IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Case number no: 9873/2022
In the matter between:
SASMIA NPC & ANOTHER First & Second Appellants
and
MINISTRY OF FORESTRY, FISHERIES &
ENVIRONMENT & OTHERS First to Third Respondents
THE VISION FISHING PRIMARY
CO-OPERATIVE LTD & 15 OTHERS Fourth and further Respondents
Coram : Erasmus, J et Nziweni, J et Njokweni, J
Heard : 19 January 2026
Delivered : 6 August 2026 (electronically)
Summary : Administrative law — Judicial review — Special sectors — Small-
scale fisheries — Preliminary objections — Mootness and delay. Practice and
procedure — Appeal — Points in limine sustained by lower court — Mootness
and unreasonable delay under s 7(1) of PAJA — Court a quo dismissing application
on preliminary points without fully engaging the merits — Merits fully ventilated by
parties in oral argument — Court a quo court misdirected itself by failing to assess
the merits in tandem with explanations for delay and considerations of mootness —
Prospects of success on the merits triggering the interests of — Matter remitted to
the lower court for determination on the substantive merits.
ORDER
1. The appeal is upheld.
2. The order of the court a quo is set aside and replaced by the following order:
a) The applicant’s application for condonation of the non-compliance with
PAJA is granted.
b) The respondents’ points in limine are dismissed.
c) The matter is remitted to the court a quo for the hearing and
comprehensive determination of the substantive merits of the
application.
3. Costs of this appeal will be costs in the main application.
JUDGMENT DELIVERED ELECTRONICALLY
NZIWENI, J
[1] This is an appeal against the whole judgment and the order of the court a quo
[excluding only paragraph 4 of the court a quo ’s order] , which upheld preliminary
points raised by the first to third respondents, thereby dismissing the main
application. The appeal is with the leave of the court a quo.
[2] In addition, the appellants seek that this Court grant the relief set out in their
notice of motion. Alternatively, if this Court is of the view that the merits of the review
should be considered first, this Court may refer the matter back for determination of
the substantive issues in the review.
[3] Briefly, as background, the appeal concerns a review application brought by the
appellants. Properly distilled, the appellants’ primary complaint is that the court a quo
dismissed the main application on preliminary points without engaging with the
underlying merits. However, it is common cause that the parties fully ventilated those
merits before the court a quo during oral argument.
[4] The appellants contend that the underlying application is of profound significance,
posing an existential threat to the commercial squid industry and having vital
implications for small -scale fishers. Because the matter turns on the fundamental
nature of rights and quota allocations designated for the small -scale sector, the
appellants submit that the court a quo was duty-bound to determine the substantive
merits.
[5] It is evident that the parties have a long history dating back to the 1980s.
However, in the circumstances of this case, it is not necessary to trace that history in
detail for the purposes of this judgment. There is, however, a broader and important
issue of legal principle to be considered, irrespective of the merits or otherwise of
this case.
[6] The issues for determination are:
1. Whether the court a quo considered the merits of the matter when
adjudicating
the preliminary objections.
2. If it is found that the court a quo failed to consider the merits, whether it erred
in law by failing to do so.
3. Having said that , I am also mindful of the appellant’s stance that , for the
purposes of this matter, it is important to recognise the strength of the merits.
[7] Furthermore, because the issue before this Court is a pure question of law, a
detailed recitation of the facts is unnecessary. However, to provide context and
establish the chronology of events leading to this litigation, it is prudent to outline the
parties’ submissions.
The appellants’ submission
[8] The appellants submit that it is well established that preliminary defences in a
review application cannot be determined in isolation from the merits. Specifically, the
substantive merits of a review are central to whether a court should condone an
unreasonable delay or sustain a mootness challenge. The appellants further argue
that, by bypassing all substantive issues and dismissing the application solely on
procedural grounds, the court a quo ignored binding precedent.
[9] To properly evaluate these grounds, counsel emphasised the need to distinguish
between the two categories of decisions in issue, as different preliminary points
apply to each. The first category comprises the decisions of the Director -General
(‘DG’) and Deputy Director-General (‘DDG’) dated 3 and 17 June 2021, together with
the Minister’s subsequent dismissal of the appeal in December 2021.
[10] Mr Farlam SC, for the appellants, argued that this failure to follow precedent was
egregious, particularly given that the appellants’ compelling grounds of review are
unanswerable. He further submitted that where an administrative decision is grossly
unlawful, a court cannot simply ignore the merits when assessing condonation or
mootness. Counsel highlighted these core legal issues to show that the underlying
grounds of review cannot be defended.
[11] Mr Farlam submitted that the DG’s decision of 3 June 2021 is the operative
administrative action in this matter. The appellants contend that this decision is
fundamental because it was intended to be a once -off determination. By way of
background, public comment was invited on 23 October 2020 on a proposed 75:25
apportionment. Following those submissions, the DG issued the 3 June 2021
decision, which allocated 15% of the squid Total Allowable Effort (‘TAE’) to the small-
decision, which allocated 15% of the squid Total Allowable Effort (‘TAE’) to the small-
scale fisheries sector and 85% to the commercial sector. Crucially, the appellants
emphasise that this allocation was not tied to any specific calendar year.
[12] The appellants also emphasised that the DG’s decision stated that the
apportionment should be reviewed at the beginning of each fishing season, with a
view to increasing the apportionment of the small -scale fishery sector from a
minimum of 15 per cent to a maximum of 25 per cent, subject to categories. Mr
Farlam also highlighted the DG’s decision, which stipulated that a capacity
management prism should be introduced in the squid sector in the form of allocating
the number of persons per day as the right holder.
[13] The appellants’ counsel also referred this Court to a media statement issued by
the Minister ’s office. The statement highlighted the historic significance of the
allocation, noting that it officially placed squid into the basket of species available to
small-scale fishers.
[14] The appellants submit that the court a quo made no finding of unreasonable
delay regarding the review grounds targeted in prayers 5, 6, and 7 of the amended
notice of motion. According to Mr Farlam, no such finding was legally sustainable, as
it is common cause that the reviews were instituted within the statutory 180 -day
period. Relying on established Supreme Court of Appeal authority, the appellants
maintain that a review brought within 180 days is prima facie reasonable, shifting the
onus to the respondents to demonstrate exceptional circumstances; a burden they
submit, the respondents failed to discharge.
[15] Mr Farlam SC submitted that the mootness objection applies to both the 2021
decisions and the second category of decisions. The first impugned action in the
second category is the November 2019 decision, which, in principle, placed squid in
the small-scale fisheries sector's basket of species. The second is the initial appeal
decision of 14 June 2021. However, prayer 3 is no longer pursued, leaving only the
November 2019 decision operative. The appellants submit that they became aware
of this decision in No vember 2019 and, in August 2020 and again in July 2021,
of this decision in No vember 2019 and, in August 2020 and again in July 2021,
sought to appeal it. They ultimately secured the review record in May 2023, following
a third PAIA request. The appellants contend that any delay is attributable to the
respondents' obstructionist conduct in consistently withholding the necessary
documentation and the review record.
[16] According to the appellants, the November 2019 decisions were the sole subject
of the unreasonable delay challenge. The appellants submit that the court a quo
misdirected itself in several respects by failing to consider the merits of the review
alongside the reasons for the delay. Crucially, it is submitted on the appellants’ behalf
that the court a quo also overlooked the relevance of the respondents' refusal to
provide the requested PAIA documents and the review record.
[17] The appellants submit that , prior to the 15% apportionment in 2021, the small -
scale fisheries sector ’s ‘basket’ was effectively empty with respect to the squid
resource. Accordingly, small -scale fishers could not harvest squid until a specific
portion of the TAE had been legally allocated. According to the appellants, the mere
conceptual inclusion of squid in the basket did not authorise fishers to obtain permits
or commence harvesting. Consequently, any review of that initial listing decision
would have been premature and abstract, as rights had not yet materialised. The
appellants therefore maintain that the key, reviewable administrative action is the
DG’s apportionment decision of 3 June 2021 (“FA 29”).
[18] The appellants submit that the timing of the review is a critical factor. They
maintain that the court a quo misdirected itself on various material dates, statutory
time periods, and the application of regulation 5 of the Marine Living Resources Act
(“MLRA”) regulations.
[19] The appellants submit that the court a quo’s finding that prayers 5 to 7 are moot
is untenable. They argue that the mootness objection to the Director -General’s 3
June 2021 decision [FA29] is unsustainable because the decision was intended to
serve as a threshold determination. Given this, the appellants maintain that the
decision is sui generis.
[20] According to the appellants, prayer 2 was the only relief affected by
unreasonable delay. They argue that if this Court decides that prayers 5 to 7 are still
unreasonable delay. They argue that if this Court decides that prayers 5 to 7 are still
live and should not have been dismissed, the whole case must proceed so that all
the prayers, including prayer 2, can be decided.
[21] Regarding the strength of the merits, the appellants submit that the second
Minister’s appeal was decided without the necessary regulation 5(3) report from the
DG, as contemplated by regulation 5(3) read with section 80 of the MLRA, in relation
to the decision of 03 June 2021 [the split decision]. Mr Farlam argued that the
absence of the DG’s report is egregious. As a result, this non -compliance rendered
the Minister’s appeal decision [regarding the decision of 03 June 2021, FA29]
reviewable. The appellants further argue that, on this ground, the second appeal
decision was irregular and unlawful and stands to be set aside.
[22] Mr Farlam SC argues that it is common cause that the only report filed was that
of the DDG, which pertained exclusively to the appeal of the 17 June 2021 Total
Allowable Effort [TAE] determination. The appellants contend that this report is
entirely deficient, as it fails to engage with or address the grounds of appeal. They
submit that the DDG's purported regulation 5(3) report fails to meet the statutory
benchmarks contemplated by regulation 5(3) and section 80 of the MLRA, and that it
ignores the foundational requirements set out in Dyer Eiland Visserye (Pty) Ltd v The
Minister of Agriculture, Forestry and Fisheries 2018 JDR 2011 (WCC) at paragraphs
12 to 13.
[23] The appellants hold the firm view that the appeal decision FA37 is vitiated by
irregularities.
[24] Another ground of review, which the appellants consider has potential to
succeed, is the failure to consult the Consultative Advisory Forum for Marine Living
Resources (“CAF”) prior to the determination of any reduction. The appellants also
maintain that it is common cause that CAF was not consulted. According to the
appellants, CAF is a key body.
[25] In addition, it is argued that if the Minister is to apportion the TAE, the Minister
must know what the TAE is. According to the appellants, the first step is to determine
must know what the TAE is. According to the appellants, the first step is to determine
the TAE annually under s 14 (1). After the TAE is determined, apportionment of the
TAE then comes into play under s 14 (2). The appellants hold the strong view that
this cannot happen the other way around.
[26] It is further argued on appellants’ behalf that if the DG makes a long -term
apportionment that is intended to endure for perpetuity, it is irregular under s 14, as
section 14 speaks in terms of annual apportionment. It is submitted on appellants’
behalf that, in this case, the split decision was made by the DG on 03 June 2021,
some two weeks before the squid TAE for the relevant season was determined by
the DDG on 17 June 2021. Accordingly, the appellants argue that the split decision
and the TAE determination were made contrary to the MLRA and were thus ultra
vires.
[27] The appellants submit that the allocation decision [split decision] was irrational
and made without regard to relevant considerations, as it was made in ignorance of
the total squid TAE. Without this baseline figure, it was impossible to calculate the
exact TAE available to either the commercial or small -scale sectors. Consequently,
the department failed to assess whether the apportionment was economically viable
for commercial fisheries or disproportionate to the small -scale sector's actual
capacity. The a ppellants maintain that such an apportionment cannot be lawfully
determined in a vacuum.
[28] The appellants submit that this Court can either determine the challenges under
regulation 5(3) and the CAF consultation directly or remit them to the court a quo.
Appellants’ mootness submission
[29] The appellants submit that the court a quo both misdirected itself and erred in
sustaining the in limine mootness objection without regard to the substantive merits
of the review challenge set out in prayers 5 to 8 of the notice of motion.
[30] It was further argued by the appellants that prayer 5 relates to the decision to
apportion squid in the basket. According to the appellants, prayer 5 makes the right
to apportion squid in the basket a real and effective one. The appellants further
argue that the relief sought in prayer 5 is not moot.
argue that the relief sought in prayer 5 is not moot.
[31] The appellants contend that even if the relief sought in prayers 5 to 7 is moot,
the case raises distinct, recurring legal issues of public importance that warrant this
Court’s determination. In this regard, the appellants identify several illustrative
issues: first, the appropriate quantum of squid to be allocated to the small -scale
sector; second, whether small -scale fishers may utilise large, commercial freezer
vessels; and third, whether the Minister is empowered to make long -term allocations
rather than annual determinations.
[32] In the appellant’s heads of argument, it is stated that the court a quo needed to
consider the merits because it had discretion, even if the decisions in FA 29 [03 June
2021 decision] and FA 31 were considered not to raise live issues. The argument
continues that the review grounds directed at those decisions should nevertheless, in
the interests of justice, be entertained. The appellants further submit that they have
strong prospects of success.
[33] In the founding affidavit, it is submitted that it is in the interests of the squid
sector as a whole, as well as in the interests of justice, that certainty and clarity be
obtained in respect of the apportionment decision, its consequences, and whether
the decision would stand or be set aside.
[34] It is the appellants’ assertion that even if the Minister correctly contends that the
2022/23 TAE determination and its 15% apportionment superseded the June 2021
split decision, the 2022/23 determination did not override or set aside the review
component, the second element of the split decision. That component remains
legally operative. By design, the review mechanism is not time -bound. Instead, its
terms are intended to bind all future decision -makers continuously, applying
whenever a TAE determination is made.
[35] Unless the review component is declared ultra vires and set aside, it will
continue to operate as a standing directive for future decision -makers. They will be
obliged to comply with its terms annually, not only by accepting the 15% allocation as
a baseline minimum apportionment but also by faithfully executing the review
a baseline minimum apportionment but also by faithfully executing the review
mechanism each time a TAE determination is made.
[36] As already indicated, the appellants submit that FA 29 is a forward -looking
decision with future effect, which is sui generis as it follows on from the November
2019 basket decision. According to the appellants, FA 29 has a lasting impact and is
a key decision in this case. Mr Farlam characterised FA 29 as a decision with a
legacy. According to the appellants, FA 29 sets a baseline of a minimum of 15
percent going forward that cannot be reviewed annually. The appellants submit that it
establishes 15 percent as a threshold, and the DDG can review it with a view to
increasing it from 15 percent. According to the appellants, FA 29 was not superseded
by any subsequent decision. The 15 percent has been set as a baseline. According
to the appellants, thi s component of the split decision places an ongoing, binding
obligation upon the Department, which is strictly required to implement and enforce
its terms.
[37] It is submitted that the baseline can be challenged only by directly attacking the
June 2021 decision [FA29]. According to the appellants, this challenge must be
brought immediately, as failing to impugn the June 2021 [FA29] decision at this stage
would effectively bind them to the 15 percent baseline in perpetuity.
[38] The appellants’ assertion is that annexures BC41 and BC5 do not supersede FA
29; rather, they replace FA 31 [the DDG’s decision] because they constitute annual
apportionment determinations. The appellants submit that if this Court finds that FA
29 has prospective or future effect, it remains legally operative until formally
reviewed and set aside.
[39] According to the appellants, decisions such as the split decision affect
equivalent decisions and determinations in subsequent years. Mr Farlam reinforced
this submission by relying heavily on WWF South Africa v Minister of Agriculture,
Forestry and Fisheries and Others (11478/18) [2018] ZAWCHC 127; [2018] 4 All SA
889 (WCC); 2019 (2) SA 403 (WCC) (26 September 2018) (“WWF”).
[40] The appellants submit that the allocation decision is by no means an isolated,
historical event that has receded into obscurity. They argue that, before upholding
historical event that has receded into obscurity. They argue that, before upholding
the mootness objection, the court a quo failed to consider the prospective effect of
an initial percentage apportionment of the TAE, which serves as the baseline for
future decisions. Accordingly, the appellants contend that, by apparently ignoring the
judicial findings in the WWF matter, the lower court overlooked the fact that FA 29
constitutes a foundational, baseline decision for subsequent allocations.
Consequently, the appellants argue that, applying the principles established in WWF,
the decision cannot be moot.
[41] The applicants further assert that the DG not only apportioned the TAE 85:15
between the commercial and small -scale fishers in June 2021 but also made two
further decisions [which SASMIA describes as the second and third decisions taken
in June 2021] at the same time.
[42] Thus, the appellants contend that the split decision, the second and third
decisions, were specifically and individually challenged in paras 5.1 to 5.3 of the
applicant’s amended notice of motion. The argument was that the court a quo
needed to consider the decisions separately.
[43] According to the appellants’ argument, the court a quo ’s judgment did not
address whether the second and third decisions were moot, let alone the basis for
any such mootness. Furthermore, it is asserted that the court a quo did not consider
whether reviewing these decisions would serve the interests of justice, including a
review of the merits, even if the challenge itself was considered moot.
[44] The appellants further contend that the court a quo misdirected itself by failing to
determine the second and third decisions before dismissing the review challenge on
the ground of mootness, despite being duty-bound to do so.
[45] To the extent that it is further argued that this omission by the court a quo was
particularly critical because the second and third decisions were plainly prospective
in effect, the argument ran that had the court a quo considered them [second and
third decisions], either individually or alongside the split decision, it would have erred
by holding that a review of these decisions was moot.
[46] In the circumstances, the appellants argued that, in relation to the in limine
mootness contention, the court a quo misdirected itself and erred by upholding the in
mootness contention, the court a quo misdirected itself and erred by upholding the in
limine objection of mootness without regard to the substantive merits of the review
challenges under prayers 5 to 8. They maintain that evaluating the merits was
essential because the court a quo retained discretion to entertain the review grounds
in the interests of justice, even if the challenges to the 2021 split and 2021/22 TAE
decisions no longer raised live issues, particularly given the appellants' strong
prospects of success.
[47] It was further submitted that the court a quo misdirected itself by stating in its
judgment that it would determine the preliminary points before dealing with the
merits. The appellants contend that the court was required to evaluate the merits in
tandem with, and as part of its consideration of, those preliminary points. Instead,
according to the appellants, the court erroneously treated the preliminary points as
mere interlocutory procedural matters. The appellants further contend that the court
a quo failed to consider factors central to the exercise of its discretion. Specifically,
the lower court overlooked:
1. The practical effect sought review orders would have on the parties or third
parties;
2. The importance and complexity of the underlying issues;
3. The fullness of the arguments advanced by counsel;
4. The substantive merits of SASMIA’s challenge to the June 2021 decisions;
and
5. The constitutional issues at stake and the broader interests of justice.
[48] It is the appellants’ contention that, accordingly, there is no question that a
component of the split decision is moot. It is further submitted that, on the contrary,
the split decision continues to be actively implemented by the Department and,
under the circumstances, clearly raises a live and justiciable issue. The appellants
hold the view that, for this reason, the review of the component, and indeed the split
decision in its entirety, ought to be considered, the decision declared ultra vires and
unlawful, and consequently set aside.
[49] The appellants further argue that this case presents unique issues requiring
resolution, namely: whether a 15 percent allocation can be granted to the small-scale
resolution, namely: whether a 15 percent allocation can be granted to the small-scale
sector when they are unable to fish in that year; whether the TAE can be apportioned
in vacuo, specifically by determining that the TAE will remain at 15 percent in
perpetuity without knowing the actual future TAE or its underlying consequences;
and whether the TAE can be altered without prior consultation with the Consultative
Advisory Forum [CAF]. The appellants submit that these crucial issues can only be
properly addressed in the context of this case. Furthermore, they contend that these
remain live, justiciable controversies that the court is fully capable of determining.
Appellants’ submission on unreasonable delay
[50] According to the appellants, unreasonable delay relates only to prayer two of the
notice of motion, the November 2019 basket. In addressing the issue of delay, Mr
Farlam opened his submissions by relying on South Durban Community
Environmental Alliance v MEC for Economic Development, Tourism and
Environmental Affairs: KwaZulu -Natal Provincial Government and Another (231/19)
[2020] ZASCA 39; [2020] 2 All SA 713 (SCA); 2020 (7) BCLR 789 (SCA); 2020 (4)
SA 453 (SCA) (17 April 2020). He noted that the SCA approved Plasket J’s
observation in Joubert Galpin Searle v RAF, in which Plasket J stated the following:
‘Notionally, therefore, it is possible that a delay in launching a review application of
less than 180 days after the cause of action arises can be an unreasonable delay but
I think it is fair to say that cases of this sort will be rare and have exceptional
circumstances. I say this because in practice, prior to the PAJA coming into force,
delays of anything between six and nine months were generally regarded as not
being unreasonable and, since PAJA came into force, the 180-day limit has tended to
be regarded as the dividing line between reasonable and unreasonable delay’
[51] According to Mr Farlam, a party asserting that a delay of less than 180 days is
unreasonable bears the onus of showing why. It was submitted on behalf of the
appellants that, in the present matter, the respondents failed to make out a case
showing that the delay was unreasonable.
showing that the delay was unreasonable.
[52] Equally, the appellants assert that they fully explained their timeline; and since
the Minister required five months to decide the internal appeal, the respondents
cannot reasonably complain that a litigant t ook a corresponding five months to
institute the review.
[53] In addition, Mr Farlam submitted that further support for this approach could be
found in Professor Cora Hoexter’s statement that the consideration of delay is, as
Hoexter puts it, not ‘a purely interlocutory matter’. The appellants, in their heads of
argument, went further to quote Hoexter, who stated the following:
“It is now clear that our courts do not regard delay as a purely interlocutory matter,
blind to the merits of the case . On the contrary, the merits, or the prospects of
success, play an important role in deciding whether to condone a delay in instituting
review proceedings (both under the PAJA and the legality principle). As Navsa JA
noted in SANRAL v Cape Town City, the merits of the impugned decision ‘must be a
critical factor when a court embarks on a consideration of all the circumstances of a
case in order to determine whether the interests of justice dictate that the delay
should be condoned .’ And the Constitutional Court, in Notyawa, more recently
observed that ‘[t]he nature and extent of the illegality raised in respect of the
impugned decisions constitutes a weighty factor in favour of overlooking a delay. . .’
Respondents’ submissions
[54] According to the respondents, the appellants do not understand which
administrative decisions are before the court. The respondents further state that
there are five categories of administrative decisions in the squid fishery. One of these
is the decision on fishing rights granted under section 18 of the MLRA. The
appellants contend that fishing rights were not an issue before the court a quo. The
respondents maintain that commercial fishing rights are granted under section 18(6)
of the MLRA. These rights are granted conditionally for a limited duration and, upon
expiry, automatically terminate by operation of law and revert to the State. Once the
right reverts to the State, the rights of former commercial fishing right holders also
terminate. Accordingly, they did not have valid fishing rights beyond 31 December
terminate. Accordingly, they did not have valid fishing rights beyond 31 December
2020, long before the apportionment decision and the TAE decision in prayer 6 were
made. The respondents submit that the fishing right holders had no legitimate
expectation of acquiring long-term fishing rights.
[55] The respondents contend that by 18 June 2019, SASMIA was already aware of
the specific details of the applicant s’ co-operatives. Consequently, SASMIA
submitted its comments on the proposed split on 28 June 2019, before the fishing
rights were granted on 16 November 2019.
[56] According to the respondent s, the appellants had all the detail s in their
possession. The respondents contend that, notwithstanding the information the
appellants admittedly possessed, the review application is fundamentally directed to
the inclusion of squid in the species basket and the subsequent granting of fishing
rights to the 15 small-scale co-operatives.
[57] The respondents contend that the relief sought in prayer 2 is incompetent
because it impermissibly attempts to collapse 15 separate administrative decisions
into a single challenge. To properly attack the inclusion of squid in the species basket
of a specific co-operative, the appellants were required to identify each distinct entity.
Consequently, the respondents maintain that the appellants have targeted a non -
existent, composite decision.
[58] According to the respondents, the court a quo liberally calculated the 180 -day
period from 15 July 2020. It was further argued that, if the court a quo had dealt with
the merits, it would not have made a difference.
[59] It was asserted on behalf of the respondents that section 7 of PAJA was not
available to the appellants because there was an internal remedy that the appellants
failed to exhaust, and the appellants never applied for exemption. Thus, the court a
quo was barred from dealing with the merits.
[60] The respondents further argue d that the court a quo considered the merits and
summarised them after two full days of oral argument on those substantive issues.
The respondents contend that the appellants are essentially demanding that the
court a quo should have ruled on the main issues of the case, despite the dismissal
of the preliminary points.
[61] It was further argued that the apportionment decision was not arbitrary and that
consultations had been held with the appellants. It was further the respondents’
submission that the apportionment decision was to the appellants’ benefit.
[62] It was argued that there is no need to refer the matter back to the court a quo ,
as the merits of the review have already been argued and nothing is likely to change.
According to the appellants, each year a new TAE is issued that supersedes the
previous one on a more favourable basis than in 2014.
[63] According to the respondents, the previous permits no longer exist because they
have expired by operation of law.
Evaluation
[64] As set out above, Mr Farlam strenuously argued that the court a quo failed to
consider the merits of the matter before ruling on the preliminary points. To support
this submission, the appellants ’ counsel relied, inter alia, on paragraph 40 of the
court a quo’s judgment, which stated:
‘The respondents raise two points in limine, which require determination first before a
consideration of the merits of the review application.’
[65] With the above submissions in mind, the appellants argue that the extract further
shows that the court a quo did not consider the merits of the review. In this matter,
the preliminary points needed to be considered alongside the merits. From the
record, it is plain that the merits of the review are so deeply intertwined with the
preliminary points. As such, a court cannot fairly decide the preliminary points
without delving into the merits, and the factors must be considered and weighed
together. It is right to emphasise that, in such cases, no one factor is in and of itself
determinative.
[66] The respondents’ argument that the court a quo dealt with the merits of the
matter is unavailing. A scrutiny of the court's reasoning on the condonation
application reveals that its focus was strictly limited to procedural dates and prayers.
Specifically, the court a quo noted that it was common cause that the outcome of the
appeal against the 16 November 2019 decision was delivered on 14 June 2021.
Consequently, the court held that the 180 -day period under PAJA expired on 11
December 2021. The court a quo also stated that, based on these admitted facts, it
merely concluded that the application was delivered 193 days out of time, without
ever addressing the merits of the review.
[67] The court a quo, in its judgment, stated that the respondents raised two points in
limine, which required determination before consideration of the merits of the review
application. In assessing the prospects of success, the court a quo found that the
appellants were informed that 15 small -scale co -operatives were recognised. The
court a quo further stated that the appeal finding recognised that SASMIA [one of the
appellants] was aware, in its July 2020 presentation, that grant of rights letters had
been issued to small -scale fishers and that squid was included in the resource
allocation schedule. The court a quo also held that the appeal in respect of the 16
November 2019 decision had lapsed, and that because the appeal was not directed
at any specific decision, the Minister dismissed it. The court a quo further stated that,
having regard to the above, it was not of the view that there were no bases for
holding that it should exercise its discretion in favour of granting condonation in
terms of section 9 of PAJA or condonation generally. The court a quo went further to
state that, from the admitted facts and its findings, the delay was unreasonable and
that the interest of justice requirement referred to in section 9 was not satisfied.
[68] None of the factors addressed in the court a quo’s judgment relate to the merits.
The court a quo simply stopped at the statutory gateway of the PAJA 180 -day time
limit and refused the condonation application. Therefore, it precluded itself from
addressing the merits.
addressing the merits.
[69] The main issue for decision is whether the court a quo erred in upholding the
points in limine without considering the merits of the review application. The issue of
delay in bringing an application for judicial review has been addressed in a number
of other cases. As indicated above, the appellants are firmly of the view that the
court a quo misdirected itself by not condoning the delay, if there was any
unreasonable delay.
[70] Critically, Professor Hoexter emphasises that established case law mandates a
multi-factor, holistic approach to determining whether a time extension is in the
interests of justice, of course, depending entirely on the unique circumstances of the
case. Furthermore, Professor Hoexter notes that one factor weighing in favour of
granting such an extension is whether the underlying matter raises a novel
constitutional issue.
[71] It is this Court’s view that, even if the court a quo found unreasonable delay, it
ought to have addressed the merits in the circumstances of this case. Had the court
a quo addressed the merits, it might have found that there was no unreasonable
delay in this matter, or that the delay ought to have been condoned.
[72] During the appellants’ oral submissions, Mr Farlam expressed appreciation that
this Court is not going to reach the factual analysis, particularly when it comes to the
November 29 decisions [The State’s breach of its undertaking to consult].
[73] There remains, therefore, to be discussed the [a central procedural] question,
namely, whether this Court, sitting as a court of appeal, should remit the matter in its
entirety to enable the court a quo to evaluate the condonation application alongside
the merits, or whether this Court should first determine the condonation threshold
and, if granted, remit the matter to the court a quo for adjudication on the merits.
[74] This appeal concerns procedural fairness. Remitting the entire application to the
court a quo solely to re -argue the preliminary points threshold would result in
unnecessary duplication of costs and further delay the administration of justice. The
record before us contains a sufficiently detailed factual matrix, and extensive
submissions enable this Court to evaluate both the preliminary points and the
appellants’ prospects of success. Consequently, this Court is properly placed to
cross the condonation and mootness hurdles.
cross the condonation and mootness hurdles.
[75] In the course of argument, this Court put to Mr Farlam SC that, should this Court
find in favour of the appellants, the overarching interests of justice would require a
serious evaluation of the condonation application, given the public importance of the
matter. It was further put to counsel that this would mean looking at the merits, even
if it is a judicial peek, to consider condonation, and that if this Court fails to do so, it
would be a misdirection. In response, Mr Farlam submitted that a determination on
the merits is of fundamental importance to the fishing industry. He contended that
absolute clarity is required because this dispute represents a seminal test case
within the squid sector, carrying profound structural implications for both commercial
and small-scale fishing operations.
[76] As noted earlier, the main thrust of the argument advanced on the appellants’
behalf is that the court a quo failed to consider the merits of the matter.
Consequently, it is contended that the court overlooked critical aspects of the case
that directly required the granting of condonation.
[77] In Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A) at 532 C, Holmes JA
stated the following in respect of a condonation application:
“[t]he basic principle is that the Court has discretion, to be exercised judicially upon a
consideration of all the facts, and, in essence, it is a matter of fairness to both sides . . .”
Among the facts usually relevant are the degree of the lateness, the explanation therefor, the
prospects of success, and the importance of the case. Ordinarily these facts are interrelated:
they are not individually decisive, for that would be a piecemeal approach incompatible with a
true discretion, save of course that if there are no prospects of success there would be no
point in granting condonation”.
[78] It appears to me, therefore, that some, albeit imperfect, analogy can be drawn
between the Santam case, supra, and the present case. In the present case, of
course, as the appellants have been at pains to point out, very voluminous evidence
was placed before this Court and the court a quo. In my view, there is no reason for
this Court not to consider the condonation application.
this Court not to consider the condonation application.
[79] I consider that, fundamentally, there is an inextricable intertwined relation
between condonation and the merits of the matter.
[80] Because the court a quo failed to fully consider the merits when evaluating the
points in limine, this Court, sitting as a court of appeal, is properly placed to address
the merits to determine whether a prima facie case exists to justify the granting of
condonation. First, there are undoubtedly compelling grounds for review in this
matter that require thorough consideration. This case presents elusive legal
questions with far-reaching implications for the fishing industry.
[81] Consequently, I am of the view that the matter ought not to be remitted to the
court a quo so that the merits may be fully ventilated alongside the condonation
application. In any event, the interests of justice require that the condonation
application be considered seriously.
Delay
[82] The starting point, of course, is that it is a foundational principle of our
constitutional order that a court cannot condone or validate clear illegality merely
because of an unreasonable delay. To do so would offend the rule of law.
[83] In the present matter, it is contended that the court a quo erred in finding that the
review application was instituted out of time. The appellants argue that the 180 -day
statutory period had not yet expired when the application was launched.
Consequently, the appellants submit that the court a quo misdirected itself on both
the applicable timelines and the explanations tendered. It is further submitted that by
conflating these distinct time periods, the court a quo unnecessarily complicated its
assessment of the delay. For example, the appellants point out that the court a quo
inexplicably referred to an appeal from December 2019 and to a date of July 2020,
which bear no discernible relevance to the calculation of the delay in this matter. As
such, the relevance and context of the two dates remain entirely obscure to the
appellants.
[84] The appellants further contend that the court a quo failed to consider their active
efforts to pursue the review. Specifically, between 2018 and June 2021, when the
Minister ultimately dismissed the appeal to furnish the relevant documentation, the
Minister ultimately dismissed the appeal to furnish the relevant documentation, the
appellants consistently submitted [4 applications] under the Promotion of Access to
Information Act (“PAIA”) in an ongoing attempt to secure the necessary records.
Accordingly, the appellants submit that they were not merely passive or indolent, and
that the delay was directly caused by the State's failure to provide the requested
information. The appellants further submit that the State stonewalled them.
[85] The appellants assert that they were finally furnished with the repeatedly
requested information on 17 May 2023, after the use of PAIA, various court
applications, and internal appeals. This necessitated the appellants supplementing
their court papers [founding affidavit and notice of motion].
[86] According to the appellants, the delay caused by the State in furnishing the
complete record renders the assertion of unreasonable delay particularly
unpalatable. The appellants maintain that there was no unreasonable delay;
accordingly, the point of unreasonable delay is not a good one. In the circumstances,
the appellants contend that even if there was unreasonable delay, the court a quo
ought to have condoned it.
[87] It is trite that a court retains discretion, in the interests of justice, to entertain a
review challenge to a decision or action even if the operative timeframe has expired.
Hence, the appellants hold the view that, quite apart from the prospective
significance of the 2021/22 determination, the court a quo had discretion, in the
interests of justice, to entertain a review even if the underlying decision has been
overtaken by subsequent events.
[88] This matter raises vital questions about alleged non -compliance by the Minister,
the DG, and the DDG in relation to the split decision. It also concerns compliance
with binding constitutional and statutory objectives in determining the TAE and
apportioning a highly valuable, oversubscribed resource. Consequently, the interests
of justice clearly warrant this Court's consideration.
[89] As enunciated by the Constitutional Court in Grootboom v National Prosecuting
Authority and Another (CCT 08/13) [2013] ZACC 37; 2014 (2) SA 68 (CC); 2014 (1)
BCLR 65 (CC); [2014] 1 BLLR 1 (CC); (2014) 35 ILJ 121 (CC) (21 October 2013),
BCLR 65 (CC); [2014] 1 BLLR 1 (CC); (2014) 35 ILJ 121 (CC) (21 October 2013),
condoning a party's non-compliance is an indulgence. While this Court takes heed of
the warning that non -compliance ‘has bedevilled our courts ’, the ultimate standard
remains the overarching interests of justice . Bosielo AJ noted the following in paras
21 and 22:
“[21] The failure by parties to comply with the rules of court or directions is not of
recent origin. Non -compliance has bedevilled our courts at various levels for a long
time. Even this Court has not been spared the irritation and inconvenience flowing
from a failure by parties to abide by the Rules of this Court.
[22] I have read the judgment by my colleague Zondo J. I agree with him that, based
on Brummer and Van Wyk , the standard for considering an application for
condonation is the interests of justice. However, the concept “interests of justice” is
so elastic that it is not capable of precise definition . As the two cases demonstrate, it
includes: the nature of the relief sought; the extent and cause of the delay; the effect
of the delay on the administration of justice and other litigants; the reasonableness of
the explanation for the delay; the importance of the issue to be raised in the intended
appeal; and the prospects of success. It is crucial to reiterate that both Brummer and
Van Wyk emphasise that the ultimate determination of what is in the interests of
justice must reflect due regard to all the relevant factors , but it is not necessarily
limited to those mentioned above.” Footnotes omitted, and emphasis added.
[90] The appellants maintain that the review was not brought out of time. In any
event, the evidence before this Court indicates that there are grounds for ventilating
the merits. Thus, where an administrative review is brought outside the statutory
timeframes, condonation of such delay must be exercised in accordance with sound
judicial discretion aimed at achieving substantial justice. If condonation is refused by
the court a quo in circumstances where granting it would cause no prejudice to the
respondents, but its denial effectively immunises a flawed administrative decision
respondents, but its denial effectively immunises a flawed administrative decision
from scrutiny, such a denial results in grave injustice and constitutes a misdirection.
Consequently, where the broader public interest and the viability of an entire fishing
sector dictate that the dispute should be heard, this Court on appeal will intervene to
grant condonation and remit the matter for full ventilation.
[91] This principle does not invite or condone a laissez-faire1 approach to the rules of
the court, which remain mandatory and vital to the orderly administration of justice.
1 In English, meaning a “hands-off” approach.
However, where a procedural delay is neither wilful nor part of a pattern of systemic
non-compliance, and has occasioned no material prejudice to the respondents, the
granting of condonation does no harm, except to deprive the opposing parties of a
technical windfall arising entirely from that lapse. In such isolated instances, a litigant
should not, on the basis of a procedural infraction alone, be summarily non -suited
and deprived of the opportunity to vindicate their substantive rights, particularly
where the dispute raises live, structural issues of profound public and commercial
importance. The defining objective of judicial institutions is the administration of
justice according to the law, and procedural rules are designed exclusively to
facilitate, rather than frustrate, these substantial ends.
[92] As already indicated, the underlying merits of the present dispute have profound
structural implications for both the commercial and small -scale squid fishing sectors.
Allowing a procedural bottleneck to insulate a potentially flawed administrative
decision would constitute a grave failure of justice. Guided by the principles in
Grootboom supra, the public importance of the matter mandates that condonation for
any delay be granted so that the substantive merits may be fully ventilated upon
remittal.
Mootness
[93] In JT Publishing (Pty) Ltd v Minister of Safety and Security 1997 (3) SA 514
(CC), at para 15, the Constitutional Court stated the following:
“A corollary is the judicial policy governing the discretion thus vested in the Courts, a
well-established and uniformly observed policy which directs them not to exercise it
in favour of deciding points that are merely abstract, academic or hypothetical ones.”
[94] There is an exception to the mootness doctrine. The Constitutional Court, in
Independent Electoral Commission v Langeberg Municipality 2001 (3) SA 925 (CC),
held in para 11 the following:
held in para 11 the following:
“This Court has a discretion to decide issues on appeal even if they no longer
present existing or live controversies. That discretion must be exercised according to
what the interests of justice require. A prerequisite for the exercise of the discretion is
that any order which this Court may make will have some practical effect either on
the parties or on others. Other factors that may be relevant will include the nature
and extent of the practical effect that any possible order might have, the importance
of the issue, its complexity, and the fullness or otherwise of the argument advanced.
This does not mean, however, that once this Court has determined one moot issue
arising in an appeal it is obliged to determine all other moot issues.”
[95] In this matter, however, the appellants contend that the circumstances on which
their case is premised have not disappeared. Accordingly, they contend that there
are live controversies. They also maintain that even if the principle of mootness
applies, the court below ought to have exercised its discretion to hear the case.
[96] It seems to this Court that the correct legal analysis is as follows. A crucial
consideration is whether the order will have a practical effect on the parties or the
public. Other relevant factors include the importance and complexity of the issue, the
thoroughness of the arguments advanced, the rule of law, and the parties' interest in
resolving the constitutional issues at stake.
[97] In addition, the underlying controversy between the parties remains live, and the
decision embodied in “FA29” cannot be considered moot. Subsequent administrative
choices or decisions do not obviate the ne ed to determine the validity of FA29. As
the appellants correctly submit, an unlawful administrative act remains valid and
coexists with subsequent decisions until it is judicially reviewed and set aside
[Oudekraal Estates (Pty) Ltd v City of Cape Town 2004 (6) SA 222 (SCA)]. Having
considered the record, it is evident that FA29 remains operative. A judicial review of
“FA29” would have a practical, binding effect on the immediate rights of the litigants.
“FA29” would have a practical, binding effect on the immediate rights of the litigants.
Moreover, it carries profound, far -reaching consequences for small -scale fishers. An
allocation decision of this nature establishes a regulatory baseline that transcends a
single seasonal cycle, retaining long -term prospective significance for all future
determinations. See WWF, supra, at paras 75 –78. Judge Rogers, as he was then ,
stated the following:
“[75] The question of mootness must thus be decided. In my view, the application
should not be rejected on this ground. Although a declaration of invalidity concerning
the 2017/18 determination would not affect fishing in the season governed by that
determination, a previous year’s determination may be relevant to the succeeding
year’s determination. The OMP envisages forward planning. A recommendation in
respect of the current year has regard to the previous year’s determination and looks
forward to succeeding years. Annual determinations do not occur in a vacuum. The
OMP under ordinary circumstances constrains a succeeding year’s TAC within
certain limits in relation to the previous year’s TAC.
[76] History confirms the relevance of past determinations. In November 2011 and
November 2012, the Department set the TAC at the 2010 tonnage (contrary to the
OMP/SWG recommendation of reductions). Again in November 2016 and November
2017, the TAC was set at the same level as in November 2015. If one asks why the
very TAC determination at issue in the present case was set at 1924.08 tons rather
than at some other tonnage, the answer would be that this was the previous year’s
determination and that the Department did not wish to change it.
[77] Apart from the prospective significance of the 2017/18 determination, a court has
a discretion in the interests of justice to entertain a matter, even if it is moot. An
important consideration is whether the order will have some practical effect, either on
the parties themselves or on others. Other relevant considerations include the
importance of the issue, its complexity and the fullness or otherwise of the argument
advanced (MEC for Education: Kwazulu-Natal & others v Pillay [2007] ZACC 21;
2008 (1) SA 474 (CC) paras 32 -35). And then there is the central importance of the
rule of law. In Pheko & others v Ekurhuleni Metropolitan Municipality [2011] ZACC 34;
2012 (2) SA 598 (CC) Nkabinde J said the following (para 32):
2012 (2) SA 598 (CC) Nkabinde J said the following (para 32):
It is beyond question that the interdictory relief sought will be of no consequence as
the applicants have already been removed from Bapsfontein. Although the removal
has taken place, this case still presents a live controversy regarding the lawfulness of
the eviction. Generally, unlawful conduct is inimical to the rule of law and to the
development of a society based on dignity, equality and freedom. Needless to say,
the applicants have an interest in the adjudication of the constitutional issue at stake.
The matter cannot therefore be said to be moot.’
[78] The present case raises important questions about alleged noncompliance by
the DDG of binding constitutional and statutory objectives and principles in
determining the TAC of a highly depleted resource. The matter has been fully argued.
Mr Jamie SC, who appeared with Ms Matsala for the government parties, submitted
that the court should not grant the prospective relief sought in para 4 the notice of
motion but acknowledged that the court’s reasoning, if it were to set aside the
2017/18 determination, might be important, even welcomed, in guiding future
determinations.”
[98] Consequently, “FA29” has not lost its legal force or disappeared merely because
of the passage of time or the intervention of subsequent events.
Regulation 5 (3)
[99] As far as the regulation 5 (3) report [that is relevant to the mootness point] is
concerned, it has the potential to set aside the Minister’s appeal decision.
[100] The appellants contend that nothing precludes this Court from determining the
merits of the Regulation 5 report. However, this submission misconceives the
fundamental principle that an appeal lies strictly against the substantive order of the
court a quo , not against its underlying reasoning. The order of the lower court is
entirely silent on the status of the Regulation 5 report. Furthermore, it remains
common cause that the court a quo did not determine the merits of the application,
including the report. Consequently, in the absence of a competent order from the
court of first instance, this Court is precluded from entertaining the issue.
[101] Accordingly, if this Court were to rule on the Regulation 5 reports now, it would
be acting as a court of first instance, deciding the issue for the very first time.
[102] This Court remains mindful of the exceptional circumstances required to justify
its exercise of appellate intervention. Because the Regulation 5 report was never
determined by the court a quo , entertaining it now would exceed those strict
boundaries. Consequently, this Court cannot adjudicate on the Regulation 5 report.
Conclusion
[103] Having evaluated the explanation for the delay alongside the clear prima facie
merits of the underlying dispute, I am satisfied that good cause has been shown and
that condonation ought to be granted. However, because the court a quo insulated
itself from the substantive merits by dismissing the application on a preliminary
basis, it would be inappropriate for this Court , as a court of first and final instance , to
adjudicate those unventilated issues. Consequently, the proper course is to remit the
merits to the lower court for comprehensive ventilation. This appears to this Court to
be the most practical way of dealing with the issue.
[104] As a result, I propose the following order:
Order
1. The appeal is upheld.
2. The order of the court a quo is set aside and replaced by the following order:
a. The applicants’ application for condonation of the non-compliance with
PAJA is granted.
b. The respondents’ points in limine are dismissed.
c. The matter is remitted to the court a quo for the hearing and
comprehensive determination of the substantive merits of the
application.
2. Costs of this appeal will be costs in the main application.
_________________________
CN NZIWENI
JUDGE OF THE HIGH COURT
I agree, and it is so ordered.
_________________________
NC ERASMUS
JUDGE OF THE HIGH COURT
I agree.
_________________________
P NJOKWENI
JUDGE OF THE HIGH COURT
Appearances:
Counsel for Appellants : Advocate P Farlam SC
Advocate M Steenkamp SC
Instructed by : Dawson Edwards & Associates
Mr P Edwards
Counsel for First to Third Respondents : Advocate J Rust SC
Advocate N Fourie
Instructed by : The State Attorney
Mr L Golding
Attorneys for Fourth & further Respondents: Cullinan & Associates
Mr P Stone