Minerva Bunkering Marine Services (Pty) Ltd v The Acting Chief Executive Officer of the South African Maritime Safety Authority and Others

Minerva Bunkering Marine Services (the applicant) is a marine fuel supplier operating ship-to-ship bunkering operations in the ports of Port Elizabeth and Ngqura in Algoa Bay. In 2012-2014, following consultations and an audit, SAMSA (the second respondent) granted approval to Aegean (Minerva's predecessor) to conduct ship-to-ship bunker transfers in Algoa Bay. The approval was granted on 26 July 2013 in principle and finalized on 8 May 2014. Minerva took over Aegean's business in April 2019, and the approval was transferred to it. Minerva's business model involves three legs of ship-to-ship transfers: (1) replenishment of a mothership from a tanker; (2) transfer from mothership to bunker barges; and (3) transfer from bunker barges to third-party vessels for consumption. On 5 December 2022, SAMSA withdrew the approval, effective immediately, asserting that the approval only covered the third leg (bunker transfers to vessels for consumption) and not the first two legs (cargo transfers). SAMSA alleged Minerva was conducting illegal operations outside the scope of the approval. Minerva launched urgent review proceedings.

• Whether the approval granted by SAMSA covered all three legs of ship-to-ship transfers or only the third leg (bunker transfers for vessel consumption)
• Whether SAMSA was empowered under the Marine Pollution (Control and Civil Liability) Act, 6 of 1981 (the MPA) to unilaterally revoke the approval
• Whether the decision to withdraw the approval constituted reviewable administrative action under PAJA
• Whether SAMSA provided adequate reasons for its decision
• The respective jurisdictional boundaries between SAMSA and the Transnet National Ports Authority (TNPA) regarding ship-to-ship transfers
• Whether the decision was rational and lawful

1. The decision of 5 December 2022 to withdraw the approval is declared unlawful and is reviewed and set aside. 2. The approval granted on 8 May 2014 is reinstated. 3. The decisions to issue notices under section 30(3) of the MPA on various dates in 2022 and 2023, and the notices themselves, are declared unlawful and set aside. 4. The first and second respondents are ordered to pay the applicant's costs for both parts A and B of the application, including costs of two counsel where employed.

An administrative body may only exercise powers expressly or impliedly conferred by its empowering legislation. Where a statute does not expressly authorize the revocation of administrative approvals, such power can only be implied if necessary for the efficacious operation of the statute. The Marine Pollution (Control and Civil Liability) Act does not empower SAMSA to unilaterally revoke approvals granted under section 21, as section 22 provides alternative remedies for non-compliance and SAMSA can protect its interests through conditions attached to approvals under section 21(2). The functus officio doctrine applies to administrative approvals that vest rights, requiring that such approvals can only be set aside by a court of competent jurisdiction. Administrative action that is not authorized by an empowering provision, or that is materially influenced by an error of law regarding the scope of such authorization, is reviewable under PAJA sections 6(2)(a)(i) and 6(2)(d) respectively and must be declared unlawful under section 172(1)(a) of the Constitution.

The court observed that administrators must act consistently to promote administrative certainty, noting SAMSA's inconsistent application of the approval over time. The court commented that SAMSA and TNPA have mutually supportive rather than mutually exclusive roles, with TNPA's port management function including ensuring compliance with environmental legislation like the MPA within port limits. The court noted that adequate reasons for administrative decisions serve to promote administrative certainty and assist courts in review proceedings, and criticized SAMSA's failure to provide adequate reasons despite being given ample opportunity. The court made obiter remarks about the proper framing of conditions in administrative approvals, noting that if SAMSA wished to limit the scope or reserve the right to revoke, it should have done so clearly in the approval conditions. The court also observed that notionally, conditions could include powers to revoke in specified circumstances, duration limits, or prior notice requirements for certain operations.

This judgment is significant for administrative law and maritime regulation in South Africa. It reinforces the principle that administrative bodies must act within the powers conferred by their enabling legislation and cannot assume powers not expressly or impliedly granted. The case clarifies that the functus officio doctrine applies to administrative approvals that vest rights, preventing unilateral revocation without court intervention. It emphasizes the importance of consistency in administrative action and adequate reasoning under PAJA. The judgment also clarifies the respective jurisdictions of SAMSA and port authorities, confirming that SAMSA has jurisdiction over ship-to-ship transfers in the prohibited area (including ports) except for regulation 13 transfers. The case highlights the interpretive principle that commercial documents should be interpreted to give businesslike and sensible effect to the parties' intentions, and that subsequent conduct can illuminate the meaning of approvals.