Last week the Supreme Court of Appeal dismissed an application by Oceana and its subsidiary Blue Continent over the policy governing the transfer of fishing rights.
In the past few years, the Department of Agriculture, Forestry and Fisheries and small-scale fishers have fought court battles over permits, leading to an interim relief agreement being reached in 2007. The department undertook to grant small-scale fishers access to marine resources pending a policy review.
Oceana and Blue Continent complained that the department had not processed applications for the transfer of fishing rights because the policy was not yet finalised.
In a separate case, Foodcorp also challenged the policy. Its appeal was also dismissed with costs. Its black shareholding had been diluted since it was granted fishing rights in 2005. The original condition when the rights were granted was that the rights could not be transferred without ministerial approval. In both cases, the court upheld ministerial discretion on transformation.
The primary challenge by Oceana was that the policy was inconsistent with the Broad-Based Black Economic Empowerment Act (B-BBEE Act) and codes of good practice, and that the minister and the department were legally obliged to apply the codes when determining qualification criteria for the transfer of commercial fishing rights. The policy requires a narrow assessment of transformation focused only on ownership and management control, Oceana said.
Mr Kuttel said the implications of this judgment were significant for all sectors in which the state exercised control of commercial activity through the issuing of licences, rights, concessions and authorisations. "The judgment allows each minister and department within government to determine the appropriate measure of transformation, which may or may not be a broadbased approach."
He said the necessary clarity should be provided by the Department of Trade and Industry as "the custodians of the B-BBEE policy and legislation". However, the company said it would not challenge the matter in the Constitutional Court.
"We hope that the trade and industry department brings clarity to this debate through the planned amendments to the B-BBEE Act and the codes as soon as possible."
The court acknowledged that Oceana lauded the minister for facilitating transformation in the fishing industry and that fishing was recognised as one of the most transformed sectors in SA's economy. But it held that the granting of the relief sought by Oceana would have been a regressive step.
source: Business Day
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