26 September 2018
High Court of the Republic of South Africa, Western Cape Division, Cape Town
Case number: 11478/18
Date: 26 September 2018
Judge: Rogers, J
In this matter, WWF South Africa requested the Court to declare the total allowable catch set for West Coast Rock Lobster (WCRL) in terms of the Marine Living Resources Act, 1998 (MLRA) invalid.
The Court found in favour of WWF South Africa. It found that the decision by the Department of Agriculture, Forestry and Fisheries (DAFF) to set the TAC for WCRL above the level recommended by an scientific working work was irrational and offended various principles of environmental law, including those in the MLRA itself, the national environmental management principles in section 2 of the National Environmental Management Act, 1998 (National Environmental Management Act, 1998) and principles of international law, including the United National Convention on the Sea and the Southern African Development Community Protocol on Fisheries.
In particular, the Court focused on the precautionary principle (called the risk-averse and cautionary approach in section 2 of NEMA). It stated that that principles means that “where there is a threat of serious or irreversible damage to a resource, the lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation” [paragraph 100, but see also a fuller discussion of that principle and its application in the present matter in paragraphs 100-116].