Minister of Forestry, Fisheries and the Environment and Another v Ulwandle Fishing (Pty) Ltd and Others

The Minister of Forestry, Fisheries and the Environment and the Deputy Director General (DDG) sought urgent relief relating to the horse mackerel fishing sector. Following the 2015/2016 Fishing Rights Allocation Process (FRAP), the DDG provisionally allocated commercial horse mackerel fishing rights to 33 entities (6 Category A, 27 Category B, and 4 Category C). After a series of appeals and a court-ordered reconsideration, the Minister published final appeal decisions on 31 March 2022, determining that only the 12 top-scoring Category B entities would receive rights, with a total allowable catch allocation of 20%. The first to twelfth respondents were the successful Category B entities. The thirteenth to seventeenth respondents, who were unsuccessful in the Minister's final decision, instituted separate review applications challenging the Minister's decision. These review applications were at various stages of completion: some judgments were pending, reasons for one order were outstanding, and one application was not yet ripe for hearing. The Minister sought an order to prevent the issuance of fishing permits to any Category B right holder and to interdict those already holding permits from fishing for the 2024 season, pending the finalisation of all the review applications. The second respondent (Ulwandle Inshore), a Category B right holder allocated 7.78% of the total allowable catch and scoring 85.38%, opposed the application, contending it lacked urgency and merit.

• Whether the application was urgent in terms of Rule 6(12) of the Uniform Rules of Court.
• Whether the Minister satisfied the requirements for an interim interdict to restrain Category B right holders from fishing and prevent the issuance of permits pending the finalisation of review applications.
• Whether a court can grant an interdict where the merits of the underlying review applications that justify the interdict are not before the court.
• Whether an administrative act (the allocation of fishing rights) remains valid and enforceable until set aside by a court.
• Whether the relief sought was practical and sustainable given the stage of the pending review applications.

The application was dismissed with costs, including the costs of two counsel where employed.

For an interim interdict to be granted, the applicant must establish a prima facie right, a well-grounded apprehension of irreparable harm, a favourable balance of convenience, and the absence of any other satisfactory remedy. Where the applicant seeks to interdict the exercise of lawfully granted rights based on pending review applications whose merits are not placed before the court, and where the interdict would cause substantial and immediate harm to parties who would retain their rights even if the reviews succeed, the balance of convenience militates against granting the relief. An administrative act (such as the allocation of a fishing right) remains valid and enforceable until set aside by a court, and a blanket moratorium cannot be imposed merely on the supposition that some rights may have been invalidly allocated.

The court commented on the impracticality of the relief sought, noting that even after finalisation of the review applications, appeals could follow, making it unlikely that all matters would be resolved during 2024. The court also observed that the relief directing the Acting Judge President to case manage matters where judgment was already pending was 'inconceivable'. Additionally, the court remarked that once a fishing right is granted, the right holder structures its business and employees arrange their lives around it, emphasising the real-world consequences of judicial intervention.

This case illustrates the high threshold for obtaining interim interdictory relief against the exercise of lawfully granted administrative rights pending the outcome of review applications. It confirms that a party seeking to restrain the exercise of such rights must place the merits of the underlying challenges before the court and demonstrate that the balance of convenience favours the restraint. The judgment also addresses the practical realities of the fishing rights allocation process under the Marine Living Resources Act, including the cascading effects of piecemeal litigation on the stability of the fishing industry and the validity of administrative acts until set aside.