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[2008] ZAWCHC 123
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West Coast Rock Lobster Association and Others v Minister of Environmental Affairs and Tourism and Others (3920/2008) [2008] ZAWCHC 123 (7 October 2008)
IN
THE HIGH COURT OF SOUTH AFRICA CAPE OF GOOD HOPE PROVINCIAL DIVISION
REPORTABLE
Case
No.: 3920/2008
In
the matter between:
WEST
COAST ROCK LOBSTER ASSOCIATION
First
Applicant
STEPHAN
FRANCOIS SMUTS
Second Applicant
SAHRA
LUYT
Third Applicant
SPARKOR
(PTY) LTD
Fourth
Applicant
SOUTH
AFRICAN SEA PRODUCTS LIMITED
Fifth Applicant
and
THE
MINISTER OF ENVIRONMENTAL
AFFAIRS
AND TOURISM
First
Respondent
THE
DEPUTY DIRECTOR-GENERAL:
MARINE
AND COASTAL MANAGEMENT.
DEPARTMENT
OF ENVIRONMENTAL
AFFAIRS
AND TOURISM
Second
Respondent
THE
CHIEF DIRECTOR: RESOURCE
MANAGEMENT
(MARINE): MARINE
AND
COASTAL MANAGEMENT,
DEPARTMENT
OF ENVIRONMENTAL
AFFAIRS
AND TOURISM
Third
Respondent
RESPONDENTS
AS PER ATTACHED SCHEDULE
TO
THE NOTICE OF MOTION
Fourth
to 1245" Respondents
JUDGMENT:
07 October 2008
DAVIS
J:
Introduction
[1]
Applicants seek declaratory relief against first respondent to the
effect that he is precluded from using section 81 of the
Marine
Living Resources Act 18 of 1998 ('MLRA') in order to grant artisanal
fishers generally and the fourth to 1 245 respondents
in particular,
a right to catch and sell West Coast rock lobster for commercial
purposes. Applicants also seek to have reviewed
and set aside
certain decisions of first respondent, second respondent and third
respondent relating to the granting of such
rights to artisanal
fishers. According to applicant, the relevant decisions taken by
first respondent were made on 16 April 2007,
2 May 2007 and 14
December 2007.
Factual
Background
[2]
Commercial fishing for the West Coast rock lobster ('WCRL') dates
back more than a century. Until the mid 1960's commercial
fishing
enterprises consistently exploited the WCRL beyond the maximum
sustainable yield for the resource. In order to manage
the risks
associated with declining catch rates, a reduction was introduced
for tail mass production quotes. It appears that
after a period of
relative stability WCRL fishery was faced with another significant
reduction catch rates during the 1990/1991
season. Steps were taken
after that season to reduce the commercial total allowable catch
('TAC'), the relevant level reaching
as low as 15 000 tons during
the 1995/1996 season compared, for example, to a catch in excess of
10 000 tons per annum during
the 1950's.
[3]
It appears that, in recent seasons, the resource has again been
placed under significant pressure. The global TAC in the 2007/2008
season has been decreased to 2571 tons. It is common cause between
the parties that the resource continues to be under significant
pressure.
[4]
The resource and its allocation are now governed by the MLRA. When
the legislation was enacted in 1998, it created a legal
framework
which recognized the existence of a variety of different interests
in any given fishery. It made provision for the
possibility of local
commercial, subsistence, recreational and foreign fishing. Fishing
within any of these categories requires
the granting of a right
and/or permit granted by the Department of Environmental Affairs and
Tourism. One of the principle mechanisms
by which first respondent
can ensure that fish stocks are not exploited is through the annual
determination of the TAC in terms
of section 14(1) of the MLRA. The
TAC (sometimes referred to in the papers as the global TAC) is the
maximum quantity of fish
that is available during each fishing
season for combined recreational, subsistence, commercial and
foreign fishing. The TAC
is determined after a scientific assessment
of the strength of the resource and is based on the level of
exploitation considered
to be sustainable. Once the TAC is
determined for a given season, first respondent must decide what
portions of the TAC to allocate
to local, commercial, recreational,
subsistence and foreign fishing. See section 14(2) of the MLRA.
[5]
In 2005 first respondent invited applications for the granting of
new long term commercial fishing rights for a ten year duration.
He
decided to continue with the regime in which two different classes
of commercial fishing rights had been constituted: (i)
A WCRL off
shore fishery which accommodates corporate entities with a rights
allocation in excess of 1, 5 tons. These fishers
operate a large
vessels in off shore areas using the trap system; (ii) A WCRL near
shore fishery which, according to Mr Grant
who deposed to the
founding affidavit, accommodates approximately 820 individuals who
are historically dependant on the resource
and run relatively small
scale commercial operations with smaller allocations in
geographically restricted zones in inshore areas
using small boats
and hoopnets.
[6]
It appears that the near shore fishery category replaced the earlier
category of subsistence fishing. The MLRA makes provisions
for first
respondent to declare communities or persons to be subsistence
fishers and empowers him, in terms of section 19(1)
of the MLRA, to
establish areas or zones where subsistence fishers may fish. A
subsistence fisher is defined as 'a natural person
who regularly
catches fish for personal consumption or for the consumption of his
or her dependants, including one who engages
from time to time in
the local sale or barter of excess catch but does not include a
person who engages on a substantial scale
in sale of fish on a
commercial basis'.
[7]
Mr Grant avers that under the new system of offshore and near shore
fishing, the commercial fishing rights so allocated represent
rights
in excess of 100% of the commercial TAC in any given year. Mr Andre
Share, who deposed to an answering affidavit on behalf
of second and
third respondents, contests this averment:
"I
deny that it is conceptually sound to regard the commercial rights
as fixed or set percentages of the commercial TAC.
In practice, all
other things being equal, offshore rightsholders normally do have
the same percentage of TAC from year to year,
but that is not the
content of their right."
I
shall return to this dispute later in the judgment.
[8]
In December 2004 a group of artisanal fishers initiated litigation
in the Equality Court against the first respondent in the
matter of
Kenneth
George and others v Minister of Environmental Affairs and Tourism.
They challenged first respondent's failure to make adequate
provision for artisinal fishers in the fishing rights policy in
terms of the MLRA. They contended that neither the commercial rights
nor the subsistence rights which have now been incorporated
under
the new policy accommodated their needs. In short, they contended
that the policy deprived them and hence their communities
of access
to the sea and their livelihood and traditional way of life.
[9]
The litigation initiated by the artisinal fishers was pursued in
terms of the
Promotion of Equality and Prevention of Unfair
Discrimination Act 4 of 2000
. For the background to this case see
Minister
of Environmental Affairs v George
2007
(3) SA 62
(SCA). In April 2007 the matter was settled and an order
was granted by Erasmus J, sitting as a judge of the Equality Court,
on 2 May 2007.
[10]
To the extent that it is relevant to the present dispute the
important component of this order reads thus:
'2.
The respondent shall consider the persons identified by the
applicants in terns of the criteria and determine jointly with
the
applicants the qualifying persons ("the identified fishers");
3. The
identified fishers must apply for and be in possession of a valid
recreational fishing permit;
4. The
respondent shall by way of exemption, until 31 December 2007, or any
earlier date identified herein, permit the identified
fishers to
engage in fishing and to sell the lawfully caught catch under the
authority of the recreational permit, the following:
four
west coast rock lobster per day, every day of the week until 31 May
2007;
a
cumulative total of not more than 30 per day of any combination of
the following linefish species, until 30 September 2007:
4.2.1
Snoek
4.2.2
Yellowtail
4.2.3
Cape
bream (Hottentot)
4.2.4
Silver
fish (Carpenter)
Not
more than thirty white mussels per day, provided that this is for
bait purposes.
5.
This exemption may be renewed for a further stipulated period
if necessary, pending the satisfactory implementation
of the
agreement provided for in paragraph 8 below.'
[11]
In his answering affidavit, first respondent sets out the response
developed by his department pursuant to this order. He
states that
he received a recommendation from the Director General concerning
interim relief for certain fishers which was dated
13 April 2007. He
goes on:
"I
considered this recommendation. It was evident to me that the very
real social-economic needs of those fishers had to
be addressed. It
would have been unjust to compel them to await the outcome of the
policy development process, which could potentially
be delayed or
hung up by many factors, including the opposition of existing
rights-holders to them being accommodated. In my
opinion, the
criteria and conditions applicable to the proposed measures were
appropriate to an interim regime. I did not anticipate
that they
would impact on the rights of industry and I approved the proposals
on 16 April 2007. The conclusion, however, did
not explicitly deal
with the fishers' right to sell their catch which was an important
element of the overall arrangement, although
it was referred to
earlier in the recommendation. The approach was that all such
fishers would legally obtain recreational permits,
and I added the
following rider in my own handwriting:
'4.2
the fishers will be allowed to sell their recreational catch as per
e-mail from A Shear.'
[12]
First respondent then states that the Director General refined his
earlier recommendation and limited the dispensation in
respect of
WCRL to 500 fishers who are permitted to harvest four lobsters per
person per day until 31 May 2007. It was this recommendation
which
was approved by first respondent on 2 May 2007. He claimed in his
affidavit: 'This process resulted in the settlement of
the Equality
Court proceedings referred to above and its order...'.
[13]
The first respondent informed the court that, on 09 November 2007,
the Acting Director General made a further recommendation
to him in
respect of the TAC for WCRL for the 2007/2008 season. This
recommendation was approved on 13 November 2007 and signed
on 16
November 2007. According to first respondent:
"By
this time the intended finalization of the subsistence and small
scale commercial fisheries policies had not been achieved.
It had
previously been the expectation that the policy would have been
finalized by 31
December
2007, but that proved to be impossible. In an endeavor to speed up
the process of finalising that policy, a summit was
arranged for
land 2 November 2007 where the various role players and interest
groups in relation to the subsistence and small
scale fisheries
could participate and endeavor to reach some conclusion.
A
national task team was constituted pursuant to the aforesaid
national summit on subsistence and small scale fisheries, the terms
of reference of which included consolidating and finalising the
policy.
Pursuant
to these developments, a further recommendation relating to interim
relief for small scale fishers was forwarded to me
by the Director
General on 27 November 2007."
[14]
First respondent approved this recommendation in principle.
Significantly he recorded his decision thus:
"Approval
is granted in principle subject to the following: It will be a
once-ojf relieffor a
limited
period.
I
first
want to see a
scientific
report by our scientist that they support any allocations we make.
I am mot convinced that Masifundise's proposal is sustainable.
It
is not clear (see annex C) what species are recommended. Please
provide clarity on that.
-
I therefore need a follow up memo to clarify and address the
abovementioned issues.
Your
memo says that the subsistence policy will be finalized by March
2008, but Monde M reported yesterday in the 3 D that it
will
probably only be midyear. "
[15]
It appears that a scientific report prepared by Dr C J Augustyn,
Chief Director: Resource Antarctica and Islands dated 7
December
2007 was then obtained. The report did not support the contention
that the quantity of WCRL required for the proposed
interim relief,
which was estimated as between 120 to 140 tons for some 868 fishers,
could be accommodated within a nominal 257
ton allocation for
recreational fishing for the 2007/2008 season 'without further
reductions for recreational effort'. Dr Augustyn
went on to say:
"Such an interim relief measure would not be compatible with
the long term sustainable use of the resource."
[16]
In justifying his decision to approve the recommendation, Dr
Augustyn's report notwithstanding, first respondent said
the
following:
"It
is obvious that in view of this report, I was faced with a difficult
decision. I had to consider the position of the
fishers who, by
definition, had traditionally relied on,
inter
alia,
the
west coast rock lobster resource and would suffer personal hardship
if they were not accommodated. The resolution of their
claims of
access to the resource was being held up by the delays on the
development of the policy, for which they were not to
blame. The
estimated total harvest by this group could be 120 to 140 tons
which, given their circumstances, I considered would
probably partly
be consumed by them on a subsistence basis, with the balance being
sold locally. It is public knowledge that
the holders of commercial
rights engage mostly in export of west coast rock lobster. For
instance, my attention has been drawn
to the fact that the Oceana
Group Limited published a statement on its website that 98% of live
lobster is for the export market
and only 2% is for distribution on
the local market. To the extent that the small scale fishers would
compete with the existing
commercial rights holders, I considered
that their impact would probably be minimal and would in any event
not be in a market
sector in which the large commercial interests
participated meaningfully.
The
estimated quantum of fish required for the interim relief measure
was about half of the recreational TAC. The estimate was
based on
868 persons catching 20 lobsters per person per week for the entire
season from 15 November 2007 to 30 April 2008. The
scientific
recommendation was expressly based on the assumption that there
would be no further reductions of recreational effort.
Clearly as
the season had already commenced by the time the decision was taken,
the actual catch would be less than that estimated.
In
my judgment the interim relief group had a much more legitimate
claim to the resource than recreational fishers. If there had
to be
further effort reduction measures for the recreational sector that
would have to be endured. In any event, as I understood
it, the
predicted recreational "take' was based on estimates that were
known to contain a wide error margin. It seemed logical
to me that
allowing fishing for west coast rock lobster would replace or
subsume within it some of the recreational effort, without
knowing
exactly how much. Unpalatable though the notion may be to some, and
naturally without condoning poaching, it also seemed
realistic and
logical to me, that some of the assumed illegitimate catch would be
brought into the regulated environment by these
measures.
I
weighed up these competing considerations and, on 14 December 2007,
decided to recommend a second interim relief measure for
a limited
period. In my judgment the interests of the small scale fishers
outweighed the considerations against granting then
a further round
of interim relief
It
is against this factual background that the various legal disputes
raised in this application must be evaluated.
Mootness
[17]
In the answering affidavit of second and third respondent, Mr
Share contends that the relief sought in prayer three of
the notice
of motion no longer has any force and effect in that the decisions
which applicant seek to have reviewed and set aside
were taken in
respect of the 2006/2007 and 2007/2008 fishing seasons which had
already been concluded. By contrast, applicants
contend that the
first substantial issue raised in the notice of motion concerns the
ambit of first respondent's powers exercised
in terms of
section 81
of the MLRA.
[18]
Applicants contended that, on three occasions, first respondent
exercised powers in terms of
section 81
to grant artisanal fishers
exemptions from provisions of the MRLA. It is not in dispute,
applicants contend, that first respondent
may well grant an
exemption to artisanal fishers for a further period or further
periods. In reply, applicants further state
that they sought an
undertaking from first respondent that he will not again exercise
such powers, pending the fmalization of
the present application. No
such undertaking has been provided. In applicant's view, there is
every likelihood that the first
respondent will again use the power
in terms of
section 81
to grant exemptions in terms of the scheme.
As this issue was hardly pressed by respondents in argument before
this court and
as it may well be that first respondent will seek to
exercise powers in terms of
section 81
in future as the final policy
regarding small scale fishers has not been implemented, I am
prepared to assume in favour of applicants
that a live controversy
still confronts this court.
Standing
[19]
Initially an issue was raised about the standing of applicants to
bring this application. First applicant is the West Coast
Rock
Lobster Association, a non profit organization whose members all
hold rights to undertake commercial fishing for WCRL in
terms of
section 18
(1) MLRA. The association is a recognized industrial body
in terms of
section 8
of the MLRA, whose objectives include the
promotion of the interests of its members' and the development and
protection of the
WCRL fishery. The second and third applicants are
the holders of long term commercial fishing rights in the WCRL near
shore fishery,
while fourth and fifth applicants are holders of long
term commercial fishing rights in the WCRL off shore fishery.
[20]
No argument was pursued by any of the respondents regarding the
issue of standing. Accordingly, the case proceeded on the
basis that
all of the applicants had the requisite standing to bring this
application.
The
Exemption
[21]
As is clear from the statement made by first respondent on 3 May
2007, the exemption granted read as follows: "The Minister
shall by way of exemption until 31 December 2007 or any earlier date
identified, permit the identified fishers to engage in fishing
and
to sell the lawfully caught catch under the authority of the
recreational permit, the following: four west coast rock lobsters
per day; every day of the week until such 31 May 2007..."
[22]
The letter sent to each of the fishers, who were beneficiaries of
the exemption read, in so far as is relevant, as follows:
"
Exemption
in terms of
section 81
of the
Marine Living Resources Act 1998
... to
undertake fishing without a right to undertake or to engage in such
activity been granted in terms of
section 18(1)
and to be issued
with a valid permit for such activity without the payment of any
fees as contemplated in
section 13(2)
(c) of MLRA
.
The
Exemption Holder is hereby authorised to undertake fishing without a
right to undertake or to engage in such activity being
granted and
without payment of any fees for the issue of a valid permit as
contemplated in
section 13
(1) of MLRA subject to the following
conditions:
"The
exemption holder must apply to the Department of Environmental
Affairs and Tourism: Branch Marine and Coastal Management
for a
valid permit in terms
section 13
of MLRA"
[23]
It is useful to refer at this point to the key statutory provision
employed by first respondent, the meaning and scope of
which are the
subject of much of this dispute.
Section 81
(1) of the Act reads
thus: "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 from a provision of this Act."
[24]
This section forms the basis of applicant's argument to which I
now turn.
Applicants'
contentions
[25]
Mr Burger, who appeared together with Ms Norton on behalf of
applicants submitted the first respondent had carefully refrained
in
his answering affidavit from advising the court of which provisions
of the Act he had exempted the group of artisanal fishers.
Mr Burger
further submitted that the reason why respondents had been so
reluctant to explicate upon the legislative content of
the exemption
was that there was no provision of the MLRA from which exemption
could sensibly been granted in order to achieve
that which, by
definition, was unachievable, namely to allow recreational fishing
permits to be used for commercial fishing purposes.
[26]
When the exemption permit was examined it appeared that the Deputy
Director General had purported to grant an exemption from
sections
18(1)
and
13
(2) (c) of MLRA. Mr Burger submitted that the latter
provision pertained to the payment of fees for a permit and was
therefore
neutral in regard to the kind of activity which could be
permitted by way of exemption. Thus, what first respondent may do in
terms of
section 81
is to grant a person immunity from or relieve
him or her of a liability to which others are subject - such as the
need for a
permit under
section 13
to perform and activity in terms
of the MLRA. He may, to use the examples in
Smith
v Minister of Environmental Affairs & Tourism. RSA and another
[2003] 1 All SA 628
(C) at 633h-I, grant exemption from paying an
application fee in terms of
section 25
of the MLRA, or from
submitting an application in the manner determined by him in terms
of
section 18(2).
Section 18(1)
applied to commercial fishing and
subsistence fishing. The exemption on its own terms was accordingly
not one which pertained
to recreational fishing.
[27]
This argument leads to the central submission of applicants: Once
WCRL is allowed to be sold, the catch falls outside of
the
definition of recreational fishing. It becomes part of a commercial
catch. In terms of
section 14
, in particular
section 14
(4), first
respondent is prohibited from increasing the commercial catch unless
there is an increase in the resource. By acting
in terms of
section
81
(1), he, in effect, increased the commercial catch,
notwithstanding clear scientific evidence which revealed a declining
resource.
In short, the exemption granted by first respondent was in
conflict with the carefully conceived structure of the MLRA. The
exemption
had conflated the various categories of fishing and thus
the statutory division as set out in the MLRA. Furthermore,
section
81
(1) refers clearly to an exemption from '
a
provision of this Act'
(my emphasis). In this case, first respondent had sought to exempt a
whole category of fishers from various sections of the Act.
[28]
Expressed differently, applicants' case is that
section 18
lies at
the heart of the regulatory scheme envisaged by the Act. The section
allows commercial and subsistence fishing, only
where a right has
been granted by the Minister, following a proper application
process. Recreational fishing does not require
a right such as
that granted under
section 18
but only a permit because the Act
itself prohibits the sale of recreational catches.
[29]
Accordingly,
section 81
cannot be invoked to subvert the protective
regulatory measures of the Act and thus should be interpreted as
narrowly as possible
and in accordance with the scheme of the Act so
outlined. The narrow scope of
section 81
is further revealed by its
wording exemption may be granted by 'a provision' of the Act. By
contrast,
section 15
A of the Usury Act 73 of 1968 and section 79 of
Mine Health and Safety Act 29 of 1996
provide that the Minister may
grant an exemption from 'any or all the provisions of the Act'. By
construing the exemption in
section 81 widely and as if the words
used in these two Acts were employed in the MLRA, first respondent,
in effect authorised
the various respondents to catch and sell
without a right granted under section 18 and hence placed these
respondents outside
the scope of the Act.
Evaluation
[30]
A Full Bench of this court has examined the nature of section 81 in
Laingville
Fisheries (Ptv) Ltd v the Minister of Environmental Affairs and
Tourism
(unreported
decision of the CPD: 30 May 2008). In their judgment Griesel and
Waglay J J noted at para 36:"The intention 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."
[31]
As the court held in
Laingville,
supra,
section 81 employs wide and clear language. There is no basis for
the contention that the Minister may only exempt a person from
certain provisions of the Act but not others. No section remains
untouchable or out of reach of the exemption power contained
in
section 81. That conclusion follows from the wording of the
provision and the interpretation of the provision by the Full
Bench.
[32]
Applying this interpretation to the exemption granted by the first
respondent in terms of section 81 of MLRA, it is clear
that an
exemption was granted from the provision of section 18(1), namely no
persons shall undertake commercial fishing or subsistence
fishing.... unless a right to undertake or engage in such an
activity or to operate such an establishment has been granted by
such a person by the Minister.'
[33]
Pursuant to section 81, the Minister exempted a category of persons
from having to acquire a right before they could undertake
commercial or subsistence fishing. Pursuant to that decision, it was
logical that the related provision in section 13(2) (c),
namely that
persons exempted from section 18 would not require a permit (section
13(1) is manifestly a corollary to section 18)
and accordingly no
fees would be paid by the fishers.
[34]
In effect what happened was the following: The respondent fishers
were exempted from the provision that they could not undertake
commercial fishing without having been granted a right thereto by
first respondent. To the extent that the exemption letter
constituted a permit, they were also exempted from paying any fee
for this permit.
[35]
Once it was accepted that the first respondent can exempt any person
or persons from a provision of this Act, it must follow
that the
power to exempt from section 18 (1) is permissible. Once this is
permissible, a decision to dispense with a permit fee
by virtue of
the fact that the letter exempting the holder of the letter from the
provisions of section 18 constitutes a permit
is both logical and
ancillary to the substantive exemption. There is nothing in the Act
to gainsay this conclusion, save for
a formalistic emphasis on the
word 'a provision'. To over emphasize the words 'a provision' is,
however, to run the risk of subverting
the wide range of the
discretion afforded to first respondent pursuant to section 81; that
is where an exemption from one provision
necessitates exemption from
a consequential provision as occurred in this case. If section 81
permitted an exemption from section
18(1), it was logical to
dispense with a need for a permit.
[36]
For these reasons, I am satisfied that first respondent acted
intra
vires
in
his application of section 81. It therefore becomes necessary to
proceed to the other basis for review.
Delegation
[37]
Applicants submit that, in terms of section 79 (a) of MLRA, first
respondent has a general power of delegation to the Director
General
or on officer in his department nominated by the Director General.
However what he cannot do is to delegate part of the
decision making
process required for the proper exercise of a power in terms of
section 81. Therefore, first respondent cannot
decide that artisanal
fishers, as a category should be exempted, but make no decision
regarding which persons within that category
would be so exempted.
[38]
As Mr Duminy, who appeared together with Ms Bawa on behalf of first
second and third respondents, submitted, this argument
was not
foreshadowed in applicant's papers. However, first respondent was
given the power to exempt 'any person or group of persons
from any
provision of the MLRA. First respondent laid down criteria for the
identification of the persons who so qualify in terms
of his
decision of 14 December 2007. This group of persons was clearly
identified as 'not more than a thousand
bona
fide
traditional
artisanal fishers who had been allocated a long term fishing right
and who can demonstrate both historical dependence
and reliance on
fishing... along the Cape, West and South Coast between Port Nolloth
in the north and Arniston in the south'.
39]
This appears to have been indicative of an identifiable
ascertainable group persons as contemplated in section 81 of the
MRLA. According to Mr Share, the Department commenced issuing
permits on 22 January 2008 and proceeded to
issue
no more than a thousand permits for the season. The reason for the
delay in the commencement of the season was that 'a vigorous
verification of interim fishers had been undertaken'. There appears
to be clear merit in the argument that, having identified
the
category of persons to whom the exemption would apply, first
respondent was entitled to delegate the decision of the exact
persons who would benefit from that category to another person
within his department.
A
rational basis for first respondent's decision?
[40]
Mr Burger referred to the only scientific report which had been
prepared, that by Dr Augustyn who had recommended that
the interim
strategy not be implemented as it was in compatible with the long
term sustainable use of the resource. Mr Burger
submitted further
that first respondent had no countervailing scientific evidence
placed before him when he decided to approve
the scheme. On the
contrary, the information that he had received from the Director
General supported the views of Dr Augustyn.
In a recommendation of
21 April 2007, the Director General had confirmed 'indications are
that the resource are declining further
and a reduction of the TAC
to 2007/2008 fishing season is inevitable.' Furthermore, 'if the
total of a thousand fishers as indicated
by Masifundise is
accommodated in this interim measure, then approximately 22 tons
would be harvested by this group of fishers
until the end of May
2007. This would in fact mean that the TAC would have exceeded by
this amount.' Further 'due to the
known vagaries of fishing, the
limited fishing days remaining and the use of a recreational permit,
it is likely that the TAC
will be exceeded by far less than the 11
tons indicated in 2.15'.
[41]
Mr Burger also submitted that the decision of first respondent was
even more surprising in that Dr Augustyn's report had
been obtained,
pursuant to first respondent's own decision that approval for the
scheme would be granted in principle but that
he required a
scientific report prior to making a final decision. Furthermore, the
calculations employed by first respondent
as to the tonnage to be
granted to the fishing respondents was made on the basis of 868
persons. This was significantly less
than applicants estimate of
1242, Mr Share's figure of a 1000 and Mr Blaauw, on behalf of fourth
and other respondents, of about
1100.
[42]
Furthermore, when first respondent contended that the artisanal
fishers had a more legitimate claim to the resource, this
contention
was directly at war with the earlier decision made by first
respondent in terms of section 14 of the MLRA in which
the
allocation of WCRL to commercial fishing and recreational fishing
had been made, presumably after careful consideration,
including the
obligation imposed on first respondent in terms of section 2 of the
Act to take account the socio economic issues.
He should have so
done and was presumed to have done so when he made the earlier
decision and not only later when the exemption
scheme was
introduced.
Evaluation
[43]
In
Laingville
supra
at paras 44-47, the court gave content to the nature of the
discretion afforded to first respondent in terms of section 81(1).
The learned judges' reasoning reads thus:
"Given
the wording of s81(l) 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'. O'Regan J, writing for a unanimous
court, proceeded as follows:
'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', we are not persuaded that a reasonable
decisionmaker in the position of the Minister
could not have
decided to exempt applications 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."
[44]
While the approach adopted in this case is clearly binding on me and
the judgment is meticulous in its reasoning, I consider
it somewhat
unfortunate that the court sought to emphasize the subjective nature
of the discretion conferred in the Minister
in terms of section 81
South African administrative law used to draw an unsatisfactory
distinction between a subjective discretion
and a discretion based
on reasonableness. It is a distinction that, all too often, allowed
the courts to retreat from its supervisory
jurisdiction. As Hoexter,
Administrative
Law
in
South
Africa
at 46 correctly notes 'to act with discretion means to act wisely
and after due reflection; and so while discretion can be very
wide,
it is never completely "free" "unfettered"
"absolute" "arbitrary" notwithstanding
the
frequency with which these and similar adjectives have been used by
the courts.... The idea of uncontrolled or unguided discretion
is
hopelessly at odds with modern constitutionalism.' See for the
relevant history Baxter
Administrative
Law
at 407-410.
[45]
I would prefer to engage directly with the purpose of section 81 to
divine the scope of the Ministerial power. Within the
context of
affording deference to the responsible Minister, O'Regan J observed
in
Bato
Star v Minister of Environmental Affairs
2004(4) SA490 (CC) at para 48 that, in treating administrative
decisions with respect, a court must recognize 'the proper role
of
the executive within the constitution'. In short, a court 'should be
careful not to attribute to itself superior wisdom and
relation to
matters entrusted to other branches of government. A court should
thus give due weight to findings of fact and policy
decision made by
those of special expertise and experience in the field', (para 48)
[46]
Within the Canadian context Prof David Mullin has set out four
factors which guide a court in its review of decisions
such as that
raised in this dispute:
'The
four factors are (1) any statutory indicators of the scope of
review, such as the language in which the discretion is conferred
and the presence or absence of a privative (ouster) clause; (2) the
expertise of the reviewing court relative to that of the
administrator; (3) the purpose of the legislation and the particular
provision; and (4) the nature of the question in two different
senses: first, the mix of law, fact and discretion involved and
secondly, whether the question relates to the very reasons for
the
conferral of the statutory authority and the core of the
administrator's expected area of expertise.'
2006
Acta
Juridica
42
at 50.
[47]
In this case, first respondent has been given the power to decide
whether it is appropriate to exempt persons or categories
of persons
in provisions of the Act. Of course, he cannot act unreasonably,
capriciously or arbitrarily. He must consider the
evidence placed
before him, engage with the competing interests involved and the
impact of his decision on those affected by
the decision and come to
a carefully considered determination. It is not for a court to
choose a better interpretation or application
when the decision
complies with these requirements. It is for the court to respect the
decision which has been entrusted by the
legislation in wide terms
to first respondent.
[48]
First respondent stated that he had a difficult decision to make,
particularly in balancing competing rights. Whatever the
decision he
may have made initially, he was now faced with an order granted by
the Equality Court. It is not strictly necessary
for me to decide
upon the careful, eloquent and persuasive arguments advanced by Mr
Gauntlett, who appeared together with Ms
Fourie on behalf of the
134
th
respondent. However, once the Equality Court had granted an order,
first respondent was confronted with the reality thereof,
together
with any scientific and further evidence which had been placed
before him. He was thus required to reconsider his position
pursuant
to the order of the Equality Court.
[48]
Mr Duminy submitted that there was evidence, particularly in the
report generated by Mr D van Zyl, that the recreational
TAC was not
fully exploited in either the 2004/5, 2005/6 and 2006/7 seasons.
This information, in his view, provided direct support
for the
approach adopted by first respondent, namely that the allocation on
an interim basis to the fisher respondents could
be accommodated
within the unused portion of the recreational TAC.
[49]
Whereas in his initial report, Dr Augustyn suggested that he did not
consider 'that there is scope to accommodate interim
relief fishers
within the current nominal recreational allocation of 257 tons
unless far more drastic effort reduction measures
the previously
recommended... were imposed on recreational fishers', in a further
affidavit, to which he deposed, he stated:
' Short term measures,
such as for example the interim relief dispensation or allowing 'a
rollover' may result in a increase
in the catch for a particular
season but should not affect the long terms trends materially. The
effects of variations of this
kind are considered in the population
model used and factored into the OMP. The effect cannot be
determined with any accuracy
in isolation nor can they be accurately
quantified'.
[50]
In summary, there was evidence, particularly in the first report
generated by Dr Augustyn that the interim measure may place
excessive pressure on the resource. However, the possibility of
transferring an excess from the recreational TAC to accommodate
the
interim measures was based on previous history and a concession by
Dr Augustyn that, firstly an interim measure as proposed
would not
have long term effects and secondly that it was difficult to be
precise with regard to predictions of how much excess
on the
recreational TAC could be so utilised.
[51]
It is possible to argue, as applicants have done, that first
respondent should have given more weight to the report by Dr
Augustyn and the recommendations which he made. By itself, this is
insufficient to conclude that the approach adopted by first
respondent was not undertaken in a rational and careful fashion
based on the need for the balancing of competing interests within
the context of a limited resource.
[52]
I noted earlier that there was a dispute as to whether rights
holders obtain specific tonnages of fish or whether the right
is to
be expressed as a fixed percentage of the TAC. Whatever the merits
of this dispute, I cannot decide, on these papers,
that any of the
applicants have suffered prejudice pursuant to the decisions under
review. Of course, any future decisions taken
may cause prejudice
but that is not an issue before this court, once the scope of
section 81 has been determined in favour of
respondents.
[53]
It should not be forgotten that the Act sets out in clear terms as
one of its objectives:'The need to restructure the fishing
industry
to address historically imbalances and to achieve equity within all
branches of the fishing industry' (section 2(j)).
The 134
th
respondent is a traditional artisanal fisher, that is a small scale
fisher who is historically linked to the sea. He and other
members
of traditional fishing communities for generations have depended on
the resources provided by the sea. They have employed
traditional
methods to catch fish not on a grand commercial scale but in a
modest fashion in order to make a living for themselves
and to feed
their families. They are members of poor, predominantly black
communities on the South and West Coast.
[54]
First respondent was obliged to take their interests into account in
the crafting of his decision. That he did so in the
fashion set out
in the evidence is indicative of a decision maker having to make a
difficult decision in the allocation of limited
resources but doing
so in a fashion in which he was cognisant of the competing interests
which, in any event, may be intrinsic
to section 2 of the MLRA.
[51]
In my view, there is no basis by which this court should interfere
with this decision. For these reasons, the application
is dismissed
with costs, including the
costs of two counsel.
DAVIS
J