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

The case concerns the allocation of fishing rights in Category B of the Hake Inshore Trawl sector under the Marine Living Resources Act 18 of 1998. Hacky Fishing (Pty) Ltd applied for a fishing right in the 2015/2016 allocation process but was initially refused on the basis that it had not demonstrated access to a suitable vessel (Section 4 of the application form). Following litigation and a consent order (the 'Hacky order'), the Minister reconsidered the scoring. In December 2022, the Minister issued a Provisional Addendum which showed that upon rescoring, Hacky and two other entities were entitled to fishing rights, while the third, fourth and fifth respondents (T & N Visserye CC, Cape Fish Processors CC, and Zimela Fishing Enterprises CC) stood to lose their rights. However, the Minister delayed finalising the decision. Further anomalies were discovered: other entities not party to the Hacky order had also been improperly scored on Section 4, and additional review applications were launched. The Minister sought an interdict to prevent all Category B right holders from fishing pending a self-review application aimed at rescoring all Category B applicants equally. Hacky sought to compel the Minister to make a final decision and interdict the third to fifth respondents from fishing.

• Whether the Minister is functus officio in seeking to revisit the scoring and allocation of fishing rights in Category B of the Hake Inshore Trawl sector.
• Whether the Minister's counterapplication for an interdict restraining all Category B right holders from fishing was justified pending the self-review application.
• Whether there was undue delay by the Minister in bringing the counterapplication and whether the matter was urgent.
• Whether Hacky was entitled to an order compelling the Minister to finalise her decision and interdicting the third to fifth respondents from fishing.

1. The second applicant (DDG) and departmental officials are authorised and directed to refuse to issue fishing permits to the third, fourth and fifth respondents for the 2024 fishing season pending the rescoring sought in the review application under case number 2090/2024. 2. Hacky's application is postponed sine die to be heard together with the Minister's self-review application. 3. The third, fourth and fifth respondents are interdicted and restrained from fishing in terms of any permits already issued for the 2024 season pending the rescoring. 4. Costs of both applications stand over for later determination, save that the Minister and DDG shall pay the costs of the eighth, tenth, eleventh and twelfth respondents jointly and severally.

An administrative body that has made an irregular decision is not functus officio when it approaches a court for interdictory relief to prevent the perpetuation of unlawfulness pending a self-review application; the validity of administrative decisions must be tested in appropriate court proceedings. Additionally, where some right holders have been lawfully allocated rights and are not affected by identified irregularities, a blanket interdict against all right holders is overbroad, irrational and legally incompetent; relief must be tailored to target only those right holders affected by the irregularity.

The court observed that the instability in the Category B Hake Inshore Trawl sector was unprecedented in South African fisheries management history, with ministerial decisions being reviewed and set aside with unusual frequency and regularity. The court also noted that the Minister's obligation to correct administrative irregularities stems from section 33 of the Constitution read with PAJA, and that government cannot simply ignore an apparently binding decision on the basis that it is invalid — the validity must be tested in court.

This case is significant in South African administrative and fisheries law as it clarifies the scope of an organ of state's ability to seek interim interdictory relief to correct systemic irregularities in a competitive rights allocation process. It reinforces the principle from Merafong City Local Municipality v AngloGold Ashanti Limited that government must approach courts to address allegedly unlawful administrative decisions rather than unilaterally ignoring them. The case also emphasises that courts must carefully tailor interdictory relief to avoid unjustified prejudice to lawful right holders, and it illustrates the challenges of instability in fisheries management resulting from flawed administrative processes.