Court name
High Court Main Division
Case number
HC-MD-CIV-MOT-GEN-2020/00283
Case name
Seaflower PP (Pty) Ltd v Minister of Fisheries
Media neutral citation
[2020] NAHCMD 384

Seaflower PP (Pty) Ltd v Minister of Fisheries (HC-MD-CIV-MOT-GEN-2020/00283) [2020] NAHCMD 384 (27 August 2020);

Case summary:

Urgent application – Issue of urgency considered – Whether relief sought was competent? – Locus Standi – Application dismissed.

Headnote and holding:

On 17 August 2020, the Minister if Fisheries and Marine Resources invited interested international and local companies to submit bids in respect of 11 000 mt of hake, 72 000 mt of horse mackerel and 392 mt of monk fish – The results of the bidding were scheduled for announcement on 27 August 2020 at 12h00 via email –The applicant approached this court on 21 August 2020 on urgent basis, in an attempt to have 24 333 mt of horse mackerel excluded from the bidding process.

Held; that the matter was urgent.

Held; that the relief sought was incompetent.

Held; that the applicant lacks locus standi.

Held, that the application is dismissed.

 

Not Reportable

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

RULING

 

Case no: HC-MD-CIV-MOT-GEN-2020/00283

 

In the matter between:

 

SEAFLOWER PELAGIC PROCESSING (PTY) LTD                                   APPLICANT

 

and

 

THE MINISTER OF FISHERIES AND MARINE

RESOURCES                                                                                    FIRST RESPONDENT

THE NATIONAL FISHING CORPORATION OF

NAMIBIA LTD                                                                             SECOND RESPONDENT

THE MINISTER OF FINANCE                                                      THIRD RESPONDENT

THE MINISTER OF PUBLIC ENTERPRISES                        FOURTH RESPONDENT

 

Neutral citation:      Seaflower Pelagic Processing (Pty) Ltd v The Minister of Fisheries and Marine Resources (HC-MD-CIV-MOT-GEN-2020/00283) [2020] NAHCMD 384 (27 August 2020)

 

Coram:          ANGULA DJP

Heard:            25 August 2020

Delivered:     27 August 2020

 


ORDER


 

1. The application is dismissed.

 

2. The applicant is ordered to pay the costs of the respondents who opposed the application, such costs to include:

 

2.1       In respect of the first and third respondents – the costs of one instructed and one instructing counsel; and

 

2.2       In respect of the second respondent – the costs of two instructed and one instructing counsel

 

3. The reasons will be uploaded on the E-Justice file on 1 September 2020.

 

4. The matter is removed from the roll and is regarded finalised.

 


RULING


 

ANGULA DJP:

 

Introduction

 

[1]        This urgent application was triggered by an invitation for bids made by the Minister of Fisheries in the Government Gazette of 17 August 2020 whereby Namibian and International companies were invited to submit bids in respect of 11 000 mt of hake, 72 000 mt of horse mackerel and 392 mt of monk fish species. The proceeds of the sale of the fish was said to be applied to meet governmental objectives. The bids were to close on 21 August 2020 at 10h00 and the results of the bidding would be announced by the Minister of Finance on 27 August 2020 after 12h00 via e-mail.

 

[2]        Having learned of the proposed auction, the applicant launched this application on 21 August 2020 set down for hearing at 12h00. Initially the applicant sought a rule nisi with a return date of 4 September 2020 in terms of which the respondents were called upon to show cause why the Minister of Fisheries ‘should not be interdicted from selling by way of public auction or in any other manner disposing 24 333 mt of horse mackerel forming part of the remainder of the total allowable catch for horse mackerel for 2020’. That order was sought to operate with immediate effect. The court was further asked to give directions for the filing of further affidavits.

 

[3]        When the matter was called on Friday, 21 August 2020 at 12h00, counsel for the respondents appeared and informed the court that the respondents wished to oppose the application and requested that they be given an opportunity to file opposing affidavits. The matter was then postponed to Wednesday, 25 August 2020 for hearing and in the meantime the parties were ordered to file their respective sets of papers.

 

[4]        The applicant is a Namibian incorporated and registered as private company. It is jointly owned by the second respondent, the National Fishing Corporation of Namibia (FishCor) and African Selection Trust SA Group (AST), in proportions of 40 per cent and 60 per cent shareholdings, respectively. AST is a South African registered company.

 

[5]        The first respondent is the Minister of Fisheries and Marine Resources. He is responsible for the administration of the Marine Resources Act 27 of 2000 (MRA), which provides for the management, protection and utilisation of marine resources in Namibia and on Namibian waters.

 

[6]        The second respondent is the National Fishing Corporation of Namibia, (FishCor) a juristic person established by s 2 of the National Corporation of Namibia Act 28 of 1991.

 

[7]        The third respondent is the Minister of Finance. He is, amongst other things, responsible for the management of the finances of the Government, pursuant to the State Finance Act, 1999 and including the administration of the Public Procurement Act 2015 in terms of which the Government procures goods and services.

 

[8]        The fourth respondent is the Minister of Public Enterprises. He is responsible for and oversees the performance of the State Owned Enterprises such as FishCor.

 

[9]        No relief is sought from the Minister of Finance, the Minister of Public Enterprises and FishCor.

 

Factual background

 

[10]     During 2016, FishCor and the Minister of Fisheries concluded two agreements: the co-operation agreement and the designation agreement. In terms of the co-operation agreement the parties agreed to co-operate and render assistance to each other. FishCor was inter alia to establish a land based processing plant, and to acquire fishing vessels for the harvesting of horse mackerel to supply the processing plant and to further recruit foreign experts to operate the processing plant. The minister undertook to use his best endeavours to allocate FishCor, upon application, 50 000 mt of horse mackerel per year for a period of 15 years.

 

[11]     The Designation Agreement, designated FishCor in terms of the MRA, to utilise and harvest marine resources for social economic, cultural and other governmental objectives in the public interest.

 

[12]     Subsequent thereto FishCor identified AST as a technical partner to design, fund, construct and operate a land-based horse mackerel processing plant at Walvis Bay. The parties then registered and incorporated the applicant. FishCor subscribed to 40 per cent of the shares of the applicant whilst AST subscribed to 60 per cent of the shares of the applicant. In terms of the shareholding agreement concluded between the parties, as a contribution for its shareholding, FishCor ceded and transferred its rights and title of its hundred per cent ownership of Etale Properties (Pty) Ltd which owned a property on which the processing plant was to be constructed. It further undertook to contribute a quota of 50 000 mt of horse mackerel yearly. Furthermore it undertook to assist the venture with all necessary governmental approvals.

 

[13]     AST for its part, and as part of its contribution for its shareholding, agreed to design, construct and finance the Etale property, carry out project management, install refrigeration equipment, procure vessels to supply fish to the processing plant, manage and operate the plant and to undertake the sale and marketing the products.

 

[14]     The parties further entered into a Quota Usage Agreement. In terms of this agreement FishCor ‘expressly guaranteed that it has been or will be allocated’ by the minister a horse mackerel quota of 50 000 mt to per annum for the quota period ending 31 December 2033. FishCor further undertook ‘irrevocably’ to make available a minimum of 50 000 mt per annum to the applicant.

 

[15]      It was further agreed that as a consideration for the quota usage, the applicant would pay FishCor, eight per cent usage fee calculated on the actual sale of the horse mackerel per ton. In addition, applicant would pay on behalf of FishCor all prescribed quota fees and levies; salaries of the Fisheries inspectors; and the launching costs associated with such inspectors in respect of all catches made by the applicant.

 

[16]      Pursuant to the conclusion of those agreements, during the 2018 the Minister of Fisheries allocated 50 000 mt of horse mackerel to FishCor. According to the deponent to the applicant’s founding affidavit, Mr Louw, that quota was sold by FishCor and the applicant did not receive any financials benefit. For the 2019 fishing season FishCor was again allocated its 50 000 mt which was made available to the applicant to harvest in terms of the Quota Usage Agreement. However, the applicant could only harvest about 30 000 mt. The unharvested part of the quota was sold by FishCor and once again, the applicant did not receive any financial benefit, according to Mr Louw.

 

[17]      The fishing season for the current year commenced on 1 January 2020 and will end 31 December 2020. It would appear to be common cause that the Minister of Fisheries allocated 16 666,67 mt of horse mackerel to FishCor and a further 5000 mt to the same entity during June 2020. Thereafter during August 2020 the minister allocated a further 4000 mt of horse mackerel to FishCor which was made available to the applicant.

 

The applicant’s case

 

[18]      According to Mr Louw, the deponent to the applicant’s founding affidavit, of the 50 000 mt of horse mackerel due for allocation to FishCor in terms of the co-operation agreement between the Minister of Fisheries and FishCor there is about 24 333,34 mt due to FishCor in respect of the 2020 fishing season. Correspondence was exchange between Mr Louw and the minister as well as the Executive Director of the Ministry of Fisheries from February 2020 to July 2020, but it failed to resolve the issue of outstanding quota due to FishCor.

 

[19]      As regards, the urgent interim interdict sought, the deponent alleges that the Minister of Fisheries’ planned auction would include the 24 334 mt of horse mackerel owed to FishCor. In this connection, the deponent alleges that the applicant has demonstrated that it has a clear right arising from Addendum No. 1 to the Quota Usage Agreement dated 15 May 2017 published in Government Notice 113 of 2017. The addendum is attached to the Quota Usage Agreement. It is further alleged that the applicant has no other adequate alternative remedy other than to seek interdictory relief, which will place the applicant in a position to enforce its rights in terms of the various agreements against the Minister of Fisheries.

 

[20]      The deponent deposes further that interdicting the sale of the portion of the horse mackerel due to FishCor would not prejudice the Government. This is because in terms of the Quota Usage Agreement the applicant pays FishCor a usage fee of eight per cent of the actual sales of horse mackerel per metric ton. Furthermore, FishCor owns 40 per cent shareholding of the applicant and in turn FishCor is hundred percent owned by the Government. According to the deponent, a damages claim would not be of assistance. Over 600 employees stand to lose their jobs permanently. For those reasons the balance of convenience favours the granting of the interdict, he further deposed.

 

Urgency

 

[21]     As regards urgency of the matter, the deponent set out the timelines which culminated in the launching of this application.

 

[22]     Mr Louw states that he heard some rumours on Sunday, 8 August 2020 that the Minister of Fisheries was considering auctioning a portion of the total allowable catch for hake, horse mackerel and monk fish. Thereafter and on 11 August 2020 his attention was drawn to an article in the Republikein newspaper where it was reported that the fishing quota would be auctioned off to the highest bidder. Thereafter on 14 August 2020 his attention was again drawn to an article in The Namibian newspaper where it was reported that the Cabinet has decided to auction off the fish quotas. On Monday, 17 August 2020 the applicant’s general manager received a copy of the official notification of the auction published in the Government Gazette whereby the Minister of Finance is inviting Bidders to submit their bids for the fishing quotas.

 

[23]     Mr Louw states further that he then secured the services of counsel both senior and junior and thereafter consultation took place via telephone and WhatsApp on Wednesday, 19 August 2020. In this regard he points out that he is not in Windhoek and could not travel due to prevailing lockdown measures due to COVID-19. Counsel finalised the application papers on Thursday, 20 August 2020. The application was filed and issued on 21 August 2020 set down for hearing on the same day at 12h00.

 

[24]     The deponent states further that the application is rendered urgent by the fact that the applicant employs over 600 employees who are dependent on the applicant for their livelihood. If the applicant is not allocated its quota this would lead to the retrenchment of those employees.

 

Opposition by the first and second respondent

 

First respondent’s opposition

 

[25]     The Minster of Fisheries, Dr Kawana, opposes the application and deposed to the opposing affidavit. The minister challenges the applicant’s locus standi to bring this application and to seek the relief set out in the notice of motion. In this regard the minister points out that the applicant is not a right holder as stipulates by the MRA. The reason for this is that only rights holders can be allocated a marine resources quota. For that reason the applicant is not entitled to be issued with a quota and has no right to a quota.

 

[26]     The minister observes that on the applicant’s own papers, it is apparent that the right the applicant seeks to protect has not been available to it since 2018 to date. The minister further points out that the applicant is not a party to the co-operation agreement and/or the designation agreements in terms of which the Minister of Fisheries undertook to use his best endeavours to grant fishing quotas to FishCor. For those reasons, the minister submits, the applicant has no right to enforce FishCor’s right to be allocated quotas.

 

[27]     The minister further takes the point that the relief sought by the applicant is incompetent in that the applicant has not set out what is to happen to the 24 333,34 mt of horse mackerel once the interdict is granted. In other words, no direction is sought from the court to direct as to what should be done with the fishing quota once the Minister of Fisheries is interdicted from disposing of it. The minister submits in this regard that the relief sought is unusual and prejudicial to the Government in executing its function to secure much needed funds to mitigate the effects of COVID-19 on the national budget.

 

[28]     The minister further points out that the invitation to submit bids was made by the Minister of Finance acting in terms of the Public Procurement Act, 2015 and the State Finance Act, 1999. In this connection the notice of motion only seeks to interdict the Minister of Fisheries from disposing 24 333,34 tons of horse mackerel. Therefore, not only is the relief not available but it is also defective, he further contends.

 

[29]     The minister further points out that there is no application for challenging the Minister of Fisheries’ decision to avail the 72 000 mt quota of horse mackerel for public auction. In the absence of such an application, so argues the minister, the decision remains and with legal consequences. In addition, there is no application challenging the decision of the Minister of Finance whose auction was on-going at the time of hearing the application.

 

[30]     The minister points out further that the allocation of quotas is done in terms of the provisions of the MRA. In this regard the Act does not allow for the blanket allocation of a quota beyond one year. It follows therefore that to the extent the gazetted agreements relied upon by the applicant provide for the allocation of quotas over the period of15 years is unlawful and in contravention of the MRA.

 

[31]     The minister further states that FishCor did not apply for a fishing quota for the year 2020. It this connection the minister points out that in terms of MRA the minister can only allocate a quota when there has been an application. In the circumstances it would not be appropriate to allocate a quota to FishCor which has not submitted an application to be allocated quotas. However, the minister has been vested with a discretion by s 39(4) of the MRA to allocate quotas to rights holders to harvest the marine resources for governmental objectives.

 

[32]     As regards to urgency, Dr Kawana admits that Mr Louw addressed a letter to him dated 17 February 2020, requesting for a meeting to discuss urgent operational issues relating to the applicant. He responded to Mr Louw’s letter on 24 February 2020 in which he pointed out that there were policies and legal issues which required to be ironed out before he could revert to Mr Louw. No undertaking was made that the applicant would be allocated quotas.

 

[33]     The minister denies that the application is urgent. As regards to the alleged loss of jobs by the employees of the applicant, the minister points out that he has taken steps to sustain the employment of the Namibians for the remainder of the current calendar year by allocating quotas of 5000 mt and 4000 mt respectively to FishCor which was passed on to the applicant in terms of their Quota Usage Agreement.

 

[34]     The minister concluded by mentioning that he has learned that in the meantime the applicant has submitted a bid for a quota in respect of the same process he is seeking to interdict. I should mention this fact was confirmed as correct by counsel for the applicant during the hearing.

 

Opposition by the Minister of Finance

 

[35]     The Minister of Finance, Mr Shiimi, similarly opposed the application and deposed to an opposing affidavit. He made common cause with the Minister of Fisheries. He states further that due to COVID-19 and its effects on the economy, Government’s revenue has significantly declined while the expenditure has increased. According to the Minister, the proceeds of the sale of governmental objective fishing quotas will be used to defray expenditure for the Government socio-economic programmes, including the fight against COVID-19. He proceeded to set out the process followed to arrive at the decision to auction the fishing quotas, the pricing and the anticipated revenue. According to the Minister, the closing of the auction process, the Minister of Fisheries will allocate the quotas to the successful bidders and enter into co-operation agreements with those successful bidders.

 

Opposition by FishCor

 

[36]     The opposing affidavit for FishCor has been deposed to by the Chairperson of its board Mr Gaomab. He raised a point in limine that the matter lacks urgency. He points out that according to the applicant’s papers it knew already on 17 August 2020 about the auction and that it would commence on 17 August 2020 and would close on 21 August 2020 at 10h00. The bidding process was thus completed two hours before the time the application was set down for hearing. All that remains is the award to be made to the successful Bidders on 27 August 2020.

 

[37]     The deponent argues that the applicant has substantial redress in due course. This is because it may apply for an order to compel the minister through FishCor to allocate quotas to FishCor. The deponent points out that the co-operation agreement provides inter alia that the minister shall compensate FishCor in the absence of quotas allocation.

 

[38]     As regards the merits of the application, the deponent states that the applicant has failed to establish a clear right because the decision it seeks to interdict is a based on a reasonable exercise of executive power in the public interest. The deponent points out in this regard that the purpose of the action is to raise revenue for governmental expenditure. In this connection Article 40 of the Constitution vests the Cabinet with executive power to issue directives such as the decision to auction off marine resources in the public interest even at the expense of FishCor’s commercial interests.

 

[39]      The deponent submits that the applicant has failed to establish that a portion of 72 000 mt of horse mackerel to be disposed-off through auction was reserved for allocation to FishCor. In this regard the deponent states that FishCor has not been informed by the Minister of Fisheries that it has been allocated 24 333,34 mt which is due to be auctioned off. For this reason, FishCor distances itself from the relief sought against the Minister of Fisheries and does not support the bringing of this application.

 

[40]      The deponent states that he has been advised that the transfer of the Etale property to the applicant was done, without necessary consent, and thus in contravention of s 18 of the State Finance Act, 1991. Accordingly, the transfer of this asset to the applicant will be challenged in due course in the correct forum.

 

[41]      As regards the balance of convenience, the deponent submits that the granting of the interdict would be highly prejudicial to the Government. Therefore the balance of convenience favours the Governmental respondents rather than the applicant.

 

Discussion

 

Urgency considered

 

[42]      As regards the issue of urgency, I take into account that the applicant has fully set out the time line up to the last moment of filing the papers in this application. There are however some indications that he could have done better by being proactive and taking steps to verify ‘the rumours’.However such conduct does not, in my judgment, amount to culpable remissness. I take into account specifically the restrictive conditions brought about by the prevailing State of Emergency with its resultant lock down and curfew.

 

[43]      I further take into account the fact that the deponent to the applicant’s affidavit and his counsel had to consult over the telephone and WhatsApp system. That is not normal. No doubt it impedes on the usual speedy and affective communication between the parties. I also take into account that the action to be taken by the applicant was dependent on feed-back from the Minister of Fisheries, which was not forthcoming, (for valid reasons as acknowledged by the Minister of Fisheries), before the applicant could decide on the next step.

 

[44]      It is also common knowledge that there had been a change of guard, so to speak, both at the Ministry of Fisheries and FishCor. The new incumbents have to familiarise themselves with issues in their new roles. The deponent to the applicant’s affidavit, who is the chairperson of the board of the applicant has to deal with new board members of FishCor appointed to the applicant’s board and bring them up to speed regarding the mutual relationship between the applicant and FishCor. Under those circumstances, it is not difficult to appreciate that those new members required time to acquaint themselves with the affairs of the applicant before being able to make informed decisions. It was mentioned during the hearing that the newly appointed board members have in the meantime resigned from the applicant’s board as result of the conflict of interest apparently brought about by this application.

 

[45]      I am satisfied that the deponent to the applicant’s founding affidavit fully explained the timelines and the steps taken by the applicant aimed at bringing this application. The news about the auction was gathered from newspaper reports. I think it would have been unwise for the applicant to have launched the application on unverified reports. The applicant acted swiftly once the formal announcement and invitation to submit bids was made by the Minister of Finance.

 

[46]      Against that background and taking into consideration the principles governing the question urgency as propounded in cases such as M-Web[1], Bergman[2] The Three Musketeers Properties (Pty) Ltd[3], to mention a few, I am satisfied that the applicant has made out a case that the matter is indeed urgent.

 

[47]      It is trite law that the court has a discretion to condone the non-compliance with the rules of the court in favour of the applicant. In the circumstances and in the exercise of my discretion, I am prepared to condone the applicant’s non-compliance with the rules of this court and hereby allow the matter to be heard as one of urgency. I next move to consider whether the relief sought by the applicant is competent.

 

Whether the relief prayed for is competent

 

[48]      It is submitted by both Minister of Fisheries and FishCor that the relief sought by the applicant is incompetent. The minister correctly pointed out that there is nothing in the relief sought regarding what would happen after the interdict has been granted. The order sought is referred to in the applicant’s affidavit as ‘urgent interim interdict’. This is incorrect as the order sought is final in its import and effect. On the papers before court nothing is suggested to take place in the interim after the order sought has been granted. For instance, the applicant is not asking that the interdict be granted pending instituting arbitration and finalisation of such proceedings.

 

[49]      I should mention that the Quota Usage Agreement makes provision for dispute resolution by way of arbitration. Clause 6.9.1 thereof provides that the arbitration clause ‘shall not preclude any of the parties from access to any appropriate court of law for interim relief in the form of an interdict, mandamus or order for specific performance pending the outcome of an arbitration in terms hereof or in respect of such arbitration’. There is no explanation and it is also not apparent why the applicant did not adopt that procedure once it realised that the Minister of Fisheries was about to auction quotas which have been allocated to FishCor.

 

[50]      I further agree with the submission that, should the order be granted in its current form, it would prejudice the Government in that the Government will be saddled with the 24 333,34 mt, which seems to be in perpetuity, given the fact that there is no request for a consequential order as to what is to be done with the quota in question.

 

[51]      It is further submitted by Minister of Fisheries that the relief sought by the applicant ‘is incongruent and leads to unreasonable consequences’. This is because the order will simply tie the hands of the Minister of Fisheries from exercising public power. I agree. The order would neither benefit the applicant nor anyone else. The reason for this is that the applicant is not for instance saying that once the minister is interdicted, the applicant will institute proceedings for specific performance against FishCor so that it must exercise its right in terms of the co-operation agreement with the Minister of Fisheries, to compel the minister to allocate the 24 333,34 mt to FishCor so that the latter would in turn make it available to the applicant in terms of the Quota Usage Agreement.

 

[52]      I should further mention that despite the difficulty raised on papers regarding the practicality of the implementation of the order, no attempt was made to move for an amendment of the relief sought in its present formulation. It was suggested during oral arguments that the court should consider amending the order to operate as an interim order, pending the institution and finalisation of the arbitration proceedings by the applicant against FishCor. That cannot be done. It is trite law that it is impermissible for a court to make an order which has not been specifically requested by any party to the proceedings.

 

[53]      For all those reasons, I decline to grant the order as presently formulated. I proceed to consider the question whether the applicant has the necessary locus standi to bring this application.

 

Does the applicant has the locus standi?

 

[54]      In response to the respondents’ challenge that the applicant does not have the locus standi, the deponent to the applicant’s replying affidavit states that the applicant’s rights to the quota exists through FishCor and more importantly in terms of the co-operation agreement with the Quota Usage Agreement. It is trite that the applicant must make out his or her case in the founding affidavit and not in a replying affidavit as the applicant tried to do in the present matter.

 

[55]      Whatever the case may be, the approach to the question of locus standi in a case like this was laid down by the court in the Kerry McNamara[4] matter. The court stated in that matter that to decide the issue of locus standi the court has to take a closer look at the relationship between the parties because that will determine the nature of the right or interest which the applicant has in the proceedings. In the present matter the applicant relies for its locus standi on the contracts between the parties. I proceed to consider those contracts.

 

[56]      It is common cause that the applicant is not a party to the co-operation agreement nor the designation agreement between the Minister of Fisheries and FishCor, in terms of which it was agreed that ‘the ministry will use its best endeavours to avail sufficient, Co-commercial, Non-Commercial Harvesting and Reserve Quota, upon application by the Corporation, to the Corporation and/or its subsidiaries in order to allow the Corporation to fulfil the objectives of the Fishcor Act in particular to undertake the Investment Activities’. I have carefully considered the terms and conditions of the two agreements and could not find any clause which obliges the Government or the minister to actually provide the 50 000 mt of horse mackerel to FishCor. The deponent to the applicant’s affidavit only refers to the ‘agreements’ and does not specify any clause or clauses upon which the applicant’s alleged rights for locus standi are based or flow from.

 

[57]      It is also common cause that the Minister of Fisheries is not a party to the Quota Usage Agreement between the applicant and FishCor in terms which FishCor undertook to ‘irrevocably make available to SPP, a minimum of 50 000 tons per annum of its quota for catching and commercial exploitation by SPP’. Needless to say that the Minister of Fisheries is not bound by the undertaking made by FishCor to the applicant in terms of this agreement. This is because FishCor is a juristic person separate from its shareholders. It was argued during the hearing that FishCor is hundred percent Government owned and is a parastatal. This argument is not entirely correct. FishCor may be categorised as a parastatal for the purpose of governance under the authority and supervision of the Minister of Public Enterprises, but it is in a class of its own.

 

[58]      A proper reading of Fishcor Act will show that FishCor is in fact a public company. Section 5(6) of Fishcor Act makes provision for classes of shareholders in bands of A to E. It makes provision for the Namibian Government as A-Class shareholder; a shareholding by Namibian citizens as Class C shareholders; a shareholding Namibian companies as Class D; and shareholding by companies or corporate bodies whether incorporated in or outside Namibia, as Class E. It follows therefore that the veracity of that argument is dependent on who are shareholders of FishCor at a given moment. That would require an inspection of the shareholder register. According to the Minister of Fisheries, FishCor as both company and a public enterprise it may acquire equity in other companies.

 

[59]      Whatever the case may be, it is clear that FishCor over-promised that which it could not deliver. It has no right to allocate quotas, instead quotas are allocated to it. The right to be allocated quotas is dependent on a number of variable factors such as oceanic conditions, the best available scientific evidence upon which the total allowable catch in a particular year is determined. What is clear is that those who were the directing mind of the applicant at the time of the conclusion of the agreements between the applicant and FishCor, as industry experts hand-picked by FishCor, ought to have known that the undertaking by FishCor to make available 50 000 mt every year for 15 years would only be possible under a corrupt environment. It is not viable under a regime where there is a strict compliance with the law, particularly with the provisions of the MRA. This much is clear from the incumbent Minister of Fisheries, who considers some of the agreements in question to be unenforceable because they are in contravention of the MRA.

 

[60]      I should mention that the issue of illegality or otherwise of some of the agreements was raised on the papers and during oral arguments. I made it clear to counsel that it is not an issue which is squarely before court and I would therefore not express any opinion about that matter. Counsel were in agreement.

 

[61]      It would appear to me that the applicant’s rights are derivative as they are dependent on FishCor being allocated the quotas. The applicant’s rights in the proceedings are purely financial. The relief claimed is for and on behalf of FishCor. If granted, it would then benefit the applicant. The fact that the applicant is affected both commercially and financially does not convert its derivative interest into a legal right.[5] It is important to stress in this context that the applicant’s application and relief sought is not supported by FishCor from whom the applicants derive the rights to the quota. In my view, the lack of support by FishCor as a rights holder, weakens the applicant’s claim to standing even more.

 

[62]      I am of the view, that even if it were possible for the applicant to convert its derivative right into a legal right, it would not have been possible for it to enforce that right on the facts of this application. The reason for this is that according to the Minister of Fisheries, FishCor has not applied for quotas for the calendar year ending December 2020. This is not gainsaid by FishCor. In the circumstances, FishCor cannot give rights which it does not have (nemo dat quod non habet[6]) and consequently the applicant cannot enforce rights which FishCor does not have.

 

[63]      For all those reasons I have arrived at the conclusion that the applicant lacks the locus standi to bring this application.

 

[64]      Against that background it seems to me that the present application is a desperate attempt by the applicant to save its cosy but parasitic relation with FishCor. The fact that FishCor is not supporting the application and has distanced itself from the applicant’s action speaks volumes and does not augur well for the future relationship between the parties. In my view, the applicant was well-advised to submit bids and join other fishing companies to compete on equal terms for the quotas instead of crying over spilled milk.

 

[65]      In the light of my findings that the relief sought is incompetent, together with the finding that the applicant lacks locus standi it is not necessary to consider the merits. The application stands to be dismissed.

 

[66]      I accordingly make the following order:

 

1. The application is dismissed.

 

2. The applicant is ordered to pay the costs of the respondents who opposed the application, such costs to include:

 

2.1    In respect of the first and third respondents – the costs of one instructed and one instructing counsel; and

 

2.2    In respect of the second respondent – the costs of two instructed and one instructing counsel

 

3. The reasons will be uploaded on the E-Justice file on 1 September 2020.

 

4. The matter is removed from the roll and is regarded finalised.

 

 

___________________

H Angula

Deputy-Judge President

 

 

APPEARANCES:

 

 

APPLICANT:                                      E M SCHIMMING-CHASE SC (with her J P RAVENSCROFT-JONES)

              Instructed by Theunissen, Louw & Partners, Windhoek

 

FIRST, THIRD and FOURTH

RESPONDENTS:                              T C PHATELA

              Instructed by Office of the Government Attorney, Windhoek

 

SECOND RESPONDENT:              A W CORBETT SC (with him E SHIFOTOKA)

            Instructed by Ueitele & Hans Inc., Windhoek

 


[1] MWeb Namibia (Pty) Ltd v Telecom Namibia Ltd and Others 2012 (1) NR 331 (HC).

[2] Bergmann v Commercial Bank of Namibia Ltd and Another 2001 NR 48 (HC).

[3] The Three Musketeers Properties (Pty) Ltd and Another v Ongopolo Mining and Processing Ltd and Others (30 November 2006).

[4] Kerry McNamara Architects Inc. and Others v Minister of Works, Transport and Communication and Others 2000 NR 1 (HC)

[5] Unicorn Lines (Pty) Ltd v Commissioner of Customs and Excise 1997 (1) SA 369 at 379 B-E.

[6] No one can give what he does not have.