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[2012] ZASCA 35
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Oceana Group Ltd and Another v Minister of Water & Environmental Affairs and Others (507/11) [2012] ZASCA 35; [2012] 2 All SA 602 (SCA) (29 March 2012)
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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no: 507/11
Reportable
OCEANA
GROUP LIMITED
…..............................................................................
1
st
Appellant
BLUE
CONTINENT PRODUCTS (PTY) LTD
…...................................................
2
nd
Appellant
and
THE
MINISTER OF WATER AND ENVIRONMENTAL AFFAIRS
…................
1
st
Respondent
THE DEPUTY
DIRECTOR-GENERAL: MARINE AND
COASTAL
MANAGEMENT, DEPARTMENT OF WATER
AND
ENVIRONMENTAL AFFAIRS
…............................................................
2
nd
Respondent
THE
MINISTER OF TRADE AND INDUSTRY
…..............................................
3
rd
Respondent
THE
MINISTER OF AGRICULTURE, FISHERIES AND FORESTRY
….........
4
th
Respondent
Neutral
citation:
Oceana Group Ltd v Minister of Water &
Environmental Affairs
(507/11)
[2012] ZASCA 35
(29 March 2012)
Bench
NAVSA, VAN HEERDEN, MHLANTLA, LEACH and WALLIS JJA
Heard
: 1 MARCH 2012
Delivered
: 29 MARCH 2012
Corrected
:
Summary
:
Challenge to policy to be applied in the assessment of applications
for the transfer of commercial fishing rights in terms of
s 21 of the
Marine Living Resources Act 18 of 1998 (MLRA) – contention that
the policy was unlawful because it failed strictly
to apply the
Broad-Based Black Economic Empowerment Act 53 of 2003 (BBBEE)
rejected – held that there was no relevant code
of good
practice issued in terms of the BBBEE Act to be applied – held
further that policy not in conflict with objectives
of the MLRA –
held that impugned parts of policy not ultra vires the MLRA.
_______________________________________________________________________
ORDER
_______________________________________________________________________
On
appeal from
:
Western Cape High Court, Cape
Town (Cleaver J sitting as
court of
first instance):
The appeal is dismissed with costs including the costs attendant on
the employment of two counsel.
_______________________________________________________________________
JUDGMENT
_______________________________________________________________________
NAVSA JA (VAN HEERDEN, MHLANTLA, LEACH and WALLIS JJA concurring):
[1] This is an appeal against a judgment of the Western Cape High
Court (Cleaver J), in terms of which an application by the first
and
second appellants, Oceana Group Limited (Oceana) and Blue Continent
Products (Pty) Ltd (BCP), challenging the legality of a
policy
presently administered by the fourth respondent, the Minister of
Agriculture, Fisheries and Forestry, was dismissed with
costs,
including the costs of two counsel. The appeal is before us with the
leave of that court and was heard on the same day as
a case in which
the legality of the same policy was challenged on similar grounds.
1
The one difference is that in the present appeal, an additional
ground, based on the provisions of the Broad-Based Black Economic
Empowerment Act 53 of 2003 (the BBBEE Act), was added to the attack
on the policy. Where necessary, I will refer to the judgment
in that
case as
Foodcorp
.
[2] The policy in question is entitled ‘Policy for the Transfer
of Commercial Fishing Rights’ (the TP) and was published
on 31
July 2009
2
by the Minister previously responsible for the fishing industry,
namely the first respondent, the Minister of Water and Environmental
Affairs. Because of governmental re-organisation the TP is now
administered by the fourth respondent. The Minister of Trade and
Industry was cited in the court below because he is the responsible
minister in terms of the BBBEE Act, but he took no active part
in the
litigation.
[3] The fourth respondent (the Minister) and the second respondent,
the Deputy Director-General of Water and Environmental Affairs:
Marine and Coastal Management, defended the TP, both in the court
below and before us. Thus, they and the appellants are the contesting
parties.
The background
[4] Oceana is a public company listed on the Johannesburg Securities
Exchange and the Namibian Stock Exchange and is a leading
role player
in the South African fishing industry. Oceana catches, processes and
markets a variety of fish species through a number
of its operating
subsidiaries.
[5] BCP is a wholly-owned subsidiary of Oceana and is the holder of
commercial fishing rights, authorizing it to catch fish in
the hake
and deep sea trawl, horse mackerel, squid and hake longline
fisheries. Other subsidiaries of Oceana were also granted
commercial
fishing rights in various fisheries. All of these rights were
‘long-term’ rights allocated in terms of s
18 of the
Marine Living Resources Act 18 of 1998 (MLRA). The long-term fishing
rights allocation process followed on earlier annual
and thereafter
medium-term rights allocation processes.
[6] Following the granting of long-term fishing rights, various
parties made application to transfer commercial fishing rights,
including BCP. In the application in the court below Oceana and BCP
complained that, from January 2006, applications for the transfer
of
commercial fishing rights have not been processed or finalised by the
Department under the control of the Minister. According
to Oceana and
BCP this failure on the part of the Department has had a damaging
impact on its ability optimally to conduct its
business. Oceana and
BCP surmised that the failure to process applications for the
transfer of commercial rights was due mainly
to the fact that the TP
had not yet been finalised.
[7] As stated above, the TP was published on 31 July 2009. Oceana and
BCP took the view that the TP was unlawful and should be
reviewed and
set aside. Hence the application in the court below for an order in
those terms, notwithstanding that decisions in
several applications
by BCP for the transfer of commercial fishing rights were still
pending. An application for the transfer of
commercial fishing rights
is required to be submitted to the Minister in terms of s 21 of the
MLRA, the provisions of which will
be dealt with in due course. The
TP sets out the Minister’s and her Department’s policy to
be applied when applications
are made for the transfer of fishing
rights.
[8] The principal line of attack on the TP was that it fails to
properly apply the strategy and codes provided for by the BBBEE
Act.
In short, the complaint was that the TP defines transformation on a
narrow basis, taking into account only ownership and management
control of entities under consideration. It was contended that the
elements of employment equity, skills development, preferential
procurement, enterprise development and socio-economic development
initiatives, catered for in the BBBEE Act and codes, were wrongly
excluded from the Department’s assessment of transformation in
applying the TP. It was submitted that the application of
the BBBEE
codes was obligatory and that the TP was consequently unlawful for
failure to apply the codes.
[9] Furthermore, Oceana and BCP took the view that the TP was
unlawful in that it failed to take proper account of the broad
principles
and objectives of the MLRA. It was contended that the TP
misconstrued transformation. It was submitted that in terms of para
4.1
of the TP, the focus, was, once again, wrongly on the degree of
black ownership and management. Those criteria were too narrow and
neither consonant with the developmental objectives of the MLRA, nor
in line with its other purpose, namely, to create employment
opportunities. Other paragraphs of the TP were similarly criticised.
[10] Additionally, it was submitted, as in
Foodcorp
, that
paras 6.2 and 6.3 of the TP, requiring approval for the sale of
shares resulting in a change of control of entities, or resulting
in
entities not being as transformed as at the date of allocation of
long-term fishing rights, were ultra vires the provisions
of the
MLRA. It was contended that ministerial approval was required only in
the circumscribed situation referred to in s 21(2)
which provides:
‘
(2) An
application to transfer a commercial fishing right or a part thereof
shall be submitted to the Minister in the manner that
the Minister
may determine, and subject to the provisions of this Act and any
applicable regulation, the Minister may, in writing,
approve the
transfer of the right or a part thereof.’
[11] Oceana and BCP took the view that there was no basis upon which
a change in the transformation status of a holder of long-term
fishing rights could properly be regarded as a transfer of a fishing
right within the meaning of s 21(2). It was submitted that,
in
effect, the Minister and her Department were seeking to impose new
conditions on rights holders.
The judgment of the High Court
[12] The court below had regard to the specific provisions of the
BBBEE Act. It considered s 9 of that Act, the relevant parts
of which
provide:
‘
9
Codes of good practice
(1) In order to promote the
purposes of the Act, the Minister may by notice in the
Gazette
issue codes of good practice on
black economic empowerment that may include–
(a)
the further
interpretation and definition of broad-based black economic
empowerment and the interpretation and definition of different
categories of black empowerment entities;
(b)
qualification
criteria for preferential purposes for procurement and other economic
activities;
(c)
indicators to measure
broad-based black economic empowerment;
(d)
the weighting to be
attached to broad-based black economic empowerment indicators
referred to in paragraph
(c)
;
(e)
guidelines for
stakeholders in the relevant sectors of the economy to draw up
transformation charters for their sector; and
(f)
any other matter
necessary to achieve the objectives of this Act.
(2) A strategy issued by the
Minister in terms of section 11 must be taken into account in
preparing any code of good practice.
(3) A code of good practice
issued in terms of subsection (1) may specify –
(a)
targets consistent
with the objectives of this Act; and
(b)
the period within
which those targets must be achieved.
(4) In order to promote the
achievement of equality of women, as provided for in section 9(2) of
the Constitution, a code of good
practice issued in terms of
subsection (1) and any targets specified in a code of good practice
in terms of subsection (3), may
distinguish between black men and
black women.’
[13] Section 11 of the BBBEE Act obliges the responsible Minister to
issue a strategy for broad-based black economic empowerment.
Section
11(2) states that the strategy must provide an integrated,
coordinated and uniform approach to broad-based black economic
empowerment by all organs of state, public entities, the private
sector, non-governmental organisations, local communities and
other
stakeholders. Such strategy was published by the Minister in March
2003. In terms of the strategy, government is committed
to using a
‘balanced scorecard’ to measure progress made in
achieving black economic empowerment. The core components
are listed
as being, first, direct empowerment through ownership and control of
enterprises and assets; second, human resource
development and
employment equity, indirect empowerment through preferential
procurement and enterprise development. Oceana and
BCP complain that
the strategy is being thwarted by the application of the TP because
of the narrow focus on ownership and management
control. It is common
cause that codes of good practice have been promulgated in terms of s
9 of the BBBEE Act. The primary questions
facing the court below were
whether the codes apply in the present circumstances and whether
Oceana and BCP’s reliance on
the BBBEE Act is justified.
[14] Cleaver J considered s 10
(a)
of BBBEE Act, which was the
focal point of Oceana and BCP’s case, and which reads as
follows:
‘
10
Status of codes of good practice
Every organ of state and public
entity
must
take into account and, as far as
is reasonably possible, apply
any
relevant code
of good
practice issued in terms of this Act in –
(a)
determining
qualification criteria for the issuing of licences, concessions or
other authorisations in terms of any law’.
(Emphasis added.)
[15] The court below then turned its attention to para 3 of the Codes
of Good Practice (the Codes):
‘
3
Application of the Codes
3.1 The following entities are
measurable under the Codes:
3.1.1 all public entities listed
in schedule 2 or schedule 3 (Parts A and C) of the Public Finance
Management Act;
3.1.2 any public entity listed
in schedule 3 (Parts B and D) which are trading entities which
undertake any business with any organ
of state, public entity or any
other Enterprise, and
3.1.3
any enterprise that
undertakes any business with any organ of state or public entity;
3.1.4 any other enterprise that
undertakes any business, whether direct or indirect, with any entity
that is subject to measurement
under paragraph 3.1.1 to 3.1.3 and
which is seeking to establish its own B-BBEE compliance.’
(Emphasis added.)
[16] Cleaver J concluded that Oceana and BCP were measurable entities
in terms of para 3.1 and fell within the category set out
in 3.1.3 of
the Codes. His reason for doing so is set out in para 19 of the
judgment:
‘
In my
view it would be wrong to adopt a narrow interpretation of the phrase
in question and that the word “business”
should be given
a wide and general import. The applicants undertake commercial
fishing which is controlled and regulated by the
Minister by means of
the MLRA. They do so in terms of permits issued to them which contain
conditions determined by the Minister
and for which fees are
extracted. In a broader sense they are, I consider, conducting
business with an organ of the state in that
the particular organ
controls their commercial activities by means of granting them a
right to do so. Clearly the Minister and
the Department held the same
view when the Transfer Policy was published.’
[17] The court below dealt with the criticism by Oceana and BCP, that
the TP does not make provision for the proper application
of the
Codes. Cleaver J went on to note that clause 2.10 of the Transfer
Policy expressly provides that the Department will also
employ the
Codes and that s 10 of the BBBEE Act provides that the Codes are to
be applied ‘where reasonably possible’.
Notwithstanding
the conclusion referred to in the preceding paragraph, the court
below accepted the reasons provided by the Minister
and the
Department as to why the strict application of the Codes to the
exclusion of any other criteria in assessing the transfer
of rights
would lead to serious practical problems. He went on to list the
reasons supplied by the Minister for not strictly applying
the Codes
in the fishing industry. These appear in para 30 of the judgment of
the court below. For present purposes it is not necessary
to repeat
them. On this point Cleaver J concluded as follows:
‘
Since
the Transfer Policy gave effect to the need to transform the fishing
industry as emphasised in
Bato
Star
and
since the policy is being applied for the limited life of the
licences granted, I am of the view that the reasons advanced by
the
respondent for not applying the codes to the exclusion of ownership
and management control establish that it would not be reasonably
possible for the codes to be applied. To hold otherwise would in all
probability undermine the [long-term rights allocation and
management] process and the progress made to date with transformation
and create new and difficult practical problems. It may be
that when
new licences come to be issued again in due course, the fishing
industry will have been sufficiently transformed to allow
the codes
to take pride of place, but time will tell.’
[18] Turning to the contention on behalf of Oceana and BCP that the
TP is inconsistent with the MLRA because it has a much narrower
focus, the court below concluded that the TP did not preclude the
decision–maker from taking into consideration factors such
as
employment and sustainable development. Cleaver J held that Oceana
and BCP failed to establish that the TP is inconsistent with
the
MLRA. The court below rejected the submission on behalf of Oceana and
BCP that the TP constituted administrative action. It
held that the
TP was national policy formulated by the Minister acting on behalf of
the government and that it was thus excluded
from the ambit of
Promotion of Administrative Justice Act 3 of 2000 (PAJA). The court
below dealt very briefly with the contention
that particularly paras
6.2 and 6.3 were ultra vires the MLRA. Cleaver J took the view that
the applications by BCP for the transfer
of commercial fishing rights
had not been decided, but in any event that the TP had to be applied
flexibly and that the application
had been brought prematurely and on
abstract basis. As stated above the application was refused with
costs including the costs
of two counsel.
[19] It is against the aforesaid conclusions and order that Oceana
and BCP presently appeal.
Conclusions
[20] Section 2 of the MLRA reads as follows:
‘
2
Objectives and principles
The Minister and any organ of
state shall in exercising any power under this Act, have regard to
the following objectives and principles:
(a)
The need to achieve
optimum utilisation and ecologically sustainable development of
marine living resources;
(b)
the need to conserve
marine living resources for both present and future generations;
(c)
the need to apply
precautionary approaches in respect of the management and development
of marine living resources;
(d)
the need to utilise
marine living resources to achieve economic growth, human resource
development, capacity building within fisheries
and mariculture
branches, employment creation and a sound ecological balance
consistent with the development objectives of the
national
government;
(e)
the need to protect
the ecosystem as a whole, including species which are not targeted
for exploitation;
(f)
the need to preserve
marine biodiversity;
(g)
the need to minimise
marine pollution;
(h)
the need to achieve
to the extent practicable a broad and accountable participation in
the decision-making processes provided for
in this Act;
(i)
any relevant
obligation of the national government or the Republic in terms of any
international agreement or applicable rule of
international law; and
(j)
the need to
restructure the fishing industry to address historical imbalances and
to achieve equity within all branches of the
fishing industry.’
[21] In their founding affidavit in the court below, Oceana and BCP
rightly point out that the commencement of the MLRA was a watershed
moment in the South African fishing industry. As stated by the
Constitutional Court in
Bato Star Fishing (Pty) Ltd v Minister of
Environmental Affairs and Tourism & others
2004 (4) SA 490
(CC),
3
the MLRA was founded on the need both to preserve marine resources
and to transform the fishing industry so as to ensure equal
access to
economic opportunities. On the first aspect, the MLRA enables the
Minister, in order to guard against over-exploitation
of fish stocks,
to determine annually the total allowable catch (TAC) – the
maximum quantity of fish available during each
fishing season to be
allocated to recreational, subsistence, commercial and foreign
fishing. The TAC is determined following a
scientific assessment of
the strength of marine resources and is based on sustainable levels
of exploitation. On the second aspect,
s 2
(j)
of the MLRA, set
out in the preceding paragraph, is significant.
[22] One of the main uses of marine living resources covered by the
MLRA, which was the focus of the application in the court below
and
the present appeal, is commercial fishing. Section 18(1) of the MLRA
provides that no person shall undertake commercial fishing
unless a
right to do so has been granted. Section 18(2) of the MLRA dictates
that applications for the grant of commercial fishing
rights are to
be submitted to the Minister or a delegated authority in the
prescribed form. Section 18(5) is important and reinforces
what is
set out in s 2
(j)
of the MLRA. It reads as follows:
‘
(5) In
granting any right referred to in subsection (1), the Minister shall,
in order to achieve the objectives contemplated in
section 2, have
particular regard to the need to permit new entrants, particularly
those from historically disadvantaged sectors
of society.’
Section 18(6) provides that fishing rights shall be valid for a
period determined by the Minister which shall not exceed 15 years.
[23] Section 13(1) of the MLRA provides that no person shall exercise
a right granted in terms of s 18 of the MLRA unless an annual
permit
has been issued to that person by the Minister.
[24] Section 21(1) and (2) provide:
‘
(1)
Subject to the provisions of this Act, a commercial fishing right may
be leased, divided or otherwise transferred.
(2) An application to transfer a
commercial fishing right or a part thereof shall be submitted to the
Minister in the manner that
the Minister may determine, and subject
to the provisions of this Act and any applicable regulation, the
Minister may, in writing,
approve the transfer of the right or a part
thereof.’
[25] Section 21(3)
(b)
reads as follows:
‘
(3)
The Minister may, after consultation with the Forum, make regulations
regarding –
(a)
…
(b)
guidelines or
criteria concerning the transfer of any right of access, including
determining limits on the transfer of rights between
holders of such
rights on a temporary basis’.
It is common cause that no such regulations have been made. Instead,
the TP has been employed to deal with the transfer of fishing
rights
and related matters.
[26] The following are the relevant paragraphs of the TP:
Paragraph 1.4:
‘
The
transfer of fishing rights is dealt with in terms of section 21(2) of
the MLRA, which provides that fishing rights may be transferred,
if
an application therefor has been made to the Minister, and is subject
to the approval and conditions that the Minister (or his/her
delegate) may determine. This policy sets out the principles that
will govern the transfer of fishing rights.’
Paragraph 2.9:
‘
For
the purposes of a transfer of a commercial fishing right the level of
transformation will be assessed on the basis of ownership
and
management control.’
Paragraph 4.1:
‘
There
are two broad principles that will be considered in the assessment of
applications for the transfer of fishing rights. First,
whether the
transfer will lead to a consolidation of Right Holders and effort in
the sector. Second, the degree to which the transformation
of the
transferee and the black ownership of the total allowable catch (TAC)
and total allowable effort (TAE) will change should
the transfer be
approved. Consideration should also be given to policy regarding
multi-sector involvement and monopolies.’
Paragraph 5.1:
‘
An
application for a transfer of a commercial fishing right to a current
Right Holder in the same sector of the fishing industry
as the
transferor, will be favourably considered if:
the transferee is at least as
transformed as the transferor;
has access to a suitable
fishing vessel that is already in the fishing sector;
has invested in the fishing
industry;
the transferee, its controlling
shareholders or members have not been convicted of an offence under
the MLRA, the Prevention of
Corruption Act, 1992 (Act No 94 of
1992), the Prevention and Combating of Corrupt Activities Act, 2004
(Act No 12 of 2004), the
Prevention of Organised Crime Act, 1998
(Act No 121 of 1998) or any offence involving dishonesty;
has a valid tax clearance
certificate;
is not in arrears with any
levies, licence fees or other payments, catch returns or other
documentation required by the Department
in terms of the applicable
permit conditions.’
Paragraphs 6.1, 6.2 and 6.3:
‘
6.1
The alienation of shares/member’s interest in right holding
entities for purposes of the MLRA may require a transfer of
a right.
6.2 Approval for transfer of a
right is not required if the sale of shares/member’s interest
does not result in change in
control of the company or close
corporation and the company/close corporation remains at least as
transformed as at allocation
of the long-term right. The Right Holder
(except in the case of a public company) will still be required to
complete a form informing
the Department so that the change in
shareholding/member’s interest can be recorded.
6.3 If the sale of
shares/member’s interest results in change of control of the
company/close corporation or results in the
company/close corporation
not being as transformed as at date of allocation of the long-term
right an application for transfer
of the right is required and the
following will be considered:
The change in
shareholding/member’s interest relating to race and gender in
the right holding entity;
The number (percentage) of
share/member’s interest to be sold;
Whether the entity or person
acquiring the shares/member’s interest is an existing Right
Holder in the fishing industry
and if so, in which sector;
The investment of the
transferee entity or person acquiring the shares/member’s
interest in the fishing industry;
The fishing performance of the
entity or person acquiring the shares/member’s interest;
Whether the proposed transfer
of shares/member’s interest will lead to a consolidation of
either Right Holders, or of effort;
There is evidence that the
transferee will be a “paper quota” and not become
directly involved in the catching or
processing of the fish caught.’
[27] As was noted in
Foodcorp
, the fishing rights allocation
process was guided by a document entitled ‘General Policy for
the Allocation and Management
of Long-Term Commercial Fishing Rights:
2005’ (the GP), issued by the then Department of Environmental
Affairs and Tourism.
The GP records that the MLRA requires
restructuring of the fishing industry in order to address historical
imbalances and to achieve
equity within all the branches of the
fishing industry. It recognises that transformation is a
constitutional imperative. It goes
on to state that the GP has as an
objective an improvement on the levels of transformation already
achieved The GP emphasises that
‘only quality transformation
will be recognised, that is, transformation which results in real
benefits to historically disadvantaged
persons’. According to
the GP, beneficial ownership by black people, in the form of
unrestricted voting rights and economic
interest associated with
equity ownership, will be assessed and taken into consideration. The
management structure of an applying
entity will be taken into account
and, in particular, senior executive management positions will be
scrutinised. Gender, employment
equity, skills development,
affirmative procurement and corporate social investment are all
factors to be taken into account when
commercial fishing rights are
allocated in terms of the GP. These factors are largely similar to
those provided for in s 1,
4
s 2 and s 9 of the BBBEE Act.
[28] That then is the background against which the present appeal has
to be adjudicated. I turn to deal with the first point raised
on
behalf of Oceana and BCP, namely, whether the TP is inconsistent with
the Codes published in terms of the BBBEE Act.
[29] At the outset I agree with the conclusion of the court below
that the TP formulated by the Minister is national policy and
is thus
excluded from the ambit of PAJA. However, because the challenge to
the TP is essentially based on legality and rationality,
that
conclusion does not preclude it from being subjected to judicial
scrutiny. In any event the application of the TP and decisions
on
matters related thereto might very well be within the ambit of PAJA.
However, as is clear from what is set out above, nothing
turns on
this point.
[30] It will be recalled that the court below had held that Oceana
and BCP were ‘measurable entities’ to which the
Codes
applied. In this regard Cleaver J considered the paragraph of the
Codes which sets out its ambit of applicability. The court
below
concluded that Oceana and BCP fell within the category set out in
para 3.1.3.
5
[31] The Codes were published by the Minister of Trade and Industry
in the
Government
Gazette
on 9 February 2007,
6
after the long-term rights allocation process, but before the
adoption of the TP. In terms of s 10
(a)
of the BBBEE Act, the
provisions of which appear in para 14 above, every state and public
entity is obliged to take into account
as far as is reasonably
possible ‘any relevant code of good practice’ issued in
terms of that Act. The immediate question
that arises is whether a
relevant code of good practice exists which the Minister and her
department are obliged to apply.
[32] It is clear from a reading of para 3 of the Codes that what was
intended by paras 3.1.2 to 3.1.4 is that specified public
entities
and enterprises that ‘undertake business’ with inter alia
any organ of state or public entity should be measurable
entities to
which the Codes apply. It is understandable that government would be
intent on ensuring that those with whom it engaged
in commercial
activity would meet government’s transformation objectives. The
reward for complying with government’s
transformation targets
would be eligibility for government contracts. Paragraph 3.1.2
applies to public entities that are trading
entities. When they
‘undertake any business’ with any other ‘enterprise’
in accordance with para 3.1.2,
it must be taken to mean commercial
interaction between the two entities. Where the same or essentially
similar words or phrases
or expressions are used in various places
throughout a legislative instrument, they are presumed to bear the
same meaning throughout.
7
In my view a purposive interpretation leads ineluctably to the
conclusion that the entities considered measurable in terms of paras
3.1.3 to 3.1.4 are enterprises that engage in commercial activity
with inter alia any organ of state or public entity.
[33] Moreover, if the Codes had been intended to apply to the issuing
of licences, concessions or other statutory authorisations,
such as
the granting of fishing rights and the concomitant annual permits,
they could have said so in the terms embodied in s 10
(a)
of
the BBBEE Act. There are no specific codes that apply in this regard
and it might well be due to the fact that there is a myriad
of
regulatory statutory criteria that apply to the issuing of licences,
concessions or other statutory authorisations in relation
to specific
areas of endeavour. Settling uniformity across the board as aimed for
by the BBBEE Act in relation to different fields
of endeavour is
likely to prove difficult. It might explain why the court below
readily accepted the explanation proffered by the
Minister for not
slavishly applying the BBBEE Act. The Minister explained why it was
impractical in particular areas of the fishing
industry to wholly
adopt and apply the Codes. In the GP it is expressly stated that
given the nature of the fishing industry the
Minister has
deliberately not encouraged the adoption of charters for the sector
and has not adopted the weighting and benchmarks
in relation to
ownership and management set out in the available draft codes.
[34] Section 10
(a)
of the BBBEE Act obliges state departments
to apply any ‘relevant’ code of good practice. Since
there is no code that
can be identified in relation to the granting
of statutory authorisations to catch fish, the obligation does not
arise in the present
circumstances. Considering the submissions on
behalf of Oceana and BCP, referred to in para 8 above, as to the
application of the
BBBEE Act in the present circumstances, the
apposite words of Wilson CJ in
Richardson v Austin
[1911] HCA 28
;
(1911) 12
CLR 463
at 470 come to mind:
‘ …
As
to the argument from the assumed intention of the legislature, there
is nothing more dangerous and fallacious in interpreting
a statute
than first of all to assume that the legislature had a particular
intention, and then, having made up one’s mind
what that
intention was, to conclude that that intention must necessarily be
expressed in a statute, and proceed to find it.’
[35] It follows that the court below erred in concluding that para
3.1.3 is applicable. As stated earlier, the GP ensures that
in the
allocation of fishing rights process a variety of factors similar to
those catered for by the BBBEE Act are taken into account.
The TP has
to be read as building upon the GP to ensure that the objectives of
the MLRA are met. The TP itself proclaims that it
will ‘employ’
the BBBEE Act but it does refer to the difficulty of a strict
application of that Act within the fishing
industry.
8
The Minister and her Department can hardly be criticised for
attempting to do more than is legally required. Thus, the first point
is decided against Oceana and BCP.
[36] I now turn to deal with Oceana and BCP’s challenge to the
validity of the TP. It will be recalled that it was contended
on
their behalf that the provisions of the TP were at odds with the
provisions of the MLRA and, as was submitted in
Foodcorp
, that
certain of its provisions were ultra vires the MLRA. More
particularly, it was contended that the Minister was not empowered
to
regulate bona fides share sales transactions as she purported to do
by resorting to paras 6.2 and 6.3 of the TP.
[37] In
Foodcorp
this Court undertook a thorough analysis of
the relevant provisions of the MLRA. It had regard to the long title,
s 2, s 13, s
18, s 21 and s 28 and took into consideration a number
of paragraphs of
Bato Star
which highlighted the importance of
transformation in the fishing industry.
9
In
Bato Star
the Constitutional Court regarded transformation
of the fishing industry as being central to the process of granting
fishing rights.
10
The Constitutional Court approved of the GP as being consonant with
the transformation objectives of the MLRA. Similarly, in
Foodcorp
,
this Court viewed the GP as being consonant with the provisions of
the MLRA and considered those parts of the TP challenged in
that case
as being harmonious with both the MLRA and the GP. In my view, the
paragraphs of the TP criticised by Oceana and BCP,
set out in para 26
above, are in line with the twin objectives of the MLRA recognised in
Bato Star
, namely, the need to preserve marine resources and
the need to transform the fishing industry. As stated in an earlier
paragraph
the TP cannot be delinked from the GP. Far from the narrow
focus contended for by Oceana and BCP, the MLRA, the GP and the TP
collectively
allow for a flexible approach. In exercising her
discretion in dealing with matters provided for in the TP, the
Minister would
be astute to have regard to the dictum in
Dawood,
Shalabi and Thomas v Minister of Home Affairs & others
[2000] ZACC 8
;
2000
(3) SA 936
(CC):
11
‘
Discretion
plays a crucial role in any legal system. It permits abstract and
general rules to be applied to specific and particular
circumstances
in a fair manner. The scope of discretionary powers may vary. At
times they will be broad, particularly where the
factors relevant to
a decision are so numerous and varied that it is inappropriate or
impossible for the Legislature to identify
them in advance.
Discretionary powers may also be broadly formulated where the factors
relevant to the exercise of the discretionary
power are indisputably
clear. A further situation may arise where the decision-maker is
possessed of expertise relevant to the
decisions to be made.’
[38] In respect of the specific challenge to paras 6.2 and 6.3 of the
TP, this Court held in
Foodcorp
that these are not ultra vires
the provisions of the MLRA. It did so on the basis that the Minister
has an obligation to ensure
that the objectives and principles set
out in s 2 of the MLRA are met and complied with. It took into
account that fishing rights
were granted in terms of s 18, which
obliges the Minister to have regard to transformation imperatives. It
rejected the submission
that, since the adjudication of applications
for permits involves a process different from the process relating to
changes in control
of entities and the transfer of permits, the
processes should each be viewed in isolation. It also held that,
throughout the various
processes, transformation of the fishing
industry to address historical imbalances and to achieve equity is a
constant imperative.
12
[39] Of course, in
Foodcorp
, the permits in question were
stated to be subject to the provisions of the MLRA and the GP. In the
present case we have no idea
of the conditions attaching to the
permits issued to Oceana and BCP since the permits do not form part
of the documents constituting
the record in the court below. This
does not mean that the conclusions arrived at in
Foodcorp
in
relation to paras 6.2 and 6.3 have any less force.
[40] I agree with the statement by the court below that Oceana and
BCP were misguided in bringing the application on an abstract
basis
and that it was premature. If a well-founded basis arises for
challenging the Minister’s decisions on the pending transfer
applications, Oceana and BCP can approach the appropriate court for
relief. Instead, they launched a pre-emptive strike which,
for all
the reasons set out above, rightly failed in the court below. Lastly,
it should be stated that in their founding affidavit
Oceana and BCP
rightly laud the Minister and her Department for facilitating
significant transformation of the fishing industry.
They state that
today the fishing industry is recognised as one of the most
transformed sectors of the South African economy. Granting
Oceana and
BCP the relief they sought would have been a regressive step.
[41] The following order is made:
The appeal is dismissed with costs including the costs attendant on
the employment of two counsel.
_________________
M S NAVSA
JUDGE OF APPEAL
APPEARANCES:
For
1
st
Appellants:
J A Newdigate
SC
N Mayosi
(Ms)
Instructed
by:
Webber
Wentzel
Cape
Town
Matsepes
Inc
Bloemfontein
For
Respondents: G Budlender SC
K
Pillay
H
J de Waal
Instructed
by:
The
State Attorney
Cape
Town
The
State Attorney
Bloemfontein
1
New
Foodcorp Holdings (Pty) Ltd v Minister of Agriculture, Forestry and
Fisheries
(82/11)
[2012] ZASCA 30
(28
March 2012).
2
In
Government Notice 789 in
Government Gazette
32449.
3
Paras
32 and 35.
4
‘“
broad-based
black economic empowerment”
means the economic
empowerment of all black people including women, workers, youth,
people with disabilities and people living
in rural areas through
diverse but integrated socio-economic strategies that include, but
are not limited to –
increasing the number of black people that manage, own
and control enterprises and productive assets;
facilitating ownership and management of enterprises
and productive assets by communities, workers, cooperatives and
other collective
enterprises;
human resource and skills development;
achieving equitable representation in all occupational
categories and levels in the workforce;
preferential procurement; and
investment in enterprises that are owned or managed by
black people.’
5
Paragraph
3 dealing with the applicability of the Codes appears in its
entirety in para 15 above.
6
Government
Gazette
No. 29617 Government Notice 112.
7
See
Principal Immigration Officer v Hawabu & another
1936 AD
26
;
Minister of the Interior v Machadodorp Investments (Pty) Ltd
& another
1957 (2) SA 395
(A) at 404D-E
;
Ndluli
v Wilken NO
1991 1 SA 297
(A) at 306B;
Lourens du Plessis
Re-Interpretation of
Statutes
2002 194.
8
Paragraphs
2.6 to 2.10.
9
See
Foodcorp
paras
27 and 28.
10
See
Bato Star
paras 40, 41 and 92.
11
Para
53.
12
Paragraph
33.