Minister of Forestry, Fisheries and the Environment and Another v Hacky Fishing (Pty) Ltd and Others (20607/23; 18801/23) [2024] ZAWCHC 55; [2024] 2 All SA 466 (WCC) (23 February 2024)

In the High Court of South Africa

(Western Cape Division, Cape Town)

Case No: 20607/23

In the matter between: THE MINISTER OF FORESTRY, FISHERIES AND THE ENVIRONMENT First Applicant THE DEPUTY DIRECTOR GENERAL OF THE FISHERIES BRANCH OF THE DEPARTMENT OF FORESTRY, FISHERIES AND ENVIRONMENT Second Applicant And HACKY FISHING (PTY) LTD First Respondent PREMIER FISHING (PTY) LTD Second Respondent T & N VISSERYE CC Third Respondent CAPE FISH PROCESSORS CC Fourth Respondent ZIMELE FISHING ENTERPRISES CC Fifth Respondent LE TAP CC Sixth Respondent SEVLAC INVESTMENTS NO. 51 CC Seventh Respondent FISHERMAN FRESH CC Eighth Respondent FULL DECK INVESTMENTS (PTY) LTD Ninth Respondent DAZALLE TRADERS (PTY) LTD Tenth Respondent OFFSHORE FISHING COMPANY (PTY) LTD Eleventh Respondent MAYIBUYE FISHING (PTY) LTD Twelfth Respondent CYREL BURREL FISHING CC Thirteenth Respondent OCCEAN UKHOZI FISHING (PTY) LTD Fourteenth Respondent In re: CASE No. 18801/23 HACKY FISHING (PTY) LTD Applicant And THE MINISTER OF FORESTRY, FISHERIES AND THE ENVIRONMENT First Respondent THE DEPUTY DIRECTOR GENERAL OF THE FISHERIES BRANCH OF THE DEPARTMENT OF FORESTRY, FISHERIES AND ENVIRONMENT Second Respondent T & N VISSERYE CC Third Respondent CAPE FISH PROCESSORS CC Fourth Respondent ZIMELE FISHING ENTERPRISES CC Fifth Respondent

Heard: 14 December 2023

Delivered (electronically): 23 February 2024

JUDGMENT

LEKHULENI J

Introduction

[1] The allocation of fishing rights by the Minister of Forestry, Fisheries and Environment in Category B of the Hake Inshore Trawl sector has been plagued and bedeviled with several review applications. The two applications before this court are no exception. Two urgent applications served before this court on 14 December 2023. The first is an application by Hacky Fishing (Pty) Ltd (“Hacky”) under Case No. 18807/2023. The second is a counterapplication by the Minister of Forestry, Fisheries, and the Environment, (“the Minister”) as the first applicant, and the Deputy Director General of Fisheries Branch of the Department Forestry, Fisheries, and the Environment, (“the DDG”) as the second applicant under Case No. 20607/2023. The two applications were heard jointly.

[2] In the first application, Hacky seeks an urgent review of the Ministers’ alleged unreasonable delay or failure in taking a final decision regarding Hacky’s fishing right in Category B of the Hake Inshore Trawl as envisaged in section 18 of the Marine Living Resources Act 18 of 1998 (the MLRA”). Hacky also seeks a declaratory order that it is entitled to a fishing right in the said category of the fishing industry.

[3] In the alternative, to the above relief, Hacky seeks an order that the Minister be directed to finalise her Provisional Addendum urgently or on such date as the court may determine. In the event the court granting this alternative relief, Hacky seeks an interim interdictory relief against the third to fifth respondents, (T & N Visserye CC, Cape Fish Processors CC and Zimela Fishing Enterprises CC) which would prevent them from exercising any fishing rights that they may have been allocated by the Minister to engage in fishing in the sector, and further interdicting the Minister from issuing the aforesaid respondents with permits for such purpose. The fourth respondent opposed the relief sought by Hacky to the extent that it would be prevented from fishing pending the determination by the Minister.

[4] In the second application, the Minister opposed Hacky’s application and also launched a counterapplication and sought an order directing the DDG including the official of the Department of Forestry, Fisheries and the Environment under the control of the second applicant to refuse to issue fishing permits to the current category B right holders in the Hake Inshore Trawl fishing sector for the 2024 fishing season pending the finalisation of a self-review application to be brought by the applicants.

[5] In the proposed self-review application, the Minister will among others, seek to review and set aside the scoring of all of category B right holders in respect of Section 4 of the application form in the 2015/2016 fish allocation right process who were not affected by the agreed order in previous litigation instituted by Hacky under case number 7996/2022 (“the Hacky”) order and which led to an agreed order between Hacky and the Minister and four industry participants. The Minister will also seek an order varying the Hacky order to permit the Minister to rescore all Category B right holders in accordance with the Hacky order.

[6] In addition, pending the hearing and finalisation of the intended self-review application, the Minister seeks an order interdicting and restraining any category B right holder who has already been issued with the fishing permit for the year 2024 season from fishing in terms of that permit. To this end, the Minister seeks an order that the relief Hacky seeks in its application (delay in failure to make a final decision relating to Hacky’s right to fishing) stand over for determination together with the Minister’s intended application for substantive relief (self-review application), and that other review applications brought by the respondents be set down and heard together with the intended application.

The Factual Background – Hacky’s Application

[7] As stated above, Hacky’s application and the Minister’s application were heard jointly on 14 December 2023. In this application, Hacky essentially seeks to review the Minister’s delay to finalise her decision regarding the applicant’s right to fish in the Category B of the Hake Insure Trawl sector of the fishing industry and ancillary relief. The decision of the Minister deals with an authorisation to fish for hake and sole. This Fishery is based around Mossel Bay and Gqeberha. The vessels employed are modified to accommodate the operation of these nets. Hacky owns and operates fishing vessels and holds fishing rights authorising it to fish for a variety of species.

[8] Section 18 of the MLRA provides that no one may fish commercially unless a right has been allocated to it in terms of the MLRA and that rights are allocated for a period not exceeding 15 years. A fishing right is usually expressed as a percentage of the total allowable catch for a particular year. The total allowable catch represents the number of fish that may be caught in a particular year. Hacky contends that fishing rights have been allocated in terms of the MLRA since around 2001.

[9] In 2015, the previous Minister of Agriculture, Forestry and Fisheries, Minister Zokwana called for applications for fishing rights in several fishing sectors, inter alia, to fish hake and sole through a fishing right allocation process. This process entailed appointing a delegate to consider applications and Gazette policies setting out the requirements and the criteria for the allocation of rights. One of these criteria looked at applicants’ access to a suitable vessel to employ in the sector. These criteria were also to be employed in scoring applications on a competitive basis. In other words, score points were assigned to an application based on the extent to which it met the assessment criteria. Then scores were totaled, and rights were allocated to applicants with the total scores above a certain threshold.

[10] Hacky asserts that this application follows a fully ventilated judicial review application which it brought in this court under case number 7996/2022 (access to a suitable vessel matter). Hacky further avers that the suitable vessel matter related to a sequence of decisions in the 2015/ 2016 fishing rights allocation process in the Hake Inshore Trawl sector which culminated in an irregular decision by the Minister. The fishing allocation process 2015/2016 was a competitive process based on a scoring methodology.

[11] Hacky states that applications for fishing rights fell into three categories:

11. Category A – related to applicants which held long term fishing rights in the Hake Inshore Trawl sector before fishing rights allocation process of 2015/2016.

11.2 Category B – involved applicants which held fishing rights in other sectors but wished to enter the Hake Inshore Trawl sector.

11.3 Category C – involved applicants which held no rights in any fishing sector.

[12] Hacky asserted that the former deputy Director General of Forestry, and Fisheries, Ms Siphokazi Ndudane the delegated official of the Minister, refused Hacky a fishing right in the Hake Insure Trawl sector on 20 December 2016. This decision was initially upheld by the previous Minister Zokwane on 10 July 2017. Hacky averred that for the purposes of the fishing rights allocation process in the Hake Inshore Trawl sector, section 4 of the application forms required applicants to demonstrate access to a suitable vessel. Section 7(e) of the same forms described a suitable vessel as one that, inter alia, is geared to target hake and sole by the trawl method and is certified by the South African Maritime Safety Association (SAMSA) as being safe.

[13] According to Hacky, it provided a valid SAMSA registration certificate for each nominated vessel which in all other respect qualified as a suitable vessel. Notwithstanding, the former DDG, Ms Ndudane and the former Ministers decided that this did not qualify as safety certificate and concluded that Hackey had not nominated a suitable vessel. To this end, Hackey was initially awarded zero points for access to a suitable vessel. Hacky had scored well for all aspects of the application criteria including aspects such as transformation and investment. The only tipping point which prevented Hacky from being amongst the top scorers in category B turned on whether Hacky had access to a suitable vessel.

[14] Hacky challenged the decision of the Minister in a review application, in November 2017 under Case No. 23427/ 2017, which resulted in an order by agreement setting aside Minister Zokwana’s decision in relation to Hacky. The court referred the matter back to the Minister for reconsideration. The Minister subsequently reversed his decision on 7 December 2018. The effect of Ministers Zokwana’s decision of 7 December 2018, included that Hackey was granted points for access to a suitable vessel which resulted in a score qualifying Hackey for a long-term fishing right in the Hake Inshore Trawl sector of category B. Hackey was accordingly granted a fishing right and permitted to participate in the 2019 fishing season.

[15] However, when Minister Zokwana was reconsidering all appeals, following several other court orders reviewing and setting aside his decisions, he also changed his decision of 10 July 2017 regarding the quantum allocation between category A, B, and C. Various category A entities brought a review application in March 2019 to set aside Minister Zokwana’s decision in relation to the quantum allocation. The crux of their case was that it had not been open to Minister Zokwana to alter the 70/30 allocation of the total allowable catch between category A right holders and new entrants. The contention was that the orders setting aside his 2017 decision had only related to categories B and C only and not A.

[16] Pursuant thereto, an order by agreement between the category A review applicants and the Minister Zokwana was reached. In terms of that order, it was ordered that Minister Zokwana’s decision of 10 July 2017 stood in so far as it established that category A right holders would share 70 per cent of the total allowable catch in the Hake Inshore Trawl fishing while category B and C right holders would share 30 per cent. The matter was referred to the Minister to reconsider allocating 30 percent of the total allowable catch in the Hake Inshore Trawl fishery to the new entrants. Pursuant to this order, the position reverted in the interim to Minister Zokwana’s decision of 10 July 2015 and Hacky and other right holders who had been successful on appeal in December 2018 were denied participation in the catching of fish from the end of 2019.

[17] However, on 10 December 2021 the current Minister reversed Minister Zokwana decision regarding the applicant. The Minister awarded fishing rights in the Hake Inshore Trawl Category B sector to 11 top-scoring right holders. Hacky was not granted a fishing right and did not fall within the 11 selected parties. According to Hacky, the current Minister ignored Minister Zokwana’s decision granting points for access to a suitable vessel and other relevant correspondence and decisions. Given the points allocated for a suitable vessel, had the Minister concluded that Hacky had nominated such a vessel, Hackey contends

that the Minister would have granted a long-term fishing right to it, and it would have been amongst the top 11 in respect of scoring.

[18] Hackey asserts that the Minister's decision in failing to properly score it was irrational and incorrect and caused the applicant (Hacky) to institute the suitable vessel review application on 25 March 2022. Hacky brought an application to review the decision of the Minister to refuse it the fishing right and cited all the 11 successful long term fishing rights holders in category B of the Hake Inshore Trawl fishery as respondents.

[19] At the hearing of the review application in September 2022, the decision of the Minister to refuse Hacky a fishing right was set aside, and the matter was referred to the Minister for reconsideration of the scoring on the suitable vessel (“the Hacky court order”). On 14 December 2022, the Minister made a provisional decision on the reconsideration of Appeals in the Hake Inshore Trawl fishing sector. In its reasons, the Minister noted that as a result of the reconsideration of Section 4 (access to a suitable vessel), as per the Hacky court order, the final scores of the affected applicants have changed such that three entities that were awarded a fishing right no longer score among the top 11 in category B of the Hake Inshore Trawler sector and accordingly stand to lose their rights. The Minister further stated that three other entities that were not awarded a fishing right have now scored sufficiently high to be among the top scoring category B applicants and are accordingly entitled to be awarded a commercial fishing right.

[20] The three entities which stood to lose their fishing rights are the third, fourth and fifth respondents (the affected respondents) pursuant to the Hacky order. Meanwhile, the three entities entitled to be awarded a fishing right are Precious Prospects Trading 110 (scoring 64,95), Hacky (scoring 64,61) and Timowize (Pty) Ltd (scoring 62,92). The Minister regarded this decision as provisional and stated that she will notify each of the affected respondents and give them an opportunity to make representations in terms of section 80(3) of the MLRA and or in terms of the natural justice principle of audi alteram partem, on why they should not lose their rights. The Minister also stated that the top scoring parties must not be regarded as creating a legitimate expectation on the allocation of rights.

[21] Hacky averred that it anticipated that the Minister would finalise her decision in a reasonable time, at least to provided Hacky the opportunity to be awarded a right and a permit for the 2023 fishing season. Regrettably, contends Hacky, the Minister’s final decision was not forthcoming. As its grounds of review, Hacky contended that the Minister's failure to make a final decision awarding a right to it by 14 December 2022 is irregular irrational and unlawful. Hacky also relies on section 237 of the Constitution which requires that all constitutional obligations, of which the dispensing of just administrative action is one, must be performed diligently and without delay.

[22] Hacky asserted that in the Provisional Addendum, the Minister determined that the affected respondents did not qualify for a fishing right and stood to lose their right. In Hachy’s view, the Minister’s decision is based on a scoring system for the applicant, which is rational, and the Minister is bound by her decision based on this scoring system and is obliged to take a final decision in accordance therewith without unreasonable delay. To this end, Hacky submitted that the appropriate remedy in the circumstances will be for the third, fourth, and fifth respondents each to be interdicted from being given permits for the 2024 or to use permits for 2024 season to catch hake and sole pending the determination of the Minister’s final decision on the rights allocation.

The fourth respondent’s opposition to Hacky’s application

[23] The Minister and the fourth respondents opposed Hacky’s application. As stated above, the Minister also launched a counterapplication against Hacky and other right holders in Category B of the Hake Inshore Trawl sector. The Minister’s response to Hacky’s application and opposition to the Minister’s counterapplication and the response thereto by the various respondents is dealt with later in this judgment.

[24] As previously stated, the fourth respondent opposed Hacky’s application. The fourth respondent asserted that Hacky’s application is not urgent. According to the fourth respondent, Hacky must have known by 2 March 2023, that this application would be necessary. However, the application was not brought within a reasonable time, and the delay has not been explained satisfactorily or at all. The fourth respondent asserted that Hacky procrastinated unreasonably and delayed in instituting this application for over a year and that no explanation for this delay has been provided. Furthermore, the fourth respondent averred that Hacky has not explained why it will not be able to obtain substantive relief in due course. The fourth respondent admitted that pursuant to the provisional order, the Minister expressly stated that the fourth respondent stood to lose its fishing rights and in paragraph 29 of that Addendum, the Minister invited the fourth respondent and other potentially affected parties to make representations to the Minister, which it duly did.

[25] As far as the merits of the Hacky’s application is concerned, the fourth respondent asserted that Hacky has failed to make out a case to show that the granting of a fishing right and the necessary permit to enable the fourth respondent to exploit its rights will in any way affect the alleged right of Hacky. To this end, the fourth respondent tendered to desist from its effort to exploit such part of the fishing right conferred on it, if any, as may be necessary to enable the Minister to accommodate Hacky should Hacky ultimately be successful in its review application and the Minister is disposed to conferring a fishing right to Hacky.

[26] The fourth respondent disputed Hacky’s allegation that it does not qualify for a fishing right. According to the fourth respondent, Hacky has not set out sufficient facts to enable this court to come to such a conclusion. The fourth respondent pointed out that it has an existing fishing right which shall remain extant until such time as the decision to award such right to it shall be reviewed and or set aside. While Hacky in the notice of motion asked this court to declare that the fourth respondent has no right to receive or possess the fishing right and permit, the fourth respondent asserted that Hacky does not request an order to cancel the allocation of the fourth respondent, nor does it set out grounds upon which such relief could in law be granted. To this end, the fourth respondent stated that Hacky did not make out a case claimed in the notice of motion and thus implored this court to dismiss Hacky’s application.

The Minister’s opposition to Hacky’s application and the Minister’s counterapplication – Case No. 20607/23.

[27] As previously stated, the Minister opposed Hacky’s application and filed a counterapplication against Hacky and fourteen other respondents cited above. In her counterapplication, the Minister sought an order directing that the officials of the Department of Forestry, Fisheries and Environment under the control of the DDG to refuse to issue fishing permits to current Category B right holders in the Hake Inshore Trawl fishing sector for the 2024 fishing season pending the finalisation of an application to be brought by the applicant to review and set aside the scoring of all category B right holders not affected by the Hacky order in respect of section 4 of the application form in the 2025/206 fishing right allocation process.

[28] In the counterapplication, the Minister further sought an order interdicting and restraining any category B right holders who have already been issued with a fishing permit for the Hake Inshore Trawl fishing season from fishing in terms thereof pending the finalisation of her intended self-review application. The Minister avers that her counterapplication renders the interdictory relief sought by Hacky unnecessary in that the relief sought in the counterapplication, is wider than the interdictory relief sought by Hacky and will attain the same objective if granted, namely that the third to the fifth respondents will not be permitted to fish pending the finalisation of the self-review or variation application.

[29] It is the Minister's case that the counterapplication will ensure that all affected parties are treated the same, no one not only the third to the fifth respondents in the Hacky application, would be permitted to fish pending the determination of the Minister's relief in the intended self-review application. The failure in the Hacky order to deal with all affected parties in relation to the rescoring ordered, led to major unintended consequences. The Minister asserts that it is vital for the stability of the industry and to the upholding of the rule of law that all affected parties are treated the same.

[30] The Minister confirmed the sequence of events as explained in the Hacky application and to avoid burdening this judgment, I will not repeat in detail those sequence of events in this judgment. However, in addition to what is explained in the Hacky application, the Minister asserted that pursuant to the Hacky order, the appeals of the first, third, fifth and fourteen respondents were remitted too her in respect of section 4 only, that is the section of the application addressing the requirements of access to a suitable vessel.

[31] Following the agreed order, on 14 December 2022 the Minister signed the Provisional Addendum which was published on 25 March 2023. In terms of the rescoring pursuant to the Hacky order, Hacky met the threshold and was included in the top 11 entities. This meant that Hacky would acquire a fishing right at number 10 together with the entities Precious Prospects Trading, and Timowse (Pty) Ltd. The fourteenth respondent in the counterapplication would retain its right and the third, fourth and fifth respondents stood to lose their fishing rights. According to the Minister, the provisional addendum was understood to be correct at the time that it was prepared, that is in December 2022. However, in addition to affording those who stood to lose their rights an opportunity to make representations, three matters arose thereafter that have had a material impact on implementing the Hacky order and finalising the Provisional Addendum.

[32] First, the officials of her department discovered that the scoring anomaly identified in the Hacky application affected other entities in the top 11 who were not a party to the Hacky order and could not be rescored on access to a suitable vessel as envisaged in Section 4. The Minister averred that the effect of this was that those parties had been awarded points for access to suitable vessels in circumstances where they should not have been. The department’s officials conducted a rescoring exercise on a broad application of the Hacky order by applying it to all category B right holders. They found that the impact on the top 11 would look different to the table published in the Provisional Addendum on an equal application of the Hacky order.

[33] The affected parties were not party to the agreed order, and so even though these entities now benefited improperly from an incorrect scoring of Section 4, nothing could be done about it at that stage as she was functus officio in respect to those entities. Importantly, the Provisional Addendum could not be finalised as it was apparent that to do so would perpetuate an unequal and unlawful position.

[34] Secondly, the Minister asserted that the Provisional Addendum was incorrect insofar as it indicated that Timowise would fall into the top 11 of the scoring charter. This was because Sevlac Investments had achieved a score on appeal of 67, 01 above that of Timowise. This meant Sevlac Investment would have entered the top 11 on a correct Addendum at number 8. The inclusion of Timowise would then be an error.

[35] Thirdly, three further category B review applications were launched before the Provisional Addendum was finalised. The first of these was the application by Premier Fishing, launched in June 2022. The Minister indicated that he did not oppose the Premier Fishing review application. As such, the latter obtained an order on an unopposed basis, reviewing and setting aside the Minister's decision and remitting the matter back to the Minister for reconsideration. The appeal of Premier Fishing has been finalised; however, given the current situation, no right allocation has taken place as their scoring and ranking has not been completed, pending the determination of the Minister's relief (self-review application).

[36] The Minister further averred that the overall effect of the Hacky court order is that the inconsistency in scoring section 4 (access to a suitable vessel) has resulted in several entities being awarded scores for the section in circumstances where they did not demonstrate access to a vessel suited to trawl hake. According to the Minister, what ought to have happened is that those entities ought to have been scored zero for the section. In the case of Hacky, the third, fourth, and fifth respondents were scored in accordance with the agreed order. However, in the case of entities who were not a party to that order, that did not take place. Therefore, the Minister stated that some entities hold rights in category B in circumstances where they do so partly because they were improperly awarded points for suitable vessels. These entities are the third, fourth, fifth and fourteenth respondents.

[37] According to the Minister, this is neither fair nor lawful, and the only way to remedy the situation is to institute a review application. This will allow the Minister to rescore all applicants equally and consistently on the section 4 requirements of access to a suitable vessel. According to the Minister, it was for this reason that she had yet to publish a finalised Addendum or decide regarding Hacky's fishing rights.

[38] The Minister stated that in February 2023, she convened a meeting with the department officials and tasked them to find a holistic solution to the constant upheaval in the sector. The Minister indicated to them that she wanted the litigation and decision-making to end and that she needed the department and the industry entities to come together to find a way to end the litigation. Despite the laudable efforts of the department's officials, which included an attempt at mediation through the representative body, Fish South Africa, the Minister asserts that it seems that this will not be possible, and it was for this reason that she issued the instruction to institute legal proceedings in respect of the sector.

[39] To this end, the Minister seeks an interdict restraining the issuing of permits for the Hake Inshore Trawl and that Hacky's application be postponed pending a self-review application that she intends to institute. The Minister acknowledged that the interdictory relief she seeks will be disruptive to the industry. However, the Minister contends that this must be balanced against the consequences of continuing to allow the incorrect entities to fish and the need to bring stability to the sector so that the disruptions may finally end.

[40] In the Minister's view, the prevailing situation cannot be allowed to endure. Category B appellants must be subjected to equal and uniform scoring, which is the only lawful course of action available to her and the department. To achieve this outcome, the Minister asserted that her relief is necessary as she is precluded from rescoring category B right holders and appellants who are not subject to the agreed Hacky order. In the intervening period, there was no certainty as to who should and should not be fishing. The Minister implored the court to grant the interdictory relief to ensure that no category B right holder or appellant benefitted lawfully from the prevailing situation.

The third, fourth, fifth, seventh, eighth, tenth, eleventh and twelfth respondents’ opposition to the counterapplication – Case No. 20607/23

[41] The respondents above opposed the Minister's counterapplication. The third respondent opposed the counterapplication and averred that the relief sought by the Minister is irregular and untenable, amongst others, because the Minister's application is out of time in terms of section 7 of the Promotion of Administrative Justice Act 3 of 2000 (PAJA) and that the Minister has failed to seek condonation for this in terms of section 9 of PAJA. The third respondent also contended that it is a right holder in this fishery, having been granted a right by the Minister in terms of section 18 of the MLRA. It has been fishing for hake and sole using the trawl method for two consecutive fishing seasons (2022 and 2023).

[42] The third respondent asserted that re-evaluating what it scored for section 4 of its application is moot and irrelevant as the Minister cannot terminate the fishing right, she granted. According to the third respondent, the Minister is functus officio. The third respondent contended that the counterapplication is ill-advised and aimed at targeting category B right holders because they have repeatedly challenged the Minister's decision through review applications.

[43] In addition, the third respondent asserted that the Minister did not seek to review and set aside her decision to grant the third respondent a fishing right in terms of section 18 of the MLRA. To this end, the third respondent believes that the Minister has not made out a case for the interim relief she seeks, which she admits will be disruptive to the industry, disallow the respondents the right to fish and cause hardship.

[44] The fourth respondent, on the other hand, admitted that the effect of the order sought by the Minister will be that no one will be permitted to fish pending the outcome of the application. According to the fourth respondent, this is an overkill and unnecessary. The fourth respondent denied that there were any significant unintended consequences which flowed from the Hacky order. The fourth respondent shared the views expressed by the third respondent and pleaded that the Minister exercised her discretion during 2016 when she decided to bestow a fishing right to the fourth respondent. The fourth respondent asserted that it owns the fishing right granted to it and has arranged its affairs accordingly. The fourth respondent applied for the dismissal of the Minister's application.

[45] The grounds of opposition put forth by the fifth to the twelfth respondents are substantially consistent with those raised by the third and fourth respondents. While I acknowledged that their answering affidavits significantly differ in certain respects, in my view, these respondents' affidavits align in certain respects, raising many of the same defences.

[46] To avoid prolixity in this judgment, I will not repeat those grounds herein in detail. These respondents asserted that the Minister cannot terminate the fishing rights she granted as she is functus officio. Furthermore, these respondents also believe that the Minister's application is both draconian and ill-considered, given the effect it will have on the category B right holders who have been correctly scored and are not the subject of any suspicion with respect to incorrect scoring.

[47] Furthermore, these respondents further asseverated that from the Minister's papers, it is still apparent that he has concerns with fewer than the bottom half of the table of category B right holders. Yet, the Minister is seeking to shut down the operations of the entire category B, thereby depriving lawfully allocated rights holders and the employees of the opportunity to operate and derive income for a minimum period of three months.

[48] According to these respondents, the Minister acknowledges this harm yet argues that the need of the many must outweigh the need of the few when, in fact, it appears that he's arguing that the needs for the view must, in fact, outweigh the needs of the many. The respondents also asserted that there had been an undue and unreasonable delay on the part of the minister and the DDG in bringing the counterapplication. The urgency with which this application was instituted was self-created. They all implored the court to dismiss the Minister's application.

The principal submissions by the parties

[49] At the hearing of this application, Mr Melunsky SC, Hacky's legal Counsel, submitted that Hacky brought this application against the Minister to compel the Minister to make her final decision and to secure its - at least provisionally recognised right to catch fish. Counsel submitted that after the Hacky order was granted in December 2022, the Minister reconsidered the application in terms of the order and scored the third to fifth respondent zero for section 4 access to suitable vessel requirement.

[50] Counsel submitted that the effect of this was that the third to fifth respondents fell out of the top-scoring 11 and were replaced by Hacky and two others, which provisionally entitled the latter three to be awarded fishing rights. The Minister's decision in respect of which she would allocate fishing rights in Category B was provisional to the extent that she first afforded the third to fifth respondents an opportunity to make representation to her.

[51] Mr Melunsky submitted that the Minister undertook to finalise her appeal decision in respect of category B once she had considered these representations. Counsel further submitted that notwithstanding her undertaking, the Minister should have made a final decision on the appeals of the third to fifth respondents or Hacky within a reasonable time. According to Mr Melunsky, if the third to the fifth respondents are permitted to fish pending the Minister's final decision, they will harvest fish at Hacky's expense. Furthermore, Hacky will never be able to catch fish caught by the third to fifth respondents. Thus, Mr Melunsky implored the court to grant an order directing the Minister to finalise her decision concerning Hacky and the third to the fifth respondent. In addition, Mr Melunsky urged the court to grant an interdict against the Minister from issuing any permits in terms of section 13 of the MLRA.

[52] The argument of Mr Jamie SC, who appeared for the Minister and the DDG, was essentially in tandem and aligned with the submission of Mr Melunsky. In addition, Mr Jamie submitted that the Hackey order is clearly flawed. Further, Mr Jamie submitted that this order has been interpreted as having vastly different consequences by the various parties, and appropriate relief must be sought to resolve this. Absent an interdict, the contention proceeded, and the unintended consequences of the Hacky order will persist in the 2024 fishing season in the Category B sector.

[53] Mr Jamie submitted that the resultant position involves ongoing illegality, consequent violation of rights, and a breach by the Minister of her obligations in terms of the Constitution and relevant legislation. It was Counsel's further submission that the failure in the Hacky order to deal with all affected parties in relation to the rescoring ordered by the court, led to significant unintended consequences. Mr Jamie submitted that it is vital for the stability of the industry and upholding the rule of law that all affected and Category B applicants in the sector are treated equally. He implored the court to grant the interdictory relief that the Minister sought in the notice of motion.

[54] Mr Moolla, who appeared for the third and fifth respondents, and Mr Tredoux for the fourth respondent, made submissions on behalf of their clients. In my view, their submissions are aligned; to avoid repetition, I will summarise them jointly. Mr Moolla submitted that the urgent relief sought by the Minister and the DDG cannot succeed because the Minister is functus officio. Mr Moolla further submitted that the urgent application brought, and the relief sought by the intended self-review application had not been brought within a reasonable period, and the Minister had failed to set out in detail the facts necessary to determine whether the delay was necessary in the interest of justice or to the public interest. Counsel submitted that there is no urgency, and any urgency alleged has been self-created.

[55] Mr Tredoux submitted that the Minister has acknowledged that once the right is granted, these entities structure their businesses, and employees structure their lives around having access to the work that comes along with holding such a right. Counsel further submitted that the fourth respondent had arranged its affairs in accordance with the rights which were allocated to it, and it has, consequently, employed staff and established maintained premises for the purpose of administering the fishing company and selling fish to members of the public residing in Mitchells plain and Khayelitsha.

[56] Mr Moolla, on the other hand, further contended that there is no demonstration of any prima facie right to prevent the respondents and any of the category B right-holder respondents from fishing. It was further submitted that the respondents have identified alternative remedies available to the Minister in terms of section 28 of the MLRA, which are not disruptive to an entire industry, and which will not cause the respondents hardship and will not prevent the respondents from exercising their right to fish in terms of section 18 of the MLRA. Counsel submitted that there is nothing wrong with the consent order.

[57] Furthermore, Mr Moolla submitted that the consent order did not review and set aside the fishing rights granted to the third and fifth respondents. As such, their respective fishing rights remain valid and enforceable. Mr Moolla further contended that the Minister and the DDG have failed to make a case for granting the urgent interdictory relief. Mr Tredoux and Mr Moolla implored the court to dismiss the Minister's application. Meanwhile, Mr Cooke, for the eighth, tenth and eleventh respondents, submitted that there was no need for an interdict against his clients. He implored the court to indemnify his clients with a costs order.

Issues to be decided

[58] There are two critical questions for consideration in these two applications. The first principal question that this court is enjoined to consider is whether the Minister has made out a case for an order postponing Hacky’s application, and for an order interdicting and restraining any category B right holders who have already been issued with a fishing permit for the 2024 fishing seasons from fishing in terms thereof pending the finalisation of an application to be brought by the Minister to review and set aside the scoring of all Category B rights holders not affected by the Hacky order. Secondly, this court is called upon to determine whether to review the Minister's delay in granting Hacky a fishing right in Category B of the Hake Inshore Trawl sector. Ancillary to this question, this court is enjoined to determine whether it should grant Hacky an interdictory relief restraining the third, fourth and fifth respondents from making any application for fishing permits pending the finalisation of the Provisional Addendum by the Minister.

Applicable Legal Principles and Discussion

[59] As previously stated, there are two interdictory reliefs that this court is enjoined to determine. That of Hacky and that of the Minister. The Minister seeks an order that the interim interdict that Hacky seeks of reviewing the Minister's delay in making a final decision relating to Hacky's right to fishing in Category B of the Hake Inshore Trawl be postponed and be heard together with the substantive review application that the Minister intends to bring. The Minister also seeks an order that other applications in relation to the same sector, namely those brought by Sevlac Investments No. CC (Case No. 14446/2022) and Le Tap CC (Case No. 10586/2022) be set down and heard together with her intended self-review application.

[60] The interdictory relief that the Minister seeks in her application is much wider than the interdictory relief sought by Hacky. Moreover, the Minister's counterapplication overlaps with Hacky's application in that the interdictory relief that the Minister seeks in this application will achieve the same objective if granted, namely that the third to the fifth respondent will not be permitted to fish pending the finalisation of the self-review application or variation application of the Hacky order. For the reasons mentioned, I will first consider the counterapplication of the Minister, and then Hacky's interdictory relief.

[61] It is common cause that the Minister is responsible, among others, for administrating the MLRA and overseeing the functions and strategic objectives of the fisheries branch within the department. In the discharge of her duties, the Minister is guided by, among others, section 33 of the Constitution read with PAJA as well as the principles set out in section 2(j) of the MLRA, which includes transforming the fishing industry, particularly relevant to Category B and Category C applicants for fishing rights. The purpose is to encourage new and particularly previously disadvantaged entities and persons to become involved in the fishing industry.

[62] Section 18(1) of the MLRA provides:

“Granting of rights. —

(1) No person shall undertake commercial fishing or small-scale fishing, engage in mariculture or operate a fish processing establishment unless a right to undertake or engage in such an activity or to operate such an establishment has been granted to such a person by the Minister.

………………….

(5) In granting any right referred to in subsection (1), the Minister shall, in order to achieve the objectives contemplated in section 2, have particular regard to the need to permit new entrants, particularly those from historically disadvantaged sectors of society.

(6) All rights granted in terms of this section shall be valid for the period determined by the Minister, which period shall not exceed 15 years, whereafter it shall automatically terminate and revert back to the State to be reallocated in terms of the provisions of this Act relating to the allocation of such rights.”

[63] This section authorises the Minister to issue commercial fishing rights for periods not exceeding 15 years and determine the proportion of the available fish resources, termed the total allowable catch each successful right holder may catch annually. Pursuant to this provision, it is common cause that the Minister had granted fishing rights to 11 top-scoring applicants in category B, which included the third to the fifth respondents. On 15 September 2022, with the consent of the third to the fifth respondent, the Minister was ordered to reconsider the scoring of section 4 applications (access to a suitable vessel) in the application of Hacky and the third to the fifth respondents.

[64] This order was pursuant to a complaint by Hacky that the Minister had given the third to fifth respondents points for having a suitable nominated vessel in section 4, notwithstanding that their vessels were incapable of catching hake by the trawl method and were self-evidently unsuitable for use in the Inshore Trawl sector. Subsequent thereto, in December 2022, having reconsidered the applications, the Minister scored Hacky and the third to fifth respondent zero for section 4 in terms of the fishing right allocation process.

[65] Pursuant to the reconsideration of section 4, per Hacky court order, the final scores of the affected applicants changed. The effect was that three entities (third to the fifth respondents) that were awarded a fishing right no longer scored among the top 11 in category B of the Hake Inshore Trawl and stood to lose their rights. After the reconsideration process, the third to the fifth respondents fell out of the top, scoring 11 and were replaced by Hacky and two others on the table that the Minister prepared. As a result, this provisionally entitled Hacky and the two other entities to be awarded fishing rights.

[66] Notwithstanding, the Minister's decision in respect of which these new entities would be allocated fishing rights in Category B was provisional to the extent that she afforded the third to fifth respondents an opportunity to make representations to her in terms of section 80(3) of the MLRA or in terms of the principle of natural justice of audi alteram partem on why they should not lose their rights. The Minister's invitation to the third to fifth respondents required them to make representations by no later than 31 January 2023 as to why, given that their scores fell below the cut-off point, they should nevertheless qualify for a fishing right.

[67] Despite this invitation to the affected respondents, the Minister took time to make a final decision. As previously stated, the Minister has given three reasons for the delay in making her decision. Among others, the Minister’s explanation for not finalising her decision in Category B was that she was awaiting the outcome of other review applications. The other reasons for the delay that the Minister advanced have been discussed in paragraphs 32 to 35 of this judgment.

[68] It is irrefutable that since 2017, category B of the Hake Inshore Trawl sector has been plagued by instability that resulted in a destabilised fishery. The Minister noted in her affidavit that this situation is untenable and that 'we are now almost eight years into the rights allocation period and still there is no stability in this sector'. The instability in the sector has been acknowledged by many of the respondents cited herein. The third respondent has alluded to the fact that, ‘indeed, such instability, unlawfulness and regulatory and economic chaos is unprecedented in South African fisheries management history. Never before have ministerial decisions been reviewed and set aside with such frequency and regularity.’

[69] For this reason, the Minister has approached this court to seek an order that ensures that all the affected parties in this category are treated the same and no one, not only the third to the fifth respondent in the Hacky application will be permitted to fish pending a determination of the Minister's self-review application. The respondents have challenged the Minister's application essentially on the basis that there was an inordinate delay in bringing this application, that the application is not urgent, that the Minister is functus officio and that the Minister has not sought to review and set aside her decision to grant some of the respondents fishing rights in terms of section 18 of the MLRA.

[70] Against this backdrop, I turn to consider the preliminary points raised by the respondents and thereafter, the merits of the Minister’s application and the other disputed issues raised above.

The alleged delay in bringing the Minister’s application

[71] As explained above, the respondents contended that the Minister's application was not urgent and that, if any, the urgency was self-created. The opposing respondents further submitted that there was a delay in bringing this application.

[72] Whether a delay was undue or unreasonable is a factual inquiry upon which a value judgment had to be made with due regard to all the relevant circumstances. (Khumalo and Another v Member of the Executive Council for Education: Kwa-Zulu Natal 2014 (5) SA 579 (CC) para 49). As far as the delay in launching this application is concerned, I am of the view that a distinction needs to be drawn between the intended self-review application and the interdictory relief that the Minister seeks in this matter. This present application is for an interdict and not a self-review application in terms of the principles of legality. In my opinion, the Minister would be expected to give a full and detailed explanation for the delay in the review application. The founding affidavit in that self-review application must set out that explanation in full and with sufficient particularity as it is a requirement of that application. The present application, in my view, stands on a different footing.

[73] Notwithstanding, it is indisputable that the Minister made various efforts to resolve the impasse in this sector amicably. The Minister has explained in detail the delay in bringing this application and in making a final decision pursuant to the Hacky order as explained in earlier in this judgment. Furthermore, in her attempt to bring stability to the sector and put an end to the piecemeal decision-making brought about by the numerous court cases, on three occasions, in February 2023, May 2023 and October 2023, the Minister tasked her officials to engage with the industry's representatives to find a holistic solution and put an end to the litigation. Unfortunately, these attempts were unsuccessful.

[74] In my judgment, the argument of the respondents that there was a delay in bringing this application is flawed and does not stand up to scrutiny when the efforts of the Minister to bring finality to the matters in dispute is considered. In any event, even if there was such a delay, I am of the view that the interest of justice calls for it to be overlooked.

Urgency

[75] As far as urgency is concerned, it is trite law that the court will first consider whether an applicant has averred facts which, objectively speaking, demonstrate urgency. Where the application

lacks the requisite element or degree of urgency, the court can, for that reason, decline to exercise its powers under Rule 6(12)(a). (See Commissioner, South African Revenue Services v Hawker Air Services (Pty) LTD [2006] ZASCA 51; 2006 (4) SA 292 (SCA) para 9). In other words, where the facts indicate that the urgency is self-created, an applicant will not be entertained, and the application will be struck from the roll. (see W.M.W v S.W (26912/17) [2023] ZAGPJHC 710 (15 June 2023)).

[76] Essentially, the question is whether the applicant has demonstrated that it will not be afforded substantial redress at the hearing in due course. (East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd and Others (Case No.33767/11) [2011] ZAGPJHC 196 (23 September 2011)). If the first question is answered in the affirmative, the second question is whether the court should entertain the application. Relevant to this question are considerations such as whether the respondents have been given an adequate opportunity to present their case, whether there is other prejudice to the respondents or the administration of justice, the strength of the applicant's case, and whether the urgency shown is self-created.

[77] In the present matter, the Minister has explained in detail the grounds upon which why this matter is brought on an urgent basis. This was set out in the founding affidavit and the replying affidavit. Amongst others, the Minister averred that this application is brought urgently given the imminent commencement of the 2024 fishing season. Without the interdictory relief, the category B right holders will be entitled to fish from 1 January 2024 if they have been issued a permit to do so, which the Minister's department may not withhold without good reasons or a court order. The Minister asserted that right holders commence with permit applications between October and November of the preceding year, and the department is in the process of issuing these permits, as they are required, in law to do so.

[78] The Minister further contended that this means that he is left with no choice but to seek urgent interim relief directing that no permits be issued to category B right holders pending the finalisation of the self-review application and, to the extent that permits have already been issued, the holders of those permits be interdicted from utilizing them.

[79] The Minister contended that if the interdictory relief is not granted, then the very purpose of her relief will be defeated in that successful applicants being introduced into the industry will have to wait until 2025 to start fishing, while those who ought not to be fishing will be permitted to fish for another season. Simply put, the Minister asserts that entities who were allocated a right pursuant to unlawful decisions will continue to fish at the expense and prejudice of the sector. Meanwhile, entities that rightfully should have been awarded a fishing right will not be allowed to exercise the same. According to the Minister, this would perpetuate the operation of unlawful decisions made in the award of fishing rights and the instability and uncertainty in the sector.

[80] In my view, the Minister has clearly set out urgency as envisaged in Rule 6(12)(b) of the Uniform Rules. Furthermore, the impasse between the parties involves a violation of the rights of the respondents, particularly those who scored enough to qualify for a fishing right but who are erroneously excluded from the top 11 in the category B Hake Inshore Trawl. Those respondents (excluded respondents) have a right to choose and practice their trade accordingly. Their right to practice their trade would be infringed if the matter is heard in the ordinary course. Furthermore, the Minister, as the custodian of the marine living resources and the authority to issue fishing rights, cannot be expected to endure the instability and chaos in the fishing sector in perpetuity. She has a constitutional obligation to correct this impasse.

[81] It is trite that a party's failure to institute proceedings on an issue that existed and of which that party may have been aware for some time would make it difficult for such a party to have that issue adjudicated on an urgent basis. (See South African Breweries (Pty) Ltd v Minister of Corporative Governance and Traditional Affairs and Another [2021] 4 All SA 189 (WCC) para 15). However, there are exceptions to this general rule, especially in cases with ongoing violations of rights. A court is bound to consider such a matter on an urgent basis. Similarly, in my view, the erroneously excluded respondents are suffering a violation of their rights on an ongoing basis, which necessitates the urgent hearing of this matter. Thus, the Minister was correct in bringing her application on an urgent basis.

Is the Minister functus officio?

[82] The respondents have argued that the Minister is functus officio. It was further submitted that any re-evaluation of what is scored for section 4 of its application is moot and irrelevant as the Minister cannot terminate the fishing right, she granted. Furthermore, the respondents submitted that the Minister has not sought to review and set aside her decision to grant the respondents a fishing right in terms of section 18 of the MLRA.

[83] Whilst I note and appreciate the argument raised, I am of the view that it is for that reason that the Minister has approached this court for an interdict to stop the exercise of that right and the issuing of permits by official of her department to the respondents. The issues raised by the Minister in this application are novel. The Minister seeks to correct irreparable prejudice that flows from the existence of fishing rights which have been irregularly issued. The argument that the Minister is functus officio would have been sustainable if the Minister on her own decided to withhold the issuing of fishing permits. Contrastingly, the Minister did not decide to withhold the issuing of permits of fishing rights without a court order. Instead, the Minister has approached this court for such relief to correct an unlawful consequence resulting from an unlawful administrative decision.

[84] In Transair (Pty) Ltd v National Transportation Commission 1977 (3) SA 784(A) the Appellate Division, as it then was, stated that ‘while an administrative body may not be competent to investigate the validity of its own prior acts, this does not mean that it is incompetent to ask a court to do so.’ (See also Merafong City Local Municipality v AngloGold Ashanti Limited 2017 (2) SA 2011 (CC) para 41.) This constitutional obligation on administrators and organs of State to go to court and not to simply ignore their own unlawful administrative actions has been highlighted in several cases in our courts. In Minister of Home Affairs and Another v The Public Protector 2018 (3) SA 380 SCA para 38, the court held that until a court is appropriately approached, and an allegedly unlawful exercise of public power is adjudicated upon, it has binding effect merely because of its factual existence. (See also State Information Technology Agency SOC Ltd v Gijima Holdings (Pty) Ltd 2018 (2) 23 (CC)).

[85] Undoubtedly, the 2015/2016 fish right allocation process has been plagued since inception by numerous errors, litigation, and instability. Due to the uncertainty and instability created in the sector because of multiple internal appeals and several High Court applications, it is indisputable that the Minister made concerted efforts to find a holistic solution to end the instability in the sector with no success. The Minister was at great pains to find a lasting solution to arrest the situation. Thus, the intended self-review application is brought in good faith and without malice to stabilise the sector. The Minister approached this court to correct a mistake in scoring in the appeal process. In my view, this interdict application is intended to correct the impasse and the instability in the sector.

[86] The action taken by the Minister in my view, is consistent with the Constitutional Court decision in Merafong City Local Municipality v AngloGold Ashanti Limited 2017(2) SA 2011 (CC) para 41, where the Court observed that the import of Oudekraal Estates (Pty) Ltd v City of Cape Town 2004 (6) SA 222 (SCA) and MEC for Health, Eastern Cape v Kirland Investments (Pty) Ltd 2014 (3) SA 481 (CC) was that government cannot simply ignore an apparently binding decision on the basis that it is invalid. The court noted that the validity of the decision must be tested in appropriate proceedings. And the sole power to pronounce that the decision

is defective, and therefore invalid, lies with the courts. Government itself has no authority to invalidate or ignore the decision. It remains legally effective until properly set aside. In my view, the Minister is not functus officio in bringing the interdict application to correct the instability in the fishing sector.

The Minister’s counterapplication on the Merits

[87] In my view, the relief the Minister seeks in her Notice of Motion is overbroad. It paints all the respondents with the same brush. In the Notice of Motion and even in her founding affidavit, the Minister seeks an interdict restraining all the Category B right holders who have already been issued with a fishing right for the 2024 fishing season from fishing pending the finalisation of the outcome of her review application. Mr Jamie, on behalf of the Minister, argued in his heads of argument that interdicting all the category B entities from fishing until the determination of the Minister’s substantive application provides protection for all applicants in that no entity would be permitted to fish out the total allowable catch at the expense of others.

[88] I do not agree with this proposition. In my opinion, this proposition ignores the fact that the top-scoring respondents are not affected by the access to a suitable vessel. I firmly believe that the relief the Minister seeks against the top-scoring respondents is legally incompetent.

[89] In my judgment, the proposed relief will be prejudicial on the Category B fishing rights holders who have been correctly scored and are not subject to any suspicion regarding incorrect scoring. Notably, the Minister has already identified the impugned applications in Category B. It will be grossly irregular and irrational, in my view, that all the Category B right holders be prohibited from fishing from the commencement of the 2024 fishing season, especially because the Minister is concerned with the bottom half of the table of the Category B right holders.

[90] Furthermore, the top-scoring respondents in all probability will retain their fishing rights after the rescoring contemplated by the self-review application. In my opinion, shutting down the entire fishing operation for Category B indiscriminately would be extremely illegitimate. It would deprive lawfully awarded fishing rights holders and their employees of the opportunity to operate and earn an income.

[91] In addition, in the self-review application, the Minister intends to recheck the scoring of section 4 of the Category B application forms to ensure that applicants nominated suitable vessels as defined in the sector policy. The top-scoring respondents unquestionably have suitable vessels and were scored correctly in section 4. Thus, the intended self-review application does not impact the top-scoring respondents. In these circumstances, a blanket ban against the top-scoring respondents, notwithstanding that they fully complied with all the requirements and permutations set by the Minister, will be excessively harsh and grossly unfair to them.

[92] The Minister has correctly acknowledged that the fishing right allocation process is a competitive process and that once a fishing right is granted, the respondents structure their business, and employees structure their lives around having access to the work that comes along with holding such right. Thus, a blanket ban or interdict against all the respondents on fishing will impact not only the top-scoring respondents and enterprises but also their employees, contracting parties, and members of the public. This situation is also compounded by the current economic climate and unemployment rate that this country is experiencing. In my view, a blanket prohibition of fishing on all the respondents without any differentiation will indisputably increase the unemployment level, which is already high.

[93] The top-scoring respondents have legitimately arranged their affairs according to the rights allocated to them and consequently employed staff and maintained premises for administering the fishing company and selling fish to members of the public. In my view, the effect of the order that the Minister seeks non-selectively against all the respondents is far-reaching and likely to negatively impact the livelihood of the top-scoring respondents who satisfy all the requirements of the Minister, and the public they supply.

[94] However, I am firmly of the view that the respondents who do not meet the threshold set by the Minister, particularly the third, fourth, and the fifth respondents, should not cry foul as they don't satisfy the requirements for a fishing right in this sector. It must be stressed that there must be organisational control in every business setting. There must be a system built with strong checks and balances that regulate, guide, and protect the organisation. In this case, the Minister has decided to allow eleven (11) applicants in this sector who meet specific competitive criteria. The affected respondents did not challenge the maximum number that the Minister has allocated for this sector. Furthermore, they do not meet the specifics, or the threshold set by the Minister. The application of the Hacky court order affects them or the bottom half of the Minister's table rather than the top-scoring entities.

[95] To this end, I agree with Mr Jamie that entities who had acquired fishing rights due to irregular administrative decisions should not be heard to complain if such rights are not permitted to stand. They have had the benefit of fishing for varying periods over the past eight years under circumstances where they were not entitled thereto on a proper scoring of section 4 in terms of the Hackey order. As the Minister noted in her founding affidavit that, the harm is self-evident. As matters stand, entities who ought not to be fishing may be fishing, while entities who ought to be entitled to fish do not hold rights as yet. In my opinion, the restraining order that the Minister seeks must be viewed from this perspective and must directed to the low-scoring respondents affected by the Hacky order.

[96] It must be borne in mind that the Minister can only change the scores allocated to the respondents for section 4 (access to a suitable vessel) as this is the only aspect of her decision she seeks to be reviewed and set aside. The disruption and instability that the intended interdict would have on the low-scoring respondents must be balanced against the consequences of continuing the incorrect entities to fish and the need to bring stability to the sector so that the disruptions may finally end.

[97] In my view, an interdictory relief will cause hardship to the top-scoring respondents who lawfully acquired their fishing rights. To the contrary, any prejudice that the low-scoring respondents (affected respondents) allege they would suffer must be weighed up and balanced against the consequences of continuing to allow irregularly awarded fishing rights to be exploited. They do not have access to a suitable vessel which is required by the Minister.

[98] To my mind, the low-scoring respondents must be interdicted to afford the Minister an opportunity to correct the injustice. The anomaly that the Minister explained in her founding affidavit cannot be allowed to continue in perpetuity. As stated above, the extent and nature of the illegality is such that if the grant of the fishing rights pursuant to the incorrect scoring is permitted to stand, that would perpetrate an illegality at the expense of the applicants who properly, fairly, and rationally scored, and should rank in the list of top 11 applicants, and who are entitled to the allocation of a fishing right and permit.

[99] In a nutshell, the position of the low-scoring respondents (third, fourth, and fifth respondents) stands on a different footing. I am aware that the same prejudice may be suffered by these respondents who did not meet the threshold. As previously stated, these respondents who had acquired rights due to irregular administrative decisions shouldn’t be heard to complain if such rights are not permitted to stand. A glaring injustice cannot be countenanced. The perpetuation of an unfair, unjust, and unlawful allocation of fishing rights is indefensible and untenable.

[100] I firmly hold the view that such an irregular administrative action that hamstrung the Minister cannot be ignored. Despite the challenges these respondents may face, I firmly believe that the Minister's application for an interdict against them should succeed so that this injustice can be corrected through the intended review application. To this end, the absence of an interim interdict against these respondents will foil and frustrate the Minister's constitutional mandate and offend her functions and powers. The Minister must act in the public interest to prevent irregularities and take steps to rectify them when they occur.

[101] I therefore conclude that the top-scoring respondents will suffer irreparable harm if the interdict against them is granted. In my opinion, the balance of convenience favours the granting of an interdict against the affected respondents to correct the irregular fishing rights issued to them. As astutely noted by Mr Jamie, the continued existence of irregular decisions and the unfairness that flows therefrom constitutes ongoing prejudice not only to the Minister in her official capacity but also to the sector. The Minister has a duty to act in the public interest to prevent such irregularities and, when they do occur, to take steps to rectify them.

[102] To my mind, this finding is fortified by section 33 of the Constitution, read with section 3 of PAJA, which guarantees the right to just administrative action that is lawful and reasonable. The Minister is constitutionally obligated to ensure that administrative decisions comply with the provisions of PAJA and section 33 of the Constitution. The Minister must address irregular decisions and actions and take steps to remedy such situations.

[103] Consequently, the Minister’s application must succeed with respect to the third, fourth, fifth, and thirteen respondents and must fail with respect to the top-scoring respondents. I turn to consider Hacky application.

Hacky’s application for a declarator and interdictory relief – Case No. 18801/23

[104] Hacky seeks an urgent review of the Minister’s alleged unreasonable delay or failure in taking a final decision regarding Hacky’s fishing right in Category B of the Hake Inshore Trawl fishing sector. In addition, Hacky also seeks an interdict that the third, fourth and fifth respondents be restrained from applying for permits or making use of any permits already issued to them for purposes of exercising any fishing rights granted to them in the Hake Inshore Trawl sector.

[105] I have noted that the Minister has since instituted the review application under case number 2090/24. Pursuant to the view I take regarding the issues above, I am of the view that the order Hacky seeks is moot. Furthermore, while I accept that the Minister has taken a long time to decide whether to grant Hacky the fishing right, I am of the view that such a decision is central to the review application and must await the outcome of that application. If the Minister’s review application is successful, this will permit the scoring of all appellants including Hacky equally and consistently on the issue of access to a suitable vessel in terms of the competitive process the Minister has implemented.

Order

[106] Given all these considerations, the following order is granted:

106.1 The second applicant, including the officials of the Department of Forestry, Fisheries and the Environment under the control of the second applicant, are authorised and directed to refuse to issue fishing permits to the third, fourth, and the fifth respondents, who are Category B right holders in the Hake Inshore Trawl fishing sector, for the 2024 fishing season pending the rescoring sought in the application for review/variation brought by the applicants under case number 2090/2024.

106.2 Hacky’s application is postponed sine die and is to be heard together with the Minister’s self-review application under case number 2090/2024.

106.3 The third, fourth, and the fifth are interdicted and restrained from fishing in terms of any permit/s already issued to them for the 2024 fishing season, pending the rescoring sought in the application under case number 2090/2024.

106.4 The costs of both applications shall stand over for later determination, save that the applicants (the Minister and the DDG) shall pay the costs of the eighth, tenth, eleventh and twelfth respondents in case 20607/23 jointly and severally.

LEKHULENI JD

JUDGE OF THE HIGH COURT

APPEARANCES For the Minister and the Deputy Director General: Mr Jamie SC Mr Ebrahim Ms S Hendricks Instructed by: The State Attorney Long Street Cape Town For Hacky Fishing: Mr Melunsky SC Instructed by: Andre De Vos & Associates 35 Brickfield Road Salt River Cape Town For the Third, and Fifth Respondents: Mr Moolla Instructed by: Smit & Associates Attorneys Malmesbury For the Fourth Respondent: Mr Tredoux Instructed by: SB Attorneys Unit 66 Roeland Square Drury Lane, Gardens Cape Town For the eighth, tenth and eleventh Respondents: Mr Cooke Instructed by: Dawson Edward & Associates De Hoop - Gardens Cape Town