Creecy loses urgent court bid to restrict some fishing rights in 2024
A black-owned company, Ulwande, has successfully fended off an urgent interdict by environment minister Barbara Creecy to stop it and its JSElisted partner, Oceana, from fishing horse mackerel off the Cape coast
The minister brought an urgent application to prevent companies that had permits from being able to fish during this year’s mackerel season while she rethinks the licensing system, which is constantly facing numerous legal challenges.
She wanted those who have legally acquired licences for this year to stop fishing.
In its ruling, handed down last Friday, the high court in Cape Town refused the minister’s urgent application, saying it was “too broad”.
It said Creecy failed to make out a case for an urgent interdict. It found the minister had not followed protocol and would be “prejudicing” the companies and their employees if the interdict was granted.
The court also ruled the minister’s decision “will unfairly harm” the fishing companies and their employees.
This means the fishing companies can continue to fish this year and the minister can only implement her plan in consultation with stakeholders, including the fishing companies she sought to hinder.
Horse mackerel has an annual catch of about 33,000 tonnes.
The minister is the only authorised person to grant commercial fishing rights to companies.
The disputes with fishing companies began around 2016, when the department was allocating fishing rights for the 2016/17 season in the horse mackerel sector, off the Western Cape.
Various entitles applied and in November 2016 the names of provisionally accepted entities were published. The department nominated 33 entities for rights that would last from 2017 to 2031, including Ulwande Fishing and Ulwande Inline.
Ulwande Fishing was involved in a 2013 deal with fishing giant and JSE-listed Oceana to buy Foodcorp’s fishing division for R445m. At the time, it was owned by Eastern Cape business person Xola Mdabula. Ulwande Inline received one of the highest scores out of all nominees and fished horse mackerel for years.
DISGRUNTLED
Following the 2016/17 nomination, a series of internal reviews and appeal proceedings by disgruntled entities prolonged the finalisation of fishing rights.
By 2021, Creecy had taken office and reconsidered all the applications for rights for the upcoming fishing seasons. She decided to award rights to the top 12 nominees out of the 33, who scored the highest after the department’s evaluations.
Ulwande Inline was in the top three.
Creecy’s decision to grants rights to only 12 entities meant almost 20 other companies lost out, which resulted in further appeals and reviews. Some are in court and still pending.
As a result, in February 2023, Creecy wanted “to find a holistic solution” because these separate challenges all affected her ability to grant licences.
However, eight months went by and no solution was found. Since the 2024 fishing rights would come into effect in January, Creecy urgently sought an interdict in December 2023 to put a hold on the rights.
This was to ensure that “until certainty has been achieved”, due to all the ongoing disputes with aggrieved commercial entities, none of those awarded the rights should be permitted to fish in 2024.
Ulwande Inline opposed, on behalf of affected companies, arguing it was awarded the rights and had been successfully fishing since 2016. It therefore had a right to fish in 2024.
The department and Ulwande Inline argued urgently in December 2023 before high court judge James Lekhuleni.
Ulwande Inline argued the processes to reach “a holistic solution” would not happen within 2024 fishing season given that litigation and review proceedings were ongoing and would take a long time to be finalised.
On Friday, Lekhuleni dismissed Creecy’s attempt to restrict fishing rights. “The relief sought by the minister is very broad and may cause strife,” Lekhuleni ruled.
He also said it was “inconceivable that in these circumstances, this court should be asked to effectively prejudge” cases not before it.
Lekhuleni pointed to how Ulwande Inline would suffer “irreparable harm” if it had its rights restricted for even a few months, because it had to pay employees and service providers, such as vessel owners. “They will have to incur significant costs to keep the vessels along the quayside,” he noted, “without earning any income.”
Finally, he noted that Ulwande Inline was in the top three highest-scoring entities in Creecy’s 2022 evaluation.
Even if the minister was to issue a new list, it was “abundantly clear” Ulwande Inline would be on the final list in any event. There was therefore no need to remove rights it would inevitably get.
He dismissed Creecy’s application with costs.
Despite Ulwande arguing for itself, its successful opposition benefited the other companies with fishing rights, as they too cannot have their licences restricted in 2024.
SHE WANTED THOSE WHO HAVE LEGALLY ACQUIRED LICENCES FOR THIS YEAR TO STOP FISHING
ULWANDE INLINE RECEIVED ONE OF THE HIGHEST SCORES AND HAD FISHED HORSE MACKEREL FOR YEARS