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[2008] ZAWCHC 18
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Fisher and Another v President of the Republic of South Africa and Another (15572 / 2007) [2008] ZAWCHC 18; [2008] 4 All SA 189 (C) (20 March 2008)
Republic
of South Africa
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE
PROVINCIAL DIVISION)
CASE
NO: 15572 / 2007
In
the matter between:
OSCAR
DELMORE FISHER
First
Applicant
SOUTH
AFRICAN ABALONE INDUSTRY
ASSOCIATION
Second
Applicant
and
THE
PRESIDENT OF THE REPUBLIC OF
SOUTH
AFRICA
First
Respondent
THE
MINISTER OF ENVIRONMENTAL AFFAIRS
AND
TOURISM
Second
Respondent
JUDGMENT
: 20 MARCH 2008
BOZALEK,
J:
[1]
On Thursday, 25 October 2007 second respondent, the Minister of
Environmental Affairs and Tourism, announced in a press
release the
complete suspension of the commercial fishing of wild abalone,
otherwise known as "perlemoen". This decision
has
far-reaching consequences, not least for the rights-holders in the
sector, and led ultimately to these proceedings in which
the
applicants seek to review and set aside that decision.
[2]
In taking his decision second respondent purported to act in terms of
s 16 of the Marine Sources Act, 18 of 1998. Insofar as
it is relevant
s 16 provides as follows:
"EMERGENCY
MEASURES
1.
If
an emergency occurs that endangers or may endanger stocks of fish or
aquatic life, or any species or class of fish or aquatic
life in
any
fishery or part of a fishery, the Minister may -
a) suspend
all or any of the fishing in that fishery or any specified part of
it;
b) restrict
the number of fishing vessels fishing in that fishery; or
c) restrict
the mass of fish which may be taken from that fishery.
2.
The
particulars of any measures taken in terms of the section shall be
made known by notice in the gazette and in any other appropriate
manner."
[3]
Second respondent duly published a notice in the government gazette
on 26 October 2007 in terms of the aforesaid section which
reads as
follows:
"The
Minister of Environmental Affairs and Tourism, hereby publishes for
general information, that an emergency has occurred
that endangers
the stocks of wild abalone (haliotis), as defined in regulation 1 of
the Regulations promulgated in Government Notice
1111 of 2 September
1998 as amended. The wild abalone stock is at such a low level that a
complete suspension of all fishing is
required in order to promote
the recovery and rebuilding of the abalone resource. In terms of s 16
of the Marine Living Resources
Act, 1998 (Act No.18 of 1998) all
fishing in the aforesaid sector is accordingly hereby suspended until
further notice.
The
suspension will come into operation immediately."
[4]
In his press release of 25 October announcing this decision,
second respondent stated
inter
alia
as
follows:
"We
are unfortunately at a point where the commercial harvesting of wild
abalone can no longer be justified because the stock
has declined to
such an extent that the resource is threatened with commercial
extinction, The main causes of the decline in abalone
stocks are
poaching and the migration of West Coast rock lobster into the
abalone areas...
For
the past few years the recommendation of my department's managers and
researchers has been that the fishery is in crisis and
that closure
could not be avoided. We are now at the point where the total
allowable catch (TAC) reached a record low of 125 tons
for the 2006/7
season. The only responsible option left to me as Minister, is to
take the unfortunate decision to suspend fishing
in the abalone
industry in terms of
s 16
of the
Marine Living Resources Act. ..over
the past ten years, due to declining resources the TAC has had to be
reduced annually from 615 tons in 1995 to a record low of
125 tons
for the 2006/2007 season... To ensure the suspension of harvesting is
observed, monitoring control on the part of the
Department will be
upscaled. Abalone population dynamics will also be monitored through
regular research surveys."
[5]
Directly affected by second respondent's decision were the 302 rights
holders operating in this sector, comprising 262 individual
divers
and 40 legal entities. Days after the suspension, on 30 October 2007,
an urgent application brought by the present applicants
was served on
second respondent, citing also the President of the Republic of South
Africa as first respondent.
[6]
First applicant is a rights holder in his personal capacity in the
sector whilst second applicant describes itself as an industrial
body
registered in terms of s 8 of the Act and recognised by the second
respondent. According to Mr. Scott Russell ("Russell")
who
describes himself as the "spokesperson" and "recognised
representative" of second applicant, it represents
all the
rights holders in the sector. However, no proof was tendered of this
claim and it is disputed by respondents. Applicants
initially sought
far-reaching interdictory and mandatory relief against respondents,
in effect seeking to reverse second respondent's
decision suspending
fishing in the commercial abalone fishery. The application was set
down for hearing on 31 October 2007 but,
by agreement, was not heard
that day pending a further announcement to be made by second
respondent. On the same day second respondent
issued a further press
statement announcing the suspension of his earlier decision until 1
February 2008 and establishing a TAC
of 75 tons in the commercial
abalone fishery for the intervening three month period. His statement
reads
inter
alia
as
follows:
"I
remain of the view that the abalone resource is endangered due to
ecological changes and poaching. The fishery is in a crisis
and
should be managed as an emergency. The closure of the abalone fishery
is the right thing to do. There is also broad acknowledgment
that the
resource is in a crisis.
I
have applied my mind to the numerous pleas I have received from
communities regarding the implementation date of the decision.
After
carefully considering these appeals I requested the Department to see
if there could be a scientific basis to delay the implementation
date
of this decision. After receiving a report from them earlier this
morning and taking into account the socio-economic implications
of
this important decision, I have decided to delay the implementation
of the decision to 1 February 2008.
I
have accordingly determined, on the recommendation from the
Department's researchers and management, a total allowable catch of
75 tons with the following conditions:
The
global TA C will be apportioned proportionately amongst right
holders;
Right
holders will expected to follow the normal permitting process;
A
limited group of harvesters and vessels be nominated by right
holders to fish on behalf of the rest;
Right
holders be consulted on specific allocation and harvesting
arrangements;
The
fishery will close on 31 January 2008...
To
ensure that the suspension of harvesting is observed we will continue
efforts to clamp down on poaching... furthermore, the department
will
consult with stakeholders on the possibility of imposing a diving ban
in certain areas to further protect the abalone resource.
The
department will continue to closely assess the stock levels of
abalone."
[7]
Applicants remained dissatisfied with second respondent's decision
and the application which they had launched in this Court
was pursued
with amended relief being sought. The proceedings were in effect
converted into a review of second respondent's decision
with the
following relief being sought in terms of an amended notice of
motion. I quote only those substantive prayers with which
the
applicants persist:
"3.
That the following decisions by the second respondent be reviewed and
set aside:
3.1.
To suspend the commercial fishing of wild abalone; and/or
3.2.
That the total allowable catch (TAC) be set at 75 tons; and/or
3.5
That the fishery will close on 31 January 2008."
[8]
In argument it was tentatively suggested on behalf of applicants that
second respondent should be ordered, under a prayer seeking
further
and/or alternative relief, to set aside a TAC of 125 tons to be
caught over a full season. However, applicants were eventually
content to ask that second respondent be ordered, within a week of
his decisions as aforesaid being set aside, to take a further
decision on the allocation of a TAC.
[9]
It is worth noting that the combined effect of second respondent's
decisions, as initially published in the government gazette
together
with his amending decision of 31 October 2007, was in effect to
suspend fishing in the commercial wild abalone sector
indefinitely
from 1 February 2008 but, prior thereto, to have established a TAC of
75 tons in the sector for the 2007/2008 year
albeit over a shortened
period of 3 months rather than the customary period of 9 months.
THE
GROUNDS UPON WHICH THE APPLICANTS SEEK TO REVIEW THE SECOND
RESPONDENT'S DECISION/S
[10]
Second respondent's decisions were criticised on numerous grounds by
applicants in their founding papers but there was no coherent
attempt
to list the grounds of review as set out in s 6 of the Promotion of
Administrative Justice Act, 3 of 2000 (as amended)
("PAJA")
either in the papers or in argument.
[11]
The main complaints made by applicants in the founding and
supplementary affidavits are the following:
1. that second
respondent acted irrationally since, although he identified the main
cause of the decline in abalone stocks as poaching,
he suspended
lawful commercial in the fishing sector in an attempt to ensure the
survival of the species in so doing "punishing"
the wrong
parties;
2. in reaching his
decision, second respondent purported to rely on scientific studies
which show that unless decisive and immediate
action was taken, the
abalone resource would collapse completely. However, to second
respondent's knowledge, these studies had
shown the opposite. Under
this heading applicants allege, furthermore, that second respondent's
department had manipulated "scientific
studies". It was
also alleged that second respondent's own scientific advisors had not
recommended the closure of the commercial
abalone industry;
3. The applicants
accuse the second respondents and/or his Department of not having
performed their duties of combating poaching,
either effectively or
at all. They contend that the Minister's decision constitute an
expropriation of rights without consultation
and as such, an abuse of
the audi alteram partem principle.
[12]
As I have stated, in their founding affidavits applicants raised
numerous points of criticism against second respondent's decisions,
the "Social Plan" which sought to alleviate the hardship
caused by the decision, his reasons for the decision, his
department's
policy, and the manner in which the policy was executed.
None of them, however, add any substantive ground of review to those
which
I have enumerated above. Various possible procedural grounds of
review were specifically mentioned in Russell's founding affidavit
but were not pursued in argument. For this reason, I do not propose
to set them out either.
[13]
A recurring theme in applicants' founding affidavit is that second
respondent and his department, through ineffective combating
of
poaching, are themselves to blame for the situation in which the wild
abalone fishery finds itself.
[14]
After second respondent announced his decision on 30 October 2007 to
temporarily suspend his earlier suspension of fishing
in the wild
abalone sector, the applicants filed a supplementary affidavit. In it
Russell renewed his attack on the scientific
validity of second
respondent's decision to close the fishery. He also criticized
various aspects and consequences of second respondent's
decision to
in effect establish a shortened three month 2007/2008 season for the
commercial fishing for abalone with a TAC of 75
tons. Many of these
criticisms had become academic by the time that the matter was heard
in late February 2008. After receipt of
Russell's affidavit
respondents filed the record of the decision-making process.
Applicants chose not to supplement their case
in response thereto.
THE
GROUNDS UPON WHICH APPLICANTS RELIED
[15]
Notwithstanding the plethora of grounds of attack upon second
respondent's decision, in the heads of argument filed on the
their
behalf, applicants confined themselves to one main ground of attack,
namely, whether second respondent was correct in deciding
that there
was an "emergency" in the commercial wild abalone fishery
which justified invoking the provisions s16 of the
Act. It was
submitted that in order to consider this attack it was necessary to
analyse and evaluate the advice of the scientists
and government
officials in second respondent's department and upon which advice he
claimed to have relied in reaching his decisions.
In this regard
applicants argued that there was an unbridgeable contradiction
between the advice of the abalone scientific working
group, which
recommended a TAC for the abalone fishery for the 2007/2008 season,
and that of Dr. CJ Augustyn ("Augustyn"),
a scientist and
Chief Director in the department who recommended to second respondent
that the abalone fishery be closed. Applicant's
counsel contended
furthermore that Augustyn's advice was self-contradictory in that on
the one hand he recommended the closure
of the fishery but on the
other hand he recommended, in the alternative, a TAC for the fishery
for the relevant season for the
2007/2008 season in the amount of 125
tonnes. In the light thereof, it was submitted, second respondent
"could never have
come to a decision" that an emergency
existed compelling him to close down the abalone fishing sector.
Instead, it was argued,
he should have followed Augustyn's
alternative recommendation.
[16]
In argument, Mr. Knoetze, who appeared on behalf of applicants,
refined his position even further, contending that in essence
applicants relied on one ground, namely, that second respondent erred
in finding that in deciding that an "emergency"
existed in
the abalone fishery and therefore invoking his powers in terms of s
16 of the Act. Instead, submitted counsel, all that
existed in the
fishery was a "crisis" which required to be "managed".
In substantiation of this argument, counsel
relied again on what he
contended was the discrepancy between the scientific advice of the
scientific working group and the primary
recommendation made by
Augustyn. In this regard applicants' counsel developed a point which
was anticipated neither in applicants'
founding or supplementary
affidavit nor in its heads of argument. In essence the point was
that, although the cabinet decision
endorsing second respondent's
initial decision to suspend the fishery indefinitely was taken on 25
October, Augustyn's recommendation
to this effect was only made five
days later on 30 October 2007. Accordingly, the argument was that, to
the extent that second
respondent purported to rely on scientific
advice from his officials, the sequence of the decision-making
process revealed that
he did not, with fatal consequences for the
validity of his decision.
[17]
Notwithstanding the many points of criticism of second respondent's
decision aired by applicants the grounds for the review
thereof
second respondent's decision are not easy to discern. This is a
result of a number of factors. In the first place the application
was
initially framed as an interdict and a "shotgun" approach
was adopted with the applicants raising numerous criticisms
of second
respondent's decision but seldom identifying them as a ground of
review. Secondly, applicants did not see fit to focus
the basis of
their attack on the decisions after the filing of the record of the
decision and after amending their papers to seek
review relief. They
have, moreover, repeatedly changed their case from founding papers to
heads of argument to argument. Even when
the matter was argued
applicant's counsel did not identify on which of the grounds codified
in terms of s 6 of PAJA the attack
was founded.
[18]
It would appear, however, that applicants' case is best described
as being founded on one or more of the following provisions
of
section 6(2)(b):
"A
mandatory and material procedure or condition prescribed by an
empowering provision was not complied with."
This
most closely relates to the argument that no "emergency"
existed but only a state of "crisis".
â¢
Sections
6(2)(e)(iii), (v) and (vi) - the action was taken
"because
irrelevant considerations were taken into account or relevant
considerations were not considered", "in bad
faith" or
"arbitrarily or capriciously".
These
grounds would cover the arguments that the sequence of the
decision-making process was reversed and that second respondent
relied on incorrect or unfounded scientific advice or ignored advice
which he should have heeded.
â¢
and/or
section 6(2)(h)
"the
exercise of the power... in pursuance of which the administrative
action was purportedly taken, is so unreasonable that
no reasonable
person could have so exercised the power or performed the function".
This
last ground comprehends the overall attack on the alleged
irrationality (or unreasonableness) of second respondent's decisions.
Although this ground was ultimately not pertinently relied upon nor
argued by applicants' counsel, I propose to deal with it since
it
underlies the entire challenge to second respondent's decisions.
RESPONDENTS'
PRELIMINARY OBJECTIONS
[19]
Mr. Duminy, who appeared on behalf of the respondents together with
Mr. Jacobs, raised a preliminary objection, arguing that
applicants'
attack based on the alleged reverse sequence of the decision-making
process had not been made out in applicants' founding
or
supplementary papers. To a lesser extent the same objection can be
raised to what eventually was the other main ground of applicants'
attack, namely, that the state of affairs prevailing in the wild
abalone fishery prior to the suspension decision did not amount
to an
"emergency" as envisaged by the Act.
[20]
It is an accepted procedural principle of our law that, generally
speaking, an applicant must make out his case in his founding
papers.
See
Titty's
Bar and Bottle Store (Pty) Ltd v ABC Garage (Pty) Ltd and Others
1974
(4) SA 362
(TPD) at 368 H - 369 A and
Administrator,
Transvaal and Others v Theletsane and Others
[1990] ZASCA 156
;
1991
(2) SA 192
specially at 196 H - 197 D. There is no reason why this
principle should not apply to review proceedings taking into account
that
an applicant has an additional opportunity of supplementing its
case after the filing of the record of the decision-making process.
[21]
However, to the extent that the ground of attack relating to the
existence or otherwise of an "emergency" is not
a point of
law, it was foreshadowed in the founding affidavit, albeit somewhat
fleetingly. The second ground relied on, that relating
to the alleged
reverse sequence of recommendation and decision-making, was indeed
sprung upon the respondents late and is fact-based.
On the strength
of their objection, however, respondents were allowed to file a
further affidavit by Augustyn dealing with the
nature, timing and the
sequence of the twin processes whereby both he and the scientific
working group made separate recommendations
to second respondent on
the TAC for the fishery and the possible suspension thereof. In my
view, being afforded this opportunity
eliminated any prejudice which
the respondents might otherwise have suffered as a result of the late
challenge by applicants on
this ground.
[22]
Respondents also challenged the applicants'
locus
standi.
In
the case of second applicant the basis therefor was that it had not
shown that it was a
universitas
with
constitutional objects that gave it capacity to sue in its own name.
The point was effectively conceded by applicants. As far
as first
applicant's
locus
standi
was
concerned, an individual rights holder in the sector purporting to be
representative of many others, the initial complaint was
that he was
not properly before the Court for lack of a signed affidavit by him.
This was remedied at the eleventh hour when an
affidavit was put up
in which first applicant confirmed the allegations contained in his
unsigned founding affidavit. Respondents
thereupon abandoned their
challenge to first applicant's
locus
standi.
GENERAL
APPROACH
[23]
In
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs
[2004] ZACC 15
;
2004
(4) SA 490
CC the Constitutional Court noted that the ten objectives
identified in s 2 of the Act are, by their nature, incapable of
immediate
or short term fulfilment. O'Regan J, speaking for the Court
went on to say, at page 499 para 6:
"In
particular, the Act recognises that the industry exploits a scarce
marine source that may be destroyed if not carefully
managed and
monitored. Most of the other objectives flow from this realisation."
The
learned judge went on to list the various statutory objectives.
Amongst them, are the following:
"(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 protect the ecosystem as a whole, including species which are
not targeted for exploitation;
e) the
need to preserve marine biodiversity."
These
objectives are not the only ones which are relevant to the present
matter but they in particular do emphasise that, in regard
to wild
abalone, the department and second respondent are the custodians of a
fragile resource which must be jealously guarded
if it is to remain a
long-term asset for both the wider community and those actively
engaged in this particular fishery.
[24]
In
Foodcorp
v Deputy Director-General, Department of Environmental Affairs and
Tourism
2005
(1) ALL SA 531
(SCA) at page 535, para 12 the Court made the
following remarks regarding the approach to be adopted in a review
application concerning
the allocation of commercial fishing rights:
"In
assessing whether the allocation of the commercial fishing rights...
was 'so unreasonable that no reasonable person could
have so
exercised the power' to grant rights, a number of matters must be
kept in mind: The right to just administrative action
is derived from
the Constitution and the different review grounds have been codified
in PAJA, much of which is derived from the
common law.
Pre-constitutional case law must now be read in the light of the
Constitution and PAJA. The distinction between appeals
and reviews
must be maintained since in a review a court is not entitled to
reconsider the matter and impose its view on the administrative
functionary. In exercising its review jurisdiction the court must
treat administrative decisions with 'deference' by taking into
account and respecting the division of powers in the Constitution.
This does not 'imply judicial timidity or an unreadiness to
perform
the judicial function.' The quoted provision, s 6(2)(h) of PAJA,
requires a simple test namely whether the decision was
one that a
reasonable decision-maker could not have reached or, put slightly
differently, a decision-maker could not have reasonably
reached."
[25]
Also quoted with approval was the approach of the Constitutional
Court in
Bato
Star
to
this question as expressed in paragraph 44 of that judgment where the
following was stated:
"Section
6(2)(h) should then be understood to require a simple test, namely
that an administrative decision will be reviewable
if, in Lord
Cooke's words, it is one that a reasonable decision-maker could not
reach."
In
elucidating the approach of the courts in judicial review matters to
the decisions of the administrative agencies, O'Regan J
stated as
follows at para 48:
"In
treating the decisions of administrative agencies with appropriate
respect, the Court is recognising the proper role of
the Executive
within the Constitution. In so doing a Court should be careful not to
attribute to itself superior wisdom in relation
to matters entrusted
to other branches of the government. A Court should thus give weight
to findings of fact and policy decisions
made by those with special
expertise and experience in the field. The extent to which a Court
should give weight to these considerations
will depend upon the
character of the decision itself, as well as on the identity of the
decision-maker. A decision that requires
an equilibrium to be struck
between a range of competing interests or considerations and which is
to be taken by a person or institution
with specific expertise in
that area must shown respect by the Courts. Often a power will
identify a goal to be achieved, but will
not dictate which route
should be followed to achieve that goal. In such circumstances a
Court should pay due respect to the route
selected by the
decision-maker. This does not mean, however, that where the decision
is one which will not reasonably result in
the achievement of the
goal, or which is not reasonably supported on the facts or not
reasonable in the light of the reasons given
for it, a Court may not
review that decision. A Court should not rubber-stamp an unreasonable
decision simply because of the complexity
of the decision or the
identity of the decision-maker."
I
consider that the above principles and approach should be followed in
determining the questions posed in this review.
[26]
I turn firstly to applicants' argument that second respondent
overreacted to what was no more than a crisis in the abalone
fishery by declaring an emergency. Rather, it was argued, second
respondent, through the department, should "manage"
the
crisis. By this I understood applicants to contend he must keep the
fishery open as normal, regularly allocating TAC's but
at the same
time taking steps to reduce or eliminate poaching and to combat the
problems caused by the migration of rock lobster
into abalone areas
which factors together have led to a drastic diminution of wild
abalone stocks.
[27]
The Act does not define what constitutes an emergency as envisaged by
section 16 but it does give clear guidance when it states,
by
implication, that the emergency must be one which "endangers or
may endanger stocks of fish or aquatic life or any species
or class
of fish or aquatic life in any fishery".
[28]
In my view the papers in this matter adequately prove the existence
of an emergency in the abalone fishery. By way of an example,
the
statement by second respondent on 25 October 2007 that the TAC had
reached a record low of 125 tons for the 2006/2007 season,
being
reduced annually from 615 tons in 1995, was not disputed. Nor was his
statement that the main causes of the decline in abalone
stocks are
poaching and the migration of West Coast rock lobster into abalone
areas. On applicants' own version the commercial
abalone industry is
worth R30 million per annum while the illegal abalone poaching
industry is worth R3 billion per annum. Although
no authority was
given for these figures they give some indication of the dimensions
of the poaching problem. On the same topic
Russell avers in his
founding affidavit that poaching "has spiralled out of control",
although he lays the blame for
this at the door of second respondent
and the department.
[29]
An "emergency" is defined in the
Oxford
English Dictionary, Tenth Edition, Revised
as
"a serious, unexpected and potentially dangerous situation
requiring immediate action". A "crisis" is defined
inter
alia
as
a "time of intense difficulty or danger". Applicants'
counsel himself conceeded that there was a fine line between
a crisis
and an emergency. In the context of the provisions of section 16, I
consider that no useful purpose will be served in
seeking to make
fine distinctions between a crisis and an emergency. Any judgment in
this regard inevitably will be subjective
and reasonable persons
could easily differ on whether a particular state of affairs
constitutes a crisis or an emergency.
[30]
In my view the continuing drastic decline in the wild abalone stocks
as a result of wide-spread poaching, although a long-standing
problem, together with the more recent phenomenon of encroachment on
stocks by West Coast rock lobster, constituted, in October
2007, what
may reasonably be regarded as an emergency as envisaged in s 16 of
the Act. In his opposing affidavit, Augustyn, who
holds the position
of chief director in the research function of the department,
explained that he was closely involved in the
processes which led to
the decisions in the present matter. He formulated a number of the
relevant recommendations and was, furthermore,
the senior manager
responsible for evaluating and providing scientific recommendations
relating to the status and the utilisation
of the abalone resource.
Augustyn explained that the resource had been under severe threat for
the past decade or more. This was
due to a ecosystem arising from an
increased population of West Coast rock lobster and high levels of
"poaching", being
illegal, unregulated and unreported
harvesting of wild abalone. A new policy, known as TURF, (standing
for Territorial User Rights
in Fisheries), had been introduced in
2003 for the allocation of commercial fishing rights in the fishery.
It had been hoped the
policy would result in a substantial reduction
in the rate of illegal harvesting but it was ultimately unsuccessful
in this respect.
That policy was based on the notion that coastal
communities would play a significant role in enforcing compliance in
the fishery
and would work with rights holders and the department's
fishery control officers.
[31]
In 2004, when announcing the TAC for the wild abalone fishery, second
respondent had publicly warned that unless there was
a drastic
decline in poaching he would have to consider a complete ban on all
abalone harvesting to allow the resource to recover.
In 2006 Augustyn
commissioned a report from scientists in the department's research
deputy directorate. That report stated that
the "complete
collapse and closure of the fishery seems inevitable given the
status
quo".
Under
the heading "danger of non-recoverable collapse" the
authors had written that...
"the
resource has now reached a point where there are additional dangers
associated with allowing fishing (and poaching) to
continue. For
these reasons the option of immediate closure is favoured over that
of delaying closure by three years...".
[32]
In 2006, on the basis of the above report, another report prepared by
an outside consultancy and the department's own assessment
of the
situation, the commercial abalone fishery was effectively closed in
three zones. Prior to this in 2003 the recreational
abalone fishery
was suspended indefinitely. Despite these drastic measures the
pressure on the resource remained severe and ultimately
led to a
recommendation being made by the Director-General of the department
to second respondent on 22 August 2007 for the suspension
of wild
abalone commercial harvesting as an emergency measure. Second
respondent accepted that recommendation but refrained from
taking a
decision pending its submission to the cabinet for approval.
Applicants placed no independent data before the court to
challenge
the conclusion by the department's officials that there was an
emergency or, at the least, a "crisis" in the
abalone
fishery. Instead the main focus of their attack was to lay the blame
for the parlous state of the resource at the door
of the department
and second respondent in not effectively combating poaching.
[33]
In regard to poaching Augustyn observed, as regards compliance and
enforcement of the Act and the regulations framed thereunder,
that
Fisheries Control Officers (FCO's) are appointed under chapter 6 of
the Act and in theory have extensive powers of inspection,
search and
seizure. However, due to budgetary and legal constraints not all
FCO's are armed and in practice have no cohesive capability.
FCO's in
the department rely on the co-operation of the departments of law and
order and justice and, at times, the South African
National Defence
Force in combating poaching. However, these departments and agencies
have their own priorities and budgets which
constrain their
operations. Unfortunately, therefore, Augustyn testified, although
enforcing compliance in the abalone fishery
is of vital and paramount
importance to the department it does not rank highly with other state
departments and agencies. The result
thereof has been that some
enforcement initiatives that were launched in the past had to be
curtailed and in cases discontinued.
[34]
Augustyn also pointed out that there were numerous instances of FCO's
being threatened and intimidated by illegal harvesters
of abalone.
According to him unarmed FCO's have often reported being confronted
by large groups of armed and aggressive harvesters
who threaten them
with violence to their families, persons and properties. These
officers are consistently outnumbered by aggressive
armed poachers
and do not enjoy the support of the community. Augustyn also observed
that, from a practical point of view, it was
difficult to distinguish
between illegal harvesting of abalone carried on by rights-holders,
i.e. operating outside their permit
conditions, and that conducted by
poachers, pure and simple. The suggestion that poaching was carried
on by rights holders was
understandably met with vociferous
disapproval from the side of rights-holders during argument but
common sense suggests that the
existence thereof cannot be
discounted. The notion was given some credence by Russell unfortunate
remark in his founding affidavit
to the following effect:
"Members
of the second applicant have already informed me that they are
painting their boats black, "as we speak",
the reason for
this is to be able to sustain their livelihood by poaching at night."
As
I understand Augustyn's reasoning and that of his fellow departmental
decision-makers, the significance of a suspension of the
fishery as a
whole lies in the fact that the practical difficulties in
distinguishing between out and out poaching and illegal
harvesting by
rights holders are thereby eliminated. This of course has positive
implications for compliance and enforcement.
[35]
Based
inter
alia
on
the report from scientists in the department commissioned in 2006, to
which reference has already been made, the conclusion was
reached
within the department that emergency measures in the form of the
indefinite closure or suspension of the abalone fishery
was justified
and such a recommendation was made to second respondent . Augustyn
describes the process which resulted in the initial
decision to
suspend the fishery as
"multi-faceted,
protracted, thorough and very difficult'.
He
goes on to state:
"The
input of outstanding experts in many fields was received and
considered. That included biological scientists in respect
of
resource assessment, applied mathematicians in respect of the
appropriate use, modelling and interpretation of data, social
scientists in respect of community impacts, lawyers in respect of
legal implications and members of the Department experience in
resource management who had the unenviable task of making the final
policy recommendations."
As
Augustyn's evidence recounts, top management in the department,
including the forum where the Directors-General meet with the
Director-General, was
ad
idem,
in
August 2007, that given the situation in the abalone fishery,
indefinite closure was justified. It was on this recommendation
that
second respondent acted.
[36]
Applicants produced no independent scientific evidence contesting the
general view expressed by the department's experts on
the state of
the abalone fishery and little hard evidence disputing the underlying
causes thereof. In those few instances where
facts rather than the
interpretation of facts were in dispute, applicants are constrained,
of course, by the rule in
Plascon
Evans.
The
high-water mark of applicants' case on the scientific front was an
e-mail from a member of the abalone working group, Dr. E
Plaganyi-Lloyd, apparently a senior lecturer in the Department of
Maths and Applied Maths at the University of Cape Town, in which
she
expressed disagreement with statements made by second respondent in
the press release announcing his initial decision to close
the wild
abalone fishery. Her essential complaint was that where second
respondent referred to
"scientific
studies", she was aware of no other studies other than those in
which she and several colleagues had participated
and those studies
did not justify the conclusions and reasons which second respondent
gave for the closure of the fishery. She
concluded her e-mail with
the following statement:
"This
is not to dispute that an argument could not be made for the closure
of the entire resource, but the reasons given are
incorrect and
misleading."
Even
if some weight is given to the views expressed by Dr. Plaganyi-Lloyd,
it does not advance applicants' case that no reasonable
decision-maker could have taken the decision that years of declining
stocks of abalone caused by uncontrolled poaching, coupled
with
encroachment on abalone stocks by West Coast rock lobster, had
resulted in an emergency situation justifying the indefinite
closure
of the fishery. I find, therefore, that the first point relied upon
by applicants, namely, that the situation faced by
second respondent
in the abalone fishery could not reasonably have been dealt with as
one justifying the emergency measures invoked
in terms of s 16 of the
Act, to be without substance.
[37]
This brings me to the second major point relied upon by applicants,
namely, that the sequence of recommendations received by
second
respondent reveal a flawed and
mala
fide
decision-making
process. The thrust of this attack was that whereas the cabinet had
eventually endorsed second respondent's decision
to indefinitely
suspend the abalone fishery on 25 October 2007, when regard was had
to the various reports and recommendations
drawn up by the
departmental officials making up the decision-making chain, the
ultimate recommendation (and its preceding conclusion)
to second
respondent to take such a step had only been arrived at on 30 October
2007. Thus, it was argued, the decision-making
process was illogical,
flawed and the ultimate decision had to be set aside.
[38]
These allegations appear to have been made after a study by
applicants' representatives of the documents produced by respondents
comprising the record of the decision-making process. As mentioned
earlier, since applicants did not take this point initially
or when
they had an opportunity to supplement their founding papers, Augustyn
was afforded an opportunity of filing a supplementary
opposing
affidavit at the hearing in order to explain the apparent
discrepancies.
[39]
In this affidavit he explained that a distinction had to be drawn
between two processes which had been conducted simultaneously
and in
both of which he had been involved. The suspension recommendation had
first been made in August 2007. The report of the
director-general of
the department and her recommendation to this effect, annexure "CJA
6", bears testimony to this.
However, work in relation to a TAC
recommendation, in which the scientific working group played a key
role, had to continue because
of the possibility that second
respondent might not accept the suspension recommendation. This
remained the position even after
second respondent had
accepted the recommendation on 22 August 2007 since the matter had
still to go before the cabinet.
[40]
The scientific working group's terms of reference in relation to the
wild abalone fishery were to deal with the relevance of
certain
scientific aspects including biological issues in the use, modelling
and interpretation of data. In August 2007 the group
recommended a
TAC for the commercial abalone fishery of either 50 or 125 tons. This
is borne out by annexure "CJA 8"
which reveals furthermore
that the group was aware that second respondent was then considering
the closure of the abalone fishery.
It expressed the view that
"(c)losure
of the commercial fishery, in the absence of a revised compliance
approach and community buy-in, cannot result in
resource recovery and
could worsen poaching".
The
expression of this view, however, according to Augustyn, fell outside
the group's terms of reference and could not supplant
the views of
the department's management.
[41]
Augustyn testified that he applied his mind to the scientific working
group's TAC recommendation and continued to work on his
during
September 2007. This explains why "CJA 9" bears this date
on its front page. He did not complete his recommendation
at that
stage since second respondent had supported the closure
recommendation. After second respondent's decision to suspend
activity in the fishery was made public on 25 October 2007, and in
response to representations from various parties, he asked the
department to assess whether postponing the implementation of the
suspension decision could be justified on a scientific basis.
That
request was referred to Augustyn. Although he remained of the view
that immediate closure of the fishery was vital he accepted
that
there were scientific arguments which provided a basis for a TAC of
125 tons, one of the alternatives proposed by the scientific
working
group in August, and he duly made this recommendation on 30 October
2007, hence the date on annexure "CJA 9".
[42]
On the following day, 31 October 2007, the director-general in the
department made two alternative recommendations to second
respondent:
either immediate closure of the abalone fishery until further notice,
alternatively suspension of the fishery until
further notice, such
suspension to take place on a date to be announced by second
respondent with a global TAC of 75 tons for the
intervening period.
The same document which evidences this recommendation, annexure "CJA
10", reveals second respondent's
handwritten decision to accept
the second alternative recommendation, with the season opening on 1
November 2007 and closing on
31 January 2008.
[43]
I am satisfied therefore, that the recommendation and decision-making
process was thorough, sequential and regular and that
there is no
evidence of the decision or decisions reached being justified by
reports or recommendations produced
ex
post facto.
[44]
What remains of applicants' case are the many and varied reasons
which they put forward in contending that second respondent's
decision was ill-advised or irrational coupled with the far-reaching
economic consequences of the suspension for the established
rights
holders.
[45]
Not least amongst these criticisms were the direct impact of the
suspension upon the rights-holders' ability to earn a living
and the
inadequacy of the social plan proposed by the department to
ameliorate the effects of the suspension upon rights-holders.
I do
not underestimate the hardship caused and still to be caused as a
result of the suspension decision but do not consider that
these
factors alone can have a determinative effect on the reasonableness
or otherwise of second respondent's decision or decisions.
The
exploitation of marine resources will always depend to some extent on
factors beyond the control of man. This is explicitly
recognised in
the terms of the permits issued to rights-holders in the fishery. One
such term states that the granting of rights
"is
subject to the provisions of the Act, including the provisions which
entitle the Minister to inter alia, declare an emergency
and to
alter, suspend, cancel or revoke rights".
[46]
Many of the applicants' criticisms are nonetheless weighty,
particularly when regard is had to the fact that the primary reason
for the crisis in the abalone fishery appears to be the uncontrolled
and rapacious poaching of the resource over an extended period.
However, the case made out by the department's scientists and
officials that, at this stage, only an overall indefinite suspension
of the fishery will allow the resource to recover, is equally cogent.
More importantly the decision, in my view, meets the test
of
reasonableness. Notwithstanding sympathy which the Court may have for
the established rights holders and whatever doubts it
may have as to
the viability of the suspension of the fishery without a stringent
and sustained anti-poaching drive, it is not
this Court's function to
second-guess reasonable decisions taken by decision-makers,
contentious though they may be, if these are
reasonable both on their
own terms and in relation to the reasons given for them and if the
decision will reasonably result in
its ultimate goal of saving and
rebuilding the resource. Of course, only time will tell if that goal
will be achieved. Nor must
sight be lost of the fact that the
decisions are based on the recommendations of qualified departmental
staff after a thorough
process.
[47]
The ultimate test remains whether the decision taken by second
respondent was one which a reasonable decision-maker could take
and,
in my view, no case has been made out that the decision or decisions
under review, is or are not ones which could be reached
by a
reasonable decision-maker. In arriving at this conclusion I have
taken into account all the applicants' criticisms of second
respondent's decision and the response of the department's officials
thereto, even though these are by no means all mentioned in
this
judgment.
WAS
THE MINISTER ENTITLED TO SUSPEND THE FISHERY INDEFINITELY?
[48]
After the hearing counsel were requested to furnish an additional
head on the question of whether second respondent was entitled
to
indefinitely
suspend
the fishery. Section 16, the emergency measures clause in the Act,
states that
"the
Minister may suspend all or any of the fishing in that fishery or any
specified part of it"
without
specifying the duration of any such suspension. Section 14 which
deals with TAC's and other constraints on fishing provides
that the
Minister
"shall
determine the total allowable catch, the total applied effort or a
combination thereof.
Subsection
14(2) provides that a Minister
"shall
determine the portions of the total allowable catch, to be allocated
in any year to subsistence, recreational, local,
commercial and
foreign fishing respectively".
The
argument can be made, therefore, that the Minister, having
established the commercial abalone fishery and allocated rights to
holders therein for a determined period, was required to determine
the TAC on an annual basis in the fishery and by implication
was
precluded from suspending the fishery indefinitely.
[49]
There are however provisions which point in the opposite direction.
Subsection 14(5) provides that the provisions of the section
in
question shall not be construed as prohibiting the Minister from
determining that the TAC shall be nil. Furthermore, given the
wide
terms of the Minister's powers under the emergency measures
provisions in s 16 it
can
be persuasively argued that the Minister's powers of suspension in a
fishery are not limited as to time. When regard is had
to the
Director-General's recommendation to second respondent to suspend
wild abalone commercial fishing it seems reasonably clear
that the
purpose of suspending the fishery is to enable the resource to
rebuild and recover. Further, the notice in the gazette
in terms of s
16(2) announces the suspension of the fishery "until further
notice". In context that appears to contemplate
notice that
commercial fishing for wild abalone may again be undertaken at a time
when the resources have recovered sufficiently.
The press statement
made on 25 October 2007 also suggested, in the reference to the
monitoring of abalone population dynamics,
that when they have
recovered sufficiently to permit sustainable exploitation on a
commercial basis, an abalone TAC will be fixed.
[50]
Any concern that by suspending commercial fishing in the fishery
indefinitely, second respondent might evade his responsibility
to
lift the suspension of the fishery and establish a TAC where that is
appropriate, is met by the provisions of s 6(2)(g) of PAJA
which
allows for the institution of judicial review proceedings of
administrative action where that action consists of a failure
to take
a decision.
[51]
In the result I am satisfied, in all the circumstances, that the
decision or decisions of second respondent cannot be successfully
reviewed.
COSTS
[52]
Respondents sought the costs of the entire proceedings including the
costs of two counsel in respect of all the appearances
in this Court
since 25 October 2007. I have little doubt, however, that the
interdict proceedings launched by applicants, later
converted into
this review, played an instrumental role in second respondent's
decision of 31 October 2007 to postpone the suspension
of the fishery
and to allow limited harvesting for a three month period.
Furthermore, given the drastic impact of the decision
on the ability
of the rights holders to earn their living, I consider they were
justified in seeking access to the record of the
decision-making
which led to the indefinite suspension of the fishery.
[53]
Taking all the circumstances into account, in my view the appropriate
costs order would be to award costs to respondents for
that period of
the action commencing a reasonable period after their filing of the
record of decision making in this matter. The
record was filed on 8
November 2007 after which applicants had ten days within which to
vary the terms of their notice of motion
or supplement their
supporting affidavits. In my view the applicants should not suffer a
costs order for the period prior to 23
November 2007.
ORDER
[54]
The
application is dismissed and the respondents are awarded costs with
effect from 23 November 2007 onwards, such costs to include
the costs
of two counsel.
LJ
BOZALEK, J