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

País/Territorio
Sudáfrica
Tipo de la corte
Nacional - corte superior
Fecha
Sep 22, 2010
Fuente
UNEP, InforMEA
Nombre del tribunal
Supreme Court of Appeal
Juez
Navsa, Lewis, Ponnan, Mhlantla and Pillay
Número de referencia
[2010] ZASCA 114
Idioma
Inglés
Materia
Cuestiones jurídicas, Pesca
Palabra clave
Pesca marítima Manejo y conservación pesquera
Resumen
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.
Texto completo
COU-159337.pdf