freight Industry and Ano
2010
(5) SA 457
(SCA) at para [58].
[81]
Merafong
Demarcation Forum and Ors v President of the Republic of South
Africa and Ors
[2008] ZACC 10
;
2008
(5) SA 171
(CC) at para
[63]
;
Calibre
Clinical
n
81 at para [58].
[82]
2013 (1) SA 248
(CC)
at
para [32].
[83]
Id
at
269D-E.
[84]
Id
para
[34] relying on
Albutt
n75,
para [30].
[85]
At
para [36].
[86]
Para
[37].
[87]
At
para [39].
[88]
Id
.
[89]
Published
in the Journal of Marine Science (2002).
[90]
Journal
of Marine Science (2002).
[91]
Also
published in the Journal of Marine Science in 2002.
[92]
These
purposes and objectives are expressly set out in s 2(a)-(m).
[93]
Note
65.
[94]
Para
3.2(b).
[95]
Para
3.2(f).
[96]
Para
26.
[97]
Para
4.1.2.
[98]
Such
as the various annual Saldanha State of the Bay Reports, published
between 2012-2015.
[99]
Para
5.3.1.
[100]
Act
3 of 2000.
[101]
S
9.
[102]
S
7.
[103]
Act
4 of 2000.
[104]
[1998] ZACC 1
;
1998
(2) SA 363
(CC).
[105]
As
referred to in para [24].
[106]
At
para [32], 379D-F.
[107]
Mvumvu
and Ors v Minister for Transport and Ano
2011
(2) SA 473 (CC).
[108]
Para
[29].
[109]
Para
8.1(h)
which sets out the exclusionary criteria.
[110]
Para
[50] at 515E-F.
[111]
Reported
as
Minister
of Environmental Affairs and Tourism and Ors v Phambili Fisheries
(Pty) Ltd and Ano; Minister of Environmental Affairs
and Tourism and
Ors v Bato Star Fishing (Pty) Ltd
2003
(6) SA 407
(SCA).
[112]
At
para [47].
[113]
Bato
Star
n
65, para [48].