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.