Minister of Environmental Affairs and Tourism and Others v Atlantic Fishing Enterprises (Pty) Ltd and Others

• Jurisdiction: South Africa
• Judge: Howie P, Streicher JA, Conradie JA, Lewis JA and Mlambo AJA
• Judgment Date: 28 November 2003
• Citation: 2004 (3) SA 176 (SCA)
• Docket Number: 259/2003
• Hearing Date: 14 November 2003
• Counsel: W R E Duminy SC (with him D J Jacobs) for the appellants. G D van Schalkwyk SC (with him E W Fagan) for the respondents.
• Court: Supreme Court of Appeal

Streicher JA: C

[1] In an appeal in terms of s 80 of the Marine Living Resources Act 18 of 1998 (the Act) by Ensemble Trading 2001 (Pty) Ltd (Ensemble) the first appellant granted to Ensemble a commercial fishing right for the 2001/2 to 2004/5 season in respect of south coast rock lobster. However, on review the Cape High Court (the Court a quo) set the first appellant's decision aside. With the necessary leave the appellants now appeal against the Court a quo's D judgment.

[2] According to the long title the object of the Act is to 'provide for the conservation of the marine ecosystem, the long-term sustainable utilisation of marine living resources and the orderly access to exploitation, utilisation and protection of certain marine living resources; and for these purposes to provide for the exercise of E control over marine living resources in a fair and equitable manner to the benefit of all the citizens of South Africa'.

[3] It is, no doubt, with that object in mind that: F

[3.1]

s 14(1) [1] provides that the first respondent shall determine the total allowable catch [2] of individual species or groups of species, the total applied effort, [3] or a combination thereof;

[3.2]

s 14(2) [4] provides that the first appellant shall determine the portions of the total allowable catch, the total applied effort, or a combination thereof, to be allocated in any year to subsistence, recreational, local commercial and foreign G fishing respectively; and

Streicher JA

[3.3]

s 18(1) [5] provides that no person shall undertake commercial fishing unless a right to do so has been A granted by the first appellant.

[4] On 27 July 2001 applications were invited in respect of all sectors of the fishing industry, including the south coast rock lobster sector for the 2001/2002 to 2004/2005 seasons. The total allowable catch in respect of south coast rock lobster for the B 2001/2002 season had been reduced by the first appellant to 340 tons and had not yet been determined for the next seasons.

[5] Thirty-eight applications for the right to undertake commercial fishing in respect of south coast rock lobster were C received. One of the applications was by Ensemble which applied for an allocation of 40 533 kg. The applications were considered by the second appellant to whom the first appellant had delegated the powers vested in him by s 18. Sixteen applicants were successful. The application by Ensemble was not successful and a final decision in respect of applications by Hout Bay Fishing Industries (Pty) Ltd, D Amandla Abasebenzi (Pty) Ltd and Amandla Abasebenzi Fishing (Pty) Ltd was held over pending an enquiry into alleged contraventions of the Act by Hout Bay Fishing Industries (Pty) Ltd and confirmation of the requisite authorisation to make the application in the case of Amandla Abasebenzi (Pty) Ltd and Amandla Abasebenzi Fishing (Pty) Ltd. E Approximately 240 000 kg of the total allowable catch for the 2001/2002 season were allocated to the successful applicants. Of the remaining approximately 100 tons 49 028 kg were set aside to accommodate possible allocations to Hout Bay Fishing Industries (Pty) Ltd, Amandla Abasebenzi (Pty) Ltd and Amandla Abasebenzi Fishing (Pty) Ltd. The balance of the 100 tons was set aside to provide for F additional allocations on appeal in terms of s 80. The second appellant decided in this regard that 'any amount of the 100 tons not allocated will be proportionately allocated to the rights holders'.

[6] In terms of s 80(1) [6] any affected person could appeal to the first appellant against the decisions by the G second appellant. Twenty-three of the 38 applicants who initially applied appealed against the allocations by the second respondent. Although the first, fourth, fifth, eighth and ninth respondents in this appeal as well as the fifth, sixth, seventh, eighth, ninth and tenth respondents in the application in the Court a quo had been successful applicants, they...