Issued by: The Minister of Environmental Affairs and Tourism
The Minister of Enironmental Affairs and Tourism in applying the provisions of the new Marine Living Resources Act, 1998 (Act No 18 of 1998) granted rights to undertake commercial fishing for West Cost Rock Lobster for the 1998/99 season to persons from the previously disadvantaged sectors of society ad to small and medium size enterprises who were previously precluded from enjoying such rights in terms of the provisions of the old Sea Fishery Act, 1998 (Act No. 18 of 1998) (the old Act).
Whilst admitting such persons and businesses into the West Coast Rock Lobster setor, the Minister also acceded to a number of applications by persons/businesses who previously held "quotas" in terms of the old Act whilst futher declining to accede to the applications of some previous "quota holders". One of the factors that motivated the Ministe in admittin "new entrants" into the industry was the broadening of access to marine living resources, thereby creating opportunities for the generation of income and employmet of persons within the poorer sectors of society. The Minister's admission of new entrants into the West Coast Rock Lobster sector and refusal to accede to applications of some previous "quota holders" has led to these "quota holders" challenging the Minister's decision in the Cape High Court.
The High Court challenge by previous "quota holders" is essentially based on the contention that the Minister should not have applied the provisions of the new Act but rather the provisions of the old Act, the application of which would have favoured them and in effect meant the exclusion of "new entrants". This contentionis based upon their interpretation of Section 85 of the new Act. This Section provides that the Minister shall for period of six months after coming into operation of the new Act (1 September 1998) exercise the powers of the old Quota Board. The "old quota holders" contend that, becaus their applications had ben submitted between 1 June and 31 July 1998 and the fact that the Quota Board was abolished only on 31 August 1998, the Minister was obliged in terms of Section 85 of the new Act to process their applications in accordance with the provisions of the old Act and guidelines. A further challenge by these "quota holders" to the Minister's decision is that even if they are wrong in their interpretation of section 85 of the new Act, the Minister should have advised them that he was going to apply the provisions of the new Act to their applications and afford them an opportunity of making representations why their "quotas" should not be removed or reduced, before he dis so. By failing to do so, they argue, they were unfairly treted. On the other had, the Minister contends that the purpose of the new Act constituted a break with the past in the sense that the restrictions imposed on the Quota Board to admit new entrants into the fishing industry were lifted. The major purpose of the new Act, so the Minister argues, is to promote broader access to msmall and medium size enterprises. The Minister accordingly contends that the approach adopted by the "quota holders" to the Minister's decision is that even if they are wrong in their interpretation of section 85 of the new Act, the Minister should have advised them that he was going to apply the provisions of the new Act to their applications and afford them an opportunity of making representations why their "quotas" should not be removed or reduced, before he did so. By failing to do so, they argue, they were unfairly treated. On the other hand, the Minister contends that the purpose of the new Act constituted a break with the past in the in the sense that the restrictions imposed on the Quota Board to admit new entrants into the fishing industry were lifted. The major purpose of the new Act, so the Minister argues, is to promote broader access to marine living resources and permit the participation therein of persons from historically disadvantaged sectors of society as well as small and medium size enterprises. The Minister accordingly contends that the approach accepted by the "quota holders" to the interpretation of section 85 is too textually based and ignores a purposive approach to interpretation of section 85 is too textually based and ignores a purposive of the "quota holders" as to the meaning of section 85, the purpose of the new Act would be frustrated for a period of six months. On the Minister's argumet, this was certainly not the intention of Parliament which was to give him power to put the provisions of the new Act into operation. The Ministe accordingly dealt with the applications for West Coast rock lobster in terms of the provisions of the new Act and not the old Act.
On the question that the applications for West Coast rock lobster for the 1998/99 season were not informed that their applications will be dealt with in terms of the provisions of the new Act, the Minister contends that they were so informed by way of a media statement dated 31 August 1998. In fact, Mr Pharo, who deposed to an affidavit on behalf of the all the "quotngs, admits that he received this media statement on 31 August 1998.
The judgement of the High Court unfortunately on 27 January 1999 did not finally address any of the disputed issues. After dealing with the two competing interpretations of section 85 the court found that this issue was too complex and difficult to make a final decision on it on an urgent basis and that a full review court should make a decision on it and on all the other issues rasied by the "old quota holders". In other words, the learned judge found that the old quota holders" made out at leasld be tested by a review court. The effect of the judgement is that all the participants in the West Coast Rock Lobsters sector are now interdicted from fishing pending the determination of the challenge of the Minister's decision.
The Minister's legal team, however, is presently exploring ways and means of expediting the determination of the disputed issues with the view to getting the West Coast rock lobster industry up and going.
Enquiries: Dr Tanya Abrahamse : Tel: (012) 3103664