IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN

Case No: 7828/24

In the matter between:

JAFFAS BAY FISHING CC Applicant

and

THE MINISTER OF FORESTRY, FISHERIES AND First Respondent
THE ENVIRONMENT

THE DEPUTY DIRECTOR GENERAL: FISHERIES Second Respondent
MANAGEMENT BRANCH

SUE MIDDLETON N.O. Third Respondent

And those 60 category A right holder industry respondents named in annexure
1 to the notice of motion as the 4th to the 63rd respondents

Neutral citation: Jaffas Bay Fishing CC vs The Minister of Forestry, Fisheries and
the Environment and 2 others (7828/24) [2025] ZAWCHC (16 July 2025)

Coram: MANTAME J
Heard: 04 March 2025

Delivered: 16 July 2025

Summary: Administrative Law: Jaffas Bay sought to review and set aside the appeal
decision of the Minister not to allocate it fishing rights. Jaffas Bay
challenged the Minister’s decision of denying it sardine fishing rights, on
the basis that the scoring of its Corporate Social Investment (CSI)
contributions was irrational, inconsistent, and inadequately explained. The
Court found the Minister’s scoring process inconsistent with the scoring
criteria that was in existence. In fact, the court found that the scoring
system was unclear and lacked transparency and thereby failed the tests
of reasonableness and rationality under administrative law. Despite the
Court’s finding, it therefore declined to substitute its own decision due to
the expertise involved and the technical process of fishing rights
allocation. The Court found that it is not as good a position as that of an
administrator to make th at decision. Therefore, it could not usurp the
powers of the executive . The notion of separation of powers requires the
courts to not enter into the domain of the executive unless it is a foregone
conclusion that a certain percentage of the TAC should be awarded to
Jaffas Bay. For these reasons the appeal decision of the Minister was
reviewed and set aside , and the matter was remitted to the Minister for a
re-consideration, of Jaffas Bay’s appeal.

ORDER

1. The decision taken by Minister Creecy in terms of Section 80 of the Marine
Living Resources Act 18 of 1998 dated 18 December 2023 and/or on “The
General Published reasons for the Decisions on Appeal in the Small
Pelagic (Sardine) Sector” on 15 January 2024 to refuse Jaffas Bay a
commercial sardine fishing right is reviewed and set aside.

2. The matter is remitted back to the Minister George or the relevant
Minister of the Department at the time to reconsider the appeal b y Jaffas
Bay on whether inter alia:

(a) Jaffas Bay was correctly awarded a correct score and evaluation by
the DA, regard being had to Jaffas Bay’s Corporate Social Investment
(CSI) contributions:
(b) Jaffas Bay was correctly awarded a total score of 49.1 8% less than
the minimum requirement of 50% or whether it achieved above the
minimum threshold of 50%;
(c) Based on the total score by the DA , it was just, fair and equitable to
refuse Jaffas Baya commercial sardine fishing right.

3. The respondents are ordered to pay the costs of this application,
including costs of an application to file further affidavits on Scale B.


JUDGMENT
___________________________________________________________________
MANTAME J

Introduction

[1] The applicant (Jaffas Bay), brought an application to review and set aside the
decision of the first respondent (the Minister) , in terms of Section 80 of the Marine
Living Resources Act, 18 of 1998 (the MLRA). In her decision taken on 15 January
2024, the Minister refused to grant J affas Bay, a commercial sardine fishing right.
The applicant seeks an order directing the Minister to allocate a commercial sardine
fishing right and to issue to the applicant a fifteen-year (15) duration of such right in
terms of Section 18 of the MLRA within 30 days from the date of an order of this
Court. Further, the applicant seeks an order directing the Minister to determine and
allocates a portion of the sardine total allowable catch in terms of Section 14 of the
MLRA to the applicant.

[2] The respondents opposed the application in its entirety, arguing that the relief
sought is premised on an incorrect and strained interpretation of the Minister’s
appeal decision, and the complaints raised are without merit.

Preliminary application to file further affidavit(s)

[3] On 3 March 2025 , and shortly before the hearing of this matter, the first to
third respondents filed an application in terms of Rule 6 (5) (e) of the Uniform Rules
of Court requesting leave to deliver further affidavits . These affidavits were deposed
to by Ms Ferhana Patel , (Ms Patel), - who provided a supplementary affidavit, and
Barbara Dallas Creecy , the Minister who provided a confirmatory affidavit regarding
the impugned decision.

[4] In this application, Ms Patel explained that in the answering affidavit she
deposed to on 13 January 2025, she confirmed the contents relating to her , save for
a drafting error in paragraph 85 which incorrectly stated:

‘During the appeals process, Minister Creecy noted that the method adopted
by the Delegated Authority for scoring of CSI could potentially prejudice
smaller companies relative to larger companies. Jaffas Bay’s score was
therefore re – evaluated using the methods that the Department had originally
intended to use (percentage CSI of turnover), with > 1% in any year being
awarded 3 points, > 0.51% and < = 1% being awarded 2 points and < = 0.5%
being awarded 1 point. This scoring system was informed by the Codes of
Good Practice of the Broad - Based Black Economic Empowerment Act of
2007 according to which a company’s CSI contribution should be at least 1%
of net profit after taxes.’ [underline added]

[5] Ms Patel stated that the statement is incorrect insofar as it relates to Minister
Creecy. The first sentence with underlined Minister Creecy ought to have reflected
“the Delegated Authority.” If the contents of the paragraph 85 are read in this
context, then it would be consistent with the remainder of the answering affidavit and
what is contained in the Regulation 5 (3) report compiled by the Delegated Authority
and attached to the applicant’s supplementary founding affidavit. This was a drafting

and attached to the applicant’s supplementary founding affidavit. This was a drafting
error that was unnoticed during the preparation of the affidavit. The matter was only
brought to Counsel’s attention during the preparation of respondents’ heads of
argument on Friday, 28 February 2025.

[6] Minister Creecy confirmed her role as first respondent from 29 May 2019 to
June 2024. She confirmed that paragraph 85 is incorrect insofar as it relates to her.
The first sentence ought to refer to the “Delegated Authority” instead of “Minister
Creecy.”

[7] It was contended that should the Court not admit th ose further affidavits into
evidence, the respondents would be prejudiced . The general need for finality in
judicial proceedings and the need for the Court to adjudicate a matter on all relevant
facts, compels this Court to exercise its discretion to allow th e affidavits and
annexures to be included in the evidence.

[8] Jaffas Bay opposed the preliminary application by the respondent, noting that
Ms Patel’s affidavit in support of the application in terms of Rule 6 (5) (e) was filed
after it had submitted its replying affidavit and two weeks after its Counsel filed its
heads of argument . A further prejudice to the applicant was that the respondents
filed a confirmatory affidavit by Minister Creecy without any application for
condonation or an atte mpt to explain why she failed to file this confirmatory affidavit
when Ms Patel filed her answering affidavit , which on its own was almost 30 days
late when it was filed in mid – January 2025.

[9] It was stated that Ms Patel’s affidavit included inadmissible hearsay evidence.
Ms Patel’s allegation that paragraph 85’s reference to Minister Creecy instead of
“Delegated Authority”, is incorrect and does not reflect any error. Paragraph 85
simply correctly affirms that t he Minister accepted the Delegated Authority’s analysis
indicating that the scoring system adopted in the Sardine GPR for Questions
6.14/6.15 causes prejudice to small sized applicants such as Jaffas Bay. This is why
an alternative and new scoring system had to be adopted which is the one set out in
paragraph 85 1. What Ms Patel stated in her affidavit is incorrect and does not
constitute a reasonable assertion based on the Minister’s own appeal decision.

constitute a reasonable assertion based on the Minister’s own appeal decision.


1 Record page 190, para 3.14 – Minister’s Appeal decision dated 18 December 2023 – cross
referenced to Record page 353 (unnumbered para 63) of the Delegated Authority, SC Middleton

[10] The Minister refuted the claim that Ms Patel’s affidavit contained inadmissible
hearsay evidence . In her role as Chief – Director: Appeals and Strategic
Environmental instruments within the department , she is vested with the
responsibility and oversees the structure and operations across all 3 directorates,
namely appeals and reviews in Cape Town, Pretoria as well as Strategic
Environmental instruments. The applicant's assertions are inaccurate.

[11] Rule 6 (5) (e) of the Uniform Rules of Court confers a discretion upon the
Court to permit filing of further affidavit(s). A Court may permit the filing of further
affidavit(s) at its discretion when a party seeks to introduce new evidence or clarify
information that is relevant to the determination of a matter.

[12] It is common cause that leave to file further affidavits wa s sought on the eve
of the hearing. Despite that being the case, on the same day , Jaffas Bay filed a
response to this application , opposing the granting of such permission. It is trite that
a party seeking this permission must provide a satisfactory explan ation why this
indulgence was sought woefully late. Other than to state that the error was brought
to her attention by her Counsel on 28 February 20 25, when Counsel was in the
process of preparation of heads of argument, the respondents provided no other
satisfactory explanation. In any event, the practice directive 50 (1) (b) requires the
respondent to deliver heads of argument not less than 5 days before the date of
hearing. In this matter such heads were delivered on 3 March 2025 , without a
request for condonation explaining the reasons for lateness.

[13] In applications of this nature , a series of factors must be considered. These
factors2 include, (i) the reason the evidence was not produced timeously; (ii) the
degree of materiality of the evidence, (iii) the possibility that it may have been filed to

degree of materiality of the evidence, (iii) the possibility that it may have been filed to
“relieve the pinch of the shoe”;(iv) the balance of prejudice to the applicant if the
application is refused in relation to the prejudice to the respondent if it is granted; (v)
the stage of the litigation; (iv) the possibility of an appropriate order of cost to
address the late filing; (vii) the general need for finality in judicial proceedin gs; and
(viii) the appropriateness of visiting the attorney’s fault upon the head of his client.

2 Erasmus, Superior COURT Practice Volume 2 I Uniform Rules and Appendices D1 – Rule 6 – 31;
Popterstraat 69 Eiendomme (Pty) Ltd VPA Venter Worcester (Pty) Ltd 2000 (4) SA 598 (C)

[14] Notwithstanding the fact that such an error should have been noted when the
answering affidavit was filed on 14 January 2025, the undisputed fact is that Jaffas
Bay was obviously prejudiced by the Rule 6 (5) (e) application that was filed on the
eve of the hearing. In my opinion, Jaffas Bay correctly pointed out that paragraph 85,
as originally drafted, is correct. Ms Patel simply seeks to re write paragraph 3.14 as
pointed out in paragraph 10 of this judgment. In fact, Ms Patel attempts to introduce
incorrect evidence before this Court that contradicts what was originally presented in
paragraph 85. The corrected version fails to logically and rationally communicate
what the respondents wish to communicate. This is the same reason why the
decision of the Minister is impugned. As crossed – referenced by the applicant the
recommendations by the Delegated Authority, were taken as is by the Minister and
were incorporated into the Minister’s decisi on. To permit the filing of further affidavit
(s) would be tantamount to allow or granting an amendment based on untrue facts
through the backdoor.

[15] Hano Trading CC v JR 209 Investments (Pty) Ltd 3 states that:

‘[11] Rule 6 (5) (e) establishes clearly that the filing of further affidavits is only
permitted with the indulgence of the Court. A court, as arbiter, has the sole
discretion in this regard where there is a good reason for doing so.”

[16] In this matter, further affidavits t hat sought to be filed ha ve the potential to
amend the case that was presented by the applicant and the defence that was
mounted by the respondents . Furthermore, Jaffas Bay did not have ample
opportunity to address the indirect amendment that was sought. Albeit, it was
extremely late when it was served by this affidavit , Jaffas Bay filed an affidavit in
response thereto regardless of the fact that no leave was granted to file this string of
affidavits. Clearly, this app lication was filed to “relieve the pinch of the shoe” in

affidavits. Clearly, this app lication was filed to “relieve the pinch of the shoe” in
respondents’ defence.


3 2013 (1) SA 161

[17] For this reason, I am of the view that the respondents should not be allowed
to file further affidavits. The “healing balm” of an appropriate cost would be dealt with
at the conclusion of this judgment.

Factual Matrix

[18] Jaffas Bay has been a historic and active participant in the South African
Commercial West Coast rock lobster, hake and small pelagic fishing sector since
1998. The entity held commercial rights in the hake long line and small pelagic
(anchovy and sardine) fishing sectors in terms of Section 18 of the MLRA.

[19] On 31 December 2020, Jaffas Bay’s commercial fishing right to harvest
anchovy and pilchards terminated and reverted to the State as provided in Section
18 (6) of the MLRA. No fishing rights alloca tion process was planned to ensure an
uninterrupted continuation of commercial fishing. This happened when Jaffas Bay
became a substantial investor in the fishing industry by acquiring the following vessel
– owning entities:

19.1 48 % shareholding in Slip Knot Fishing (Pty) Ltd, which harvests small
pelagic (pilchard and anchovy)
19.2 33% shareholding in Arbal Holdings which owns the hake fishing vessel,
and
19.3 78% shareholding in MFV Ivy Doreen which harvest West Coast Lobster
quota allocation.

[20] Following this termination, the Minister granted industry– wide “exemptions” in
terms of Section 81 of the MLRA , allowing hundreds of fishing companies to
continue their operations. Two years later, i.e. 28 February 2022, the fishing rights
were allocated for a n additional period of 15 years in terms of the “2022 Fishing
Rights allocation Process (FRAP).

Delegated Authority’s decision

[21] Following an assessment and evaluation of the FRAP 2021 application,
applications in the Sardine Fishery, the General Published Reasons for the
Decisions on the Allocation of 2021/22 Fishing Rights in the Sardine Fishery ( the
Delegated Authority’s GPR: Sardine) was published on 28 February 2022.
Amongst others the Delegated Authority’s (the DA) decision was as follows:

1. 46 of the 80 Category A applicants were successful sharing 92.5926% of the
TAC; (the applicants who held right s in the fishery for which they are re –
applying the period 2006 to 2020).
2. 2 of the 59 Category B applicants were successful sharing 1.6667% of TAC;
(the applicants who held rights in sectors other than the fishing they have
applied for during the period 2006 to 2020).
3. 4 of the 105 Category C applicants were granted rights in the sector with a
combined TAC of 5. 7407%; (the applicants who have not held fishing rights
in any of the commercial fishery sectors during the period 2006 to 2020).
4. 10% of the TAC would be reserved for appeals.
5. Sardine commercial fishing rights were allocated for fifteen years, starting
from 1 March 2022 to 31 December 2037.

[22] On the same day, Jaffas Bay , a Category A applicant , was denied the re –
allocation of its pilchard fishing right by the third respondent , who acted in terms of
the delegated authority in terms of Section 79 of the MLRA. Jaffas Bay was granted
the anchovy right based on the previous information that was submitted.

[23] Jaffas Bay expressed dissatisfaction with the manner in which the Delegated
Authority communicated its decision. In late March 2022, Jaffas Bay received
notification regarding the decision from other members of the fishing industry. They
advised that the Notification Letters and individual scoresheets were posted on the
Fishing Rights Allocation Process (FRAP) online fishing rights application portal. The
DA issued no public notice, press statement , or any other public announcement th at

DA issued no public notice, press statement , or any other public announcement th at
alerted members or applicants about the outcome.

[24] In addition to this publication, the Delegated Authority dispatched a
Notification Letter and a scoresheet to every applicant who submitted an application

for a Small Pelagic (Sardine) commercial fishing right. The DA excluded Jaffas Bay’s
sardine fishing right application but scored Jaffas Bay a total of 49.18% points. The
DA’s reason s for its decision are set out in the notification letter that was sent to
Jaffas Bay on 22 March 2022.

[25] Jaffas Bay Notification Letter and scoresheet by the DA revealed that:

25.1 Jaffas Bay application was excluded because its application was found to
be improperly lodged and materially defective as no SARS certificate was
attached.
25.2 Jaffas Bay’s application was scored 49.18%.

Minister’s appeal decision

[26] In terms of Section 80 of the MLRA, Jaffas Bay is entitled to appeal the
decision of the DA. On 28 April 2022 , after expressing dissatisfaction with the
decision, Jaffas Bay lodged an appeal against the Delegated Authority’s decision to
the Minister which essentially excluded its application and further contended that it
“scored above the minimum score of 50% points required for the re – allocation of its
pilchard fishing right…and therefore clearly qualifies for a 15 year long commercial
pilchard fishing right.” The appeal was filed prior to the deadline of 29 July 2022.

[27] On 18 December 2023, Minister Creecy issued the General Published
Reasons for the Decisions on Appeal in the Small Pelagic (Sardine) Sector: FRAP
2021/2022 (the Appeals GPR: Sardine). Minister Creecy, in her decision, inter alia,
decided to retain the allocation of 225 tonnes on appeal . She also determined that
the 10% reserved TAC tonnage is to be distributed amongst the 14 successful
Category A appellants and 1 successful Category B appellant, incorporating the
evaluation of the performance of Category A appellants during the previous rights
period.

Review application

[28] Once more, Jaffas Bay and other applicants seeking commercial fishing rights
in the Small Pelagic (Sardine and Anchovy) sector , who were dissatisfied with
Minister Creecy’s decision and/or the Delegated Authority’s decision , instituted
applications for judicial review in respect of those decisions:

28.1 Thirteen (13) applications relate to Category A (i.e. nine (9) in the Sardine
Fishery and four (4) in the Anchovy Fishery.
28.2 Six (6) applications relate to Category B (i.e. three (3) in the Sardine Fishery
and three (3) in the Anchovy Fishery); and
28.3 Three (3) applications relate to Category C (i.e. two (2) in the Sardine Fishery
and one (1) in the Anchovy Fishery).

[29] In its application for review, Jaffas Bay asserts that the Minister evaluated its
sardine fishing rights application in an arbitrary , irrational, and unlawful manner.
Alternatively, if the Minister’s own irrational and arbitrary methodology is applied,
Jaffas Bay ought to have been allocated additional points and would consequently
qualify for a sardine fishing right. The Minister’s Appeals GPR fails to offer any
cogent explanation as to the reasons for adopting a “minimum” score and to what
extent this minimum score “decision” gives effect to attainment of the policies and
objectives set out in Section 2 of the MLRA.

[30] Additionally, it has been noted that Jaffas Bay previously applied for and
successfully acquired an anchovy fishing right using the same information that was
contained in its current application of its sardine fishing right application .
Consequently, it should have successfully acquired a sardine fishing right as well .
Given that the Delegated Author ity and subsequently the Minister used the same
scoring and weighing criteria for both the anchovy and sardine fishing sectors, Jaffas
Bay sardine fishing right application ought to have been scored the same as its
anchovy application , and thus, the sardine right s should have been allocated to
Jaffas Bay.

Jaffas Bay.

[31] In addition, its sardine application was not consistently assessed when
compared to Jaffas Bay application for squid, tuna – pole, and anchovy fishing rights.
Jaffas Bay has successfully applied for these fishing rights.

[32] Despite the Minister’s acceptance that Jaffas Bay argument for exclusion in its
appeal, she did not accurately and consistently evaluate its application in the same
manner as the anchovy application score. The Minister amended the scoresheet for
Jaffas Bay, raising the score to 49.46% after identifying specific scoring errors made
by the Delegated Authority in the calculation of the “transformation” score . However,
the applicant does not take issue with scores allocated. The errors concerned
questions 6.10 and 6.11 in the scoresheet.

[33] The Minister identified errors in paragraphs 3.13 and 3.14 of her appeal
decision. Upon effecting changes for question 6.10 she scored Jaffas Bay from 9/24
to 11/24 , leading to an increase in the final score. Jaffas Bay expressed
dissatisfaction with the Minister's failure to clarify the formula or data u tilised to
determine that score. Consequently, the scoring criterion is arbitrary, irrational,
unlawful, and therefore reviewable. The Minister’s attempt to correct the Delegated
Authority’s errors with regard to the scoring of questions 6.14 and 6.15 that qualifies
Jaffas Bay’s contribution as a percentage of turnover to corporate social investment
(CSI), is deemed even more confusing according to the applicant. The Delegated
Authority in their opinion, had adopted an unlawful and inequitable evaluation scoring
which ranked Jaffas Bay based on their respective Rand dominated CSI
contributions. The Minister correctly put in the appeal decision at paragraph 3.14,
that this scoring system was prejudicial to smaller operators. As a result, the Minister
adopted an entirely new scoring system based on each applicant’s stated, “CSI as a
percentage of turnover contribution.”

[34] Jaffas Bay further expresses dissatisfaction regarding the score of 6 points
that was awarded for transformation. In their opinion, the Minister continued to
confuse the Delegated Authority ’s scoring matrix in table 9 page 31 of the Sardine

confuse the Delegated Authority ’s scoring matrix in table 9 page 31 of the Sardine
GPR. In this instance, Jaffas Bay ought to have scored nothing less than 9 points,
based on its previous year’s contribution to CSI. In 20 19, it was 3.37%, in 2020 it
increased to 4.16% and in 2021 it decreased to s 2%.

[35] This variance was noted to be evident in Jaffas Bay response to questions
6.15 recorded in its application form. The Minister failed to explain Jaffas Bay’s score

of 6 points , which resulted in a final weighted score of 2% points given that
transformation criterion carried a weighting of 15%. The Minister’s scoring
methodology describes as irrational and unlawful, as Jaffas Bay ought to have been
awarded 9 points , given that its CSI contribution over 3 years averaged 3.17% of
turnover. It was said that if one had to apply the Minister’s arbitrary weighing of
33.3%, then its actual adjusted score for 6.14/6.15 must be 3%. In essence, its total
score must therefore be increased from 49.46% points to 50.46% points. On this
version, Jaffas Bay must then qualify for a sardine fishing right similar to its previous
qualifications in the anchovy fishing sector. The Minister’s adoption of the exact
same scoring and weighing system that was implemented by the Delegated
Authority, which the Minister confirmed on appeal to be prejudicial to “smaller
companies relative to larger companies” perpetuates the arbitrariness and
unlawfulness of the Delegated Authorities scoring and weighing system.

[36] Interestingly, it was said, that the Minister acknowledged the revision of
scores as recommended by the Delegated Authority and endorsed them. However,
the Minister took no action to ensure that the information about the scoring
adjustments was made a vailable. Furthermore, the Minister failed to exercise her
powers of appeal when considering the scores and weightings allocated to questions
6.11, 6.16, 6.17, 6.19, 6.23 and 6.26. The Minister awarded Jaffas Bay 5 points for
each and every criterion. However, the f inal weighted scores randomly awarded to
Jaffas Bay differs altogether. There was no rational conceivable explanation that was
given. According to Jaffas Bay, a 5-point allocation has to be converted to a 15%
weighted score. So, each 5 points awarded to th e applicants can only carry a final
weighted score of 0.75% points (5 points x 15%).

[37] Jaffas Bay appears to have concerns regarding the Minister’s decision that a

[37] Jaffas Bay appears to have concerns regarding the Minister’s decision that a
50% threshold is necessary to qualify for a sardine fishing right. The Minister faced
significant scrutiny regarding her decision, as she did not provide a clear explanation
for adopting this "minimum" score and how it aligns with the policies and objectives
outlined in Section 2 of the MLRA and the sardine policy. It was said that the
decision to refuse Jaffas Bay a sardine right because it scored less than 50 points is
not rationally connected to the policy objectives of Section 2 of MLRA and the
sardine policy.

[38] Although this represents the minimum score, th e Minister in the appeal
decisions granted anchovy rights to all historic right holders, including Jaffas Bay,
who scored 40% or higher. The Minister clarified the rationale behind the 40% being
a justifiable minimum in the anchovy fishery , while it was not applicable to the
sardine fishery, despite both being governed by the same policy objectives outlined
in Section 2 of the MLRA and the Small Pelagic Policy. The only motivation for
allowing previous right holders who demonstrated inadequate r overall performance,
was to enable the inclusion of New Entrants into the anchovy fishery. Despite its
criticism of the 50% points cut – off score for the allocation of sardine fishing rights,
Jaffas Bay contended that it met the “minimum” score, alternatively, tha t the
“minimum” score is an arbitrary and irrational determination of Jaffas Bay's
qualification for a fishing right.

[39] Jaffas Bay contended that this Court has previously reviewed and set aside
the Minister’s decision in other fishing sectors , thereby granting the applicants in
those cases their fishing rights under Section 18 of the MLRA.

Submissions

[40] Jaffas Bay contended that , while it initially mounted a range of complaints in
this review application, however, it has since narrowed down its review grounds to
focus solely on the reasonableness, rationality and lawfulness of the Minister’s
scoring of Jaffas Bay’s Corporate Social Investment (CSI) contributi ons according to
scoring criteria 6.14/6.15. The perspective is that it should have received a score of
1% point (the highest possible for the SCI scoring criterion); resulting in a total of
50.13% points and an allocation of 0.9132% of the sardine TAC, as recommended
by the Delegated Authority and the experts from the small pelagic assessment team.

[41] They believe that the Minister’s decision -making process is a tangled mix of

[41] They believe that the Minister’s decision -making process is a tangled mix of
contradictory, unreasonable, and irrational scoring and evaluation methods. The new
scoring system, as outlined in the respondent’s answering affidavit, contravenes the
provisions of Section 80 (3) of the MLRA.

[42] The respondents maintained that following Jaffas Bay appeal to the Minister,
the Delegated Authority prepared and submitted a Regulation 5 (3) Report to
facilitate the Minister ’s proper consideration of the Jaffas Bay appeal . The
Regulation 5 (3) Report acknowledged that despite Jaffas Bay having received a
score of 49.18% by the Delegated Authority in the Category A applications, the Small
Pelagic Assessment Team reassessed Jaffas Bay due to the errors identified during
the evaluation of applicants in the appeal process. First, in respect of question 6.10
applicants were incorrectly compared across all categories rather than being
compared solely within their respective categories, as specified in the Delegated
Authority’s GPR: Sardine. Following the correction of the error, Jaffas Bay’s score
adjusted from 9 points to 11 points out of a total of 24 points, leading to an increase
in their final score of 0.13%. Secondly, regarding questions 6.14 and 6.15, the
Delegated Authority’s GPR: Sardine outlines the scoring methodology as follows:
scores could not be awarded based on the percentages of an applicant’s turnover or
profit that was spent on CSI in each year over the period 2019 to 2021 , as the
provided data for question 6.15 were considered unreliable and , in some cases no t
credible. Instead, scores were based on the actual amounts (in Rand) spent on CSI,
relative to the average amount by all applicants within that category only. Upon re –
evaluation of Jaffas Bay score using the alternative method, with: > 1% in any year =
awarded 3 points; >0.51% and <1% - awarded 2 points; and <0.5% - awarded 1
point. This exercise, the respondents indicated resulted in a score change from 6 to
9 points out of a total of 9 points , which further increased in the final score of 1.0%.
In essence, the changes in respect of questions 6.10 and 6.14/6.15 resulted in Jaffas
Bay’s score being increased by 1.13% to a total score of 50.31% . This score

Bay’s score being increased by 1.13% to a total score of 50.31% . This score
surpasses the threshold required for successful category A applicants, and as a
result, Jaffas Bay should be awarded a right in the sardine fishery.

[43] On consideration of Regulation 5 (3) report, it was said the Minister , in
exercising her extensive appellate powers, should have corrected certain errors
made by the Delegated Authority in respect of Jaffas Bay ’s transformation score. A
support for this contention was referenced to paragraphs 3.13 and 3.13.1 of Jaffas
Bay’s Appeal Decision, along with the Minister score for question 6.10 . It was noted
that t he previous score was incorrectly awarded as 9, but subsequent to its
correction on appeal, it was adjusted to 11. The weighting of question 6.10 was 10%

of the transformation section, which comprised had a total weighting of 15%. The
maximum score for question 6.10 was 24, and the percentage (%) score for question
6.10 was calculated as (11/24) x (10x100) x (15) = 0.69%. Jaffas Bay percentage
(%) score therefore increased from (9/24x10/100x15) = 0.56% to 0.69% (an increase
in the total score of 0.13%).

[44] The respondents denied that the Minist er failed to explain or provide any
formula data or any information regarding the meaning s or references of 9/24 or
11/23. the score associated with this data; the computation of 9 and/or 11; and the
calculation of the final score of 0.13%. The Minister stated that the spreadsheets
have been published on the Departmental website to help applicants comprehend
the scoring methodology. Jaffas Bay was at liberty to request access to information
necessary for purposes of lodging an appeal if it requir ed the information, but it
chose not to do so. Therefore, the Minister stated that these complaints are without
merit and lack substance.

[45] As regards the Ministers correction of scores , it was submitted that regarding
question 6.14/6.15 Minister Creecy adopted an entirely new scoring system based
on each applicants stated CSI as a percentage turnover contribution. Further, it was
submitted that Jaffas Bay raised several concerns regarding the Delegated Authority
scoring methodology, particularly in relation to questions 6.14/6.15, and the
perspectives provided by the Delegated Authority in Regulation 5 (3) report was self-
explanatory. Jaffas Bay therefore, misses the point that the decision that is sought to
be reviewed is that of the Minister and not the Delegated Authority. In addition, the
Minister, in her appeal decision in paragraph 3.14, considered Jaffas Bay’s eligibility
to an increased score in res pect of questions 6.14/6.15. As it was stated in
Regulation 5 (3) report, it proposed that Jaffas Bay in respect of question 6.14/6.15

Regulation 5 (3) report, it proposed that Jaffas Bay in respect of question 6.14/6.15
be adjusted from 6 to 9 points out of a total of 9 points , leading to an additional
increase in their final score to 1.0% . The respondents disagreed with Jaffas B ay’s
contention that the Minister adopted the Delegated Authority’s rationale in its entirety
and without any amendment. It was said that it was correct that the appeal decision
contains the Delegated Authority’s vi ews which were “copied and pasted” from the
Regulation 5 (3) report. Although there was a proposal by the Delegated Authority to
adjust the score from 6 to 9 points for questions 6.14/6.15, the Minister was not

convinced by the DA’s views, and Jaffas Bay’s score remained at 6 points based on
the methodology set out in the Appeals GPR: Sardine. It was submitted that the
Minister’s scoring in this regard was based on a flawed reading and understanding of
the Appeal Decision by Jaffas Bay.

[46] For instance, Jaffas Bay, in concluding that its appeal was upheld , with its
score changing from 49.18% to 50.13% . The Minister accepted the Regulation 5(3)
report read in conjunction with Jaffas Bay Appeal De cision, indicating that the
Minister accepted the Delegated Authority’s findings without amendment or
exception. However, it was noted that the failure to grant a sardine fishing right was
incorrect. Not all revisions of the scores were accepted by the Minister as
recommended by the Delegated Authority in Regulation 5 (3) report. It was
suggested that the misinterpretation of what the Minister decided arises from th e
statement on paragraph 3.15 of the Appeal Decision which provides: “ I note the
revision of scores as recommended by the DA and uphold these adjustments. ”
Paragraph 3.14 of the Appeal Decision which deals with question 6.14/6.15 indicates
that Jaffas Bay’s score remains at 6 and did not change to 9 as was proposed by the
Delegated Authority in the Regulation 5 (3) report.

[47] The respondents contended that an additional basis for review, introduced
late in Jaffas Bay’s replying affidavit, was the Minister's violation of Section 80 (3) of
the MLRA. This was due to the adoption of a revised scoring and evaluation
methodology as set out in paragraph s 81, 82, 83, and 84 of the respondents ’
answering affidavit. Jaffas Bay contended that the Minister’s decision to refuse to
award it a fishing right is premised on the scoring process set out in paragraphs 81 –
84. The explanation in the answering affidavit does not only introduce an
impermissible ex post facto attempt to rationalise, justify and explain away the

impermissible ex post facto attempt to rationalise, justify and explain away the
original contradictory, confused and unlawful decision by the Minister, it somehow
introduced a new scoring system that is somehow irrational.

Discussion

Alleged inadmissible hearsay evidence by Jaffas Bay

[48] Jaffas Bay, in these proceedings alleged that the deponent to the answering
affidavit (Ms Patel) is not authorised by virtue of her position to depose to the
answering affidavit in question. The Minister failed to submit a confirmatory affidavit
to verify the accuracy and truthfulness of the averments made on her behalf by Ms
Patel.

[49] Pursuant to the aforementioned point of law that was taken by Jaffas Bay, the
Minister filed a confirmatory affidavit , aligning herself to the role of Ms Patel in these
proceedings as Chief Director . Ms Patel is responsible for reporting to the Minister
on all fishery appeals and vet ting recommendation related to the appeal
administration and all litigation relating to appeals. The respondents contended that
Ms Patel’s debate regarding the authorisation to depose to affidavits in motion
proceedings need not occupy this Court as it has long been settled by the Supreme
Court of Appeal.

[50] For instance, in Ganes and Another v Telecom Namibia4, the SCA held:

“[19] … The deponent to an affidavit in motion proceedings need not be
authorised by the party concerned to depose to the affidavit. It is the institution
of the proceedings and the prosecution thereof which must be authorised.”

[51] Both Ms Patel and the Minister have convincingly demonstrated before this
Court that Ms Patel had the requisite authority to oppose this applic ation on behalf of
the Minister after the necessary proceedings were instituted. Moreover, the
opposition of these proceedings was said to have been fully authorised . In all, this is
not an issue that needs this Court to traverse in detail given the above decision by
the Supreme Court of Appeal. This point has to fail.

The Ministers evaluation and scoring criteria

[52] Jaffa’s Bay contended that the Minister’s decision on appeal in terms of
Section 80 of the MLRA relating to scoring and evaluation should be reviewed and

4 2004 (3) SA 615 (SCA) para [19]

set aside, as it was arbitrary, and irrational, and therefore unlawful. Further, since Ms
Patel demonstrated that the Minister’s decision-making process was blemished with
contradictory confusion, unreasonableness , and irrational scoring and evaluation
process, the new scoring and evaluation process was in violation of Section 80 (3) of
the MLRA.

[53] Alternatively, an order be granted by correctly applying the Minister’s own
arbitrary and irrational scoring and evaluation criteria , as Jaffas Bay should have
scored above the “minimum” of 50%, which was itself arbitrarily determined as the
threshold needed to qualify for a fishing right. This 50% score, set as the minimum
requirement, is arbitrary, irrational, and unlawful, failing to consider the policy
principles and objectives outlined in Section 3 of the MLRA . The Minister should be
directed to allocate to Jaffas Bay a 15-year duration commercial sardine right in
terms of section 18 of the MLRA within 30 days of the order , and that the Minister be
directed to determine and allocates to the applicant a portion of the sardine total
allowable catch in terms of Section 14 of the MLRA. In addition, Jaffas Bay ought to
have been scored an additional 10% point (the maximum score for the CSI scoring
criterion), thus 50.13% points in total and allocated and a corresponding allocation of
0.9132% of the sardine TAC as advised by the Delegated Authority and the experts
comprising the small pelagic assessment team. However, at the hearing of this
application it was said that the issue has narrowed down and its review grounds
focused solely on the reasonableness, rationality and lawfulness of the of the
Minister’s scoring of Jaffas Bay’s Corporate Social Investment (CSI) contributions
under the scoring criteria.

[54] The respondent asserted that following Jaffas Bay’s filing of its application, it
was afforded an opportunity to respond to their case. However, it appears that much

was afforded an opportunity to respond to their case. However, it appears that much
of their reply introduces new points. It is trite that a litigant cannot come to Court and
seek to make out a new case in reply.

[55] To the extent a new case was made out in the process of its reply, and had
the respondents answered differently, particularly concerning the Minister’s scoring
for questions 6.14 and 6.15, Jaffas Bay would not have responded in a manner that
introduced a n ew ground for review. This further ground ought to be considered by

this Court as it comprehensively addresses the complaints of Jaffas Bay in its
entirety.

[56] For instance, t he scoring system that was put in issue could be gleaned in
paragraph 3.13 and 3.14 of the Minister’s Appeal Decision. As stated above the
respondents attempted to correct (amend) the contents of paragraph 85 of the
answering affidavit. The original paragraph 85 read as follows:

‘During the appeal process, Minister Creecy noted that the method adopted by
the Delegated Authority for scoring of CSI could potentially prejudice smaller
companies relative to larger companies. Jaffas Bay’s score was therefore re –
evaluated using the methods tha t the Department had originally intended to
use (percentage CSI over turnover) with >1 % in any year being awarded 3
points, >0.51% and < = 1% being awarded 2% and < =0.5% being awarded 1
point. This scoring system was informed the Codes of Good Practice o f the
Broad Based Black Economic Empowerment Act of 2007 according to which a
company’s CSI contribution should be at least 1% of net profit after taxes’.

[57] The respondent indicated that the first line which referred to Minister Creecy –
should refer to the Delegated Authority. Had this Court made the correction , it would
have undermined the very purpose of this application from the outset.

[58] First, by way of an example the Minister ascertained that Jaffas Bay was
compared with applicants from all three categories rather than solely against others
in its own category, as mentioned in the GPR (paragraph 3.3, Question 10), which
raised some concerns. The Minister, having recognised that shortcoming, did not
provide clarity in addressing the error regarding the alteration of Jaffas bay's score
from 9/24 to 11/24. This was an appeal process, and the Minister should have been
transparent when adjusting the scores.

[59] Public policy in general advocates for the necessity of providing reasons for

[59] Public policy in general advocates for the necessity of providing reasons for
decisions, especially those that carry significant consequences for individuals or
institutions. This would reinforce the notion that decisions were made legitimately.

There would not be a perception of arbitrariness, unreasonableness or
capriciousness.

[60] Secondly, if due regard is had to para 3.14 of the Minister’s decision itself and
not paragraph 85 of the respondent’s answering affidavit, the Minister re – evaluated
the score given to Jaffas Bay by employing the methods that the Department had
originally intended to use with the consideration of the percentage CSI turnover. The
score for 6.14 remained at 6 points. Having all of the above, the Minister increased
Jaffas Bay overall score. For question 6.1, the overall score is increased by 11
points. Once more, no reasons for such increase were provided. For the
respondents to suggest that the Delegated Authority nor the Minister determined that
Jaffas Bay score would remain at 6 points for question 6.14/6.15 is untenable, as this
is not borne out by the record of the Minister’s Appeal Decision.

[61] If the Minister noted that the method adopted for scoring of CSI could
potentially prejudice smaller companies relative to larger companies, it stands to
reason that her conclusion should have been more reflective of this, more especially
if the transformation imperative were taken into account. The attempted correction
(amendment of paragraph 85) was made purely to preserve the Ministers reputation.

[62] If a proper analysis is made with Bato Star Fishing (Pty) Ltd v Minister of
Environmental Affairs and Others 5. In that matter it was clearly stated that PAJA
dictates reasonable administrative action by establishing reasonableness as a
ground for judicial review of administrative action. That implies that administrative
decision – makers are required to act reasonably or within the limit of
reasonableness. In this instance, the three (3) elements of reasonableness are
rationality, proportionality , and contextual reasonableness. A rational decision , for
instance is supported or justified by the evidence and information that was placed

instance is supported or justified by the evidence and information that was placed
before the public official (the Minister) a long with the rationale for such decision. In
other words, there must be a collection of justifications for the decision that would
persuade an individual that the decision is truly sensible (rationality test). The effect
of the decision is that a reasonable decision – maker needs to adopt a decision that

5 2004 (4) SA 490 (CC) para [25]; Walele v City of Cape Town 2008 (60 129 (CC)

is proportionate or achieve a reasona ble equilibrium (proportionality test ) and take
contextual approach – this depends on its application on case-to-case basis, taking
into account the specific facts and circumstances (nuanced, situation -sensitive
and/or contextual test). All of the above is lacking in the Minister’s appeal decision.

[63] This Court is evidently not in a position to validate a process when the record
does not clarify how it was reach ed. The respondent devised a formula for
calculating the scores. In my view, it is not open to the respondents at this stage to
introduce some formulas which were not narrated either by the Delegated Authority
or the Minister in her impugned decision. In addition, the Minister in the appeal
considered the scoring and evaluation system established by the Delegated
Authority and revisited it by applying new scores. The confusion regarding whether it
was the Minister or the Delegated Authority who identified a potential prejudice in the
scoring criteria seems to stem from the respondents' own case. In my view, the
Minister’s decision has to be reviewed and set aside.

[64] Jaffas Bay a rgued that if the review succeeds, this Court should consider a
substitution order directing the Minister to allocate Jaffas Bay a fifteen year (15)
commercial sardine fishing right in terms of Section 18 of the MLRA, along with an
order that the Minister determines and allocates the allowable catch in terms of
Section 14 of the MLRA or the 0.9132% of the sardine TAC as was determined by
the Delegated Authority in 2023. The lack of clarity regarding what Jaffas Bay is
entitled to reinforces the idea that the process by which those scores were
determined is neither transparent nor easily understood. However, t his Court
disagrees with the position adopted by Jaffas Bay that this Court is that it is equally
positioned6 and as well qualified as the original authority to make the decision.

positioned6 and as well qualified as the original authority to make the decision.

[65] If Jaffas Bay cannot clearly articulate the substitution order that this court
should grant, it follows that it is not in as good a position to grant that order. In other
words, it is not a certainty regarding the score that Jaffas Bay should have been
awarded. Moreover, it is not a foregone conclusion how much TAC should have
been awarded to Jaffas Bay. The 0.9132% of the sardine TAC , as was determined

6 Trencon Construction (Pty) Ltd v Industrial Development Corporation of South Africa Ltd 2015 (10)
BCLR 1199 (CC)

by the Delegated Authority in 2023 , cannot be considered to be an appropriate
award as the DA’s decision was not under review before this Court. Although the
factors as espoused in Trencon must be considered cumulatively , this Court is at
large to consider other important factors. These will include delay, bias or
incompetence of an administrator and fairness to all parties. Regrettably, these do
not contribute to the discussion in this case.

[66] The respondents submitted that , as a general rule , a court typically will not
substitute its own decision for that of an administrator and instead , it will remit the
matter to the administrator for reconsideration. 7.

[67] I agree with the respondent’s submission for the important reason that the
allocation of a commercial fishing right requires some level of expertise, and such a
decision is inherently policy laden in nature8. Jaffas Bay amongst others, complained
that the provisions of Section 2 of the MLRA were not properly considered. The
respondents denied those assertions. In my view, it appears that those policy
considerations were made by the respondents. However, it remains unclear to what
extent the Minister considered them. For instance, the awarded scores do not align
with the Minister's findings. In any event, those scores were not explained. I n Puffin
Fishing it was held that “… this is one of those cases where a substitution of this
nature would definitely cross the line in breach of the separation of powers doctrine,
since by no stretch of the imagination could (the Court) be considered in as good a
position as the functionary concerned to determine the terms of the tuna pole.”

[68] In this regard, both the Delegated Authority and the Minister were assisted by
a team of expert s who are most qualified to make an accurate and proper decision.
For instance, it was said that the Minister, in her appeal decision, was assisted by an
assessment team composed of technical and subject experts in fisheries research,

assessment team composed of technical and subject experts in fisheries research,
fisheries resource management , and fisheries monitoring, control , and surveillance,
as well as legal and information technology experts. This Court would not have that
benefit.

7 Johannesburg City Council v Administrator, Transvaal 1969 (2) SA 72 (T) at 76 D – E
8 Puffin Fishing CC and Another v Minister of Forestry Fisheries and the Environment and Other
(11413/2023) [2024] ZAWCHC 76 (11 March 2024 para [35]

[69] Without a doubt, delay would be caused by the remittal of this matter to the
administrator. For instance, it was stated that the DA held back 10% of the TAC ,
which is normally a reserved tonnage for appeals. At this point, this Court is not in a
position to ascertain how much of that TAC is available or how much the Minister
has allocated of the remaining 10% remaining tonnage on appeal. In any event, that
percentage is set aside for appeals, and not for rev iew matters. This Court is not in a
position to ascertain the numbers of competing rights holders already in that space
and/or could still be accommodated, as well as the percentage of the TAC applicable
to them.

[70] The Court, in its current stance, cannot replace the Minister's decision, as
doing so would constitute an overreach of the powers of the court . The fact that
Jaffas Bay litigated the matter to this level suggest that allocation of fishing rights is a
complicated factual, technical , and legal determination , that requires a certain level
of expertise. The Court lacks the advantage of such expertise, as previously
mentioned.

[71] In fact, it would be beneficial for the matter to be remitted to the Minister for a
fresh reconsideration of the appeal, especially given that there is a new Minister who
will apply his mind for the first time in this appeal. The respondents in this application
submitted that given that there are about 22 matters that are in the process of
reconsideration on appeal in the Small Pelagic Sector the Minister would have
completed the process by 29 August 2025. Again, this Court is not aware as to how
has this process has unfolded.

[72] For these reasons, the review succeeds and the following order is granted.

72.1 The decision taken by Minister Creecy in terms of Section 80 of the
Marine Living Resources Act 18 of 1998 dated 18 December 2023
and/or on “The General Published reasons for the Decisions on Appeal
in the Small Pelagic (Sardine) Sector” on 15 January 2024 to refuse

in the Small Pelagic (Sardine) Sector” on 15 January 2024 to refuse
Jaffas Bay a commercial sardine fishing right is reviewed and set aside.

72.2 The matter is remitted back to the Minister George or the relevant
Minister of the Department at the time to reconsider the appeal by Jaffas
Bay on whether inter alia:
(a) Jaffas Bay was correctly awarded a n accurate score and evaluation
by the DA, regard being had to Jaffas Bay’s Corporate Social Investment
(CSI) contributions:
(b) Jaffas Bay was correctly awarded a total score of 49.18% less than
the minimum requirement of 50% or whether it achieved above the
minimum threshold of 50%;
(c) Based on the total score by the DA it was just, fair and equitable to
refuse Jaffas Baya commercial sardine fishing right.

72.3 The respondents are ordered to pay the costs of this application ,
including costs of an application to file further affidavits on Scale B.


___________________________
B.P. MANTAME
JUDGE OF THE HIGH COURT


APPEARANCES

For the Applicant: Adv Shaheen Moolla
Instructed by: TSP Inc.

For the Respondent: Adv Nasreen Bawa SC
Instructed by: State Attorney