Duncan v The Minister of Environmental Affairs and Tourism

The appellant, a commercial fisherman, applied in November 2005 for a long‑term (eight‑year) commercial fishing licence for traditional line fish under s 18 of the Marine Living Resources Act 18 of 1998. His application was refused by the Chief Director of the Department of Environmental Affairs and Tourism, acting under delegated authority, on the sole ground that he failed to demonstrate access to a ‘suitable line fish vessel’ as required by the Traditional Line Fish Policy published in 2005. The appellant’s vessel, the MFV Endeavour, was a large freezer boat (16.58 metres) and did not fall within the policy’s preferred category of ski‑boats or traditional wooden deck boats of approximately 10 metres or less. The appellant’s internal appeal to the Minister under s 80 of the Act was dismissed. He then sought judicial review in the Cape High Court, arguing that he had a legitimate expectation to be granted a long‑term licence because he had previously held a medium‑term licence (2001–2005) using the same vessel and had participated in the industry since 1995. The High Court dismissed the review application, and the appellant appealed to the Supreme Court of Appeal.

The appeal was dismissed with costs, including the costs of two counsel.

The case is significant for South African administrative law because it clarifies the requirements for establishing a legitimate expectation and reaffirms that prior participation in a regulatory scheme or the grant of a time‑limited right does not, without more, create a legitimate expectation of renewal. The judgment also confirms that the question whether substantive protection of legitimate expectations forms part of South African law remains open, while demonstrating the courts’ reluctance to extend the doctrine on the facts. It further illustrates judicial deference to environmental and resource‑management policy choices made to protect depleted marine resources.