THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
Case no: 85/04
In the matter between:
THE MINISTER OF ENVIRONMENTAL
AFFAIRS AND TOURISM 1 st APPELLANT
THE DEPUTY DIRECTOR-GENERAL:
DEPARTMENT OF ENVIRONMENTAL
AFFAIRS AND TOURISM 2nd APPELLANT
and
SCENEMATIC FOURTEEN (PTY) LTD RESPONDENT
______________________________________________________________
Coram : SCOTT, FARLAM, CAMERON, LEWIS
J JA et COMRIE AJA
Date of hearing : 15 FEBRUARY 2005
Date of delivery : 22 MARCH 2005
Summary: Allocation of fishing r ights in ter ms of s 18( 1) of Act 1 8 of 1998 i n
hake longline sector – Procedure adopted b y Minister’s delegate procedurall y
fair, did not preclude him from exercising his discretion and did n ot involve an
abdication of his power. Procee dings on a ppeal in te rms of s 80 law ful an d
procedurally fair – no justification for referral for oral evidence.
_____________________________________________________
JUDGMENT
_____________________________________________________
SCOTT JA/…..
2
SCOTT JA:
[1] In terms of s 18(1) of the Marine Living Resources Act 18 of
1998 (‘the Act’) no person may undertake commercial fishing or
subsistence fishing unless a righ t to do so has been granted to
such person by the first appellant (‘the Minister’).The object, of
course, is to manage the exploitati on of the fishing stocks and to
prevent their destruction. This involv es, in the first place, research
being carried out by scientists in the Department of Environmental
Affairs and Tourism (‘the D epartment’) and other research
organisations. The resource forming t he subject matter of each of
the 22 commercial fishing sectors in the indu stry is monitored on a
regular basis. At the opening of each fishing season an estimate is
made of the stock size, or ‘biomass’, together with a
recommendation to the Minister as to the ‘Total Allowable Catch’
(‘TAC’) which the resource can su stain over the ensuing period.
Based on the quantum so determin ed fishing rights in respect of
each sector are then awarded to succ essful applicants. Given the
large number of applicants in respec t of each sector, the limit
imposed by the predetermined TA C and the need to allocate
fishing rights in quantities that are commercially viable, it is
inevitable that many applicants are disappointed. The unfortunate
consequence has been a flood of revi ew applications in the past,
3
which the Department complains has had the effect of disrupting
commercial fishing in some sectors. To add to the difficulties
associated with the allocation of fishing rights, there has also been
the need, imposed by the Act, to take steps to transform the
industry which until recent times was dominated by companies that
historically were established, owned and managed by white
people. Section 18(5) of the Act provides –
‘In granting any right referred to in subsec tion (1), the Minister shall, in order
to achieve the objectives c ontemplated in section 2, have particular regard to
the need to permit new entrants, parti cularly those from historically
disadvantaged sectors of society.’
The objectives identified in s 2 include –
‘(j) the need to restructure the fishi ng industry to address historical
imbalances and to achieve equity within all branches of the
fishing industry.’
[2] The present appeal concerns the allocation of commercial
fishing rights in the hake longline sector for the 2002 - 2005 fishing
season. Four of the 22 fishing sect ors relate to hake, one of which
is the longline sector. Because of the large number of applications
that were anticipated in the 22 sectors – in the event there were
over 5000 – the Minister, acting in terms of s 79 of the Act,
delegated his power to grant fishin g rights in some of the sectors
to Dr Mayekiso, the Chief Direct or, and in others, including the
4
hake longline sector, to Mr Horst Kleinschmidt, the Deputy
Director General (‘the DDG’) who is the second appellant. The
TAC in the hake longline sector was determined at 10 840 tons. A
little more than 9 per cent, ie 1015 tons, was set aside for appeals
leaving 9825 tons for immediate allocation to successful
applicants. There were 333 applicant s; 115 were successful. Of
the latter, 40 were so-called ‘ 2001 rights holders’. The other 75
were so-called ‘potential new entr ants’. (The distinction is the
subject matter of one of the principal issues in the appeal.) Some
204 of the disappointed applicants lodged an appeal to the
Minister in terms of s 80 of the Act. Three were 2001 rights
holders. The remainder were new entrants. Ultimately some 26
were successful. These included the three 2001 rights holders.
The respondent was not one of the successful applicants. Its
application in terms of s 18(1) fail ed, as did its appeal to the
Minister.
[3] The respondent in due course instituted motion proceedings
in the High Court, Cape Town, in which it sought orders reviewing
and setting aside all of the a llocations of the DDG and the
Minister’s decisions on appeal in the hake longline sector. It also
sought an order directing the appellants to re-allocate the
commercial fishing rights in the sector for the 2002 - 2005 season
5
before a date to be determined. The appellants were cited as the
first and second respondents a nd the 141 successful applicants
were cited as the remaining respo ndents. In the course of the
hearing in the court a quo the respondent withdrew its application
in so far as it concerned the al locations made to the successful
applicants but persisted in its application against the Minister and
the DDG, contending that their decisions were fatally flawed and
reviewable. In the result, the court a quo set aside the decision of
the DDG not to grant commercial fishing rights in the hake longline
sector to the respondent. It made no order regarding the Minister’s
decision on appeal, holding that it was unnecessary to do so. It
also found it unnecessary in the circumstances to consider the
respondent’s application to have cert ain matters referred for oral
evidence in terms of Uniform Rule 6(5)( g) . I n t h i s c o u r t w e w e r e
informed by counsel that a certain quantity of the TAC had been
held back for contingencies and that for this reason it was
unnecessary for the court a quo to make an order regarding the re-
allocation of hake longline fishing rights. It simply referred the
respondent’s application back to the DDG for reconsideration.
[4] Before turning to the allocations in respect of the 2002 - 2005
season, it is necessary by way of background to refer briefly to
certain earlier events. Until 2002 commercial fishing rights were
6
granted annually. With effect from that year a policy was adopted
of allocating what were styled ‘medium-term fishing rights’ which
were for a period not exceeding four years. The rationale was to
enhance the opportunity for investment and to promote stability.
The previous allocations in the hake longline sector were for the
2000 fishing season. This was t he first occasion on which the
respondent had applied for fishing rights in the sector. There were
initially 43 successful applicants. The respondent and 130 others
whose applications had failed thereupon successfully appealed in
terms of s 80 to the DDG, acti ng on delegated authority. Their
success, which was published on 19 September 2000, was short-
lived. On 3 November and 6 November 2000 separate review
applications were launched in the Cape Town High Court resulting
in the allocations on appeal being set aside on 20 November 2000.
On the same day an applicant in one of the review applications
sought an order directing the State respondents to effect a re-
allocation in terms of the appeal process within three weeks. The
application was opposed by the D epartment. The DDG explained
in an answering affidavit that it was impossible to complete the
task within three weeks or to say when it could be completed.
However, he gave the undertaking that the respondents would
endeavour ‘to deal with the appeals as expeditiously as possible’.
7
What followed was anything but expeditious. The DDG himself
could not reconsider the appeals. This was because various
allegations of impropriety had been made against him in the review
proceedings. It was decided to appoint a regional magistrate from
Pretoria to deal with the appeals. Presumably this was to place the
independence of the decision- maker beyond doubt. But the
magistrate first had to be seconded to the Department so that the
requisite powers could be delegated to him. Apparently this all took
time. Eventually he was appropriately briefed. After several weeks
he produced a report containing re commendations to the Minister.
The report was evidently flawed. On 29 May 2001 it was rejected
by the Minister on grounds that were not impugned. By this time
the 2000 season had long since expi red, as had much of the 2001
season. The allocation proce ss for the 2002 - 2005 season was
also imminent and given the time it would take to go through the
whole appeal process yet again, it seems that the matter of the
appeal was simply abandoned.
[5] In the meantime, no applications for commercial fishing
rights in the sector had been calle d for in respect of the 2001
fishing season. Instead the Minister, acting in terms of s 18(6A)( a),
extended the rights of the 43 su ccessful applicants to include the
8
2001 season. These are the applicants who were referred to by
the parties as ‘the 2001 rights holders’.
[6] Finally, it is necessary to mention that the respondent is the
successor to Elandia Visserye BK which was formed in 1989 to
operate a business founded by two brothers by the name of Van
der Westhuizen in 1951. The business involved the catching and
processing of West Coast rock lobster. More recently and pursuant
to what was called a ‘transformation scheme’, the respondent and
a sister company were establish ed with a somewhat complicated
share structure. It is enough to sa y that the overall effect of the
scheme was to confer on an employees’ trust a 60 per cent
interest in the existing or future fishing rights of the enterprise, but
a limited interest of something in the region of six per cent in the
hard assets of the enterprise, these being owned by the sister
company. There were also provisions in the trust deed which in
practice made it difficult for employees to receive the benefits from
the trust on leaving from their employment.
[7] Against this background I come to the process by which
commercial fishing rights were allocated for the 2002 - 2005 fishing
season. In terms of s 18(1) of the Act an application for any right
referred to in s 18(1) is to be s ubmitted to the Minister in a manner
determined by him or her. This the Minister did by way of a
9
General Notice (1771 of 2001) published in the Government
Gazette of 27 July 2001. It cont ained, first, an invitation to the
public to apply for fishing rights in all 22 sectors for the 2002 -
2005 season; second, a specimen application form including
instructions for the completion of the form; and third, policy
guidelines aimed at assisting prospective applicants in the
preparation of their application (‘the guidelines’). The latter
document is important. A brief summary is necessary. In the
introduction the reader is informed inter alia that a verification unit
had been appointed to verify information contained in the
applications and that a panel of specialists would be appointed to
assist in the assessment and allocation process. Under the
heading ‘Evaluation of Applications’ it is said that applications will
be evaluated in accordance with th e objectives and principles set
out in s 2 of the Act ‘and with regard to the policy guidelines set out
below’. The next sentence reads –
‘No precedence, ranking or weighting is implied by t he order or content of the
policy guidelines.’
There was some debate in this court as to its meaning. In my view
what was intended was that nothing was to be made of the order in
which the paragraphs following (inc luding their contents) were
10
listed. Four numbered paragraphs follow, each with a heading. The
headings read –
‘1. Business plan, fishing plan or ope rational and investment strategy
2. Equity, transformation, restructuring and empowerment
3. Impact on the resources, env ironment and the fishing industry
4. New Entrants’.
In view of some of the grounds of attack directed at the DDG’s
decision, it is necessary to quot e certain relevant passages. In
paragraph 1 the following is said:
‘Cognisance has been taken of the fact that substantial investments have
been made by many of the current right s holders. This factor, together with
the need to create an environment t hat will promote further long-term
investment in human and material res ources are important considerations.
Historical involvements, proof of investment and past performance are
therefore important factors.’
Paragraph 2 commences:
‘The transformation of South Africa from an unequal society rooted in
discrimination and disparity to a constitutional democracy founded upon
freedom, dignity and equality po ses particularly profound challenges for the
fishing industry. It is here that there are acute imbalances in personal wealth,
infrastructure and access to financial and other resources. While it is
acknowledged that transformation or rest ructuring of the fishing industry
cannot be achieved overnight, it nevertheless is a primary objective to build a
11
fishing industry that in its owne rship and management, broadly reflects the
demographics of South Africa today.’
In paragraph 3 the hake longlin e and handline sectors are
identified as being particularly suitable for the promotion of
historically disadvantaged individuals, presumably because these
sectors are less capital intens ive than the others . In paragraph 4
the following is said:
‘Regard will be given to accommodating new entrants, particularly those from
historically disadvantaged communities, in order to meet the requirement of
restructuring the fishing industry to address historical imbalances and to
achieve equity within all branches of the fishing industry.’
I shall have more to say about t he guidelines later. It is enough at
this stage to observe that it would have been clear to prospective
applicants that in allocating fishing rights regard would be had inter
alia to two conflicting considerations; the one being the need to
accommodate new entrants, particularly those from historically
disadvantaged communities, the other being the need to recognise
and take cognisance of the invest ments and past performances of
current rights holders.
[8] Both a verification unit and an advisory committee were
established to assist the decision -maker, in this case the DDG, in
processing the applications (which had to be submitted by 13
September 2001). The function of the verification unit was
12
essentially to scrutinize each application to determine whether it
was properly lodged and complied wi th the formal requirements.
The advisory committee comprised persons with legal, accounting
and financial expertise. Its function was to assist the decision-
maker in evaluating the applications. In the interests of
independence the members of both the verification unit and the
advisory committee were appointed by what was described as ‘a
public tender process’.
[9] The applications were divided into two groups: 2001 rights
holders and potential new entrants. Each group was evaluated in
the first instance by the advisory committee in accordance with a
detailed set of written instructions and guidelines devised or
approved by the DDG. This invo lved the allocation of points
determined by a closely circum scribed method for each of a
number of criteria. The total number of points that could be
awarded for each criterion was determined by the DDG. In the
case of the 2001 rights holders (i n the hake longline sector) the
criteria were:
‘1. Involvement and investment in the industry, including business
plan, fishing plan or operational and investment strategy
2. Past performance
3. Strategies in respect of by-catch and offal utilisation
13
4. Compliance
5. Transformation
6. Paper quotas’.
(The reference to paper quotas is a reference to applications by
persons intending to acquire rights in order to sell or transfer them.
This criterion involved the award of a negative mark.) The
criteria in the case of the new entrants were:
‘(1) Degree of knowledge, involv ement and commitment to invest in the
industry, including business plan, fishing plan or operational and
investment strategy
(2) HDP [historically disadvantaged person] status
(3) Strategies for bycatch and offal utilisation
(4) Business acumen, financial capacit y and capacity to catch, process
and market the resource
(5) Compliance if applicable
(6) Paper quotas’.
Mr Papier, the chairman of the advisory committee, explained the
procedure adopted. Each application was independently examined
by two members of the committee to achieve consistency. In many
cases the applications would be flagged with annotated notes in
order to draw some specific aspect to the attention of the DDG.
Significantly, the written instruc tions emphasised that the criteria
and the weighting (the scoring) were ultimately no more than
14
guides in the assessment of the applications ‘and if [the criteria
and weighting] do not apply appropri ately, the committee member
must record the difficulty on the template so that it can be brought
to the attention of the decisi on-maker’. The DDG, moreover, spent
many hours every day at the o ffices where the advisory committee
worked in order to satisfy himself that the evaluations were being
carried out in accordance with his instructions.
[10] On these occasions and during the initial briefings the
matters that were required to be brought to his attention were
identified and discussed at length. In his answering affidavit the
DDG stressed that the advisory committee was well aware of the
limits within which it was required to operate, particul arly as those
issues had been raised and discu ssed many times by December
2001 when the hake longline sector applications came to be
considered. The Committee was un aware of what the threshold
mark for acceptance would be.
[11] Once an application had been assessed, the information
recorded on what in effect was a score-sheet was transferred to
one of two sets of spreadsheets, there being one set for each
group. The spreadsheets had horiz ontal columns – one for each
application – which were divided into blocks in which the scores for
each particular criterion were entered together with, in some
15
instances, a brief comment. At the end of each horizontal column
there were two blocks to be filled in by the decision-maker (the
DDG in the case of the hake longline sector) under the headings –
‘Does the delegated authority grant the applicants rights in terms of s 18 of
the Act?
Yes/No’
and
‘Comments of the delegated authority’.
[12] Once the applications ha d been evaluated by the advisory
committee they were delivered per sector to the DDG. They were
accompanied by the score-sheets and the consolidated
spreadsheets reflecting the informat ion on the former as well as
checklists. As previously indicated, many of the applications were
marked and flagged to draw his attention to specific aspects. The
DDG explained that in each case he began by studying the
consolidated spreadsheet. Where an aspect had been identified
for his attention he considered t he issue regardless of the score.
He also randomly checked the applic ations. In many instances the
applications were manifestly good or manifestly poor. He tended to
spend less time on these and by the very nature of the exercise
devoted most of his time and attention to the applications that fell
16
in the middle group, ie those that were within a point or two on
either side of success or failure. He said that in some cases he
agreed with the assessments of the advisory committee and in
others not. He denied that there was a rigid and inflexible
adherence to the scoring syst em. Where appropriate he made
adjustments to accommodate particul ar cases. He insisted that in
the final analysis the decision wheth er or not to grant fishing rights
in the case of each and every applicant was his. Once having
taken the decision he recorded it on the consolidated spreadsheet.
Where he considered it appropri ate he made comments in the
space provided.
[13] The points system for potential new entrants differed in
various respects from that for 2001 rights holders. Of significance
is that in the case of the former, 50 per cent of the points that could
be scored were allocated to transformation and employment equity
criteria, whereas in the case of the latter only 36 per cent of the
points that could be sco red were allocated to those criteria. The
effect of this weighting was that an applicant who did not score
particularly well in the transform ation and employment equity
criteria had a far better prospect of being granted fishing rights if
placed in the 2001 rights holders category than if placed in the new
entrants category.
17
[14] It was this differentiation in scoring that ultimately formed the
basis of the respondent’s primary attack on the DDG’s decision not
to grant it fishing rights in the hake longline sector. It contended
that by reason of the Minister’s failure to dispose of the appeals in
the allocation of fishing rights in that sector for the 2000 season
and the extension of the rights of those who were successful to the
2001 season, the streaming of applicants into 2001 rights hol ders
and new entrants for the 2002 - 2005 season was both
unreasonable within the meaning of s 6(2)(h) of the Promotion of
Administrative Justice Act 3 of 2000 (‘PAJA’) and procedurally
unfair within the meaning of s 6(2)( c) of that Act. I quote s 6(2) in
its entirety:
‘6(2) A court or tribunal ha s the power to judicially review an administrative
action if –
(a) the administrator who took it –
(i) was not authorised to do so by the empowering provision;
(ii) act ed under a delegation of power which was not authorised by
the empowering provision; or
(iii) was biased or reasonably suspected of bias;
(b) a mandatory and material procedure or condition prescribed by an
empowering provision was not complied with;
18
(c) the action was procedurally unfair;
(d) the action was materially influenced by an error of law;
(e) the action was taken –
(i) for a reason not authorised by the empowering provision;
(ii) for an ulterior purpose or motive;
(iii) because irrelevant c onsiderations were taken into account or
relevant considerations were not considered;
(iv) because of the unauthor ised or unwarranted dictates of another
person or body;
(v) in bad faith; or
(vi) arbi trarily or capriciously;
(f) the action itself –
(i) contravenes a law or is not authorised by the empowering
provision; or
(ii) is not rationally connected to –
(aa) the purpose for which it was taken;
(bb) the purpose of the em powering provision;
(cc) the information before the administrator; or
(dd) the reasons given for it by the administrator;
19
(g) the action concerned consists of a failure to take a decision;
(h) the exercise of the power or the performance of the function authorised
by the empowering provision, in pursuance of which the administrative
action was purportedly taken, is so unreasonable that no reasonable
person could have so exercised t he power or performed the function;
or
(i) the action is otherwise unconstitutional or unlawful.’
[15] The object of streaming the applications into two groups and
affording greater weight to trans formation in the case of new
entrants was to give effect to the statutory requirements referred to
in paragraph [1] above. Possibly the objectives of the Act could
have been achieved by adopting some other and notionally better
method than streaming. But that is not the test. The inquiry is
whether the process of streaming fe ll foul of one or more of the
grounds of review set out in s 6(2) of PAJA. The grounds upon
which reliance appears to have been placed were twofold;
unreasonableness within the meaning of s 6(2)( h) in view of the
circumstances relating to the 2000 appeals ( cf Bato Star Fishing
(Pty) Ltd v Minister of Environmental Affairs 2004 (4) SA 490 (CC)
para 45), and procedural unfairne ss within the meaning of s
6(2)(c). In my view, neither was established. The rationale
underlying the streaming and the weighting in favour of
20
transformation in the case of new entrants was obviously to
accommodate the two conflicting cons iderations referred to in the
guidelines, namely the need to take cognisance of past investment
and performance in the industry on the one hand and the need to
admit new entrants, particularly those from previously
disadvantaged communities, on the other. The decision to stream
with a bias in favour of transformat ion criteria in the case of new
entrants would seem in the circum stances to be both a logical and
fair way of going about an undeniably difficult task. However, the
gravamen of the respondent’s complaint was that had the appeal
process in respect of the 2000 fishing season not been abandoned
in all probability the respondent would have been a 2001 rights
holder and in that event its applic ation in the 2002 - 2005 season
would have succeeded. It was a ccordingly argued that given what
had gone before, provision should have been made for a third
group comprising the ‘formerly succe ssful appellants’ in the 2000
allocations. But the simple answer is that there would be no
rational basis for making the distinction contended for. In other
words, there would be no proper basis for affording some
preference or advantage to applic ants who had not previously
participated in the sector but who happened to have been the
victims of some prior administrative blunder. (Cf Logbro Properties
21
CC v Bedderson NO 2003 (2) SA 460 (SCA) paras 16 -22.) The
position would, of course, have been different if as a result of the
respondent’s success on appeal in 2000, although shortlived, it
had engaged in hake longline fishing and had made investments in
relation to that sector. In that event there would have been good
reason for distinguishing it from other new entrants. But that was
not the case. Whatever the reason, the respondent was a new
entrant like the other new entran ts and it was not unreasonably
treated as such.
[16] A further argument advanc ed on behalf of the respondent
was that the effect of streami ng was, as counsel put it, to
‘straitjacket’ the DDG’s discretion. In other words, it presupposed,
said counsel, that every application would fall within one or other of
the two groups and that this w ould not necessarily have been
appropriate. But, as I have sought to show, the system was
sufficiently flexible to accomm odate such a situation. Whenever
the criteria and weighting in any particular case was inappropriate
it was brought to the attention of the decision-maker who regarded
himself as not bound by the scoring in terms of the prescribed
method. So, for example, had the respondent actually engaged in
hake longline fishing prior to the a llocation in its favour being set
22
aside on review, due weight would ha ve been afforded to this fact
in the determination of its applic ation. But as I have said, nothing
like this was shown to have occurred and no facts were advanced
to justify the respondent being tr eated as anything other than a
new entrant.
[17] A related contention, and one that found favour with the court
a quo, was that the adoption of a se t of criteria for each group and
a system of scoring for the assessment of the criteria had the
effect of precluding the decisi on-maker from properly exercising
his discretion. Counsel for the res pondent relied in this regard on s
6(2)(c), (d) and (f) of PAJA and a number of decisions in support of
the proposition that while a functionary may have regard for
guidance to a predetermined rule of which it approves, it would not
be exercising its discretion if it treated the rule as a hard and fast
one to be applied as a matter of course in every case. (See
Johannesburg Town Council v Norman Anstey & Co 1928 AD 335
at 340; Computer Investors Group Inc v Minister of Finance 1979
(1) SA 879 (T) at 898D-E; Hofmeyr v Minister of Justice 1992 (3)
108 (C) at 117F-H.) The position mu st necessarily be somewhat
different where the decisio n-maker is faced with a large volume of
competing applications and the need for consistency becomes an
23
imperative requirement for fairness. The Bato Star Fishing case,
supra, was concerned with the same allocation process as the
present, but in relation to the quan tum of the quotas granted in the
hake deep sea trawling sector. After quoting a passage in the
judgment of Human J in Computer Investors Group v Minister of
Finance, supra, at 898C-E in which the learned judge reformulated
the proposition referred to above in relation to the adherence to
hard and fast rules, O’ Regan J said the following (at para 57):
‘In circumstances such as these, mo reover, where the decision-maker is
seeking to evaluate a large number of appl ications against similar criteria, the
dictum in the Computer Investors Group case [at 898C-E] is not relevant. In
cases such as the present, it will be permissible, and i ndeed will often be
desirable, for administrative decisi on-makers to adopt and apply general
criteria evenly to each application in order to ensure that the decision
subsequently made is fair and consistent.’
As previously indicated, a feature of the method adopted was in
any event the provision for adjustment in circumstances where the
criteria and weighting were for an y reason inappropriate. It follows
that in my view the adoption of a set of criteria and a system of
scoring for their assessment cannot be faulted. On the contrary,
the method strikes me as one which was objective, rational and
practical in the circumstances.
24
[18] A further point made by the respondent was that the
applicants for fishing rights ought to have been told in advance of
the procedure to be adopted involving as it did the streaming of the
applications into two groups and the use of a scoring system
applied to predetermined cr iteria. It was argued that the failure on
the part of the DDG properly to advise applicants rendered the
allocation process procedurally unfair. Section 3(2)( a) of PAJA
expressly provides that what is procedurally fair depends on the
circumstances of each case. In the present case the applicants for
fishing rights were required to comp lete a detailed application form
which indicated precisely what information was required. It was
accompanied by instructions on how to complete the form and
guidelines setting out in broad t erms the considerations which the
decision-maker regarded as material for the purpose of making the
allocations. An applicant woul d therefore have been fully aware of
the information that was required and on which the allocations
were to be made. In these circumstances, the decision-maker, in
my view, was not required to expl ain in advance exactly how the
applications would be processed. As Baxter Administrative Law at
548 puts it: ‘The administration cannot be expected to share with
the individual every phase of it s final decision-making process.’
This point, too, must fail.
25
[19] Finally, as far as the decision in terms of s 18(1) of the Act is
concerned, counsel for the respondent argued that the procedure
adopted involved an impermissible sub-delegation of the DDG’s
discretion to the advisory committee. This was the second of the
two grounds relied upon by the court a quo to set aside the DDG’s
decision. The DDG was himself a delegate of the Minister in terms
of s 79(1)(a) of the Act. Section 79(2) reads:
‘The Director-General may delegate any pow er conferred upon him or her in
terms of this Act to an officer in the Department upon the conditions that he or
she deems fit.’
It was accordingly common cause that the Act did not allow the
DDG to sub-delegate his discret ionary powers to the advisory
committee which, it will be reca lled, comprised persons from
outside the department. Counsel for the respondent referred to the
modus operandi of the advisory committee and pointed out that the
scoring in the case of at least some of the pre-determined criteria
involved value judgments based on facts of which the DDG would
have been unaware unless he read the application itself. This, he
said, amounted to more than givi ng advice on facts placed before
the DDG; it amounted to the exercise of a discretion. Similarly he
pointed to the decisions taken by members of the advisory
26
committee as to when particular aspe cts of an application were to
be brought to the attention of the DDG. These decisions, too, he
argued, amounted to the exercise of a discretion based on facts
which would have been unknown to the DDG unless he read the
application. The grounds of rev iew relied upon were those
contained in s 6(2)( a)(i) and (ii) and ( f)(i) of PAJA (quoted in para
14 above).
[20] A functionary in whom a discretiona ry power is vested must
himself exercise that power in the absence of the right to delegate.
In Hofmeyr v Minister of Justice 1992 (3) SA 108 (C) at 117F-G
King J formulated the rule thus:
‘It is well established that a discretionary power vested in one official must be
exercised by that official (or his lawful delegate) and that, although where
appropriate he may consult others and obtai n their advice, he must exercise
his own discretion and not abdicate it in favour of someone else; he must not,
in the words of Baxter Administrative Law (at 443), “pass the buck” or act
under the dictation of another and, if he does, th e decision which flows
therefrom is unlawful and a nullity.’
As to the reliance on the advice of another, the functionary would
at the least have to be aware of the grounds on which that advice
was given. (See Vries v Du Plessis NO 1967 (4) SA 469 (SWA)
481F-G.) But it does not follow that a functionary such as the DDG
27
in the present case would have to read every word of every
application and may not rely on the assistance of others. Indeed,
given the circumstances, Parliam ent could hardly have intended
otherwise. What the functionary may not do, of course, is adopt the
role of a rubber stamp and so rely on the advice of others that it
cannot be said that it was he who exercised the power. If in
making a decision he were simply to rely on the advi ce of another
without knowing the grounds on which that advice was given the
decision would clearly not be his. But, by the same token, merely
because he was not acquainted wi th every fact on which the
advice was based would not mean that he would have failed
properly to exercise his discretion. This would be particularly so if
that advice was merely one of the factors on which he relied to
arrive at his ultimate decision. As Baxter Administrative Law at 436
says: ‘Where the delegation is very limited and the delegator
retains full control over the final decision the delegation is likely to
be intra vires’. Whether therefore there has been an abdication of
the discretionary power vested in the functionary is ultimately a
question that must be decided on the facts of each case. The
same must apply to the enquiry whether there was a delegation
within the meaning of s 79(2) of the Act and s 6(2)(a)(ii) of PAJA.
28
[21] The procedure adopted to eval uate the applications and
ultimately decide which of the applicants were to be granted fishing
rights has been described above. As observed by Schutz JA in
Minister of Environmental Affairs and Tourism v Phambili Fisheries
(Pty) Ltd 2003 (6) SA 407 (SCA) para 5 that procedure was ‘a
detailed and complex one’. Significantly, it was devised by the
DDG, or at the least with his concurrence. The all important criteria
and the number of points allotted to each (the weighting) were
determined by the DDG, as was the manner in which those points
were to be awarded. This was clos ely circumscribed by way of
guidelines, written instructions and constant consultations with the
advisory committee. Each application was scored by two members
of the committee acting independently of each other to ensure
consistency. In these circumstances, the latitude afforded to the
committee in determining the marks for each criterion was minimal.
In many cases the DDG himself checked the scoring, either at
random regardless of the score, or because some aspect of the
application was specific ally drawn to his att ention, or because the
sum of the marks aw arded were within a mark or two of the
threshold mark for the granting of th e application. That mark, as I
have said, was unknown to the advisory committee.
29
[22] In passing it is necessary to mention that there was a dispute
as to whether the respondent’s application was one of those
personally examined by the DDG. T he reason for this was that the
latter’s comment in the appropriate column on the spreadsheet
referred to advice which he subseque ntly and mistakenly identified
as relating to the respondent’s appeal in respect of rock lobster
fishing rights. However, for the purpose of this judgment I shall
assume in favour of the respondent that its application was not one
of those personally examined by the DDG.
[23] As previously indicated, the DDG when finally deciding
whether or not to grant fishing right s to an applicant had particular
regard to those applications which were within a mark or two of the
threshold mark. The respondent’s score was well below that mark.
Given the minimal latitude afford ed to the advisory committee in
following the ‘detailed and complex’ procedure, both devised and
closely supervised by the DDG, the fa ilure on the part of the latter
to examine the application itse lf rather than the spreadsheet
summary would not in my view amount to an abdication of the
DDG’s discretionary power in fa vour of the advisory committee.
[24] The further complaint was that the decision whether to draw
any aspect to the attention of the DDG was left in the hands of the
30
advisory committee. This complaint, however, ignores the
evidence that in the course of initial briefings and while the work
was in progress the DDG identifie d and instructed the committee
as to the matters that were to be brought to his attention so that,
according to the DDG, it was fully aware of the limits within which it
was required to operate. This aspect of the committee’s work was
similarly, therefore, closely circumscribed and indeed monitored by
the DDG who in a large number of instances examined the
applications as well as the spreadsh eet summary. It follows that in
my view this ground of review must similarly fail and that the court
a quo erred in upholding it. I should add, however, that having
regard to the conclusion to which I have come regarding the
Minister’s decision on appeal, the re is a further reason why this
ground must fail. I shall refer to it later.
[25] I turn then to the appeal to t he Minister in terms of s 80 of the
Act. What was envisaged was clearly an appeal in the wide sense
involving as it did a complete rehearing and a fresh determination
on the merits of the application. (Cf Tikly v Johannes NO 1963 (2)
SA (T) 588 at 590F-591A.) Indeed, the respondent used the
opportunity to place a large amount of further evidence and
information before the Minister.
31
[26] The initial attack on the Mi nister’s decision not to uphold the
appeal related solely to the questi on of streaming and the bias in
favour of historically disadv antaged persons in the new entrants
category. It was contended that:
(i) The Minister was insufficiently apprised of the circumstances
relating to the ‘formerly successful appellants’ in the allocations for
the 2000 fishing season.
(ii) He perpetuated the stre aming process resulting in the
respondent being categorised as a new entrant, notwithstanding its
success on appeal in 2000.
(iii) He failed to apply his mind to the fact that there was a bias
against applicants in the new ent rants category who were not from
historically disadvantaged communities.
In his answering affidavit the Mini ster refuted the contention that
he had failed to apply his mind in any of the respects alleged and
endorsed the streaming and the bias in favour of historically
disadvantaged persons. For the reasons previously advanced the
grounds of review based on the streaming process and the
favouring of historically disadvantaged applicants must similarly
32
fail. Nothing further need theref ore be said of the grounds of
review on which the initial attack was based.
[27] During the course of argument in the court a quo the
respondent sought and was granted l eave to introduce additional
evidence pertaining to the treatm ent of the appeals. The evidence
was to the effect that the reports of the DDG in respect of each
appeal in the sector, as required by Regulation 5(3) promulgated
under the Act, had been signed by the DDG on 8 and 9 August
2002 while the respondent’s appea l had been dismissed on 12
August 2002. As there were so me 204 appeals (of which 173
concerned the merits) it was contended that the Minister would not
have had sufficient time to apply his mind to each appeal in the
manner described in his answering affidavit. This elicited a
response from the Minister and the latter’s legal adviser, Mr
Mohammed Moolla, who in answering affidavits said that the latter
had begun working on the appeals as early as 3 July 2002,
analysing and collating them in ord er to assist the Minister. The
Minister explained that between 3 July and 9 August 2002 he had
had extensive discussions with the officials in his Department,
including Moolla, regarding the procedure adopted by the DDG
and such matters as the rational e for distinguishing between 2001
33
rights holders and new entrants and the issue of the successful
appellants in the allocations for the season of 2000. Both
deponents described how on 9 and 12 August 2002 they had
spent a total of 15 hours toget her during which each appeal was
discussed and disposed of by the Mi nister. The Minister reiterated
that he had applied his mind to each and every appeal and
confirmed the contents of his earlier affidavit in which he listed the
documents he had before him when taking each decision. He also
gave his reasons for rejecting the respondent’s appeal, but these
need not be considered.
[28] In this court it was argued that the facts set out above raised
various questions concerning the appeal process which warranted
an order that the matter be referred for oral evidence and in
particular the cross-examination of the Minister, the DDG and
Moolla. These questions were pri ncipally whether the Minister
could have disposed of the appeals in the manner he says he did
in 15 hours; whether Moolla, who had no authority to take part in
the decision of the appeals, woul d have influenced the Minister;
and whether it was possible that Moolla, and not the DDG, had
drawn up the Regulation 5(3) report s given that the former had
34
been working on the appeals sinc e 3 July 2002 and the reports
were dated 8 and 9 August 2002.
[29] In Khumalo v Director-General of Co-operation and
Development 1991 (1) SA 158 (A) at 167G-168A the court cited
with approval the conclusions of Kumleben J in Moosa Bros &
Sons (Pty) Ltd v Rajah 1975 (4) SA (D) at 93E-H regarding the
approach to be adopted in applicati ons to hear oral evidence in
terms of Rule 6(5)(g). The passage is worthy of repetition.
‘(a) As a matter of interpretation, there is nothing in th e language of Rule
6(5)( g) which restricts the discretionary power of the Court to order the
cross-examination of a deponent to ca ses in which a dispute of fact is
shown to exist.
(b) The illustrations of “genuine” di sputes of fact given in the Room Hire
case at 1163 do not – and did not purport to – set out the
circumstances in which cross-examination under the relevant
Transvaal Rule of Cour t could be authorised. They a fortiori do not
determine the circumstances in whic h such relief should be granted in
terms of the pr esent Rule 6(5)(g).
(c) Without attempting to lay down any precise rule, which may have the
effect of limiting the wide discretion implicit in this Rule, in my view oral
evidence in one or other form envisaged by the Rule should be allowed
35
if there are reasona ble grounds for doubting the correctness of the
allegations concerned.
(d) In reaching a decision in this regard, facts peculiarly within the
knowledge of an applic ant, which for that re ason cannot be directly
contradicted or refuted by the opposite party, are to be carefully
scrutinised.’
See also Roman Catholic Church (Klerksdorp Diocese) v Southern
Life Association Ltd 1992 (2) SA 807 (A) at 816H-I.
[30] In the present case the facts in issue are, of course,
peculiarly within the knowledge of the Minister and Moolla, and
accordingly require careful scrutiny. But, in the absence of any
other reason and none has been advanced, what would have to be
established is the existence of reasonable grounds for doubting
the correctness of the allegati ons concerned before a referral for
oral evidence would be justified. As emphasised by counsel for the
appellant this in effect means the existence of reasonable grounds
for disbelieving the Minister and Moolla.
[31] In my view no such grounds have been shown to exist. It is
true that on 9 and 12 August the appeals were disposed of in a
relatively short period of time. But it is apparent that many of the
salient points that arose in the appeals had been the subject of
36
extensive discussions between the Minister and officials in his
department in the preceding weeks. Moreover, as observed by the
Minister, by the time the hake longline sector appeals came up he
had already dealt with about a thousand appeals and one can
reasonably conclude that by then he would have been extremely
familiar with the process.
[32] As to the possible ‘influence’ of Moolla, there can be no
objection to Moolla having taken the Minister through the papers
and drawn his attention to salient points; nor can there be an
objection to the Minister having discussed issues with Moolla,
provided only that the decision in each case was that of the
Minister. Nothing has been advanced for supposing that Moolla did
any more than this and any sugge stion to the contrary is pure
supposition. The third question relates to the possibility that
Moolla, and not the DDG, prepared the Regulation 5(3) reports.
This would appear to be founded on no more than the non-use of
the first person in the wording of the reports and the fact that they
were signed and dated on 8 and 9 A ugust 2002. In my view no
inference can be drawn from the rat her formalistic style of writing
adopted in the reports. As to the dates on which they were signed,
there is no reason to suppose that when Moolla worked with the
37
files, which presumably came to him in batches, they did not
contain the DDG’s reports which had been prepared and typed but
not yet signed. It follows that in my view the attack on the
Minister’s decision to reject the respondent’s appeal must fail, as
must the application to have the matter referred for the hearing of
oral evidence.
[33] Finally, it is necessary to revert to an issue to which
reference has been made previously in passing, ie the
consequence of a procedur ally fair appeal in the event of it being
found that the DDG had failed to exercise his discretionary power
himself (‘the delegation issue’) In Turner v Jockey Club of South
Africa 1974 (3) SA 633 (A) at 658A-G this court accepted as a
general rule Megarry J’s dictum in Leary v National Union of
Vehicle Builders [1971] Ch 34 at 49F ([1970] 2 All ER 713 (Ch) at
720h) that –
‘a failure of natural justice in the trial body cannot be cured by a sufficiency of
natural justice in an appellate body.’
More recently however, in Slagment (Pty) Ltd v Building,
Construction and Allied Workers’ Union 1995 (1) SA 742 (A) at
756D-757A, this court expressed th e view that such a general rule
was unjustified. In coming to th at conclusion it relied on the
38
statement of Lord Wilberforce in Calvin v Carr and others [1980]
AC (PC) 574 at 592C ([1979] 2 All ER 440 (PC) at 447 h) that no
clear and absolute rule could be laid down as the situations in
which the issue arises are too diverse and the rules by which they
are governed so various. This approach has similarly been
accepted by the House of Lords. See Lloyd and others v McMahon
[1987] AC 625 (HL) at 716C-D ([ 1987] 1 All ER 1118 (HL) at
1171g.)
[34] Quite clearly, if the effect of whatever it was that vitiated the
initial decision is perpetuated so as to taint the appeal process
there can be no question of the latter serving to cure the former. If
in the present case, for exampl e, the process of streaming had
been procedurally unfair, the decision on appeal would be equally
affected. On the other hand, even if the appeal process were not
intrinsically tainted by the earlier proceedings, the circumstances
may be such that considerations of fairness demand that both the
initial administrative decision and the appeal pro cess, judged
separately, be lawful and proced urally fair. No purpose would be
served by attempting to formulate some all embracing rule. Each
case will depend on its own facts.
39
[35] To return to the present case , once it is ac cepted that the
Minister properly applied his mind to the respondent’s appeal and
that the process was both lawful and procedurally fair, I can think
of no reason why any shortcoming in relation to the delegation
issue (which in my view was not established) should not have
been cured by the appeal. There can be no question of the former
tainting the latter. The responden t was one of a large number of
applicants for a limited resource. Had it been clear that the DDG
had personally examined the respondent’s application the latter
would have had no cause for complaint. In the event, the
application, as supplemented by the respondent on appeal, was
considered by the Minister who wa s the actual repo sitory of the
power conferred in terms of s 18(1) of the Act. It follows that the
decision to reject the respondent’s appeal would have rendered
irrelevant any complaint the re spondent might have had with
regard to the delegation issue.
[36] The appeal is upheld with costs, such costs to include those
occasioned by the employment of two counsel. The order of the
court a quo is set aside and the following is substituted in its place
–
40
‘The application is dismissed with costs, such costs to include
those occasioned by the employment of two counsel.’
__________________
D G SCOTT
J U D G E O F A P P E A L
CONCUR:
FARLAM JA
CAMERON JA
LEWIS JA
COMRIE AJA