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In the High Court of South Africa
(Western Cape Division, Cape Town)
Case No: 21613/23
In the matter between:
THE MINISTER OF FORESTRY,
FISHERIES AND THE ENVIRONMENT First Applicant
THE DEPUTY DIRECTOR GENERAL OF THE
FISHERIES BRANCH OF THE DEPARTMENT OF
FORESTRY, FISHERIES AND ENVIRONMENT Second Applicant
And
ULWANDLE FISHING (PTY) LTD First Respondent
ULWANDLE INSHORE (PTY) LTD Second Respondent
FISHERMEN FRESH CC Third Respondent
PREMIER FISHING SA (PTY) LTD Fourth Respondent
LETAP CC Fifth Respondent
MAYIBUYE FISHING (PTY) LTD Sixth Respondent
OFFSHORE FISHING COMPANY (PTY) LTD Seventh Respondent
CAPENIS INVESTMENTS (PTY) LTD Eighth Respondent
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JC FISHING CC Ninth Respondent
ALGOA MARINE EXPORTERS (PTY) LTD Tenth Respondent
ZIMKITHA FISHING (PTY) LTD Eleventh Respondent
VECTO TRADE 126 (PTY) LTD Twelfth Respondent
TIMOWISE (PTY) LTD Thirteenth Respondent
ZWM FISHING (PTY) LTD Fourteenth Respondent
BAYANA BAYANA FISHING CC Fifteenth Respondent
UKLOBA FISHING (PTY) LTD Sixteenth Respondent
DYER EILAND VISSRYE (EDMS) BEPERK Seventeenth Respondent
Heard: 14 December 2023
Delivered (electronically): 01 March 2024
JUDGMENT
LEKHULENI J
Introduction
[1] This is an urgent application in which the applicants seek an order authorising
the second applicant, including the officials of the Department of Forestry, Fisheries,
and the Environment under the control of the second applicant, to refuse to issue
fishing permits to current Category B right holders in the horse mackerel fishing
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sector for the 2024 fishing season pending the handing down of judgments in the
review applications instituted in this court by the thirteenth to the seventeenth
respondents under case numbers 8760/22; 17233/20; 17234/24 and 6084/2023.
[2] In addition, the applicants seek an order interdicting any Category B right
holder who has already been issued with a grant of right letter from being issued with
a fishing permit for the horse mackerel 2024 fishing season in terms of such permit,
pending the finalisation of the pending review applications. The applicants further
seek an order that the pending review applications set out above , be subjected to a
case management process by the Acting Judge President to ensure that they are
finalised by 29 February 2024.
[3] The second respondent opposed the applicant's application and implored the
court to strike the application off the roll for lack of urgency.
The Background Facts
[4] The first applicant, the Minister of Forestry, Fisheries, and the Environment
("the Minister"), is responsible for the administration of the Marine Living Resources
Act 18 of 1998 ("the MLRA") and for overseeing the functions and strategic
objectives of the Fisheries Management Branch within the Department. In the
conduct of her duties, the Minister is guided by the principles set out in section 2 of
the MLRA, which include transforming the fishing industry, something that is
particularly relevant to the Category B applicants for fishing rights. The purpose is to
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encourage new and particularly previously disadvantaged entities and persons to
become involved in the fishing industry.
[5] The Minister is also the Appeal Authority stipulated in the MLRA, to whom
appeals in terms of section 80(1) of the MLRA lay. The second applicant is the
Deputy Director General: Fisheries Management Branch, Department of Forestry,
Fisheries, and the Environment ("the DDG"). Acting in terms of section 79 of the
MLRA, the Minister delegated the power to grant rights in each fishery to the DDG.
[6] Commercial fishing is a regulated economic activity in terms of the MLRA
which requires the granting of a commercial fishing right by the Minister in terms of
section 18(1) and the annual issue of permits in terms of section 13(1) of the MLRA.
The issues that arise in this application concern the allocation of commercial fishing
rights in the 205/2016 Fishing Rights Allocation Process (FRAP:2015/2016) in the
horse mackerel fishery sector. As part of the initial allocation process , the
Department streamed fishing entities into three evaluation categories for fishing
rights in the horse mackerel fish ery in FRAP 2015/2016 to ensure fairness and
rationality during the application process.
[7] The three evaluation categories are the following: the first category was those
applicants who held rights to the horse mackerel fishery until 31 December 2015;
they were right -holder applicants and categorised as Category A applicants. The
second category relates to applicants who held rights in sectors other than the horse
mackerel fishery from 2006 to 2015 and are considered new entrant applicants; they
were categorised as Category B applicants. The third category comprised applicants
who had not hel d fishing rights in any of the commercial fishery sectors in South
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Africa during the long -term Rights Allocation Management Process and were
categorised as category C applicants.
[8] In the instant matter, each of the first to the seventeenth respondents holds
fishing rights in at least one fishing sector and is categorised as a Category B
applicant. The first to the twelfth respondents are Category B rights holders in the
horse mackerel fishery who have been awarded commercial horse mackerel fishing
rights. The thirteenth to the seventeenth respondents are category B applicants and
are the applicants in different court challenges against the Minister, all of which
relate to the horse mackerel fishery. The DDG initially allocated the thirteenth to the
seventeenth respondents commercial horse mackerel fishing rights; however, they
failed to qualify for a commercial horse mackerel fishing right on appeal in terms of
the Minister's appeal decision of 31 March 2022.
[9] According to the Minister, the interdictory relief sought in the Notice of Motion
seeks to ensure that all affected category B fishing entities are treated the same; that
is, no one will be permitted to fish horse mackerel pending the determination and
finalisation of the litigation (review applications) instituted in respect of category B of
the horse mackerel fishery. As stated above, the critical issues in this application
concern the allocation of commercial fishing rights in the FRAP 2015/2016 Fishing
Rights Allocation Process in the horse mackerel fishery.
[10] The current horse mackerel fishing season ended on 31 December 2023, and
the new season commenced on 01 January 2024. The total allowable catch for each
fishing season is determined prior to the commencement of each fishing season.
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Once the total allowable catch is set in tons, right holders can immediately calculate
how much fish they are entitled to catch as soon as the new season begins by
applying their percentage allocation against the total tonnage of fish available to be
caught in the upcoming season.
[11] At the commencement of each fishing season, each successful right holder is
permitted to catch its allocated percentage of the total allowable catch, as
determined annually. In other words, if the total allowable catch for a sector is 100
tons for the new season, and if 10 right holders were each allocated 10 per cent of
the total allowable catch by the DDG in the original decision, that right holder will be
entitled to catch 10 tons of fish the moment the new fishing season opens.
[12] The fishing allocation process for 2015/2016 commenced with an invitation by
the Department of Forestry, Fisheries and Environment to interested parties to
submit applications. The Department received a total of eighty (80) applications for
the allocation of rights in the hose mackerel fishery. The process followed on the
reversion of the rights granted to rights holders under section 18 of the MLRA. To
ensure fairness and rationality during the application process, the eighty (80)
applications were streamed into one of the 3 evaluation categories: A, B and C, as
explained above.
[13] Following an extensive multi -stage process, on 10 November 2016, the DDG
published the General Published Reasons for the Decisions on the Allocation of
2015/2016 Fishing Rights and Quantum in the Horse Mackerel Fishery. In terms
thereof, the DDG provisionally decided to allocate a total of 33 commercial horse
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mackerel fishing rights for a period of 15 years commencing on 01 January 2017 and
terminating and reverting to the State on 31 December 2031. Of the 33 commercial
horse mackerel fishing rights provisionally granted, 6 were allocated to Category A
applicants, 27 were allocated to Category B applicants, and 4 were allocated to
Category C applicants.
[14] Furthermore, the DDG provisionally allocated the rights to 23 Category B
applicants because they were the top-scoring applicants in their stream in view of the
score of above 50 per cent and, in so doing, had regard to the policy objectives as
well as Section 2 and section 18 of the MLRA.
[15] Subsequently, the DDG invited applicants to comment on the provisional
decisions, including the provisional allocations and proposed quantum allocation
methodology. On 20 December 2016, following receipt and consideration of the
comments, the DDG published the Addendum to the DDG General Published
Reasons, which sets out the extent to which the provisional decisions published on
10 November 2016 were amended and further recorded and confirmed the DDG's
final decision. The application of the DDG's quantum methodology resulted in the
new entrants' pool comprising a cumulative total of 57,12 per cent of the total
allowable catch for horse mackerel. The quantum was allocated to those Category B
and Category C applicants who scored above 50 points.
[16] The Addendum to the DDG's general published reasons further recorded
every applicant's entitlement to appeal against any aspect of the DDG's decision.
Pursuant thereto, appeals were submitted by unsuccessful Category B entities
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against the DDG's exclusion or scoring them. In response to the appeals, the DDG
submitted a report concerning the appeals in terms of Regulation 5(3) of the
Regulations promulgated under the MLRA. On 24 May 2019, the former Minister of
Agriculture, Forestry and Fisheries (Zokwana) published his appeal decision. The
appeal decision issued by Minister Zokwana led to two Category B appellants being
granted commercial horse mackerel rights on appeal, namely, Bayana Bayana and
Ukloba.
[17] Regarding Bayana Bayana , the Minister found on appeal that the application
fee was paid in full before the stipulated closing date and time and that the perceived
short payment resulting in its exclusion was a result of Bayana Bayana attaching the
wrong proof of payment. The Minister awarded Bayana Bayana a score of 63,24,
which was above the 50% threshold, and thus allocated a horse mackerel fishing
right to it. In respect of Ukloba, the Minister held on appeal that the decision by the
DDG to exclude Ukloba should be reversed. Ukloba was awarded a score of
65,91%, which was above the 50 per cent threshold, and therefore, Ukloba was
allocated the right to horse mackerel fishing.
[18] Following the publication of the 2019 Appeal Decision, three entities, namely,
Blue Continent Products (Pty) Ltd, Sea Harvest Corporation (Pty) Ltd and Ivrin
Johnson Ltd, instituted an application to review and set aside Minister Zokwana's
2019 Appeal Decision in relation to the appeals in the horse mackerel fishery. On 3
December 2020, an order by agreement reviewing Minister Zokwana's appeal
decision in its entirety was granted, and the Minister was directed to make her
decision within seven months from the date of the order. As a result of this order, the
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Minister was required to reconsider all the appeals concerning Category A, B, and C
in the horse mackerel fishery afresh.
[19] Subsequent thereto, in terms of a notice dated 19 March 20 21, the current
Minister invited applicants in the horse mackerel fishery to furnish supplementary
representations. Having received and considered various comments and
representations, on 28 December 2021, the current Minister published her
Provisional General Published Reasons for the Decisions on Appeal in the horse
mackerel fishery 2015/2016 on the Department's website. The Provisional Published
Reasons on Appeal set out the Minister's provisional decision on the allocation of
rights and quantum, which was subject to confirmation or variation upon receipt of
comments from the affected Category B right holders and addressed the grounds of
appeal raised by the applicants. The Minister's appeal decision was pursuant to court
orders granted in respect of the review applications in which she was required to
reconsider afresh all the appeals in relation to Category A, B, and C appellants in the
horse mackerel fishery.
[20] The Minister consulted with the technical advisory team on horse mackerel to
determine the proposed quantum allocation methodology regarding the allocation of
rights to a successful appearance on appeal. In addition, the Minister appointed an
appeal advisory team consisting of a panel of practising advocates, which made
preliminary appeal recommendations after evaluating and assessing the appeals. In
her appeal finding, the Minister proposed, among others, to allow 12 top -scoring
Category B entities and 7 Category C entities into the sector. The result was that 13
previously successful category B entities were outscored and unsuccessful. The
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entities that scored the highest in Category B were the respondents from the first one
to the twelfth one.
[21] On 10 January 2022, the Minister issued a notice to all applicants in the horse
mackerel fishery and informed the applicants in that sector that she proposed to
deviate from the quantum allocation methodology that the DDG previously
implemented. This deviation would have the effect that 13 right holders who were
previously allocated rights in the horse mackerel fishery would no longer qualify for
commercial fishing rights in the horse mackerel fishing sector. As a result, affected
right holders were invited to make written representations in terms of section 80(3) of
the MLRA as to why the proposed quantum allocation methodology should not be
adopted or to provide the reasons as to why they should not be excluded from
successful applicants for a fishing right.
[22] Upon receipt and consideration of the comments and/or representations from
the horse mackerel fishery, on 31 March 2022, the Minister published the Final
General Published Reasons for the decisions on appeal in the horse mackerel
fishery 2015/2016. According to the Minister's Final General Published Reasons;
Decisions of Appeal, the Minister deviated from the quantum allocation methodology
of the DDG, which provided for an allocation of commercial horse mackerel fishing
rights to applicants who scored above 50 percent. Instead, the Minister determined
that an appropriate quantum allocation methodology would be one that allows the 12
top-scoring Category B entities into the horse mackerel fishery and would allocate 20
percent of the total allowable catch to the 12 top-scoring category B entities.
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[23] The Minister asserted that in arriving at her decision, she considered and
balanced a wide range of factors which, amongst others, include the principles
applicable to the allocations of fishing rights as derived from the Constitution and the
MLRA, the need to broaden access to the fishery by introducing new entrants, the
fact that in most instances, Category A and B entities have rights in other sectors
and are thus not wholly reliant on the horse mackerel allocation alone and the
desirability of giving successful applicants reasonable prospects of active and
meaningful participation in the fishery. Having considered all the relevant
information, including individual appeals, as well as the comments received in
response to the Provisional Appeals reasons, on 31 March 202 2, the Minister
determined the entities in Category A, B, and C which would be awarded a right in
the horse mackerel sector.
[24] Dissatisfied with the Minister's Appeal decision not to award them a long -term
commercial horse mackerel fishing right, the thirteenth to the seventeenth
respondents instituted review applications challenging the Minister's appeal decision
of 31 March 2022. The thirteenth respondent instituted review proceedings in this
court under case number 8760/22 in which it sought an order to review and set aside
the Minister's decision to terminate or revoke the 15 -year-long commercial horse
mackerel fishing right granted to it on 20 December 2016 by the DDG. The
application was heard on 14 March 2023.
[25] A review court order was granted in that application on 12 June 2023. In
terms of that order, the Minister's decision of 31 March 2022 to revoke the thirteenth
respondent's 15-yearlong fishing right was reviewed and set aside. The Minister was
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directed to uphold the thirteenth respondent's appeal against the DDG and to issue a
permit to the thirteenth respondent in terms of section 13 of the MLRA to allow the
thirteenth respondent to exercise the right in the 2023 fishing season. The Minister
avers that on 23 June 2023, her attorney of record requested reasons of judgment
for this order, and as of 29 November 2023, reasons for the order have not yet been
furnished.
[26] The fourteenth respondent also instituted review proceedings under case
number 14208/2022 against the Minister's decision to refuse it a fishing right. The
fourteenth respondent challenged the scoring of its application for a long -term
commercial horse mackerel fishing right submitted in Category B of the horse
mackerel fishery for the FRAP 2015/2016. The review application of the fourteenth
respondent was granted by agreement on 30 May 2023. The decision of the Minister
refusing the fourteenth respondent a long -term fishing right was remitted to the
Minister for reconsideration, and the Minister was ordered to communicate her
reconsidered decision in writing to the fourteenth respondent within 90 days from the
date of order. The Minister indicates she has reconsidered the fourteenth
respondent's appeal and will communicate her reconsidered decision to the
fourteenth respondent in due course.
[27] The fifteenth respondent also instituted a review application against the
decision of the Minister under case n umber 17233/2020, contending that it was
scored incorrectly on appeal regarding its application for a commercial horse
mackerel fishing right. The Minister and the DDG opposed the application. The
application was heard on 11 and 12 October 2023. As of 29 November 2023, when
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the Minister's affidavit was deposed, judgment had yet to be handed down with
respect to the fifteenth respondent's application. The sixteenth respondent also
launched a review application under case n umber 17234/2022 against the Minister's
decision, contending that it was incorrectly scored and was entitled to a commercial
horse mackerel fishing right. The application was also heard on 11 and 12 October
2023. As of 29 November 2023, when the affidavit was deposed, judgment had not
yet been handed down with respect to the sixteenth respondent's application.
[28] The seventeenth respondent also instituted a review application against the
decision of the Minister under case n umber 6084/2023, seeking an order to review
and set aside the decision of the Minister of 31 March 2022 to terminate or otherwise
revoke the seventeenth respondent's commercial horse mackerel fishing right
granted on 20 December 2016 by the DDG. The seventeenth respondent contended
that it was incorrectly scored and that if it was correctly scored, it ought to be the 8th
highest scoring Category B appellant and would have been eligible to continue
holding a commercial horse mackerel fishing right. The Minister and the DDG have
opposed the seventeenth respondent's review application. The Minister averred that
the seventeenth respondent's application had not yet been heard since it was not yet
ripe for hearing.
[29] The Minister contends that her decision to allow 12 top -scoring Category B
entities into the horse mackerel fishery has not been challenged or impugned by the
respondents. Thus, the impact of the litigation, if successful, is that, in reconsidering
her appeal decision and awarding category B entities a commercial horse mackerel
right pursuant to an order of this court, the Minister must determine a new list of the
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12 top -scoring category B applicants. In providing a practical explanation of the
impact of the ongoing litigation, the Minister stated that if, on reconsideration of the
thirteenth respondent's appeal, she determines that, indeed, the thirteenth
respondent is entitled to a commercial horse mackerel fishing right, one of the
category B right holders will need to be excluded. This is because the Minister has
determined a cut-off of the 12 top-scoring category B entities who would be awarded
a commercial horse mackerel fishing right.
[30] In the same way, regarding the fourteenth respondent, if on reconsideration of
the review order granted in favour of the fourteenth respondent under case
14208/2022, she determines that the fourteenth respondent is entitled to a total
score of 79,11 per cent as alleged in its review application, the fourteenth
respondent would fall into the twelve top scoring Category B appellants and will rank
in seventh place. This would mean that one of the top -scoring would no longer
qualify for a commercial horse mackerel fishing right and would be excluded. The
Minister further averred that current Category B right holders will be impacted by this
court's orders regarding the above -mentioned ongoing litigation. According to the
Minister, the ongoing litigation is interlinked and impacts on each other. For this
reason, she did not publish a revised decision regarding the fourteenth respondent's
appeal.
[31] During February 2023, the Minister convened a meeting with the
Department's officials and tasked them to find a holistic solution to the constant
upheaval in the sector. The Minister indicated that she wanted the piecemeal
litigation and decision -making to end and needed the Department and the industry
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entities to find a way to end the litigation. The Minister asserted that she hoped a
solution could be found to obviate the need for such litigation. In the eighth months
since February 2023, it became apparent that this would not be possible, and it was
for that reason that he gave instructions to her legal representatives to institute legal
proceedings in respect of the Category B sector. To this end, the Minister seeks to
ensure that until certainty has been achieved, no category B right holder will be
permitted to fish.
[32] The Minister averred that this application was brought urgently because right
holders commence with permit applications between October and November of the
preceding year, and the Department is in the process of issuing these permits as
they are required in law to do. The Minister further asseverated that as a result, she
is left with no choice but to seek urgent interim relief directing that no permits be
issued to category B right holders pending the finalisation of the litigation instituted in
respect of Category B of the horse mackerel fishery. To the extent that permits have
already been issued, the holders of those permits be interdicted from utilising them.
If the relief is not granted, the Minister contended that the very purpose of the relief
sought would be defeated in that successful appellants being introduced into the
industry will have to wait until 2025 to start fishing while those who ought not to be
fishing will be permitted to fish for another season.
The second respondent’s opposition to the applicant’s application
[33] The second respondent is a Category B right holder in the Horse Mackerel
fishery. The second respondent contended that o n 31 March 2022, after several
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appeals, the Minister published her Final General Published Reasons for the
Decisions on Appeal in the horse mackerel fishery. In term s thereof, the second
respondent was allocated 7.78 per cent of the total allowable catch. Pursuant
thereto, t he second respondent has exercised its Category B right to fish horse
mackerel since receipt of the right following the FRAP:2015/2016 process in
November 2016.
[34] The second respondent asserted that it planned to exercise its Category B
right to fish horse mackerel in the 2024 season and avers it cannot afford not to do
so. The second respondent further asserted that the Minister's application is entirely
misconceived and not necessary or appropriate. First, the second respondent
contends that the matter is not urgent. The Minister has known about the pending
litigation for months. According to the second respondent, the review applications
instituted by the fourteenth to the seventeenth respondents were launched almost 14
months ago.
[35] The second respondent reckons that the founding affidavit of the Minister is
silent as to why the Minister sees it fit to launch this application on the eve of the
2024 fishing season, notwithstanding the fact that the 2022 and 2023 fishing
seasons operated under the current situation. Since 2020, there have been several
review applications in this sector, and despite the same, the fishing seasons
operated based on the decisions that applied at that time. Before this, the Minister
had not sought interdictory relief against the industry pursuant to all the review
applications launched since at least 2020, and the industry continued operating
without the relief currently being sought on an urgent basis.
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[36] Secondly, the second respondent explained that the relief sought by the
Minister is both impractical and undesirable in that the likelihood that the pending
review applications, subsequent appeals, and consequent public participation
process will be determined during 2024 is unlikely. For instance, the review
application of the seventeenth respondent is far from being finalised. The applicant,
in that matter, has yet to file its supplementary founding affidavit.
[37] Thirdly, the second respondent also relies firmly on the established principle
in our law that an exercise of public power cannot be ignored as a nullity based on
the supposition that it might have been invalidly made. Rather, an impugned act,
such as the allocation of Category B fishing rights in March 2022, remains valid until
set aside by a court. Fourthly, the second respondent contended that the Minister
does not assert any right that is threatened by an impending imminent or irreparable
harm which requires protection by way of an interdict.
[38] According to the second respondent, the Minister's desire for stability and
consistency is not a recognised legal basis for interfering with the second
respondent's Category B fishing right, which it currently enjoys lawfully, and which
right is not disputed. The second respondent also believes that the Minister has not
established all the requirements for the grant of an interim interdict. There is no
credible evidence before this court that the Minister or the applicants in the pending
review applications will suffer irreparable harm if the interdictory relief is not granted.
To the contrary, the second respondent could suffer certain financial losses in the
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millions, and the broader horse mackerel fishery will be disrupted. The second
respondent implored this court to dismiss the Minister's application with costs.
The principal submission by the parties
[39] Mr Jacobs SC, the Minister’s legal Counsel , submitted that this urgent
application for interdictory relief is aimed at establishing the horse mackerel fishing
industry. Counsel submitted that the decision of the Minister to determine a cut-off to
the effect that in respect of Category B applicants, only the 12 top-scoring applicants
would be allowed into the sector and allocated a commercial horse mackerel fishing
right remains extant. Pursuant to the publication of the Minister’s final decision of
appeals, the fourteenth to the seventeenth respondents instituted review applications
in respect of the Minister decision not to award them a long-term commercial horse
mackerel. These review applications have not been finalised and are at various
stages of completion.
[40] Mr Jacobs submitted that the effect of the litigation, if successful, is that in
reconsidering her decision on appeal and awarding Category B entities a commercial
horse mackerel right pursuant to an order of this court, the Minister must determine a
new list of the top scoring Category B applicants. As matter stands, the contention
proceeded, entities who ought not to be fishing may be fishing, while entities who
ought to be entitled to fish do not hold the right yet. This is because of the pending
litigation proceedings referred to above. Mr Jacobs further submitted that the
interdictory relief seeks to ensure that all affected category B fishing entities are
treated the same way and that no one will be permitted to fish horse mackerel
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pending the determination and finalisation of the litigation instituted in respect of
category B the horse mackerel fishery. Counsel implored the court to grant the relief
sought in the notice of motion.
[41] Mr Rosenberg SC, the second respondent's Counsel, submitted that the
second respondent is a Category B right holder in the horse mackerel fishery. The
allocation of its fishing rights occurred under the 2015/2016. The second respondent
has exercised its Category B right to fish horse mackerel since receipt of the right
following the FRAP 2015/2016. Mr Rosenberg submitted that as it has done in
previous years, the second respondent plans to exercise its category B right to fish
horse mackerel in the 2024 season. Counsel submitted further that the applicant's
application is entirely misconceived and not necessary or appropriate.
[42] Mr Rosenberg argued that the matter is not urgent as the Minister has known
about the pending review applications, which sought to impugn her decision for
months. In tandem with the second respondent's answering affidavit, Mr Rosenberg
argued that the Minister does not assert any right which requires protection by way
of an interdict. According to Mr Rosenberg, the Minister's desire for stability and
consistency is not a recognised legal basis for the interference with the second
respondent's Category B fishing right, which it currently enjoys lawfully, which right is
not in dispute. To disrupt vested rights in respect of the 2024 horse mackerel fishing
season on the vague and uncertain basis put forward by the Minister, the argument
proceeded, cannot be supported. It was Counsel's submission that the interdict
would potentially have a significant negative impact on the industry and would
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prevent vessels from operating for at least three months, in addition to the ancillary
effects on service providers dependent on those vessels operating.
[43] Counsel further submitted that the pending review applications are not before
this court, and the minister himself has refrained from engaging on the prospect of
success of each undetermined review application. In these circumstances, the
argument went, it is inconceivable that this court should be asked to effectively
prejudge some of those matters by interdicting the category B fishing rights pending
a determination thereof. It was also submitted on behalf of the second respondent
that the Minister has not satisfied all the requirements for interim relief. To that end,
Mr Rosenberg implored the court to dismiss the Minister's application with costs,
alternatively, to strike it from the roll together with a punitive costs order that includes
the costs of two Counsels.
Issues to be decided
[44] The critical question to be decided in this matter is whether the Minister and
the DDG have made out a case for an interim interdict restraining the Category B
right holders who have already been issued with a fishing permit (including the
second respondent) for the horse mackerel 2024 from fishing in terms of such permit
pending the finalisation of the review applications of the thirteenth to the seventeenth
respondents. Ancillary to this question, this court is enjoined to consider whether the
Minister has made out a case for an order authorising the DDG and officials of the
Department to refuse to issue fishing permits to current Category B right holders in
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the horse mackerel fishing sector for the 2024 fishing season pending the outcome
of the review applications instituted by the thirteenth to the seventeenth respondents.
Relevant legal principles and discussion
Urgency
[45] The second respondent has challenged the Minister’s application on the basis
that it is not urgent. It is trite that the general principles applicable in establishing
urgency are dealt with in Rule 6(12) of the Uniform Rules of Court. The court will first
consider whether an applicant has averred facts which, objectively speaking,
demonstrate urgency. In terms of Rule 6(12) of the Uniform Rules of Court, an
applicant is, in law, required to set out the circumstances which justify the hearing of
an application on an urgent basis and the basis on which it contends that it would not
obtain substantial redress at a hearing in due course.
[46] Simply put, Rule 6(12)(b) requires two things of an applicant in an urgent
application. First, the applicant must explicitly state the circumstances that he avers
render the matter urgent and, secondly, why he claims that he would not be afforded
substantial redress at a hearing in due course. Where the application lacks the
requisite element or degree of urgency, the court can, for that reason, decline to
exercise its powers under Rule 6(12)(a). (See Commissioner, South African
Revenue Services v Hawker Air Services (Pty) LTD 2006 (4) SA 292 (SCA) para 9).
[47] In the instant matter, the basis of the second respondent's challenge to the
issue of urgency is that the applications of the thirteenth to the seventeenth
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respondents were issued some time ago, and the Minister was aware of these
applications. Furthermore, the second respondent asserted that the Minister's
founding affidavit made no effort to satisfy these requirements. I do not agree with
this proposition. The Minister has stated that the urgency of this application lies in
the imminent commencement of the 2024 fishing season and that without the
interdictory relief, the Category B right holders will be entitled to fish from 1 January
2024, pending the outcome of the review application. Importantly, the Minister has
made it plain that the present application is brought based on the impact of a
piecemeal approach to considering the review applications as and when they are
finalised.
[48] Mr Jacobs contended that the issues arising in this matter, which bring about
instability in the horse mackerel fishery, are continuous and ongoing. This situation,
argued Counsel, affects the Minister's ability to implement her statutory obligations.
Importantly, the Minister explained that she first made concerted efforts to resolve
the issues without resorting to litigation. She tasked the Department's officials to find
a holistic solution to the constant upheaval in the sector. Notwithstanding these
efforts, the Minister has been left with no alternative but to approach this court for the
relief sought in the notice of motion. From the totality of the evidence placed before
this court, I am of the view that the Minister has clearly set out urgency as envisaged
in Rule 6(12) of the Uniform Rules. I turn to consider the Minister's application on the
merits.
The Minister’s application on the merits
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[49] As discussed above, pending the finalisation of the review applications of the
thirteenth to the seventeenth respondents, the applicant seeks an order authorising
the DDG to refuse to issue fishing permits to the current Category B right holders in
the horse mackerel fishing sector for the 2024 fishing seasons. The Minister also
seeks an interdictory order restraining any Category B right holder issued with a
fishing permit from fishing in terms of that permit. In addition, the Minister seeks a
procedural order directing the pending review applications to be subjected to a case
management process by the Acting Judge President to ensure they are finalised by
29 February 2024.
[50] It is common cause that the pending review applications discussed above are
at different stages. In two applications (Bayana Bayana – Case No. 17233/2020) and
(Ukloba – Case No. 17234/2022) judgment is pending. At the same time, reasons of
judgment are still pending in Timowise – Case No. 8760/2022. It is also common
cause that the seventeenth respondent's application is far from being finalised. At the
hearing of this matter, the court was informed that the applicant in that matter has
not yet filed its supplementary founding affidavit.
[51] In my view, the relief sought by the Minister is very broad and may cause
strife to the second respondent. It must be stressed that the finalisation of the
pending review applications may not be the end of the matter. There may still be
appeals to those judgments in respect of those applications. Thus, there is no
likelihood that the pending review applications and subsequent appeals will all be
finally determined during 2024.
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[52] Furthermore, I am of the view that the relief that the applicant seeks directing
that the acting judge president to case-manage all the review applications mentioned
above is unsustainable, particularly in the applications where judgment is pending. It
must be stressed that from the five cases, three have been allocated to judges, and
two of them have recently been heard, and it is expected that judgment will be
delivered in due course. It is inconceivable how those matters where judgment is
being considered and is imminent would be case managed by the Acting Judge
President. To this end, I agree with Mr Rosenberg that the relief the Minister seeks is
both impractical and unsustainable.
[53] What compounds the difficulty in the Minister's application is that the pending
review applications are not before this court, and the Minister has refrained from
engaging on the prospects or probability of success with respect to each of the
undetermined applications. This court cannot be expected to grant an interdict that
would have serious consequences to the second respondent when the merits of the
review applications that the Minister relies on to ground her application are not raised
in this court. In other words, it is unclear whether there are merits in those review
applications to warrant an interdict in this case pending an outcome of those
applications. As astutely pointed out by Mr Rosenberg, it is inconceivable that in
these circumstances, this court should be asked to effectively prejudge some of
those matters by interdicting the Category B fishing rights holders pending a
determination of those review applications whose merits in this application were not
canvassed or at least highlighted.
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[54] Significantly, the Minister has acknowledged that the interdictory relief she
seeks will negatively impact the category B horse mackerel industry. The Minister
has also affirmed that disallowing the respondents the right to fish even for a few
months will cause hardship. The second respondent has explained that the interdict
that the Minister seeks will potentially have a significant negative impact on the
industry and will prevent vessels from operating for at least three months, in addition
to ancillary impacts on service providers dependent on those vessels operating.
[55] What militates against the Minister's application is the score allocated to the
second respondent after the Minister's final decision of 31 March 2022. In terms of
that decision, the Minister asserted that after receiving and considering comments
and representations from the horse mackerel fishery, she published her final reasons
for her decision. In terms of her decision, 12 Category B applicants were considered
successful. The second respondent was the second highest entity on the Minister's
scorecard and received a weighted score of 85,38 and an allocation of 7,87 of the
total allowable catch in category B of the horse mackerel fishery.
[56] From the Minister's appeal decision, it is abundantly clear that even after the
finalisation of the review applications, the second respondent will still score high and
will still fall within the 12 top scoring entities determined by the Minister. It cannot be
suggested whatsoever that the second respondent would fail to meet the
requirements of the Minister when the rescoring is reevaluated. In my opinion, the
proposed relief will unfairly harm the second respondent, who has been correctly
scored and meets the Minister's requirements satisfactorily.
26
[57] I appreciate that the Minister seeks to restore stability in the sector and
ensure that all affected Category B fishing entities are treated the same. However, I
am of the view that the relief is broad and untenable. It is irrefutable that the second
respondent relied on the fact that it is the owner of the fishing right allocated to it in
terms of the FRAP 205/2015.
Did the Minister Satisfy the requirements of an interim interdict?
[58] The requirements for an interim interdict are well established in our law. The
applicants must show prima facie right, a well -grounded apprehension of irreparable
harm if the relief is not granted, a favourable balance of convenience, and the
absence of any other satisfactory remedy. These requisites for an inter dict should
not be considered separately or in isolation, but in conjunction with one anothe r, to
determine whether the court should exercise its discretion in favour of the grant of
the interim relief. (See Olympic Passenger Service (Pty) Ltd Ramlagan 1957 (2) SA
382 (D) at 383E-F).
[59] Pursuant to the view I take, I deem it unnecessary to deal with these
requirements ad seriatim in detail. However, I must stress that the second
respondent will suffer irreparable harm as opposed to the Minister if the interim
interdict is granted. The impact on the second respondent will be immediate in that
the second respondent will immediately halt operations. Perhaps it is apposite to
remind ourselves that once a right is granted, the relevant right holder structures its
business, and employees structure their lives around having access to the work that
comes along with holding such a right. It cannot be disputed that the second
27
respondent has arranged its affairs according to the rights allocated to it, and it has
consequently employed staff to administer the fishing company.
[60] A blanket moratorium on the fishing of horse mackerel will affect not only the
second respondent but also its employees, its contracting parties, and its customers
in the various parts of the African continent. The second respondent stated that the
horse mackerel caught in terms of its total allowable catch allocation is exported to
countries in Africa where customer relationships have been built over many years.
Should the interdict be granted, there will be an interruption of the supply of horse
mackerel to these markets, and customers in these countries may look for alternative
suppliers of horse mackerel. In the circumstances, a court -sanctioned moratorium on
fishing in the sector is not in the interest of justice.
[61] In addition, as the second respondent submitted , if the interim relief is
granted, the vessel operators/owners will also suffer prejudice in that their vessels
will be laid up, and they will have to incur significant costs to keep the vessels along
the quayside without earning any income. Concerning the alternative remedy, I
agree with the second respondent's Counsel that the Minister had other alternative
remedies available to her. For instance, the Minister could have applied to set aside
the fishing rights allocated to the second respondent or to the holders of rights in
Category B of the horse mackerel fishing sector. In my view, the Minister has not
satisfied all the requirements for the grant of an interim interdict.
[62] I am further of the view that the balance of convenience favours the second
respondent and militates against the grant of the interdictory relief. If the interim
28
interdict is granted the second respondent will have suffered a complete loss of
revenue for the period in which the order is in place. As explained earlier, this will
affect its business, employees, and trade customers. This hiatus is likely to endure
for a substantial period as the court process with respect to the review applications
drags out. In my opinion, t he grant of the interdictory relief in these circumstances,
will cause untold hardship to the second respondent.
[63] In view of all these considerations, I am of the opinion that the Minister’s
application for an interdict must fail. Furthermore, nothing was presented to warrant
a departure from the norm that costs follow the event.
Order
[64] In the result, the following order is granted:
64.1 The applicants' application is hereby dismissed. The applicants are ordered to
pay the costs hereof, including the costs of two Counsels where so employed.
LEKHULENI JD
JUDGE OF THE HIGH COURT
Appearances
For the Applicant: Mr Jacobs SC
Ms Matsala
29
Instructed by: The State Attorney
22 Long Street
Cape Town
For the Respondent: Mr Rosenberg SC
Mr G Solik
Instructed by: Webber Wentzel
90 Rivonia Road
Sandton
Johannesburg