Ecolex Logo
The gateway to
environmental law
Search results » Jurisprudence

West Coast Rock Lobster Association and Others v Minister of Environmental Affairs and Tourism and Others

Country/Territory
South Africa
Type of court
National - higher court
Date
Sep 22, 2010
Source
UNEP, InforMEA
Court name
Supreme Court of Appeal
Judge
Navsa, Lewis, Ponnan, Mhlantla and Pillay
Reference number
[2010] ZASCA 114
Language
English
Subject
Fisheries, Legal questions
Keyword
Marine fisheries Fishery management and conservation
Abstract
This was appeal against a refusal by the Cape High Court to grant a declaratory order in terms of which the Minister of Environmental Affairs and Tourism Marthinus van Schalkwyk would have been precluded from using s 81 of the Marine Living Resources Act 18 of 1998 in order to grant subsistence fishers generally and the fourth to 1 245th respondents in particular the right to catch and sell West Coast Rock Lobster for commercial purposes. The court expressed the view that there was some force in the attack by the appellants on the Minister's application of s 81 of the Act. It had been submitted that the effect of using the power of exemption in terms of s 81 of the Act to grant subsistence fishers the right to fish as ‘recreational fishers' was to subvert not only the definition of recreational fishing but also s 20(1) of the Act which provides that no person shall sell, barter or trade any fish caught through recreational fishing. It had been submitted on behalf of the respondents that the prohibition against commercial fishing in terms of s 18 of the Act, unless one was in possession of a permit by the Minister, militated against the common-law entitlement to retain a catch from the sea and that by granting an exemption the Minister was restoring the common-law position. This court found it unnecessary to finally decide this issue because the appeal failed at two fundamental preliminary levels. The measures by the Minister were regarded as interim. They had been overtaken by time and circumstances. There was no indication that similar facts would come before court in the future. Courts were disinclined to grant orders that had no practical effect. For that reason alone the appeal was destined to fail. There was a second reason why the appeal could not succeed. The declaratory order sought was couched too widely purporting to bind an entire category of fishers not all of whom were before court. In any event, the declaratory order sought did not deal with the nub of the appellants' complaint. The appeal was accordingly dismissed with costs.
Full text
COU-159337.pdf