THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 492/2023

In the matter between:
GANNET WORKS (PTY) LTD FIRST APPELLANT
IARC CC SECOND APPELLANT
UNMANNED SA (PTY) LTD THIRD APPELLANT
CDS ANGLING SUPPLIERS CC FOURTH APPELLANT
CEG PROJECTS (PTY) LTD FIFTH APPELLANT
and
MIDDLETON SUE NO FIRST RESPONDENT
MINISTER OF FORESTRY, FISHERIES
AND THE ENVIRONMENT SECOND RESPONDENT

Neutral citation: Gannet Works (Pty) Ltd and Others v Middleton Sue NO and
Another (Case no 492/2023) [2024] ZASCA 112 (16 July
2024)
Coram: MOKGOHLOA, HUGHES, MEYER and WEINER JJA and
COPPIN AJA
Heard: 22 May 2024
Delivered: The judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme Court of Appeal

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website and release to SAFLII. The date and time for hand-down is deemed to be
16 July 2024 at 11h00.
Summary: Environmental law – Marine Living Resources Act 18 of 1998 (the
Marine Act) – whether the use of remote -controlled motorised equipment for
purposes of recreational angling is authorised by the Marine Act and its
regulations.

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ORDER

On appeal from: Gauteng Division of the High Court, Pretoria (Maumela J
sitting as court of first instance):
The appeal is dismissed with costs.


JUDGMENT

Mokgohloa JA ( Hughes, Meyer and Weiner JJA and Coppin AJA
concurring):

Introduction
[1] The appellants brought an application in the Gauteng Division of the High
Court, Pretoria (the high court) seeking an order that: (a) a declarator be issued
that the use of drones, bait carrying remote controlled boats and other remotely
operated devices, are not prohibited in terms of the Marine Living Resources Act
18 of 1988 (the Marine Act) and the regulations published pursuant thereto; (b)
the first respondent publicly withdraw s the public notice published on 24
February 2022; and (c) the first respo ndent declares that the aforesaid public
notice is of no legal effect or consequences. The high court dismissed the
application. The appeal is with leave of this Court.

The facts
[2] The appellants are business entities who manufacture, import, market and
sell angling equipment, such as bait carrying drones and other remote-controlled
bait-carrying devices. The first respondent is the Deputy Director -General for

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Fisheries Management of the Department of Forestry, Fisheries and the
Environment (the DDG). The second respondent is the Minister of Forestry,
Fisheries and the Environment (the Minister).

[3] On 24 February 2022, the DDG published a notice in which members of
the public, recreational anglers and suppliers of fishing equipment were advised
that the ‘use of motorised devises, such as, but not limited to, bait -carrying
drones, bait -carrying remote -controlled boats and other remotely operated
vehicles, as well as motorised electric reels’ are prohibited for angling.

[4] The appellants alleged that the publication of the notice by the DDG had a
devastatingly adverse and negative effect on their businesses. They experienced
a rapid decline in the demand for the drones and other bait -carrying devices. In
some instances, orders which had p reviously been placed for drones were
cancelled and other clients demanded that they be reimbursed for past purchases.

In the high court
[5] The appellants contended that the notice issued by the DDG is unlawful as,
neither the Marine Act, nor the regulations prohibit the use of motorised devices
such as drones in fishing. They contended that the Minister/DDG seeks to amend
the Marine Act without following the correct procedure. They submitted further
that the word ‘angling’, only appears in the regulations and not in the Marine Act.

[6] In explaining the use of a drone, the appellants contended that the use of a
remote-controlled bait-carrying device such as drones does not derogate from the
fact that the anglers who use these devises apply the old, recognised method of
fishing by manually operating a rod, reel and a line with hooks, swivels and
sinkers attached to the line. The drone enables the angler to fly the bait to the area

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where he requires his bait to be dropped. The bait is attached to a hook which is
attached to the fishing line that forms part of the fishing rod and reel. Once the
bait is released, the bait carrying device (drone) returns to the shore, and it plays
no further role in the fishing activity. Therefore, so the contention went, angling
does not exclude the use of drones to drop the bait.

[7] The respondents opposed the application and contended that the notice
issued by the DDG does not amount to a new law. It is a notification to the public
that the use of motorised devices such as drones, are not permitted when
undertaking recreational angling. According to the respondents, lawful
recreational angling may only be conducted by manually operating a rod, reel and
line on one or more separate lines to wh ich no more than ten hooks are attached
per line. They argued that the interpretation of the statutory requirement for
lawful recreational fishing endorsed for angling alleged by the appellants
conflicts with the purposive interpretation of the provisions of the Marine Act and
its regulations.

[8] The r espondents contended that the regulations prescribe the different
categories and methods of fishing which may be authorised under the Marine Act.
They contended that ‘ recreational fishing’ is recognized as a discreet fishing
category, subject to the acquisition of a recreational fishing permit, which is then
endorsed with the type or method of fishing p ermitted. Angling falls within this
definition. The endorsement of the permit issued for recreational fishing, so the
contention went, determines what method of fishing i s authorised in terms
thereof. The method of recreational fishing and the type of permit required is
chosen by indicating either ‘angling’ or ‘spearfishing’ or ‘cast/throw net’ on the
application form.

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[9] According to the respondents, as angling is defined in regulation 1 to
mean ‘recreational fishing by manually operating a rod, reel and line or one or
more separate lines to which no more than ten hooks are attached per line’, any
method that falls outside of the ‘manual operation’ of a rod, reel and line is not
and cannot be permitted as recreational fishing endorsed for angling.

[10] The respondents requested the high court to appreciate that the subject
matter of fisheries management is a policy-laden and polycentric provision that
entails a degree of specialist knowledge and expertise that very few judges may
be expected to possess. They contended that a court has no discretion to declare
that the lawful obligations imposed by the relevant legislation should not be
complied with.

[11] In dismissing the application, the high court held as follows:
‘In this case, conditions and circumstances involving fishing have come into scrutiny. The
legislature has not left room for any ambivalence where it regards what constitute “legally
permissible fishing”.’
The high court continued and concluded that:
‘Consideration of judicial deference also comes leaning towards a purposive interpretation of
the word “angling” in the “Regulations”. That, coupled with the fact that the definition of “this
Act” in section 1 of the Act “includes any regulation or notice made or issued under this Act”
has the effect that the court inclines towards dismissing this Application with costs’.

In this Court
[12] The issue to be determined is whether the appellants have made out a case
for the declaration that the use of remote-controlled motorised equipment such as
drones, for purposes of recreational angling is authorised by the Marine Act and
therefore that the notice issued by the DDG was unlawful and should be set aside.

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[13] The appellants allege that the high court erred in identifying the nature of
the application as similar to review rather than the one requiring interpretation of
the Marine Act. They contend that , had the high court engaged upon an
interpretive exercise, it would have found that the prohibitions listed in s 44 of
the Marine Act1 do not include bait -carrying drones or other bait -carrying
devices.

[14] The key que stion to determine is whether the Marine Act and its
regulations prohibit the use of bait -carrying drones for purposes of recreational
angling. To answer this question, an interpretive exercise is required.

[15] The principles applicable to statutory interpretation are trite. Regard must
be had to the text, context and purpose of the provision, and the provision must
be within the lens of the Constitution.2 Furthermore, the historical context within
which the provision was enacted may be relevant to the process of interpretation.
I find it apposite to outline the relevant sections in the Marine Act that provide
for fishing, the background and the purpose of those sections.

[16] Fishing activity in South Africa is regulated by the Marine A ct and its
regulations. Section 24(b) of the Constitution imposes a legal obligation on the
Minister to protect the environment for the benefit of the present and future
generations through reasonable legislative and other measures that ‘prevent
ecological degradation; promote conservation; and to secure ecologically

1 Prohibited fishing methods
44. (1) No person shall-
(a) use, permit to be used, or attempt to use any explosive, fire-arm, poison or other noxious substance for the
purpose of killing, stunning, disabling or catching fish, or of in any way rendering fish to be caught more easily;
(b) carry or have in his or her possession or control any explosive, fire-arm, poison or other noxious substance
for any of the purpose referred to in paragraph (a); or

for any of the purpose referred to in paragraph (a); or
(c) engage in a fishing or related activity by a method or in a manner prohibited by the Minister by notice in the
Gazette.
(2) No person shall land, sell or possess any fish taken by any means in contravention of this Act.
2 Cool Ideas 1186 CC v Hubbard [2014] ZACC 16; SA 2014 (4) SA 474 CC; 2014 (8) BCLR 869 (CC).

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sustainable development and use of natural resources while promoting justifiable
economic and social development’.

[17] Section 2 of the Marine Act outlines the objectives and purpose of the Act
as follows:
‘The Minister and any organ of the state shall in exercising any power under th is Act, have
regard to the following objectives and principles:
(a) The need to achieve optimum utilisation and ecologically sustainable development of
marine living resources;
(b) the need to conserve marine living resources for both present and future generations;
(c) the need to apply precautionary approaches in respect of the management and development
of marine resources;
(e) the need to protect the ecosyste m as a whole, including species which are not targeted for
exploitation;
(f) the need to preserve marine biodiversity;
. . .
(j) the need to restructure the fishing industry to address historical imbalances and to achieve
equity within all branches of the fishing industry.’
To achieve this statutory obligation, the Minister has to put reasonable legislative
measures in place, such as the statutory system of fisheries management provided
in the Marine Act and its regulations. This would include the manner in which
the fishing activities are performed. This is done to ensure that the effects of
fishing are such that the fish populations remain stable for the benefit of all South
Africans. With this prelude, I now set out the statutory systems for fish ing
activities and their definitions.

[18] The Marine Act defines fishing to mean:
‘(a) searching for, catching, taking or harvesting fish or an attempt to any such activity;
(b) engaging in any other activity which can reasonably be expected to result in the locating,
catching, taking or harvesting of fish;

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(c) placing, searching for or recovering any fish aggregating devise or associated gear,
including radio beacons;
(d) any operation in support or in preparation of any activity described in this definition, or
(e) the use of an aircraft in relation to any activity described in this definition. . .’

[19] ‘Aircraft’ is defined as ‘any craft capable of self -sustained movement
through the atmosphere and includes a hovercraft ’. ‘Recreational fishing ’ is
defined as ‘any fishing done for leisure or sport and not for sale, barter, earnings
or gain’. ‘Angling’, on the other hand, is defined in the regulations as ‘recreational
fishing by manually operating a rod, reel and line or one or m ore separate lines
to which no more than ten hooks are attached per line’.

[20] The appellants contend that the word angling is foreign as it is not
mentioned in the Marine Act. Whilst this is correct, the definition of ‘this Act’ in
section 1 of the Marine Act ‘includes any regulation or notice made or issued
under this Act ’. This therefore means that, although angling is defined in the
regulations and not in the Marine Act, its definition is deemed to be included in
the Marine Act.

[21] The key word in the definition of angling which differentiates the fishing
activity of angling from other fishing activities i s, in my view, ‘manually’. The
Oxford Dictionary defines manually to mean ‘by hand rather than automatically
or electronically.’

[22] Section 13 of the Marine Act provides that:
(1) ‘No person shall exercise any right granted in terms of s18 or perform any other activity in
terms of this Act unless a permit has been issued by the Minister to such person to exercise that
right or perform that activity.’
(2) Any permit contemplated in subsection (1) shall –
(a) …

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(b) be issued subject to the conditions determined by the Minister in the permit;’

[23] Once the fisherman chooses a permit for angling as the type of fishing, the
method to per form angling, as defined in the regulations , comes into play. The
respondents contend that a permit for recreational fishing endorsed for angling
authorizes only fishing by manually operating a rod, reel and line. They point out
that a method for ‘recreational angling’ is clearly defined in very specific terms
as the ‘manual operation’ of a rod, reel or line. This definition implicitly excludes
the use of remote-controlled, motorized equipment, such as drones.

[24] Counsel for the appellant s argues however that once a fishing permit has
been issued to an angler, the angler is then at liberty to engage in any form of
fishing activity using whatever methods that may be available, provided the
method used is not specifically prohibited in terms of the Marine Act or the
regulations. He contends that the activity of fishing, by definition, includes the
use of aircraft such as drones.

[25] In my view, the above argument is ill-conceived. First, the Marine Act and
its regulations not only specify the type of fishing activity, but also the method to
be used in per forming such fishing activity. Second, lawful fishing can only be
authorised by means of a s13 permit. As stated earlier, once the angler has been
issued with the permit for angling, the angler is not at liberty to use any method
other than the one that is provided for in the regulations that is, fishing by
manually operating a rod, reel and line or one or more separate lines to which no
more than ten hooks are attached per line. To use any other method other than the
authorised one would be unlawful.

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[26] For these reasons, I find that the appellants failed to make out a case for
the relief sought. Therefore, the appeal must fail.

[27] In the result, the following order is made:
The appeal is dismissed with costs.


____________________
F E MOKGOHLOA
JUDGE OF APPEAL

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Appearances

For the appellant: R Stockwell SC with W Carstens
Instructed by: Otto Krause Inc Attorney, Roodepoort
Honey Attorneys, Bloemfontein

For the respondent: J Rust SC
Instructed by: The State Attorney, Pretoria
The State Attorney, Bloemfontein.