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[2010] ZASCA 114
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West Coast Rock Lobster Association and Others v Minister of Environmental Affairs and Tourism and Others (532/09) [2010] ZASCA 114; ; [2011] 1 All SA 487 (SCA) (22 September 2010)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
no: 532/09
WEST
COAST ROCK LOBSTER ASSOCIATION
.............................................................................
First
Appellant
STEPHAN
FRANCOIS SMUTS
..........................................................................................................
Second
Appellant
SPARKOR
(PTY) LIMITED
.................................................................................................................
Third
Appellant
SOUTH
AFRICAN SEA PRODUCTS LIMITED
...................................................................................
Fourth
Appellant
and
THE
MINISTER OF ENVIRONMENTAL AFFAIRS
...............................................................................
First
Respondent
AND
TOURISM
THE
DEPUTY DIRECTOR-GENERAL: MARINE AND
..........................................................................
Second
Respondent
COASTAL
MANAGEMENT, DEPARTMENT OF
ENVIRONMENTAL
AFFAIRS AND TOURISM
THE
CHIEF DIRECTOR: RESOURCE MANAGEMENT
.........................................................................
Third
Respondent
(MARINE):
MARINE AND COASTAL MANAGEMENT
DEPARTMENT
OF ENVIRONMENTAL AFFAIRS AND
TOURISM
FURTHER
RESPONDENTS
......................................................................................................
Fourth
to 1245
th
Respondents
__________________________________________________________________________________
Neutral
citation:
West Coast Rock Lobster Association v The Minister
of Environmental Affairs and Tourism
(532/09)
[2010] ZASCA 114
(22 September 2010)
CORAM:
Navsa, Lewis, Ponnan and Mhlantla JJA and K Pillay AJA
HEARD:
31 August 2010
DELIVERED:
22 September 2010
SUMMARY:
Fishing rights in terms of the
Marine Living Resources Act 18 of 1998
─ dispute involving access to West Coast Rock Lobster ─
unnecessary to answer questions concerning Minister’s
power of
exemption in terms of
s 81
of the Act ─ appeal fails at two
related preliminary levels ─ first, no practical effect ─
measures by Minister
were regarded as interim ─ time and
circumstances have overtaken the relief sought in the high court ─
no indication
that similar facts would come before court in the
future ─ second, nature and extent of declaratory order ─
order sought
too wide ─ purports to bind category of persons
not all of whom were before court ─ formulation not such as to
deal
with nub of complaint.
______________________________________________________________
ORDER
______________________________________________________________
On appeal from:
Western Cape
High Court (Cape Town) (Davis J sitting as court of first instance).
1 The appeal is dismissed.
2 The appellants are ordered to pay
the respondents’ costs, including the costs attendant upon the
employment of two counsel
______________________________________________________________
JUDGMENT
______________________________________________________________
NAVSA JA (LEWIS, PONNAN and MHLANTLA
JJA and K PILLAY AJA concurring)
[1] For a fortunate few, rock lobsters
conjure up images of exotic cuisine. For others, like communities who
engage in subsistence
fishing, they are a means of survival and a
modest source of income. In South Africa, West Coast rock lobster
(WCRL) is a scarce
resource, with commercial entities, subsistence
and recreational fishers all competing for access to this rare
crustacean. Coastal
fishing communities, including many previously
disadvantaged individuals, assert an entitlement to this scarce
resource. Established
commercial fishing entities, on the other hand,
are equally insistent about maintaining their existing long-term
fishing rights
and preventing any incursion from new competitors. The
State, in its regulatory role, has to achieve a balance between these
competing
interests. The litigation leading up to this appeal was
about whether the State legitimately went about that task.
[2] The appellants had applied in the
Cape High Court for an order reviewing and setting aside decisions by
the first three respondents
granting subsistence fishers generally,
and the fourth to 1 245
th
respondents in particular,
rights to catch and sell WCRL. In addition, the appellants had
sought a declaratory order in the
following terms:
‘
[T]hat
the First Respondent is precluded from using
section 81
of the
Marine
Living Resources Act 18 of 1998
in order to grant [subsistence]
fishers generally, and the Fourth to 1 245
th
Respondents
in particular, a right to catch and sell West Coast rock lobster for
commercial purposes.’
[3] The application was dismissed with
costs, including the costs of two counsel. This appeal is before us
with the leave of this
court.
[4] The first appellant, the West
Coast Rock Lobster Association, describes itself as a non-profit
organisation whose members presently
all hold long-term fishing
rights in terms of s 18(1) of the Marine Living Resources Act 18 of
1998 (the MLRA), to undertake commercial
fishing for WCRL. The second
appellant, Stephan Francois Smuts, is the holder of long-term
commercial fishing rights in the WCRL
Nearshore fishery. The third
appellant is Sahra Luyt, who also holds long-term commercial fishing
rights in the WCRL Nearshore
fishery. The fourth appellant, Sparkor
(Pty) Ltd, is a company that holds long-term commercial fishing
rights in the WCRL Offshore
fishery. The meaning of nearshore and
offshore fishing rights will become clear in due course.
[5] The first three
respondents are the Minister of Environmental Affairs and Tourism
(the Minister), his Deputy Director-General
Marine and Coastal
Developments, and his Chief Director. The fourth to 1 245
th
respondents are individuals to whom the Minister, purportedly in
terms of s 81 of the MLRA, either granted rights, or who have
been
identified as possible recipients of rights to catch WCRL. The 134
th
respondent is Kenneth Blaauw, a subsistence fisher, who was
represented during the appeal and who, in turn, came to be
representative
of the remaining respondents.
[6] Section 81 of the MLRA, under the
heading ‘Exemptions’, provides:
‘
(1)
If in the opinion of the Minister there are sound reasons for doing
so, he or she may, subject to the conditions that he or
she may
determine, in writing exempt any person or group of persons or organ
of state from a provision of this Act.
(2) An exemption granted
in terms of subsection (1) may at any time be cancelled or amended by
the Minister.’
[7] The decisions by the first three
respondents sought to be impugned in the court below, referred to in
para 2, are no longer
in issue because time and circumstance have
overtaken them. This appeal is against the refusal by the court below
to grant the
declaratory order set out above. It was submitted on
behalf of the appellants, both in the court below and before us, that
whilst
the power set out in s 81 may rightly be employed to
exempt persons from requirements such as having to lodge applications
for fishing rights within a prescribed time, or from having to pay
fees for fishing permits it may not, as happened in this case,
be
employed to grant fishing rights. The appellants sought to persuade
us that by resorting to s 81 of the MLRA, in the manner
more
fully described later in this judgment, to grant rights to the fourth
to 1 245
th
respondents to catch and sell WCRL, the
Minister was subverting other applicable provisions of the statute,
more particularly those
dealing with the manner in which fishing
rights are to be allocated.
[8] As will become apparent the appeal
falls to be determined within a narrow compass. The question whether
a decision on the issues
referred to in the preceding paragraph will
have any practical effect and the ambit of the declaratory order are
crucial in that
regard and are aspects which I shall deal with in due
course. For the benefit of the reader, however, it is necessary to
first
set out the background.
[9] The MLRA, which was promulgated on
21 May 1998 and came into effect on 1 September 1998, signalled a new
era in marine ecosystem
conservation. The preamble to the MLRA reads
as follows:
‘
To
provide for the conservation of the marine ecosystem, the long-term
sustainable utilisation of marine living resources and the
orderly
access to exploitation, utilisation and protection of certain marine
living resources; and for these purposes to provide
for the exercise
of control over marine living resources in a fair and equitable
manner to the benefit of all the citizens of South
Africa; and to
provide for matters connected therewith.’
[10] In line with the MLRA’s
conservation objective s 18 prohibits commercial or subsistence
fishing unless ‘a
right to undertake or engage in such an
activity . . . has been granted . . . by the Minister’. The
relevant parts of s 14(2)
of the MLRA provide that the Minister
‘shall determine the portions of the total allowable catch, . .
. or a combination
thereof, to be allocated in any year to
subsistence, recreational, local, commercial and foreign fishing,
respectively’.
[11] As set out in the judgment of the
court below the total allowable catch (the TAC) is the maximum
quantity of fish that is legally
available during each fishing season
for combined recreational, subsistence, commercial and foreign
fishing. It is one of the principal
means by which the Minister
ensures that fish stocks are not over-exploited. It is within that
TAC that fishing rights granted
by the Minister are exercised.
Section 18(5) of the MLRA provides that in granting fishing rights
the Minister ‘shall . .
. have particular regard to the need to
permit new entrants, particularly those from historically
disadvantaged sectors of society’.
[12] WCRL is but one of the many
species of marine life requiring protection and in respect of which
the Minister grants fishing
rights. WCRL and abalone are very
valuable and are naturally under intense pressure of
over-exploitation. The pressure arises not
only from legitimate and
regulated fishing but also from unregulated illegal fishing
operations and conservation measures are self-evidently
a national
imperative.
[13] WCRL occurs inside the 200-metre
depth contour from just north of Walvis Bay in Namibia to East London
in the Eastern Cape.
Female size at maturity ranges from
approximately 57 mm carapace length (CL) to 66 mm CL. Male lobsters
attain a larger size and
grow faster than females. As a result of the
size limit of 75 mm CL that is currently imposed on commercial
fishers, male lobsters
make up virtually the whole of the catch.
Commercial exploitation of WCRL in South Africa occurs from the mouth
of the Orange River
in the north-west to Danger Point in the Cape
South Coast. Recreational fishing covers the same area, but also
extends further
eastwards towards Mossel Bay.
[14] Commercial fishing for WCRL dates
back more than a century. Initially there was very little regulation
of the WCRL industry.
Notwithstanding a minimum size of 89 mm CL
introduced in 1933 and a tail mass quota limitation in 1946, catches
in excess of 10
000 tons per annum were maintained from 1950 to 1965
putting enormous strain on the resource and endangering its long-term
sustainability.
Predictably, by the mid-1960’s WCRL hauls had
begun to decline appreciably. In response, tail mass production
quotas were
reduced. In the 1970’s tail mass production quotas
were replaced by a whole lobster (landed mass) quota, in tandem with
a
TAC limitation. Various other measures were also introduced,
including the introduction of area limitations, the stipulation of
size limitations, the establishment of a closed season and the
banning of catches of berried or soft-shelled WCRL. These measures
combined to restore some balance to the WCRL industry, and TAC
stabilised at between 3 500 and 4 000 tons per annum.
[15] In the 1990/1
season there was another notable decline in the somatic growth rate
of WCRL.
1
There were fewer
WCRL of legal size. Up until the mid 90s the commercial TAC was
gradually reduced reaching as low as 1 500 tons
in the 1995/6 season.
There was a slow recovery of the resource up to the 2004/5 season
when the global TAC was 3 527 tons. Unfortunately,
in recent seasons,
WCRL has been placed under renewed significant pressure. The global
TAC in the 2007/8 season was decreased to
2 571 tons. WCRL is a
slow-growing crustacean and due to the slow recruitment of the adult
population any recovery plan must be
a long-term one.
[16] In his
affidavit opposing the relief sought by the appellants in the court
below, the Minister explained that the short, medium
and long-term
fishing rights allocation processes with which his department’s
Marine and Coastal Development branch (MCM)
had been involved over
the past decade had focused primarily on the interests of medium and
large sized commercial entities. The
interests of surrounding coastal
communities and subsistence fishers and their access to the use of
the marine living resources
have hitherto been neglected,
notwithstanding the provisions of s 18(5) set out above.
2
Only in recent
years have their interests received the necessary attention. The
dispute giving rise to the litigation that culminated
in the present
appeal arose from that historical imbalance.
[17] The Minister described the
problems attendant upon the allocation of fishing rights to
subsistence and smaller scale users
of our country’s marine
living resources. Coastal communities have historically depended and
relied on fishing along the
coast to earn a living. WCRL fishing, as
indicated above, is lucrative and the demand from this category of
users far exceeds the
sustainability of the resources. Although the
number of participants in this group is large the quantum of fish
involved in their
quota is relatively small compared to that
exploited by medium and large commercial enterprises. It has been
difficult to assess
their impact on the resources they access,
legally and illegally.
[18] Government set in motion a
process to develop a management policy in order to deal with the
growing clamour by subsistence
users and small commercial entities
for access to a share of the TAC. This process has taken longer than
anticipated. According
to the Minister this was due to a larger group
of fishers than initially anticipated having to be accommodated in
the consultation
process.
[19] One of the
issues facing government in its regulatory function is that it has
obligations towards coastal communities under
international treaties,
principally the United Nations Convention on the Law of the Sea and
the Voluntary Code of Conduct for Responsible
Fisheries adopted by
the Food and Agricultural Organisation of the United Nations on 31
October 1995. These instruments oblige
the government of the Republic
of South Africa to heed the economic and socio-economic needs of
coastal fishing communities.
3
[20] Problems hampering government in
its attempts to accommodate subsistence and small-scale fishers who
were seeking access to
WCRL are largely due to its own making. Around
the beginning of the new millennium the Ministry had phased out
subsistence permits
and restyled them as ‘limited commercial
rights’. In allocating these limited commercial rights the
Minister had failed
to accommodate a large number of subsistence
fishers from coastal communities seeking access to the limited
resource. The ‘limited
commercial rights’ that had been
granted were part of a medium-term fishing allocation of four-year
duration.
[21] In 2005 the Minister invited
applications for long-term fishing rights of ten-year duration. The
former full-term commercial
rights, which catered for medium and
large scale commercial entities, were re-branded as ‘rights in
the off-shore fishery’
and comprised rights allocations greater
that 1.5 tons. The previous ‘limited commercial rights’
were now known as
commercial ‘rights in the near-shore fishery’
and accommodated 820 individuals who were historically dependent on
the
resource. They ran relatively small-scale commercial operations,
in inshore areas using smaller boats and hoop-nets. The changes
brought about by renaming categories were changes in form rather than
substance. Thus, the Minister had committed himself to these
right-holders on a long-term basis and was still facing further calls
by a large number of individuals for inclusion in the near-shore
fishery.
[22] As the calls by subsistence and
small scale fishers for inclusion grew ever louder, so too did the
resistance by those already
in possession of long-term rights. The
battle lines were drawn and tensions mounted. Consultations with and
representations to
the Ministry followed.
[23] The consultation and policy
development processes dragged on and the pressure increased on the
Minister to find a means to
accommodate those who had previously been
excluded and who desperately sought access to the resource. The
Minister’s problems
were compounded when a non-governmental
organisation, Masifundise, assisted subsistence fishers in the
Equality Court to seek relief
against him, based on their alleged
wrongful exclusion from access to WCRL. The present appellants were
not party to that litigation.
[24] In May 2007
the Minister, in settlement of that litigation, and in accordance
with an agreement which was made an order of
the Equality Court,
publicly announced ‘interim measures to accommodate fishers
along the Western and Southern Cape coastline’.
In terms of
that arrangement Masifundise undertook to identify 1 000 bona
fide ‘artisanal’ (subsistence) fishers
who were not
holders of existing commercial fishing rights allocated in terms of s
18 of the MLRA and who could ‘demonstrate
both historical
dependence and reliance’. It was agreed that the names of those
so identified would be submitted to the Minister’s
Department.
Those who qualified would be required to apply for a recreational
fishing permit.
4
The Minister, in
turn, after considering whether they met the criteria, would:
‘
[B]y
way of exemption, until 31 December 2007 or any earlier date
identified herein, permit the identified fishers to engage in
fishing
and to sell the lawfully caught catch under the authority of the
recreational permit the following: . . .
4.1 four West Coast rock
lobster per day, every day of the week until 31 May 2007; . . .’.
In addition, the persons who qualified
and who were holders of recreational permits were granted the right
to catch stipulated quantities
of other species of marine life until
30 September 2007.
[25] The order of the Equality Court
records that ‘the exemption may be renewed for a further
stipulated period if necessary.
. .’. The order of the Equality
Court is dated 2 May 2007 and, as can be seen from what is set out in
the preceding paragraph,
the initial ‘interim’ right to
fish for WCRL was for a very limited duration.
[26] Following on the public
announcement the first appellant and its members, considering this
exercise of the power of exemption
as an abuse of the provisions of
the MLRA, engaged the Minister in correspondence and discussions.
That process dragged on for
months during the latter half of 2007 and
the beginning of 2008. When the Minister appeared bent on proceeding
with further interim
measures in the same vein as referred to above,
but for a longer period the appellants resorted to the litigation in
the court
below in March 2008.
[27] The Minister’s own
scientific advice indicated that the further interim measures he
intended proceeding with would result
in the TAC for WCRL being
exceeded and not being absorbed within the recreational catch, which
was the Minister’s objective.
Nonetheless, the Minister took
the view that there were compelling reasons to proceed. The following
part of the Minister’s
answering affidavit is significant:
‘
[F]rom
a humanitarian and socio-economic perspective understood in the
context . . . of the MLRA and the considerations that led
to the
settlement of the Equality Court case, it was very important that the
affected group of fishers be accommodated, inter alia,
with access to
WCRL. Time did not permit a process of rights allocations to them
under s 18 coupled with a possible re-allocation
for commercial
TAC under s 14. The development of the policy had been held up longer
than expected, not due to the fault of the
interim relief fishers.
Not addressing their needs could, and probably would, cause very
severe hardship for the interim relief
fishers. . . . In my opinion,
these were sound reasons for addressing this issue by way of
exemptions under s 81.’
[28] The following statement by the
Minister is of some importance:
‘
To
the extent that the small scale fishers would compete with the
existing commercial rights holders, I considered that their impact
would probably be minimal and would in any event not be in a market
sector in which the large commercial interests participated
meaningfully.’
[29] The court
below (Davis J),
5
in considering
whether the Minister had properly used the power of exemption
provided for in s 81 of the Act, had regard to the
full bench
decision in
Laingville
Fisheries (Pty) Ltd v The Minister of Environmental Affairs and
Tourism
.
6
In that case the
power of exemption provided for in s 81 of the MLRA was described as
a ‘wide discretion’ to exempt
a person from any provision
of the Act. The court below concluded that there was no basis for a
contention that the Minister may
only exempt a person from certain
provisions of the Act but not others. Davis J said the following
(para 31):
‘
No
section remains untouchable or out of reach of the exemption power
contained in section 81. That conclusion does not follow from
the
wording of the provision and the interpretation of the provision by
the Full Bench.’
[30] The learned judge went on to say
(para 34):
‘
In
effect what happened was the following: The respondent fishers were
exempted from the provision that they would not undertake
commercial
fishing without having been granted a right thereto by the first
respondent. To the extent that the exemption letter
constituted a
permit, they were also exempted from paying any fee for this permit.’
[31] The court below held that the
Minister had acted rationally and that the transformative agenda of
the MLRA, of restructuring
the fishing industry to address the
historical imbalances of the past, had rightly been taken into
account. Davis J described the
Minister’s decision-making as
follows:
‘
That
he did so in the fashion set out in the evidence is indicative of a
decision maker having to make a difficult decision in the
allocation
of limited resources but doing so in a fashion in which he was
cognisant of the competing interests which, in any event,
may be
intrinsic to section 2 of the MLRA.’
He held that the Minister had acted
intra vires
in his application of s 81 and went on to dismiss
the application with costs.
[32] Subsequent to the judgment of the
court below the respondents approached the Equality Court once again
and once more an order
was made by that court in accordance with an
agreement reached with the Minister. That order is dated 19 November
2008 (approximately
six weeks after the judgment of the court below).
In terms of the order the Minister undertook to finalise the policy
development
process by publication in the Government Gazette by 31
July 2009. Furthermore, subsistence fishers who were identified in
the same
way as before and who held recreational fishing permits
would, by way of exemption by the Minister, be granted the right to
catch,
inter alia, 20 WCRL per person per week from 15 November 2008
to 15 April 2009 (on weekdays only).
[33] In refusing leave to appeal,
Davis J thought it important that the decision by the Minister was
‘buttressed’ by
the two orders of the Equality Court,
which he reasoned it was not competent for him to overturn. In
addition, Davis J was
not persuaded that another court would
come to a different conclusion on the interpretation and application
of s 81 of the MLRA.
[34] The facts in
Laingville
,
where applications for fishing rights were lodged beyond a time
deadline set by the Minister and where the court held that s 81
could
be employed by him to exempt persons from that requirement, are of
course far removed from the facts of the present case.
[35] It was submitted on behalf of the
appellants that the Minister could not re-categorise subsistence
fishers and pretend they
were recreational fishers in order to get
around the seemingly already fully subscribed rights in the
subsistence sector. The appellants
contended that by employing s 81
in the manner referred to above, the Minister was subverting the very
purpose of the Act and that
the granting of rights ought to be dealt
with in terms of s 18 of the MLRA.
[36] There is some force in the attack
by the appellants on the Minister’s application of s 81 of the
MLRA. There is also
the allied concern that permitting such a wide
power of exemption could result in the executive being able to undo
the structure,
purpose and principles of the legislation. That
concern would have as a concomitant that the jurisdictional lines
between the various
arms of government would be blurred. It was
argued that the effect of using an exemption provision in the manner
resorted to by
the Minister is to subvert not only the definition of
recreational fishing, referred to above, but also s 20(1) of the MLRA
which
provides that ‘no person shall sell, barter or trade any
fish caught through recreational fishing’.
[37] On the other hand, it was
submitted on behalf of the respondents that s 81 of the MLRA could
rightly be used, as the Minister
did in this case, to grant fishing
rights. It was contended that s 18 militated against the common-law
entitlement to retain a
catch from the sea and that by granting an
exemption in terms of s 81 of the MLRA the Minister was restoring the
common-law position,
thereby, in effect, granting the rights
challenged by the appellants. The counter-submission by the
appellants in that regard was
that the MLRA now regulated the fishing
industry and that its core provisions, in the interests of
conservation, had to be maintained
and enforced.
[38] It is unnecessary to deal with
all the submissions in this regard and to decide that issue finally,
because the appeal fails
at two related fundamental preliminary
levels.
[39] Before dealing with them it is
necessary to deal briefly with a submission on behalf of the 134
th
respondent, namely, that the appellants lacked
locus standi
.
It was contended that the appellants have no direct and substantial
interest in the interim relief afforded to the subsistence
fishers: a
mere financial or personal interest did not suffice and that the
interest had to be related to the relief sought by
the appellants.
They contend that the appellants’ commercial rights were not
infringed upon by the rights granted to the
subsistence fishers. I am
willing to assume in favour of the appellants, without deciding the
matter finally, that they have the
necessary
locus standi
. I
turn to deal with the two fundamental reasons why the appeal should
fail.
[40] First, courts will not decide
issues of academic interest only. In
Radio Pretoria v Chairman,
Independent Communications Authority of South Africa
2005 (1) SA
47
(SCA) this court had regard to s 21A(1) of the Supreme Court
Act 59 of 1959 which provides:
‘
(1)
When at the hearing of any civil appeal to the Appellate Division or
any Provincial or Local Division of the Supreme Court the
issues are
of such a nature that the judgment or order sought will have no
practical effect or result, the appeal may be dismissed
on this
ground alone.’
[41] In that case this court was
concerned about a proliferation of appeals that had no prospect of
being heard on the merits as
the orders sought would have had no
practical effect and referred to
Rand Water Board v Rotek
Industries (Pty) Ltd
2003 (4) SA 58
(SCA), at 63H-I, where the
following was said:
‘
The
present case is a good example of this Court’s experience in
the recent past, including unreported cases, that there is
a growing
misperception that there has been a relaxation or dilution of the
fundamental principle . . . that Courts will not make
determinations
that will have no practical effect.’
[42] In
National Coalition for Gay
and Lesbian Equality v Minister of Home Affairs
2000 (2) SA 1
(CC) the Constitutional Court said the following (para 21, fn
18):
‘
A
case is moot and therefore not justifiable if it no longer presents
an existing or live controversy which should exist if the
Court is to
avoid giving advisory opinions on abstract propositions of law.’
[43] As set out above, the time
periods during which the Equality Court orders operated have passed.
The measures reflected therein
were described as ‘interim’
and it was always understood by all that a policy would some day be
finalised that would
inform future conservation measures and the
granting of fishing rights in the future. The Equality Court orders
certainly did not
operate at any time so as to prevent the court
below from deciding the dispute. The second Equality Court order,
obtained pending
an application for leave to appeal, contemplated a
date for finalisation of the new policy, namely 31 July 2009. That
time too
has come and gone. A further fishing season has passed since
then and we are unaware of how subsistence fishers were accommodated
therein, if at all. There is no indication on the record that the
interim measures contained in the Equality Court orders are to
be
repeated in respect of the new fishing season that begins in November
2010.
[44] In
Radio Pretoria
, at para
40, this court said:
‘
[T]here
is no clear indication that another case on identical facts will
surface in the future.’
The same applies here.
[45] It is true
that this court said more than four decades ago, in
Ex
parte Nell
1963
(1) SA 754
(A), that the absence of an existing dispute was not an
absolute bar to the grant of a declaratory order. What
was
required was that
there should be interested parties upon whom the declaratory order
would be binding. In considering whether to
grant a declaratory order
a court exercises a discretion with due regard to the circumstances.
The court must be satisfied that
the applicant has an interest in an
existing, future or contingent right or obligation. If the court is
so satisfied it must consider
whether or not the order should be
granted.
7
In exercising its
discretion the court may decline to deal with the matter where there
is no actual dispute.
8
The court may
decline to grant a declaratory order if it regards the question
raised before it as hypothetical, abstract or academic.
Where a court
of first instance has declined to make a declaratory order and it is
held on appeal that that decision is wrong the
matter will usually be
remitted to the lower court.
[46] All interested parties were not
before the court below and there was no indication on the record that
a declaratory order,
assuming it to be enforceable in its proposed
form, would have any practical effect. These factors in themselves
presented an insurmountable
obstacle for the appellants.
[47] Second,
and as
fundamentally fatal to the appellants’ case as the first, is
the nature and extent of the declaratory order sought
in the court
below. In the light of the reasoning of the court below and its
refusal to review and set aside the Minister’s
decision, it was
unnecessary for it to go further and deal specifically with the terms
of the proposed declaratory order. The appellants
sought thereby to
bar the Minister from using s 81 of the MLRA to grant subsistence
fishers a right to catch and sell WCRL for
commercial purposes.
[48] It appears that insufficient
thought was given to the wording of the order sought. Subsistence
fishers are entitled to engage
in limited commercial activity. A
subsistence fisher is defined in s 1 of the MLRA:
‘
[A]
natural person who regularly catches fish for personal consumption or
for the consumption of his or her dependants, including
one who
engages from time to time in the local sale or barter of excess
catch, but does not include a person who engages on a substantial
scale in the sale of fish on a commercial basis.’
[49] The effect of granting the
proposed order would be to bar subsistence fishers as a class from
activity they can lawfully engage
in, albeit in a limited manner,
namely, the sale of a part of their catch. The order proposed does
not deal with the nub of the
appellants’ complaint that
subsistence fishers are being dressed up by the Minister as
recreational fishers, to get around
the already fully-subscribed
subsistence quota. They point out that by definition recreational
fishers are precluded from selling
any part of their catch. The
appellants contend, as I have said, that it is this unworkable
fiction that is subversive of the objectives
and principles of the
Act. The proposed declaratory order does not address the appellants’
complaint.
[50] The problem is compounded for the
appellants by the fact that the proposed order is in substance a
perpetual interdict purporting
to prejudicially affect a whole class
of persons (subsistence fishers), including persons who are not
joined as parties to the
litigation but who might have wanted to say
something in opposition to the relief sought. It is a fundamental
principle that all
interested parties should be joined in an
application that may affect their rights. See in this regard Farlam,
Van Loggerenberg
and Fichardt
Erasmus Superior Court Practice
at A1-33 and the authorities there cited.
[51] There might
conceivably be circumstances in which subsistence fishers could
rightly be granted an exemption in terms of s 81,
entitling them to
sell fish that they might otherwise have consumed. There may well be
permutations that do not readily suggest
themselves to the parties
presently before us but which might occur to subsistence fishers who
are not parties to the present litigation.
Granting the declaratory
order in the terms sought would be closing the door forever and a day
to that possibility and would bind
persons who are strangers to the
present dispute. A declaratory order cannot affect the rights of
persons who are not parties to
the proceedings.
9
[52] An attempt was made during the
dying seconds of final submissions in reply on behalf of the
appellants to amend the terms of
the declaratory order to deal with
the problems referred to in paras 47 to 49 above. Alas, it likewise
did not satisfactorily address
the concerns alluded to and for the
various reasons set out above, that attempt too must fail.
[53] There is one
remaining aspect. This court has recently seen a number of cases in
which
10
jurisdictional
questions have arisen in relation to Equality Court matters. The
dissonance in the interplay between the Equality
Court and high
courts has been brought into sharp focus. In this case Davis J,
sitting as a high court judge, questioned whether
he could validly
cut across a decision of the Equality Court in a case not involving
all the parties before him. Parties have sometimes
resorted to
parallel and cross-cutting litigation. Legal uncertainty arises and
litigation abounds, the antithesis of what was
intended by the
Promotion of Equality and Prevention of Unfair Discrimination Act 4
of 2000
.
11
These are issues
that should be of concern to the legislature and other interested
parties. The Registrar is therefore directed
to bring this judgment
to the attention of the Chief State Law Advisor and the Minister for
Justice and Constitutional Development.
[54] In light of the conclusions set
out above the following order is made:
1 The appeal is dismissed.
2 The appellants are ordered to pay
the respondents’ costs, including the costs attendant upon the
employment of two counsel.
_________________
M S NAVSA
JUDGE OF APPEAL
APPEARANCES:
For
Appellant: S Burger SC
E
Fagan SC
Instructed
by
Webber
Wentzel Cape Town
Matsepes
Inc Bloemfontein
For
first to third Respondent: W R E Duminy SC
Instructed
by
The
State Attorney Cape Town
The
State Attorney Bloemfontein
For
134
th
Respondent: J J Gauntlett SC
F
B Pelser
Instructed
by
Legal
Resources Centre Cape Town
Webbers
Bloemfontein
1
This
means the extent of the physical growth of the creature itself.
2
Section
2(j)
of the MLRA provides that the Minister and any organ of State
‘shall in exercising any power under this Act have regard to
.
. . the need to restructure the fishing industry to address
historical imbalances and to achieve equity within all branches
of
the fishing industry’.
3
Section
2(i) obliges the Minister and any organ of State, in exercising any
power under the MLRA to have regard to ‘any
relevant
obligation of the national government or the Republic in terms of
any international agreement or applicable rule of
international
law’.
4
Recreational
fishing is defined in s 1 of the MLRA as ‘any fishing done for
leisure or sport
and not
for sale, barter, earnings or gain
’
.
(My emphasis.)
5
[2008]
ZAWCHC 123
(7 October 2008).
6
[2008]
ZAWCHC 28
(30 May 2008).
7
Cordiant
Trading CC v Daimler Chrysler Financial Services (Pty) Ltd
2005
(6) SA 205
(SCA) at 213E-G.
8
Ex
parte Nell
1963 (1) SA 754
(A) at 760B.
9
See
SA Mutual Life Assurance Society v Durban City Council
1948
(1) SA 1
(N) and Farlam
et al op cit
at A1-33 to A1-34.
10
Minister
of Environmental Affairs and Tourism v George
2007 (3) SA 62
(SCA);
Manong & Associates (Pty) Ltd v Department of Roads
and Transport, Eastern Cape (No 1)
2009 (6) SA 574
(SCA);
Manong
& Associates (Pty) Ltd v Department of Roads and Transport
Eastern Cape (No 2)
2009 (6) SA 589
(SCA).
11
See
the remarks of this court in
Manong (No 2)
op cit para 53.