WWF South Africa v Minister of Agriculture, Forestry and Fisheries and Others (11478/18) [2018] ZAWCHC 127; [2018] 4 All SA 889 (WCC); 2019 (2) SA 403 (WCC) (26 September 2018)

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[2018] ZAWCHC 127
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WWF South Africa v Minister of Agriculture, Forestry and Fisheries and Others (11478/18) [2018] ZAWCHC 127; [2018] 4 All SA 889 (WCC); 2019 (2) SA 403 (WCC) (26 September 2018)

THE
HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION)
JUDGMENT
Case
No: 11478/18
In
the matter between
WWF
SOUTH AFRICA
APPLICANT
and
MINISTER
OF AGRICULTURE, FORESTRY AND FISHERIES
FIRST
RESPONDENT
DEPUTY
DIRECTOR GENERAL: FISHERIES MANAGEMENT BRANCH OF THE DEPARTMENT OF
AGRICULTURE, FORESTRY AND FISHERIES
SECOND
RESPONDENT
RIGHT
HOLDERS IN THE WEST COAST ROCK LOBSTER SECTOR
THIRD
AND FURTHER RESPONDENTS
SOUTH
AFRICAN SMALL-SCALE FISHERIES COLLECTIVE
AMICUS
CURIAE
Coram:
Rogers J
Heard
:
11 and 18 September 2018
Delivered:
26 September 2018
ORDER
The order of the court is as
follows:
(a) The second respondent’s
determination of the total allowable catch for West Coast Rock
Lobster for the 2017/18 fishing
season is declared to be inconsistent
with the Constitution as read with
s  2
of the
National
Environmental Management Act 107 of 1998
and
s 2
of the
Marine
Living Resources Act 18 of 1998
and is accordingly declared invalid.
(b) Save as aforesaid, the relief
sought in the notice of motion is refused.
(c) The first and second
respondents jointly and severally shall be liable for the applicant’s
costs of suit, including the
costs of two counsel.
(d) The costs awarded in terms of
(c) shall provisionally include the costs of the appearance on 11
September 2018. If the first
and second respondents wish the court to
reconsider this provisional order, they must, within two weeks of
this order, deliver
a notice to that effect setting out their
submissions as to the appropriate order, in which event the applicant
must, within one
week of delivery of the said notice, deliver their
responding submissions if any. If no such notice be delivered by the
said respondents,
the provisional order shall become final.
JUDGMENT
Rogers
J
Introduction
[1]
This case concerns the
lawfulness of the regulation of West Coast Rock Lobster (lobster) by
the Department of Agriculture, Forestry
and Fisheries (Department).
[2]
The applicant is WWF South
Africa (WWF), a non-profit organisation whose mission is to stop the
degradation of the natural environment
and to achieve harmony between
people and nature by conserving biodiversity and the sustainable use
of natural resources. The first
and second respondents are the
Minister of the Department and the Department’s Deputy Director
General: Fisheries Management
Branch (DDG).
[3]
One of the main mechanisms
for regulating lobster is the annual determination, in terms of s 14
of the Marine Living Resources
Act 18 of 1998 (MLRA), of the total
allowable catch (TAC). In accordance with s 14(2), the TAC must
be apportioned among small-scale,
recreational, local commercial and
foreign fishing respectively. The Minister’s power to determine
these matters has been
delegated to the DDG.
[4]
There are 623 right
holders for lobster in the local commercial sector and around 2000
small-scale fishers who are not right holders
but receive annual
permits. Recreational fishers can also apply for permits. These
persons are the third and further respondents.
There has been
compliance with an order for substituted service on them. There is no
lobster allocation to foreign fishers. (The
MLRA makes provision for
fishing rights to be accorded to cooperatives of small-scale fishers.
The intention is to award rights
to about 70 such cooperatives, at
which point the tonnage made available to the small-scale fishers (by
way of the so-called Interim
Relief Measure) will be redirected to
the cooperatives, but this has not yet occurred.)
[5]
The Minister and DDG
(government parties) oppose the application. None of the parties
cited as the third and further respondents
has opposed. The South
African Small-Scale Fisheries Collective (Collective) applied to join
as an amicus. The Collective’s
deponent describes the
organisation as a politically non-aligned social movement broadly
representative of small-scale fishers
in South Africa. The Collective
supported the relief claimed by WWF but wished to claim additional
relief and adduce further evidence.
[6]
WWF did not oppose the
Collective’s admission. The government parties did not object
to the Collective’s admission for
purposes of making
submissions in support of WWF’s application but opposed the
Collective’s request to adduce further
evidence and seek
additional relief. On 11 September 2018 I heard argument on the
application for admission, the Collective being
represented by a lay
person, Mr Gary Simpson.
[7]
In an ex tempore judgment
delivered on completion of argument, I admitted the Collective as an
amicus on the limited basis to which
the government parties consented
but for the rest refused its application. Apart from the fact that
the seeking of additional relief
went beyond the recognised role of
an amicus, the prompt determination of WWF’s application would
probably have been significantly
delayed by allowing the amicus to
adduce further evidence and seek additional relief. There would have
had to be proper service
on the third and further respondents. It was
not unlikely that commercial right holders would have opposed the
additional relief.
Counsel for the government parties intimated that
his clients would almost certainly have wished to file further
evidence, including
expert evidence. The speedy determination of
WWF’s application is important, since the TAC for 2018/19 is
shortly to be determined.
[8]
Following my ex tempore
judgment on the Collective’s application, the main case was
postponed to 18 September to allow the
government parties to respond
to a short supplementary affidavit filed by WWF. I shall presently
refer to the subject matter of
the supplementary affidavit. In the
intervening period the Collective was able to secure pro bono
assistance from the Cape Bar,
as a result of which Messrs Warner and
De Villiers-Jansen filed written submissions and appeared for the
Collective on 18 September.
I wish to repeat what I said at the
conclusion of argument, namely that their conduct was in the best
traditions of the bar and
their assistance much appreciated.
[9]
WWF seeks the following
substantive relief:
(a) a declaration that the TAC
for the 2017/18 season was determined at 790 tons; and that all
conduct of the Department predicated
on a TAC of more than 790 tons
be declared invalid (para 2);
(b) alternatively, and if it be
found that the TAC for the 2017/18 was determined at 1924.08 tons, an
order setting aside such determination
and declaring all conduct
based on it to be invalid (para 3);
(c) an order that, for the
2018/19 and later seasons, the government parties be ‘directed
to ensure’ that the TAC:
(i) is not determined at levels
‘beyond which the integrity of the [lobster] resource is
jeopardised’;
(ii) is consistent with South
Africa’s obligations under article 61 of the United Nations
Convention on the Law of the Sea
and the South African Development
Community Protocol on Fisheries;
(iii) ‘promotes the
continual recovery of the [lobster] resource towards achieving …
maximum sustainable yield consistent
with international best practice
and based on the best available scientific evidence in accordance
with article 61(2) of the United
Nations Convention on the Law of the
Sea’ (para 4).
[10]
The government parties
oppose the application on the following grounds:
(a) The 2017/18 TAC was
determined as 1924.08 tons, not 790 tons.
(b) The review directed at the
2017/18 determination should be dismissed, in limine, on the grounds
(i) that WWF did not exhaust
its right of internal appeal conferred by s 80 of the MLRA;
(ii) that WWF did not
institute the proceedings within the time permitted by the Promotion
of Administrative Justice Act 3
of 2000 (PAJA);
(iii) that the review is
moot because the 2017/18 season has closed and because the TAC for
that season will not affect the
TAC for the 2018/19 season.
(c) In any event, the review
should fail on its merits because the DDG’s determination was
rational and lawful.
(d) The prayers in relation to
the 2018/19 and subsequent seasons should not be entertained because
the proposed orders are too
imprecise to be enforced.
Relevant
statutory provisions
[11]
Section 24(b) of the
Constitution entitles everyone
‘
to have the
environment protected, for the benefit of present and future
generations, through reasonable legislative and other measures
that –
(i) prevent …
ecological degradation;
(ii) promote
conservation; and
(iii) secure
ecological sustainable development and use of natural resources while
promoting justifiable economic and social
development’.
[12]
An important legislative
measure enacted pursuant to s 24(2) of the Constitution is the
National Environmental Management Act 107
of 1998 (NEMA). Section
2(1) of NEMA decrees that the principles contained in that section
apply throughout South Africa to the
actions of all organs of state
that may significantly affect the environment and that they inter
alia (a) serve as guidelines
by reference to which any organ of
state must exercise any function when taking any decision in terms of
a statutory provision
concerning the protection of the environment;
and (b) guide the interpretation, administration and
implementation of laws
concerned with the protection and management
of the environment.
[13]
The principles contained
in s 2 of NEMA include the following:
·
Environmental
management must place people and their needs at the forefront of its
concern (s 2(2)).
·
Development
must be socially, environmentally and economically sustainable
(s 2(3)).
·
Sustainable
development requires the consideration of all relevant factors
(s 2(4)(a)), including
o
that
the development, use and exploitation of renewable resources do not
exceed the level beyond which their integrity is jeopardised
(para
(vi));
o
that
a risk-averse and cautious approach is applied, which takes into
account the limits of current knowledge about the consequences
of
decisions and actions (para (vii));
o
that
negative impacts on the environment and on people’s
environmental rights must be anticipated and prevented and, when
that
is not possible, minimised and remedied (para (viii)).
·
The
social, economic and environmental impacts of activities, including
disadvantages and benefits, must be considered, assessed
and
evaluated, and decisions must be appropriate in the light of such
consideration and assessment (s 2(4)(i)).
·
Decisions
must be taken in an open and transparent manner (s 2(4)(k)).
·
Global
and international responsibilities relating to the environment must
be discharged in the national interest (s 2(4)(n)).
·
The
environment is held in public trust for the people; the beneficial
use of environmental resources must serve the public interest;
and
the environment must be protected as the people’s common
heritage (s 2(4)(o)).
[14]
Section 2 of the MLRA
decrees that the Minister and any organ of state shall, in exercising
any power under the Act, have regard
to the objectives and principles
stated in the section. These objective and principles, which are
consistent with, and in part
overlap with, the Constitution and NEMA,
include:
·
the
need to achieve optimum utilisation and ecologically sustainable
development of marine living resources (para (a));
·
the
need to conserve marine living resources for both present and future
generations (para (b));
·
the
need to apply precautionary approaches in respect of the management
and development of marine living resources (para (c));
·
the
need to use marine living resources ‘to achieve economic
growth, human resource development, capacity building within

fisheries…, employment creation and a sound ecological balance
consistent with the development objective of the national
government
(para (d));
·
the
need to achieve, to the extent practicable, a ‘broad and
accountable participation’ in the decision-making processes

provided for in the Act (para (h));
·
any
relevant obligation of the national government or the Republic in
terms of any international agreement or applicable rule of

international law (para (i));
·
the
need to recognise approaches to fisheries management ‘which
contribute to food security, socio-economic development and
the
alleviation of poverty’ (para (l));
[15]
South Africa has ratified,
and is bound by, the United Nations Convention on the Law of the Sea
(Convention) and the Southern African
Development Community Protocol
on Fisheries (Protocol). Article 61 provides in relevant part as
follows:
·
South
Africa, as a coastal state, must determine the allowable catch of the
living resources in its exclusive economic zone.
·
South
Africa must, ‘taking into account the best scientific evidence
available to it’, ensure, ‘through proper
conservation
and management measures’, that the maintenance of the living
resources in its exclusive economic zone is not
endangered by
over-exploitation.
·
These
measures must also be designed to maintain or restore harvested
species at levels which can produce the maximum sustainable
yield,
‘as qualified by relevant environmental and economic factors,
including the economic needs of coastal fishing communities
and the
special requirements of developing States’.
[16]
Article 5(5) of the
Protocol repeats the second of these injunctions.
The
lobster resource
[17]
The facts and current
state of knowledge concerning the lobster resource are largely
uncontentious. The relevant information is
annually collected and
assessed by a scientific working group (SWG) established by the
Department which makes recommendations concerning
the TAC. The SWG is
a multi-stakeholder body comprising departmental scientists,
independent scientists and representatives from
the industry and
NGOs.
[18]
The SWG’s current
scientific complement comprises Prof D S Butterworth (Department
of Mathematics and Applied Mathematics,
and the Marine Resource
Assessment and Management Group (MARAM), at the University of Cape
Town (UCT)), Prof G Branch (Emeritus
Professor of Marine Biology in
the Biological Science Department at UCT), Dr A Cockroft (a scientist
from the Department) and Dr
M Bergh (a scientist with OLSPS, a
fisheries management consultancy).
[19]
They all have extensive
experience in the development of scientific and management advice for
the lobster resource. Prof Branch,
by way of example, has served on
the SWG since inception in 1997. He has an A-rating from the National
Research Foundation in recognition
of his international status as a
world leader in marine science; he was awarded the Gilchrest Gold
Medal for his lifetime contribution
to marine science; he chaired the
Access Rights Technical Group that advised on the proposed MLRA; and
was the deputy chair of
the Subsistence Fisheries Task Group that
advised on the development of policy for subsistence fishers. He is
one of four eminent
academics who have filed affidavits in support of
WWF’s application.
[20]
Lobster grows slowly. The
current size limit of 75 mm (carapace length) means that practically
all lawfully caught lobsters are
male because females do not attain
this length. Because of their slow growth, lobsters are recruited
slowly into the catchable
population.
[21]
A TAC system was first
introduced in the early 1970s. In the decades before this, lobster
was extensively fished. Annual catches
exceeding 10 000 tons
were not uncommon. With the introduction of the TAC system, the
annual catch stabilised at around 3500
to 4000 tons. Depletion of the
resource led to a significant reduction in the 1990/91 season and
again in the 1995/6 season, the
TAC for the latter season being 1500
tons, the lowest ever.
[22]
The MLRA repealed and
superseded the Sea Fishery Act 12 of 1998 with effect from 1
September 1998. Shortly before this – during
1997 – the
Department adopted an Operational Management Procedure (OMP) for
formulating the scientific recommendations with
reference to which
the TAC is determined. The OMP generates recommendations that
incorporate updated information from resource
monitoring data
according to formulae agreed in advance by scientists, managers and
stakeholders and adopted by the Department’s
Branch Fisheries
Management as the accepted management tool for the resource. The OMP
is reviewed every four years.
[23]
The Department has, in
earlier legal proceedings, said of the OMP that it was developed
because the decrease in lobster biomass
was a key management concern.
The OMP was formulated after extensive research and intensive
consultation with the industry and
other role players. The greatest
stumbling block to its acceptance was the need to sacrifice TAC in
the short term in order to
rebuild the resource. Nevertheless, the
principle of a rebuilding strategy, based on the OMP, was widely
accepted by most relevant
stakeholders.
[24]
The OMP embodies a
precautionary approach, with the focus on rebuilding the lobster
resource. The 1997 OMP set a recovery target
of 20% above the 1996
abundance level (overall biomass of the lobster resource).
[25]
The 2011 OMP targeted for
2021 a lobster resource of 35% above the 2006 level. In the legal
proceedings previously mentioned, the
Department said, with reference
to this OMP, that all four subsectors of the lobster sector had
committed to the recovery target
and had agreed to accept future TAC
recommendations directed at achieving this target. The 2011 OMP was
described as ‘empirically
based’, meaning it used data
collected from the fishery directly for calculating the TAC. There
was an ‘exceptional
circumstances’ proviso in the 2011
OMP which allowed for even more radical reductions if resource
monitoring data indicated
that abundance trends were worse than
projected. The 35% recovery target was repeated in the 2015 OMP.
[26]
The OMP constrains annual
TAC adjustments, with the result that under ordinary circumstances
management targets are met in a phased
manner. This avoids undue
disruption. Although the question is not dealt with extensively in
the evidence, it seems from the annexures
that there is a general TAC
reduction limit of 10% but this can go up to 30% under certain
conditions of poorer resource performance
and in accordance with
scientific formulae. There is also an appendix to the OMP which
allows for more substantial departures in
exceptional circumstances,
in particular where population assessments yield results appreciably
outside the range of simulated
populations and other indicative
trajectories.
[27]
The TAC is announced in
November each year. Prior to November 2011 the Department’s
practice was to follow the SWG recommendations
which were in turn
based on the OMP. In November 2011, however, the TAC was set at
2425.78 tons, which was about 6% above the OMP/SWG
recommendation.
This TAC was set on the basis that the TAC reductions needed to
achieve the recovery target of 35% would be spread
over a number of
years.
[28]
In November 2012, however,
the Department again failed to follow the OMP/SWG recommendation. The
TAC was left unchanged at 2425.78
tons, whereas the OMP/SWG
recommendation called for a 9% reduction in order to remain on track
for the 35% recovery target.
[29]
This was of concern to
WWF. A meeting with the Minister and departmental officials took
place in April 2013. WWF was considering
placing lobster on the red
list forming part of its South African Sustainable Seafood Initiative
(SSI) which started in 2004. The
SSI divides edible marine resources
into three categories: green – ‘best choice’;
orange – ‘think
twice’; red – ‘avoid’.
Following the meeting, the Minister issued a media statement saying
that the Department
had not abandoned the 2011 OMP or the 35%
recovery target and that these would be followed in setting future
TACs. For the 2014/15
season the TAC was set at 1801 tons, increased
to 1924.45 tons for the 2015/16 season
[30]
As a result of increased
illegal poaching and the continuing decline of the lobster resource,
the Department and WWF co-hosted a
number of workshops to develop
with stakeholders what was styled the Fisheries Conservation Project
(FCP). The FCP document, published
in July 2016, described a project
which was to be implemented over four years from 1 August 2016. The
FCP reflected a clear commitment
by the Department that TACs would be
set in terms of the prevailing OMP/SWG recommendations, including the
‘exceptional circumstances’
proviso.
[31]
At around the same time
MARAM prepared its updated 2016 assessment of the lobster resource.
This showed that the resource was 20%
less abundant than was thought
to have been the case the previous year. The most important lobster
region had declined by about
50%. Even if no further lawful
harvesting were permitted in this region, it was predicted to
continue in decline under the ‘central
poaching scenario’
(ie the most likely level of unlawful harvesting). The resource as a
whole was found to be 15% below the
2006 baseline abundance. Even if
the lobster fishery were closed for five years (ie if no lawful
fishing were permitted), it would
not be possible by 2021 to reach
the OMP’s recovery target, namely 35% above the 2006 level.
[32]
Accordingly, and in August
2016, the SWG, invoking the ‘exceptional circumstances’
proviso, recommended that the 2016/17
TAC be set at 1270 tons, a
reduction of 34% from the previous season’s 1924.45 tons. The
SWG also recommended that there
be an ‘effort’ reduction
by reducing the commercial season to three months. This would be
sufficient to enable the
commercial sector to harvest the reduced TAC
and was expected to assist in combatting poaching. The SWG
recommended, further, that
unless over the ensuing year strong
evidence emerged of a reduction in poaching, the 2017/18 TAC should
be reduced to 790 tons,
ie by a further 38%. Even with these
swingeing cuts, the targeted increase of 35% above the 2006 level by
2021 had to be abandoned
in favour of the more modest target of 7%
above the 2006 level.
[33]
The SWG’s
recommendation was supported by the Department’s Director:
Resources Research, Dr Kim Prochazka, and by its
Acting Chief
Director: Fisheries Research & Development, Mr Justice Matshili.
In a presentation which the Department made to
Parliament on 11
November 2016, its officials confirmed that the lobster resource was
severely depleted and that the current recovery
target for 2021
remained at 35% above the 2006 level. The presentation (which covered
hake, abalone and lobster) said that the
resources were under extreme
pressure but that with wise management something could and was being
done: ‘By implementing
resource recovery plans, we can achieve
gains that will make a significant positive contribution to food
security and alleviating
coastal poverty’. The only lobster
recovery plan of which there is evidence is the target stated in the
2015 OMP as supported
by annual SWG recommendations.
[34]
Despite these
representations to parliament, and much to WWF’s
disappointment, in November 2016 the DDG determined that the
2016/17
TAC would remain unchanged at 1924.45 tons, with no reduction in the
commercial season. On 22 November 2016 WWF lodged
an appeal to the
Minister in terms of s 80 of the MLRA. For reasons which do not
appear from the papers, the appeal was never decided.
In December
2016 WWF announced the finalisation of its SSI which placed lobster
on the red list. In January 2017 WWF, in conjunction
with other
stakeholders, called for lobster fishing to be suspended and for
right holders to be compensated by the government pending
radical
remedial action to put the resource on a sustainable path.
[35]
A full update of the
lobster resource in 2017 was not possible due to administrative
issues and problems in completing the Fisheries
Independent
Monitoring Survey (FIMS). MARAM produced biomass trajectories which
were considered by the SWG in making its recommendations
for the
2017/18 TAC. The SWG considered that there was no evidence of
resource changes that would invalidate the 2016/17 assessment.
The
SWG thus recommended that the 2017/18 TAC be set at 790 tons. This
was a reduction of 59% (the reduction would have been 38%
if the
Department had heeded the 2016/17 recommendation).
[36]
In making its
recommendation the SWG made the following points (not challenged in
the present proceedings):
(a) The lobster resource had
dropped to 1.9% of its pristine level. (‘Pristine’ refers
to the abundance the resource
would have had if lobster had never
been commercially harvested. In the case of lobster, commercial
exploitation began in around
1890.)
(b) The need to rebuild the
resource had been recognised and incorporated in all previous OMPs.
(c) In regard to the so-called
CPUE (catch per unit effort – an indirect measure of resource
abundance), the two forms of
catching ‘effort’ applicable
to lobster were considered, namely hoopnets and traps. (Small-scale
fishers generally
use hoopnets while larger fishing boats use traps.)
The available data indicated that, for hoopnets, CPUEs for two areas
remained
fairly stable while three other areas showed some
improvement. In the case of traps, a continued downward trend was
evident in
three areas while in a fourth area there had been a slight
recovery in 2016 from the 2011-2015 decline. The SWG’s
conclusion
on this aspect was:
‘
Given only
small variations in hoopnet and traps CPUE in the various
Super-areas, there is thus no compelling evidence from these
updated
indices to suggest more than a very small change in resource status
since the time when the 2016 assessment was conducted.’
(d) Somatic growth rate showed no
major changes since the 2016 assessment.
(e) Poaching was one of the major
contributors to the depleted status of the resource. Poaching could
be reduced by limiting the
fishing season since lawful catching
provided ‘cover’ for unlawful poachers. If evidence were
to be forthcoming pointing
to a quantifiable reduction in current
levels of poaching, or sustained improvement in the resource, it
would be possible to consider
increasing the TAC in future years.
(f) The SWG’s poaching
estimates were based on raw poaching and policing data obtained from
the Department’s Directorate:
Compliance. The purpose of the
analysis was to confirm that the assumptions on which the 2016
recommendations were based remained
reasonable. Save for a drop in
poaching over the three-month period January-March 2016, caused by a
major policing effort which
resulted in ‘saturation coverage’
(as I understand the report, this involved a diversion of policing
effort from other
sectors), the poaching levels remained fairly
consistent. The SWG concluded:
‘
The overall
conclusion from this exercise is that there is no basis to change the
assumption made last year of future poaching continuing
at a level of
some 1475 tons in the projection period. However, for the 2016
calendar year, the total poaching was less because
of the heavier
policing overall, so that poaching for this year only was likely
about 300 tons less than this 1475 average.’
(g) The median projections
forming the basis of the 59% cut were not guaranteed to occur:
‘
They have a
wide associated band of uncertainty, such that there is about a 5%
chance that the extent of recovery shown above could
be 50% lower.
Hence, under the TAC recommended, there remains a substantial
probability that the resource abundance will decrease
further’.
(h) The uncertainties flowing
from (g) were exacerbated by the lack of comprehensive updated data.
(h) In the circumstances, the
precautionary principle mandated by the MLRA would ordinarily have
required an even more conservative
TAC (ie a cut of more than 59%)
but this was not recommended for the coming season, given that the
proposed reduction was already
severe in terms of its socio-economic
consequences.
[37]
The SWG postulated five
scenarios for the 2017/18 season (I shall call them S1 to S5):
S1
– close the fishery completely;
S2
– reduce the TAC to 790 tons as per the 2016/17
recommendation;
S3
– adjust the proposed TAC of 790 tons either up or down to
account for the lobster likely to be landed in relation to the
SWG’s
2016/17 recommended TAC of 1270 tons (the 2016/17 season had not yet
closed);
S4
– adjust the proposed TAC of 790 tons either up or down in the
light of updated poaching estimates and CPUE and somatic growth

trends;
S5
– set a TAC that ensures that the resource biomass does not
fall below the 2006 level (ie no biomass recovery, the resource

remaining at the current 1.9% of pristine).
[38]
In regard to S3 and S4,
the SWG said that the total catch for the 2016/17 season would
probably exceed the 1270 tons previously
recommended by the SWG by
about 300 tons. As against this, there was probably a 300 ton
reduction in projected poaching in the
first three months of 2016.
The increased lawful fishing and the decreased poaching would cancel
each other out, so the scenarios
fell away.
[39]
Of the remaining three
scenarios,  S5 (a TAC of 1167 tons) would yield the highest TAC
that would not conflict with the requirements
of sustainable
utilisation laid down in s 2 of the MLRA. S1 (a TAC of nil)
would yield a 2021 recovery of 26% above the 2006
level. S2 (a
TAC of 790 tons) would yield a 2021 recovery of 7% above the 2006
level, in accordance with the SWG’s 2016/17
recommendation.
[40]
The SWG regarded S1 as
unacceptable ‘because of its associated high negative
socio-economic impact’. The SWG also
regarded S5 as
unacceptable ‘as it corresponds to managing for no recovery at
all of a highly depleted resource which would
be completely contrary
to standard international norms’ and to the Department’s
policy since 1997.  The SWG
thus recommended S2 as a
‘reasonable compromise’ between the ‘two extremes’.
[41]
WWF’s application is
supported by unchallenged evidence from eminently qualified domestic
and international experts. The government
parties do not contend that
the Department’s officials charged with management of the
lobster resource are or were ignorant
of the essential propositions
asserted by the experts. Among these are:
(a) Lobster abundance has
progressively declined over the past 15 years. By 2010 it was less
than 3% of pristine and by 2016 was
around 1.9% of pristine.
(b) Under normal circumstances,
best scientific practice is to strive for a TAC that will be
equivalent to the maximum sustainable
yield (MSY), ie a yield at
which the potential population growth of the resource over a relevant
catching period balances the amount
harvested in the same period.
This allows a high economic return without diminishing the resource
in the long term. In most fisheries,
the MSY is around 40% of
pristine.
(c) Globally accepted best
practice in fisheries is thus to aim for a biomass of 40% of
pristine, and to avoid any marine living
resource falling below 20%
of pristine. Values below 10% are considered completely unacceptable.
(d) In the present case, the
lobster biomass of 1.9% is now so low that by international standards
the fishery should be closed
to allow for recovery. Although fishing
has been allowed to continue for socio-economic reasons, the resource
is at a tipping point
– complete collapse is likely unless
steps are taken to stabilise and rebuild it.
(e) So depleted is the resource
that it is eligible for inclusion in appendix I of the Convention on
International Trade in Endangered
Species, ie species that are
considered to be threatened with extinction and which may not be
traded internationally except under
very limited circumstances.
The
2017/18 TAC determination
[42]
The SWG’s
recommendations were incorporated in a departmental submission
written and signed on 14 September 2017 by Ms Wendy
West, Deputy
Director: Large Crustaceans Fisheries Management. The recommendations
were listed in paras 9.1 to 9.4. Para 9.1 recommended
a TAC of 790
tons and included an apportionment among the sector participants.
Para 9.2 recommended reducing the commercial lobster
season to three
months. It is unnecessary, for purposes of the present proceedings,
to detail the other two recommendations. Against
each recommendation
were yes/no boxes for the officials to signifiy acceptance or
rejection.
[43]
The submission wended its
way through the department. After being considered by subordinate
officials (I shall refer presently to
their views), it landed on the
desk of the DDG, Ms S Ndudane. There is some controversy as to what
her final decision was and how
she came to make it. By the time the
government parties filed their answering papers, Ms Ndudane had been
suspended on disciplinary
grounds. She refused to consult or provide
an affidavit except on conditions which were unacceptable to her
employer. There is
thus no affidavit from her to explain what she
did.
[44]
The answering papers did
not give the reasons for Ms Ndudane’s suspension. Shortly
before the application was to be heard
on 11 September 2018, WWF came
into possession of the charge sheet. WWF delivered a short affidavit
attaching it. After argument
on the Collective’s application,
the hearing was postponed to 18 September 2018 to allow the
government parties to respond.
The responding affidavit, and the
reply which it attracted, do not take the matter much further. The
fact is that by way of the
charge sheet, signed by the Department’s
Director-General on 3 September 2018, Ms Ndudane is facing 39
disciplinary charges
of a serious nature, including multiple counts
of fraud, theft, corruption, defeating the ends of justice and so
forth.
[45]
One of the charges is that
on 2 November 2017 she signed ‘falsified documents’
relating to the lobster TAC. She is alleged
to have done so
‘unlawfully and unprocedurally, and in a grossly negligent
manner’ in circumstances where she ‘very
well knew or
reasonably ought to have known’ that the documents had been
falsified. The document to which the charge refers
is Ms West’s
submission.
[46]
Another circumstance which
has occasioned confusion is that the version of the submission which
the Department supplied to WWF in
response to a request for
information in terms of the Promotion of Access to Information Act 2
of 2000 (PAIA) did not contain the
handwritten annotations made by
the various officials. The Department’s information officer
took it upon himself to cover
these up without notifying WWF. He also
failed to supply an important memorandum of 30 October 2017.
[47]
The government parties
acknowledge that this was unacceptable. In the absence of the
handwritten annotations and the memorandum,
the expurgated submission
gave a materially misleading picture, one which WWF quite
understandably presented in its founding papers.
Before the
government parties filed their answering papers, the State Attorney
furnished WWF’s attorneys with the unexpurgated
submission and
memorandum, affording WWF the chance to supplement its founding
papers, which WWF declined. What follows is a summary
of the
decision-making process as it appears from the full documentation.
[48]
The TAC recommendation
made by Ms West was supported by Mr Abongile Ngqongwa (Acting
Director: Small-Scale Fisheries Management),
Mr Asanda Njobeni
(Acting Chief Director: Marine Resources Management) and Dr Prochazka
(on behalf of Chief Director: Fisheries
Research and Development).
Additional comments from these officials included the following:
(a) Mr Ngqongwa noted that
according to estimates poaching had doubled over the past three
years. The Department needed ‘an
urgent workable strategy’
to deal with the scourge. He was doubtful that shortening the season
would help much.
(b) Mr Njobeni noted that the
Department had not done much to address poaching since the 2016/17
season and that this was exposing
it and the Minister to criticism.
(c) Dr Prochazka prepared a
memorandum which accompanied her approval, stating that Ms West’s
recommendations accorded with
those of the SWG, based on a
downwards-revised recovery plan ‘for this highly depleted
resource’. While no new assessments
had been conducted during
2017 the SWG had nevertheless inspected those data that were
available and had concluded that these ‘raised
no red flags
which would indicate that a deviation from the recommendation made
during 2016 for the 2017/18 season was required’.
[49]
Mr Thembalethu Vico, the
Acting Chief Director: Monitoring, Control and Surveillance (MCS),
did not signify ‘yes’ or
‘no’ in relation to
the four recommendations but remarked that while he supported the
shortening of the season he could
not approve a 59% reduction in the
TAC because the recommendation was made ‘in the absence of new
assessments conducted in
2017’. It may be noted here that MCS
is the directorate tasked with combating poaching. Mr Vico observed
that MCS’
personnel capacity had been significantly reduced in
the past five years. This needed urgent attention. He also noted that
MCS
was working towards developing a lobster compliance plan in
collaboration with other directorates.
[50]
Ms Sue Middleton, the
Chief Director: Fisheries Operations Support, supported the third and
fourth recommendations but indicated
neither ‘yes’ nor
‘no’ in relation to the first two. According to her note,
she supported the thinking
which underlay the first two
recommendations but believed that a 59% reduction in one season was
‘too extreme’. She
would support a revised reduction over
a longer period together with an adjusted recovery target.
[51]
On 27 October 2017, and
before Ms Ndudane’s consideration of the submission, a meeting
of the WCRL Consultative Group, convened
by the Department and
attended by Ms Ndudane, was held. Also present, at the Department’s
invitation, was Prof K Cochrane,
a professor extraordinaire in the
Department of Ichthyology and Fisheries Science at Rhodes University.
(He is one of the experts
who has filed an affidavit in support of
WWF’s application.) The Consultative Group was established
following interaction
between the Department and Prof Cochrane in
reaction to his opinion piece published in the
Cape
Times
on 26 September
2017 in which he cautioned the Department about the state of the
lobster resource, the social implications of a
further decline and
the need to ensure its recovery. (Prof Cochrane says, in his
affidavit, that after a promising start, it proved
impossible to
retain any meaningful participation by the Department and to meet
with sufficient regularity so he resigned from
the Consultative
Group.)
[52]
To return to the meeting
of 27 October 2017, Prof Cochrane opened proceedings by noting that
all participants shared the view that
the lobster fishery was ‘in
a state of social, economic and ecological crisis’ and that it
was in the interests of
all stakeholders to address the problems in
order to ensure recovery of the resource to a sustainable and
productive level.
[53]
One of the matters
discussed at the meeting was the proposed TAC. According to minutes
of the meeting, Ms Ndudane stated that while
she ‘did not
question the science’ underlying the SWG’s
recommendation, the proposed 59% reduction was not ‘addressing

the primary problem for sustainability’, which in her view was
the extent of illegal fishing. She expressed concern about
poor
compliance. The most important task was to strengthen compliance and
enforcement. Steps were being taken to ensure the ‘traceability

of catches’ so that the source of any lobster in the market
could be reliably identified. The Department would also be
introducing
improvements to the VMS (vessel monitoring system),
including VMS requirements for fishing vessels. The Department would
be enforcing
the existing regulations which confined the landing of
catches to permitted sites.
[54]
Against this background,
she announced to the meeting that she had decided that she could not
cut the TAC by the recommended 59%
‘as that would have drastic
implications for rights holders’ but that the TAC for 2017/18
would be reduced by 21.2%:
‘
She
stated that this reduction was not based on scientific advice but
would be achieved by cutting specific allocations for this
season.
The need for and extent of cuts in the future would depend on the
successes that could be achieved by [the Department]
and the
stakeholders in improving compliance and reducing illegal fishing.’
[55]
On the same day, and
presumably after this meeting, Ms Ndudane apparently considered Ms
West’s submission. Without marking
any of the yes/no boxes, she
referred her officials to the decision made during the meeting
regarding inter alia a ‘21.2%
savings of TAC’.
[56]
On 30 October 2017 Ms West
and Mr Njobeni prepared a memorandum recording that Ms Ndudane had
signed the submission but not indicated
what it was that she
approved. They asked for a clear indication of her decision.
[57]
Although the mechanism by
which the 21.2% saving was supposedly to be achieved remains obscure,
this memorandum comes closest to
providing an explanation, which is
as follows:
(a) If the TAC remained unchanged
at 1924.08 tons, the allocation of the TAC to the participants would
include 70.4 tons to nearshore
small-scale fishers and 248.7 tons to
offshore small-scale fishers (totalling 319.1 tons).
(b) The Department was in the
process of consolidating the small-scale fishers into cooperatives.
If no rights were allocated to
the cooperatives during the 2017/18
season, the 319.1 tons (amounting to 16.6% of the TAC) would be
‘uncaught’ and
thus saved.
(c) In addition, various
applicants for rights/permits who had been included in the previous
season’s allocation of 1924.08
tons had in the event been
unsuccessful. Their allocation was 88.5 tons. This potentially
boosted the ‘savings’ to
21.2%.
(d) Regarding the ‘saving’
of 88.5 tons, the authors of the memorandum said that this portion of
the TAC should be ringfenced
since the unsuccessful applicants might
succeed with appeals or exemptions.
[58]
On 2 November 2017 Ms
Ndudane re-signed the last page of the submission. Against the para
9.1 recommendation (the TAC), she marked
the ‘yes’ box
but added a contradictory handwritten note: ‘2016/17 TAC to be
implemented 1924.08 global TAC’.
[59]
The contradiction having
apparently been drawn to her attention, she again re-signed the last
page of the submission on 2 November
2017, this time marking ‘no’
against para 9.1 and adding a handwritten note: ‘2016/17 TAC
must be implemented
global 1924.08’. No reference was made to
the saving of 21.2%.
[60]
On 10 November 2017 the
Department issued a media statement announcing that the 2017/18 TAC
was 1924.08 tons and setting out the
allocation to participants. This
included the 319.1 tons for the nearshore and offshore small-scale
fishing sectors. The document
concluded with the statement that the
Department was working with various stakeholders ‘to develop a
comprehensive fishery
management plan for the lobster fishery in
order to address the existing gaps and to ensure the long-term
sustainability of the
resource’.
[61]
The government parties
have not asserted that the 319.1 tons for the nearshore and offshore
small-scale fishing sectors were not
in fact allocated and caught in
the 2017/18 season. There is no information as to whether 88.5 tons
was ringfenced for exemptions
and appeals (the published decision
does not reflect such a ringfencing) and, if so, to what extent
exemptions and appeals succeeded.
(The appeals had not been
determined when the present application was launched. According to an
order made in other proceedings
on 24 May 2018, the Minister had to
decide the appeals by 31 August 2018. If the 88.5 tons were
ringfenced, they were probably
not harvested in the 2017/18 season.)
[62]
Clarity on the supposed
21.2% saving was sought by WWF and Prof Cochrane. It was not
forthcoming. In a letter of 1 February 2018,
Prof Cochrane explained
why he was resigning from the Consultative Group. He recorded that
the official TAC announcement made no
reference to the 21.2%
reduction but that despite requests for clarification no progress had
been made on the question.
Para
2 of the notice of motion
[63]
Despite the absence of an
affidavit from Ms Ndudane, it is clear on the papers that her final
decision was to approve a TAC of 1924.08
tons allocated to
participants in accordance with the table contained in the media
release, such table corresponding with the table
in the memorandum of
30 October 2017.
[64]
It follows that the relief
claimed in para 2 of the notice of motion – namely a
declaration that the 2017/18 TAC determination
was 790 tons –
cannot be granted.
Para
3 of the notice of motion
[65]
Para 3 of the notice of
motion deals with the eventuality of a finding that the 2017/18 TAC
determination was 1924.08 tons. In that
event, WWF seeks an order
setting aside the determination and declaring all conduct predicated
on it to be invalid. In argument,
Mr Duminy SC who appeared with Ms
de Villiers for WWF, did not press for an order of invalidity in
relation to the unspecified
conduct ‘predicated on’ the
TAC determination. He also suggested a reformulation of the first
part of the prayer along
the lines that the determination be declared
to have been ‘procedurally and substantively invalid,
inconsistent with the
Department’s obligations under the
Constitution, NEMA and the MLRA, and accordingly unlawful’.
Failure
to exhaust internal remedy
[66]
It is common cause that
the TAC determination is ‘administrative action’ for
purposes of PAJA. In terms of s 7(2) of
PAJA a court may not review
administrative action unless any internal remedy provided for in any
other law has first been exhausted.
A court may, however, in
exceptional circumstances and on application by the person concerned,
exempt such person from the obligation
to exhaust the internal remedy
if the court deems this to be in the interests of justice.
[67]
The government parties
contend that WWF failed to exhaust the internal remedy provided by s
80 of the MLRA. WWF submits that the
appeal for which that section
provides is not available to a party such as WWF. In the alternative,
WWF has applied for exemption.
[68]
Section 80 of the MLRA
provides that where a decision in terms of the Act has been made
under authority delegated from the Minister,
any ‘affected
person’ appeal to the Minister. WWF submits that it is not an
‘affected person’. It is not
engaged in the fishing
industry. Its standing does not derive from any effect which the TAC
determination has on its own interests
but from s 38 of the
Constitution, more particularly the right of an organisation such as
WWF to bring proceedings in the public
interest where a fundamental
right, such as the environmental rights guaranteed by s 24, is
infringed or threatened.
[69]
WWF is not, in my opinion,
an ‘affected person’. In kindred settings, this
expression is one which has been taken to
connote a proximate rather
than a remote adverse effect on the person (
Wilson
v Zondi
1967 (4) SA
713
(N) at 718A-C;
Workmen's
Compensation Commissioner v Crawford & another
(257/1985)
[1986] ZASCA 114
(30
September 1986, unreported) pp 17-19 and cases there cited). If
WWF were an ‘affected person’, anyone would
be entitled
to exercise the right of appeal in s 80 since in a general sense
a TAC determination always implicates the environmental
rights of the
public at large. Such a wide reading, which would render the word
‘affected’ superfluous, could not have
been the
lawmaker’s intention.
[70]
It is thus unnecessary to
consider the question of exemption, save to say that I would probably
have granted it in the circumstances
of this case.
Delay
and mootness
[71]
It is convenient to take
the question of delay and mootness together. If WWF had wanted to
interdict fishing, there would have been
no point in waiting until
the season was nearly over to launch the application. However, WWF
has at no stage tried to prevent fishing.
It wishes to establish that
the TAC determination was unlawful.
[72]
If the claiming of such
relief is not barred by mootness, the application was not
unreasonably delayed. The determination was announced
on 10 November
2017. On 28 November 2017 WWF requested reasons for the decision and
lodged an application for access to information.
Ms Ndudane only
furnished her reasons on 8 March 2018. The Department only provided
access to the requested records (and then incompletely)
on 15 May
2018. The application was launched on 27 June 2018. This was slightly
more than three months after WWF became aware of
the reasons for the
determination. Although a delay of less than the 180-day period
mentioned in s 7(1) of PAJA might in particular
circumstances be
unreasonable, I do not consider that this was so here. The case
raises important issues relating to the protection
of the
environment. WWF wished inter alia to place expert evidence before
court. In addition to relief in respect of the 2017/18
determination,
WWF also sought prospective relief.
[73]
Mr Duminy submitted that
while a court might, on the basis of mootness, decline to grant
consequential relief, s 172(1)(a)
of the Constitution does not
entitle a court seized with a constitutional matter to refrain from
making a declaration of invalidity
if conduct is found to have been
inconsistent with the Constitution. I doubt the correctness of that
submission. Section 172(1)
applies to a court ‘[w]hen deciding
a constitutional matter’. Where declaratory relief is sought,
it is well recognised
that on certain grounds the court may in its
discretion decline to entertain the application on its merits. For
example, in exercises
of public power not amounting to
‘administrative action’ (and thus not governed by the
time limits in PAJA), a court
may refuse to entertain the application
because of unreasonable delay. Similarly, a court may refuse to do so
because the question
raised by the application has become moot.
[74]
I do not think that
s 172(1)(a) of the Constitution was intended to abolish these
preliminary discretionary grounds for dismissing
an application.
Where a court refuses to entertain an application because of
unreasonable delay or mootness, it is not a court
‘deciding a
constitutional matter’ within the meaning of s 172(1)(a)
because the constitutional matter is not reached.
[75]
The question of mootness
must thus be decided. In my view, the application should not be
rejected on this ground. Although a declaration
of invalidity
concerning the 2017/18 determination would not affect fishing in the
season governed by that determination, a previous
year’s
determination may be relevant to the succeeding year’s
determination. The OMP envisages forward planning. A
recommendation
in respect of the current year has regard to the previous year’s
determination and looks forward to succeeding
years. Annual
determinations do not occur in a vacuum. The OMP under ordinary
circumstances constrains a succeeding year’s
TAC within certain
limits in relation to the previous year’s TAC.
[76]
History confirms the
relevance of past determinations. In November 2011 and November 2012
the Department set the TAC at the 2010
tonnage (contrary to the
OMP/SWG recommendation of reductions). Again in November 2016 and
November 2017, the TAC was set at the
same level as in November 2015.
If one asks why the very TAC determination at issue in the present
case was set at 1924.08 tons
rather than at some other tonnage, the
answer would be that this was the previous year’s determination
and that the Department
did not wish to change it.
[77]
Apart from the prospective
significance of the 2017/18 determination, a court has a discretion
in the interests of justice to entertain
a matter, even if it is
moot. An important consideration is whether the order will have some
practical effect, either on the parties
themselves or on others.
Other relevant considerations include
the
importance of the issue, its complexity and the fullness or otherwise
of the argument advanced
(
MEC
for Education: Kwazulu-Natal & others v Pillay
[2007]
ZACC 21
;
2008 (1) SA 474
(CC) paras 32-35).
And
then there is central importance of the rule of law. In
Pheko
& others v Ekurhuleni Metropolitan Municipality
[2011]
ZACC 34
;
2012 (2) SA 598
(CC) Nkabinde J said the following (para
32):
‘
It is beyond
question that the interdictory relief sought will be of no
consequence as the applicants have already been removed
from
Bapsfontein. Although the removal has taken place, this case still
presents a live controversy regarding the lawfulness of
the eviction.
Generally, unlawful conduct is inimical to the rule of law and to the
development of a society based on dignity,
equality and freedom.
Needless to say, the applicants have an interest in the adjudication
of the constitutional issue at stake.
The matter cannot therefore be
said to be moot.’
[78]
The present case raises
important questions about alleged non-compliance by the DDG of
binding constitutional and statutory objectives
and principles in
determining the TAC of a highly depleted resource. The matter has
been fully argued. Mr Jamie SC, who appeared
with Ms Matsala for the
government parties, submitted that the court should not grant the
prospective relief sought in para 4 the
notice of motion but
acknowledged that the court’s reasoning, if it were to set
aside the 2017/18 determination, might be
important, even welcomed,
in guiding future determinations.
The
merits
[79]
I turn then to the
validity of the 2017/18 determination. I should record, at the
outset, that Mr Jamie informed me that, in the
light of the evidence
forming part of the present application, he did not feel able to
advance submissions in support of the rationality
of Ms Ndudane’s
decision. Indeed, I understood him to concede that it would not have
been rational for Ms Ndudane to have
set the TAC at a higher level
than the figure which would have arrested further decline. This was
the SWG’s scenario S5,
and would have resulted in a TAC of of
1167 tons.
[80]
Although Mr Jamie adopted
a correct and wise course, he made it clear – in response to a
question from the court – that
his was not the view of his
clients. Their view should be taken to be the one they expressed in
the opposing papers. The Acting
DDG, Mr Belemane Semoli, the
principal deponent for the government parties, asserted in his
affidavit that the suspended DDG’s
decision was ‘clearly
rational, reasonable and lawful’. He is the person who will
make the 2018/19 determination in
Ms Ndudane’s absence.
[81]
I should mention that Mr
Semoli does not provide any information about his qualifications and
expertise. He does not profess to
be able to offer expert evidence of
any relevant kind. He also does not claim personal knowledge of any
relevant facts. His affidavit
does not go beyond his interpretation
of the documents he perused.
[82]
In her reasons of 8 March
2018, Ms Ndudane highlighted six of the objectives and principles
mentioned in s 2 of the MLRA (paras
(a)-(d), (h) and (l)), and
continued (emphasis in the original):
‘
My
obligations when determining the [lobster] TAC accordingly involve a
careful balancing of the competing scientific, ecological,
economic
and social interests pertaining to the management of the South
African [lobster] industry. For example, although the narrow

biological and scientific interests may have
recommended
a reduction to the [lobster] TAC, my consultations with the
individual small-scale fishers, fishing companies and representatives

of fishing communities dependent on [lobster] (whether for fishing or
processing) confirmed that a substantial cut to the TAC (by
59%)
would result in significant job losses, laying up approximately 50%
of the [lobster] fishing fleet, and social harm.
Further, history and
previous experience has proven that TAC reductions do not aid in the
recovery of nearshore high-value resources,
such as abalone and
[lobster] and even linefishes. The substantial TAC cuts in the
abalone fishery over the past 15 years has not
assisted with the
recovery of abalone stocks…
The notion that
simply reducing TACs in the high value nearshore fisheries will
result in stock recovery cannot be supported. In
this regard, I refer
your client to my opinion piece published in the
Cape Times
shortly after my [lobster] TAC decision was published which
confirmed that the recovery of the [lobster] stocks remains my
pre-eminent
objective which will be achieved by implementing an array
of management tools, including bolstering the department’s
compliance
and enforcement strategies (as demonstrated by the recent
arrest of a number of fishery control officers who are accused of
facilitating
poaching of high-value nearshore marine living
resources).’
[83]
Although Ms Ndudane listed
some of the important objectives and principles contained in s 2 of
the MLRA, her reasons do not reflect
how she took these and the other
objectives and principles in the Constitution, NEMA and the MLRA into
account. All of the principles
and objectives in question were
binding on her. She could not ignore any of them and had to take
practical steps towards their
fulfilment (
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs
[2004] ZACC 15
;
2004
(4) SA 490
(CC) at para 40). Although the precise way in which the
principles and objectives were to be balanced and taken into account
was
a matter for her to decide, she could not do so in a way which
was arbitrary or capricious or which was not rationally connected
to
the purpose of the statutory provisions and the information before
her or in a way that was so unreasonable that no reasonable
person
could have reached the conclusion she did (s 6(2) of PAJA).
[84]
Protection, conservation
and sustainability feature directly in at least five of the MLRA’s
thirteen objectives and principles
(paras (a), (b), (e), (f) and
(g)). Conservation and sustainability are incorporated by reference
in para (i)’s requirement
that international obligations be
regarded and is inherent in para (d)’s reference to a ‘sound
ecological balance’.
These are the factors which Ms Ndudane
seemingly dismissed with the phrase ‘narrow biological and
scientific interests’.
They are anything but ‘narrow’.
They are central concerns of s 24 of the Constitution, NEMA and
the MLRA. Self-evidently
expert scientific analysis is crucial in
understanding the sustainability of a marine resource.
[85]
Furthermore, article 61 of
the Convention obliges South Africa to take into account ‘the
best scientific evidence available
to it’ in formulating
measures to ensure that the lobster resource is not endangered by
over-exploitation and is restored
to levels at which it can produce
its maximum sustainable yield (subject, in the latter respect, to
‘relevant environmental
and economic factors’). The
obligation to have regard to the best available scientific evidence
to prevent over-exploitation
is repeated in article 5(5) of the
Protocol.
[86]
The best scientific
evidence available to Ms Ndudane was the evidence summarised in the
SWG’s recommendation. The Department
itself adopted the OMP
method in 1997, and the OMP/SWG was clearly the mechanism by which
the Department was to ensure that it
regularly received the best
scientific evidence it could. The science was not questioned by any
of the officials who dealt with
the submission before it reached Ms
Ndudane. Indeed, Ms Ndudane herself did not question it. She also
made plain that the 21.2%
reduction which she mentioned at the
meeting of 23 October 2017 (but did not incorporate in her final
determination) was not based
on any science.
[87]
According to the best
scientific evidence available to Ms Ndudane, the lobster resource was
critically depleted, being at only 1.9%
of pristine. If the TAC were
set any higher than 1167 tons, the resource would be further depleted
over the ensuing season. One
can assume that Ms Ndudane and her
officials were aware that international best practice targets the
maintenance of renewable living
marine resources at 40% of pristine,
that depletion below 20% is a serious concern, and that 1.9% of
pristine is disastrous, nearing
extinction.
[88]
It appears from Ms
Ndudane’s reasons that she substantially disregarded this
evidence, and the objectives and principles to
which the evidence was
germane, in favour of socio-economic considerations. In my view, that
could not be done rationally or consistently
with the binding
objectives and principles. Although Ms Ndudane listed, among the
principles she took into account, the need to
use marine living
resources ‘to achieve economic growth, human resource
development, capacity building’ and ‘employment

creation’, none of these things is promoted by allowing an
already endangered resource to be further depleted. In the medium
to
long term, that is the path to economic contraction and the
disappearance of jobs. When the lobsters are gone, there will be
no
employment in lobster fishing and no economic returns from the
extinct resource.
[89]
The same applies to
another of the principles on which Ms Ndudane purportedly relied,
namely an approach to fisheries management
which contributes to ‘food
security, socio-economic development and the alleviation of poverty’.
The further depletion
of an already critically depleted resource
jeopardises rather than enhances food security and is the reverse of
‘development’.
[90]
As to the ‘alleviation
of poverty’, this cannot in context mean the short-term
provision of a dwindling income to a
dwindling number of fishers
competing for a dwindling population of lobsters. The Constitution
decrees that the environment must
be protected for the benefit of
present and future generations. This is echoed in s 2(4)(o) of
NEMA, which lays down the principle
that the environment is held in
public trust for the people, that the beneficial use of environmental
resources must serve the
public interest and that the environment
must be protected ‘as the people’s common heritage’.
[91]
Conservation and
sustainable development, which are placed to the fore by s 24 of
the Constitution, ss 2(3) and 2(4)(a)
of NEMA, and various
paragraphs of s 2 of the MLRA, are not only, or even primarily,
important because of the pleasure humans
derive from healthy and
biodiverse ecologies. Many people in the past, the present and the
future have depended, do depend or will
depend for their economic
welbeing on exploiting renewable resources. To enable them to do so,
and thus to preserve food security
and avoid poverty, one cannot
allow the resource of the many to be exhausted for the benefit of the
few (I speak relatively of
the ‘few’ current participants
in the lobster sector as against all of those who will come after
them).
[92]
The need to preserve
environmental resources for the benefit of future generations, often
styled ‘intergenerational equity’,
is an important
element of sustainable development (Sands
Principles
of International Environmental Law
2
ed at 253). Principle 3 of the Rio Declaration (produced at the 1992
United Conference on Environment and Development) states
that the
right to development must be fulfilled ‘so as to equitably meet
developmental and environmental needs of present
and future
generations’.
[93]
This principle should not
be viewed as a ‘luxury’, applicable only to first world
countries. Courts in developing nations
have also invoked it. By way
of example, in
State of
Himachal Pradesh v Ganesh Wood Products
314
AIR 1996
SC 149 the Supreme Court of India quashed an administrative
decision relating to the felling of khair trees
inter
alia on grounds
of
intergenerational equity:
‘
After
all, the present generation has no right to deplete all the existing
forests and leave nothing for the next and future generations.’

(This and other cases are discussed in
B J Preston
"The Role of the Judiciary in Promoting Sustainable Development:
The Experience of Asia and the Pacific"
(2005) 9(2-3)
Asia
Pacific Journal of Environmental Law
109.)
[94]
Accordingly, and assuming
it to be so that a 59% cut in the TAC would have resulted in
significant job losses and the laying up
of 50% of the fishing fleet,
the objective and principles binding on Ms Ndudane did not allow her
rationally to make the determination
she did.
[95]
The ‘consultation’
to which Ms Ndudane refers appears to have been the representations
made by the West Coast Rock Lobster
Association (WCRLA). These are
recorded in the submission prepared by Ms West. Even the WCLRA, which
understandably wished to protect
its current members’
commercial interests and was thus not an impartial commentator, did
not support an unchanged TAC. It
argued for a reduced recovery target
of 3% above the 2006 abundance level and supported a 2078/18 TAC
reduction of 21.2%. This
reduction, which did not find expression in
Ms Ndudane’s final determination, would have led to a further
depletion of the
resource during the 2017/18 season in the absence of
a very substantial improvement in the combating of poaching.
[96]
The 59% reduction proposed
by the SWG must be viewed in context. It was only this large because
the Department had in preceding
years failed to implement the phased
reductions recommended by the SWG. The reductions proposed in 2011
and 2012 were disregarded.
So was the recommended reduction of 34%
for the 2016/17 season. Despite the large single reduction which
became necessary in 2017/18
because of the DDG’s failure to
heed earlier recommendations, Ms West, Mr Ngqongwa, Mr Njobeni and Dr
Prochazka all supported
it, as did the departmental scientist, Dr
Cockroft, the chairperson of the SWG who signed its recommendation
report. Ms Middleton
did not question the scientific basis for the
recommendation but thought it was too severe as a single reduction –
that,
as I have said, is a problem of the Department’s own
making.
[97]
Ms Ndudane’s
statement that ‘history and previous experience’ prove
that TAC reductions do not aid in the recovery
of nearshore
high-value resources is a bald assertion which finds no evidential
support in the material placed before her. There
is a long history in
the Department of using TAC reductions as one mechanism for
addressing the decline in lobster abundance. There
is no evidence
that the SWG has ever regarded reductions in nearshore allocations as
being pointless or that they have ever been
asked by the Department
to consider this question.
[98]
None of the officials who
commented on the SWG’s 2017/18 recommendation said anything
along these lines. They have made short
affidavits in which they
confirm the main affidavit insofar as it relates to them. This is no
more than confirmation of the written
views they expressed on the
submission, the contents of which I have already summarised. They
have not offered any evidence in
support of Ms Ndudane’s
reasons.
[99]
In the absence of evidence
from Ms Ndudane (or someone else with knowledge) giving some
particularity as to the ‘history and
previous experience’
she had in mind, one cannot find that she acted on substantial
evidence, including the best available
scientific evidence. The
government parties cannot complain if the court attaches even less
significance than it might otherwise
have done to the DDG’s
unsubstantiated assertion, given that the Department through its
Director-General has charged her
with very serious misconduct,
including fraud, theft and organised crime relating to the
disappearance of confiscated abalone worth
R7 million.
[100]
The risk-averse and
precautionary approach mandated by NEMA and MLRA also has a bearing
on this aspect of Ms Ndudane’s reasoning.
The precautionary
principle features widely in environmental legislation around the
world. It entails that where there is a threat
of serious or
irreversible damage to a resource, the lack of full scientific
certainty should not be used as a reason for postponing
measures to
prevent environmental degradation (Jan Glazewski
Environmental
Law in South Africa
19-20;
cf
Space Securitisation
(Pty) Ltd v Trans Caledon Tunnel Authority & others
[2013] 4 All SA 624
(GSJ) paras
45-48).
[101]
The precautionary
principle is laid down in article 191(2) of the European Treaty. The
principle features in various European instruments,
including the
Regulation on the Common Fisheries Policy (CFP). The Regulation
provides that the CFP shall apply the precautionary
approach to
fisheries management and shall aim to ensure that exploitation of
living marine resources restores and maintains populations
of
harvested species above levels which can produce the maximum
sustainable yield. Article 4(8) of the Regulation states that the

precautionary principle, in relation to fisheries management,
means an approach according to
which the absence of adequate scientific information should not
justify postponing or failing to
take management measures to conserve
target species and their environment (cf
Spain
v Council
[2017]
EUECJ C-128/15).
[102]
In
114957
Canada Ltée (Spray-Tech, Société d’arrosage)
v. Hudson (Ville)
2001
SCC 40
(CanLII);
[2001] 2 S.C.R. 241
the Canadian Supreme Court said
that scholars had documented the precautionary principle’s
inclusion in virtually every recently
adopted treaty and policy
document related to the protection and preservation of the
environment, and that it is arguably now a
principle of customary
international law (para 32).
In
Castonguay Blasting Ltd
v Ontario (Environment)
2013 SCC 52
; [2013] 3 SCR 323 the same court referred to it as
an ‘emerging international
law principle’ (para 20). In
Spray-Tech
the court (para 31)
approved the following statement of the principle:
‘
In
order to achieve sustainable development, policies must be based on
the precautionary principle. Environmental measures must
anticipate,
prevent and attack the causes of environmental degradation. Where
there are threats of serious or irreversible damage,
lack of full
scientific certainty should not be used as a reason for postponing
measures to prevent environmental degradation.’
[103]
In
AP
Pollution Control Board v Prof. M V Nayudu
AIR 1999 SC 812
the Supreme Court of India reviewed the development
of the precautionary principle internationally. The court identified
inadequacies
of science as the real basis that has led to its
emergence. It is ‘based on the theory that it is better to err
on the side
of caution and prevent environmental harm which may
become irreversible’.
[104]
There is a detailed
treatment of the subject in
the
Australian case of
Telstra
Corporation Limited v Hornsby Shire Council
,228.
228
[2006] NSWLEC 133.
The court said that the principle finds
application where two conditions are satisfied, namely that the
proposed activity poses
a ‘threat of serious or irreversible
environmental damage’ and the ‘existence of scientific
uncertainty as to
the environmental damage’. If these
conditions are met, the principle is activated and there is a
‘shifting of an evidentiary
burden of showing that this threat
does not, in fact, exist or is negligible’. Furthermore,
prudence suggests that ‘some
margin for error should be
retained’ until all consequences of the activity are known.
Potential errors are ‘weighted
in favour of environmental
protection’, the object being ‘to safeguard the
ecological space or environmental room for
manoeuvre’.
[105]
Given the depleted state
of the lobster resource, its harvesting above prudent levels poses a
threat of serious or irreversible
environmental damage. If there was
scientific certainty in November 2017, it was that harvesting at a
level above the 790 tons
recommended by the SWG would cause serious
environmental harm. In that event it would have been unnecessary to
invoke the precautionary
principle since it would have been clear
that a TAC in excess of 790 tons could not lawfully be determined.
[106]
At best for the DDG, one
might say that there was scientific uncertainty as to whether
harvesting above that level would as a fact
cause serious
environmental damage. In the absence of clear evidence that
reductions in TAC do
not
assist in preventing over-exploitation of lobster, the precautionary
principle required Ms Ndudane to follow the establsished approach
in
accordance with which such reductions are an important mechanism to
combat derpletion.
[107]
I should add that, as a
matter of logic, it is difficult to understand how reductions in
lobster TAC would not contribute to arresting
or reversing
over-exploitation. Ms Ndudane’s contrary proposition would only
hold true if a reduction in TAC would be matched
by an equivalent
increase in illegal harvesting. Of that there is no evidence.
[108]
Furthermore, the
unchallenged expert evidence in the present proceedings shows that
eminent scientists consider TAC reductions to
be important in
preventing over-exploitation of lobster. All of them regard Ms
Ndudane’s failure to set a substantially lower
TAC as
completely unacceptable. I have already mentioned the credentials of
Prof Branch and Prof Cochrane. Another of the experts
is Prof
A E Punt, the South African-born director of the School of
Aquatic and Fishery Sciences at the University Washington,
Seattle.
He has been involved in stock assessment and fisheries management for
more than 30 years. This has included critical reviews
of aspects of
South African renewable marine assessments and projections. He has
extensive experience in the assessment and management
of renewable
marine resources, including lobster resources.  His colleague
from the same university, Dr A M Parma,
has for many years
served as an external expert in many of the technical reviews of the
methodologies used to evaluate and manage
our country’s marine
resources. She states that the methods used by the SWG to assess the
status of the lobster resource
and its future projections conform to
international best practice and provide a robust scientific basis to
recommend catch limits.
[109]
The precautionary
principle also disposes of Mr Vico’s rejection of the SWG’s
recommendation on the ground that it was
‘made in the absence
of new assessments conducted in 2017’. The absence of the
relevant data is attributable to failings
in the Department. The
precautionary principle fully supported the SWG’s approach of
doing the best it could, extrapolating
the 2016 data with the use of
such further information as was available to it. The DDG could not
rationally reject this approach
on the basis of a lack of scientific
certainty.
[110]
There is also an important
procedural dimension. Section 2 of the MLRA states that a
decision-maker must have regard to the need
to achieve to the extent
practicable ‘a broad and accountable participation’ in
the decision-making process. This important
principle is negated
where the decision-maker snatches an apparently new point of her own
out of the blue, without its having been
dealt with by the SWG or put
to stakeholders for comment.
[111]
Even if Ms Ndudane’s
observation had merit, it appears to have been confined to nearshore
resources, which is decidedly the
smaller part of the total TAC. The
lobster TAC distinguishes between nearshore and offshore allocations.
In the 2017/18 TAC, the
offshore allocations amounted to at least
1243.5 tons, about 65% of the total TAC.
[112]
Ms Ndudane said that the
notion that stock recovery would not be achieved by ‘simply
reducing TACs’ may be true but
that it is an important
mechanism in the armoury of fishing authorities is not, on the
evidence, contestable. Nobody has suggested
that tackling poaching is
not also important. The SWG recognised this in its 2016 and 2017
recommendations.
[113]
Ms Ndudane spoke of
achieving recovery of the lobster resource ‘by implementing an
array of management tools’, inter
alia by ‘bolstering the
department’s compliance and enforcement strategies’. That
the Department should do so
cannot be doubted. It is distressing not
only to lawful fishers but to the public at large to find that
unlawful catching exceeds
the lawful TAC. However, a TAC
determination must be based on the best evidence, including
scientific evidence, available. If a
TAC is to be determined on the
assumption that unlawful catching in the forthcoming season will be
reduced, those involved in the
decision-making process need to know
(a) the mechanisms by which poaching will be reduced; (b) the
likelihood of those
mechanisms being in place and successful; (c) the
sustainability of the mechanisms; and (d) the projected quantum
of
the reduction in poaching.
[114]
Ms Ndudane’s
statements in this regard are vague. There is no evidence before
court on any of the matters mentioned in the
preceding paragraph or
that Ms Ndudane even applied her mind to them. It does not seem that
they were placed before the SWG for
consideration or that they were
known to the officials who dealt with the submission:
(a) Mr Ngqongwa said that the
Department needed an urgent workable strategy to deal with poaching
and was doubtful whether shortening
the season would help. He was
evidently unaware of the existence of a ‘workable strategy’.
(b) Mr Njobeni commented that the
Department had not done much to address poaching since the 2016/17
season, which was exposing
the Department and the Minister to
criticism. It is clear that he too did not know anything about
feasible plans to reduce poaching.
(c) Mr Vico, whose MCS
directorate is directly tasked with the combating of poaching,
complained that MCS’ personnel had been
significantly reduced
over the preceding five years and that the reopening of posts
required ‘urgent attention’. He
said that MCS was working
towards developing a compliance plan but there is no evidence as to
what the plan was and whether it
was in place when Ms Ndudane made
her decision. It is not without significance that of the officials
who dealt with the submission
prior to its reaching Ms Ndudane, only
Mr Vico has not made a confirmatory affidavit. He has not provided
any evidence of MCS’s
anti-poaching plans. This may be
attributable to the fact that, according to the disciplinary charge
sheet against Ms Ndudane,
he is implicated with her in the
disappearance of confiscated abalone worth R7 million.
[115]
When resigning from the
Consultative Group on 1 February 2018, Prof Cochrane commented on Ms
Ndudane’s view that the primary
problem for sustainability was
the level of illegal fishing and that it was important to strengthen
compliance and enforcement.
He commented on this as follows:
‘
This could be
sufficient justification for not reducing the TAC, but only if [the
Department] intended and was able to reduce illegal
fishing
sufficiently during the current season. As far as I am aware, there
have been no new or strengthened measures put in place
that can be
expected to have reduced illegal fishing sufficiently during the
season to ensure that the overall fishing mortality
would have been
sustainable. I am aware of efforts, initiated by WWF, to work with
[the Department] to secure external support
to assist in
strengthening enforcement but those are still at a very early and
still tenuous stage and, even if successful, would
not be able to
make any difference during the remainder of the season.
As a part of the
efforts to reduce illegal fishing, it was agreed that a special
[lobster] compliance group would be set up and
should meet as soon as
possible. To the best of my knowledge that has not happened during
the last three months.’
Regarding
the statement in the TAC announcement to the effect that the
Department was working with various stakeholders to develop
a
comprehensive fishery management plan, Prof Cochrane observed:
‘
Unless [the
Department] has been working with another group on this plan, that
too has not been taken any further than the statement
in the TAC
announcement, despite the urgent need to rectify the existing
weaknesses in management that are threatening the sustainability
of
this valuable resource.’
[116]
Again the precautionary
principle finds application. A decision-maker should not refrain from
taking a measure such as reducing
the lobster TAC on the strength of
vague and unquantified prospective steps against poaching.
[117]
In summary, I find that
the 2017/18 TAC determination of 1924.08 tons was unlawful for the
following reasons:
(a) Ms Ndudane failed to have
regard to mandatory objectives and principles concerning the need for
lobster to be protected from
over-exploitation and for the
exploitation of lobster to be ecologically sustainable.
(b) She failed to have regard to
South Africa’s international obligations under the Convention
and Protocol. In particular,
she disregarded the best scientific
evidence available to her in setting the TAC, which was an important
measure (i) for ensuring
that the lobster resource, which had
already become endangered by over-exploitation, was not further
endangered, and (ii) for ensuring
the restoration of lobster towards
its maximum sustainable yield.
(c) She erred in law in
considering that the mandatory objectives and principles concerning
economic growth, human resource development,
socio-economic
development and the alleviation of poverty were inconsistent with,
and overrode, the objectives and principles mentioned
in (a) and (b).
(d) An important reason on which
she relied, namely the supposed fact that TAC reductions do not aid
in the recovery of nearshore
high-value resources such as lobster,
was not rationally connected to the information before her,
disregarded the best scientific
evidence and was at odds with the
precautionary principle.
(e) Another important reason on
which she relied, namely a supposed prospective reduction of illegal
exploitation through management
tools such as bolstering the
Department’s compliance and enforcement strategies, was not
rationally connected to the information
before her, disregarded the
best scientific evidence and was at odds with the precautionary
principle. In particular, she did not
have reasonable grounds for
believing that in the forthcoming season management tools would be
implemented which would have an
appreciable effect on the level of
poaching which the SWG predicted and which her officials did not
contest.
(f) In relying on the matters
mentioned in (d) and (e) without having placed them, and any evidence
on which they were based, before
the SWG, her officials and other
stakeholders, she disregarded the binding principle of the need to
achieve, to the extent practicable,
a broad and accountable
participation in the TAC’s determination.
(g) In setting the TAC at the
previous season’s level of 1924.08 tons, rather than at a level
no higher than 1167 tons, she
acted arbitrarily and irrationally,
failed to observe the mandated precautionary approach, and made a
decision which no reasonable
person could have made.
[118]
Although the DDG’s
determination must be declared invalid, there is no point in
remitting it for reconsideration. There is
also no point in
substituting a judicial determination of the correct TAC, even if
that were permissible. In giving my reasons,
I have indicated that
the DDG could not rationally have set the TAC at a level higher than
1167 tons. This would have ensured no
further decline in the resource
but would not have aided its recovery. Even a determination of 1167
tons may thus have been impeachable
on review. Much may have depended
on the reasoning on which it was based and in particular on the
decision-maker’s forward
planning. The principles and
objectives which are binding on the Department do not allow it to
manage the current lobster resource
(1.9% of pristine) in the medium
to long term on a ‘no decline no growth’ basis. And the
Department may find, if and
when future determinations are taken on
review, that a court is sceptical, particularly in the absence of
compelling evidence of
a reduction in poaching, about assertions of
phased reductions in the future. The SWG has in previous years
recommended just such
a course yet it has not been implemented.
Para
4 of the notice of motion
[119]
Para 4 the notice of
motion is forward-looking. In general terms, the principles which WWF
seeks the court to direct the government
parties to comply with are
unobjectionable because they have a statutory foundation. Para 4.1 of
the notice of motion is taken
from s 2(4)(a)(vi) of NEMA. Para
4.2 is effectively a reminder to the government parties of their
obligations under article
61 of the Convention and their obligation,
in terms of s 2(4)(n) of NEMA and s 2(i) of the MLRA, to
have regard, when
making decisions under the MLRA, to South Africa’s
obligations under the Convention. Para 4.3 mirrors part of article
61(3)
of the Convention.
[120]
It is not appropriate, in
my view, for a court to order a public body in general terms to heed
principles and objectives by which
the body is in any event bound by
statute. The government parties have not disputed that article 61 of
the Convention embodies
an international obligation by which South
Africa is bound. Another objection to para 4 is that the objectives
and principles identified
therein are only a few of many. All of them
have to be heeded.
[121]
Furthermore, the
principles and objectives which are the subject of para 4 are stated
in broad and imprecise terms. There is a big
difference between a
judicial order, the violation of which exposes a decision-maker to a
charge of contempt, and a retrospective
assessment of whether a
decision-maker, in reaching a particular decision, violated or
misunderstood the statutory principles and
objectives by which he or
she was bound. A judicial order must be sufficiently precise for the
bound party to know whether any
particular act will or will not
violate the order.
[122]
While some TAC
determinations might fall clearly on one side or the other of the
line, others may be more contentious. This is where
precision in the
order is most important (cf
Minister
of Water and Environmental Affairs v Kloof Conservancy
[2015]
ZASCA 177
;
[2016] 1 All SA 676
(SCA) paras 13-14 and 18-19). Even
where the evidence available to the decision-maker is clear, it may
be difficult for him or
her to know whether a particular TAC
determination will ‘jeopardise’ the integrity of the
lobster resource. Where the
resource is already known to be
critically depleted, would a determination that arrests decline but
does nothing to rebuild the
resource ‘jeopardise’ its
integrity? If so, how much growth would have to be targeted in the
year under consideration
to avoid ‘jeopardising’ the
resource’s integrity? Similar questions could be asked in
relation to the objectives
and principles contained in article 61 of
the Convention. How these and other mandatory objective and
principles are achieved is
a matter for the government to determine.
They do not all have to be achieved, in fact most of them cannot be
achieved, by way
of a single decision. Various permutations are
possible in medium to long term planning.
[123]
I thus do not think that
it would be helpful or appropriate to make the principles contained
in para 4 the notice of motion the
subject of the judicial decree. On
the other hand, my reasons for finding the 2017/18 determination to
be invalid may, I hope,
give some guidance to the Department in
making future determinations. This was one of my reasons for
entertaining the review even
though, from the point of view of
catching, the matter has become moot.
Conclusion
[124]
WWF has been substantially
successful in the litigation and is entitled to its costs, including
those of two counsel.
[125]
Counsel did not address me
on the costs of the appearances on 11 September 2018. But for the
filing of WWF’s late affidavit,
argument in the main case could
have proceeded immediately after I gave my ex tempore judgment on the
Collective’s application.
In that event, however, argument on
the main case might have extended into a second day, whereas on 18
September argument was completed
in a single day. The proceedings on
11 September 2018 were not entirely wasted because the amicus’
application was disposed
of. Both WWF and the government parties were
entitled to be represented through counsel at the hearing of the
amicus’ application.
Although WWF’s late affidavit was
the cause of the main case not proceeding on 11 September, the
affidavit, given its nature,
could not have been filed earlier.
[126]
I thus consider that the
costs of 11 September 2018 should be treated as costs in the cause
and that WWF’s costs in respect
of that day should be included
in the costs awarded to it. However, and because this question was
not addressed in argument, I
shall make my order on this aspect
provisional.
[127]
In conclusion, I should
mention that the additional issues which the Collective wished to
raise will be important if, as seems inevitable,
there are to be
substantial reductions in the TAC. The Collective, while agreeing
that the 2017/18 TAC should have been reduced
to 790 tons, contends
that the 554.4 tons apportioned to them in the 2017/18 TAC of 1924.08
tons should not be reduced by more
than 2.5% and that the use of
mechanised traps should immediately be suspended until such time as
the lobster biomass recovers
above 20% of pristine.
[128]
The Collective alleges
that over many decades the lobster resource was depleted by
commercial operators using mechanised traps.
Due to previous
discrimination, small-scale fishers using hoopnets only began to be
accommodated in the formal fishing sector from
around the year 2000.
It is not fair, in their view, that they should suffer reductions in
equal measure with those who, according
to them, have enjoyed the
resource for far longer and been responsible for a greater part of
the depletion.
[129]
While these contentions
appear to have force, the commercial right holders using mechanised
traps have not been heard in response
to the Collective’s
allegations. The right holders who catch from large vessels
presumably employ indigent persons from coastal
communities.
[130]
Once it is accepted that
the TAC will need to be substantially reduced, the way it is
allocated among participants engages objectives
and principles in
NEMA and the MLRA which do not bear directly on the determination of
the global TAC and which I have thus not
had occasion to discuss. I
have in mind those objectives and principles concerned with the needs
of persons disadvantaged by unfair
discrimination and past prejudice
and with the need to ensure equitable access to environmental
resources. Intergenerational equity
may also play a role.
[131]
The following order is
thus made:
(a) The second respondent’s
determination of the total allowable catch for West Coast Rock
Lobster for the 2017/18 fishing
season is declared to be inconsistent
with the Constitution as read with
s  2
of the
National
Environmental Management Act 107 of 1998
and
s 2
of the Marine
Living Resources Act 18 of 1998 and is accordingly declared invalid.
(b) Save as aforesaid, the relief
sought in the notice of motion is refused.
(c) The first and second
respondents jointly and severally shall be liable for the applicant’s
costs of suit, including the
costs of two counsel.
(d) The costs awarded in terms of
(c) shall provisionally include the costs of the appearance on 11
September 2018. If the first
and second respondents wish the court to
reconsider this provisional order, they must, within two weeks of
this order, deliver
a notice to that effect setting out their
submissions as to the appropriate order, in which event the applicant
must, within one
week of delivery of the said notice, deliver their
responding submissions if any. If no such notice be delivered by the
said respondents,
the provisional order shall become final.
______________________
O L
Rogers J
APPEARANCES
For
Appellant
W
Duminy SC (with him C de Villiers)
Instructed
by
Webber
Wentzel, Cape Town.
For
1
st
and 2
nd
Respondents
I
Jamie SC (with him R
Matsala
)
Instructed
by
The
State Attorney, Cape Town
For
Amicus
K
Warner and E de Villiers-Jansen