Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others

• Jurisdiction: South Africa
• Citation: 2004 (4) SA 490 (CC)

Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others
2004 (4) SA 490 (CC)

2004 (4) SA p490

Citation	2004 (4) SA 490 (CC)
Case No	CCT 27/03
Court	Constitutional Court
Judge	Chaskalson CJ, Langa DCJ, Ackermann J, Goldstone J, Madala J, Mokgoro J, Moseneke J, Ngcobo J, O'Regan J, Sachs J and Yacoob J
Heard	September 11, 2003
Judgment	March 12, 2004
Counsel	I Jamie SC (with him P R Hathorn) for the applicant.; W H Trengove SC (with him A Schippers and A M Breitenbach) for the first and second respondents.; L A Rose-Innes SC (with him P B J Farlam) for the third to eighteenth respondents.

Flynote : Sleutelwoorde C

Constitutional law — Separation of powers — Whether judiciary infringing on powers of Executive — Decision of agencies — D Court to recognise proper constitutional role of Executive by treating decisions of administrative agencies with E appropriate respect — To be careful not to attribute to itself superior wisdom in relation to matters entrusted to other branches of Government — To give due weight to findings of fact and policy decisions made by those with special expertise and experience in particular field — Extent of such weight to depend on character of decision itself as well as on identity of F decision-maker — Court to respect decisions by persons with specific expertise which require equilibrium to be struck between range of competing interests or considerations — To respect route selected to achieve goal — This not meaning that where decision one which would not reasonably result in achievement of goal, or which was not reasonably supported on facts or not reasonable in light of reasons given for it, Court might not review that decision — Court not to rubber-stamp unreasonable G decision simply because of complexity of decision or identity of decision-maker.

Constitutional law — Review — Of administrative action — Allocations of in terms of Marine Living Resources Act 18 of 1998 — Promotion of Administrative Justice Act 3 of 2000 applicable — As PAJA H gives effect to s 33 of Constitution of the Republic of South Africa Act 108 of 1996, matters relating to interpretation and application of PAJA constitutional matters — Applicant not relying on PAJA in notice of motion or founding affidavit — SCA and High Court erring in not considering claims made by applicant in context of PAJA — Permissible to refer thereto only in argument, but it must be clear from facts alleged that section relevant I and operative — Power of Court to intervene in decisions of Executive discussed.

Fish and fisheries — Fishing quotas — Allocations of in terms of Marine Living Resources Act 18 of 1998 — Review of — Grounds of review based on allegation that Chief Director's allocation failing to achieve goal of Act of transformation required by s 2(j) of Act — On evidence established that J

2004 (4) SA p491

Chief Director taking all identified considerations into account — Transformation as required by A ss 2(j) and 18(5) of Act could be achieved in variety of ways and Chief Director selecting way he thought appropriate — Chief Director's decision might or might not have been best decision in circumstances, but that was not for present Court to consider — Court merely had to decide whether decision struck reasonable equilibrium between principles and objectives set out in ss 2 and 18(5) of Act in context of specific B facts of deep-sea hake trawl sector — Equilibrium achieved could not be said to be unreasonable — Importance of transformation in context of Act discussed at length.

Headnote : Kopnota

The applicant was dissatisfied with the allocation of fishing quotas it had received in the 2001 allocation process for the 2002 - 05 C fishing seasons and it sought to review that allocation. The review succeeded in the Cape High Court, but on appeal that judgment was overturned by the Supreme Court of Appeal (SCA). The case raised the question of the extent to which such a decision was susceptible to review under our new constitutional order. The applicant relied on three grounds in its application for special leave to appeal to the present Court: (a) that the SCA misconstrued the nature of D the objectives in s 2 of the Marine Living Resources Act 18 of 1998 (the Act); (b) that the SCA incorrectly concluded that the Chief Director's decision should not be set aside on the ground that he failed to apply his mind to the quantum of hake applied for by the applicant and its ability to catch such quantum; and (c) that the SCA erred in finding that the alleged 'undisclosed policy change' by the Department did not infringe the E applicant's right to procedural fairness. The applicant did not mention the Promotion of Administrative Justice Act 3 of 2000 (PAJA) either in its notice of motion and founding affidavit in the High Court, or in its application for special leave to appeal to the present Court.

Held, that the provisions of s 6 of PAJA divulged a clear purpose to codify the grounds of judicial review of administrative F action as defined in PAJA. The cause of action for the judicial review of administrative action now ordinarily arose from PAJA, not from the common law as in the past. And the authority of PAJA to ground such causes of action rested squarely on the Constitution. Since PAJA gave effect to s 33 of the Constitution of the Republic of South Africa Act 108 of 1996 (the Constitution), matters relating to the interpretation G and application of PAJA would of course be constitutional matters. In these circumstances, it was clear that PAJA was of application to this case and the case could not be decided without reference to it. To the extent, therefore, that neither the High Court nor the SCA considered the claims made by the applicant in the context of PAJA, they had erred. (Paragraphs [25] and [26 ] at 506I - 507B.) H

Held, further, that, although the applicant did not directly rely on the provisions of PAJA in its notice of motion or founding affidavit, it had in its further written argument identified the provisions of PAJA upon which it now relied. Where a litigant relied upon a statutory provision, it was not necessary to specify it, but it had to be clear from the facts alleged by the litigant that the section was relevant and operative. (Paragraphs [26] and [27] at I 507B/C - D.)

Held, further, that with regard to the first ground of appeal raised by the applicant, it had identified ss 6(2)(b), (d), (e)(iii), (f)(i) and (ii), (h) and (i) as the provisions of PAJA upon which it relied. The question to be considered was the proper interpretation of s 2(j) of the Act taking into account s 18(5) of the Act and, in particular, the nature of the obligations J

2004 (4) SA p492

imposed upon the Chief Director by these provisions. In this regard, it should be noted that s 2 of the Act contained a wide A number of objectives and principles, for example the conservation of the marine ecosystem, the sustainable use of marine living resources and the need to utilise marine living resources to achieve economic growth, to build capacity in the industry and to create employment. Not all the objectives and principles would be relevant to every decision B taken under the Act. In determining the amount of the total allowable catch, for example, the provision relating to the sustainable use of marine resources and the need to conserve the marine ecosystem would clearly be relevant, although once that decision had been taken and the process of allocation of fishing rights commenced, those factors would be of less relevance. In relation to some decisions, the objectives and C principles listed in s 2 of the Act might to some extent be in conflict with one another as they could not all be fully achieved simultaneously. Moreover, there might be many different ways of achieving each of the objectives individually. The section did not give clear guidance on which method should be selected or how an equilibrium was to be reached. (Paragraphs [30] and [32] at 508C and 508G/H - 509B/C.)

Held, further, that the provisions of ss 2 and 18 of the Act made it plain that the obligation imposed upon the decision-maker D was an obligation to 'have regard to' the factors mentioned in s 2 of the Act, and to 'have particular regard to' the factor mentioned in the case of s 18(5) of the Act. The repetition of the requirement of the factor of transformation indicated its importance and the need for special attention to be given to the questions of E restructuring and redress in the fishing industry. The historical imbalances which continued to disfigure the South African economy were felt acutely in the fishing industry. By underlining the importance of restructuring so as to redress imbalances, the Act emphasised that the unjust status quo could not be maintained simply in the interest of stability. The thrust of the Act in this respect was in keeping with the Constitution. When making his determination on quotas F the Chief Director was accordingly obliged to give special attention to the importance of redressing imbalances in the industry with the goal of achieving transformation in the industry. (Paragraph [34] at 509D - G.)

Held, further, that what was also clear was that the broad goals of transformation could be achieved in a myriad of ways. There was not one simple formula for transformation. To the extent that the G Act emphasised the need for decisions to facilitate the process of transformation, it suggested no particular preference for the manner in which this should be achieved. The manner in which transformation was to be achieved was, to a significant extent, left to the discretion of the decision-maker. (Paragraph [35] at 509G - H/I.) H

Held, further, that s 18(5) of the Act was of great importance at the stage when...