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[2018] ZAWCHC 162
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Dyer Eiland Visserye (Pty) Ltd v Minister of Agriculture, Forestry and Fisheries and Another (11914/17) [2018] ZAWCHC 162 (13 November 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
Case
number 11914/17
In
the matter between
DYER
EILAND VISSERYE (PTY)
LTD Applicant
And
THE MINISTER OF
AGRICULTURE,
FORESTRY AND
FISHERIES First
Respondent
THE DEPUTY
DIRECTOR-GENERAL,
FISHERIES
MANAGEMENT, DEPARTMENT OF
AGRICULTURE,
FORESTRY AND FISHERIES Second
Respondent
JUDGMENT
DELIVERED ON 13 NOVEMBER 2018
THULARE
AJ
[1]
The second respondent took a decision to revoke the applicant’s
long term fishing right in the hake long-line sector.
On appeal, the
first respondent upheld the decision of the second respondent. This
is an application for an order to set aside
the decision of the first
respondent. The applicant sought an order declaring the revocation
unlawful and a declaration that the
applicant is a holder of that
right or a remittance of the appeal to the first respondent to decide
the appeal afresh.
[2] The relevant
provisions of the first respondent’s decision are couched in
the following terms:
“
3.
DECISION
3.1
In reaching my decision I have fully considered the appeal
documentation,the MLRA, the Regulations there-under, the 2005 General
Policy on the Allocation and Management of Long Term Commercial
Fishing Rights (“the General Policy”) and the 2005
Policy
on the Allocation and Management of Long Term Commercial Fishing
Rights in the Hake Longline fishing sector, the 2015 fishing
permit
conditions for Hake, Sole, Horse Mackerel and Demersal Shark and 2015
permit conditions for Hake Longline (West Coast) fishery.
3.2 I am convinced
that the arguments presented by the appellant do not warrant setting
aside of the decision of the Delegated Authority
due to the following
reasons:
(a)
…
(b)
The argument provided in paragraph 5 is not correct. The vessel “I
DO” had a valid Local Commercial License (N0.
25342) from
25/11/2014 until 17/08/2015 issued in terms of section 23 of MLRA. On
the expiration date of the vessel licence no.
25342, the appellant
applied for another Local Commercial Vessel Licence (No. 26716)
issued and valid for the period 02/09/2015
until 06/06/2016 whilst
the vessel was in Mauritius and in possession of the fishing licence
(foreign vessels) (licence no. FCF001/2015)
issued under the
Fisheries and Marine Resources Act, 2007 of Mauritius from 28 August
2015 to 25 November 2015.
(c)
The Vessel Monitoring System (“VMS”) report received from
the Department’s Compliance Unit maintains the reasons
contained in the Section28 Notice and it is evident that the vessel
“I DO” was fishing in the Mauritius waters from
31
October 2015 to 07 November 2015 having both valid South African
Local Commercial Vessel Licence and the Mauritius Foreign Fishing
Vessel Licence.
(d)
The Department is in agreement that the Port of Richards Bay is not a
fishing harbour as defined in section 27 of the MLRA,
however, the
Department contracted KwaZulu Natal Ezemvelo Wildlife to act as
Fishery Control Officers to monitor fishing activities
in the
Richards Bay area. Furthermore, in terms of the 2015 Sector permit
conditions, the appellant’s area of operation was
in the West
Coast, hence Richards Bay as a landing site does not reflect in the
permit conditions. Therefore, vessel “I DO”
did not
notify the KwaZulu Natal Ezemvelo Wildlife when it entered Richards
Bay harbour, hence it is concerning the Department
as they do not
have any records on what was on board the vessel and landed.
(e) Paragraph 4.2 of
the Sector permit conditions for 2015 states that “The Permit
Holder shall immediately cease fishing
once the full allocation as
indicated in this permit had been caught and shall hand his/her
original permit and certified copies
to an Fishery Control Officer
(FCO) for cancellation”.
The
Department has no records of neither originals nor certified copies
which were handed to the FCO for cancellation. According
to data
reports received and verified from the Department’s Chief
Directorate: Fisheries Research and Development, they confirm
the
reasons contained in the Section 28 Notice and it is evident that the
appellant exceeded their 2015 allocation in catch landings
and they
did not cease fishing once the full allocation was caught as
indicated in their permit. This has been verified against
the 2015
Total Allowable Catch (TAC) allocation issued against the 2015
permits and the catch landing signed by the Appellant and
the
authorised Department’s monitors. Dyer Eiland Visserye (Pty)
Ltd also under declared noticeable margins on their landings.
Accordingly, a fishing permit issued in terms of Section 1 of MLRA
cannot be valid for a period not exceeding a year.
(f)
Hence the fishing season for Hake Longline sector starts from 1
January to 31 December in any year and the fishing period is
also
displayed in the catch permit which was issued to the Appellant with
conditions. The Department dispute strongly that the
last two entries
in respect of landing dates of 19
th
January 2015 and 9 January 2015 were incorrect and should be excluded
on the cumulative totals. Paragraph 6.4 of the Sector permit
conditions states that “Permit holders whose vessel docks on
the 15
th
December of one year (current year) and the 15
th
of January the following year, may elect to have their entire catch
(or part thereof) deducted from their allocation of either
year,
provided that the quantum transferred between allocation years is
less than 10% of the Right Holders entire allocation in
that year.
The above mentioned landings were indeed for 2015 as it can also be
ascertained from the catch landings sheets signed
by both the Skipper
of the vessel and the Departmental monitors.
(g)
The information as listed in paragraph 10 of the General permit
conditions in respect of prescribed levies confirms that for
fish
landed levies should be paid on monthly basis. The report received
from the Department’s Finance Directorate maintains
the reasons
contained in the Section 28 Notice and proves that the appellant did
not pay Hake Longline levies from February 2015
to December 2015.
Levies for the months of February to December 2015 were only paid on
30 March 2016 and 23
rd
April 2016 and levies for the month of January 2015 are still
outstanding.
(h)
Paragraph 10.1 of the 2015 General permit conditions states, “the
Permit Holder shall pay prescribed levies for the fish
landed for the
prescribed species as stipulated in the Government Gazzette”.
Furthermore paragraph 10.2 of the General permit
conditions states
that “all levies and fees shall be paid monthly in arrears and
by the last working day of the month following
the month in which
fish was harvested.” But the appellant chose to breach the
above mentioned conditions for the whole year
(2015) in that no
single payment was done though the fish was landed several times.
(i)
Paragraph 11.1
of the 2015 General permit conditions states that: “A breach of
the provisions of the MLRA or these permit
conditions by the Permit
Holder may result in the initiation of legal proceedings (which may
include section 28 proceedings and
or criminal proceedings). A breach
includes, but is not limited to furnishing information to which the
Department is entitled,
which is not true or is not complete”
[3]
The true issue between the parties is whether the applicant had
exceeded its hake longline fishing allocation for the 2015 season.
Applicant’s case is that the landings in January 2015 (2, 9, 15
and 19 January 2015) had been allocated to the 2014 season.
Applicant’s case is that its 2015 catch, after its transfer of
its January 2015 catches to the 2014 season, amounted to only
74, 598
kilograms against an allocation of 81, 432 kilograms.
[4] The applicant, in its
grounds for review, submits that it was only when the Minister made
his decision that it became aware
of what the case against it was,
having not been informed as early as the section 28 notice. I am
unable to agree with the submission.
The relevant provisions of the
section 28 notice reads as follows:
“
NOTICE
IN TERMS OF SECTION 28 OF THE MAIRNE LIVING RESOURCES ACT, 1998 (ACT
NO. 18 OF 1998)
1.
It has come to
the Department’s attention that Dyer Eiland Visserye Ltd has
contravened section(s) 28 (1)(b) of the Marine
Living Resources Act,
1998 (Act No. 18 of 1998) (“the MLRA”) in that:
(e)
Also, the right holder contravened the 2015 permit conditions for
Hake Longline (West Coast) fishery in particular, clauses
2.1, 2.3,
4.1, 4.2, 4.3, 6.1, 6.3 and 7.2.4. In light of the above findings, it
is evident that the right holder has failed to
comply with 2015
permit conditions. This constitutes a breach of the Marine Living
Resources Act, 1998 (Act No. 18 of 1998) (“MLRA”).”
[5] The Sector Specific
Permit Conditions, Hake Longline (West Coast) fishery for the fishing
season of 2015 provides as follows
in clause 4.2:
“
4.
CATCH CONTROLS AND LIMITATIONS
4.2 The permit holder
shall immediately cease fishing once the full allocation as indicated
in this permit has been caught and shall
hand his/her original permit
and certified copies to an Fishery Control Officer (FCO) for
cancellation.”
The
section 28 notice informed the applicant that the Department’s
case against it was that it had contravened amongst others
clause 4.2
of the 2015 season permit conditions of the Hake Longline (West
Coast) Fishery in breach of the Marine Living Resources
Act, 1998
(Act No. 18 of 1998) (the MLRA).
[6] The applicant was
entitled to have the second respondent set out the allegations that
creates the basis for a section 28 notice.
The applicant was entitled
to be informed by the charges against it with precision, or at least
with a reasonable degree of clarity,
what the case is that it had to
meet – [
S v Hugo
1976 (4) SA 536
(AD) at 540E]. The
second respondent did not set out the factual considerations which
motivated him to act against the applicant
in his section 28 notice.
However, in my view, the applicant understood the substance of the
complaint. It stood the applicant
free to seek further information
and the circumstances under which the complaint was found if this was
lacking. However, the applicant
directly answered the complaint in
the following terms through its attorneys in a letter to the
Department dated 29 June 2016:
“
3.5.13
DAFF alleges numerous breaches of Dyer Eiland’s Permit
Conditions for Hake Longline (West Coast) (Section C) (“Section
C Permit Conditions”). We, accordingly, address each and every
alleged contravention thereof hereunder:
(c)
Ad Permit Condition 4.1-4.3: These Permit Conditions relate to catch
controls imposed upon a permit holder when the vessel “is
operating in terms of the provisions of this permit”. …
In respect of all catches landed by the Vessel (caught in
South
African waters) pursuant to any valid catching permit issued by DAFF
on –board the Vessel during the 2015 season, Dyer
Eiland did,
however, comply with the aforesaid permit conditions. In the
circumstances Dyer Eiland denies breaching permit conditions
4.1-4.3.”
[7] Be it as it may, in
his decision in which he revoked the fishing rights allocated to
applicant in terms of section 28 of the
MLRA, the second respondent
said the following in paragraphs 9-11.
“
9.
According to data report from Directorate Fisheries Research and
Development, the vessel “I DO” last landed Hake
for Dyer
Eiland on the 20
th
June 2015 in Gansbaai. At that time their total landings for 2015 was
138 tons which far exceeds their 2015 allocation (81.432
tons). The
fishing trip which landed fish on the 20
th
June 2015 in Gansbaai was illegal as Dyer Eiland had already landed
all their fish on the 26
th
February 2015. The amount landed by the 26
th
February 2015 was 88.7 tons which exceeds the 81. 432 tons allocated
to Dyer Eiland in 2015 fishing season. As per Section B of
fishing
permit conditions for Hake, Sole, Horse Mackerel and Demersel Shark,
clause 2.2.2 stipulates that all the Hake Longline
Permits for 2015
shall expire thereafter as the quantum of fish allocated to the
Permit Holder (as specified in Section A) was
caught in full. (See
attached 2015 Catch Landing Data for Dyer Eiland Visserye (Annexure
A).
10. In addition, the
report from Department’s Finance Directorate showed that Dyer
Eiland did not pay any Hake Longline levies
in 2015, therefore, the
appellant is in breach of the permit conditions (see attached
Annexure B).
11. Paragraph 11.1 of
the 2015 Permit Conditions for Hake, Sole, Horse Mackerel and
Demersal Shark Sectors states that:
“
A
breach of the provisions of the MLRA or these permit conditions by
the Permit Holder may result in the initiation of legal proceedings
(which may include section 28 proceedings and or criminal
proceedings). A breach includes, but is not limited to furnishing
information
to which the Department is entitled, which is not true or
is not complete”
The
arguments presented by the applicant do not change the matter that
Dyer Eiland Visserye (Pty) Ltd has breached the permit conditions
as
indicated above.”
[8] One expected of the
applicant to engage the second respondent, as applicant’s case
presented a different set of facts.
The applicant elected not to
challenge the facts upon which the second respondent’s decision
was based, and to seek the second
respondent to consider those new
and different facts. Instead, the applicant elected to raise those
alternative facts on appeal
of the decision of the second respondent,
with the first respondent. The alternative facts are set out in the
following terms in
applicant’s grounds of appeal:
“
Ad
paragraph 9 of the DDG’s Decision
…
49. The appellant
denies that it over caught and/or exceeded its total allocated
tonnage for the 2015 season. The appellant furthermore
specifically
denies the accuracy of the figures stated in paragraph 9.
50. The DDG alleges
various instances of over catching by the Appellant and relies on
Annexure A to her decision to substantiate
same. We however subit
that thefigures stated in Annexure A with respect to the nominal
weight of the hake landed, on which the
DDG purportedly relies, are
incorrect. In amplification hereof we note the following:
i. The last three
entries in Annexure A (in respect of landing dates 19 January 2015, 9
January 2015 and 2 January 2015) were allocated
to the 2014 season.
Accordingly such are to be excluded from the cumulative total of
Annexure A;
ii. The landing dated
7 February 2015 (by the MFV Amoria on the right of the Appellant)
should reflect the amount of 8943 kgs, not
9868 kgs, as alleged in
Annexure A;
iii. The landing dated
10 February 2015 ( by the Vessel on the right of the Appellant)
should reflect the amount of 8614 kgs, not
8769 kgs, as alleged in
Annexure A;
iv. The landing dated
16 February 2015 ( by the MFV Amoria on the right of the Appellant)
should reflect the amount of 7541 kgs,
not 8115 kgs, as alleged in
Annexure A;
v. The landing dated
26 February 2015 (by the Vessel on the right of the Appellant) should
reflect the amount of 8614 kgs, and not
10 909 kgs, as alleged in
Annexure A;
vi. The landing dated
6 march 2015 (by the MFV Amoria on the right of the Appellant) should
reflect the amount of 7516 kgs, and
not 11563 kgs, as alleged in
Annexure A;
vii. The landing dated
9 March 2015 (by the Vessel on the right of the Appellant) should
reflect the amount of 8614 kgs, not 10932
kgs, as alleged in Annexure
A;
vii.
The landing dated 20 June 2015 (by the Vessel on the right of the
Appellant) should reflect the amount of 23 253 kgs, not 27
633 kgs,
as alleged in Annexure A;
51.
To substantiate such submissions, annexed hereto marked “A2”
and “A3” respectively, find the Annual
Summary of
Landings in respect of MFV “Amoria” and the Vessel
submitted by the Appellant to DAFF in respect of the
2015 season. It
is noted that the figures stated in the sub-paragraphs above (in
relation to kilograms landed per trip) are recorded
therein.
52.
From annexure “A2” it is noted that the MFV “Amoria”
landed a total of 24 000,00 kgs of hake against
the hake long line
allocation of the Appellant during the 2015 season, whilst from
Annexure “A3” it is evident that
the Vessel landed a
total of 50 598, 00 kgs of hake against the hake long line allocation
of the Appellant during the 2015 season.
Cumulatively, the total
quantity of hake landed by the Appellant against its hake long line
allocation for the 2015 season amounted
to 74 598,00 kgs.
53.
The appellant was allocated a total tonnage of 81 432,00 kgs for the
2015 season. In the circumstances, the Appellant did not
over catch
during the 2015 season or exceed its allocated tonnage.”
[9]
It seems to me that the true issues between the parties were not
properly crystallised before the decision of the second respondent
was made. The facts upon which the alleged contravention of Paragraph
4.2 of the Sector permit conditions for 2015 were based were
not
disclosed in the section 28 notice by the second respondent. The true
facts upon which the second respondent based his decision
were only
put up in his section 28 decision. Having answered the notice without
that information, and noting that the facts were
untrue or that the
applicant had an adequate explanation possible to be given, the
applicant did not seek leave of the second respondent
to answer them.
The applicant did not request to be given an opportunity by the
second respondent, to deal with those facts.
[10]
In my view, it was incumbent upon the applicant to respond
specifically to the facts which it deemed untrue and the applicant
should have sought second respondent’s leave to answer the case
against it. It was only after the decision of the second
respondent
on the section 28 notice was made that the factual dispute was
properly set out by the applicant in the grounds of appeal.
The
applicant chose to challenge the correctness of the facts upon which
the second respondent based his decision, on appeal to
the first
respondent. Nevertheless, the importance of these facts must have
been apparent to the applicant and one would have expected
that any
material evidence to gainsay these facts would have been tendered to
the second respondent – [
Residents
of Joe Slovo Community v Thubelisha Homes
2010
(3) SA 454
at para 74].
[11]
In my view, it cannot be said that the second respondent made a
decision on the disputed facts that the applicant raised with
the
Department. The decision of the second respondent was made before the
applicant provided its alternative facts and obviously
those new
different facts were not considered by the second respondent in his
decision. It follows that when the matter served
before the Minister,
it could not have been a process where the Minister was engaged with
a function of correcting a factual or
legal error or clarifying or
interpreting the law applicable to the dispute between the parties as
regards the ruling of the second
respondent on that dispute. There
was simply no legal ruling on the dispute by the second respondent.
There was no intelligent
decision rendered by the second respondent
on the merits which was final such that nothing more could be
decided.
[12] The report of the
second respondent in terms of Regulation 5(3) of the Regulations
issued in terms of the MLRA, after the applicant
lodged its appeal
does not take the matter any further. Regulation 5(3) reads as
follows:
“
5.
Procedure for Appeals
(3) The appeal
contemplated in sub-regulation (2) shall be served by the appellant
on the person against whose decision the appeal
is made, and that
person shall submit a report on the appeal to the Minister within 30
days after the appeal had been served on
him or her.”
In
my view, once the applicant had filed their papers on appeal, it was
incumbent upon the second respondent to consider the grounds
of
appeal and then amongst others file a statement in response to the
appellant’s allegations. Nowhere does second respondent
set out
the issues between the parties, which were already clear and known at
the time of the compilation of the report. It does
not demonstrate
any intelligible engagement with the issues between the parties. The
report shows no understanding of the facts
and advanced no reasons to
guide the Minister in understanding why the Department arrived at the
decision it did and why that decision
was to be preferred and
accepted and the case of the applicant rejected.
[13] The report
represents a classic case of failure by a senior official of a
Department to guide a Minister on an appeal against
an administrative
decision. After seven (7) pages of writing, not a single syllable is
facile enough to convey the reasons for
the conclusion which reads:
“
3.
CONCLUSION
I
hereby confirm the reasons for my decision as contained in the letter
dated 8
th
February 2017.”
Regulation
5(3) placed a duty on the second respondent to provide the two sides
of the case in order to assist the Minister in his
consideration of
the issues presented by the Department and the appellant. The facts,
the dispute, the reasons for the Department’s
decision, the
grounds for appeal against the Department’s decision and the
arguments relating to those questions should have
been concisely
stated in the report. The second respondent had a duty to discuss and
show how the findings made were arrived at,
on what basis the rulings
were made, the errors in the applicant’s case and demonstrate
why the applicant was wrong in arguing
that the decision of the
Department was erroneous.
[14]
On the other hand, it is not sufficient for the Minister to make a
general statement that in “
reaching
my decision I have fully considered the appeal documentation.”
The record of the decision of the Minister should evidence a detailed
examination of the elements and structure of the dispute.
The process
through which the Minister separated the constituent parts of the
whole case, contrasting the striking difference between
the cases of
the Department and the appellant before him, and the reasons for the
acceptance of one case or legal argument over
another must appear
from the record. The appellant may not agree with, but should
understand why the Minister rejects the contention
that the decision
of the Department was erroneously made. There has to be a
demonstrable record that the Minister reviewed the
controlling issues
in the dispute. I am unable to find any evidence of such industry on
the record of the decision of the Minister
on appeal. I am unable to
conclude that the applicant’s case was properly considered, if
at all by the Minister.
[15]
Some of the reasons advanced by the applicant to upset the decisions
of both the Department and the Minister did not deserve
the dignity
of a comment, but for the entitlement to lawlessness which they
advocate for. The applicant appears to pride itself
and many other
rights holders in the fishing industry to conduct which in my view is
unconscionable. The poor are prosecuted in
our district courts for
theft of a tin of fish worth about R11-00. The applicant identifies
itself as a well-established business
with land and sea-based
investments worth over R65 million. When the Department and the
Minister enjoins them to declare the correct
catches and to harvest
marine living resources in line with their allocation and to pay
their levies, they claim that the Department
is biased because it is
practice in the industry not to pay levies on time or at all. The
applicant finds it acceptable that right
holders exceed their limits
of catches and are not being held to account and complains when it is
called to order. In applicant’s
world morality, accountability
and punishment is for the poor, maximizing profits and excluding loss
at all cost is business, and
government must leave business alone.
[16]
It is unclear to me what the Minister means when the Minister, after
three paragraphs of discussing the “I DO”
vessel and its
Mauritius fishing trips and landings at places other than where the
Department expected, said “
it
is concerning to the Department as they do not have any records on
what was on board the vessel and landed.”
I
do not know whether the Minister made any findings and rulings on
this question, and to what extent if any this influenced his
decision
on the appeal.
[17]
For these reasons, I make the following order:
1.
The decision of the
first respondent in which he affirms the decision of the second
respondent, is set aside.
2.
The decision of the
second respondent in which the fishing rights allocated to the
applicant in the Hake Longline Sector (HLLM00612)
was revoked, is set
aside.
3.
The matter is remitted
back to the second respondent to consider the applicant’s
answer to the allegations against it and
having regard thereto, to
make a decision afresh in terms of section 28 of the MLRA.
4.
No cost order is made.
………………………………………………
DM
THULARE
ACTING
JUDGE OF THE HIGH COURT
Counsel
Appellant: Advocate D
Melunsky
Respondent:
Advocate E De Villiers - Jansen
Instructing Attorneys
Appellant: DAWSON EDWARDS
AND ASSOCIATES
Respondent: LEON MANUEL
(STATE ATTORNEY)
JUDGMENT
READ AND DAY(S) IN COURT: 13 November 2018