Thursday, October 6, 2011

Lobster Fishing in the Closed Season?

It would appear that the commercial lobster fishing sector is abuzz with corridor talk about the fact that two Gansbaai fishing companies have been allowed to harvest an offshore lobster fishing quota in the lobster closed season (1 October 2011-15 October 2011).

Feike, together with Shaun Hangone of Cape Town law firm, Von Lieres Cooper Barlow Hangone Attorneys, was appointed by Dyer Eiland Visserye and Scenematic 16 in September to urgently protect their respective commercial contractual interests involving a lobster quota they were entitled to harvest, process and market. During late August, the right holder concerned proceeded to breach certain contractual obligations and demanded that the Minister of Fisheries cancel its fishing permits which were held by Dyer Eiland and Scenematic 16. The Minister duly cancelled the permits in late August and despite efforts to convince the quota holder to respect its contractual obligations, it became clear that the quota holder was intent on double dipping by selling its quota twice!

So, off to court we went seeking an urgent interdict against the right holder. The Minister was joined as a respondent but as the matter was a commercial dispute, she agreed to abide the court's decision and agreed to "immediately issue permits" to Dyer Eiland Visserye and Scenematic 16 should the court grant the interdict. On 27 September 2011, the Western Cape High Court issued an interdict against the right holder. The application was completely unopposed as the right holder failed to oppose the application. The Minister agreed to issue permits immediately on the 27th.

By the 30th of September - the last day of the season - the Minister had still not issued the permits in terms of the court order of 27 September 2011. Accordingly, at about 3:30pm on 30 September 2011, the WC High Court heard an urgent application to hold the Minister of Fisheries in contempt of court. The court was particularly concerned with how the court order of 27 September 2011 could be given effect and the dignity of the High Court protected and thus granted Dyer Eiland Visserye and Scenematic 16 the right to harvest the lobster quota until 18 October 2011 (which is the date on which the court will hear argument on the Minister's contempt of court allegation). It is important to note that on 30 September 2011, the Court again ordered the Minister to issue permits to Dyer Eiland Visserye and Scenematic by 8am on 3 October 2011. The Minister had failed again to comply with this order and could thus be said to be in "double" contempt if such a concept exists.

If one recalls, in January 2011, this Minister narrowly escaped contempt of court charges by issuing permits to a Feike client at the very last minute. What is deeply concerning is that we are increasingly facing a Minister and a department who simply appear to be above the law. They appear committed to simply do as they wish regardless of the impact it has on commercial fishing companies and the ability to go fishing.

We of course remain committed to holding these public servants to account. The rule of law cannot be sacrificed at the alter of arrogance and incompetence.

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