ADECON FISHERIES (T) LTD v DIRECTOR FOR FISHERIES AND OTHERS 1996 TLR 352

The applicants applied for various orders against the respondents arising out of the refusal of a fishing licence for the 1996 fishing period. In 1994 the Minister for Tourism, Natural Resources and the Environment (the 2nd respondent) promulgated Government Notice 370 of 1994 whereby it was ordered that fishing vessels had to comply with certain specifications relating to overall length, tonnage and engine power. It was specified that the vessel's main engine bhp should not exceed 500. The applicants' vessel was modified for these purposes and although it marginally exceeded the maximum length its engine power was reduced to comply with the requirements.Notwithstanding the modification, the licence was not granted. Aggrieved by this decision the applicant applied to court for the following relief: 

(i) an order of certiorari to remove into the court GN 370 of 1994 for the purpose of it being quashed for being unreasonable.

(ii) an order of certiorari to remove into the court the decision made by the first and second respondents refusing to issue a fishing licence and for the quashing thereof 

(iii) an order of mandamus directing the first and second respondents to issue a fishing licence and to guide their action in terms of the provisions of the National Investment (Promotion and Protection) Act 10 of 1990.

(iv) an order of mandamus directing the first and second respondents to respect the certificate of approval issued to the applicants by the third respondent.

(v) an order of mandamus directing the third respondent to respect the certificate of approval issued to the applicants and protect them from irregular procedure. 

Held: 

(i) Government Notice 370 of 1994 had been made under s 7 of the Fisheries Act 6 of 1970 which empowered the Minister responsible for fisheries to make E regulations for inter alia the protection of fish resources. There was nothing to indicate that the Minister had acted 

ultra vires in sanctioning GN 370. Neither was there anything to show that GN 370 was unreasonable. 

(ii) There was no provision which stipulated that once the IPC issued an investor with a certificate of approval then the Director of Fisheries or the Minister had to issue him with a fishing licence. 

(iii) If the third respondent had a duty of care to protect the applicants and he breached that duty of care and the applicants had suffered a financial loss then the remedy was to be found somewhere else and not by an order of mandamus. 

(iv) The discretion which the first respondent had to exercise in awarding fishing licences had to be exercised with a judicial mind: in refusing the applicant's licence the first and second respondents had acted under a false belief that the appellant's vessel exceeded the specified 500 bhp and the decision was accordingly not reached on the basis of fairness and justice and had to be quashed. 

(vi) An order of mandamus was however not appropriate: the respondents were rather required to reconsider the applicants' application for a fishing licence on the basis of fairness and justice. 

Case Information 

Ordered accordingly.