FISHING INDUSTRY NEWS – APRIL 2014


SECTION 13(4) OF THE MLRA – ABUSE OF POWER?

 

Section 13(4) of the Marine Living Resources Act states as follows:

“A permit to exercise an existing right in terms of this Act maybe refused if the conditions of a previously issued permit had not been adhered to”

In a number of instances where this provision has been applied by the Department we are left contemplating whether this provision is being abused or in fact is in breach of rights holder’s constitutional rights.

 

Requests for the return of permits already issued

Certainly a clear abuse of this provision is where the Department requests in writing for a permit holder to return a validly issued original permit quoting Section 13(4) as the section justifying such request.  Section 13(4) only provides for the refusal to issue a future permit but does not give powers to the Department to revoke an already issued permit. In fact, Section 28 of the MLRA provides specifically for the cancellation and suspension of permits. However, this is subject to a specific notice issued to a permit holder which allows a period of 21 days for the permit holder to make representations as to why the permit should not be cancelled, suspended or revoked.  The Minister then has a discretion to either revoke the permit, suspend the permit, cancel the permit, alter the conditions of the permit, or alternatively decide not to revoke, suspend, cancel or alter the permit.

Accordingly, if the Department requests the return of a permit quoting section 13(4) then this request falls outside the powers conferred by such section and is a legally invalid request.

Section 28(4) in addition gives the Minister an overriding power which states as follows”

 

“The Minister may whenever he or she is of the opinion that it is in the interest of the promotion, protection or utilisation on the sustainable basis of a particular marine living resources, at any time by written notice to the hold of a right license or permit, revoke, suspend, cancel or reduce that right license or permit”.

Refusal to issue a permit

When the Department refuses to issue a permit on the basis of Section 13(4) in effect it is stating that in the Department’s view there has been a breach of a previously issued permit. Following from this,   Section 58(1)(a)(ii) of the MLRA provides that a contravention of a permit condition is an offence and liable on conviction to a fine not exceeding R2, 000 000.00 or to imprisonment not exceeding 5 years.

Therefore in implementing Section 13(4) the Department makes a decision that a rights holder has committed an offence in terms of the MLRA. Based on this decision the Department then refuses to issue another permit.  A draconian administrative sanction is brought against the rights holder without the rights holder being given the opportunity of defending itself against such charges.

 

Unfair Administrative Action

 Firstly, at the very least the affected rights holder is entitled to procedurally fair administrative action as contemplated under the Promotion of Administrative Justice Act (PAJA). This would include: adequate notice of the nature and purpose of the proposed administrative action; a reasonable opportunity to make representations; a clear statement of the administrative action; adequate notice of any right of review or internal appeal; and adequate notice of the right to request reasons for the decision. In addition it is submitted that the decision maker should also give the rights holder an opportunity to obtain legal representation and/or to present and dispute information and arguments.

Breach of other constitutional rights

Secondly, it is submitted that there is a strong argument that the provisions of sect 13(4) are breach in breach of or give rise to a breach of certain other constitutional rights. In this regard, in terms of Section 35(3) of the Constitution every accused person has a right to a fair trial.  The rights holder would be an accused person in that sect 13(4) relies on an alleged offence under the MLRA for its implementation. The right to a fair trial in turn includes a number of rights. In particular the right of an accused to be presumed innocent, to remain silent, not to testify during the proceedings and not to be compelled to give self-incriminating evidence.

In many cases involving the implementation of Section 13(4) the Department does not institute criminal proceedings (certainly not immediately) and a rights holder is faced with having to either appeal the decision or make written representations to the Department regarding the alleged offence – this would be after the decision to refuse the issue of a permit has already been made.  As such it is submitted that the right holder’s constitutional rights (as referred to above) are placed in breach, including the right to fair administrative action.

Is the aforesaid limitation of constitutional rights justified by the provisions of Section 36 of the Constitution?

Section 36(1) states as follows:

“The rights in the Bill of Rights maybe limited only in terms of law 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, including –

(a)          the nature of the rights;

(b)          the importance of the purpose of the limitations;

(c)           the nature and extent of the limitations;

(d)          the relation between the limitation and its purpose; and

(e)          less restrictive means to achieve the purpose.”

 The argument in favour of limiting a right holder’s constitutional rights (in terms of Section 13(4)) would be that this is necessary in order to protect other constitutional rights.  Such as “the right to have the environment protected for the benefit of present and future generations through reasonable legislative and other measures that:

(i)            Prevent pollution and ecological degradation;

(ii)           Promote conservations; and

(iii)          Secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social developments.”

 

However, the MLRA provides for other means to achieve the protection of the “environmental constitutional right” and therefore there is no justification for the wide draconian powers under Section 13(4).  In particular, as stated previously, Section 28 provides for the revocation of permits which have been issued, and sets out an administrative process which provides for representations to be made and a discretion as to the sanction (if any) to be applied by the Minister.  Furthermore, Section 28(4) already gives the Minister a wide power “in the interests of the promotion, protection or utilisation on a sustainable basis of marine living resources” on written notice to the holder of a permit to revoke, suspend or cancel such permit.

In addition, the enforcement provisions of the MLRA also provide legal means to protect the environment where vessels operating on permits can be detained /seized.  Even in these circumstances the provisions of the MLRA allow for security to be furnished for the release of such vessels.

Conclusions

Bearing in mind these other legal mechanisms available under the MLRA and the severe consequences of a permit revocation on a right holder, it is submitted that Section 13(4) of the MLRA is disproportional in its effect.  In other words the breach of the right holders’ constitutional rights far outweighs the purpose of this section.  Accordingly, the submission is that the limitation of constitutional rights caused by the implementation of Section 13(4) is not justified and therefore the section is unconstitutional.

In summary, right holders faced with notices in terms of Section 13(4) should not react in a knee jerk fashion but should take considered legal advice particularly regarding their rights to fair administrative action and in particular whether their constitutional rights are being breached in the circumstances.