WWF South Africa challenged the Deputy Director General (DDG) of Fisheries Management's determination of the Total Allowable Catch (TAC) for West Coast Rock Lobster for the 2017/18 fishing season. The lobster resource had become critically depleted to 1.9% of pristine levels. The Scientific Working Group (SWG) recommended a TAC of 790 tons (a 59% reduction from the previous season's 1924.45 tons) based on the Operational Management Procedure (OMP) and best available scientific evidence. The SWG invoked the "exceptional circumstances" provision due to the severe depletion. Despite support from departmental scientists and officials, the DDG, Ms Ndudane, set the TAC at 1924.08 tons (essentially unchanged from the previous year). She stated this was not based on scientific advice but on socio-economic considerations and claimed that TAC reductions do not aid recovery of nearshore resources, and that poaching was the primary problem. The DDG was subsequently suspended and faced 39 disciplinary charges including fraud and corruption. There was evidence of procedural irregularities in the decision-making process and non-disclosure of documents.
The DDG's determination of the 2017/18 TAC was declared inconsistent with the Constitution as read with s 2 of NEMA and s 2 of the MLRA and declared invalid. The first and second respondents were ordered to pay WWF's costs including costs of two counsel.
When determining a TAC for a critically depleted marine resource under the MLRA, a decision-maker: (1) must have regard to all mandatory objectives and principles in the Constitution (s 24), NEMA (s 2) and the MLRA (s 2); (2) must take into account the best available scientific evidence as required by article 61 of UNCLOS; (3) must apply the precautionary principle mandated by NEMA and the MLRA, which requires that lack of full scientific certainty not be used to postpone measures to prevent environmental degradation; (4) cannot rationally prioritize socio-economic considerations over ecological sustainability when this would result in further depletion of an already endangered resource; (5) cannot rely on unsubstantiated assertions contradicting established scientific approaches without proper evidence; (6) cannot rely on vague prospective enforcement measures without concrete evidence of their likelihood of success and impact; (7) must ensure broad and accountable stakeholder participation as required by s 2(h) of the MLRA. Environmental resources must be protected for present and future generations (intergenerational equity), and cannot be exhausted for short-term benefit of current users.
The court made several non-binding observations: (1) It expressed concern that the suspended DDG faced serious criminal charges which may have affected her credibility; (2) It noted that under normal circumstances, fisheries should aim for maximum sustainable yield at around 40% of pristine biomass, and values below 10% are completely unacceptable internationally; (3) It observed that at 1.9% of pristine, the lobster resource was so depleted that by international standards the fishery should have been closed entirely; (4) It commented that the resource was eligible for listing under CITES Appendix I as threatened with extinction; (5) It noted that future allocation disputes between small-scale fishers and commercial operators would raise different issues of equity, past discrimination, and fair access not addressed in this case; (6) It observed that the precautionary principle is arguably now a principle of customary international law; (7) It expressed hope that its reasons would guide future TAC determinations even though it declined to make prospective orders.
This case is significant for establishing that: (1) Decision-makers under environmental legislation must properly apply the precautionary principle and cannot disregard best available scientific evidence; (2) Socio-economic considerations cannot override core sustainability and conservation requirements when a resource is critically depleted; (3) International obligations under treaties like UNCLOS are binding on administrative decision-makers and must inform TAC determinations; (4) The principle of intergenerational equity requires that environmental resources be preserved for future generations, not exhausted for short-term benefit; (5) Public interest environmental litigation is not barred by mootness where important ongoing issues are raised; (6) The objectives and principles in s 2 of the MLRA and s 2 of NEMA are binding and mandatory, not merely aspirational; (7) Vague assertions about future enforcement measures cannot substitute for evidence-based precautionary management. The case demonstrates robust judicial oversight of environmental decision-making and enforcement of constitutional environmental rights under s 24.