7 October 2008
Cape Town — Environment Minister Marthinus van Schalkwyk acted reasonably when deciding to allow 1 000 artisanal, or subsistence, fisherfolk to catch and sell kreef (rock lobster) using recreational fishing permits, the Cape High Court has ruled.
In a judgment on Tuesday, Judge Dennis Davis said the minister had faced a difficult decision when trying to comply with an Equality Court order to the effect that these fisherfolk were, as an interim relief measure, entitled to catch and sell kreef and other fish species using recreational permits, pending finalisation of a new fishing policy that formally took their needs into account.
This was despite a clause in the Marine Living Resources Act that forbids the commercial sale of any species caught on a recreational permit, and which was also contrary to scientific advice from Van Schalkwyk's department.
This advice was to the effect that allowing the subsistence fisherfolk to each catch four kreef per day during the season would mean the scientifically determined overall kreef quota would be exceeded for the season, to the detriment of the resource which was under "significant pressure".
Dismissing with costs an application to set aside Van Schalkwyk's decision, Davis said the minister had been obliged in terms of the act to take the interests of the artisanal fisherfolk into account when crafting his decision.
Evidence had shown that Van Schalkwyk had faced a difficult decision when balancing competing rights in the allocation of limited natural resources, but had done so "in a fashion in which he was cognisant of competing interests", he said.
The application was brought by the West Coast Rock Lobster Association, whose members hold 10-year rights to catch kreef, as well as two individuals and two companies.
The respondents were Van Schalkwyk, his senior officials responsible for managing fisheries and 1 241 small-scale and subsistence fishers, represented by Langebaan fisherman Kenneth Blaauw.
Van Schalkwyk's decision followed an order by the Equality Court in May 2007, issued after an agreement among the parties that the artisanal fishermen were entitled to some form of relief through fishing until the government had finalised its new subsistence fishing policy.
Davis said Van Schalkwyk had been given the legal power to decide whether it was appropriate to exempt people, or categories of people, from the provisions of the Marine Living Resources Act.
Judge Davis said that on the evidence before the court, he could not decide whether any of the applicants had suffered prejudice as a result of Van Schalkwyk's decision.
"Of course, any future decision taken may cause prejudice, but that is not an issue before this court."
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