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

• Jurisdiction: South Africa
• Citation: 2003 (6) SA 407 (SCA)

Minister of Environmental Affairs and Tourism and Others v Phambili Fisheries (Pty) Ltd;
Minister of Environmental Affairs and Tourism and Others v Bato Star Fishing (Pty) Ltd
2003 (6) SA 407 (SCA)

2003 (6) SA p407

Citation	2003 (6) SA 407 (SCA)
Case No	32/2003 and 40/2003
Court	Supreme Court of Appeal
Judge	Howie P, Schutz JA, Mthiyane JA, Conradie JA and Jones AJA
Heard	May 2, 2003; May 5, 2003
Judgment	May 16, 2003
Counsel	L A Rose-Innes SC (with him P B J Farlam) for the appellants in the Phambili Fisheries (Pty) Ltd appeal.; P B Hodes SC (with him R P Quinn SC) for the respondents.; W H Trengove SC (with him A Schippers and A M Breitenbach) for the appellant in the Bato Star Fishing (Pty) Ltd appeal.; I Jamie SC (with L J Bozalek) for the respondents (the heads of argument having been drawn by I Jamie SC, L J Bozalek and P R Hathorn).

Flynote : Sleutelwoorde B

Administrative law — Review — Powers of Court — Reiterated that Court not sitting in appeal on correctness of functionary's C decisions — Court to display appropriate judicial deference to functionary's decision, particularly where subject-matter of administrative action very technical and Court having no proficiency therein — Court confined to review of procedure adopted by functionary in arriving at his decision. D

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 — Review application succeeding in High Court — On appeal reiterated that Court E not sitting in appeal on correctness of Chief Director's decisions — Court to display appropriate judicial deference to Chief Director's decision, particularly where subject-matter of administrative action very technical and Court having no proficiency therein — Court confined to review of procedure adopted by Chief Director in arriving at his decision — Chief Director having taken goal of F transformation into account in making allocations — Accordingly, Court upholding appeal and setting aside decision of Court a quo.

Costs — Special order as to — Appeal — Punitive costs — Punitive costs awarded on basis of non-compliance with Rules 8(6)(d)(ii) and 8(7) of Rules of Supreme Court of Appeal and unnecessarily inflated record — G

2003 (6) SA p408

Court disallowing appellants' attorneys from recovering one-third of costs A of preparing record from respondents or their own clients.

Headnote : Kopnota

The respondents were fishing companies that came from the ranks of historically disadvantaged persons (hdp). They had in terms of the Marine Living Resources Act 18 of 1998 (MLRA) applied for, and been awarded, quota allocations in the hake deep sea trawling sector for the 2002 season. They complained that they ought to have been awarded B higher quotas. They maintained that, in making the quota allocations, the Chief Director: Marine Coastal Management had failed to take transformation into account and that, had he done so, he would have awarded them higher quotas. Their complaint did not relate to procedure but to the ultimate decision of the Chief Director. The appellants (the C respondents in the Court a quo) were the Minister, the Chief Director, the Deputy Director-General and 16 fishing companies which also had been awarded quotas and which opposed the application. The allocation procedure had consisted of the Chief Director's using the 2001 allocations as a starting point, deducting 5% from those figures and placing it in an 'equity pool' and then D re-distributing the 'equity pool' amongst the various quota-holders, to arrive at the 2002 allocations. The re-distribution was done in such a way that companies holding large quotas received back less than their 5% deduction and companies holding smaller quotas received back more than their 5% deduction. The respondents maintained that much more ought to have been taken from the companies holding larger quotas and that many other, smaller applicants ought to have E been denied rights altogether. The respondents asked the Court to set aside the Chief Director's allocation in its entirety and to refer the matter back to him, so that he might perform the allocation procedure in what they maintained was the proper manner. The respondents succeeded in application for the review of the Chief Director's decision in a Provincial Division. In an appeal against that decision, F

Held, that the Court a quo had found that the Chief Director had ignored the goal of the MLRA of transformation and had relied on extraneous criteria such as stability and capital intensity in reaching his decision. In so doing, it found, he had ignored the provisions of s 2 (particularly, s 2(j)) of the MLRA and his decision had therefore been fatally flawed. (Paragraphs [25] and [26] at 423J and 424C - C/D.) G

Held, further, that it was apparent that the Act (and s 2(j) in particular) introduced a mandatory requirement to have regard to the redress of certain wrongs of the past. And if the Chief Director had failed to heed this injunction, he would have failed in his duty and his decision would be open to attack. However, contrary to the respondents' contention that s 2(j) had a predominating force, that did not mean that the subsection swamped the H rest of the Act. (Paragraphs [27] and [28] at 424E/F and H/I - I/J.)

Held, further, that, the various functionaries concerned had to have regard to a wide range of objectives and principles. Those objectives and principles would often be in tension and might even be irreconcilable with one another. Accordingly, contrary to the respondents' contention that s 2(j) had to be given I effect to each time, it would be impractical, if not impossible, to give effect to every one of them on every occasion. Section 2 did not say that a functionary had to have regard to each consideration in each case, nor what weight had to be accorded to it, nor how the various considerations were to be balanced against one another, nor when and how fast transformation was to take place nor that the considerations listed in s 2 J

2003 (6) SA p409

were the only ones to which regard had to be had. These matters were left to the discretion of the Chief Director. (Paragraphs A [27] and [31] at 424E/F and 425G - I.)

Held, further, that s 18(5) of the MLRA was not applicable as neither of the respondents was a new entrant. (Paragraph [32] at 425I/J.)

Held, accordingly, that the Court a quo had erred in its interpretation of ss 2 and 18(5) and in holding that the Chief Director had not had regard to the sections. (Paragraph [33] at B 425J - 426A.)

Held, further, that, on a reading of the Chief Director's reasons for his allocations, it was plain that transformation had been taken into account. The starting point had been the allocations in the previous season. So, at that point, no new allowance had yet been made for transformation. But, in the next step, further allowance had certainly been made. The quotas of the holders of larger allocations C had been reduced and the smaller rights-holders had been beneficiaries of that reduction. (Paragraphs [36] and [37] at 427D and E/F - F/G.)

Held, accordingly, that, under this head of attack, the Court a quo had been wrong on both the law and the facts and the argument that s 2(j) had been ignored had to fail. (Paragraph [38] at 427F/G and G/H.) D

Held, further, as to the alleged vagueness or absence of reasons, that the respondents' contention that the Chief Director ought not to have used the 2001 allocations as the starting point was unreasonable. It was difficult to see what else could have been used. (Paragraph [42] at 428H - H/I and J.)

Held, further, as to the respondents' objection to the choice of 5% and not a larger percentage, that there came a time in quantification decision-making when a discretionally chosen E number had to be adopted. There were moments when the fixing of a number was not capable of exact rationalisation or explanation. A fair reading of the reasons made it clear that the Chief Director, suitably assisted, in the exercise of his discretion, had decided that an appropriate percentage for the diminution of quotas at the end of 2001 was 5%. It was plain that in doing so he had taken into account F the immediate need for transformation, as well as the potential for creating instability in the industry, possibly leading to inadequate investment and job losses. (Paragraph [43] at 429C and D - E/F.)

Held, further, that contrary to the respondents' contention that adequate reasons for the allocation had not been given, the reasons set out for the decision were reasons enough for dissatisfied applicants to have attacked the decision, should they have G chosen to do so. (Paragraphs [39] and [44] at 427H - I and 429G/H - H.)

Held, further, as to whether the decisions were capricious or based upon arbitrary or irrelevant considerations, that the Court a quo found that the Chief Director had taken extraneous criteria into account and that the decision to use the 2001 allocations as a starting point had been arbitrary and capricious. H (Paragraph [46] at 430C - C/D.)

Held, further, that in complaining that the Chief Director had acted arbitrarily, capriciously or irrationally in reaching his decisions, the respondents showed little concern for the interests of others or the benefit of the public as a whole. That was not an approach which should or might have been adopted by the Chief Director. He was obliged to have regard to a broad band of considerations and the I interests of all that might be affected. (Paragraph [51] at 431H - I.)

Held, further, that it appeared that what was really under attack was the substance of...