Bato Star Fishing (Pty) Ltd v The Minister of Environmental Affairs and Tourism and Others

Bato Star Fishing (Pty) Ltd applied for special leave to appeal a Supreme Court of Appeal (SCA) judgment concerning allocation of fishing quotas for the 2002-2005 fishing seasons in the deep-sea hake sector. The applicant, established in 1996 as a black empowerment fishing company, was allocated 856 tonnes (increased to 873 tonnes on appeal), far less than the 12,000 tonnes it sought. The applicant had previously held quotas of 750 tonnes (1999), 750 tonnes (2000), and 803 tonnes (2001) in the deep-sea hake sector. The Department of Environmental Affairs and Tourism issued an invitation for applications with policy guidelines emphasizing both transformation objectives and stability in the capital-intensive deep-sea trawl sector. The allocation process used the 2001 allocation as a starting point, deducted 5% from existing holders to create a redistribution pool, and distributed this pool based on individual assessment scores. No new entrants were admitted to the sector. The applicant's challenge succeeded in the Cape High Court but was overturned by the SCA.

• The proper interpretation of sections 2 and 18 of the Marine Living Resources Act 18 of 1998, particularly the obligation to have regard to transformation objectives
• Whether the Chief Director's decision was reviewable under PAJA and/or the Constitution
• The standard of review for administrative decisions involving complex policy considerations
• The meaning of 'reasonableness' under section 6(2)(h) of PAJA
• Whether the Chief Director failed to consider the applicant's application on its merits
• Whether there was an undisclosed policy change affecting procedural fairness
• The doctrine of judicial deference to administrative decision-makers
• The relationship between the common law grounds of review, PAJA, and section 33 of the Constitution

Application for leave to appeal granted. Appeal dismissed with costs, including costs of two counsel for both the first and second respondents and the third to eighteenth respondents.

Under the constitutional order, judicial review of administrative action flows from PAJA and section 33 of the Constitution, not the common law doctrine of ultra vires. PAJA codifies the grounds of review. The 'reasonableness' standard in section 6(2)(h) of PAJA must be construed consistently with section 33 of the Constitution as asking whether a reasonable decision-maker could have reached the decision in question. Courts must give appropriate respect to administrative decision-makers based on the separation of powers, particularly where decisions require striking an equilibrium between competing policy considerations and involve matters within the decision-maker's expertise. Section 2(j) of the Marine Living Resources Act requires decision-makers to have regard to transformation, meaning they must take it into account and strike a reasonable equilibrium between it and other objectives, but the manner of achieving transformation is left to administrative discretion. Where legislative provisions require 'having regard to' multiple objectives that may be in tension, and where achieving those objectives can be done in various ways, courts will not substitute their view for that of the decision-maker if the equilibrium struck is reasonable.

O'Regan J commented that when courts grant permission to pursue judicial review before exhausting internal remedies under section 7(2)(c) of PAJA, they should consider requiring simultaneous pursuit of internal remedies to avoid duplicate or contradictory relief. O'Regan J noted that litigants seeking judicial review should clearly identify both the factual and legal bases of their cause of action, including specific provisions of PAJA relied upon. Ngcobo J's concurring judgment extensively discussed the constitutional imperative of transformation, emphasizing that the Constitution requires more than elimination of discriminatory laws—it requires positive measures to achieve equality. He observed that transformation is a foundational principle of the Marine Living Resources Act and that the phrase 'have regard to' in the context of transformation must be interpreted purposively to promote constitutional values. Ngcobo J noted that transformation may require that other considerations yield, and that arguments about stability should not be used to prevent necessary transformation. However, he emphasized that courts should not dictate to administrators how to implement transformation, only ensure it is meaningfully addressed.

This case is a foundational judgment on administrative law in the post-1996 constitutional order. It confirmed that PAJA is the primary source of grounds for judicial review of administrative action, grounded in the Constitution rather than common law. It established the proper approach to 'reasonableness' review under PAJA, rejecting an overly restrictive interpretation of the 'Wednesbury' standard. The judgment clarified the doctrine of judicial deference, explaining it as flowing from the separation of powers rather than judicial courtesy. It provided guidance on how transformation objectives in legislation should be interpreted and applied within the constitutional framework of equality. The case is significant for administrative law generally, fisheries regulation specifically, and the jurisprudence on transformation and substantive equality in South Africa.