THE REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
Case Number: 7633/2022
In the matter between:
BUFFELJAGSBAAI MARINE COMPANY
(PTY) LTD Applicant
and
THE MINISTER OF FORESTRY,
FISHERIES AND THE ENVIRONMENT First Respondent
THE DEPUTY DIRECTOR GENERAL OF
THE FISHERIES BRANCH OF THE
DEPARTMENT OF FORESTRY, FISHERIES
AND THE ENVIRONMENT Second Respondent
BUFFELJASBAAI SEA WHALE
PRIMARY CO-OPERATIVE LIMITED Third Respondent
Coram: Wille, J
Heard: 7 August 2024
Order granted: 23 August 2024
Reasons requested: 29 August 2024
Reasons delivered: 9 September 2024
______________________________________________________________
REASONS
WILLE, J:
INTRODUCTION
[1] The applicant sought interim interdictory relief to restrain the third
respondent from harvesting seaweed in a specified area pending the outcome
of a judi cial review that the applicant had launched and an internal
administrative appeal it had pursued. Both these are yet to be decided.1
[2] The applicant also sought an order declaring that pending the
outcomes of the review and appeal, it would be entitled to continue harvesting
seaweed in the concession area. A portion of this interim relief was granted.2
[3] The applicant held a commercial fishing right to harvest seaweed in the
concession area, which expired at the end of the medium -term fishing rights
allocation period. The applicant was, after that, again granted the right to
1 The specified area is “Concession Area 5” (from now on referred to as the “concession
area”).
2 The relief directing the respondents to issue the necessary permits to harvest seaweed
was refused.
harvest seaweed in the concession area in the long -term fishing rights period,
which has since also expired.3
[4] Subsequently, the applicant applied to renew its commercial se aweed
fishing right in the long-term fishing rights allocation period and through th is
process. Its application was refused, and the reason given by the delegated
authority for rejecting the applicant’s application was that the applicant had
failed to use its fishing right throughout the long -term fishing period, optimally.
Thus, the appli cant approached the court not only in its interests but also in
the local community's interests. I accepted that the applicant also acted in the
interests of others concerning the alleged infringement of a constitutional
right.4
CONTEXT
[5] The applicant appealed the rejection of its application and focused on
addressing the delegated authority’s finding that it had failed to optimally u se
its fishing right during the previous long -term rights period. Also, the applicant
applied for an exemption to enable it to continue harvesting seaweed in the
concession area until its appeal had been decided.5
[6] An exemption was granted to it with a limited duration expiring at the
end of that season. This limited exemption would endure until the allocation of
small-scale fishing rights or until the applicant’s appeal was granted.6
[7] In the interim period, the applicant applied for these limited exemptions
until about six years ago, when the applicant's appeal was formally rejected.
The decision to refu se the applicant’s appeal was not communicated to the
applicant despite the passage of about five years.7
3 This expired in 2015.
4 Freedom Under Law v Acting Chairperson: Judicial Service Commission 2011 (3) SA 549
(SCA).
5 This exemption was granted for a limited period only.
6 The exemption was to endure until the end of 2017.
7 The decision was only communicated to the applicant on 30 March 2023.
[8] Precisely because of this communication failure, the applicant was
granted another exemption to harvest seaweed in the concession area
subject to the following conditions ; (a) the exemption was only valid for the
harvesting of seaweed in the concession area , (b) t he exemption was only
valid until small -scale fishing rights were allocated, (c) t he exemption w ould
automatically expire as soon as seaweed fishing rights were allocated to the
small-scale fishing sector , and (d) the applicant was to apply for a permit to
undertake fishing of seaweed.8
[9] As alluded to earlier , the applicant applied for and was grante d annual
permits to harvest seaweed in the concession area for another five
subsequent annual fishing seasons. As soon as the applicant learned of the
decision to refuse its appeal, the applicant brought its application to review
and set the decision aside.9
[10] About a year ago, the second respondent, the delegated authority in
the small-scale fisheries sector, allocated long -term small-scale fishing rights
to the third respondent. The third respondent was granted the right to harvest
several marine li ving resources. Among these marine living resources rights,
was the right to harvest some of the seaweed in the concession area.10
[11] Because of the se competing rights in the local community , a meeting
was held in the local community town hall to consid er how to deal with the
grant of the small-scale fishing right to the third respondent. Most of the
community members opposed the granting of th is right to harvest seaweed in
the concession area to the third respondent.11
[12] Shortly after the meeting , the applicant appealed against the second
respondent’s decision to allocate the small-scale fishing right to harvest
seaweed in the concession area to the third respondent. It also appealed
8 The applicant was obliged to apply for a permit for each subsequent season.
9 The application was piloted on 22 August 2023.
10 The applicant’s members and the third respondent’s members were members of the same
local community.
11 It seemed to me that the local community was divided or undecided on the rights granted
to the third respondent.
against the allocation of seaweed fishing rights to any other persons in the
concession area.12
[13] In its small -scale appeal application , the applicant suggested
benefitting the entire local community by keeping the seaweed resources
traditionally used by fishing communities for that community. This would mean
that only a portion of the resources allocated to the third respondent for the
harvesting of seaweed would potentially be removed from their allocation and
some of these seaweed allocation rights to be awarded to the applicant.13
[14] Because the decision in connection with the applicant’s appeal
remained outstanding, the applicant applied for an annual permit to harvest
seaweed in the concession area for the current fishing season . This
application was made in terms of the old exemption regime. The applicant’s
annual permit was refused on the basis that this exemption process was no
longer valid and found no application because of the allocation of small -scale
fishing rights.14
[15] Despite the pending appeal against the second respondent’s decision
and the pending review of the first respondent’s decision, the second
respondent issued a permit to the third respondent to harvest seaweed in the
concession area for eight months with no limit placed on the quantity of
seaweed which the third respondent could harvest (save for fresh fronds).15
CONSIDERATION
[16] In this matter, only interim relief was granted, which did not require that
a right be established on a balance of probabilities. Where a right is infringed,
which involves a review or appeal, the prospects of success in the
contemplated review or appeal represent the measure of the strength of the
right which the applicant must establish prima facie to obtain interim relief .
12 There seemed to be no undue delay by the applicant.
13 The third respondent had been awarded other fishing rights in its “basket” of allocation.
14 This effectively prevented the applicant from applying for an annual permit.
15 With effect from 8 April 2024 to 28 February 2025.
Thus, it is unnecessary to show in this interdict application that the review (or
appeal) will succeed.16
[17] The third respondent’s small-scale fishing right was granted to it by the
second respondent, acting as a delegated authority. The applicant was
entitled to appeal against the grant of th is right, which it did insofar as it
related to the grant of a right to harvest seaweed in the concession area. As
an interim measure only, the applicant sought to interdict the harvesting of
seaweed by the third resp ondent in terms of the right allocated to it by the
second respondent.17
[18] The respondents took the position that the applicant’s pending appeal
against the second respondent’s decision does not have the effect of
suspending that decision as a matter of law. This is contrary to the principle
that the presumptive effect of an app eal against an administrative decision is
that the effect of the decision is suspended. In the absence of anything
negating the common law presumption, it must be accepted as applying, and
it follows that the third respondent has no ‘cognizable’ entitleme nt to
undertake small -scale seaweed harvesting in the concession area pending
the appeal.18
[19] It seemed to me from a review of the papers that the grant of the small-
scale right to the third respondent regarding its alleged right to harvest
seaweed was suspended by the lodging of the applicant’s appeal, and its
permit to undertake seaweed harvesting was issued only after that date. I
reasoned that the issuing of this permit after the third respondent’s fishing
right had been suspended was on the face of it irregular.19
[20] Thus, the issue for consideration was whether this previous decision by
the second respondent to award a small-scale right to harvest seaweed to the
16 Eskom Holdings SOC Ltd v Vaal River Development Association [2022] ZACC at para
[213].
17 This relief was only piloted as interim relief.
18 It was submitted that the third respondent had no such entitlement at all.
19 On 8 April 2024.
third respondent in the concession area was unlawful or not. What weighed
heavily with me in this connection was the applicant’s harvesting of this
seaweed over the past twenty years and the benefits the local community had
enjoyed because of this permission to harvest seaweed in this concession
area.20
[21] After applying a constitutional lens to these facts, I was urged to make
a just and equitable order and to grant the appropriate relief concerning the
alleged infringement of the rights held by both the applicant and the third
respondent. I reasoned th at it would have been inappropriate and legally
unsound to have weighed these competing rights in discrete compartments
rather than adopting a holistic approach. I say this because the applicant
approached the court in its interest and on behalf of a broa der public interest
and was accordingly prima facie entitled to seek to interdict the third
respondent from undertaking the harvesting of seaweed in the concession
area.21
[22] The applicant has been prevented from harvesting seaweed in the
concession area solely because of the grant of the small -scale fishing right to
the third respondent. Put another way, the applicant’s exemption would have
remained in place because the applicant’s exemption would continue to apply
for so long as small -scale rights to harvest seaweed were not allowed to be
exercised in the concession area.22
[23] I reasoned that the applicant, prima facie at least, was legally
positioned to have the second respondent’s grant of a small -scale seaweed
fishing right to the third respondent set aside. Because of this prospective
relief being granted ( prima facie), the applicant was also legally positioned to
be given a right to harvest seaweed following its review of the first
respondent’s decision.23
20 Nersa v PG Group 2020 (1) SA 450 (CC).
21 Kommissaris van Binnelandse Inkomste v Van der Heever 1999 (3) SA 1051 (SCA).
22 The applicant’s review application is focused on this small-scale rights grant.
23 The third respondent had been granted other marine resource harvesting rights.
[24] The extent and nature of the relief under the just and equitable
umbrella also bore scrutiny because of the importance of effectively
vindicating rights that have been ostensibly violated. I was enjoined to provide
practical, enforceable, and effective relief concerning what I perceived to have
been an infringement of a constitutional right.24
[25] The third respondent had to adequately address why it should be
allowed to harvest seaweed in the concession area rather than the applicant,
who had previously done so for over two decades to its benefit and the benefit
of the local community. To have refused the interim relief would have
perpetuated the notion th at the applicant and the local community should
abandon their rights (or had no rights) despite their pending review and
pending appeal.25
[26] Because constitutional rights were in issue, t he most appropriate
effective remedy in the circumstances would be to allow the applicant to
continue harvesting seaweed in the concession area in the way it had
historically been allowed to do so, pending the determination of its review
proceedings and its appeal. No other remedy was available to the applicant .
The first and second respondents would not suffer any real harm if interim
relief was granted. I say this because t his harm (if any) could only manifest in
a short delay in harvesting seaweed in the concession area. After all, the third
respondent was awarded other small-scale fishing rights and not only the right
to harvest seaweed in the concession area.26
[27] Put another way, i f the third respondent was permitted to continue to
harvest seaweed in the concession area and after that, the applicant’s appeal
or review was to succeed, the relief available to the applicant would then self-
evidently be limited by the additional prejudice which the third respondent
would be able to rely on in consequen ce of its continued operations,
24 Tswelopele Non-profit Organisation and Others v Tshwane Metropolitan Municipality 2007
(6) SA 511 (SCA).
25 Candid Electronics v Merchandise Buying Syndicate 1992 (2) SA 459 (C) at 464I -465D.
26 The harvesting of seaweed was but one of the rights in their fishing rights basket.
potentially rendering the applicant’s appeal and review proceedings an
exercise in futility.27
[28] To the extent that interdictory relief restrains the constitutional and
statutory powers and duties of a stat e functionary, the test must also be
applied in a manner that is mindful of the separation of powers . However, this
does not change the ordinary test for interim relief . It merely requires that
where a party seeks to restrain an organ of state from conduct ing statutory
powers, there must be some assessment of the separation of powers when
determining the issue of the balance of convenience.28
[29] The relief sought in this application d id not prevent the respondents
from exercising their statutory power. Even if I were wrong, and it did, the
balance of convenience dictate d that the interim relief should have been
granted. I say this because the applicant's constitutional rights (and, to a
lesser extent, those of the local community and the third respondent) featured
prominently in this application. Thus, the balance of convenience dictated the
protection of those rights. Further, if there is uncertainty about the harm that
may be suffered, a risk-averse and cautious approach must be followed.29
[30] By elaboration, the applicant advanced the position that it could
potentially be allocated small-scale fishing right s under its review of the first
respondent’s decision. This was so because the review focused on the first
respondent’s failure to deal with the applicant’s appeal, which had focused on
the reason given by the delegated authority for having denied it a fishing
right.30
[31] Thus, the argument is that t he first respondent should have engaged
with this ground of appeal. The only explanation is that the second respondent
27 Van der Westhuizen and Others v Butler and Others 2009 (6) SA 174 (C).
28 National Treasury and Others v Opposition to Urban Tolling Alliance and Others 2012 (6)
SA 223 CC.
29 WWF South Africa v Minister of Agriculture, Forestry and Fisheries and others 2019 (2) SA
403 (WCC) at [104].
30 Namely, the failure to “optimally utilise’” its fishing right in the long-term rights period
suggests that the first respondent refused the applicant’s appeal because the
concession area was reserved for the small-scale fishing sector.31
[32] In addition, if the first respondent had relied on a different reason for
refusing the applicant a seaweed harvesting right in the concession area, it
was done without a llowing the applicant to address the first respondent for
this different reason. This would have been procedurally unfair, rendering the
applicant’s right of appeal illusory.32
[33] The only ground that remained for disputing the validity of the
applicant’s review was predicated on what the first and second respondents
perceived to have been the applicant’s unreasonable delay in launching its
review application. It did, however, seem doubtful that the applicant was ever
provided with the first respondent’s decision letter , and, accordingly, the
applicant had no reason to believe that the first respondent had decided its
appeal. Aside from the fact that the second respondent failed to notify the
applicant of the outcome of its appeal, it facilitated the applicant’s belief that
no decision had been taken by continuing to issue exemptions and annual
permits to the applicant.33
CONCLUSION
[34] I did not grant the relief sought by the applicant that the first and
second respondents issue the applicant with further permits pending the
determination of the review, alternatively, the appeal, as in my view, this could
or would have amounted to impermissible judicial overreach. These are my
reasons for granting a portion of the interim relief sought by the applicant.34
_________
E.D. WILLE
31 I reasoned that the applicant should be given an opportunity to deal with this “new” ground
for the refusal.
32 Sections 3(1), 6(2)(b), 6(2)(c), 6(2)(d), 6(2)(e)(iii), 6(2)(e)(vi), 6(2)(f), 6(2)(h) and 6(2)(i) of
PAJA.
33 The respondents did not adequately deal with or engage with this issue.
34 Only portion of the interim relief requested was granted.
Cape Town