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[2013] ZAWCHC 94
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Sole NO and Another v Minister of the Department of Agriculture, Forestry and Fisheries and Others (356/13) [2013] ZAWCHC 94 (13 June 2013)
IN THE HIGH COURT OF
SOUTH AFRICA
[WESTERN CAPEHIGH COURT,
CAPE TOWN]
Case
No:
356/13
In
the matter between:
JUDITH ANNE SOLE
N.O.
THE PEOPLE OF THE
REPUBLIC OF
SOUTH
AFRICA
...............................................................................................
Applicant
and
MINISTER OF THE
DEPARTMENT OF
AGRICULTURE,
FORESTRY AND FISHERIES
............................
First
Respondent
DEPUTY
DIRECTOR-GENERAL OF THE
FISHERIES BRANCH:
DEPARTMENT OF
AGRICULTURE, FORESTRY AND
FISHERIES
........................................................................................
Second
Respondent
MINISTER OF THE
DEPARTMENT OF
FINANCE
..............................................................................................
Third
Respondent
MINISTER OF THE
DEPARTMENT OF
SOCIAL
DEVELOPMENT
...............................................................
Fourth
Respondent
THE PARTIES
LISTED IN ANNEXURES “A”
AND “B”
TO THE ORDER DATED
21
FEBRUARY 2013
.......................................................................
Further
Respondents
JUDGMENT
DELIVERED: 13 JUNE 2013
FOURIE,
J:
[1] The applicant,
who purports to act in the public interest on behalf of “
the
people of the Republic of South Africa”,
seeks a final
interdict on an urgent basis, compelling the first and second
respondents to,
inter alia
, suspend all commercial fishing
activities in the South African West Coast Rock Lobster
(“WCRL”)fishery, with immediate
effect so as to allow the
WCRL stock to recover to above a minimum standard of 20% of its
pre-exploitation level. The ancillary
and alternative relief
sought,entails the introduction of measures aimed at the achieving of
the main goal, namely to save the
WCRL from, what applicant perceives
to be, over-exploitation which will lead to the commercial and/or
biological extinction of
the species.
[2] The application
is opposed by the governmental respondents (first andsecond
respondents), as well as the further respondents,
the latter being
entities representing the interests of some 2500 holders of
commercial fishing rights for WCRL, who are directly
dependent on the
WCRL fishery for their livelihood. In the main, the respondents
oppose the application on the basis that there
are no factual, legal
or scientific grounds which call for the suspension of commercial
fishing activities in the WCRL fishery.
The respondents further
contend that, if the court were to grant the drastic and far-reaching
relief sought by the applicant, it
would cause irreparable financial
prejudice and hardship to the rights holders, which is not justified,
especially having regard
to the scientific and efficient manner in
which the WCRL fishery is managed by the Fisheries Branch of the
Department of Agriculture,
Forestry and Fisheries (“the
department”).
[3] At the outset,
it is necessary to reiterate that the requirements for the granting
of a final interdict, are the following:
Firstly, the
applicant has to show that she has a clear right which she seeks to
protect by means of an interdict.
Secondly, she has
to show an interferenceby the respondents with the exercise of the
right which she possesses.
Thirdly, she has to
prove that there is no other satisfactory remedy available to her
than the granting of a final interdict.
[4] In view of the
conclusion that I have reached in this matter, it is not necessary
for me to dwell on the issue of applicant’s
locus standi
which has been pertinently raised by respondents.Nor do I have to
spend much time on the first requirement mentioned above, i.e.
whether applicant has shown the existence of a clear right. It would
suffice to say that she apparently bases this right on section
24 (b)
(iii) of the Constitution, 1996, which reads as follows:
“
Everyone
has the right to have the environment protected, for the benefit of
present and future generations, through reasonable
legislative and
other measures that secure ecologically sustainable development and
use of natural resources by promoting justifiable
economic and social
development”.
[5] For purposes of
this judgment, I accept that applicant has satisfied the first
requirement for the granting of a final interdict,
i.e. that she has
a clear right to the protection of the environment, including the
protection of the WCRL. With regard to the
second requirement for the
granting of a final interdict, it has to be determined whether
applicant has shown that her right is
being interfered with by the
respondents. She has to show, at least, that a reasonable
apprehension of injury exists and she is
required to set out the
facts grounding this apprehension in her founding affidavit.
[6] The main thrust
of the applicant’s case for the granting of the interdict, is
the allegation that the WCRL resource has
been commercially
over-exploited to the extent that it has been reduced to only 3,1% of
its pristine pre-exploitation level for
the 2012-13 season. On the
strength thereof, she contends that the WCRL is on the brink of
extinction and that the “
tipping point may already have been
reached”
. Therefore, she arguesthat immediate intervention
is required.
[7] However, what
does not appear from the applicant’s founding papers, is that
the WCRL resource has, in fact, fluctuated
in a range between 2% and
4% of pristine pre-exploitation levels since about the 1960’s,
but this notwithstanding, the resource
has continued to be fished
sustainably. As pointed out by the respondents, the statistic of 3,1%
referred to by applicant, did
not suddenly arise in the 2012-13
season, necessitating any emergency measures. This is borne out by
the department’s status
report, annexed to applicant’s
founding affidavit, which illustrates the annual biomass of male rock
lobsters in relation
to pristine values for the resource as a whole.
It is clear from this graphthat the WCRL resource has been
fluctuating between
2% and 4% of pristine pre-exploitation levels
since 1960.
[8] It is so that
all the parties concerned accept that it is constantly necessary to
take steps to enhance the recovery of the
WCRL resource, but first
and second respondents contend that this is exactly what has been
done by the department. To put it differently,
the first and second
respondents emphatically deny any suggestion that they, and in
particular the department, have interfered
with or infringed upon the
applicant’s constitutional right to have the WCRL resource
protected.
[9] Section 24 of
the Constitution envisaged the introduction of legislation to,
inter
alia
, secure ecologically sustainable development and use of
natural resources.To this end the Marine Living Resources Act No. 18
of
1998 (“the MLRA”), was introduced. The MLRA regulates
the allocation and management of long term fishing rights, including
the WCRL fishing rights. The Act embodies the pillars of the new
fishing policy, which are sustainability, equity and stability
within
the industry. The MLRA confers an array of statutory powers and
responsibilities on the first respondent and she, or her
delegate, is
required to strike the balance of achieving the optimum utilisation
and sustainable development of marine living resources,
whilst at the
same time ensuring that marine living resources are utilised to
achieve economic growth and employment creation.
[10] The deponent to
the answering affidavit of the first and second respondents, has at
length explained the steps and procedures
taken by the Minister and
the department in fulfilling their duties and obligations in terms of
the MLRA. Whilst these respondents
concede that the WCLR resource is
under pressure, they maintain that it is being carefully monitored
and managed within a sound
scientific framework that has
sustainability as a foundational objective. They contend that the
department has taken extensive
measures over the years to ensure that
the WCRL fishery is managed in an equitable, stable and sustainable
manner. To this end,
the department has established a Scientific
Working Group (“the SWG”) for WCRL, to provide scientific
advice in the
management of the fishery. The SWG consists of several
well-respected scientists who, together with fisheries management
experts
and other stakeholders, meet regularly to assess the status
of the WCRL resource. They consider all available data and evidence
in order to determine the status and projected growth of the
resource, and to recommend on the rebuilding strategy for the
resource.The
SWG also advises on the size of the total allowable
catch (“the TAC”) of WCRL, in terms of an Operation
Management
Procedure(“OMP”) which has been developed to
provide a basis for setting the TAC for the resource.
[11] The first OMP
was developed in 1997, after intensive consultation with the industry
and other role players.It applied a precautionary
approach in respect
of managing the WCRL resource, in accordance with scientifically
accepted guidelines. The 1997 OMP also introduced
a rebuilding
strategy for the WCRL resource, with a target recovery of 20% above
the 1996 level of the exploitable biomass by the
year 2006. By 2003,
the resource had improved to 16% above the 1996 level. However, by
2006,the resource abundance had decreased
to 18% below the 1996
level. The commercial TAC was therefore decreased by 10% for the
following three consecutive fishing seasons,
in an attempt to rebuild
the stock to the new target of 20% above the 2006 level by 2016.
[12] The OMP was
subsequently revised in 2000, 2003, 2007 and 2011. The OMPs that have
been developed and used in managing the WCRL
resource over the years,
have also been subjected to rigorous international scientific peer
review by leading fisheries scientists
and have earned significant
praise and respect. The OMP adopted in 2011, aimed to rebuild the
exploitable male component of the
WCRL resource to 35% above the 2006
level by 2021.
[13] It should be
borne in mind that OMP-2011 also makes provision for “
exceptional
circumstances”
measures, which would allow for more radical
reductions in TACs, should resource monitoring data indicate that
trends in abundance
are proving worse than projected. Appendix 6
thereto, sets out the process for determining whether exceptional
circumstances exist.
This provides for written representations to be
made to the relevant working group and if, upon the consideration
thereof, the
working group agrees that exceptional circumstances
exist, it will determine the severity of the exceptional
circumstances and
enact the process of action set out in Appendix 6.
[14] The respondents
contend that the information placed before the court shows that the
department has, after considerable scientific
and management
intervention, determined that the continued utilisation of the WCRL
resource is possible on a sustainable basis.
In particular, the TACs
recommended under the OMPs are projected to result in increases in
abundance in the future and hence are
less than the sustainable
levels of catch would be. There is, according to the respondents, no
scientific basis for the conclusion
that the WCRL source is
over-exploited to the extent that it faces extinction. On the
contrary, the respondents contend that the
management of this
resource by the Minister and the department, having regard to the
goals set by the MLRA, has resulted in some
recovery whilst keeping
the probability of further reduction of the WCRL source low.
[15] In view of this
body of evidence produced by the respondents, it surely cannot be
said that the Minister and/or the department
have interfered with or
infringed upon the applicant’s constitutional right, by failing
to take reasonable measures to secure
or enhance the ecologically
sustainable development of the WCRL. The applicant cannot dispute
that the extensive measures put in
place by the department in an
attempt to protect the WCRL source, are scientifically justified and
have received wide acclamation
from experts in this field.
[16] The applicant
was accordingly constrained to argue that the steps taken by the
department are insufficient, as the WCRL resource
is in far more
danger of commercial extinction than the department realises. In this
regard, she submitted that all commercial
fishing activities in the
WCRL fishery should be suspended immediately, so as to allow the WCRL
stock to recover to above the internationally
accepted minimum
standard of 20% of its pre-exploitation level. According to the
applicant, 20% is the point at which, according
to international best
practice, all fishing activities should be suspended. The difficulty
that I have with this submission, is
that applicant has not referred
to any expert scientific evidence or other credible authority to
substantiate this so-called best
practice rule. She has attempted to
rely on certain USA legislation, but no clear principle emerges,
particularly as there are
so many variables and imponderables,which
show that matters of this nature can only be properly dealt with and
managed on a case
by case basis, having regard to the peculiar
circumstances of each case.It is clear to me that there is no proof
at all of an internationally
accepted minimum benchmark of 20%, as
contended for by the applicant.
[17] The applicant
has also pointed to the fact that the first and second respondents
have failed to implement the recommendations
of the SWG, in
determining the TAC allocation for the 2012/13 WCRL fishing season.
However, as pointed out by respondents, thisdecision
has not been
attacked by means of an appeal in terms of section 80 of the MLRA,
with the result that the 2012/13 TAC allocation
stands unchallenged.
In any event, it has to be borne in mind that, in determining the
TAC, the department had to balance competing
factors and in the
process decided to allocate the same TAC as was allocated in the
2011/12 season. Although the SWG’s recommendations
for the TAC
allocation for 2012/13 WCRL fishing were not accepted, the recovery
plan for the WCRL resource remains intact. As pointed
out in their
answering affidavits, the first and second respondents remain
committed to rebuilding the 2006 exploitable male biomass
level of
the WCRL by 35% by 2021.
[18] In conclusion,
I find that the applicant has not advanced any basis at all for a
finding that her constitutional right, or
the constitutional right of
the people of South Africa, with regard to the environment, and in
particular with regard to the WCRL
resource, has been prejudiced or
infringed by any of the respondents. It follows that she has failed
to satisfy this requirement
for the granting of a final interdict.
[19] Furthermore,
and in any event, the applicant has dismally failed to prove the
third requisite for the grant of a final interdict,
namely that there
is no other satisfactory remedy available to her. It should be borne
in mind that a final interdict is a drastic
remedy and the court has
a discretion to grant or refuse same. The court will therefore not,
in general, grant an interdict when
the applicant can obtain adequate
redress in some other form of ordinary relief. An applicant for a
permanent interdict must allege
and establish, on a balance of
probability, that he or she has no alternative legal remedy.
See C. B Prest,
The
Law and Practice of Interdicts
, pages 45-46.
[20] In the instant
matter there are several alternative remedies available to the
applicant. She has not attempted to pursue any
of them and merely
contends that, as a lay person, she was not aware of her legal
remedies. However, the absence of knowledge on
her part, cannot
overcome the difficulty presented by her failure to employ available
alternative remedies, before approaching
the court for the granting
of a drastic interdict of this nature. The alternative remedies
include the following:
A request directed
to the first respondent in terms of section 16 of the MLRA, to
declare emergency measures. The section provides
that, if any
emergency occurs that endangers or may endanger stocks of fish or
aquatic life, the Minister may take steps which
may include the
suspension of all or any of the fishing in a fishery or part of a
fishery.
The taking of steps
to propose an exceptional circumstances review in terms of Appendix
6 of the 2011 OMP.
An internal appeal
in terms of section 80 of the MLRA against the TAC allocation for
the 2012/13 WCRL fishing season.
A review in terms
of the
Promotion of Administrative Justice Act No. 3 of 2000
, for
the setting aside of the TAC determination for the 2012/13 season.
[21] I should add
that, in exercising its discretion, the court should also bear in
mind the huge financial implications and social
upheaval that would
be caused by the granting of the interdict. The applicant conceded
that the interdict sought by her could very
well be of a perpetual
nature, or at least endure for a number of years. In my view, it
would be totally irresponsible for the
court to consider the granting
of an interdict in these circumstances, particularly in the absence
of any convincing evidence,
thereby causing financial prejudice and
social upheaval on such a grand scale. Even the alternative measures
suggested by the applicant,
would cause severe prejudice and
irreparable harm. I therefore conclude that, on the papers before me,
the applicant has not made
out a case for relief and the application
therefore falls to be dismissed.
[22] This brings me
to the issue of costs. The general rule is that costs are to follow
the event. From this it follows that the
respondents, as the
successful parties, would ordinarily be entitled to a costs order in
their favour. This general rule should
only be departed from in
exceptional circumstances.
[23] However, with
the advent of our new constitutional era, the courts have on occasion
held that litigants who seek to enforce
constitutional rights and/or
raise matters of public importance, should not be discouraged from
enforcing their rights by having
to run the risk of having to pay the
costs of their governmental adversaries. But this approach is not
unqualified. If an application
is frivolous or vexatious, or in any
other way manifestly inappropriate, the applicant should not expect
that the worthiness of
its cause will immunise it against an adverse
costs award. The mere labelling of litigation as constitutional or in
the public
interest will in itself not be enough to invoke this
approach. The issues must be genuine and substantive, and truly raise
constitutional
or public interest considerations relevant to the
adjudication. See
Biowatch Trust v Registrar, Genetic Resources
,
2009 (6)SA 232 (CC) at paragraphs 21-25.
[24] The instant
application was, for the reasons furnished above, doomed to failure
from its inception. Normally, this would result
in an adverse costs
order against the applicant. However, as explained above, she
professed to enforce her constitutional rights,
while also acting in
the public interest. I have no reason to doubt her
bona fides
and it was abundantly clear to me that she was wholly motivated by
her real concern for the environment, and in particular, the
survival
of the WCRL resource. Although the application may have been
ill-conceived, with the applicant rushing in without taking
steps to
properly consider the alternative remedies available to her, I cannot
find that her conduct should be branded as frivolous
or vexatious.
The impression I gained is that she verily believed that,
particularly the first and second respondents, were failing
in their
constitutional duty to take proper measures to secure the
ecologically sustainable development and use of the WCRL resource.
In
view thereof, I do not believe that applicant should be held liable
for the costs of her governmental adversaries i.e. the first
and
second respondents.
[25] However, in my
view, the relationship between applicant and the non-governmental
respondents is radically different. She was
not locked in battle with
them regarding her constitutional rights or matters of public
interest. These respondents were joined
by order of court, as they
had a direct and substantial interest in the outcome of the
litigation. In effect, these respondents
were obliged to oppose the
application to protect their livelihood or the livelihood of their
members, as well as their business
interests. In the circumstances, I
see no reason why these respondents, who have successfully opposed
the application, should not
be entitled to their costs.
[26] In the result
the following order is made:
The application is
dismissed.
The applicant is
ordered to pay the costs of suit of the non-governmental respondents
who opposed the application.
________________
P B Fourie, J