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WWF South Africa v Minister of Agriculture, Forestry and Fisheries and others

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].

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Section 24of the Constitution of the Republic of South Africa, 1996

Everyone has the right to an environment that is not harmful to their health or well-being; and to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that prevent pollution and ecological degradation; promote conservation; and secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.

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