Scenematic Fourteen (PTY) Limited v Honourable Minister of Environmental Affairs and Tourism and Another (1539/ 2003) [2003] ZAWCHC 73; 2004 (4) BCLR 430 (C) (12 December 2003)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2003
>>
[2003] ZAWCHC 73
|

|

Scenematic Fourteen (PTY) Limited v Honourable Minister of Environmental Affairs and Tourism and Another (1539/ 2003) [2003] ZAWCHC 73; 2004 (4) BCLR 430 (C) (12 December 2003)

REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL DIVISION)
CASE NO : 1539/ 2003
In the matter between:
SCENEMATIC
FOURTEEN (PTY) LIMITED
Applicant
and
THE HONOURABLE MINISTER OF ENVIRONMENTAL
AFFAIRS
AND TOURISM
First Respondent
THE DEPUTY DIRECTOR GENERAL: DEPARTMENT
OF
ENVIRONMENTAL AFFAIRS AND TOURISM
Second
Respondent
JUDGMENT:
DELIVERED ON 12 DECEMBER 2003
On 28 February 2003 the Applicant applied, on review, to set aside
the decision, first, of Second Respondent in terms whereof,
acting
in terms of section 18 of the Marine Living Resources Act, Act 18 of
1998 (“the Marine Act”), no commercial fishing
rights in the
hake long line sector of the fishing industry for the 2002 to 2005
season were allocated to the Applicant; and second,
the decision of
the First Respondent on appeal, acting under section 80 of the
Marine Act, in terms whereof he dismissed Applicant's
appeal against
this decision of the Second Respondent.
BACKGROUND
In setting out the factual background to his matter I have relied
heavily on the thorough and lucid exposition thereof in the helpful
heads of argument drafted by Mr. Burger SC and Ms. Davis on behalf
of Applicant.
During 1994 to 1998 hake long line
fishing was only permitted as a controlled experimental fishery. A
limited number of experimental
allocations of hake was made. The
first allocation of hake long line rights for commercial purposes
took place in 1999 for the
1999 fishing season by the then Fisheries
Transformation Council which allocated 7 770 tons of hake out
of the total of 8
400 tons available to it for distribution.
This allocation was challenged on
review and subsequently set aside.
In May 2000 the hake long line
allocations for the 2000 fishing season were announced and 43
applicants received allocations. Appeals
were lodged against this
allocation and 131 appellants were successful in this regard. The
Applicant was one of these successful
appellants.
In November 2000 two review
applications were heard in respect of these appeal allocations both
of which succeeded and the appeal
decisions were set aside.
A further application was brought
in which an order was sought that the Court make an order directing
the State Respondents to reconsider
the appeals and to reallocate
the hake reserved for the appeal process within a specific period.
The State Respondents opposed this
relief. Applicant drew the court’s attention to a statement made
by Second Respondent an affidavit
in that matter that
“The
best that can be done is that the abovementioned Respondents
undertake to use their best endeavours to deal with the appeals
as
expeditiously as possible, and I hereby give such an undertaking on
behalf of all three of the said Respondents”
.
No new applications for hake long
line rights were entertained in 2001. First Respondent exercised his
power in terms of section
18(6)(A) of the Marine Act to extend the
validity of the hake long line rights granted in 2000 for the 2001
season (“the roll
over”). The roll over pertained only to the 43
allocations of rights in terms of section 18 of the Marine Act and
did not include
the appeal allocations which had been set aside and
had not been reconsidered.
The roll over of hake long line
rights in 2001 and the impending allocation of medium terms rights
for 2002 to 2005 made it crucial
for those formerly successful
appellants, whose 2000 allocations had been set aside, that their
appeals be reconsidered in order
that they might, if successful a
second time around, participate in the roll over and be treated as
existing rights holders in
the 2002 to 2005 allocation.
The appeals were in fact never
reconsidered apparently because it was decided in May 2001 that a
reconsideration would be futile
given the fact that the medium term
rights allocation process was imminent.
On 27 July 2001 the First
Respondent published in Government Gazette number 22517 the Policy
Guidelines with regard to applications
for the granting of rights in
terms of the Marine Act (“the Policy Guidelines”). Applications
for fishing rights in the various
sectors for the 2002 to 2005
seasons were simultaneously invited.
The closing date for the
submission of applications for hake long line rights for 2002 to
2005 was 13 September 2001.Applicant lodged
its application for HLL
rights for 2002 - 2005 on 11 September 2001.
On 21 December 2001 the hake long
line allocations were announced. Second Respondent released to the
media a document entitled “Allocation
of Rights and Quantum in the
Hake long-line Fishery and General Reasons for those Decisions”(“the
General Reasons”).
Applicant was formally notified in
January 2002 by means of a letter from the Department that its
application for a hake long line
right had been refused.
On 24 February 2002 Applicant
lodged an appeal in terms of section 80 of the Marine Act against
the refusal of its application for
a hake long line right.
On 9 August 2002 Second Respondent
compiled the requisite regulation 5(3) report in respect of
Applicant’s aforementioned appeal.
On 12 August 2002 First Respondent
took the decision to reject Applicant’s appeal.
On 26 September 2002 First
Respondent gave Applicant written notice of this rejection.
On 28 February 2003 Applicant
issued the Notice of Motion in the present review application and
served the application on the State
Respondents. Originally these
proceedings included reviews of the decisions by Second Respondent
to allocate hake long line fishing
rights to 3
rd
to 143
rd
Respondents as well as First Respondent's decisions on appeals made
by these Respondents against the Second Respondent's decision.
Consequent upon a settlement agreement between Applicant and 3
rd
to 143
rd
Respondents, this relief sought by Applicant
that related to their fishing rights (including the decisions of
both First and Second
Respondents) was withdrawn.
The review application was set
down for 13 March 2003 on which date a
rule niisi
with a
return date in respect of the review together with procedural
directions pertaining to the delivery of the rule 53 record,
service
on further respondents and the filing of further affidavits was
made.
DELAY
The first assault on
the application made by the Respondents was that Applicant failed to
meet the 180-day deadline for the institution
of review proceedings
imposed by section 7(1) of the Promotion of Administrative Justice
Act, Act 3 of 2000 (“PAJA”). This
section provides that:
“
7
(1) Any proceedings for judicial review in terms of section 6 (1)
must be instituted ` without unreasonable delay and not
later
than 180 days after the date-
(a) subject to subsection (2)(c), on which any
proceedings instituted in terms of internal remedies as contemplated
in subsection
(2)(a) have been concluded; or
(b) where no such remedies exist, on which the
person concerned was informed of the administrative action, became
aware of the action
and the reasons for it or might reasonably have
been expected to have become aware of the action and the reasons.”
It
was common cause that sub-section (b) was applicable by virtue of the
Applicant's appeal to First Respondent I terms of section
80 of the
Marine Act which constituted the internal remedy contemplated by
section 7(1)(b).
Applicant contended that, for the
purposes of section 7(1)(b) of PAJA this internal remedy was
concluded, not on 12 August 2002 when
the First Respondent made his
decision to dismiss Applicant's appeal, but on 26 September 2002 when
the First Respondent sent a letter
to Applicant informing them of the
fact that their aforementioned appeal had been dismissed.
Respondent, on the other hand, whilst
not arguing that the appropriate date was 12 August 2002, contended
that this appeal was concluded
some time earlier than 26 September
2002, viz. on 20 August 2002 when one Shamera Adams, a former
employee in the department, sent
an email
“to all
addresses on MCM’s mailing list of persons interested in the hake
long line sector”
allegedly notifying them of the appeal
results. This email, so it is contended, constituted notice to
Applicant of the refusal of
its appeal to the First Respondent and
that the institution of the review proceedings on 28 February 2003
accordingly fell outside
the prescribed 180 days period which, on the
basis of this contention, ended some 11 days prior thereto on 17
February 2003.
It was not contended by Respondents
that even were it to be found that the review application were
brought within the 180 day period
in terms of section 7(1)(b) that
Applicant had in any case delayed unreasonably in bringing such
proceedings. This was an argument
advanced by the other Respondents
however as a result of the Applicant's withdrawal against these
Respondents it is not necessary
to consider this contention.
The word “conclude” in section 7
(1) is not defined in the Marine Act and no reason was put up by
either side why it should not
be given its normal and ordinary
meaning.
It was contended by Applicant that the
ministerial appeal concluded, not when he decided the appeal, but
when Applicant was notified
of this refusal. (See
Clan
Transport Co. (Pty) Ltd. and others v. Road Services Board and Others
1956 (4) SA 26
(SR) at 28H-29C and
Leyds
N.O. v. Simon
1964
(1) SA 377
(T) at 383C.
)
The correctness of this principle was
not seriously challenged by Respondents and, and in my view,
correctly so. The common law position
has always been that an
Applicant in review proceedings is required to bring such proceedings
within a reasonable period of time
and that this period is determined
either by the statute concerned or by the court in the exercise of
its discretion having regard
to all of the facts of the matter. (See
Wolgroeiers Afslaers (Edms) Bpk v Munisipaliteit
van Kaapstad
1978 (1) SA 13
(A) at 39
prem
- D)
The
rule is an expression of the principle
interest reipublicae ut sit
finis litium.
(See
Sampson v S A Railways &
Harbours
1933 CPD 335
at 338;
Wolgroeiers
Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad
supra
in which Miller JA delivering the majority
decision stated
“Dit is wenslik en van belang dat
finaliteit in verband met geregtelike en administratiewe beslissings
en handelinge binne redelike
tyd bereik word.”
at 41
D-F) furthermore it is
“niks meer as ʼn
prosesregtelike reel nie.”
(
Wolgroeiers
Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad
supra
at 45 G-H).
This is bolstered by the provisions of
section 9 of PAJA which allows the court to extend this 180 day
period referred to in section
7(1)
“…where the
interests of justice so require.”
(See section 9 (2) of
PAJA.).
These considerations must govern the
court’s determination of the dispute between the parties as to
whether this application should
be refused for delay reasons alone.
The email on which Respondents relied
by the Respondents is informative. There are several matters that are
immediately noteworthy;
There is nothing on the copy of the email annexed to Ms Adam’s
affidavit that informs the court who sent it. In her affidavit
she
does however state that
she
sent it and she states further
that at the time she was employed by the Department of Environmental
Affairs and Tourism: Branch
Marine and Coastal Management. She does
not state the capacity in which she was so employed;
According to Ms Adams the email was sent
“to all
addresses on MCM’s mailing list of persons interested in the hake
long line sector”
and that one of these addresses was
Mr. Arnold Slater
“…the Applicant's authorized
principal contact person and representative.”
;
The email appears to have contained two attachments. The one was a
document entitled
“Decisions on Hake Long Line
Appeals”
and the other an annexure “A” to this
document entitled
“Successful Appellants: Hake
(Longline) 2002)”
containing a list of 26 names;
The former document consisted of 3 paragraphs, the first and third
are formal in content and the middle states:
“On appeal, the Minister allocated 1 795 tons to successful
appellants. See Annexure A attached hereto. The Minister reserved his
decision in respect of three appeals (Jaffa’s Bay Fishing CC, S
Achmad and R Poggenpoel CC). The hake long line sector is a sector
which is significantly transformed.”;
Neither
First Respondent nor Ms Adams inform the court of the reason for this
email being sent out, however, in her affidavit she
states that,
“…the First Respondent’s decision together with
annexure “A” were e-mailed to all employees of MCM who might have
needed
to know of the allocation, including Allan Robertson, the then
Project Manager in the employ of MCM and inspectors at the various
MCM inspectorate offices throughout the country.”
This appears to explain why the two
documents report on and contain a list of the successful appellant’s
and the tonnages allocated
to them because the MCM employees,
particularly the inspectorate, would need this information for
purposes of determining whether
any such persons had acted in
contravention of the Marine Act.
This email informs the reader of the
fact that the First Respondent allocated 1 795 tons to the 26
successful appellants listed in
annexure “A”. Whilst one of the
logical corollaries (arguably the most obvious) may well be that
those appellants whose names
were not on the list in annexure “A”
should assume that their appeals had been dismissed, it is certainly
not the only necessary
conclusion to be drawn therefrom. It may well
be that from the point of view of those 26 Appellants listed in
annexure “A” it
could be contended that the appeal process
concluded for them upon receipt of this email ( and on this point, as
this is not an issue
before me, I refrain from commenting thereon).
For Applicant whose name is not mentioned in either of these
documents, the information
contained in this email is at best
equivocal as to the fate of its appeal. Applicant would be left to
speculate whether the corollary
mentioned above, whether obvious or
not, is to be assumed.
This speculation was only ended when
the Applicant received the First Respondent's letter of 26 September
2002. Different from the
email;
It is clear that it is from the Minister as it is signed by him;
It was specifically addressed to Applicant at its post office box
address in Elands Bay; and
It advised the Applicant in terms that
“…your
appeal against the decision of the Deputy Director General: Marine
and Coastal Management (“the DDG”) was, after
due consideration
by the Minister of Environmental Affairs and Tourism (“the
Minister”), rejected by him.”
.
To
my mind therefore, at best, the email of 20 August 2002 was equivocal
as to the fate of Applicant's appeal to First Respondent.
Given the
apparent purpose of section 7(1) of PAJA and the dispositive effect
that a failure to come within the 180 day period set
out therein may
have on an Applicant's application for review, it could never have
been the legislature’s intention that this drastic
an effect could
be founded on an equivocal act.
Accordingly I find that the appeal
procedure to First Respondent concluded on 26 September 2002 and
accordingly that Applicant has
complied with the provisions of
section 7(1)(a) of PAJA by instituting these proceedings for judicial
review not later than 180 days
after the conclusion of the internal
remedy of appeal in terms of section 80 of the Marine Act.
Even if I am wrong in this regard and
the conclusion of the appeal process was on 20 August 2002 (the date
of Ms Adams’ email),
Applicant asked, in the alternative, that I
exercise my discretion in its favour in terms of section 9(2) of
PAJA.
This discretion is obviously a judicial
discretion that must be exercised in
“the interests
of justice”
. An exercise of this discretion against the
Applicant has obvious prejudice in that its review proceedings would
thereby fail. The
Respondents have put up no reasons why an exercise
of my discretion in terms of section 9 of PAJA against them would not
be in the
interests of justice and indeed none appear to be apparent.
Even on the Respondents` version, the application for review was
instituted
some 9 court days late. If this is so, this lateness, to
my mind arguably constitutes a
de minimis non curat lex
situation.
In the circumstances, I would grant the
application in terms of section 9 of PAJA and extend the 180 day
period in section 7(1) to
the date of the institution of these
proceedings on 28 February 2003.
REVIEW
OF SECOND RESPONDENT’S SECTION 18 DECISION
Applicant
contended that Second Respondent's decision not to grant it a fishing
right in terms of section 18 of the Marine Act is
reviewable
essentially because the procedure which he employed in arriving at
this decision was procedurally unfair as contemplated
by section
6(2)(c) of PAJA.
It was common cause that, as regards
Second Respondent's decision, the provisions of section 6(2)(a) to
(i) read with section 1 of
PAJA have been complied with in that this
decision was an
“administrative action”
that
adversely affected Appellant’s rights.
Section 33(1) of the Constitution of the Republic of South Africa 108
of 1996 (“the Constitution”) requires all administrative
action
to be
“lawful, reasonable and procedurally fair”.
In
Pharmaceutical Manufacturers
Association of SA and Another: In Re Ex Parte President of South
Africa and Others
[2000] ZACC 1
;
2000 (2) SA 674
(CC)
Chalskalson P held that
“The common-law
principles that previously provided the grounds for judicial review
of public power have been subsumed under the
Constitution and,
insofar as they might continue to be relevant to judicial review,
they gain their force from the Constitution.”
at 692 E-G
paragraph 33. In
Commissioner of Customs and
Excise v Container Logistics (Pty) Ltd; Commissioner of Customs and
Excise v Rennies Group Ltd t/a Renfreight
1999 (3) SA 771
(SCA)
Hefer JA held
“What is
lawful and procedurally fair within the purview of s24 (of the
Interim Constitution) is for the Courts to decide and I
have little
doubt that, to the extent that there is no inconsistency with the
Constitution, the common-law grounds for review were
intended to
remain in tact.”
at 786 D-F.
The Constitutional
Court in the
Pharmaceutical Manufacturers
case
reaffirmed the role of the courts in controlling public power (
supra
at 694 G-H paragraph [40]) and Chaskalson P quoted with apparent
approval the following passage from
Boulle, Harris
and Hoexter:
Constitutional and
Administrative Law: Basic Principles
:
.
“The basic justification for
judicial review of administrative action originates in the
Constitution. In the constitutional State
there are, by definition,
legal limits to power, and the courts are bestowed with judicial
authority, which incorporates the competence
to determine the
legality of various activities, including those of public
authorities.”
(See also:
Bel Porto School Governing Body v
Premier, Western Cape
[2002] ZACC 2
;
2002
(3) SA 265
(CC) at paragraph
[87]
;
Minister
of Environmental Affairs and Tourism and Others v Phambili Fisheries
(Pty) Ltd and Others
,
2003
(2) All SA 616
(SCA) at 631 paragraph [46];
R v Secretary of State for the Home
Department, ex parte Daly
[2001] UKHL 26
;
[2001]
3 All ER 433
(HL);
First National Bank of
SA v Commissioner, SARS
[2002] ZACC 5
;
2002
(4) SA 768
(CC) at paragraph
[63]
).
In considering the courts role in this constitutional framework, the
Supreme Court of Appeal in a judicial review of the exercise
of an
administrative power (in that case also section 18 of the Marine Act)
Schutz JA quoted, with approval, the following passage
from
Logbro
Properties C v Bedderson N.O. and Others
2003 (2) SA 460
(SCA)
at paragraphs
[21] and [22], that judicial review called for:
“…
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 mal-administration.
It ought to be shaped not by an unwillingness to scrutinize
administrative action, but by 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.”
(See
Minister of Environmental Affairs and Tourism
and Others v Phambili Fisheries (Pty) Ltd and Others
supra
at
632 paragraph [47]. See also
Du Plessis and
Others v De Klerk and Another
[1996] ZACC 10
;
1996
(3) SA 850
(CC) at paragraph
[180]
;
S v
Lawrence
1997
(4) SA 1176
(CC) at paragraph [42]).
)
It is this court’s
function and duty therefore to determine the legality of Second
Respondent's action in refusing to grant Applicant
a hake long line
fishing right for the 2002 to 2005 fishing season in terms of the
constitutional and common-law principles of judicial
review.
Applicant
identified a number of alleged flaws in the manner in which
applications under section 18 were dealt with. These include;
The difference between what potential applicants were informed
before they applied and the way in which their applications were
actually dealt with afterwards. This information is contained in the
Policy Guidelines published in the Government Gazette of 27
July
2001.;
These Policy Guidelines state that the Second Respondent would be
assisted by a panel of specialists called an advisory committee.
This, so it was contended, gave the reader the reasonable impression
that the advisory committee would have specialised knowledge
of the
fishing industry which, Applicant alleges, it did not have;
Under the heading “Evaluation of Applications” it is stated in
the Policy Guidelines that applications would be dealt with
in
accordance with section 2 of the Marine Act and the policy
guidelines and that
“No precedence, ranking or
weighting is implied by the order or content of the policy
guidelines”.
These are then set out under the following
headings
Business plan, fishing plan or operational and investment strategy.
Equity, transformation, restructuring and empowerment.
Impact on the resources, environment and the fishing industry.
New entrants.
Applicant then contends that potential applicants reading these
guidelines had a justified expectation that their applications
would
be considered on a discretionary basis, with a flexible application
of the abovementioned considerations. They contend however
that the
opposite happened. That the advisory committee was instructed to
mark all applications according to a rigid score sheet.
Inter
alia
, the advisory committee was instructed:
To draw a distinction between applications by 2001 rights holders
and applications by new/other rights holders These two categories
were to be judged according to different criteria; and
They were to apply a weighting of criteria by means of a rigid
scoring system. In terms of this system various parts of an
application
could earn points for an applicant up to a fixed maximum
and, the weighting or ranking was achieved by fixing different
maxima
for the various parts.
Applicant complains further that potential applicants under section
18 were never informed that they were to be streamed into “rights
holders” and “new entrants” with different criteria applying
to each stream, nor were they informed that different portions
of
the form they were to fill in could earn more marks than other
portions. They contend further that this failure to supply such
information timeously or at all was therefore procedurally unfair to
applicants by defeating their legitimate expectations based
on the
Policy Guidelines published on 27 July 2001.
In
his answering affidavit Second Respondent explained that this system
that was employed to consider the applications in the fishing
sector
was because
“It was realized that there would be
unprecedented interest in medium-term fishing rights and that a large
number of applications
would be made. Applicant's were to be invited
in 22 fishing sectors, and hundreds of Applicant's could be expected
in each one.”
and that
“It was obvious
that it would be very onerous for one person to scrutinize and assess
all the anticipated applications in every
detail.”
In emphasizing the parameters within which the court must exercise
its powers of judicial review in
Bel Porto School
Governing Body v Premier, Western Cape
,
supra
,
Chaskalson CJ stated that:
“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.” at paragraph [45]
In
Pharmaceutical Manufacturers of SA: in re Ex
Parte President of the RSA
supra
the constitutional Court held that a court
“cannot
interfere with a decision simply because it disagrees with it or
considers that the power was exercised inappropriately.”
at
709 F paragraph [90]
This
delineation of power is, of course, one of the cornerstones of our
constitutional and political framework and it’s the maintenance
of
these provinces of power that ensures its continued efficacy.
Whilst it is the function of the
executive to run the various departments of government and to make
such decisions of policy necessary
to do so, it is the court’s
function to ensure that all such executive actions that adversely
affect the rights of citizens are
rational and legitimate, and where
they are not, to interfere appropriately.
Therefore, whilst I can well appreciate
the administrative difficulties that the Second Respondent might have
faced with the expectation
of an unprecedented large number of
applications in the fishing industry owing to the advent of the
medium-term rights, and the consequent
necessity of devising a system
to cope with this administrative load, it is my function to determine
whether the system that he has
employed, as applied to Applicant's
case, is rational and legitimate or not.
Furthermore, it is not for the court to
decide whether the Second Respondent's decision to stream Applicants
into existing rights
holders and new entrants was correct or
incorrect. This a decision within the executive’s province and is
one in respect of which
the court cannot interfere. The court can,
however determine whether the manner in which the Second Respondent
made his decision
was legitimate or not. This is a decision within
the judiciary’s province.
In performing this task the court,
whilst appreciating the Second Respondent's difficulties, must
determine whether the manner in
which he has chosen to exercise his
statutory function in the instant case is legitimate
Having considered all of the
aforementioned complaints raised by the Applicant in respect of the
Second Respondent's decision to reject
Applicant's application it
appears to me that the fundamental question that has to be answered
is whether the Applicant has shown,
on a balance of probability, that
the Second Respondent has failed to apply his mind to the task that
section 18 of the Marine Act
requires him to do.
The much quoted decision of Innes ACJ
in
Shidiack v Union Government (Minister of
Interior)
1912 AD 642
according to
the Constitutional Court remains good law.
(See
Pharmaceutical
Manufacturers of SA: in re Ex Parte President of the RSA
supra
at 707 D
en fin
. Where the following
passage from
Shidiack’s
case
was quoted with apparent approval:)
“Now it is settled law that where a matter is left to the
discretion or the determination of a public officer, and where his
discretion
has been
bona fide
expressed, the Court will not interfere in the result. Not being a
judicial functionary no appeal or review in the ordinary sense
would
lie; and if he has duly and honestly applied himself to the question
which has been left to his discretion, it is impossible
for a Court
of law either to make him change his mind or to substitute its
conclusion for his own.”
The judgment goes on to hold that there
are circumstances in which
“interference would be possible and
right. If for instance … he had not applied his mind to the matter
or exercised his discretion
at all … -in such cases the Court might
grant relief.” At 651 – 652.
In his answering affidavit Second Respondent sets out in some detail
the reasons that underpinned his devising the system to deal
with
applications in the fishing industry and his involvement with this
process and concludes by stating that he personally perused
and
checked the Applicant’s application and confirmed the advisory
committee’s findings. He also referred to a handwritten remark
written on a spreadsheet which was used to record the advisory
committee’s recommendations, and which remarks echoed Second
Respondent's
aforementioned statement in his affidavit that
“After
perusing application: confirm finding. Also checked legal advice.”
Second
Respondent's
bona fides
was not, and indeed on the papers
before me, cannot be doubted. It is clear that Second Respondent duly
and honestly applied himself
to his statutory duties which appear to
have been not inconsiderable. But however commendable this conduct
may have been that is
not the standard that the law requires him to
have achieved in order to pass muster. To paraphrase Chaskalson P in
Pharmaceutical Manufacturers of SA: in re Ex Parte
President of the RSA
supra
at 709 C-D the fact that Second Respondent was
bona fide
and acted duly and honestly, does not put the matter beyond the reach
of the Court’s powers of review.
As I have said, according to the Second
Respondent, the system was devised to deal with the expected large
numbers of applications
for the medium-term fishing rights which he
stated would be very onerous for one person to scrutinize and assess
in every detail
and also
“In the interests of
independence and credibility and to break away from procedures
employed in the past, which had not been credible
in the eyes of the
fishing community and industry…”
The system devised and employed by
Second Respondent was:
To appoint a Verification Unit by means of a public tender process
whose function it was to attend to the receipt and initial sorting
of the applications;
To appoint an Advisory Committee, also by means of a public tender
process, of persons external to the department whose function
it was
to
“assist (Second Respondent) in evaluating the
applications by analysing and extracting relevant information for
(Second Respondent’s)
use, and identifying problems and
difficulties that required particular attention.”
This
committee consisted of 6 persons garnered from the legal and
accounting professions;
Second Respondent then compiled guidelines and instructions to this
unit and committee. These guidelines and instructions were
in typed
form and set out in some detail the factors that had to be
considered and, in regard to each factor, further sub factors
were
set out in even greater detail and a point value allocated to each
such sub factor. By way of example
“Involvement
and investment in a vessel”
is one such factor. The
guidelines then provide that;
“(a)Weighting
(i)Owner of vessel – 6 points (ii) Share in the ownership of
vessel – 4 to 6 points (taking account the extent
and value of
investment according to the decision-makers guidelines e.g. part
ownership of fleet of vessels) (iii) Purchase agreement
without
conditions – 4 points (iv) Purchase agreement subject to
conditions of allocation – 3 points (v) Charter agreement,
joint
venture – 2 points (6) Divide the total points by 2 to get the
score of involvement.”
The guidelines also included
negative scores for example where there was a suspicion of a
subterfuge called
“potential paper quotas”
;
A prepared and printed document called an
“Evaluation
Summary”
was used by the advisory committee to record
the scores obtained by each applicant for a fishing right. This
document was then
completed and printed;
This information was then transposed onto a spreadsheet and a total
score extracted in respect of each applicant. This spreadsheet
was
typed up and then delivered to Second Applicant;
Second Respondent then made his decision
“…by
perusing the summary spreadsheet(s).”
In
my view this system does not pass muster. The legislature, in terms
of section 18 of the Marine Act, requires Second Respondent
to make
the decision whether to grant the fishing right and accordingly
requires him to exercise this discretion. Section 79 of the
Marine
Act does not authorise Second Respondent to delegate any of his
powers to this advisory committee (consisting of persons external
to
the department) and, under the common law the principle of
delegatus
non delegare non potest
is applicable.(See
Shidiack
v. Union Government
1912
AD 642
)
As regards the exercise of a discretion by a public official it has
repeatedly been stressed in our courts that it is permissible
for a
public official to have a policy but that such a policy may not
fetter the exercise of his discretion in individual cases
and may
not pre-determine the outcome of any individual case.
(See
Baxter
Administrative Law
at. 416-8
;
Johannesburg Town Council v. Norman
Anstey & Co
.
1928
AD 335
at 340-341
;
Computer
Investors Group Inc. & another v. Minister of Finance
1979 (1) SA 879
(T) at 898 C-E
;
Hofmeyr v. Minister of Justice &
another
1992
(3) SA 108
(C)
)
It is clear that this
was a carefully thought out and deliberate system constructed by
Second Respondent, on his own version, because
“It
was realized that there would be unprecedented interest in
medium-term fishing rights and that a large number of applications
would be made. Applicant's were to be invited in 22 fishing sectors,
and hundreds of Applicant's could be expected in each one.”
and that
“It was obvious that it would be very
onerous for one person to scrutinize and assess all the anticipated
applications in every
detail.”
For this very reason he
appointed an advisory committee by an elaborate public tender process
and incurred the costs (which I would
assume would have not been
inconsiderable) of 6 persons, external to the department, from two
professional sectors.
To my mind it would
have been inconceivable, or at the very least unlikely, that, having
gone through this process and incurred these
expenses, that Second
Respondent would not have used this advisory committee for the very
reason that he appointed them viz. to relieve
him of the
“very
onerous”
task of scrutinizing and assessing
“all
the …applications in every detail.”
. In that event,
any discretion that may have been exercised in relation to any
application, including the application of Applicant,
appears to have
been exercised by the advisory committee and it appears highly
improbable that Second Respondent would have reconsidered
each
application
de novo
and exercised his discretion in relation
to each such application, because to have done so would negate the
very system that he deliberately
and consciously (and, I assume, at
what would have been a considerable cost) put in place to obviate
this precise problem.
Furthermore in so far
as the advisory committee performed its task, in accordance with the
guidelines and instructions drafted by
Second Respondent, it did so
by allocating the points contained in these guidelines and
instructions to each such factor. The degree
of rigidity within which
these points were allocated was a matter of some debate between the
parties. It appears to me that whatever
that degree may have been it
constitutes the application of a policy which fettered such
discretion as the members of the advisory
committee may have brought
to bear on their task.
The labours of the
advisory committee were contained in a spreadsheet and entered
thereon under some 16 printed headed columns. On
his own version,
what Second Respondent did was to make his decision
“…by
perusing the summary spreadsheet(s).”
Having regard to the
system used by Second Respondent and applied to Applicant's
application it appears to me that the conclusion
is inescapable, or
at the very least appears on a balance of probability, that Second
Respondent did not exercise his discretion
as he was required to do
in terms of section 18 of the Marine Act either because, such
discretion as he was required to exercise
was exercised, not by him,
but by the advisory committee to whom he was not permitted to
delegate such discretion, or because he
accepted the work done by the
advisory committee and did not bring his own independent discretion
to bear on the decision that he
was required to make, or because by
basing his decisions on the scoring system and the totals arrived at
thereby, the Second Respondent
was applying a policy decision that
unlawfully fettered his discretion he might have exercised.
In the circumstances I
find that the decision of the Second Respondent not to grant
Applicant a fishing right for the 2002 to 2005
fishing season should
be set aside and such application referred back to the Second
Respondent for reconsideration.
In view of the above
decision it is unnecessary to consider the review of First
Respondent’s decision to refuse Applicant's appeal
to him in terms
of section 80 of the Marine Act. It is also unnecessary to consider
Applicant's application to refer certain matters
to oral evidence in
terms of rule 6(5)(g) of the Uniform Rules of Court.
Accordingly the
decision of the Second Respondent not to grant Applicant a fishing
right for the 2002 to 2005 fishing season is set
aside with costs,
including the costs of two counsel, and such application is referred
back to the Second Respondent for reconsideration.
__________________
Brusser AJ