Over the past few months the Department of Fisheries has inexplicably and rapidly dumped an historic and justifiable policy of not getting involved in commercial disputes between quota holders and members/shareholders of quota holders.
The reasoning behind this long-standing policy is simple. Firstly, and most pertinently, the department lacks the legal jurisdiction to involve itself as a type of self-appointed arbiter of commercial law disputes. Departmental officials simply have no authority under any South African law to involve themselves in and to decide such disputes.
Secondly, the department's officials are simply not skilled in commercial litigation and commercial law to intervene and understand such inter partes disputes. The proof of this is in the various disputes departmental officials have elected to involve themselves in recently and hold one or more parties ransom to the demands of others in utter violation of South African law.
Thirdly, to allow officials to become involved in such disputes simply opens the door to allegations of bias, corruption and maladministration. Departmental officials have no legitimate role to play in such matters.
For example, the managing member of a close corporation decides to conclude an agreement with a third party involving the corporation's fishing quota. It subsequently emerges that the other members of the corporation did not consent or are in fact not even members of the corporation any longer. These "unhappy members" then approach the department to halt the issue of the corporation's fishing permit. The department then obliges these "unhappy members".
In such circumstances, the department's conduct is blatantly ultra vires and therefore unlawful under the MLRA, the fishing permit conditions and the fisheries regulations. The conduct also violates rights and obligations of the managing member under the Close Corporations Act. Where a member of a close corporation believes that the conduct of another member has prejudiced his own rights and interests, the law does not permit him to run to the nearest government official and seek an unlawful intervention of the kind now being offered by departmental officials. The law is clear.
The aggrieved party must seek the intervention of a court of law, alternatively, an arbitrator appointed in terms of the Arbitration Act of 1965.
The question which we believe requires urgent answering by the minister is why has her department and certain officials elected to now embroil themselves in commercial disputes between contracting parties when such conduct is blatantly unlawful and beyond their legal mandate.
These officials should instead focus their energies on addressing the serious backlog concerning applications for the transfer of commercial fishing rights (with some applications having been submitted 2 and 3 years ago) and other matters which they are legally obliged to attend to.
Should the department continue to unlawfully involve itself in such commercial disputes between contracting parties, we believe that the public protector should be called in to investigate under what legal provisions such interventions are occurring and the motivation for each intervention. We would furthermore demand that the Fisheries Minister start subjecting her officials and particularly those in decision-making positions to comprehensive lifestyle audits.