Oceana Group Limited v Minister of Water and Environmental Affairs and Others

Oceana Group Limited and its wholly owned subsidiary, Blue Continent Products (Pty) Ltd, were holders of long-term commercial fishing rights allocated under the Marine Living Resources Act 18 of 1998 (MLRA). After the allocation of these rights, applications were made (including by Blue Continent Products) for the transfer of commercial fishing rights in terms of s 21 of the MLRA. The responsible Minister published a 'Policy for the Transfer of Commercial Fishing Rights' in July 2009 to govern how such applications would be assessed. Oceana and Blue Continent challenged the legality of this policy, contending that it was unlawful because it narrowly assessed transformation based mainly on ownership and management control, failed to strictly apply the Broad-Based Black Economic Empowerment Act 53 of 2003 (BBBEE Act) and its Codes of Good Practice, conflicted with the objectives of the MLRA, and included provisions (paras 6.2 and 6.3) that were allegedly ultra vires the MLRA. Their application was dismissed by the Western Cape High Court, prompting an appeal to the Supreme Court of Appeal.

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

The case confirms the scope of ministerial discretion in regulating the transfer of commercial fishing rights under the MLRA and clarifies the relationship between sector-specific legislation and the BBBEE Act. It establishes that BBBEE Codes of Good Practice are not automatically or rigidly applicable in all licensing contexts and need only be applied where relevant and reasonably possible. The judgment reinforces the principle that transformation in the fishing industry may legitimately be assessed primarily through ownership and control during the lifespan of long-term fishing rights.