On 5 January 2011 the Western Cape High Court issued an order agreed to by DAFF to issue 3 permits DAFF had decided to summarily and unlawfully withhold. On 10 December 2010, an administrative official advised Mr Scott Russell, the spokesperson of the SA Abalone Industry Association, and an abalone right holder that his permits would not be issued. No reasons were given and Mr Russell was not allowed to make any representations regarding this apparent decision. Mr Russell was also not informed as to whether he breached any provisions of the MLRA, the permit conditions or the fisheries regulations.
His permits - it was decided by someone at DAFF - would simply not be issued. Despite numerous attempts to get answers from DAFF officials, Mr Russell's urgent requests for reasons explaining why his permits were being "withheld" were simply ignored.
Mr Russell then contacted Feike and we demanded that DAFF issue his permits as the "withholding" of the permits was clearly unlawful under the MLRA, the Promotion of Administrative Justice Act, the Constitution and South African common law which requires that before any administrator can take a decision which may adversely affect someone's rights, the administrator must first inform the person to be affected of the allegations against him and allow the person to defend himself against the allegations.
Even under apartheid, the National Party was held to be bound by the principles of "natural justice". DAFF has attempted to take us back to the apartheid era by simply acting as complainant, judge, and jury and worse still, deciding to not even inform the affected person that his rights will be affected.
The case made out on behalf of Mr Russell by Feike was that the MLRA does not allow for the "withholding" of permits; let alone the summary withholding of permits. If any person is suspected of breaching the MLRA, the regulations or any permit condition, then DAFF is duty bound to institute proceedings under section 28 of the MLRA which provides the necessary safeguards to ensure that the complainant and decision-maker are separate persons; that the permit holder is provided with written notice of the allegations against him; and he is afforded a fair and just opportunity to make representations to defend the allegations.
DAFF cannot simply decide to withhold permits. To do so would be a fundamental violation of our common law principles of natural justice, the MLRA and our Constitutional system which is predicated on the principles of accountability, participation and transparency.
If your permits are being withheld by DAFF please feel free to contact Feike.