Buffeljagsbaai Marine Company (Pty) Ltd v Minister of Forestry, Fisheries and the Environment and Others

The applicant, Buffeljagsbaai Marine Company (Pty) Ltd, historically held commercial fishing rights to harvest seaweed in Concession Area 5. After the expiry of long-term fishing rights, its application for renewal was refused on the grounds that it had failed to optimally utilise its fishing right. The applicant appealed this refusal, and an exemption was granted allowing harvesting until the allocation of small-scale fishing rights. For approximately six years, the applicant was not informed that its appeal had been rejected, and it continued receiving annual permits. When it finally learned of the rejection, it launched a review application. Subsequently, the second respondent allocated small-scale fishing rights (including seaweed harvesting rights in the concession area) to the third respondent, a co-operative within the same local community. The applicant appealed this grant and sought interim interdictory relief to restrain the third respondent from harvesting seaweed pending the outcome of its review and appeal.

• Whether an appeal against an administrative decision suspends the operation of that decision pending the outcome of the appeal.
• Whether the third respondent had a cognisable entitlement to harvest seaweed in the concession area while the applicants appeal against the allocation of small-scale rights was pending.
• Whether the applicant was entitled to interim interdictory relief restraining the third respondent from harvesting seaweed pending its review and appeal.
• Whether the balance of convenience favoured the granting of interim relief when constitutional rights were allegedly infringed.
• Whether directing the respondents to issue permits to the applicant would amount to impermissible judicial overreach.

A portion of the interim relief sought by the applicant was granted. The third respondent was interdicted from harvesting seaweed in the concession area pending the outcome of the applicants review and appeal. The relief directing the respondents to issue the necessary permits to the applicant to harvest seaweed was refused.

The presumptive effect of an appeal against an administrative decision is that the operation of the decision is suspended. In the absence of anything negating this common law presumption, it must be accepted as applying, with the result that a party granted a right under the appealed decision has no cognisable entitlement to exercise that right pending the appeal.

The court observed that the respondents did not adequately deal with or engage with the issue of whether the applicant was ever provided with the first respondents decision letter, and that the second respondents continued issuance of exemptions and permits to the applicant facilitated the applicants belief that no decision on its appeal had been taken.

This case clarifies the application of the common law presumption that an appeal against an administrative decision suspends its operation, particularly in the context of competing fishing rights allocations under the small-scale fisheries regime. It also illustrates the High Courts approach to granting interim interdictory relief where constitutional rights are implicated, emphasising a holistic, rights-sensitive balancing of interests, and delineates the limits of judicial intervention by declining to order the executive to issue permits.