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[2003] ZAWCHC 72
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Foodcorp (PTY) Ltd v Deputy Director General - Department of Environmental Affairs and Tourism: Branch Marine and Coastal Management and Others (3519/02) [2003] ZAWCHC 72; 2004 (5) BCLR 487 (C); 2004 (5) SA 91 (C) (12 December 2003)
IIN THE HIGH
COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
Case
No: 3519/02
In the
matter between:
FOODCORP (PTY) LTD
Applicant
and
THE
DEPUTY DIRECTOR GENERAL - DEPARTMENT
OF
ENVIRONMENTAL AFFAIRS AND TOURISM:
BRANCH
MARINE AND COASTAL MANAGEMENT
First Respondent
THE
MINISTER OF ENVIRONMENTAL AFFAIRS
AND TOURISM
Second Respondent
THE HOLDERS OF
RIGHTS IN THE PELAGIC FISHING
Third to Ninety
INDUSTRY
AS SET OUT IN ANNEXURE "NM1
Second
Respondents
JUDGMENT:
12 DECEMBER 2003
VAN ZYL
J:
INTRODUCTION
[1] This application is directed, in essence, at reviewing and
setting aside that portion of the decision of the first respondent
in
terms of which the separate fishing quota allocated for pilchards and
anchovy was replaced by a single percentage quota for both.
The gist
of the complaint is that the quota had been allocated separately from
1984 to 2001, but in 2002 was allocated as a single
pelagic fishing
quota, split between pilchards and anchovies, in accordance with a
complicated mathematical formula. As a rights
holder in the pelagic
fishery business the applicant, which trades as "Marine
Products", avers that the new allocation
was arbitrary and
unreasonable, and demonstrated a failure by the first respondent to
apply his mind properly to the decision made
in this regard. In
addition it is averred that the first respondent acted
ultra
vires
in making the decision, which was in any event procedurally
unfair.
[2] For the aforesaid reasons, and inasmuch as the allocation for
2002 had the effect that the applicant's quota for both pilchards
and
anchovy was substantially diminished when compared with the 2001
quota, it appealed to the Minister during April 2002. The appeal
was
dismissed on 19 September 2002. It is common cause that the appeals
process in terms of the relevant statute, the
Marine and Living
Resources Act
of 1998 ("the Act") has not yet been
finally disposed of. This does not, however, constitute a bar to a
review application
such as the present. This court is hence invited
to correct the allocation to bring it in line with the separate
allocations of 2001,
alternatively to direct the first respondent to
effect such correction.
[3] As
Deputy Director General in the Department of Environmental Affairs
and Tourism: Branch Marine and Coastal Management ("the
Department"), the first respondent is cited in his capacity as
the delegate of the second respondent, the Minister of Environmental
Affairs and Tourism, in terms of section 79(1) of the Act. The first
respondent has the power to consider applications for rights
of
exploitation under the Act and to make allocations of such rights in
respect of pelagic fish. The second respondent in turn has
the right
to consider appeals against decisions of the first respondent in
terms of section 80 of the Act. The Act further more contains
a
policy framework to which I shall advert later on in this judgment
(par 15 below).
[4] At all
relevant times the third to ninety second respondents have, like the
applicant, been the holders of rights to pelagic fish
and have
conducted their business within the jurisdiction of this court. As
such they have engaged in the catching and processing
of pelagic fish
off the South African coast. They have been joined as respondents in
view of their legal interest in the outcome
of this application. No
costs are sought against them unless they oppose the relief sought by
the applicant.
BRIEF HISTORICAL AND EXPLANATORY SURVEY
[5] The concept "pelagic fish", in its original
connotation, refers simply to "fish belonging to the sea".
In
classical Greek the noun
pelágos
means "sea" and
the adjectives
pelágios pelágikòs
mean "pertaining to,
relating to or belonging to the sea". The Latin equivalents are
pelagus, pelagius pelagicus
, although the pure Latin forms
are
mare
("sea")
marinus
("pertaining to,
relating to or belonging to the sea" or, simply, "marine").
[6] In the
instructions to the advisory committee regarding the allocation of
pelagic fishing rights for the 2002 season, the Department
has set
out a brief, but useful, history of the pelagic fishing industry in
South Africa. Useful summaries appear in the founding
affidavit and
in the first respondent's answering affidavit. I have attempted to
capture their essence in the following paragraphs.
[7] Four main species are included in the South African pelagic
fishery. They are Cape anchovy (
Engraulis capensis
), pilchard
(sardine) (
Sardinops sagax
), round herring (
Etrumeus
whiteheadii
), also known as "red-eye", and Cape horse
mackerel (
Trachurus capensis
), known locally as "maasbanker".
The latter two species have, for various reasons, produced relatively
limited catches.
By contrast anchovy and pilchard account for 60% to
90% of landings in the multi-species pelagic fishery. For present
purposes the
red-eye and horse mackerel do not require further
consideration.
[8] The
first pelagic fishing operations in South Africa began in 1935, but
major commercial operations began only in 1943, in response
to the
demand for canned goods during World War II. Pilchard dominated the
catches until well into the 1960's, peaking at 410 000
tons in 1962
but experiencing a rapid decline to less than 100 000 tons in 1967.
Simultaneously there was a rapid increase in catches
of anchovy,
which replaced pilchard as the dominant species during the 1970s and
1980s. Anchovy catches peaked at 595 000 tons in
1987 but dropped to
150 000 tons in 1990. Acoustic surveys, which began in 1984,
demonstrated significant fluctuations in anchovy
abundance during the
1990s. At the same time there was a steady increase in pilchard
abundance, leading to speculation that it may
eventually replace
anchovy as the dominant species in the pelagic fishery.
[9] The
regulation of commercial catches of anchovy and pilchard was
introduced in the 1950s. The measures applied were pragmatic,
including constant catches and minimum mesh sizes. Scientific
management measures, based on the biennial acoustic surveys of
pelagic
fish stocks, were introduced for anchovy in the mid-1980s and
shortly thereafter for pilchard. Up to 2001 the operational
management
procedure (OMP) for anchovy was based on a simple formula
determined by running tests on a simulation model of the dynamics of
the
anchovy population. Key inputs to this model were age-structured
biomass estimates established in a November survey and used to
determine
the "total allowable catch" (TAC), that is the
maximum mass of fish available for exploitation in terms of the Act,
for
the following year. This survey was followed up by further
surveys during May and June of the following year with a view to
revising
the TAC on the basis of the estimated "recruitment"
of juvenile anchovy and pilchard.
[10] Pelagic
species are short-lived, anchovy having an average life span of two
years and pilchard five years. Pilchard is commercially
the more
valuable, one ton of pilchard generally being the equivalent of five
tons of anchovy. Both pilchards and anchovies may be
canned for the
consumer market, although anchovies are more frequently used for the
production of fishmeal. The nature of catching,
processing and
distributing products made from pilchard for canning, or freezing for
bait, differs from the fish meal processing
and distribution process.
Canned pilchards are for human consumption. This requires the removal
of heads and guts in a hygienic process
of cooking and canning the
product. Fish meal is essentially manufactured by the grinding of
unprocessed fish into fish meal for
consumption by animals. Different
forms of equipment are required for each of the processes. Some of
the holders of rights to pelagic
fishing do not have factories whilst
others are engaged in one or the other of the manufacturing processes
aforesaid. The applicant
and several other holders of rights are
engaged in both canning of pilchard and manufacturing fish meal
processes. The applicant
in fact has adjacent but separate factories
for each of these processes at Laaiplek in the Western Cape.
[11]
Juvenile pilchard tend to shoal or school with anchovy. As a result
juvenile pilchard are frequently caught in nets meant for
anchovy.
This is known as the pilchard "by-catch" in respect of
anchovy. Inasmuch as the shoaling tends to diminish during
the period
May to August, the exploitation of the anchovy resource tends to have
a smaller effect on the pilchard population from
the beginning of
September as the pilchard by-catch diminishes. As from 1986 provision
was made for by-catch as opposed to "directed
catch".
Directed pilchards are caught when the aim of catching the fish is
directed at catching pilchards with nets having openings
of 25mm by
25mm, thus allowing anchovy to escape through the openings. Directed
anchovies, in turn, are caught with nets with smaller
openings,
namely 12,7mm by 12,7mm, making it impossible for the pilchard to
escape. For practical reasons, related to the difficulty
of
separating the pilchards from the anchovies when caught in the same
net, the by-catch of pilchards is, usually, utilised for fish
meal
along with the directed anchovies.
[12] Within
the boundaries of optimal utilisation of the pelagic resource,
bearing in mind the need for its conservation and precautionary
approaches to its management and development, a general policy
objective has been set to maximise the catches of pelagic species.
This is subject to a minimal risk that the resource as a whole may,
at any time, be reduced to 20% of the average level of pilchard
and
15% of the average level of anchovy, even if there should be no
fishing. In this regard human exploitation constitutes only one
of
the pressures on the pelagic species, which form an important
component of the marine ecology. They feed on smaller creatures
near
the surface of the open ocean, but are themselves a food source for
many other fish, birds and marine mammals. They are also
subject to
other ecological pressures that may have a profound effect on their
continued survival.
[13] As
may be expected from the operational interaction between catching
anchovy and pilchard, the greater the anchovy TAC the greater
the
juvenile pilchard by-catch. This again affects the recruitment of
juvenile pilchard into the adult pilchard population, leading
to a
reduction in the pilchard-directed TAC. This may be regarded as a
biological trade-off between the exploitation of pilchard
and that of
anchovy. Currently the maximum annual TAC for pilchard-directed catch
is in the vicinity of 250 000 tons, while that
of anchovy-directed
catch is some 600 000 tons. These limits are flexible, however, and
may be exceeded in exceptional circumstances
without putting the
pelagic resource at any substantial risk.
[14] To
maintain stability in the pelagic fishing industry a limit of 20% is
set on the maximum amount by which pilchard-directed
catch may be
reduced from year to year. In addition there is a lower limit of 90
000 tons on that catch. In exceptional circumstances,
should the
pelagic resource drop to very low levels, these limits may be
exceeded. In the case of anchovies the relevant limits are
30% and
150 000 tons.
[15] The
policy framework for the pelagic industry is set forth in chapter 1
of the Act, section 2 of which deals with its objectives
and
principles. Predominant among them is the need to achieve optimum
utilisation and ecologically sustainable development of marine
living
resources (section 2(a) of the Act). This requires consideration of
the role and position of the fishing industry in relation
to the
relevant sector. Equally important is the need to conserve marine
living resources for present and future generations and
to apply
cautionary approaches in respect of the management and development of
marine living resources (sections 2(b) and (c) f the
Act). This
requires consideration of the nature of the resource. Sections 5, 6
and 7 of the Act provide for the establishment, composition
and
functions of a consultative advisory forum (CAF). More particularly
this body advises the second respondent on any matter he
refers to
it, including issues relating to the total allowable catch (TAC) and
the establishment and amendment of operational management
procedures
(OMPs).
[16] From
the Department's point of view the objective is to take account of
all the factors set forth above and to integrate them
into a flexible
and adaptable management strategy that allows for quantification of
the TAC for various species and for rights allocations
to individual
commercial participants. The OMP adopted by the CAF in 1999 (OMP-99)
recommended pelagic TACs and by-catch allowances
for 2001. The
pilchard-directed TAC and by-catch allowance were recommended at the
beginning of the year and were not revised. The
initial anchovy TAC
and pilchard by-catch allowance were revised mid-year after the
winter recruitment survey.
EVENTS GIVING RISE TO THE PRESENT APPLICATION
[17] The anchovy fishery concentrates on the winter
months because that is when the fish aggregate sufficiently and close
enough to
the coast to make catching economically viable.
Unfortunately that is also the time when the greatest number of
juvenile pilchard
is found amongst the anchovy shoals. Hence the
greater the anchovy catch the greater the pilchard by-catch and the
smaller the amount
of directed adult pilchard that may be allowed.
This prompted the Department to develop a new OMP (OMP-02) that would
take account
of the aforesaid problem and of the fact that
participants in the pelagic fishing industry prefer either pilchard
or anchovy, depending
on whether their processing facilities are
geared towards canned fish or fish meal production. Central to OMP-02
was that it moved
away from a policy in terms of which the Department
unilaterally selected an OMP to reflect a particular average
pilchard/anchovy
mix or trade-off. In its stead it introduced a
policy that gave participants in the industry the opportunity to
choose their own
notional OMP to reflect their desired
pilchard/anchovy mix or trade-off. This would then constitute an
important component of the
data used to develop a mathematical model
for calculating the appropriate TAC's and quota allocations.
[18] A
significant facet of OMP-02 was that it expressed each participant's
right as a proportion of the pelagic fishery as a whole
rather than
of the TAC for each species separately. This resulted in appropriate
individualised quota allocations being made on the
basis of an
inter-species trade-off and of individually preferred ratios. The
rights were allocated as a single percentage of the
combined
anchovy/pilchard fishery for a four-year period from 2002 to 2005.
The development of OMP-02 was based on an additional
three years of
scientific data and refinements of the interpretation of such data.
This means that the data spanned some twenty years,
thereby allowing
for a more sophisticated understanding of the resource and more
reliable mathematical modeling, albeit in a somewhat
complex format.
[19] The
rationale for the policy shift, according to the first respondent,
was threefold. It permitted greater catches of pilchard
and anchovy
on average without increasing the risk of unacceptable depletion of
these two resources. It provided greater stability
for the industry.
It would reduce the maximal inter-annual TAC decrease for pilchard
from 25% to 20% and for anchovy from 40% to
30%. This demonstrated
that the decision to revise and implement OMP-02 involved difficult
and complex policy matters ranging from
optimum utilisation of the
pilchard/anchovy resource and the conservation of these species, to
the need to apply precautionary approaches
in the management of the
pelagic fishery. The first respondent was, at all material times,
fully aware of the process followed in
developing and implementing
OMP-02 and approved the rationale and policy considerations
underlying it.
[20] It appears that an extended consultative process with all
interested parties took place before the adoption of OMP-02. This
included a number of research and communication forums at which
participants were duly represented. Professor D S Butterworth and
Dr
J A A de Oliveira compiled a document describing how single
percentage rights for pilchard and anchovy would work and what
related
changes to the management of the pelagic fishing industry
would be required. A supporting affidavit by Professor Butterworth
and
excerpts from Dr de Oliveira's doctoral thesis on
The
Development and Implementation of a Joint Management Procedure for
the South African Pilchard and Anchovy Resources
(PhD: University
of Cape Town, 2002) were annexed. Likewise annexed were a large
number of further documents reflecting the process
of development
from OMP-99 to OMP-02.
[21] On 20 March 2001 a meeting was held between the
Department and the South African Pelagic Fishing Industry Association
("the
Association") which represents the interests of
holders of pelagic rights. The main aim of the meeting was to confirm
that formal
communication lines regarding resource management were
open between participants in the pelagic industry on the one hand and
pelagic
scientists and fisheries managers of the Department on the
other. In addition it was resolved that a wide front of
representation
of various sectors of the pelagic fishing industry
would, in future, attend meetings of the Industry Sea Fisheries Forum
("INSEF")
and the Pelagic Working Group ("PWG")
of the Department. A meeting was convened for 13 August 2001 to
discuss the revisions
to be introduced by OMP-02.
[22] In the meantime an invitation to apply for rights to undertake
commercial fishing during the 2002 to 2005 seasons was issued
in
Government Notice No 1171 dated 27 July 2001 and published in the
Government Gazette
22517 of the same date. In a departure from
previous years pilchard and anchovy were not identified as separate
sectors for which
rights could be allocated independently. Instead
they were combined as a single pelagic sector and applicants were
requested to indicate
whether they preferred, if successful, to be
allocated anchovies or pilchards or both. If they preferred both,
they were requested
to indicate what ratio of anchovy to directed
pilchard was preferred. They were also asked to state the nominal
mass of anchovy,
directed pilchard, red-eye and other by-catch that
would be fished by the vessel that they had indicated would fish
their quota.
This was fully consonant with the policy and rationale
underlying the newly developed OMP-02.
[23] In completing the application form, the applicant
stated that its "target species" were both anchovy and
directed pilchard
in the preferred ratio of 67:33. This was roughly
in proportion to the size of the quotas awarded the applicant in
2001. It was then
allocated 10 435 tons of pilchard (including bait
of 310 tons), comprising 5,7% of the 2001 pilchard TAC of 182 000
tons, and 17
304 tons of anchovy, comprising 3,8% of the 2001 anchovy
TAC of 451 000 tons. If the 2002 pilchard and anchovy TAC should
replicate
the 2001 TAC, an allocation as requested would be consonant
with the respective capacities of the applicant's fish meal (anchovy)
and canning (pilchard) plants. During February 2002, when successful
applicants were given the opportunity of revising their preferred
ratio, the applicant amended its ratio to 65:35. When revised
allocations were subsequently made, however, the applicant's ratio
was reduced from 65:35 to 52:48 on the basis that a maximum increase
of 15% was allowed in respect of the pilchard ratio per applicant.
This was ostensibly to prevent the under-exploitation of the anchovy
resource over the long term.
[24] The
provisional TACs for 2002 were determined in December 2001 on the
basis of a report dated 21 December 2001 by Dr G Pitcher,
the acting
director of research in the Department. In terms of a notice dated 25
January 2002, the Department announced that the
provisional TAC for
the pelagic fishery had been determined at 393 600 tons for the 2002
season. This was made up of 136 500 tons
of pilchard, 222 600 tons of
anchovy and 34 500 tons set aside for pilchard by-catch in the
anchovy and red-eye sectors. This amount
would not form part of the
rights. There would, however, be "revisions" of the TAC in
February 2002 (pilchard and anchovy)
followed by two further
revisions (anchovy only) in May 2002. As it eventuated, there was
indeed a significant increase in the TAC
of pilchard during May 2002,
namely from 136 500 to 257 978 tons. The anchovy TAC increased from
222 600 to 259 726 tons.
[25] The
first respondent thereupon considered applications for commercial
fishing rights in the pelagic sector during December 2001
and January
2002. He granted medium-term pelagic rights to 91 out of the 187
applicants who applied. Of these 105 were 2001 rights
holders and 82
were "potential new entrants". Of the successful applicants
75 had been rights holders in the 2001 season
and the remaining 16
were "potential new entrants". In addition he awarded
rights to 2 applicants for their own use as
bait in order to exploit
a commercial fishing right. On appeal a further 19 rights were
granted, of which 13 were to 2001 rights
holders and 6 to new
entrants. This still contrasted significantly with the 161 applicants
who had been granted rights in the 2001
season, comprising 52 anchovy
rights holders, 77 pilchard rights holders and 32 pilchard bait
rights holders.
[26] The process followed in the allocation of rights is contained in
the summary of recommendations, considerations and decisions
in
respect of pelagic fishing rights for the 2002 to 2005 seasons. The
first respondent has summarised it as follows. After converting
the
2001 separate allocations of pilchard and anchovy to a single
percentage for both species combined, the smaller 2001 rights holders
had their percentages increased to a minimum single percentage of
about 0,3% of the combined pilchard and anchovy fishery, in order
to
ensure greater economic viability. New entrants were initially
allocated about 0,3% each. A further 0,3% was set aside for
allocation
to persons who catch pelagic fish for their own use as
bait. The combined percentages were then adjusted
pro rata
90%
to yield 10% for appeals and the reserved decisions. The preferred
pilchard/anchovy ratio based on the information contained in
their
applications and subsequently revised was subsequently determined for
each rights holder.
[27] The
quota or share of the TAC for each rights holder was calculated in
accordance with the formula prescribed by OMP-02. In this
regard the
first respondent relied heavily on the expertise of Professor
Butterworth and chapter 5 of Dr de Oliveira's aforesaid
thesis (par
20 above), in which the mathematical aspects are dealt with
comprehensively. Dr de Oliveira prepared a series of calculations
reflecting slightly larger minimum allocations to the smallest rights
holders with a view to reducing "paper" quotas. His
calculations resulted in a range of quantification options of which
the first respondent selected the one that accorded most closely
with
this objective. This was explained by Professor Butterworth at a
forum of rights holders held on 6 February 2002, subsequent
to an
exchange of documentation indicating confusion among rights holders
as to exactly what was expected of them and what allocations
they
should anticipate.
THE GROUNDS OF THE APPLICATION
[28] In his founding affidavit Mr J A van Niekerk, the
chief executive officer of the South African fishing division of the
applicant,
was stridently critical of the method of allocation
proposed for 2002 to 2005. He averred that the first respondent had
not personally
arrived at the results of the decision but had relied
entirely on Professor Butterworth's calculation. Any error or
misunderstanding
by Professor Butterworth of the relevant facts or of
the industry and the relative commercial values of pilchard and
anchovy had
been "built into" his programme or formula
without the first respondent even being aware of it. This was, in Van
Niekerk's
opinion, "fundamentally wrong in that it does not take
into account the realities of the fishing industry, nor the relative
commercial values of the pilchard and anchovy catches".
Applicants could not be expected to know what their share of the
pilchard
and anchovy TACs would be and they could not calculate a
reliable value of such rights.
[29] When
the various applicants applied for rights in the pelagic fishing
industry the first respondent had not, according to Van
Niekerk, made
his intention clear nor had he clarified the position in subsequent
explanations appearing from the relevant documentation.
The
applicants had, therefore, completed their application forms without
the benefit of any explanation or guidance as to the significance
of
the preferred ratio. They were likewise ignorant of the way in which
the amounts of the allocations in the pelagic sector would
be
determined or how it would be divided among the various pelagic
species. In any event on 13 September 2001, the final date for
submission of applications for the 2000 to 2005 rights, there was as
yet no indication of what the TAC for the pelagic sector, or
for
pilchard or anchovy as such, would be.
[30] When
the implication of the new ratio became known, Van Niekerk stated,
almost all the rights holders applied for an amendment
of his or her
ratio by providing for larger percentages of pilchard. This was
necessary, he suggested, because, whatever the first
respondent's
intention might have been, it had not been achieved and the result
was inequitable. To add high volume anchovy rights
and low volume
pilchard rights of various rights holders, and then to divide the
total tonnage of both species by the total tonnage
of each of the
rights holders, single percentages for each rights holder were
created based purely on tonnage. This did not take
into account the
respective commercial values of the species or the unusual nature of
the 2001 season.
[31] According
to Van Niekerk the applicant "initially chose the ratio between
the species without at the time fully understanding
the implications
of the proposed allocation process". This gave rise to inequity
and "a distortion of the rights as ultimately
granted, when
compared to the 2001 rights". It was not taken into account that
a rights holder with a large anchovy tonnage
was awarded a larger
percentage of the total pelagic TAC than would have been the case had
the species been treated separately or
the relative commercial values
taken into account.
[32] In this way, Van Niekerk averred, the holder of rights with a
high tonnage in anchovy would be awarded a larger percentage of
the
total than would have been the case in previous years. Thus the
Lamberts Bay Fishing Company (40
th
respondent) in 2001 had
a 0,0057% share of the allocated rights to pilchard and received only
a 10 ton bait right to pilchard alongside
its 8,4% (37 523 tons) of
the allocated rights to anchovy. In 2002, however, it was allocated
3,9% (4 674 tons) of the allocated
pilchard rights (later revised
upward to 4,1% or 9 508 tons) and 6,8% (14 133 tons) of the allocated
anchovy rights (revised to 6,7%
or 16 224 tons). Similarly South
African Sea Products Limited (73
rd
respondent) went from
1,0% (1 713 tons) of allocated pilchard (bait) rights to 3,7% (8 622
tons) of allocated pilchard rights. Neither
of these respondents,
however, had their own pilchard canning factories.
[33] The
applicant, by contrast, received a single percentage pelagic fishing
allocation of 4,15689%. According to Van Niekerk this
means that it
lost a significant percentage (1,1%) of the pilchard rights
allocation between 2001 (10 435 or 5,7% of the allocated
pilchard
TAC) and the revised allocation of 2002 (5 524 tons or 4,6% of the
allocated pilchard TAC). It made a material gain (1,3%)
in the
anchovy rights allocation between 2001 (17 304 tons or 3,8% of the
allocated anchovy TAC) and 2002 (10 509 tons or 5,1% of
the allocated
anchovy TAC). This represented a loss of some R6 million on
pilchard and a gain on anchovy of approximately R500
000,00. In his
affidavit Professor Butterworth queried these figures and pointed out
that the applicant's actual pilchard allocation
had in fact increased
from 10 435 tons in 2001 to 10 832 tons in February 2002. This
constituted a small increase and could not justify
an alleged loss of
R6 million. The anchovy figures did demonstrate a slight reduction
from 17 304 tons in 2001 to 15 648 tons in
2002, but this constituted
an increase of 0,6% in its share of the anchovy TAC for 2002. Van
Niekerk, however, persisted with his
allegation in his replying
affidavit on the basis, it would seem, that the loss represented the
difference between the applicant's
projected income under the
separate percentage system as opposed to the combined single
percentage system. In this regard it had
to be borne in mind that the
TAC for pilchard increased substantially in the period 2001 to 2002.
As a result all successful applicants
were rewarded with an increased
actual allocation.
[34] The appeal procedure, according to Van Niekerk, was neither
practical nor feasible as a means of remedying this situation and
was, in general, a protracted and time-consuming process. The only
way in which the first respondent's erroneous computation of
allocations
could be rectified was by requesting this court either to
effect the rectification
mero motu
or to refer it back to the
first respondent for a corrected decision.
[35] In
effect the applicant seeks with this application to restore the
previous situation in terms of OMP-99 by granting separate
percentages for pilchard and anchovy fishing rights. It has indicated
a preference for this court to effect the necessary correction
rather
than for the first respondent to reconsider his decision. In this
regard Van Niekerk suggests that the correction is a simple
one and
so apparent that there is no need for further consideration thereof.
If the court should correct the decision the matter
would be resolved
forthwith, whereas if the first respondent should be given a further
opportunity to consider the matter he might
well make a decision that
subsequently requires further review. To assist the court the
applicant has prepared a revised decision
with amended annexures and
schedules on the basis of separate percentages for pilchard and
anchovy.
SUBMISSIONS ON BEHALF OF THE APPLICANT
[36] Mr Burger argued on behalf of the applicant that
the reduction in the applicant's share of the provisional 2002
pilchard TAC,
as well as the way in which this TAC was actually
distributed, was arbitrary and grossly unreasonable. It indicated
inherent flaws
in the process used to allocate pilchard and anchovy
rights to successful applicants for the 2002 to 2005 seasons. This
was illustrated
by the opportunity given to successful applicants to
revise their preferred ratio of pilchard and anchovy and also by the
"compromise
preferred ratio ⦠imposed by the Department in the
course of doing running repairs on its allocation system mid-season".
This
was in conflict with the Department's professed intention no
longer to impose the trade-off between pilchard and anchovy catches
"externally" but to leave it to the rights holders to
decide for themselves.
[37] Mr
Burger submitted that the main error in the allocation process
related to the decision to commence computation of the quantum
to be
awarded to 2001 rights holders by calculating their percentage of the
combined anchovy/pilchard TAC in 2001. Allied to this
was the first
respondent's failure, when computing the equivalent single percentage
right ("ESPR"), to take into account
factors such as the
respective sizes of the pilchard and anchovy TACs in 2001 and the
relative commercial value of these species,
namely 5:1. To make
matters worse, Mr Burger argued, the first respondent had not himself
made the relevant decisions, but had "impermissibly
delegated
his functions". In this regard the allocation process was
fundamentally flawed in that the applicants were not given
the
requisite information when completing their application forms. This
resulted in the need to amend the preferred ratios, a power
that the
first respondent did not have. In any event he did not even use such
amended preferred ratios, but imposed "an artificial
preferred
ratio" on applicants.
[38] With reference to the
Promotion of Administrative Justice Act
of 2000 ("PAJA") Mr Burger contended that the 2002 to
2005 allocation should be set aside because it was arbitrary, not
rationally connected to the information before the decision-maker and
grossly unreasonable (sections 6(2)(e)(vi), (f)(ii) and (h))).
In
addition the decision-maker took critical parts of the decision
without authorisation, failed to take into consideration all
relevant
factors and acted beyond his powers in determining the final
allocations (sections 6(2)(a)(i) and (ii), (e)(iii) and f(i)).
Finally the decision was procedurally unfair (section 6(2)(c)). The
respondents' denial of these allegations, through Professor
Butterworth,
was, Mr Burger submitted, bare, cryptic and
unsustainable. It did not appear from the relevant documentation
appended and fell to
be rejected on the papers. In the alternative,
he suggested, the matter should be referred to oral evidence.
[39] Much
of the further argument was directed at illustrating the alleged
arbitrariness, unreasonableness and substantive unfairness
of the
2002 allocation of pelagic fishing rights, demonstrating that the
first respondent had failed to apply his mind. Once again
Mr Burger
was critical of the combined 2001 pelagic TAC being the starting
point of the calculation of the 2002 rights. In addition
the first
respondent had ignored the unusually high 2001 anchovy TAC and the
fact that pilchards were five times more valuable than
anchovies. He
had likewise given no recognition to the resources, capacities and
facilities of the various applicants nor had he
taken into account
their previous pilchard rights or past performance in relation to a
particular pelagic species. Applicants desirous
of increasing their
share in the more lucrative pilchard market could do so irrespective
of their resources or the prejudicial consequences
to existing
pilchard rights holders such as the applicant.
[40] The
inherent arbitrariness of the 2002 allocation, Mr Burger suggested,
could be seen in the decrease of the applicant's share
in the
pilchard TAC from 2001 to 2002, in contrast with the shares allocated
to other rights holders in the same period. In this
regard he
compared the applicant's unjustifiably decreased share with the
enormously increased share of the Oceana Group, the Lamberts
Bay
Fishing Company Ltd and South African Sea Products Ltd. Although the
applicant's plight was ameliorated by the revised allocations
of May
2002, the final pelagic quotas still revealed striking anomalies,
particularly when comparing that of the applicant with those
of
Lamberts Bay and SA Sea Products aforesaid. This, Mr Burger
submitted, could not be reasonably or logically justified.
[41] Mr
Burger took note of the reluctance of our courts to become involved
in issues of policy, particularly where it relates to
the development
and application of a highly technical and complex system. The
applicant was not, however, asking the court "to
tinker with a
mathematical formula or correct an improper balancing of applicable
considerations". Its review was directed at
setting aside the
results of the allocation process because they were unreasonable and
unjustifiable, and reflected a failure by
the first respondent to
consider all relevant factors.
[42] On
the issue of procedural unfairness Mr Burger submitted that the
applicant had not been informed of the nature of the allocation
process at the time it completed its application form. Only during
2002 was an explanation forthcoming, long after the application
had
been submitted. This, he argued, was procedurally unfair.
[43] Another argument raised by Mr Burger was that the first
respondent had not taken the relevant decision himself, but had
abdicated
his responsibility to the experts who devised that various
mathematical formulae and models. In any event the final allocation
of
pilchard and anchovy during May 2002 was
ultra vires
powers
in that he was, by that time,
functus officio
and did not have
the power to request applicants to amend their preferred ratio. This
could only be done on appeal to the second respondent.
[44] In
the result Mr Burger requested this court to substitute its own
decision for that of the first respondent. More particularly
he asked
that it substitute any reference to single percentages and preferred
ratios in the general reasons relating to the distribution
of TAC
amongst successful applicants, with separate percentages for pilchard
and anchovy and with the allocation method employed
in the 2001
season. This was a logical, simple and practical way of resolving the
difficulties that had arisen from the new system.
In the alternative
the allocations should be set aside and the matter referred back to
the respondents for a fresh determination.
In the further alternative
it should be referred to oral evidence on the main issues set forth
above.
SUBMISSIONS ON BEHALF OF THE RESPONDENTS
[45] On behalf of the respondents Mr Duminy submitted
that the relief sought by the applicant was certainly novel and
far-reaching.
It was also incompetent. On the one hand it was
requesting the court to set aside a portion of the first respondent's
decision that
could not be regarded as administrative action. On the
other hand it required that the court replace it with the applicant's
own
effort to determine an appropriate allocation of rights in the
pelagic fish industry. In the process it was suggesting that the
court
usurp the functions of the respondents while disregarding their
expertise in a policy-laden and polycentric issue.
[46] By
way of introduction Mr Duminy sketched the statutory scheme in the
context of which the present application falls to be determined.
He
emphasised that the primary purpose of the Act, as it appears from
its long title, is to provide "for the exercise of control
over
marine living resources in a fair and equitable manner to the benefit
of all citizens of South Africa". In this regard
he highlighted
the objectives and principles of the Act (par 15 above), pointing out
that section 2 of the Act does not require the
functionary to have
regard to all relevant consideration in each case. Nor does it
prescribe how the various considerations, which
are not exclusive,
must be balanced against one another.
[47] With
reference to section 33(1) of the Constitution, which requires all
administrative action to be "lawful, reasonable
and procedurally
fair", Mr Duminy adverted to the standard of review emanating
from the common law and sections 3 to 6 of PAJA.
He submitted in this
regard that the subject matter of the administrative action and the
context within it is assessed is of the
utmost importance. He
stressed that the decision-maker has a wide discretion in striking a
balance with a view to furthering the
objectives and principles of
the Act. A court must hence be reluctant to intervene in the
legitimate activities of administrative
bodies on review. It must
also take care that it does not blur the distinction between review
and appeal by considering that a different
decision might have been
simpler, or even better.
[48] Mr
Duminy then dealt systematically with each of the various grounds of
review raised by the applicant. In the process he raised
certain
incorrect averments made by the applicant. Among them was the
repeated statement that the first respondent had not taken
into
account the difference in value between pilchard and anchovy. Mr
Duminy pointed out a passage in the first respondent's affidavit
where it was specifically mentioned that canned pilchard commanded a
higher price than anchovy, the ratio being as much as 5:1. It
was to
be expected that the commercial fishing industry would prefer the
higher valued species at any given time, provided they have
the
necessary facilities to process it.
[49] Mr
Duminy stressed that OMP-02 moved away from a departmental policy of
unilaterally selecting an OMP to reflect a particular
average
pilchard and anchovy mix or trade-off and introduced one in
accordance with which participants could choose their own notional
OMP to reflect their preferred ratio of pilchard and anchovy. This
was a policy shift involving significant inputs by all interested
parties, including scientists with special expertise and experience.
In this regard it involved difficult and complex policy issues.
It
also involved a discretionary act of the first respondent, as
delegate of the second respondent, directed at striking a balance
in
furtherance of the objectives and principles of the Act. It was clear
from the first respondent's affidavit, as supplemented by
that of
Professor Butterworth, that this purpose had been achieved in a
rational and logical way, in accordance with carefully formulated
mathematical modelling and in accordance with well researched
scientific data. The researchers had in fact applied a technique
widely
used in international and national scientific agencies
throughout the world.
[50] Mr
Duminy underlined Professor Butterworthâs statement that harvest
control laws were an integral component of any OMP. In
the case of
South African pilchard resources, they served to specify the ratio
between the TAC and the estimate of resource abundance
provided by a
research survey conducted every November, and aimed to ensure that
pelagic resources remain above a certain fraction
of what the average
levels would be in the absence of human exploitation. The formulae
chosen in this regard involved a combination
of policy, marine
biology and applied mathematics. They have been extensively
simulation tested, peer reviewed and developed to give
effect to the
first respondentâs decisions and to furnish him with a means to
implement them by making individualised allocations
of rights in the
pilchard and anchovy sectors of pelagic fishery. They have, in sum,
been designed to give expression to and accommodate
the range of
variables that play a role in the management of the resource, in
accordance with the policy choices made in developing
and
implementing OMP-02. This, submitted Mr Duminy, was both apposite and
correct. In the process it rendered the OMP robust, stable,
adaptive
and characterised by the ability to self-correct over time.
[51] In
view hereof, Mr Duminy submitted, it was clear that the first
respondent had been well aware of the respective anchovy and
pilchard
quotas in 2001 and of the fact that pilchard has a greater commercial
value than anchovy. This was reflected in the patterns
of
exploitation followed by participants in the pelagic fishing
industry.
[52] Mr
Duminy submitted further that the applicant has apparently
misunderstood the way in which the equivalent single percentage
right
(ESPR) is calculated and has suggested no viable alternative to the
2001 TAC as a starting point for the allocation process.
The
applicant simply does not agree with the policy decision to deal with
the pelagic sector by means of a single percentage right
and wishes
to revert to the previous system.
[53] Regarding
the applicantâs suggestion that the first respondent had
impermissibly delegated his decision-making power to the
persons who
had made the calculations, Mr Duminy submitted that the first
respondent had indeed made the relevant decision by selecting
one out
of a number of quantification options presented to him by the
researchers. Whilst consulting Professor Butterworth and others,
it
was he who finally took the decision that the applicant seeks to set
aside on review.
[54] On
the allegation that the applicant and other participants had been
given insufficient information regarding the new policy,
Mr Duminy
pointed out that the documentation available to the applicant and
such participants made it quite clear what was envisaged.
And anyone
who did not understand anything could simply have asked for guidance
or information. The S A Pelagic Fishery Association
took the trouble,
prior to the deadline for submitting applications, to ask for
guidance in completing the application form and received
a response
within days.
[55] Much
of the information that was furnished to successful applicants at the
forum for rights holders on 6 February 2002 (par 27
above) had become
available only after their applications had been submitted. That is
why they were given the opportunity to amend
their preferred ratios.
There was no question, Mr Duminy submitted, of any requirements in
this regard.
[56] Mr
Duminy concluded his argument by submitting that complexity was not a
ground for review, nor was simplicity a requirement
for valid
administrative action. Where policy and other factors requiring
consideration are multifaceted and complex in themselves,
it is
clearly desirable that the management system should deal with that
complexity, rather than ignore or deny it. It is certainly
not a
basis, he argued, for this court to substitute its own decision for
that of an administrative authority.
CONSIDERATION OF THE GROUNDS OF REVIEW
[57] The applicant has attacked the first respondent's decision on
both common law and statutory grounds, many of which overlap.
The
common law grounds have in fact become subsumed under the
Constitution, Act 108 of 1996, from which they draw their force and
with which they are inextricably intertwined. This has been pointed
out with great lucidity in
Pharmaceutical Manufacturers
Association of South Africa and Another; In Re Ex Parte President of
the Republic of South Africa and
Others
[2000] ZACC 1
;
2000 (2) SA 674
(CC) at
692 (par 33).
[58] The common law grounds raised by the applicant include the
traditional ones of arbitrariness and unreasonableness
(irrationality)
of the decision in question, failure of the first
respondent to apply his mind properly to the relevant facts and
circumstances and
ultra vires
conduct in making his decision.
The statutory grounds relate to section 33(1) of the Constitution, in
that the decision constituted
administrative action that was not
"lawful, reasonable and procedurally fair". They also
relate to certain provisions of
section 6(2) of PAJA (par 38 above)
on the basis that the decision was arbitrary, grossly unreasonable
and procedurally unfair, while
the first respondent, as
decision-maker, acted without authority and beyond his powers in
making the decision and determining the
final allocations.
[59] These
are serious allegations to make against any decision-maker burdened
with the responsibility of implementing the policy-laden
and
polycentric objectives and principles of the Act (par 15 above). If
they should be correct, the decision would have to be overturned
and
the decision-maker would probably be held incompetent to exercise the
duties and functions adhering to his office. By the same
token such
allegations should not be made unless they are based on proper and
justifiable grounds. It is obvious that this court,
in reviewing the
decision and the conduct of the decision-maker must take careful, and
indeed meticulous, cognisance of all the relevant
facts and
circumstances in the context of the applicable legal principles and
statutory provisions.
[60] Mr Burger quite correctly conceded (par 41 above) that our
courts are reluctant to become involved in issues of policy,
particularly
when such policy relates to the development and
implementation of a highly technical and complex system. In
Bel
Porto School Governing Body and Others v Premier, Western Cape and
Another
(3) SA 265 (CC) at 292 (par 87) Chaskalson CJ stated this
approach even more widely when he said:
The role of the Courts has always been to ensure that
the administrative process is conducted fairly and that decisions are
taken
in accordance with the law and consistently with the
requirements of the controlling legislation. If these requirements
are met,
and if the decision is one that a reasonable authority could
make, Courts would not interfere with the decision.
[61] This
dictum
was quoted with approval by Schutz JA in a
recent case emanating from the Supreme Court of Appeal, namely
Minister of Environmental Affairs and Tourism and Others v
Phambili Fisheries (Pty) Ltd and Another
[2003] 2 All SA 616
(SCA) at 631i-632
b
(par 46). The learned judge of appeal
proceeded to point out (par 47 at 632
b-c
) that the
decision-maker in that case had a wide discretion to strike a balance
in furtherance of the objectives and principles of
the Act. In such
capacity he gave effect, to a large extent, to government economic
policies. Under such circumstances judicial review
called for
deference. Schutz JA referred in this regard to
Logbro Properties
CC v Bedderson NO and Others
(2) SA 460 (SCA) at 471A-D (par 21
and 22), where it is stated that a judicial officer must demonstrate:
â¦
a judicial willingness to appreciate the legitimate
and constitutionally-ordained province of administrative agencies; to
admit the
expertise of those agencies in policy-laden or polycentric
issues; to accord their interpretation of fact and law due respect;
and
to be sensitive in general to the interests legitimately pursued
by administrative bodies and the practical and financial constraints
under which they operate. This type of deference is perfectly
consistent with a concern for individual rights and a refusal to
tolerate
corruption and maladministration. It ought to be shaped not
by an unwillingness to scrutinize administrative action, but by a
careful
weighing up of the need for - and the consequences of -
judicial intervention. Above all, it ought to be shaped by a
conscious determination
not to usurp the functions of administrative
agencies; not to cross over from review to appeal [quoted from
Hoexter, par 64 below,
at 501-502].
[62] After quoting further
dicta
from
Du Plessis and Others
v De Klerk and Another
[1996] ZACC 10
;
1996 (3) SA 850
(CC) at 931J-932B (par 180)
and
S v Lawrence; S v Negal; S v Solberg
(4) SA 1176 (CC) at
1195G-1196E (par 42), Schutz J A concluded (at 633
e
par 50):
Judicial deference does not imply judicial timidity or
an unreadiness to perform the judicial function. It simply manifests
the recognition
that the law itself places certain administrative
actions in the hands of the executive, not the judiciary.
The
learned judge of appeal supplemented this at 634
d
(par 53):
Judicial deference is particularly appropriate where the
subject matter of an administrative action is very technical or of a
kind
in which a court has no particular proficiency. We cannot even
pretend to have the skills and access to knowledge that is available
to the Chief Director. It is not our task to better his allocations,
unless we should conclude that his decision cannot be sustained
on
rational grounds.
[63] As in the present case, Schutz JA was called upon to consider
allegations that the decision-maker had acted arbitrarily,
capriciously
or irrationally. In this regard the following passage
from his judgment is, with respect, extremely appropriate when
considering
the similar allegations in the present case (633
fa
par
51):
The respondents' complaint is that in reaching his decision the Chief
Director acted arbitrarily, capriciously or irrationally. But
in
pressing for what would be to the advantage of the respondents they
show little concern for the interests of others, or the benefit
of
the public as a whole. This is not an approach that should or may be
adopted by the Chief Director. He is obliged to have regard
to a
broad band of considerations and the interests of all that may be
affected. If the Chief Director had indeed acted in accordance
with
the respondents' prescriptions one may imagine the fate of a review
application brought by the "pioneer" companies,
they
pointing to trawlers rusting by the quayside, the one-time crewmen
lounging in the streets and the fishing nets, like the regimental
colours, laid up in the cathedral, the "pioneers" in
consequence complaining of capricious action. The Chief Director's
decision is indeed a polycentric one. And in deciding whether his
decision is reviewable it should be remembered that even if the
respondents had succeeded in proposing what to my mind would be a
better solution than that adopted by him (they did not attempt
to do
so), it would not be open to me to adopt it, for the reason stated by
Chaskalson P in
Bel Porto
above at 282F-G paragraph [45]:
"The fact that there may be more than one rational
way of dealing with a particular problem does not make the choice of
one
rather than the others an irrational decision. The making of such
choices is within the domain of the Executive. Courts cannot
interfere
with rational decisions of the Executive that have been
made lawfully, on the grounds that they consider that a different
decision
would have been preferable."
In similar vein is
Pharmaceutical Manufacturers Association of
South Africa and Another; In Re Ex Parte President of the Republic
of South Africa and
Others
(2) SA 674 (CC) at 709D-H (par90).
[64] Simply to suggest that the decision-maker is "wrong",
Schutz JA opined (at 634
b
par 52), was the language of appeal
and not of review. This is the word that is invariably used when the
substance of the decision,
and not the procedure by means of which it
was made, is under attack. In this regard he quoted with approval
from Hoexter
The Future of Judicial Review in South African
Administrative Law
(2000) 117
SALJ
484
at 485:
The important thing is that judges should not use the
opportunity of scrutiny to prefer their own views as to the
correctness of the
decision, and thus obliterate the distinction
between review and appeal.
[65] When these principles are applied to the facts in
the present matter, despite Mr Burger's persuasive arguments to the
contrary,
it is clear that the applicant has done exactly what Schutz
JA has said it should not do. It has attacked the first respondent's
decision because, in its view, it is wrong and should never have
deviated from the previous formulae in terms of which pelagic fish
allocations were made. It has suffered potential damage because of
what it believes to be a diminution of the quantum of TAC for
pilchard it should and would have received under the single
percentage system. It has demonstrated little or no sensitivity to
the
interests of other participants or to the public at large or, for
that matter, to the objects and principles of the Act within the
context of the relevant policy framework (par 15 above). It is
difficult to escape the conclusion that the present application is
no
more than an appeal disguised as a review.
[66] There
is no merit whatever in the suggestion that the first respondent did
not apply his mind in making his decision or that
his decision was
arbitrary, unreasonable or procedurally unfair. I have carefully
studied the facts and circumstances set forth in
the papers and
various documents attached thereto, and have listened with great
interest to the respective arguments presented by
the parties. After
serious consideration thereof I have come, inevitably, to the
following conclusions.
[67] Quite
clearly the first respondent went to a great deal of trouble, within
the policy framework of the Act and with a view to
achieving its
objects and adhering to its principles, to develop the new system set
forth in OMP-02. He made use of expertise of
the highest order, as
represented by Professor Butterworth and Dr de Oliveira, in
considering the benefits of a combined single percentage
ratio for
pelagic fish as opposed to the existing separate percentages for the
various species used hitherto. There was certainly
nothing arbitrary
or unreasonable in doing so and he must have applied his mind
vigorously simply to grasp the recommendations made
by the experts
and to make them his own. At no stage was it suggested, in the papers
or in argument, that he was not at all times
acting with the utmost
good faith in considering the complex mathematical formulae placed
before him and in eventually making his
decision as to which of
various options he should accept.
[68] This
is indeed one of those cases in which due judicial deference should
be accorded to a policy-laden and polycentric administrative
act that
entails a degree of specialist knowledge and expertise that very few,
if any, judges may be expected to have. Certainly
I would not presume
to have the kind of technical proficiency required for a full
understanding of the complex processes, mathematical
and otherwise,
involved in developing and implementing a system such as that
envisaged by OMP-02. Yet, despite these constraints,
the reasoning
behind the decision, in its historical and environmental context,
appears to me to be eminently rational and logical.
It may well be
that the former system, as contained in OMP-99, is equally rational
and logical - and quite clearly it worked from
1984 to 2001 - but
that does not entitle this court to make a choice which is
pre-eminently within the domain of the first respondent.
As the
delegate of the second respondent, being the responsible Minister, he
is fully empowered to make decisions such as that under
attack in the
present application.
[69] There
is no merit in the suggestion that the first respondent did not
himself make the relevant decision but simply left it to
Professor
Butterworth, or other officials in the Department, to make it. The
first respondent made it quite clear that the decision
was his and
his alone. And in making that decision he undoubtedly took into
account the realities of the fishing industry and the
relative
commercial values of pilchard as opposed to anchovy. Not only does
this appear from the relevant documentation, but the
first respondent
also confirms it under oath. It was never suggested that his
credibility should be questioned.
[70] The
suggestion that the opportunity given to successful rights holders to
amend their preferred ratio of pilchard and anchovy
was indicative of
the first respondent's realisation that the new system was not
feasible or effective, must be rejected. It had
nothing to do with
the feasibility or effectiveness of the new system, but was simply a
concession made to rights holders, who might
have misunderstood the
consequences of their selection of a preferred ratio, to remedy the
situation. The applicant availed itself
of this opportunity and it
must be accepted that it knew full well what it was doing when it did
so.
[71] The
allegation that the decision was procedurally unfair must likewise be
rejected out of hand. Preparatory talks commenced as
early as March
2001 (par 21 above) and culminated in the forum held on 6 February
2002 (par 27 above). The documentation made available
to applicants
spelt out in detail what the new system would be and how OMP-02 would
be implemented (see par 17-18 above). The rationale
for the policy
shift (par 19 above) and the process followed in making the
allocation (see par 26 above) was carefully and logically
explained.
There was no reason why the applicant, or any other participant,
could not seek information on any aspect causing misunderstanding.
This was certainly done by the SA Pelagic Fishing Industry
Association (par 21 above) and any interested party could have
followed
suit, or could even have approached the Association after
its meeting with the Department and subsequent change of
correspondence.
[72] I have some difficulty in understanding that the first
respondent acted beyond its powers (
ultra vires
) in exercising
its powers (par 38 and 43 above). The suggestion that he was
functus
officio
the time he made the final allocation during May 2002 is
without any substance. He was, at all relevant times, acting within
his powers
and authority. This included the right to amend the TAC
and to revise allocations already made.
{73] Even if the applicant should have succeeded in
making out a case requiring reconsideration of the allocations on the
basis suggested
by it, I agree with Mr Duminy that it could never be
the function of this court to make new allocations on the basis of
the restored
OMP-99.
CONCLUSION
[74] It follows from the above that the applicant has
failed to substantiate a review of the first respondent's decision on
any of
the grounds alleged by it. The application must, therefore, be
dismissed.
[75] In
the event I make the following order:
The application is dismissed with costs, including the costs of
two counsel.
D H VAN ZYL
Judge of the High Court of South Africa