FOSAF NEWS - A very Brief Statement on and Summary of the Judgment in FOSAF vs The Minister of Environmental Affairs by Ilan Lax.

This morning Acting Judge of the Gauteng North High Court Adrian Vorster delivered a Judgement in the application for a declaratory order in the matter of the Federation Of Southern African Fly Fishers vs The Minister of Environmental Affairs.

 

In simple terms the Court decided the following main aspects:

  1. That the application was not moot by reason of the subsequent gazetting of the 2020 AIS Lists and Regulations because the issues in question (especially in relation to trout) were still open for debate and in addition it was in the interests of justice and because the application raises important questions about constitutional rights and duties and would have broad practical effect.
  2. That FOSAF had locus standi to bring the application both in its own right and in the public interest.
  3. That the sufficiency of the information contained in the original Notices (Draft AIS Lists and regulations) and the various attempts by the Minister to correct these, was not sufficient to allow for meaningful representations or objections and did thus not comply with the legal requirements of Section 100 of NEMBA.  The court found that there was initially no information at all and that the subsequent references to various documents to be found on the Department’s website did not meet the basic requirements because the public still was none the wiser as to what considerations the Minster took into account and because the vast majority of South Africans do not have access to the internet.
  4. In the light of this finding it did not need to rule on the other alleged procedural shortcomings;
  5. FOSAF was awarded costs.

It is important to note that the judgement does not declare the 2020 AIS lists and regulations invalid. While these notices list trout as invasive, the implementation of this specific listing was suspended by the Minister pending discussions in a task team comprising the Department and Aquaculture stakeholders, including the trout value chain.  This is ongoing.

This decision has a much wider implication than just “the trout fight”. It goes to heart of “informed consultation” and the public’s right to be taken seriously by government during consultation processes.

The Constitution, the NEMA principles and NEMBA set out a simple set of requirements that must be complied with when e.g. the Minister intends exercising a power.  These include that the public must receive sufficient information about why what is being proposed, is required and what the expected implications of this will be.

This is proper governance. This case reinforces these values, principles and requirements.

FOSAF is sincerely grateful for the kind assistance and commitment of our legal team, all of whom acted on a pro bono basis: Julian Bartlett of Bartletts Inc., Adrian van Niekerk of MacRobert Attorneys, Advocates Alistair Franklin SC and Julian Joyner.  Special mention must also be made of the contribution of Ian Cox and the late Gerrie van der Merwe to the campaign.  We could not have achieved this without them and without the support of our many donors, contributors, our membership and other stakeholders.

If you wish to read the full judgement click here

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