Fishing for administrative justice in marine spatial planning: Small-scale fishers' right to written reasons

• Jurisdiction: South Africa
• Pages: 122-146
• Date: 08 April 2021
• Author: Chasakara, R.
• Published date: 08 April 2021
• Citation: 2021 JOGA 122
• DOI: https://doi.org/10.47348/JOGA/2021/a4

https://doi.org/10.47348/JOGA/2021/a4 122

FISHING FOR ADMINISTRATIVE JUSTICE IN

MARINE SPATIAL PLANNING: SMALL-SCALE

FISHERS’ RIGHT TO WRITTEN REASONS

RACHAEL CHASAKARA†

Doctoral candidate, Nelson Mandela University

NTEMESHA MASEKA‡

Doctoral candidate, Nelson Mandela University

The emergence of marine spatial planning (MSP) has been ascribed to

the inability of the ocean spaces to meet all demands simultaneously.

With increasing uses and users of the ocean comes a rise in conflicts.

Studies that sought to reduce those conflicts have shown the benefits

of zoning the ocean in space and time. In South Africa, the Department

of Environment, Forestry and Fisheries, which functions through a

national working group (NWG) on MSP, is responsible for the

implementation of MSP, which includes ocean zoning in South Africa’s

ocean spaces. In the implementation of MSP, the NWG will make

decisions which, this article argues, constitute administrative action

triggering the constitutional right to written reasons. This article

examines the small-scale fishers’ right to written reasons following a

decision by the NWG. It concludes that the NWG does have an

obligation to fulfil this right and that the MSP instruments are drafted

in a manner that supports this duty.

[Keywords] Marine spatial planning, right to written reasons,

administrative justice, small-scale fishers, ocean governance

I INTRODUCTION

In South Africa, the Interim Constitution1 that ushered in a

new constitutional dispensation represented a bridge between

† LLB (cum laude) LLM.

‡ LLB LLM (cum laude). This research was funded by the South

African Research Chairs Initiative through the South African National

Department of Science and Innovation/National Research Foundation,

by a Community of Practice grant in Marine Spatial Planning (UID:

87583). The opinions expressed in this publication are not necessarily

those of the funding bodies.

1 The Constitution of the Republic of South Africa (Act 200 of 1993).

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2021 JOGA 122

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Fishing for administrative justice in marine spatial planning: Small-scale

fishers’ right to written reasons 123

https://doi.org/10.47348/JOGA/2021/a4

a culture of authority and one of justification.2 This culture

of justification is described as one ‘in which every exercise

of power is expected to be justified; in which the leadership

given by government rests on the cogency of the cases offered

in defense of its decisions, not the fear inspired by force at

its command’.3 The constitutional entrenchment of fundamental

rights and freedoms in the Bill of Rights contained in the Final

Constitution4 reflects both a rights-based approach to all law and

administrative conduct as well as this culture of justification.5

As a result of this constitutional entrenchment, these rights

and freedoms ‘may only be limited in terms of laws of general

application to the extent that the limitation is reasonable

and justifiable in an open and democratic society based on

human dignity, equality and freedom, taking into account all

relevant factors’.6

In the sphere of environmental law, officials are mostly

required to grant authorisations for specified conduct and

decisions in this regard must be taken following the precepts of

administrative law.7 Section 33 of the Constitution guarantees

the right to just administrative action, which requires that all

administrative action be lawful, reasonable and procedurally

fair and that written reasons be provided for administrative

decisions. The right to just administrative action ‘assists a

person aggrieved by administrative action, such as a potentially

invalid environmental decision by an environmental officer,

to challenge the action in question’.8 Against this backdrop,

this article examines the right of small-scale fishers to written

reasons following a decision by the National Working Group

(NWG) on marine spatial planning (MSP). The article begins

2 E Mureinik ‘A bridge to where – Introducing the interim Bill of Rights’

(1994) 10 South African Journal on Human Rights 31–48 at 32.

3 Ibid.

4 The Constitution of the Republic of South Africa, 1996.

5 See M Kidd ‘Administrative law and implementation of environmental

law’ in N D King, H A Strydom & F P Retief (eds) Environmental

Management in South Africa 3 ed (2018) 209–261 at 210.

6 Section 36(1) of the Constitution. These factors include: ‘(a) the

nature of the right; (b) the importance of the purpose of the limitation;

(c) the nature and extent of the limitation; (d) the relation between the

limitation and its purpose and (e) less restrictive means to achieve the

purpose’.

7 Kidd op cit note 5 at 209.

8 Kidd op cit note 5 at 211.

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