We do indeed need to be increasingly afraid. On 5 January 2011, Feike, together with Shaun Hangone of the law firm Von Lieres Cooper Barlow Attorneys (VLCB), secured a court order forcing the Department of Fisheries to issue 3 permits unlawfully withheld by DAFF. The Court Order stated unambiguously and clearly that the Minister (as a respondent in the matter) must issue the 3 permits withheld unlawfully by the department to the permit holder concerned. The Court Order stipulated that the Minister must issue the permits by no later than 10 January 2011.
The Minister and her officials simply proceeded to ignore the Court Order. A DAFF official stated on the record that they would refuse to issue the permits unless the permit holder paid his annual abalone fish levies. DAFF was reminded by Feike and VLCB that the court order was peremptory and binding and did not make the issue of the permits subject to the payment of any levies. Furthermore, two of the permits (an abalone transport permit and an export permit) are not subject to the payment of any levy and in any case DAFF did not issue the permit holder with any invoice or statement of account requesting payment of the levy. This latter point is very important. DAFF - through its own incompetence and regulatory laziness - obliges right holders to calculate their levies. The obligation is on DAFF to quantify the levy owed by a right holder and then to invoice that right holder on a proper VAT invoice for the payment of levies. A levy cannot be due and payable unless an invoice has been issued by DAFF and a reasonable payment period has passed (such as 30 days).
Furthermore, DAFF cannot summarily withhold a fishing permit. If a right holder's levies are outstanding (after a properly issued VAT invoice has been sent to the right holder) and despite a written request to pay the outstanding levy, DAFF is still not entitled to "withhold" issue of a permit. DAFF simply has no authority in law to "withhold" permits. In such a case and in all cases where DAFF alleges a breach of the MLRA, the Regulations or permit conditions, DAFF MUST adhere to the due process provisions set out in section 28 of the MLRA. DAFF is not entitled to take short cuts and create its own abbreviated procedures.
When DAFF and the Minister failed to adhere to the Court Order of 5 January 2011 at the close of business on 10 January 2011, Feike and VLCB prepared to make urgent application to the High Court for a contempt of court order against the Minister and her senior officials who refused to implement the court order.
On the afternoon of 11 January the Contempt of Court application was served on the Minister and her senior officials. This Order will now request that the Minister and her officials be made to personally pay punitive costs and not burden the taxpayer any further because of their blatant disrespect for the authority of the Western Cape High Court.
What is extremely alarming about this matter is that the Minister and her officials are so vindictive, crass and arbitrary that they will force a law-abiding small scale fisherman who pays taxes and employs people to spend unnecessary amounts of money to obtain a court order forcing the Minister and her officials to merely adhere to the most basic principles of our law. These are the types of orders human rights lawyers used to obtain against the Apartheid regime to force Ministers to respect the rights of citizens to "natural justice". The second alarming aspect is the utter arrogance, disrespect and blatant contempt that the Minister and her officials have for court orders and the rule of law. If a Minister and her officials refuse to abide by a court order, then the most basic principles of constitutionalism, such as legality, are under direct and dire threat.
The Minister should either resign or be fired. If she claims she did not know about this matter, then she is duty-bound to dismiss her senior officials at DAFF and her advisers as they ought to have immediately informed her of the matter as she is named as the First Respondent in CASE NO. 27978/2010 and she is now in contempt of court.
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