West Coast Rock Lobster Association v The Minister of Environmental Affairs and Tourism

The first appellant was a non-profit organisation whose members held long-term fishing rights for West Coast rock lobster (WCRL) under s 18(1) of the Marine Living Resources Act 18 of 1998 (MLRA). The second, third, and fourth appellants held various long-term commercial fishing rights in the WCRL fishery. The Minister of Environmental Affairs and Tourism, in settlement of litigation in the Equality Court, granted interim measures allowing identified subsistence fishers (fourth to 1245th respondents) to catch and sell WCRL. This was done by exempting them under s 81 of the MLRA from provisions prohibiting commercial fishing without rights granted under s 18. The subsistence fishers were issued recreational fishing permits but exempted from the prohibition on selling recreational catches. The appellants challenged this in the Western Cape High Court, seeking review and setting aside of the Minister's decisions, and a declaratory order preventing the Minister from using s 81 to grant subsistence fishers rights to catch and sell WCRL commercially. The High Court dismissed the application with costs. The appellants appealed to the Supreme Court of Appeal with leave.

• Whether the Minister could validly use the exemption power in s 81 of the MLRA to grant fishing rights, rather than following the rights allocation process in s 18
• Whether the proposed declaratory order would have any practical effect given that the interim measures had expired
• Whether the proposed declaratory order was properly formulated and could bind persons not party to the proceedings
• Whether the appellants had locus standi to challenge the Minister's decisions

The appeal was dismissed with costs, including costs of two counsel. The court did not order remittal to the High Court or grant any declaratory relief. The Registrar was directed to bring the judgment to the attention of the Chief State Law Advisor and the Minister for Justice and Constitutional Development regarding jurisdictional questions arising from the interplay between the Equality Court and High Courts.

A court will not grant a declaratory order where: (1) the matter is moot because the impugned decisions were interim in nature, have expired, and there is no indication that identical facts will recur; and (2) the proposed declaratory order is so broadly formulated that it would prejudicially affect a class of persons not all of whom are parties to the proceedings, and does not properly address the specific legal issue in dispute. A declaratory order cannot validly bind persons who are not parties to the litigation. When a matter has been overtaken by time and circumstance and will have no practical effect, an appeal should be dismissed on this ground alone pursuant to s 21A(1) of the Supreme Court Act 59 of 1959.

The court made several important observations without deciding them definitively. First, it noted that there was "some force" in the appellants' argument that the Minister's use of s 81 to grant fishing rights subverted the structure and purpose of the MLRA, which provided a specific rights allocation mechanism in s 18. The court expressed concern that permitting such a wide exemption power could allow the executive to undo the structure, purpose and principles of legislation, blurring jurisdictional lines between arms of government. Second, the court assumed without deciding that the appellants had locus standi to bring the challenge. Third, the court expressed significant concern about the "dissonance" and "legal uncertainty" arising from the interplay between Equality Courts and High Courts, describing parallel and cross-cutting litigation as "the antithesis of what was intended" by the Promotion of Equality and Prevention of Unfair Discrimination Act. These jurisdictional issues were flagged as matters requiring legislative attention.

This case is significant for South African administrative and environmental law in several respects. It reinforces the principle that courts will not adjudicate moot or academic questions, particularly in the context of interim or time-limited administrative decisions. It emphasizes the importance of proper formulation of declaratory orders, particularly ensuring that such orders do not purport to bind persons who are not parties to the proceedings. The case also highlights tensions in the fisheries management framework between conservation objectives, historical commercial rights, and transformative imperatives to include previously disadvantaged subsistence fishers. Finally, the court's direction to bring the judgment to government's attention signals concern about jurisdictional confusion arising from parallel proceedings in Equality Courts and High Courts, suggesting potential need for legislative clarification.