Minister defeats WCRLA and Oceana in Supreme Court of Appeal

On the 22nd September 2010 the Supreme Court of Appeal handed down a judgment in respect of the WCRLA and Oceana attack on the allocation by the Minister in 2007 and 2008 of a subsistence / recreational exemption to certain bona fide artisanal fishers which allowed them to catch and sell West Coast Rock Lobster.

The Cape Town High Court ruled against the WCRLA and Oceana and held that the Minister’s powers under Section 81 provided a wide discretion and that “no section remains untouchable or out of reach of the exemption power contained in Section 81”.

Accordingly the main thrust of the WCRLA and Oceana on appeal was that the Minister could not recategorise  subsistence fishers and pretend that they were recreational fishers in order to get around the already fully subscribed rights in the subsistence sector, and furthermore they contended that by employing Section 81 in a  manner that the Minister did, the Minister “was subverting the very purpose of the Act and that the granting of rights ought to be dealt with in terms of Section 18 of MLRA.

Unfortunately this question was not answered by the Court of Appeal and it found against Oceana and WCRL on the following two preliminary issues.

  • The issue to be decided was of academic interest in that the Equality Court orders upon which the Minister granted the allocations in terms of Section 81 had now expired and they were interim in nature.  As such the exemptions granted by the Minister were also interim in nature and had since expired.  The Equality Court had also ordered that the Minister finalise a new policy with respect to small scale subsistence fishers and to properly accommodate them in such policy.  The Appeal Court held that there was no indication on record as to how the subsistence fishers would be accommodated in future and in particular whether the interim measures previously granted by the Minister would be repeated when the new fishing season begins in November 2010.  Therefore, the question before it was hypothetical, abstract or academic.  The declaratory order requested would therefore have no practical effect.
  • Secondly, the Appeal Court held that the nature and the wording of the declaratory order requested were defective.  The court stated that “it appears that insufficient thought was given to the wording of the order sought. As such, if the order was granted as requested by Oceana the effect thereof would be inadvertently “to bar subsistence fishers as a class from an activity they can lawfully engage in albeit in a limited manner namely, the sale of part of their catch”.    The court held that the proposed order was in substance “a perpetual interdict purporting to prejudicially affect a whole class of persons (subsistence fishers), including persons who are not joined as parties to the litigation…”.

Finally, an interesting aspect of the court’s judgment is that it raised the jurisdictional question as to how orders of the Equality Court interplay with orders of the High Court.  The court held that legal “uncertainty arises and litigation abounds” due to this question which is the opposite of what was intended by the Promotion of Equality and Prevention of Unfair Discrimination Act.  The court therefore directed the Registrar to bring this judgment to the attention of the Chief’s State Law Advisor and the Minister for Justice and Constitutional Development.

Small Scale Fisheries Policy

At the heart of the recent WCRLA / Oceana Appeal Court judgment was the Equality Court order ordering the Minister to compile a small scale fisheries policy which would better take into account the rights of subsistence and small scale users of fishing resources in South Africa and in particular fisherman in coastal communities which have historically depended and relied on fishing to earn a living. In terms of an Equality Court order the Minister had undertaken to finalise such policy development process by publication in the Government Gazette by no later than the 31st July 2009.

Over a year later on the 3rd September 2010 a draft policy for the proposed Small Scale Fisheries Sector in South Africa was published. The policy sets out the principles and objectives of the introduction of a new sector in the South African fishing industry and how the sector is intended to operate. The draft policy proposes the creation of areas within which small scale fishers may harvest marine resources for their benefit. The intention is that these areas be co-managed by the Department and community organisations which will be responsible for maintaining right holder lists and ensuring that the right holders comply with applicable permit conditions.

It is proposed that fishing rights will be granted to the community based entities, the aforesaid entities will then together with the Department determine how the right will be utilised to harvest the Marine Resources in their area. The Policy also touches on issues of processing and marketing with plans to assist local communities to develop their abilities in these areas.

The key issue for existing long term right holders arises around the demarcation of small scale fishing community areas. The policy proposes that certain areas along the coast will be demarcated as areas prioritised for small scale fishers. It is envisaged that restrictions on these areas may be required in order to protect the rights of the small scale fishers. Whether this translates to restrictions being imposed on recreational fishers or commercial right holders or both is not clear. No details are provided as to the location of these areas or the dimensions that these areas will assume with respect to distance from shore or depth.

What is apparent is that the creation of a small fishery sector may well impact on existing commercial fisheries to the extent that the commercial fisheries would be required to work hand in hand with the small scale fisheries sector or alternatively may be required to give up a portion of their fishing grounds in order to accommodate the small scale fisheries sector. No mention is made in the policy regarding issues touching on the division of the TAC or TAE for particular sectors but the policy does record that a “multiple species” approach will be adopted and that the species that the small scale fishers may target will be dependent on issues such as the availability of resources, the extent to which those resources can be sustainably exploited, consideration of current exploitation in terms of long term rights, the numbers of fishers within a community, the market value of the resource and the nature and extent of the area.

The intentions of the policy are well placed but clearly have potential ramifications on all commercial right holders.

Interested parties have until 16h00 on Friday 22 October to submit their written comments on the draft policy.