Laingville Fisheries (Pty) Ltd and Others v Minister of Environmental Affairs and Tourism and Others (11077/06, 1361/07,1446/07, 1452/07 & 1792/07) [2008] ZAWCHC 28 (30 May 2008)

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[2008] ZAWCHC 28
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Laingville Fisheries (Pty) Ltd and Others v Minister of Environmental Affairs and Tourism and Others (11077/06, 1361/07,1446/07, 1452/07 & 1792/07) [2008] ZAWCHC 28 (30 May 2008)

Reportable
(in respect of paras 22–47)
in
the high court of South Africa
(cape
of good hope provincial division)
Case
Nos: 11077/06, 1361/07,
1446/07, 1452/07 & 1792/07
In
the matter between:
LAINGVILLE
FISHERIES (PTY) LTD Applicant: 11077/06
hoxies
(PTY) LTD : 1361/07
Foodcorp
(PTY) LTD : 1446/07
ziabuya
fishing (eastern Cape)
(PTY) LTD : 1452/07
bato
star fishing (PTY) LTD : 1792/07
and
the
MINISTER OF environmental
affairs and tourism First Respondent
the
deputy-director general:
Department of environmental
affairs
and tourism Second Respondent
And
various other Respondents
judgment:
delivered 30 may 2008
Griesel
et Waglay
JJ:
Introduction
A
quota in the fishing industry has been described as ‘a
much-coveted asset’.
1
These assets became even more coveted when it was decided by the
Department of Environ­mental Affairs and Tourism (
the
Department
) that, upon expiry of the then existing medium-term
quotas in 2005, future fishing rights would be allocated for a
period of fifteen
years, instead of the much shorter periods
utilised until that stage.
This
judgment concerns the validity of the allocation of some of the
long-term fishing rights in the hake deep sea trawl (
HDST
)
sector of the fishing industry. The allocations were made in terms
of the Marine Living Resources Act 18 of 1998 (
the Act
). They
were made, in the first instance, by the Deputy Director-General
(
the DDG
), who is the second respondent in these proceedings.
The Minister (the first respondent herein), acting in terms of s 79
of
the Act, had earlier delegated to the DDG the power to deal with
the allocation of long-term fishing rights in the HDST sector.
Appeals
to the Minister against the decisions of the DDG were sub­sequently
lodged
on behalf of
some 58 disgruntled
applicants in terms of s 80 of the Act and were determined by
the Minister on 13 August 2006.
Pursuant
to the decisions by the Minister on appeal, six separate
applications for review of the Minister’s decisions were launched
in this court by some of the participants in the process. They are
(in chrono­logical order):
Laingville
Fisheries (Pty) Limited (
Laingville
) (Case No 11077/06);
Hoxies
(Pty) Limited (
Hoxies
) (Case No 1361/07);
Foodcorp
(Pty) Limited (
Food­corp
) (Case No 1446/07);
Ziabuya
Fishing (Eastern Cape) (Pty) Limited (
Ziabuya
) (Case No
1452/07);
Bato
Star Fishing (Pty) Limited (
Bato Star
) (Case No 1792/07); and
Azanian
Fishing (Pty) Limited (
Azanian
).
The
appli­cation by Azanian was withdrawn prior to the hearing and
it played no part in the proceedings before us, whereas the
application by Ziabuya was settled during the course of these
proceedings. By agreement between the parties, an order will be

issued in that matter in the terms set out at the end of this
judgment.
The
four remaining applications are opposed by the Minister and the DDG
(
the State respondents
), as well as by certain other
successful rights holders (
the industry respondents
). Because
all the applications concern the same adminis­trative action and
many of the review grounds or defences overlap to
a greater or
lesser extent, it was ordered, by agreement, that the various
appli­cations for review be heard together.
As
was to be expected from the nature of the litigation, the process
resulted in a veritable mountain of paper being placed before
us,
comprising not only the various sets of affidavits (with annexures)
in each individual application, but also the voluminous
review
record prepared in terms of rule 53. In addition, extensive heads of
argument and bundles of authorities were submitted
to us by counsel
– truly a ‘trial by Xerox’.
We
accordingly heard oral submissions, extending over some six court
days, from eight separate sets of counsel. In preparing this
composite judg­ment, our task has been facilitated by the fact
that the nature and history of the South African fishing industry
and the relevant provisions of the Act as well as the nature of the
application process, have been the subject of numerous decisions
of
our highest courts over recent years.
2
Moreover, some of the relevant history and background of the hdst
sector of the hake fishing industry with which the present
applications
are concerned have been discussed in some detail in
Bato Star (CC)
.
3
We accordingly do not intend burdening this judgment by reiterating
the legal principals or factual details contained in those
judgments
save to the extent necessary to decide the issues raised before us.
The
application process
As
in the past, the application process adopted by the Department for
the determination of allo­cations in the various sectors
–
including the HDST sector – was ‘a detailed and complex one’.
4
It has also been described by one of the industry respondents before
us as ‘open and interactive’. By and large, the vast majority
of
participants in the process agreed that it was conducted ‘in an
administratively fair and regular manner and the outcome was
lawful
and reasonable’. The lengthy record on review amply supports these
con­clusions.
The
procedure adopted was broadly similar to the one described in some
detail in
Bato Star
(CC)
.
5
On 15 June 2005, by means of a General Notice published in the
Government Gazette,
6
the Minister invited applications for rights to undertake commercial
fishing in seven highly-structured, capital-intensive sectors,
in­cluding the HDST sector. This was done pursuant to the
provisions of s 18(1) and (2) of the Act, which read as
follows:
‘
(1) No
person shall undertake commercial fishing or subsistence fishing,
engage in mari­culture or operate a fish processing
establishment unless a right to undertake or engage in such an
activity or to operate such an establishment has been granted to
such a person by the Minister.
(2) An
application for any right referred to in subsection (1) shall be
submitted to the Minister in the manner that the Minister
may
determine.’
The
notice in the Gazette contained a number of schedules regulating the
manner determined by the Minister in which the application
process
would be dealt with, including the following schedules relevant to
the deter­mina­tion of the present applications:
the
General Policy on the Allocation and Management of Long Term
Commercial Fishing Rights: 2005 (
the General policy
);
various
fishery specific policies, including the Policy for the Allo­cation
and Management of Commercial Fishing Rights in the
Hake Deep-Sea
Trawl Fishery: 2005 (
the Hake policy
); and
Explanatory
Notes for applicants (
the Explanatory notes
).
The
General policy informed prospective applicants for fishing rights
that the rights allocation process was competitive in nature
and was
designed to rank applicants according to a set of criteria in order
to identify the best applicants. It recorded that these
‘balancing
criteria’ would be weighted for the purpose of ranking applicants.
The
Hake policy stated that long-term rights in the HDST sector would be
allocated for a period of 15 years, starting on 1 January
2006 and
ending on 31 December 2020. It also reiterated that applicants
would be assessed in terms of a set of ‘comparative
balancing
criteria’, stated that a cut-off score or rank would then be
determined in order to select the successful applicants
and that
thereafter a proportion of the HDST total allowable catch (
TAC
)
would be allocated to each successful applicant in terms of a set of
‘quantum criteria’.
As
far as the application process itself was concerned, the Notice
stated that prospective applicants had to register electronically
and that the process of electronic registration and distribution of
application forms would run from 17 June to 1 July 2005.
The
application form included a section relevant to the determination of
this application headed ‘Important Informa­tion:
Instructions’
(
the Instructions
).
The
Notice further stipulated that applications for long-term rights in
the HDST sector (and some of the other sectors) had to be
submitted
on 14 or 15 July 2005 at the Good Hope Centre in Cape Town.
(Following represent­ations by the industry, this deadline
was
subsequently extended to 17h00 on 2 August 2005 at the same venue.)
The
General policy and the Instructions stated, amongst other things,
the following:
Applicants
had to engage independent auditors to verify the inform­ation
provided in certain components of their application
forms. The
components in question were identified by a magnifying glass icon in
the application forms.
The
application form had to be completed electronically and saved onto
two blank compact discs provided on registration. Annexures
to the
application form did not have to be scanned and saved onto the CDs.
The
application also had to be printed out and the declaration had to be
signed by the applicant’s authorised representative and
attested
before a commissioner of oaths. The printed version of the
electronic application, duly signed and attested, had to be
punched
and placed into lever-arch files with a divider before each
annexure.
One
true copy of the printed version of the application had to be made.
This copy had to be punched and filed in the same manner
as the
original.
The
CD containing the application, the original printed version (signed
and attested) and the copy of the printed version had to
be
hand-delivered on time at the right place (i.e. by 17h00 on 2 August
2005 at the Good Hope Centre in Cape Town).
The
Instructions provided that ‘improperly lodged’ applications
would be refused. By this was meant:
any
application ‘received late’;
where
the applicant makes no or short payment of the application fee; or
any
application ‘lodged in a manner contrary to the Instructions’.
The
Instructions also provided that ‘materially defective’
applications would be refused, namely:
any
application not signed and attested by the applicant’s authorised
representative;
any
application where the auditor’s report is not submitted or signed;
where
more than one application is received for a right in the same
sector; or
where
the applicant ‘provides false information or documents, fails to
disclose material information or attempts to influence
the Minister
or the delegated authority ...’.
The
General policy added that:
‘
Information
submitted after the closing day will not be considered, unless
requested by the Rights Verification Unit, the delegated
authority
or the Minister as part of the rights allo­cation or appeal
process;
The
submission of false information or false documents or the failure to
disclose material information will constitute an independent
ground
for refusing an application; and
An
application is materially defective ... if the applicant pro­vided
false information or false documents, or failed to disclose
material
information ... during the application period.’
Notwithstanding
the extended deadline, some of the industry participants did not
find it possible to lodge their applications timeously.
Some missed
the cut-off time by minutes, if not seconds. This was due to the
fact that the main doors to the Good Hope Centre,
the designated
reception centre, were closed punctually at the extended deadline,
namely 17h00 on 2 August 2005. This left a few
applicants stranded
outside the doors and it was thus not possible for those applicants
to lodge their applications. Because of
the policy announced earlier
by the Department, the attitude was adopted that no late
applications could be accepted or considered.
Late applicants were
informed, however, that the Minister has a general power of
exemption in terms of s 81 of the Act, which
provides as
follows:
‘
(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.’
In
due course, some of the prospective rights holders whose
appli­cations had not timeously filed availed themselves of the
potential remedy and submitted applications for exemption to the DDG
who, acting under delegated power, refused all of them.
Minister’s
decision to grant exemption in terms of s 81
The
refusal by the DDG to grant exemption to any of the latecomers gave
rise to appeals to the Minister in terms of s 80 of
the Act.
Having considered the appeals, the Minister upheld the appeals of
four of the applicants in the HDST sector, namely Laingville,
Offshore Fishing Company (Pty) Limited (
Offshore
), Port
Nolloth Fisheries (Pty) Limited (
Port Nolloth
) and Saco
Fishing (Pty) Limited (
Saco
). They were thereupon permitted
to lodge their HDST applications by a specified date, a few days
later.
This
decision of the Minister was assailed on review by Hoxies as well as
by Foodcorp (collectively referred to in this part of
the judg­ment
as
‘the applicants’
). This issue has dominated the
hearings before us and gene­rated much protracted and learned
debate by counsel.
The
respondents argued – in the nature of a point
in limine
–
that it was not open to the applicants to rely on this review ground
as the decision by the Minister to grant the exemptions
constituted
separate and discrete ‘administrative action’ for purposes of
PAJA, which had to be taken on review separately.
Moreover,
according to the respondents, such applications for review had to be
instituted within a period of 180 days after the
relevant
adminis­trative action was taken
7
and could only be instituted
after
the applicants had first
exhausted their internal remedies in this regard
8
– none of which had happened in this case.
The
applicants strenuously resisted these contentions, arguing that the
Minister’s exemption decision was no more than a ‘subsidiary
decision’ in the course of the overall HDST allocation process,
akin to interlocutory rulings. They accordingly submitted that
any
prior attack by them on the exemption decision would have been
rejected as premature. They denied, further, that there was
any
‘internal remedy’ at their disposal with which to contest the
Minister’s exemption decision. Nonetheless, both applicants
–
belatedly and
ex abundante cautela
– filed applications for
leave to amend the relief claimed in their notices of motion
‘insofar as it may be neces­sary’.
They also applied –
again provisionally – for condonation of their failure to exhaust
any internal remedy and for the failure
to launch the neces­sary
review proceedings within the statutory time limit of 180 days;
alternatively, they sought extension
of the said period.
In
the view that we take of the matter, it is not necessary to come to
any final conclusion with regard to the various issues raised
in
limine
and we specifically refrain from doing so. For purposes
of this judg­ment, we will assume in favour of the applicants,
without
deciding, that the Minister’s decision to grant the
exemp­tions in question was part and parcel of the overall
administrative
process; that the applicants did not have any
internal remedies; and that the Minister’s decision to grant the
exemptions are
indeed susceptible to review at this stage.
This
approach essentially leaves two issues for decision:
(a) whether
or not s 81 of the Act was, as a matter of law, at all
applicable in the circumstances – in other words, this issue
relates to the Minister’s authority;
(b) if
so, whether the Minister’s decision should be reviewed by this
court. (This point, in turn, relates to the Minister’s reasons.)
The
Minister’s authority
The
applicants argued that the Minister was not entitled to grant the
exemptions in question, first, because the power to exempt
in terms
of s 81(1) is limited to exemptions from provisions of ‘this
Act’, whereas the lodgement requirements laid down
in the General
policy are not provisions of the Act.
This
argument overlooks the fact that the definition of ‘this Act’ in
s 1 includes ‘any regulation or notice made or
issued under
this Act’. The General policy was published in the Government
Gazette referred to above as a schedule to General
Notice 931 of
2005. That Notice referred to an invitation to apply for commercial
fishing rights in terms of s 18 of the Act.
As
was pointed out above, s 18(2) requires applications for any
fishing rights to be submitted to the Minister ‘in the manner
that
the Minister may determine’. The Minister has determined the
manner in the General Notice and the schedules thereto. It
thus
follows that the General Notice, together with its schedules, is to
be regarded as a ‘notice made or issued under this Act’.
As a
consequence, the Notice in its entirety falls within the definition
of ‘this Act’ and s 81 of the Act is applicable
to it.
Further
support for this approach is to be found in s 15 of the
Interpretation Act 33 of 1957, which provides:
‘
When
any act, matter or thing is by any law directed or authorised to be
done by … any Minister, … the notification that such
act, matter
or thing has been done may, unless a specified instrument or method
is by that law prescribed for the notification,
be by notice in the
Gazette.’
In
the present context, s 18 of the Act ‘authorised’ the
Minister to determine the manner in which applications for fishing
rights are to be sub­mitted. The Minister has in fact determined
the manner and notified interested parties of his determination
by
way of the publication in the Gazette, with the result that the
applicants’ contention in this regard cannot be upheld.
A
second major argument advanced
on behalf of
the
applicants as to why the Minister was not authorised, in the
prevailing circumstances, to grant exemptions to the four late
participants was based on the following pro­visions of para
6.4(
a
)(i) of the General policy under the heading
‘exclusionary criteria’:
‘
Firstly,
an application will be screened to determine whether it was
properly
lodged
. An application is improperly lodged if it was received
late; … The delegated authority and the Minister has no discretion
to
condone non-compliance with the lodgement requirements.’
The
applicants argued that exemption is something conceptually different
from condo­nation, in that the latter permits of
ex post
facto
‘forgiveness’, whereas the former does not; in other
words, an exemption in terms of s 81 can only be granted in
response
to a prior request and not retrospectively. What the
Minister was in effect doing by granting exemption (so it was
argued), was
to condone with retrospective effect non-compliance
with the specific exclusionary criteria – something that he could
not do.
There
are several answers to this argument: first, there is nothing in the
dictionary definitions of ‘exempt’ or ‘exemption’
(Afrikaans: ‘vrystel’ or ‘vrystelling’) or in the plain
language of s 81 which serves to limit the word’s import
to
future events. Thus, Walker’s
Oxford Companion to Law
9
defines ‘exemption’ as ‘a privilege or provision taking a
particular case out of the general principle otherwise applicable
to
it as to other cases’.
The
intention of the legislature was to confer upon the Minister, in
appropriate cases and for sound reasons, a wide discretion
to
‘exempt’ a person from any provision of the Act – whether
prospectively or retrospectively.
Secondly,
the General policy published by the Minister pursuant to the
provisions of s 18(2) of the Act constitutes subordinate
or
delegated legis­lation.
10
As such, the provisions of the General policy can never oust or
override the discretion conferred on the Minister by Parliament
in
terms of s 81 of the Act. If the Minister could exempt a
prospective rights holder from an obligation or requirement which
the legislature had deemed necessary, he clearly also had the power
to exempt such an applicant from a condition which he himself
had
imposed
as a matter of policy
.
Moreover,
as the contents of the General policy make clear, it was adopted ‘in
order to guide the delegated authorities when allocating
fishing
rights and permits’. It was intended ‘to serve as a guide for
the long-term rights allocation process’ – not to
put the
Minister, metaphorically speaking, in his own straitjacket. The
Minister could not, by relying blindly on the policy guidelines
framed by himself, effectively fetter the discretion conferred upon
him by Parliament in s 81 of the Act. Had the Minister
adopted
that approach, this might itself have been reviewable.
11
As Hoexter
12
puts it:
‘
In
accordance with the duty to exercise authority, administrators may
not act in ways that will effectively prevent their discretionary
powers from being exercised in the manner envisaged when the power
was conferred. To put it differently, discretion may not be
unduly
limited or ‘fettered’ by its holder (or anyone else, for that
matter).’
In
any event, it appears from the evidence that the Minister’s
decision in this instance was not an
ex post facto
condonation of late applications. As a fact, no applications had yet
been submitted
on behalf of
Laingville and
other late medium-term rights holders by the time the appeals came
to be considered by the Minister. By granting
permission for the
filing of the applications, the Minister was thus not purporting to
condone
the late filing of the applications; he was
exempting
Laingville and the others from the requirement of timeous
lodge­ment.
For
these reasons, we are satisfied that the Minister was indeed, in
principle, authorised to grant exemptions in the circumstances.
The
Minister’s reasons
The
next question is whether the Minister’s exercise of his discretion
is reviewable. As mentioned above, the Minister may grant
an
exemp­tion if in
his
opinion there are ‘sound reasons’
to do so.
We
do not find it necessary, for purposes hereof, to embark upon a full
analysis of the interesting jurisprudential debate concerning
subjective jurisdictional facts and the impact of the Constitution.
13
We accept, as sub­mitted by Hoexter,
14
that decisions which have been made pursuant to subjectively phrased
clauses will have to comply with the twin constitutional principles
of rationality and legality. She also states:
15
‘
(S)ubjective
language will still be capable of signalling the legislature’s
desire for deference on the part of the courts in
particular cases –
and that is as it should be. The demise of parliamentary sovereignty
does not mean that the courts are now
entitled to ignore the wishes
of the legislature. On the contrary, the voice of the legislature
actually deserves to be taken more,
not less, seriously than it used
to be in the pre-democratic era.’
It
was not disputed by the applicants that, in the present instance,
the Minister was genuinely of the opinion that ‘sound reasons’
existed for him to grant an exemption. Hexplained that his decision
was taken as a result of a number of factors, including
inter
alia
the need to keep well-performing small black com­panies
in the fishing industry, and a desire to ensure that medium-term
rights
holders which had invested in jobs and vessels or equipment
during the medium-term rights period and who had all the credentials
for successful continued participation in the sector, should not be
excluded for ‘technical or procedural reasons’. He was
aware
that certain communities depend on fishing for a livelihood, and he
recognised that the loss of an existing right can have
devastating
social and economic effects. He was also aware that, even with
regard to the HDST sector, one is not always dealing
with people
with commercial sophistication or significant resources, and that it
is accordingly not always fair ‘to punish ruthlessly
any failure
to meet a prescribed require­ment’.
Given
the wording of s 81(1) and the subjective nature of the
dis­cretion confer­red on the Minister in that section,
the
scope for judicial interference on review is of course extremely
limited, as pointed out earlier. The question as to whether
or not
the Minister was ‘right’ or ‘wrong’ does not arise, because
this is not an appeal. Realising these con­straints,
the
applicants argued that the reasons given by the Minister for the
decision to exempt either do not exist at all or are not sound.
On
this basis, they argued that the Minister acted ‘unreasonably,
capriciously or arbitrarily’.
The
requirement of administrative reasonableness in review pro­ceedings
is somewhat circumscribed. As stated by the Constitutional
Court, a
decision will be reviewable if it is ‘one that a reasonable
decision-maker could not reach’.
16
O’Regan J, writing for a unanimous court, proceeded as follows:
17
‘
What
will constitute a reasonable decision will depend on the
circumstances of each case, much as what will constitute a fair
procedure
will depend on the circumstances of each case. Factors
relevant to determining whether a decision is reasonable or not will
include
the nature of the decision, the identity and expertise of
the decision-maker, the range of factors relevant to the decision,
the
reasons given for the decision, the nature of the competing
interests involved and the impact of the decision on the lives and

well-being of those affected. Although the review functions of the
Court now have a substantive as well as a procedural ingredient,
the
distinction between appeals and reviews continues to be
signifi­cant. The Court should take care not to usurp the
functions
of administrative agencies. Its task is to ensure that the
decisions taken by administrative agencies fall within the bounds of
reasonableness as required by the Constitution.’
Having
regard to these principles, and ‘(giving) due weight to findings
of fact and policy decisions made by those with special
expertise
and ex­perience in the field’,
18
we are not persuaded that a reasonable decision-maker in the
position of the Minister could not have decided to exempt applicants
from the require­ment of timeous lodgement, nor can we find that
the Minister acted either capriciously or arbitrarily.
It
follows that this ground of review cannot succeed.
The
DDG’s decision
Having
considered all the applications – including those of the four late
entrants allowed in by the Minister – the DDG announced
his rights
allocation decisions in the HDST sector on 12 January 2006. The
results were captured in his ‘General Reasons for
the Decisions on
the Allocation of Rights and Quantum in the Hake Deep Sea Trawl
Fishery’. In addition, every appli­cant
received a
notification letter, informing the applicant of the DDG’s
decision, together with the reasons for his decision regarding
that
particular applicant.
In
the result, long-term commercial fishing rights were granted to 46
of the 53 medium-term right-holder applicants, no rights were
awarded to any of the new-entrant applicants and the DDG reserved
his decision in respect of one application (Laingville), pending
an
investigation into whether it had been amended after the closing
day.
The
General Reasons also contained, amongst other things:
an
explanation of the comparative balancing criteria applied to the
medium-term right-holder applicants from which it is clear that
in
relation to a significant number of important criteria, applicants
were scored on a weighted basis depending on their rank and
percentile placement within the group of all applicants;
a
list showing the DDG’s decisions in relation to the medium-term
right-holder applicants;
a
revised HDST Quantum model from which it is clear that the quantum
allocations were based on a comparative assessment and that
the
relative scores of applicants had a significant impact on the
allo­cation of quantum amongst them; and
a
spreadsheet setting out the allocations made to all applicants by
the DDG.
Applicants
were also informed of their right to appeal to the Minister against
the DDG’s decisions, which appeals had to be submitted
by 14 March
2006.
Appeals
to the Minister
A
total of 58 appeals were submitted to the Minister in the HDST
sector. Access was also granted to applicants, upon payment of
the
prescribed fee, to the applications and appeals of other applicants.
Comments on the other appeals could be made by 13 April
2006 and a
large number of comments were received by the Minister. These
appeals typically dealt not only with complaints as to
the
assess­ment of the respective appellants, but also raised
concerns regarding the appli­cation system as a whole and/or
the
assessment of other applicants.
The
Minister eventually determined the appeals after a further ‘detailed
and com­plex’ process and announced his decisions
on 13 August
2006. (The administra­tive fairness of the process that gave
rise to the Minister’s decisions is being assailed
by Hoxies as
one of its review grounds and the details of that process, together
with Hoxies’ arguments in that regard will be
considered later in
this judgment when we come to deal with that application.
19
)
The
Minister’s decisions were published on the Department’s website
and they were also communicated to all applicants by way
of
electronic mail, together with the Minister’s General Published
Reasons for the Decisions on the Appeals (
the Appeals GPR
).
As
appears from the Appeals GPR, the Minister decided to make certain
changes to the comparative balancing criteria and weightings
for
medium-term rights holders and the scoring systems for both such
applicants and new-entrant applicants. The Minister decided
to grant
rights to six of the appellants (all of them existing medium-term
rights holders), thus bringing the total number of successful
medium-term right-holder applicants to 52 of the 53.
All
of the applicants in the applications before us, save for
Laingville, were successful in obtaining fishing rights. Some of the
applicants complain, on different grounds, about the quantum of
their own respective quotas. Others complain about quotas awarded
to
other successful applicants.
Against
that background, we now turn to deal separately with the four
indi­vidual applications.
Laingville
(Case No 11077/06)
Laingville
is a diversified, black-owned fishing company based at St Helena
Bay. It held a medium-term commercial fishing right
in the HDST
sector for the period 1 January 2002 to 31 December 2005. It also
held medium-term rights in the hake longline, small
pelagic (anchovy
and sardine) and west coast rock lobster sectors. It owns, amongst
other things, a fish processing plant in St
Helena Bay and a half
share in the boat ‘mfv
Vera’
which it used to catch hake
pursuant to its medium-term commercial fishing right in the HDST
sector. It has ten shareholders, all
black persons, coming from
families that have been dependent on fishing for their livelihoods
in that area.
As
at the date of the launching of this application in October 2006
Laingville had invested about R20 million in the fishing
industry over the previous seven years. By reason of it being 100%
black owned and managed and capable of catching, processing
and
marketing its rights, it was regarded as a leading example on how
transformation could be achieved in the fishing industry.
The
above notwithstanding, Laingville was unsuccessful in its attempts
to obtain any long-term fishing rights in the HDST sector.
Laing­ville’s application was refused because it was
considered to be materially defective, first by the DDG and then
also
by the Minister on appeal. Its application was refused on the
grounds that its representative made false statements in an
affidavit
filed by it. According to the Minister, but for the false
statements, Laingville’s total score for its HDST application was

more than good enough to secure it a reasonable allocation in the
HDST sector.
Laingville,
aggrieved by the rejection of its application, seeks an order:
(i) reviewing
and setting aside the decision of the Minister to refuse its appeal
against the earlier refusal by the DDG to allocate
to it a long-term
right in the HDST sector; and
(ii) directing
the Minister to allocate it a long-term right.
Laingville’s
application is opposed, on the one hand by the State respondents,
and on the other by two of the successful applicants
for long-term
rights, namely the ninth respondent Blue Continent Products (Pty)
Ltd (
BCP
) and the twenty fourth respondent Irvin &
Johnson Ltd (
I&J
).
Laingville
was one of the applicants which failed to lodge its application
before the deadline of 17h00 on 2 August 2005. On 3 August
2005 it
wrote to the Minister, requesting a seven day extension of the
deadline for the submission of its application. In its letter
filed
in support of the extension, one Apollos, writing
on
behalf of
Laingville, explained that:
‘
.
. . Laingville only received their
audit [report] late in the
evening on 1 August 2005
(i.e. 20h30). When the audit report
was inspected it was established that the audit had not been
completed in accordance with
the requirements of the application
forms in that large sections of the audit requirements have been
left blank. It is to be borne
in mind that the application of
Laingville was furnished to them on 25 July 2005 and the company was
powerless in their endeavours
to have the auditors expedite the
audit. An attempt was made to remedy the shortfalls in the audit
and for the auditors once again
to review same but even this effort
proved futile. Thus, but for the audit of the applications of
Laingville, same was (sic) complete
and regular in all respects.”
(emphasis added)
The
Department did not reply to Laingville’s request for an extension.
Laingville, together with other applicants was, however,
advised
that they could apply for exemptions in terms of s 81 of the
Act from the requirement to lodge applications within
the prescribed
time period.
The
electronic and printed versions of Laingville’s application form
and a copy of the printed version together with an application
for
exemption from the requirement that Laingville submit its
application by 17h00 on 2 August 2005, in terms of s 81 of the
Act, were submitted to the DDG on 17 August 2005.
On
14 September 2005 the DDG notified Laingville that he had refused
its application for exemption and that Laingville could appeal
to
the Minister against his decision. The DDG provided a number of
reasons for such decision but these are not relevant for present
purposes.
On
13 October 2005 Laingville appealed to the Minister against the
DDG’s refusal to grant it an exemption under s 81. This
it
did in terms of s 80 of the Act. On 15 December 2005 the
Minister notified Laingville that its appeal against the DDG’s
refusal of the exemption had been granted and that it should submit
its application to the Department by Monday, 19 December 2005.
The
notification added the following:
‘
The
application must be lodged together with an affidavit from the
authorized representative of the applicant signed before a
Commissioner
of Oaths stating:
Whether
the application form or information contained in the application has
been amended or supplemented in any way after 17h00
on 2 August
2005;
If
the application form or information contained in the application has
been amended or supplemented in any way after 17h00 on 2
August
2005, the exact respects in which this has been done most be
identified and a full explanation given.’
On
15 December 2005 the application, together with the necessary
affidavit, was submitted by Laingville. The affidavit, attested
to
by a Mr David Clark (Clark), a director of Laingville, reads as
follows:
‘
2. The
facts deposed to herein are within my personal knowledge and belief,
and are true and correct, save where it appears otherwise
from the
contents.
‘
5. I
confirm the following in respect of the instruction now issued by
the Minister in granting our appeals:
5.1 Our
application in the Hake Deep Sea Trawl and the Small Pelagic has not
been amended or supplemented in any way after 17h00
on 2 August
2005.
5.2 Our
application forms as well as the copies and CD has (sic) been in
possession of our attorneys after same was (sic) returned
to our
attorneys by the Chief Director following the submission of our
exemption applications.
The
applications as thus filed in terms of the appeal announcement is
(sic) not amended or supplemented.’
Deloitte,
a firm of auditors appointed by the Department to assist in the
application process, investigated Laingville’s application.
On 11
January 2006 it delivered a report to the DDG which said
inter
alia
–
(a) that
the electronic version of Laingville’s application may have been
altered because the CD submitted by Laingville contained
two files,
one copied on 2 August 2005 at 15h52 and a ‘substantially modified’
one copied on 5 August 2005 at 12h59; and
(b) that
the printed version of the application submitted on 15 December 2005
conformed to the contents of the file copied to the
CD on 5 August,
except that the page of the application form which contained section
6.22 did not correspond to the contents of any
of the data files on
the CD and which, unlike the rest of the hard copy application form,
was not initialed.
On
19 January 2006 Laingville was provided with a copy of the report
prepared by Deloitte and advised that contrary to its claim,
Deloitte’s investigation had revealed that the electronic version
of the application may have been amended after 17h00 on 2 August
2006. Laingville responded to this report on 24 January 2006 by
stating that the electronic version of the application was indeed
amended after 17h00 on 2 August 2006 but only to bring it ‘in line
with the hard copy of the original application forms.’ Laingville
stated amongst other things, that –
‘
the
duly signed and commissioned application of Laingville was not
altered or amended after 2 August 2005;
‘
the
electronic CD’s were updated to accord with the
signed/commissioned hard copy by the administrative staff who
assisted Laingville
in their applications’; and that
‘
neither
the authorized representative (Davey Clark) or (sic) any
director/shareholder of Laingville were aware of the fact that
the
CD’s had been brought into line with the hard copy of the original
application form.’
On
9 February 2006 the DDG notified Laingville that he had refused its
application because it was –
‘
materially
defective in that the applicant provided false information or failed
to disclose material information.’
The
DDG added:
‘
Mr.
David Johannes Clark attested to an affidavit on 15 December 2005 in
which it is stated that the application has not been amended
or
supplemented in any way after 17h00 on 2 August 2005. This
information is false.’
On
17 February 2006 Laingville delivered an appeal to the Minister
against the DDG’s refusal of its application for long-term
commercial fishing rights. On 24 July 2006 the DDG submitted its
report in terms of regulation 5(3) of the General Regulations
to the
Minister about Laingville’s appeal. The report concluded as
follows:
‘
Application
altered after date of submission. Recommendation: Assessed as
materially defective on legal advise (sic).’
On
18 August 2006 the Minister notified Laingville that he had refused
its appeal, saying that –
‘
the
appeal was refused as the application was materially defective.
Appellant stated that the application was not amended. Appellant
thereafter admitted that the electronic version of the application
form was amended. If an applicant provides false information,
the
application may be refused for being materially defective.’
Further
reasons were furnished by the Minister after the commencement of
these proceedings. These were set out as follows:
‘
3. Before
the application was receipted, the Applicant was required to state
under oath whether the application had been altered
in any way after
closing day and if so, to indicate in what respects it was altered
and the reasons therefore. The Applicant stated
that the
application had not been altered in any way after closing day.
4. IT
experts of the Department of Environmental Affairs and Tourism:
Branch Marine and Coastal Management (“the Department)
were then
requested to determine whether the electronic CD submitted with the
application (and the other exempted applications)
had been accessed
or modified after closing day.
5. It
was found that, according to the electronic file properties, files
were accessed and re-saved after closing date in the case
of the
Applicant and a few others. The Department’s IT specialists were,
however, unable to determine whether any of the information
on the
CD was in fact altered. They were only able to determine that the
CD was accessed and re-saved.
6. The
application was then reserved pending an investigation by the RVU
into whether the application had been amended after closing
day.
7. The
RVU was then requested to further investigate the matter. A report
was received. In terms of the RVU report there were
material
differences between the content of the CD before and after closing
day. The CD was modified in a number of respects.
The RVU
concluded that, if the date and time settings of the original
systems were correct, the electronic application submitted
on CD
contained data was indeed modified after 2 August 2005.
8. The
applicant was afforded the opportunity to respond to the RVU report.
9. Second
Respondent decided to refuse the application on the basis that it
was materially defective in that the applicant provided
false
information or failed to disclose material information.
10. The
General Policy (para 6.2(m)(v)) provides as follows:
“
.
. . The submission of false information or false documents or the
failure to disclose material information will constitute a

independent ground for refusing an application”.
11. The
false information provided was the statement that the application
had not been altered in any way after closing day, whereas
it
clearly was altered after closing day.
12. The
Applicant submitted an appeal which was carefully considered by the
First Respondent. First Respondent formed the view that,
if an
applicant provides false information, the application may be
refused. It is not a requirement that the applicant knows that
the
information is false (this may however be an element of the criminal
offence). The Applicant provided false information in
that it was
stated that the application was not amended whereas it is clear from
the RVU report that it was materially defective.’
Paragraph
6(2)(m)(v) of the General Conditions provided that applicants were
required to attest to a declaration before a commissioner
of oaths
stating, amongst other things, that they have not submitted false
information or false documents in and with their applications
and
that submission of false information or false documents would
constitute an independent ground for refusing an application.
In
this case, Laingville contends that, because it was not the
information or documentation submitted with their application that
was false but only the affidavit deposed to on 15 December 2005 in
support of its application for the exemption, the provisions
of
paragraph 6 of the General Conditions could not apply. Laingville
adds that the description in the Instructions of a materially
defective application does not include a reference to false or
misleading information disclosed elsewhere than in the application
form.
This
argument is contrived. We fail to understand why an affidavit which
forms the very basis for the admission of an application
must be
viewed independently of the rules that govern the application. The
affidavit must be seen as part of the application or,
at the very
least, as part of the necessary document relating to the application
process as a whole. Furthermore and in any event
the General Policy
clearly states that an application is materially defective if the
applicant provides ‘false information or
false documents or fails
to disclose material information . .
. during the application
period
’
(our emphasis). The application period must
mean the period commencing with the invitation to apply for the
commercial fishing right
culminating with the Minister’s decisions
on any appeals against the DDG’s decisions. In terms of the
process, therefore, false
information or false documents contained
in or accompanying an application rendered an application
‘materially defective’.
With
regard to the application itself, all of the applicants were
required to depose to a declaration in the Application form before
a
commissioner of oaths stating that ‘the information submitted with
and in this Application is true and correct and complete’.
This
declaration was made by Clark on behalf of Laingville on 27 July
2005 yet, at the time of signing the declaration, the audit
report
was not complete. The audit report was only completed and supplied
to Laingville on 1 August 2005.
20
Furthermore, by its own admission, the auditors only provided it
with the further necessary information which they needed for

purposes of completing their application by 14h00 on 2 August 2005.
Thus, the declaration was, at the time it was made, untruthful.

This falsehood is compounded by the application form, which was only
initialled on 2 August 2005; and, initialled by a person
other that
the commissioner who took Clark’s oath on 27 July 2005.
The
declaration to the application form was thus neither properly signed
nor properly attested but an impression was created by
Laingville
that this was properly done. This was deliberately misleading, if
not dishonest. The failure to submit an application
form with a
proper declaration invalidated the whole of Laingville’s
application. The fact that the declaration was false also
made the
application ‘materially defective’ as provided in the
Instruction.
Turning
then to the issue as to whether or not Laingville’s application
was modified or amended after 2 August 2005, it is common
cause that
the statement in the affidavit filed by Clark that Laingville’s
application was neither modified nor amended in any
way after that
date was false. Laingville admits that the electronic version of the
application was indeed altered after the 2
August 2005. Laingville,
however, maintains its denial that it modified or altered the
printed version of its application, despite
the contrary conclusion
arrived at by Deloitte’s after conducting a second forensic
investigation, based on a detailed examination
of Laingville’s
documents, printers and other information.
In
this respect, after considering Laingville’s submissions, the
Minister rejected its claim that only the electronic version
of the
application was amended and that only because
‘certain
information recorded in the signed and commissioned application form
did not appear on the electronic disc probably because
this
information had not been properly saved’. The Minister added the
following:
‘
The
cursory (and imprecise) explanation provided by Laingville is not
very plausible: it is difficult to believe that the person
who was
charged with capturing data on the CDs would have failed to save
numerous alleged changes on both Laingville’s hake deep-sea
trawl
application and its small pelagics application.
…
Furthermore
the report provided by the forensic investigators pointed out that
for information contained in the signed and commissioned
application
form not to appear on the electronic disc because that information
was not properly saved would have meant that “a
trained data
capturer had to ignore a pop-up window asking whether the changes
should be saved before closing the document”.
Why this happened is
not explained by Laingville.’
Laingville
did not seek to refer the dispute about whether or not the printed
version was modified or altered to be determined by
way of oral
evidence and we believe, correctly so. Having regard to facts set
out by the respondents, supported and based on the
forensic reports,
which in turn is supported by evidence, there are no grounds upon
which it can be said that the allegations made
by the respondents
are either far-fetched, untenable or implausible. The Court,
following the
Plascon Evans
rule,
21
is obliged to accept the version as set out by the respondents and
must therefore conclude that it was not just the electronic
version,
but also the hard copy of the application that was amended and
modified after 17h00 on 2 August 2005 and that Laingville
made false
statements when it made averments to the contrary.
The
condition upon which Laingville was exempted by the Minister under
s 81 of the Act from the requirement that it had to
submit its
application by the stipulated deadline was that Laingville had to
submit, together with its application, an affidavit
stating whether
or not the application had been amended or supplemented in any way
after the submission deadline and, if so, specifying
the amendments
and explaining the reasons for them. Having failed to submit a
truthful affidavit, it not only failed to comply
with the condition
precedent to have its application considered, but its application
fell within the definition of being ‘materially
defective’.
Laingville’s
further submission is that the Minister ‘precluded himself from
exercising and bringing his mind to bear in real
sense to the
particular circumstances of this matter’ because he placed undue
weight on the con­clusion arrived by the forensic
investigators
and on the legal advice received by the DDG and the conclusion of
the DDG that it had made false statements. This
is denied by the
Minister. There is nothing to gainsay the Minister’s statement
that in arriving at the decision he did, he considered
all the
relevant factors including such response as Laingville did submit to
the first forensic report. We see no reason not to
accept the
Minister’s averments in respect hereof.
Laingville’s
further argument was that the Minister acted inconsistent­ly in
rejecting its application as ‘materially defective’
while at the
same time accepting application which clearly fell within the
parameters of being ‘materially defective’ in terms
of the
Instructions contained in the appli­cation form. According to
Laingville, despite the proviso in the Instructions that
applications which had not been signed and commissioned by an
authorised representative of applicants would be rejected on the
grounds that they were ‘materially defective’ as would
applications which were not accompanied by audit reports, the
Minister
overlooked these defects with respect to certain
applicants.
The
above complaint is premised upon the Minister’s General Reasons
for the Decisions on Appeals on the HDST sector where it was
stated:
‘
The
exclusionary criteria were not changed in the Cluster A fisheries,
but, after considering legal advice, the Minister decided
that the
failure to sign the declaration and to have it attested to by the
authorized representative of the applicant, and if applicable,
the
authorized representative of the Holding Company, the Sister Company
or the JV Partner(s), could be cured on appeal. The same
decision
was taken in respect of the failure to provide an audit report.’
The
Minister however explains that the difference between Laing­ville’s
application and that of the other applications which
were
un­accompanied by the audit report or where the declaration was
not signed or attested, was that those applications contained
omissions and he was prepared to allow an applicant to remedy an
omission on appeal. It is evident that the Minister consistently
allowed applications where there were no misrepresent­ations or
dishonesty; where no amendments were made after the closing
date;
and where there were omissions, to be cured. This we believe, in the
nature of the Minister’s function, must be allowed
in order to
grant him the flexibility to arrive at a fair and proper decision.
The Minister was however not prepared to allow an
applicant who was
untruthful a similar concession. Laingville obviously fell in the
latter category.
Laingville’s
argument is that the alterations/amendments made to its application
were not material. Even assuming this to be correct,
it is beside
the point. The issue is not one of materiality but rather of
misrepresentation and/or dishonesty. The Minister states
that he
believed it was ‘critical for the integrity of the application
process that late applications should not be amended’.
It is not
for this court to countermand the Minister’s decision,
particularly where he has arrived at the decision after giving
it
proper consideration.
Finally,
Laingville contends that it ‘deserves a benevolent approach
because it is a 100% black owned and managed entity’; it
has shown
its commitment to the industry by investing millions in a fish
processing establishment; it owns a fishing vessel and
has displayed
its capacity to catch its allocation; it even established markets
for its product; that it is a ‘vehicle for socio-economic
and
commercial needs in St Helena Bay’; that non-allocation in the
HDST sector is having a devastating effect, not only on individual
members of the applicant but also the community of Laingville and
St Helena Bay.
In
the above respect the Minister states that both he and the DDG were
acutely aware of Laingville’s credentials and track record
and
that Laingville’s score was more than good enough for it to be
allocated a quota in the HDST sector; that the decision it
made was
not an easy one, but that he felt that he had to refuse Laingville’s
application because of all the false statements
contained in its
application.
It
is not for us to decide whether or not the Minister’s decision is
the correct one. Laingville does evoke a great degree of
sympathy
and clearly those advising it at the time – the auditors, lawyers
and the consultants – should shoulder at least some
of the blame
for the fact that Laingville is in the position it is. At the end of
the day, however, because of the limitation placed
upon us by the
nature of this application, we only need to be satisfied that the
Minister properly applied his mind in arriving
at the decision he
did. We can come to no other conclusion than the fact that he did do
so. It can also not be shown that the Minister’s
decision was one
that a reasonable decision-maker would not have made. The Minister
clearly took into account all the relevant
factors in arriving at
his decision and his decision is not tainted with any irregularity.
There is thus no basis for the decision
to be set aside.
In
the result Laingville’s application falls to be dismissed with
costs, including the costs of two counsel.
Hoxies
(Case No 1361/07)
Hoxies
assails the decision of the Minister on various grounds, the first
of which was to the effect that the Minister’s decision
to exempt
four applicants in the HDST sector from the requirement of lodging
their applications for long-term fishing rights timeously,
was
fundamentally flawed. We have earlier in this judgment dismissed the
attack by Hoxies (and Foodcorp) on the Minister’s decisions
in
this regard.
22
Hoxies’
remaining review grounds are the following:
(a) The
process followed by the Minister in determining the appeals was
flawed;
(b) The
Minister’s scoring of Hoxies’ appeal, in respect of the jobs and
employment created by it, was arbitrary and irrational;
(c) The
Minister’s scoring of Hoxies’ appeal in respect of its on-shore
investments was arbitrary and irrational;
(d) The
Minister erred in not excluding the applications of a number of the
Viking group companies on the grounds that they were materially
defective.
The
appeal process
Hoxies
contends that there were certain ‘pro­cedural irregularities
in the appeal process’, with the result that the process
followed
by the Minister in determining the appeals was flawed in several
respects. (Although it does not spell it out in so many
words, it
can be accepted, for purposes hereof, that its complaint is based on
alleged procedural unfairness.
23
)
The
nature and content of the com­plaints can be summarised as
follows:
(a) The
DDG participated improperly and impermissibly in the deter­mination
of the appeals, with the result that the process did
not com­ply
with the statutory scheme for consideration of appeals.
(b) The
Minister failed to read and consider the basic documents required for
the proper determination of the appeals, with the result
that he did
not properly apply his mind to the issues raised thereby. In this
regard, it is alleged that the Minister supposedly
‘determined the
appeals on the basis of the reg 5(3) reports and little or
nothing else’. He is also accused of ‘rubber-stamping’
or
‘uncritically’ accepting the reg 5(3) reports, and failing
independently to probe and scrutinise the appeals.
(c) The
Minister acted procedurally unfairly by taking into account against
Hoxies conclusions reached as a result of submissions
in another
sector to which Hoxies was not privy.
The
statutory framework regulating appeals to the Minister is to be
found in s 80 of the Act, read with the provisions of reg 5
of the applicable regulations.
24
Section 80 of the Act provides that any affected person may appeal
to the Minister against a decision taken by any person acting
under
power delegated in terms of the Act. Such appeal must be noted and
shall be dealt with ‘in the manner and in accordance
with the
procedure prescribed by the Minister’. The Minister, in turn,
‘shall consider any matter submitted to him or her on
appeal,
after giving every person with an interest in the matter an
opportunity to state his or her case’.
The
procedure for appeals is prescribed by reg 5. It requires an appeal
to be submitted in writing to the Minister within 30 days
after the
appellant has been notified of the decision against which he or she
is appealing. The appeal must set out all the relevant
facts as well
as the grounds of appeal and must be accompanied by any relevant
document or a copy thereof certified as true by
a commissioner of
oaths. Reg 5(3) provides that –
‘
The
appeal contemplated in sub regulation (2) shall be served by the
appellant on the person against whose decision the appeal is
made,
and that person shall submit a report on the appeal to the Minister
within 30 days after the appeal had been served on him
or her.’
It
has authoritatively been held that the appeal process en­visaged
by s 80 of the Act is ‘clearly an appeal in the wide
sense’,
involving ‘a complete rehearing and a fresh determination on the
merits of the appli­cation’.
25
Having said that, however, it is important to bear in mind in this
context that adminis­trative appeals and appeal tribunals
can
take many forms, as can the procedure followed on appeal. Baxter
26
disting­uishes at least six categories of appellate
tribunals or bodies, ranging from the ministerial (political) end of
the
spectrum to the judicial (legal).
With
regard to appeals to a minister, Baxter says the following:
27
‘…
(W)here
the public interest and the application of official policies are
thought to be paramount, a minister or some other politically
accountable official or body provides the model.
…
Since
the primary function of a minister is a political one, this form of
appeal is obviously only appropriate where it is considered
that
policy and administrative considerations are paramount and that
disputes involving such considerations require his personal
settlement. The minister can hardly be expected to adopt a detached
posture, acting as an independent arbitrator.’
When
one has regard to these principles, it appears to us that it would
be fallacious to equate the appeal process contemplated
by s 80
with an appeal from a lower court to a higher court in the judicial
hierarchy, as Hoxies has done: counsel referred
in this context to
the interaction that took place between the Minister and the DDG
during the appeal process and the finalisation
of the reg 5(3)
reports and likened this to the situation of a High Court judge who
is sitting in the appeal assisting the
magistrate in drafting the
reasons given by him or her in response to the appellant’s notice
of appeal. Bearing in mind that
a fair administrative procedure
depends on the circumstances of each case,
28
we find nothing inappropriate or irregular or unfair in the
interaction between the Minister and the DDG during the appeal
process
in question. The decision of the SCA in
Scenematic,
supra,
makes it clear that the Minister, in dealing with
appeals, is not supposed to work in isolation, receiving only the
reg 5(3)
reports and the appeal records for his sole
consideration; on the contrary, he is entitled to have discussions
with Departmental
officials, including the DDG, and advisers
appointed to assist with the appeal, before he makes his decision;
the only proviso
being that, in the end, the Minister must come to
his own decision.
This
brings us to the second complaint raised by Hoxies, namely that the
Minister failed to read and consider the basic documents
required
for the proper determination of the appeals, with the result that he
did not properly apply his mind to the issues raised
by the appeals
and simply ‘rubber-stamped’ the DDG’s recommendations. Hoxies
claims that the Minister was required to consider
three different
sources of information before making his decision on appeal, namely
(a) the notices of appeal; (b) the
reg 5(3) reports;
and (c) the submissions received from the various applicants in
terms of s 80(3). As indicated
above, Hoxies claims that,
contrary to the regulatory framework it seems ‘that the Minister
determined the appeals on the basis
of the reg 5(3) reports and
little or nothing else’.
The
Minister dealt with this complaint as follows:
‘
...I
considered the appeals in the light of all the information available
to me, including the appeals themselves, the regulation
5(3)
reports, discussions with officials and advisors, and the legal and
policy framework, and then decided the appeals. It is
therefore not
correct that I determined the appeals on the basis of the regulation
5(3) reports and little or nothing else.’
Earlier
in his answering affidavit, the Minister stated:
‘
I
also considered legal memoranda and legal opinions, all of which
served to inform my knowledge and insight into the process. I
then
considered all the documentation at my disposal and made my
decisions in respect of the appeals.’
The
Minister expanded on this in a supplementary affidavit, filed in
response to new matter in Hoxies’ replying affidavit:
‘
At
some stage prior to 7 August 2006 (at this stage I cannot recall
precisely when, except to say that it was reasonably long before
that date), I was furnished with the application and appeal
documents for the Cluster A fisheries in respect of which I made my
final appeal decisions on Thursday, 10 August 2006. I was provided
with the final reg 5(3) reports in respect of those fisheries
after a presentation by the Department and Resolve on Monday, 7
August 2006.’
Hoxies
takes issue with the Minister on his above-quoted statements,
pointing out that they are ‘evasive and unhelpful’. The
issue
raised by Hoxies, so it is pointed out by counsel, was what
information the Minister had
read and considered
, not what
was
available
to him. With regard to the Minister’s
statement that he did ‘have sight’ of comments elicited from
Hoxies in response to
an email inviting all
appellant
s
to comment on all appeals lodged, Hoxies claimed that ‘it is not
clear that he read them or that he had regard to the information
contained in them to the extent that they were not reflected in the
reports’. Hoxies therefore contends that it would be appro­priate
for the matter to be a referred to oral evidence or the Minister to
submit to -examination so as to determine what exactly the
Minister
read and considered before determining the appeals, and whether he
properly applied his mind to the information before
him.
In
our opinion, these complaints by
Hoxies
are frivolous and are based on a misreading of the Minister’s
evidence. When the Minister’s affidavits are read together
and in
context, there can be no doubt that his decisions in respect of the
appeals were the culmination of much deliberation, extending
over
months. With regard to the appeal process as a whole, the Minister
stated unequivocally that he ‘took the process very seriously,
and
applied [his] mind to the matter’. This statement is amply borne
out by the record as a whole and, in our view, there are
no
reasonable grounds for doubting the correctness of the Minister’s
statements in this regard.
As
for the allegations of ‘rubber-stamping’ or ‘uncritically’
accepting the reg 5(3) reports, these are likewise without
merit. The fact that the Minister accepted all of the reg 5(3)
reports is easily explained by the fact that the Minister had,
during the preceding weeks and months, been discussing the content
of those reports with the DDG as part of the interactive process.
The final reports therefore often carried the Minister’s prior
input. What should also be borne in mind is that, in quite a few
instances – no doubt as a result of the said interaction – the
DDG had changed his earlier views and had altered his original
allocations.
In
conclusion on this aspect, we find it noteworthy, as pointed out
above,
29
that the vast majority of participants in the process agreed that it
was conducted in an administratively fair and regular manner
and
that the outcome was lawful and reasonable. None of the other
applicants, who had to trawl wide and deep to find any review
grounds, saw fit to raise this argument based on alleged systemic
unfairness. (Ziabuya, who did initially raise a similar argument,
did not persist with it and settled for much narrower relief.)
In
the circumstances, we are satisfied that the Minister made the final
decisions himself, after considering the relevant issues
over a
number of months and familiarising himself with the relevant
documentation. The Minister did not simply ‘rubber stamp’
decisions made by others. It follows that, in these circumstances, a
referral to oral evidence would neither be com­petent
nor
appropriate
30
and Hoxies’ request in this regard is declined.
Turning
to Hoxies’ final complaint regarding the alleged procedural
unfairness of the process, the DDG in his answering affidavit
made
mention in passing of oral hearings in the horse mackerel sector
that took place on 15 June 2005. This led to an objection,
raised
for the first time in Hoxies’ replying affidavit, to the fact that
the Minister took into account, for purposes of determining
its
appeal, the oral hearings in this sector to which Hoxies was not
privy.
No
mention was made of this complaint, either in the founding
affidavit, or in the substantial supplementary founding affidavit,
filed pursuant to the provisions of rule 53 after Hoxies had had the
opportunity of perusing the record on review made available
by the
Department. Hoxies is not entitled to build a new cause of action
based on factual allegations contained in the answering
affidavits
of the respondents where such allegations were not made directly in
answer to the factual grounds for relief on which
the applicant
relied.
31
For this reason alone, Hoxies’ belated objection should not be
considered at this stage.
The
objection is in any event unfounded. It appears from the Minister’s
explanation that it was decided to have oral hearings
in the horse
mackerel sector as a result of certain ‘broad legal policy issues’
which had arisen in that sector. It concerned,
among other things,
the question of whether leased property should be included as an
investment, which was a question that also
arose in other sectors,
including the HDST sector. In our view, it was not incumbent upon
the Minister to invite each and every
participant in every sector of
the fishing industry to attend every oral hearing.
Furthermore,
Hoxies was not prejudiced by the fact that it had not been invited
to the oral hearing held in a different sector.
As will appear later
herein,
32
Hoxies did not claim credit for the leased property as an
investment; it claimed to be the
de facto
owner of such
property.
For
these reasons, we conclude that none of Hoxies’ systemic
complaints can be upheld.
Scoring:
jobs and employment
The
General Policy stated that an important purpose of allocating
long-term rights was to create an environment conducive to job
creation – in particular, the creation of more permanent and
better quality jobs in the fishing industry. It further stated that
jobs created by medium-term rights holders per ton allocated as well
as increases in jobs as a result of the allocation of medium-term
rights, would be rewarded.
The
Hake Policy, likewise, stated that job creation and increases in
jobs as a result of the allocation of medium-term fishing rights
would be taken into account, particularly where applicants had
provided their employees with ‘full time employment; medical aid
and pension; and safe working conditions’.
In
schedule 8 to the application form, an applicant was required to set
out the numbers of its employees as at the end of each of
the
financial years 2001 to 2005. An explanatory note, forming part of
the standard application form, informed prospective applicants
that
the section related to the number of jobs provided by the applicant
in the sector concerned
. The note states that ‘... applicants
... involved in industries other than the fishing industry may not
take jobs provided
or salaries spent in such industries into
account, and applicants involved in other sectors of the fishing
industry may not take
jobs provided or salaries spent in those
sectors into account’. However, it was recognised by the
Department that, ‘(a)s it
is difficult to accurately determine the
exact number of employees and salaries spent on a per sector basis,
a rough estimate or
division will suffice, provided that the same
apportionment is used in any other application made by the
applicant’.
In
its application form for fishing rights in the HDST sector, Hoxies
failed to provide a breakdown of the number of jobs it provided
in
that sector. Instead it claimed 28% of its land-based staff on the
basis that ‘seafood’ purportedly accounts for 28% of
its total
turnover. Thus it alleged that, of its land-based staff complement
of 235, an additional 65.8 people should be credited
to it as
‘employees in the fishery’.
Hoxies’
claims with regard to job creation were rejected by the Minister on
appeal on the basis that it was ‘not clear that
28% of its
employees are in fact employed in the HDST sector’.
Hoxies’
response to the Minister’s decision on appeal is that his failure
to take into account a proportion of its land-based
staff complement
for the purposes of its job creation score was ‘irrational’ and
‘arbitrary’. It alleges that it was ‘impossible’
for it to
allocate proportions of time spent by employees on different sectors
or aspects of its business. Hoxies describes itself
as ‘a
diversified food distribution company, based in Gauteng’ and ‘one
of the largest and oldest black seafood distribution
companies in
the country’. While seafood distribution contributes to its
revenue stream, Hoxies also distributes poultry, dry
goods, dairy,
vegetables and chips, meat, snacks and other product ranges. It
added that ‘(e)mployees in all parts of business
are, in different
degrees and at different times, engaged with its seafood business on
a regular and consistent basis’.
Having
regard to the evidence, we cannot find that the Minister’s
decision regarding job creation was ‘irrational’ and
‘arbitrary’:
(a) The
first flaw in Hoxies’ argument, as rightly pointed out by the
Minister, is that there is no obvious correlation between
turnover
and job creation, as contended by Hoxies. The Minister pointed out in
this regard that, although seafood may account for
28% of the
turnover of Hoxies, its actual spending on salary may be a fraction
of this figure, or its profit margins may be substantially
higher
than in the other areas in which it operates.
(b) Secondly,
and more importantly, Hoxies claims a percentage of its turnover in
respect of ‘seafood’ in general, whereas the
information required
in the appli­cation form clearly related to the HDST industry
alone. As a fact, and having regard to Hoxies’
application form,
only R3 280 159 of its total turnover of R243 293 508
(i.e. 1,34%) was derived from the HDST
sector.
(c) It
follows from the foregoing, as emphasised by the Minister, that there
was no evidence at all that 28% of Hoxies’ employees
or their
activities were actually involved in the HDST sector.
(d) Another
reason for doubting the reliability of the 28% figure proposed by
Hoxies, according to the Minister, was that the value
of the assets
of Hoxies, as reflected in its 2004 balance sheet, was more than
R79 million, whereas the book value of assets
initially claimed
in respect of fishing-related activities was little more than
R3 million – a mere 3.79% of total assets.
The Minister took
the view that there is no logical basis why the percentage in respect
of jobs pur­portedly created by Hoxies
should be almost ten times
higher than the ratio in respect of its assets.
(e) The
figure provided by Hoxies for job creation were out of proportion to
those provided by other leading rights holders in the
same industry.
Indeed, they were so far removed from what the other applicants were
claiming that this alerted the Minister to conclude
that something
was clearly amiss. The Minister referred, by way of example, to the
following job creation ratios in order to illustrate
the disparity
between Hoxies’ claim in respect of jobs per ton allocated and
those of other substantial participants in the HDST
sector:
I&J:
0.7 jobs (including seasonal);
Sea
Harvest: 0.6 jobs (including seasonal);
Viking
Fishing: 0.11 jobs (including seasonal).
On
the information provided, the Minister concluded that there was no
basis for Hoxies to benefit from any further points for job
creation
in the fishing industry, other than those awarded to it on account
of its
pro rata
share of jobs on the fishing vessel in which
it owns a share and where all catching, processing and packing are
done on board.
Having regard to the evidence, we cannot find that
there is any ground on which the Minister’s decision to reject
Hoxies’ job
creation claims could be described as ‘arbitrary’
or ‘irrational’. On the contrary, if anything can be described
as ‘arbitrary’
or ‘irrational’, it is Hoxies’ claim to be
credited for job creation based purely on 28% of its annual
turnover.
Scoring:
investment
Not
much time or attention was devoted during oral argument to this
complaint, which can be disposed of briefly. Section 9 of the
standard application form deals with ‘Investment’. It requires
the applicant to set out, in respect of the financial years
2002 to
2004,
inter alia
the book value of its total fixed assets in
relation to the fishery concerned, the total book value of the total
land-based fixed
assets in relation to the fishery concerned, and
the total book value of harbour and sea-based fixed assets in
relation to such
fishery.
In
its appeal to the Minister, Hoxies assailed its scoring in respect
of investment on two grounds, contending that its scoring
for
invest­ment in respect of land-based assets should be adjusted
upwards in that –
(a) it
had concluded an agreement in 2006 for the purchase of rights to a
property in Durban harbour; and
(b) it
purportedly also rented land and buildings held by a ‘sister
company’, Ocean Pearl (Pty) Ltd (
Ocean Pearl
), the sole
shareholder of which was also a shareholder of Hoxies.
Neither
of these claims was advanced in its original application and they
were raised for the first time on appeal to the Minister.
Both
claims were, however, rejected by the Minister. The first point was
not persisted with during oral argument and rightly so:
the
investment was only made on 22 February 2006, i.e.
after
the
medium-term rights period and indeed
after
the DDG had made
his decision.
As
for the second claim, Hoxies claimed to be renting land and
buildings owned by Ocean Pearl, valued at R40 million. A
shareholder
of Hoxies owns 100% of Ocean Pearl. Hoxies was the sole
tenant of the property and had supplied interest-free unsecured
long-term
loans of more than R4 million to Ocean Pearl, in
addition to being the joint guarantor and surety for the obligations
of Ocean
Pearl in respect of the property. Moreover, because 28% of
the activity of Hoxies is in the ‘seafood business’, a
pro
rata
amount, being 28% of the value of the property (28% of
R40 million), should be added to Hoxies’ land-based assets.
The
DDG stated in his Reg 5(3) report that credit could not be
given to Hoxies for the Ocean Pearl property as the ‘leasing
of a
building is not considered to be investment’. The Minister agreed
with the DDG and rejected Hoxies’ contentions. This
conclusion was
in line with the approach adopted by the Minister in other
applications.
Hoxies
contends that the Minister’s decision was ‘arbitrary, grossly
unreasonable and not rationally connected to the information
before
him or the reasons given by him’. In our view, this point is
equally misconceived. The thrust of Hoxies’ appeal was
that it was
entitled to be credited for the investment on the grounds that it
was the
de facto
owner of the property, through the medium of
a ‘sister company’, Ocean Pearl. This was manifestly not
correct: the investment
in the building was made by Ocean Pearl,
not
by Hoxies. If Hoxies had wanted to apply as a group of companies
together with Ocean Pearl, then transformation figures also had
to
be merged in accordance with the explanatory notes – something
which had not been done. In any event, no evidence was provided
that
Ocean Pearl was a ‘sister company’ of Hoxies in the sense in
which that term was used in the long-term rights application
process, namely ‘…a company that is more than 50% owned by a
holding company that also owns more than 50% of the Applicant’s
shares.’
In
the circumstances, Hoxies has failed to persuade us that the
Minister’s scoring of it in respect of job creation or investment
is susceptible to judicial review on any ground.
Defective
applications
In
its supplementary founding affidavit, Hoxies made a number of
allegations about allegedly defective applications submitted by
other appli­cants. Its contentions were directed, in particular,
at the applications by Laing­ville and certain medium-term
rights holders forming part of the Viking Group. Hoxes alleged
inter
alia
that the applications were materially defective because
they were commis­sioned by the attorney who acted for the Viking
Group
of companies, and because some of the applications
(particularly those of Laing­ville, New South Africa Fishing
Enterprises
(Pty) Ltd (
New South Africa
) and Bayview Fishing
(Pty) Ltd (
Bayview
)) were allegedly incomplete when they were
signed and commis­sioned on 27 July 2005.
Hoxies
did not persist with its highly technical argument about the
commissioning of Mr Phillips. It does, however, persist in arguing
that the Minister and the DDG allegedly ‘erred’ in not excluding
the purportedly ‘materially defective’ applications of
Laingville, New South Africa and Bay­view, as well as ‘in
failing to investigate whether the remaining Viking Group
applications
were completed after 27 July 2005 when they were
commis­sioned’. As regards the latter issue, Hoxies indicated
in its supplementary
founding affidavit that the Minister ‘is
invited to extend the terms of reference of the forensic audit of
the Laingville application
to include an investigation of … the
remaining Viking Group companies’. That invi­tation is
essentially repeated in Hoxies’
heads of argument, where Hoxies’
counsel ‘request this Court to direct the Minister to investigate
whether the other applications
in the Viking group should be
excluded on the grounds that they are materially defective’.
The
allegations directed at Laingville’s application can be ignored
for purposes hereof, as Laingville’s application was rejected
by
the DDG and the Minister, on the basis of having been changed after
the closing date for submission of HDST long-term rights
applications.
Hoxies
is moreover precluded from asking for the setting aside of any other
rights holders’ allocations, as Hoxies did not expressly
seek in
its notice of motion to set aside the Minister’s decisions in
respect of these applications.
There
was furthermore no evidence before the Minister to indicate that the
applications of Bayview or New South Africa were purportedly
incomplete when commissioned. The issue was not raised in the
s 80(3) appeal comments by Hoxies or any other rights holder,
or in any other manner. It is thus not clear on what review ground
Hoxies is relying in this regard. Indeed, there is no mention
of the
provisions of PAJA in the relevant portion of its Heads, while the
submission is simply that ‘the Minister erred in failing
to
exclude the New South Africa and Bayview applications’, an
argument suited to an appeal, but not a review.
Hoxies’
‘invitation’ or ‘request’ for there to be an investigation
into the completeness of the applications of the Viking
Group when
commissioned, is also irregular and misconceived, going beyond what
an applicant can legitimately seek in a review.
As has been
indicated above, there is, in any event, no basis for blaming the
Minister for not undertaking an investigation at
the time as there
was no attack on the Viking group of companies on appeal on that
basis. In any event, the state of completeness
of the Viking Group’s
applications when commissioned has subsequently been examined, not
least in the course of the Department’s
investigations into
Laingville (pursuant to Laingville’s attack on Viking in that
context) and no irregularities were found to
exist. The Minister
stated the following in this regard:
‘
I
should mention, too, that, in response to the allegations in
paragraphs 20 to 32 of Laingville’s replying affidavit, as well
as
various contentions advanced by Hoxies (Pty) Ltd, the Viking Fishing
Group was given an opportunity to comment on how the long-term
rights applications with which it was associated were commissioned.
The Viking Fishing Group responded in two letters, dated 23
July
2007 and 3 August 2007. …The Department and I are satisfied that
the Viking Fishing Group’s own applications were commissioned
correctly.’
It
follows that nothing turns on Hoxies’ complaints in this regard.
In the premises, Hoxies’ application falls to be dismissed
with
costs, including the costs of two counsel.
Foodcorp
(Case No 1466/07)
Foodcorp
was awarded an HDST allocation of 6 032 tons for the first year
of the long-term rights allocations. This made it
the fourth-largest
rights holder in the HDST sector. In its review application,
Foodcorp does not quibble about its own allo­cation.
Instead, it
attacks the allocations made to certain other success­ful
applicants. Food­corp’s application appears to
be inspired by
the assumption that if it can knock out or reduce the quotas of some
of its competitors, then it will benefit by
a consequential
redistribution of such quotas – notwith­standing that Foodcorp
is but one of 51 other rights holders which
might gain tonnage not
awarded to its competitors.
The
first leg of the application is the same as the one raised
on
behalf of
Hoxies with regard to the exemptions granted by the
Minister to Saco, Laing­ville, Port Nolloth and Offshore. For
the reasons
stated earlier in this judgment, this argument cannot
succeed.
33
Foodcorp’s
second line of attack was directed solely at the claim made by Saco
in its application regarding its black economic
empowerment (
BEE
)
credentials.
That
transformation is a factor that was taken very seriously by the
Department in the process appears
inter alia
from the fact
that the general policy document issued by the Minister mentions
‘(t)ransformation and the need to achieve equality
within all
branches of the fishing industry’ as the first of a list of ‘core
allocation and management considerations’ relevant
to scoring
applicants for fishing rights.
The
importance of transformation is reiterated in the HDST
sector-specific policy document, where it is stated
inter alia
that ‘(o)ne of the objectives with the process of allocating
long-term fishing rights in this fishery is to improve on the
present
level of transformation’. All of this echoes the emphasis
placed on the factor of trans­formation in the Act, as
interpreted
in
Bato Star (CC).
34
In
its application for fishing rights in the HDST sector, Saco stated
inter alia
that 30% of its shares are owned by the trustees
of a trust known as the
Community Trust on Fisheries
(formerly known as the
Ciskei Commu­nity Trust on Fisheries
).
Saco claimed that the trust is 100% black owned, which claim was
accepted by the Depart­ment in considering Saco’s application.
Foodcorp takes issue with this decision, for two reasons:
(a) The
trust has terminated; alternatively, for all intents and purposes it
is ‘paralysed’.
(b) The
claims made by Saco for BEE purposes are inconsistent with the terms
of the trust deed and the scoring is not permissible.
Before
considering the merits of these contentions, it needs to be pointed
out that Foodcorp has failed to indicate, in any of the
four
affidavits filed on its behalf in this application, on what basis
they claim that the Minister’s decision can be reviewed
by this
court. In effect, Foodcorp has come to court appealing the decision
of the Minister, the complaint being simply that Saco
should not
have received credit in respect of the 30% shareholding of the
trust; in other words, that its black ownership score
was ‘wrong’.
However, these are not reviewable errors – if indeed they are
errors at all. As was pointed out by the Supreme
Court of Appeal in
Pepcor Retire­ment Fund v Financial Services Board
,
35
when con­sidering the court’s powers to review in respect of
mistakes of fact
:
‘
Recognition
of material mistake of fact as a potential ground of review
obviously has its dangers. It should not be permitted to
be misused
in such a way as to blur, far less eliminate, the fundamental
distinction in our law between two distinct forms of relief:
appeal
and review. For example, where both the power to determine what
facts are relevant to the making of a decision, and the
power to
determine whether or not they exist, has been entrusted to a
particular functionary … it would not be possible to review
and
set aside its decision merely because the reviewing Court considers
that the functionary was mistaken either in its assessment
of what
facts were relevant, or in concluding that the facts exist. If it
were, there would be no point in preserving the time-honoured
and
socially necessary separate and distinct forms of relief which the
remedies of appeal and review provide.’
The
closest one gets to finding a discernable review ground in
Foodcorp’s papers is the submission in its second supplementary
founding affidavit to the effect that ‘the [Minister] failed to
apply his mind to [these issues]’. However, as rightly pointed
out
by counsel for Saco, the language of ‘failure to apply the mind’
is common law language that must now be brought within
the various
heads of review as set out in PAJA.
36
Be
that as it may, and even if one were to assume in favour of Foodcorp
that their actual complaint is that the Minister failed
to consider
relevant considerations,
37
their contentions are in any event not supported by the evidence, as
the following brief discussion will demonstrate.
The
trust has terminated or is paralysed
Foodcorp
claims, firstly, that the trust does not exist or is unable to act
because clause 10 of the trust deed provides that the
trust
termi­nates when the agreement which led to the establishment of
the trust termi­nates. Because the agreement was
between parties
including the former government of Ciskei, which no longer exists as
a legal persona, such agreement can no longer
exist, so it was
contended. The corollary to this is that the trust is ‘paralysed’,
because there are only three trustees,
instead of four as required
by the trust deed, and only the Ciskei can appoint further trustees.
Apart
from the fact that the argument about the trust allegedly being
‘paralysed’ surfaced for the first time in reply, these
arguments are in any event misconceived. As pointed out by Saco, by
virtue of the transitional pro­visions of chapter 15 of
the
Interim Constitution 200 of 1993, the existence of the trust is not
affected by the dis­appearance of the Ciskei as a political
entity. The powers previously vesting in the government of Ciskei
now vest in the Minister. Moreover, clause 4 of the original
trust
deed, which requires four trustees to administer the affairs of the
trust, has been amended to provide simply that ‘the
Trust shall be
administered and managed by a Board of Trustees appointed from time
to time by the Cabinet Member responsible for
Fishing and
Environmental Affairs in the National Govern­ment or his or her
duly appointed delegee’. It appears from the
papers filed
on
behalf of
Saco, in response to the new point raised by
Foodcorp, that the powers conferred on the government of the former
Ciskei have been
delegated by the Minister to a member of the
executive committee of the Eastern Cape. It follows, therefore, that
this argument
is without substance.
Scoring
not permissible
Foodcorp
further contends, in any event, that Saco was not entitled to the
benefit of the BEE credentials claimed by it (i.e. 30%
black
shareholding, owned by the trust), first, because the relevant trust
deed contains no reference to black persons as beneficiaries
or
trustees, nor does it confer on black persons any voting rights.
Second, the trust is a discretionary trust, with the result
that
there is no ‘entitlement’ to the benefits of the trust on the
part of the beneficiaries, contrary to the requirements
laid down in
the explanatory notes to the relevant application forms.
The
point now raised by Foodcorp piggybacks on complaints made and
queries raised earlier by some of the other applicants during
the
appeal process. Pursuant to those complaints and queries, the DDG
requested Saco to furnish ‘a full explanation of the black
ownership calculation of Saco on a flow-through basis’. Saco
responded to this request by furnishing detailed information,
together
with supporting docu­ments running to some 200 pages,
showing â€“
(a) that
the trust has not terminated, but is still actively operating;
(b) that
all three trustees are black persons;
(c) that
as a fact
all of the beneficiaries that received payment from
the trust over the preceding five years have been black persons or
organi­sations
promoting the interests and welfare of black
people in the Eastern Cape.
The
information furnished by Saco satisfied the DDG as to Saco’s BEE
credentials. (It also apparently satisfied the competitor
which
lodged the initial complaint and which has accepted the outcome.)
The Minister, in turn, saw no reason to disagree with the
DDG and
was satisfied that Saco’s claims were justified and that these
were ‘in accordance with the objectives of the trust’.
In
accordance with the BEE criteria utilised at the time, the
Department was satisfied that the trust should be regarded as 100%
black owned. The Department’s approach was consistent with the
criteria that it advised would apply. (The Department is of course
entitled to determine its own criteria in this regard.
38
)
In these circumstances, it is quite clear that the Minister duly
considered the issues raised and satisfied himself that the claims
made by Saco were correct and complied with the Department’s
criteria.
In
coming to this conclusion, we bear in mind that the object of the
Act is
inter alia
to redress historical imbalances – not to
en­force the niceties of the law of trusts
at
the behest of
outsiders such as Foodcorp. If Foodcorp’s
approach is correct, then no discretionary trust could ever qualify
as a BEE share­holder
in this industry. Having regard to the
objects of the Act, there is no reason why this should be so. What
Foodcorp, in effect,
is seeking to do in order (potentially) to
achieve a miniscule im­provement in its own score – by way of
an overly legalistic,
nit-picking approach – is to deprive some of
the poorest members of the black community of the Eastern Cape of
the benefits of
the trust. We accordingly agree with the criticism
by counsel for
the State respondents that
this displays an opportunistic attitude that is unworthy of a major
national corporation and an industry
leader.
In
the result, there is simply no ground or reason for this court to
review the Minister’s decision regarding Saco. It follows
that the
application falls to be dismissed with costs, including the costs of
two counsel employed by those respondents opposing
the application.
Bato
Star (Case No 1792/07)
Bato
Star is one of the successful applicants in the HDST sector. It was
a medium term commercial fishing rights holder in this
sector with a
quota of 845 tons per annum. In terms of the process now before us
it was awarded a long term commercial fishing
right to the extent of
1 091.44 tons per annum. It ranked 5
th
of the 52
successful applicants in this sector.
Bato
Star seeks to review the Minister’s decision on appeal relating to
the quantum allocated to it and does so on the basis that
the
Minister’s determination of its application on appeal was unlawful
because it was procedurally unfair and substantively unreasonable.
Section
9 of the HDST application form elicited information relating to
investments made by applicants for the HDST long-term commercial
fishing rights by reference to the 2002 to 2004 financial year-ends.
Section 9 sought the following particulars in tabulated form:
(i) Table
1: particulars of the book value of the applicant’s land- and
sea-based investments at the end of its 2002, 2003 and
2004 financial
years.
(ii) Table
2: particulars of the insured value of the above investments at the
2002, 2003 and 2004 financial year-ends.
(iii) Table
3: the ratio between the book value of the applicant’s
invest­ments at the end of 2004 financial year and the fishing
quota for that year. (The ratio was determined by dividing the book
value of the investments at the end of the 2004 financial year
by the
quota for that year. The investment ratio so determined, was the
value of the applicant’s investments per ton of quota for
2004.)
(iv) Table
4: the investment ratio for 2004 as set out in (iii) above, but
based on the insured value of the investments and not
their book
value.
The
Explanatory notes state the following regarding section 9 of the
application form:
‘
The
aim of this section is to establish the rand value of harbour and
sea-based assets of the applicant in the sector applied for.
This
will be used to determine the value of harbour and sea-based assets
per ton of fish allocated in the sector concerned (in
sections 9.1.3
and 9.1.4).’
With
respect to this section the particulars provided by Bato Star was
that in July 2004 it acquired, a controlling interest in
Ntlanzi
Fishing Enter­prises (Pty) Ltd (
Ntlanzi
) which owned the
boat MFV
Sandile
(the Sandile). The interest it held in
Ntlanzi and through it in the Sandile as at the end of its 2004
financial year-end was 70%.
Bato Star correctly gave the book-value
of this investment by prorating 70% of the book value of the
Sandile. With respect to the
insured value of this investment
however, Bato Star failed to prorate the insured value, thus making
claim to 100% of the insured
value of the Sandile.
In
addition, Bato Star also disclosed that it had sold 10% of its 70%
interest in the Sandile to Eigelaars Bote (Pty) Ltd (Eigelaars),
also an applicant for long-term commercial fishing right in the HDSA
sector. This sale was finalised in June 2005, two months before
the
closing date for the lodging of applications for the long-term
commercial fishing right. The sale agreement was annexed to
Bato
Star’s application.
Based
on the above information the DDG allocated Bato Star a long term
commercial fishing quota in the HDSA sector of 2 572
tons per
annum. Bato Star appealed to the Minister against this allocation.
The issues raised by it on appeal are not relevant
for present
purposes as they are unrelated to the issues before this court.
Once
the DDG’s allocation was made public, all of the applications
submitted to the Department were accessible to all of the other
applicants. The result of this transparent process was that many of
the applicants perused the contracts of each of the other applicants
and made comments; raised objections; and/or drew the Department’s
attention to various claims made by their competitors. Sea
Harvest
was one such applicant. It wrote to the Department, drawing the
Department’s attention to the following:
(i) that
Bato Star had overstated the insured value of its investment by
claiming the full value of the Sandile while it had held
only a 70%
interest in it at the end of its 2004 financial year; and
(ii) that
Bato Star had subsequently sold 10% of Ntlanzi and thus sold 10% of
the Sandile, to Eigelaars in June 2005.
The
Department invited Bato Star to respond to Sea Harvest’s
sub­mission, this it did on 19 July 2006. Bato Star conceded
that it had mistakenly failed to prorate the insured value of the
Sandile. It also confirmed that it had, subsequent to its 2004
financial year-end, sold 10% of the Sandile to Eige­laars. The
sale was concluded prior to the closing date for lodging
applications
in the HDSA sector.
On
appeal, the Minister reduced Bato Star’s quota from 2 572
tons to about 1 091 tons per annum. The reduction was due
to
the Minister only crediting Bato Star with 60% of its investment in
the Sandile. The Minister took into account Bato Star’s
ownership
of 70% as at the end of its 2004 financial year, but reduced this
investment to 60% because Bato Star had alienated 10%
of the 70% it
owned prior to the closing date for the lodgement of the
applications.
While
Bato Star accepted that the value of its investment in the Sandile
should have been reduced to 70%, it objects to that investment
being
further reduced to 60%. The basis for its objection is that the
Minister was only entitled to take into account investments
it held
as at the end of its 2004 financial year-end. At that time Bato Star
held 70% interest in the Sandile.
Bato
Star’s attitude is summed up in the supplementary affidavit of its
director, Mr D J Bailey, where he says:
‘…
[T]he
ground rules for the determination of applications laid down by the
First and Second Respondents in their general policy,
sector policy,
application form and explanatory notes, was that all applications
would be judged on the basis of the value of investments
as at the
2004 financial year-end and … they only called for particulars to
be given of their value as at that date. It was
therefore unfair
and consequently irregular for the First and Second Respondent to
say that applications would be judged on one
basis, call for
information only on that basis and then in fact . . . determine the
applications on different grounds – i.e.
on the value of
investments made after the 2004 financial year.’
According
to Bato Star, two things were expressly conveyed to all prospective
applicants in the HDSA sector for long term commercial
fishing
rights:
(a) that
the application form had been designed to elicit all the information
the Department considered relevant to the evaluation
process; and
(b) that,
in relation to investments, the only information the Department
considered relevant was the value of an applicant’s investment
as
at its 2004 financial year-end and the said applicant’s investments
ratio.
This
was further made explicit, argues Bato Star, by one of the
Department’s responses to a query published on its website in
the
course of the application process. The question raised with the
Department was whether an applicant, who had audited annual
financial statements for 2005 prior to the lodgement of their
application, should use them, rather than the 2004 figures sought
in
the application form. The Department responded that the applicant
must
not
use the 2005 figures and must use the 2004 figures
to facilitate comparison. It said:
‘
No,
the 2004 statements must be used. This is important in order to
facilitate comparisons between applicants.’
Section
9 of the application form, as recorded earlier, only called for the
value of investments as at the end of an applicant’s
2004
financial year-end. The DDG assessed the applications on that basis.
When the matters went to the Minister on appeal, he extended
indulgences to those applicants who provided him with particulars of
investments made by them subsequent to the end of their 2004
financial year but before the closing date for the applications,
which was 2 August 2005. The Minister extended this indulgence,
notwithstanding the fact that he did not specifically call upon the
applicants before making his determination on appeal to provide
him
with particulars of sales or other disposals of their investments
subsequent to their 2004 financial year-end.
Whilst
the indulgence granted by the Minister resulted in favourable
outcomes to those of the applicants who had made investments
subsequent to their 2004 financial year-end, Bato Star appears to be
the only applicant who was affected negatively as a result
of the
reduction of its assets subsequent to its 2004 financial year-end.
Having
regard to the above factors, Bato Star argues that the Minister’s
decision in taking into account its interest in the Sandile
at 60%,
and not 70%, which was what it owned as at the end of its 2004
financial year-end, amounted to penalising it based on information
which had ‘fortuitously’ come to the Minister’s attention. It
argues that the Minister ‘singled out’ Bato Star for adverse
treatment not meted out to any other applicant despite the fact that
some of the other applicants, it says, might have been in
similar
positions to it in that they might have also disposed of some of
their investments after their 2004 financial year-end
but prior to
the closing date of the submissions of their application. Bato Star
maintains that because the Minister had not called
upon all the
applicants to provide him with information of their investment
acquisitions and disposals subsequent to the 2004 financial
year-end
and up to any specific date, by taking into account Bato Star’s
investment disposal the Minister failed to act in an
even-handed
manner across the board.
Furthermore,
Bato Star states that the Minister should have, at the very least,
afforded it an opportunity to make representations
on the question
of whether the disposal of 10% of its interest in the Sandile should
be taken into account in determining its quota.
Finally,
Bato Star argues that the Department had created a legitimate
expectation that applications would be judged on the basis
of their
2004 financial year-end investments. This view, it points out, was
confirmed by the fact that the DDG, who assessed all
of the
applications, did so on that basis. Thus by taking into account the
reduction of its investment which took place subsequent
to its 2004
financial-year end the Minister acted grossly unreasonably and his
decision is liable to be set aside.
Discussion
The
problem we have with Bato Star’s arguments is that it overlooks
and/or misconceives several crucial provisions contained in
the
various documents that regulated the application process. Firstly,
its argument that the General Notice, General Policy and
Sector-Specific Policy, read with section 9 of the application form
and Explanatory Notes, imposed a cut-off date of 2004 financial
year-end in assessing investments for purposes of allocation of a
quota is misconceived. The General Policy in fact provides,
especially with respect to appeals:
‘
The
appellate authority will consider the facts as they were at the
closing date for applications and will not take into account
facts
that came into existence thereafter. For example, if an applicant
made an investment in a vessel after the closing day for
applications that fact will not be taken into account when
considering the appeal.’
The
General Policy thus expressly provides that, notwithstanding the
fact that investments and assets are to be recorded in the
application form as they existed at the end of the applicant’s
financial year-end, recognition would be given to investments
which
may have been made after the applicant’s financial year-end – as
long as these investments were made before the closing
date for the
lodgement of applications.
Secondly,
Bato Star’s reliance on Section 9 of the Application form and the
Explanatory Notes in support of its argument relating
to the
‘cut-off’ date as being the end of an applicant’s financial
year-end is also erroneous. Whilst Section 9 of the form
imposed a
‘cut-off’ date for calculation of an applicant’s investments,
it neither expressly nor in any other way indicated
that investments
after the date would not be considered. In fact, Bato Star cannot
claim that they were unaware that investments
subsequent to the 2004
financial year-end could be considered in the decision-making
process as this was communicated to every
applicant through the
‘Questions and Responses’ series of advice sent out in respect
of this process. The communication made
to applicants, including
Bato Star, clearly stated that post-2004 financial year-end
information, where provided, might be considered.
Furthermore, the
fact that Bato Star was called upon to comment on the sale of its
10% interest to Eigelaars should have signalled
to it that post 2004
financial year-end information could be considered by the Minister
in making his final determination.
We
cannot see how Bato Star could not have realized that the Minister
was considering having regard to the sale of its interest
in the
Sandile. Had that not been a consideration, there would have been no
purpose in Bato Star including this information in
its application;
in Sea Harvest drawing attention to this fact to the Department; or
for the Department asking Bato Star to comment
thereon. We are
therefore of the view that there is no reasonable basis for Bato
Star to believe that their investment subsequent
to their 2004
financial year-end would not be taken into consideration in
determining its application. That being so, Bato Star
does not even
get out of the starting blocks towards establishing that there was
any basis to have a legitimate expectation that
only investments
that existed prior to the 2004 financial year-end would be
considered.
In
any event, in order to establish a legitimate expectation Bato Star
is required, as a first step, to satisfy us that ‘the

representation underlying the expectation’ were ‘clear,
unambiguous and devoid of relevant qualify­cations.’
39
In this it hopelessly fails.
There
is also no logical basis to form a belief that investments
sub­sequent to an applicant’s 2004 financial year-end would
simply be dis­regarded, particularly where the financial
year-end of the various applicants could range from 28 February 2004
to 31 December 2004 – a period of 10 months. The Minister points
out that the use of the 2004 financial year-end was required
as a
point for determination of an applicant’s assets because it
should, prior to submitting their applications, have completed
their
financial statements up to that time. Correctly, we believe, the
Minister could not have required the use of the 2005 financial
year-end information as some applicants would not have arrived at
their 2005 financial year-end by the time the applications were
required to be lodged. The fluctuation of a possible 10 month period
within the 2004 financial year-end of the various applicants
could
therefore not provide a single point for determination of the value
of each applicants investment and, concomitantly, including
the
period of 1 January 2005 to 2 August 2005 could also not result,
generally, in any greater anomaly than had it not been taken
into
account.
Bato
Star’s further argument was that if the Minister was entitled to
consider investments subsequent to the 2004 financial year-end,
then
he was obliged to afford Bato Star an opportunity to address him on
the question because such consideration would, as it did,
adversely
affect Bato Star. Again this obligation would only have arisen had
the Minister decided to take the investment subsequent
to the 2004
financial year-end into consideration in the absence on any prior
indication that he would do so. As we have stated
earlier, the
applicants were advised in advance that post 2004 financial year-end
investment information may be considered. There
was therefore no
need for the Minister to afford Bato Star a hearing before taking
into account the sale of 10% of its interest
in the Sandile. In any
event, Bato Star was indeed given an opportunity to comment upon the
sale of its interest to Eigelaars when
it was called upon to do so
subsequent to the matter being raised by Sea Harvest.
Bato
Star’s submission is that the Minister should not have taken into
account its subsequent reduction of investment without
also applying
the ‘same standard to all applicants’. According to Bato Star
the failure by the Minister to call upon all the
applicants to
disclose any reduction in their investments after the 2004 financial
year-end but before the final date for the submission
of the
applications resulted in Bato Star being not treated even-handedly
vis-à-vis
the other applicants.
This
argument, like the previous one, is also devoid of any merit. The
application form demanded that the applicants present all
relevant
information which is ‘correct and complete’. The General Policy
and the other relevant annexures published in terms
of the Act made
it clear that subsequent change in investments was indeed relevant,
but only if made before the date for lodging
of the applications.
This is also borne out by the fact that when Bato Star annexed the
sale agreement relating to the disposal
of 10% of its interest in
the Sandile, it did so because it correctly regarded that
information as relevant. Likewise, there is
no reason to assume that
any of the other applicants similarly placed would not have
furnished such relevant inform­ation.
Also, all of the
applicants knew or should have known that if they failed to disclose
relevant information in their application,
they ran the risk that
their application would be disqualified. Furthermore, s 28 of
the Act provides that an applicant who
is granted an allocation and
is later found not to have provided complete information in the
application for that allocation could
have its allocation revoked.
40
According
to the Minister, the 2004 financial year-end was chosen as a
convenient date to establish an applicant’s value of harbour-
and
sea based assets: it was an imperfect date because the financial
year-end varied from company to company. This date did, however,
serve as a practical starting point. The Minister added that the
industry itself is extremely competitive and that applicants were
on
the alert for possible bases on which their competitors could be
challenged, and when something was found, it was immediately
brought
to his attention or the attention of the Department. That this was
indeed so, is evident from the voluminous documents
filed in this
matter.
In
the circumstances, there was no obligation on the Minister to call
upon the applicants to advise him of any change in their investments
prior to the closing date for the applications, as it was reasonable
for him to assume that the applicants have all made full ‘correct
and complete’ disclosure – and that the status
quo
remained the same at the time he considered the appeal, save to the
extent that relevant changes were drawn to his attention.
Bato
Star’s argument that it was ‘singled out’ for prejudicial
treatment is also without foundation. The Minister, it is common
cause, took into account every case in which there was a change in
investment subsequent to the financial year-end of an applicant,
as
long as the change occurred prior to the date for the lodgement of
the applications (2 August 2005). A number of applicants
were
favoured as a result of this, as they had increased their
investments after their 2004 financial year-end. One of these

applicants was Eigelaar: having purchased the 10% interest in the
Sandile, it disclosed this to the Minister and the Minister,
in
considering the appeal by Eigelaar, credited Eigelaar for this
investment in respect of its application. As the Minister took
into
account investments, he should logically also have to look at
dis-investments, failing which it could not be said that he
had
acted consistently. Consistency required of him that, where he
looked at facts beyond 2004, he would look at both positive
and
negative facts.
On
Bato Star’s argument, either Bato Star alone or both it and
Eigelaars should have received credit for the same 10% in the

Sandile. This, in our view, would have been manifestly inequitable
and unfair. The Minister was obliged to consider the investment
made by Eigelaar by reason of the General Policy which provided that
he would consider facts as they were at the closing date for
applications. Had the Minister not done so, he would have opened
himself to be challenged on the grounds that he failed to have
regard to a relevant consideration. On the other hand, had he given
credit for the 10% to Eigelaar as well as Bato Star, then
he would
have fallen foul of his own policy against double counting, which
was spelled out in the Explanatory notes and this, in
any event,
would be unfair to the other applicants.
There
was no inconsistency in the manner the Minister considered the
applications. Where post-2004 financial year-end investments,
both
positive and negative, were brought to his attention, he had regard
to them if this met the criteria which he had stipulated
which was
that the investment –
had
to be made before the date on which the applications were required
to be lodged;
were
not made in order to inflate an applicant’s claim; and
did
not result in unfairness.
The
Minister thus acted consistently and his decision cannot be seen to
be arbitrary, irrational or so unreasonable that no decision-maker
could have made them.
Finally,
Bato Star’s claim that by taking into account its post-2004
financial year-end investment position, the Minister’s
determination was not based on a comparative balancing of the
applications against one another, as the Minister claimed he would
do. This argument is also premised upon Bato Star’s belief that
the Minister should have called all of the applicants to submit
their investment positions post their 2004 financial year-end until
the closing date for the lodgement of their application. As
we said
earlier, there was no need for the Minister to have another round of
enquiries. He did have the information he required.
With
regard to the comparative balancing exercise, there is nothing to
gainsay the Minister’s averment that developments subsequent
to
the 2004 financial year-end which were taken into account, did not
in any way hinder or compromise the comparative balancing
exercise.
This he says is so, because there was no evidence of any material
change having occurred between 2004 and 2005 within
the industry,
secondly the fact that an applicant’s 2004 financial year-end
might have been anywhere between 1 March 2004 to
31 December 2004
made the comparative balancing exercise not an exact science but,
correctly, a reasonable guideline.
Conclusion
There
is no substance in the submission that the recognition of post-2004
financial year-end investment resulted in ‘irregular,
unfair or
arbitrary’ administrative action. Although the application form
requested information up until 2004 financial year-end
(for reasons
that were already explained), all of the applicants were fully
advised that information subsequent to 2004 could be
referred to and
might be considered. The application process had the flexibility to
accommodate recognition of post-2004 investments
and the applicants
were informed that they could, if they wanted, refer to post-2004
investments – and, extended logically, this
meant they could,
concomitantly, challenge other applicants’ scores on the basis of
their post 2004 disinvestments.
The
General Policy, permitted investments up to 2 August 2005 to be
considered and Bato Star was given an opportunity to comment
on its
rescoring for harbour and sea-based investments; it was given an
opportunity to make representations to the Minister, in
response to
the submissions made by Sea Harvest about it. In the context, Bato
Star was given a chance, not only to motivate for
the fairness of
scoring it on the basis of a 70% shareholding, but also to advance
arguments as to why its investment position
should supposedly have
been frozen at the end of the 2004 financial year. There was no
reason why Bato Star should have been given
another opportunity to
comment on the question. There is also no suggestion that Bato Star
might have had something more to say.
The
particular difficulty for Bato Star in seeking to exclude
recognition of its sale of a 10% share in the Sandile was that the
sale was to Eigelaars, another medium-term rights holder in the HDST
sector. The question which thus faced the Minister was whether
he
should recognize the 10% in the hands of Bato Star or credit it to
Eigelaars. Both parties had opportunities to make representations,
whereafter the Minister decided to recognize Eigelaars’ claim.
There is no basis upon which it can be said that such a decision
by
the Minister was either substantively unreasonable or procedurally
unfair.
There
was moreover no reason for the Minister to call upon all applicants
to submit information which extended to mid-2005. The
Minister has
explained why it was decided to impose a cut-off date of the 2004
financial year-end, while still allowing flexibility
to recognize
investments (or disinvestments) beyond that date.
In
the result Bato Star’s application must be dismissed with costs,
including the costs of two counsel.
Orders
For
the above reasons, the following orders are issued:
In
Case Nos 11077/06 (Laingville);
Case No 1361/07 (Hoxies);
Case
No 1446/07 (Foodcorp); and
Case No 1792/07 (Bato Star):
The
applications are dismissed with costs, including the costs of two
counsel where so employed by those respondents opposing the
respective applications.
In
Case No 1452/07 (Ziabuya):
By
agreement between the parties, it is ordered:
The
First Respondent’s decision, during August 2006, in respect of the
Applicant’s appeal against the Second Respon­dent’s
determination of its application for long-term com­mercial
fishing rights in the hake deep-sea trawl (HDST) fishery, is set
aside.
The
First Respondent’s aforementioned decision is substituted with one
in terms of which:
the
Applicant’s land-based investments are assessed at R4 961 825.84,
and its harbour and sea-based investments are
assessed at
R11 069 327.02, for the purposes of section 9.1.4 of the
application form;
the
Applicant’s permanent and seasonal employees are assessed on the
basis of a 26.73% share of 161 permanent employees and
3003 total
employees (including seasonal workers), for the purposes of section
8.1.3 of the application form.
The
First Respondent is directed to:
adjust
the Applicant’s scores in accordance with those substituted
assessments, in terms of the existing criteria and scoring
mechanisms;
adjust
the Applicant’s HDST allocation in accordance with its adjusted
scores, in terms of the existing quantum allocation mechanism;
adjust
the scores and allocations of the other HDST long-term rights
holders consequentially, in the light of the Applicant’s
revised
scores and allocation (and only to that extent), in terms of the
existing criteria and scoring and quantum allocation
mechanisms.
The
aforesaid adjusted allocation shall be effective from 1 January
2009.
The
First and Second Respondents shall pay the Applicant’s costs in
this application, as agreed or as taxed, on a scale as between
party-and-party, and including the costs of two counsel where so
employed.
B
M Griesel
B
Waglay
1
Minister
of Environmental Affairs and Tourism & Others v Phambili
Fisheries (Pty) Ltd; Minister of Environmental Affairs and
Tourism &
Others v Bato Star Fishing (Pty) Ltd
2003
(6) SA 407
(SCA) para 2 (hereinafter
Bato
Star (SCA
)).
2
In
addition to
Bato
Star
(SCA)
supra
,
see also
Minister
of Environmental Affairs and Tourism v Pepper Bay Fishing (Pty) Ltd;
Minister of Environmental Affairs and Tourism v Smith
2004 (1) SA 308
(SCA) (
Pepper
Bay
);
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Tourism and Others
[2004] ZACC 15
;
2004
(4) SA 490
(CC) (
Bato
Star (CC)
);
Foodcorp
(Pty) Limited v Deputy Director-General, Department of Environmental
Affairs and Tourism: Branch Marine and Coastal Management
&
Others
2006
(2) 191 (SCA) (
Foodcorp
);
Minister
of Environmental Affairs and Tourism v Scene­matic Fourteen
(Pty) Ltd
[2005] ZASCA 11
;
2005 (6) SA 182
(SCA) (
Scenematic
).
3
Paras
3–6.
4
Bato
Star (SCA
)
para 5.
5
Bato
Star (CC)
paras 8–15.
6
No
27683.
7
As
required by s 7(1) of PAJA.
8
In
terms of s 7(2)(a) of PAJA.
9
At
p 450.
10
Pepper
Bay supra
para
31.
11
Cf
Kemp
NO v Van Wyk
2005 (6) SA 519
(SCA) para 1.
12
Cora
Hoexter
Administrative
Law in South Africa
(2007) 285.
13
See
in that regard Hoexter
op
cit
264–270. See also Jeremy Gauntlett ‘The satisfaction of
Ministers: judicial review of “subjective” discretions in South
Africa’, published in Kahn (Ed)
The
Quest for Justice – Essays in Honour of M M Corbett
(1995) 208
et
seq
with reference to the pre-Constitutional jurisprudence.
14
Op
cit
270
.
15
Id.
16
Bato
Star
(CC)
para 44 at 513A–B.
17
Id
para 45. See also
Pepcor
Retirement Fund v Financial Services Board
2003
(6) SA 38
(SCA) para 48.
18
Bato
Star (CC)
para 48.
19
Paras
– below.
20
See
para above.
21
Plascon
Evans Paints Ltd v. Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 643E–635C.
22
Paras
– above.
23
Contrary
to s 6(2)(c) of PAJA.
24
Promulgated
in GN1111 in Government Gazette 19205 of 2 September 1998.
25
Scenematic
supra
para 25, referring to
Tikly
& Others v Johannes N.O. and Others
1963 (2) SA 588
(T) at 590F–591A.
26
Administrative
Law
264 – 267.
27
Loc
cit.
28
Section
3(2)(a) of PAJA.
29
Para
As in the past, the application process adopted by the Department for the determination of allocations in the various sectors
– including the HDST sector – was ‘a detailed and complex one’.4 It has also been described by one of the industry respondents
before us as ‘open and interactive’. By and large, the vast majority of participants in the process agreed that it was conducted
‘in an administratively fair and regular manner and the outcome was lawful and reasonable’. The lengthy record on review amply
supports these conclusions.
above.
30
See
Scenematic
paras
29–30.
31
See
Administrator,
Transvaal & Others v Theletsane & Others
[1990] ZASCA 156
;
1991
(2) SA 192
(A) at 197D.
32
Para
below.
33
See
paras – above.
34
Para
34 (per O’Regan J) and especially paras 71–107 (per Ngcobo J).
35
Footnote
above, para 48.
36
See
Bato
Star
(CC) paras 22 and 27.
37
As
contemplated by s 6(2)(e)(iii) of PAJA.
38
See
Pepcor
Retirement Fund supra
para
48.
39
See
Bato
Star (SCA
)
para 65 and the authorities cited therein.
40
28. Cancellation
and suspension of rights, licencees and permits.
– (1) If a holder of any right, licence or permit in terms of
this Act –
(a) has
furnished information in the application for that right, licence or
permit, or has submitted any other information required
in terms of
this Act, which is not true or complete;
(b) .
. .
(c) .
. .
(d) .
. .
(e) .
. .
the
Director-General may . . . request the holder to show cause in
writing, within a period of 21 days from the date of the notice,
why the right, licence or permit should not be revoked, suspended,
cancelled, altered or reduced, as the case may be.”