Minister of Environmental Affairs and Tourism and Others v Atlantic Fishing Enterprises (Pty) Ltd and Others (259/03) [2003] ZASCA 143; [2004] 1 All SA 591 (SCA) (28 November 2003)

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[2003] ZASCA 143
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Minister of Environmental Affairs and Tourism and Others v Atlantic Fishing Enterprises (Pty) Ltd and Others (259/03) [2003] ZASCA 143; [2004] 1 All SA 591 (SCA); 2004 (3) SA 176 (SCA) (28 November 2003)

THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
Reportable
CASE NO
: 259/03
In the matter between :
THE MINISTER OF ENVIRONMENTAL AFFAIRS
AND TOURISM
First Appellant
MONDE LATEGAN DU TOIT MAYEKISO NO
Second
Appellant
THE DEPUTY DIRECTOR-GENERAL, DEPARTMENT
OF ENVIRONMENTAL AFFAIRS AND TOURISM
Third
Appellant
(First to third respondents in the Court
a
quo
)
and
ATLANTIC FISHING ENTERPRISES (PTY) LTD
First
Respondent
EASTERN MARINE ENTERPRISES (PTY) LTD
Second
Respondent
SEAFARER DISTRIBUTORS (PTY) LTD
Third
Respondent
SOUTH AFRICAN SEA PRODUCTS (PTY) LTD
Fourth
Respondent
RISAR FISHING CC
Fifth Respondent
SOUTH COAST SEA PRODUCTS (PTY) LTD
Sixth
Respondent
AFD FISHING CC
Seventh Respondent
C & S UNDERWATER PRODUCTS (PTY) LTD
Eight
Respondent
BARATZ FISHING (PTY) LTD
Ninth Respondent
(First to ninth applicants in the Court
a quo
)
_____________________________________________________________________________
Before: HOWIE P, STREICHER, CONRADIE, LEWIS JJA
& MLAMBO AJA
Heard: 14 NOVEMBER 2003
Delivered:
28 NOVEMBER 2003
Summary:
Section 80(3)
of the
Marine Living
Resources Act 18 of 1998
– 'person with an interest' – whether a
successful applicant in terms of
s 18(1)
is such a person.
_____________________________________________________________________________
J U D G M E N T
____________________________________________________________________________
STREICHER JA
STREICHER JA:
[1] In an appeal in terms of s 80 of the Marine
Living Resources Act 18 of 1998 (‘the Act’) by Ensemble Trading
2001 (Pty)
Ltd (‘Ensemble’) the first appellant granted to
Ensemble a commercial fishing right for the 2001/2 to 2004/5 season
in respect
of south coast rock lobster. However, on review the Cape
High Court (the ‘court
a quo
’) set the first appellant’s
decision aside. With the necessary leave the appellants now appeal
against the court
a quo
’s judgment.
[2] According to the long title the object of the Act is
to ‘provide for the conservation of the marine ecosystem, the
long-term
sustainable utilisation of marine living resources and the
orderly access to exploitation, utilisation and protection of certain
marine living resources; and for these purposes to provide for the
exercise of control over marine living resources in a fair and
equitable manner to the benefit of all the citizens of South Africa’.
[3] It is, no doubt, with that object in mind that:
3.1 Section 14(1)
1
provides that the first respondent shall determine the total
allowable catch
2
of individual species or groups of species, the total applied
effort,
3
or a combination thereof;
3.2 Section 14(2)
4
provides that the first appellant shall determine the portions of the
total allowable catch, the total applied effort, or a combination
thereof, to be allocated in any year to subsistence, recreational,
local commercial and foreign fishing respectively; and
3.3 Section 18(1)
5
provides that no person shall undertake commercial fishing unless a
right to do so has been granted by the first appellant.
[4] On 27 July 2001 applications were invited in respect
of all sectors of the fishing industry including the South Coast Rock
Lobster
Sector for the 2001/2002 to 2004/2005 seasons. The total
allowable catch in respect of south coast rock lobster for the
2001/2002
season had been reduced by the first appellant to 340 tons
and had not yet been determined for the next seasons.
[5] Thirty-eight applications for the right to undertake
commercial fishing in respect of south coast rock lobster were
received.
One of the applications was by Ensemble which applied for
an allocation of 40 533 kg. The applications were
considered
by the second appellant to whom the first appellant had
delegated the powers vested in him by s 18. Sixteen applicants
were
successful. The application by Ensemble was not successful and a
final decision in respect of applications by Hout Bay Fishing
Industries
(Pty) Ltd, Amandla Abasebenzi (Pty) Ltd and Amandla
Abasebenzi Fishing (Pty) Ltd was held over pending an enquiry into
alleged contraventions
of the Act by Hout Bay Fishing Industries
(Pty) Ltd and confirmation of the requisite authorisation to make the
application in the
case of Amandla Abasebenzi (Pty) Ltd and Amandla
Abasebenzi Fishing (Pty) Ltd. Approximately 240 000 kg of
the total allowable
catch for the 2001/2002 season were allocated to
the successful applicants. Of the remaining approximately 100 tons
49 028 kg
were set aside to accommodate possible
allocations to Hout Bay Fishing Industries (Pty) Ltd, Amandla
Abasebenzi (Pty) Ltd and Amandla
Abasebenzi Fishing (Pty) Ltd. The
balance of the 100 tons was set aside to provide for additional
allocations on appeal in terms
of s 80. The second appellant
decided in this regard that ‘any amount of the 100 tons not
allocated will be proportionately
allocated to the rights holders’.
[6] In terms of s 80(1)
6
any affected person could appeal to the first appellant against the
decisions by the second appellant. Twenty-three of the 38 applicants
who initially applied appealed against the allocations by the second
respondent. Although the first, fourth, fifth, eighth and ninth
respondents in this appeal as well as the fifth, sixth, seventh,
eighth, ninth and tenth respondents in the application in the court
a
quo
had been successful applicants they appealed with a view to
having their respective allocations increased. The appeals of the
first
and fourth respondents in this appeal were subject to the
portion of the total allowable catch set aside for appeals in terms
of
s 80 not being distributed proportionately amongst the
successful applicants. The remaining 12 applicants who appealed had
not
received any allocation.
[7] The only applicant whose appeal succeeded was
Ensemble which received an allocation of 6 000 kg. The
balance of the
quantity set aside to provide for additional
allocations on appeal was in accordance with the decision of the
second respondent distributed
proportionately to those applicants who
had received an allocation.
[8] The respondents thereupon applied to the court
a
quo
for an order reviewing and setting aside the first
appellant’s decision to allow Ensemble’s appeal and for certain
ancillary
relief. They contended that the decision should be reviewed
on the ground that it was substantively unfair and unreasonable and
also
on the ground that it was procedurally unfair.
[9] The respondents contended that the first appellant’s
decision on appeal was procedurally unfair in that in terms of
s 80(3)
each of them should have been given an opportunity to
state its case as to why Ensemble’s appeal should not be granted.
Section
80(3) provides as follows:
‘The Minister shall consider any
matter submitted to him or her on appeal, after giving every person
with an interest in the matter
an opportunity to state his or her
case.’
[10] The first appellant denied in his papers that the
allocation of a right to Ensemble on appeal was procedurally unfair
and stated
that the respondents exercised their rights to appeal and
for that purpose submitted comprehensive appeal documents. He stated,
furthermore,
that in view of the number of appeals which must be
considered as well as the fact that the resource is exploited on the
basis of
an annual total allowable catch or total applied effort it
was not reasonably possible to afford each appellant a right to be
heard
as to whether its appeal and/or another appellant’s appeal
should or should not succeed. The first appellant did not contend
that
the respondents had been given an opportunity to state their
case in respect of the Ensemble appeal.
[11] The court
a quo
held that the first
appellant ‘ought to have given at least
each
of the
successful applicants for a fishing right in this sector the
opportunity to state his or her case as contemplated in s 80(3)
of MLRA
7
when he dealt with the appeals. Moreover, he ought to have had regard
to the provisions of s 3 of PAJA
8
’.
The court, therefore, set aside the first appellant’s decision and
granted ancillary relief to the respondents. In the light
of this
conclusion the court
a quo
did not consider it necessary to
deal with the question whether the decision by the first appellant
was substantively unfair and
unreasonable.
[12] Before us counsel for the appellants did not argue
that the respondents had been given an opportunity to state their
case as
to why Ensemble’s appeal should not have been granted. They
also did not submit, correctly so, that the administrative
difficulties
which would be encountered if such an opportunity were
given would entitle a court to disregard the provisions of s 80(3).
The
only issue argued by them was whether the respondents had an
interest in the granting, on appeal in terms of s 80, of a
commercial
fishing right in respect of south coast rock lobster to
Ensemble. If they had, the first appellant was obliged in terms of
s 80(3)
to give each one of them an opportunity to state its
case. It was common cause between the parties that if the respondents
did not
have such an interest they would not have
locus standi
to attack the decision by the first appellant.
[13] The second appellant did not merely reserve
50 972 kg (100 000 - 49 028) of the total
allowable catch pending
appeals in terms of s 80. He decided how
the quantity remaining after allocations had been made on appeal
should be allocated.
It follows that an allocation on appeal to an
applicant whose application in terms of s 18 had been
unsuccessful, or an additional
allocation to an applicant whose
application in terms of s 18 had been successful, would diminish
the quantity available for
distribution amongst those applicants who
received an allocation.
[14] Counsel for the appellants submitted that the
respondents nevertheless did not have an ‘interest’, within the
meaning of
the word in s 80(3), in the appeals of the other
applicants. They submitted that the word ‘interest’ in s 80(3)
should
be interpreted to mean a legal interest in the sense that only
a person whose legal rights may be affected by the decision on appeal
should be given an opportunity to state his or her case. In the light
of the conclusion to which I have come as to the nature of
the
respondents’ interest in the Ensemble appeal I shall assume in
favour of the appellants that the word ‘interest’ should
be given
the narrow meaning contended for by them.
[15] As a result of the second appellants' decision that
any amount of the 50 972 kg reserved for allocation on
appeal would
be proportionately allocated to the applicants who had
received allocations, the successful applicants acquired a contingent
right
to a proportionate share of the amount reserved for allocation
on appeal, the contingency being the dismissal of the appeals. The
word ‘contingent’ is used by me in the narrow sense. In this
regard Watermeyer JA said in
Durban City Council v Association of
Building Societies
1942 AD 27
at 33:
‘In the large and vague sense any right to
which anybody may become entitled is contingent so far as that person
is concerned, because
events may occur which create the right and
which may vest it in that person; but the word “contingent” is
also used in a narrow
sense, “contingent” as opposed to “vested”,
and then it is used to describe the conditional nature of someone’s
title to
the right. For example, if the word “contingent” be used
in the narrow sense, it cannot be said that I have a contingent
interest
in my neighbour’s house merely because my neighbour may
give or bequeath it to me; but my relationship to my neighbour, or
the
terms of a will or contract, may create a title in me, imperfect
at the time, but capable of becoming perfect on the happening of
some
event, whereby the ownership of the house may pass from him to me. In
those circumstances I have a contingent right in the house.’
[16] The difference can also be illustrated by reference
to the respondents’ position, before they had been granted any
commercial
fishing rights in terms of s 18, in respect of the
total allowable catch and their position in respect of the portion of
the
total allowable catch reserved for allocation on appeal. In the
former case the respondents had a contingent right to the total
allowable
catch in the wide sense which is in fact not a right. In
the latter case they actually had a right, albeit a contingent right,
to
the portion of the total allowable catch reserved for allocation
on appeal.
[17] It follows that the respondents had an interest in
the appeal by Ensemble and that each of them should, in terms of
s 80(3),
have been given an opportunity to state its case.
[18] But, argued counsel for the appellants, even if the
respondents had an interest in Ensemble’s appeal in so far as it
concerned
the allocation of a portion of the total allowable catch it
had no interest in the decision to grant a commercial fishing right
to
Ensemble. They submitted that a distinction should be drawn
between the granting of the right and the allocation of a portion of
the total allowable catch. In support of this contention they
referred to the fact that the determination of the first appellant
of
the total allowable catch and the portion thereof to be allocated to
commercial fishing is done in terms of s 14 and the granting
of a
commercial fishing right is done on application in terms of s 18.
In further support of the contention they referred to
the fact that
in this case commercial fishing rights were granted for the seasons
2001/2002 to 2004/2005 while the first allocations
were only made for
the 2001/2002 season.
[19] There is, in my view, no merit in the contention. A
right to undertake commercial fishing without an allocation is not a
right
to fish at all. Any application in terms of s 18(1) for a
right to undertake commercial fishing would of necessity be an
application
for the right in respect of a portion of the total
allowable catch. A right granted in terms of s 18(1) would
similarly be a
right to a portion of the total allowable catch. In
the case of Ensemble the right it applied for was the right to
harvest 40 533 kg
of the total allowable catch. On appeal
it was granted the right to harvest 6 000 kg of the total
allowable catch. It is
true that the first appellant could in terms
of s 14(5) have determined that the total allowable catch for
the 2002/2003 season
would be nil but the effect of such a
determination would have been that the successful applicants would
not have had a right to
fish during that season.
[20] During the oral argument before us the question
arose whether, by reason of the fact that the respondents had an
opportunity
to appeal against the decision by the second appellant,
it can be said that they were given an opportunity to state their
case in
respect of the Ensemble appeal. The appellants, in their
papers, did not contend that that was the case and counsel for the
appellants
were not prepared to argue that it was. The respondents
were satisfied with the second appellant’s decisions in respect of
the
unsuccessful applications. In so far as those decisions were
concerned they had nothing to appeal against. It can, therefore, not
be said that an opportunity to appeal constituted an opportunity on
the part of the respondents to state their case in respect of
the
Ensemble appeal.
[21] For these reasons the appeal should be dismissed.
Order
The appeal is dismissed with costs including the costs
of two counsel.
___________________
STREICHER JA
HOWIE
P)
CONRADIE
JA)
LEWIS
JA)
MLAMBO
AJA)
1
‘The Minister shall determine the total allowable catch, the total
applied effort, or a combination thereof.’
2
The ‘total allowable catch’ ‘means the maximum quantity of
fish of individual species or groups of species made available
annually, or during such other period of time as may be prescribed,
for combined recreational, subsistence, commercial and foreign
fishing in terms of section 14’ (s 1).
3
The ‘total applied effort’ ‘means the maximum number of
fishing vessels, the type, size and engine power thereof or the

fishing method applied thereby for which fishing vessel licences or
permits to fish may be issued for individual species or groups
of
species, or the maximum number of persons on board a fishing vessel
for which fishing licences or permits may be issued to fish
individual species or groups of species’ (s 1).
4
‘The Minister shall determine the portions of the total allowable
catch, the total applied effort, or a combination thereof,
to be
allocated in any year to subsistence, recreational, local commercial
and foreign fishing, respectively.’
5
‘No person shall undertake commercial fishing or subsistence
fishing, engage in mariculture or operate a fish processing
establishment
unless a right to undertake or engage in such an
activity or to operate such an establishment has been granted to
such a person
by the Minister.’
6
‘Any affected person may appeal to the Minister against a decision
taken by any person acting under a power delegated in terms
of this
Act or s 238 of the Constitution.’
7
The Act.
8
Promotion of Administrative Justice Act 3 of 2000
.