CCT27/03

[2004] ZACC 15

2004 (4) SA 490 (CC)

2004 (7) BCLR 687 (CC)

O'Regan J Majority judgment

Ngcobo J separate judgment

11 September 2003

12 March 2004

http://hdl.handle.net/20.500.12144/2207

Application for special leave to appeal against a judgment of the Supreme Court of Appeal: Minister of Environmental Affairs and Tourism and Others v Phambili Fisheries (Pty) Ltd and Another [2003] 2 All SA 616 (SCA). The case had previously been heard in the Cape High Court: Phambili Fisheries (Pty) Ltd and Another v Minister of Environmental Affairs and Tourism and Others, Case 1171/2002, 27 November 2002, as yet unreported. Whereas the applicant succeeded in the High Court application, this decision was overturned by the Supreme Court of Appeal.

Application for special leave to appeal against a judgment of the Supreme Court of Appeal (SCA) concerning the allocation of fishing quotas in the deep-sea hake trawl sector of the fishing industry. The applicant, Bato Star Fishing (Pty) Ltd, dissatisfied with the allocation it received in the 2001 allocation process, sought to review that decision. It succeeded in the Cape High Court, whose decision was overturned by the SCA and the applicant then approached the Constitutional Court. Sections 2(j) and 18(5) of the Marine Living Resources Act, 18 of 1998 (the Act) identify transformation of the industry as one of the Act's ten objectives. The applicant relied on these provisions and the fact that it was a medium-sized black empowerment company. O'Regan J, in whose judgment all the judges concurred, found that because the courts' powers to review administrative action no longer flow directly from the common law, but from PAJA and the Constitution itself, the provisions of PAJA should be directly relied upon by applicants seeking the review of administrative action. She rejected all three grounds of appeal, namely unreasonableness, failure to apply the mind and undisclosed policy change. Ngcobo J filed a separate judgment in which all the members of the Court concurred, emphasizing transformation and the constitutional context within which the Act must be understood. He held that the Act requires the Minister to pay special attention to transformation of the fishing industry when granting fishing rights, but a court may not tell functionaries how to implement transformation. Application for leave to appeal granted and appeal dismissed with costs.