Court name
High Court
Case number
APPEAL 275 of 2011
Title

Etale Holdings (Pty) Ltd and Another v Minister of Fisheries and Marine Resources Namibia and Others (APPEAL 275 of 2011) [2011] NAHC 329 (10 November 2011);

Media neutral citation
[2011] NAHC 329
Coram
Corbett AJ
























NOT
REPORTABLE





CASE
NO. A 275/11





IN
THE HIGH COURT OF NAMIBIA





In
the matter between:






ETALE HOLDINGS (PTY) LTD
…..........................................................1st
APPLICANT



ETALE FISHING COMPANY (PTY) LTD
…..........................................2nd
APPLICANT







and







THE MINISTER OF FISHERIES AND
MARINE



RESOURCES, NAMIBIA
…................................................................1st
RESPONDENT







THE PERMANENT SECRETARY,
alternatively



THE ACTING PERMANENT SECRETARY, OF
THE



MINISTRY OF FISHERIES AND MARINE



RESOURCES, NAMIBIA
…...............................................................
2nd
RESPONDENT







OZOHI FISHING COMPANY (PTY) LTD
….......................................3rd
RESPONDENT



OMPAGONA FISHING COMPANY (PTY) LTD
….............................4th
RESPONDENT



EHANGA HOLDINGS (PTY) LTD
…..................................................5th
RESPONDENT











CORAM: CORBETT, A.J



Heard on: 8 November 2011



Delivered on: 10 November 2011



______________________________________________________________







JUDGMENT







CORBETT, A.J: .







[1] In 1999 Northern Fisheries
Industries (Pty) Ltd and Ozohi Fishing Company (Pty) Ltd (“Ozohi”),
Ompagona Fishing Company (Pty) Ltd (“Ompagona”) and
Ehanga Holdings (Pty) Ltd (“Ehanga”) concluded a written
agreement”. The purpose of the agreement was that such
companies (referred to in the agreement as “concessionaries”)
would pool their hake wet fish quotas so as to share in the economies
of scale and other benefits to be derived from the rationalisation
of their catching, processing and marketing efforts. In order to give
effect to this purpose, Etale Holdings
(Pty) Ltd (“Etale Holdings”), the first applicant in
these proceedings, was incorporated in 2004. This company in turn
holds all the shares in Etale Fishing Company (Pty) Ltd (“Etale
Fishing”). Etale Holdings authorized Etale Fishing to conduct
the fishing, processing and marketing on behalf of Etale Holdings,
Ozohi, Ompangona and Ehanga.











[2] The current fishing season
commenced on 1 May 2011 and will continue until 30 April 2012. The
harvesting of marine resources in terms of section 39 of the Marine
Resources Act, No. 27 of 2000 (“the Act”) is subject to a
quota being granted by the Minister of Fisheries and Marine Resources
(“the Minister”) limiting the quantity of fish that may
be harvested during the fishing season by any rights holder . Section
32 (3) of the Act provides that no person may use any vessel to
harvest any marine resources for commercial purposes except in terms
of a licence issued in terms of section 40 (3) of the Act.







[3] On 7 October 2011, applications
were made in terms of section 40 (1) of the Act for the licencing of
fishing vessels MFV Etale Bounty and MFV Twafika, to be used by the
quota holders Ompagona and Ehanga. When the Minister had as of 1
November 2011 not issued licences for these vessels pursuant to the
applications, this application was launched as a matter of urgency.
Etale Holdings and Etale Fishing seek a
mandamus
in terms whereof the Minister be
directed and ordered to adjudicate, in terms of the Act, upon the
applications so lodged by no later than close of business on 11
November 2011. The Minister and the Permanent Secretary oppose the
application, whilst Ozohi, Ompagona and Ehanga do not do so.







[4] Mr Barnard, who appeared on behalf
of the applicants, submitted that the Minister is entrusted with the
statutory duty to consider and adjudicate upon applications for
licences, and in so doing, must adjudicate applications within a
reasonable time.
1







[5] Mr Ndlovu who appeared on behalf
of the Minister and the Permanent Secretary raised two points
in
limine
, more particularly
that the applicants lack the necessary
locus
standi
to bring the
application, and that the applicants have not made out a case for
urgency as contemplated by Rule 6 (12) of the Rules of Court. The
parties did not request that the
in
limine
issues be argued
separately and accordingly argument was heard on these issues,
together with the merits.







[6] In this judgment, I deal at the
outset with the first point
in
limine
. Locus
standi
involves the
question of whether a person who approaches the Court for relief has
a right to do so. Consideration has to be given to whether a party
enforcing a legal right has a sufficient interest in the relief
claimed.
2
It is often so that a person who has
an interest in the relief claimed may, this interest notwithstanding,
not be able to claim the relief if the claim is not based upon a
legally enforceable right.
3







[7] In advancing the applicants’
case that they indeed have
locus
standi
to bring this
application, reliance was placed upon the provisions of the “pooling”
agreement referred to earlier. Clause 3.4 of the agreement provides
that the concessionaries each hold a right of exploitation to catch
wet fish hake and desire to pool their quotas. Further reliance is
placed on clause 3.5.4 of the agreement where it stated that “
the
concessionaries will each grant Etale the right to utilize their
respective concessions
.
Clause 4.2 further provides that: “
The
sole purpose of Etale will be to conduct fish catching, processing
and marketing operations pursuant to this agreement
.
Clause 8.1 authorizes Etale for as long as the concessionary holds a
concession to catch the fish that the concessionary is from time to
time entitled to catch in terms of the quotas awarded to it. Finally,
reliance is placed on clause 18 of the agreement which deals with the
obligation imposed upon the parties to co-operate with one another
with the utmost good faith to give full effect to the intents and
purposes of the pooling agreement and not to do anything which might
prejudice or detract from the rights, property and interests of any
one of the concessionaries. In short, so it is contended, because the
applicants and the concessionaries are contractually bound by the
pooling agreement to pool their resources and co-operate in the
manner referred to, these contractual arrangements clothe the
applicants with
locus standi
to bring this application.







[8] The Minister counters the
submissions by stating that he has no relationship whatsoever with
the applicants and owes them no obligations in terms of the Act. It
is contended that the applicants have no legal right to seek to
enforce the rights of Ompagona and Ehanga, and accordingly lack the
necessary
locus standi
to do so.







[9] In regard to the licencing of
fishing vessels under the Act, section 40 provides that:







40(1) The holder of a right
or an exploratory right or a person nominated under section 35(2) who
wishes to use a fishing vessel for commercial purposes in Namibian
waters or a person who wished to use a Namibian flag vessel for
harvesting any marine resource outside Namibian waters shall apply
for a licence to the Permanent Secretary in the manner prescribed.








  1. A licence to use a fishing vessel
    to harvest a marine resource shall only be valid if the licencee
    holds a right or an exploratory right for that resource, and if a
    quota has been allocated, holds a quota for that resource.








(3) The Minister may, upon
application by a person referred to in subsection (1), issue a
licence to that person in respect of a fishing vessel, authorizing
such activities, subject to such conditions and valid for such
period, as the Minister may determine and state in the licence.







[10] In the founding affidavit, Mr
Kathindi, the Managing Director of Etale Fishing, states:







I am also a director of
fourth and fifth respondents (
i.e
Ompagona and Ehanga)
.
In this capacity I have been mandated, in terms of a written
authority, to attend to the licencing of fishing vessels on behalf of
such respondents, since the year 2002. I have since then accordingly,
and until now, attended to and signed the various applications for
licences on behalf of the third, fourth and fifth respondents.







This statement underlines that, on the
applicants’ version, the authority to apply for the fishing
vessel licences, is derived from Mr Kathindi’s written mandate,
as a director of both Ompangona and Ehanga, as opposed to any mandate
he may have obtained from the applicants. Significantly he makes no
reference to his authority being derived from the pooling contract.
This statement evidences a recognition on the part of Mr Kathindi
that it is the rights holder – in this case Ompagona and Ehanga
– as holders of the hake wet fish quotas that are entitled in
terms of section 40 (1) of the Act to apply to the Permanent
Secretary to licence specific fishing vessels to be used for
commercial fishing purposes.







[11] It was on this basis that the
licences were applied for in respect of the fishing vessels “Etale
Bounty” and “Twafika”. The documents in both
applications are annexed to the founding papers. The covering letters
to the applications are signed by Mr Kathindi on behalf of Ompagona
and Ehale respectively. The applicants are identified in both letters
and in the application forms as being Ompagona and Ehale.
Significantly the application form requires that where reference is
made to the applicant this must be to “the name of the right
holder … if the fishing vessel is to be used in terms of a
right …
”. The applicants’ names do not feature
anywhere in either of the applications lodged in terms of section 40
of the Act for the licencing of the vessels.







[12] Later on the Mr Kathindi’s
affidavit he states in contradictory fashion:







I, in my capacity as
managing director of
each of the applicants
,
and as director duly authorized to do so on behalf of Ompagona and
Ehanga, applied to the Permanent Secretary of the Ministry for the
vessels Twafika and Etale Bounty to be licenced to respectively
Ehanga and Ompagona, the latter two concessionaries who both hold
quotas for the harvesting of hake for the period ending 30 April
2012.







[13] I am constrained to conclude that
the statement that Mr Kathindi acts not only on behalf of Ompagona
and Ehanga in applying for the licences, but also in his capacity as
managing director of the applicants, comes as something of an
afterthought and is self-serving. He needs to make this allegation
because of the discord that has arisen between the applicants and the
third to fifth respondents relating to the non-payment of quota
levies to the Minister and usage fees to the concessionaries. These
disputes call in question the authority that Mr Kathindi might have
been clothed with to act on behalf of Ompagona and Ehanga. In view of
the approach I take in this matter, it is unnecessary to deal with
these factual allegations.







[14] It follows that, should the
applicants for a licence in terms of section 40 of the Act – in
casu
Ompagona and Ehanga – be concerned about the delay in
the adjudication of the applications for licences by the Minister, it
is these corporate entities which possess the necessary locus
standi
to bring this application for a mandamus against
the Minister.







[15] That is not the end of the
matter. The central thrust of the applicants’ argument on locus
standi
was that the applicants’ claim to standing derives
from the contractual purpose and the mutual obligations arising out
of the pooling agreement. In effect, although it was not
characterized by Mr Barnard precisely in these terms, the applicants
contend that their locus standi is based upon derivative
rights they enjoy in terms of the pooling agreement which secure for
them usage fees and other benefits.



[16] The matter of Kerry McNamara
Architects Inc and Others v Minister of Works, Transport and
Communications and Others, 2000 NR 1 (HC),
to which I was not
referred in argument, is instructive in this regard. The applicants
in that matter brought an application to review and set aside a
tender award. The facts were that in terms of an agreement between
International Construction and the applicants, in the event of
International Construction being awarded the tender, the applicants
would then be called upon to render services to International
Construction in building and erecting the Government Office Park. The
applicants would then have been entitled to professional fees
relating to work done and for future work to be done, until the
completion of the tender. There was accordingly a pooling of their
resources in order to benefit from the tender, should the tender be
awarded to them. These facts find resonance with the facts of this
matter, where resources are to be pooled for the exploitation of
fishing rights should quotas be allocated to the concessionaries by
the Minister.







[17] In the McNamara matter it
was argued by the respondents that the applicants did not have a
direct and substantial interest in the subject-matter of the
proceedings and thus the Court should not entertain their claims. In
considering the issue, Strydom, JP (as he then was) referred to the
case of United Watch and Diamond Company (Pty) Ltd and Others v
Disa Hotels Ltd and Another, 1972 (4) SA 409 (C), at 415 F – H

where the following was stated by Corbett, J (as he then was):







In Henri
Viljoen (Pty.) Ltd. v. Awerbuch Brothers,
1953
(2) S.A. 151 (O), Horwitz, A.J.P. (with whom Van Blerk, J.,
concurred) analysed the concept of such a ‘direct and
substantial interest’ and after an exhaustive review of the
authorities came to the conclusion that it connoted (see p. 169 ) …
an interest in the right which is the subject-matter of the
litigation and …not merely a financial interest which is only
an indirect interest in such litigation’. This view of what
constitutes a direct and substantial interest has been referred to
and adopted in a number of subsequent decisions … and it is
generally accepted that what is required is a legal interest in the
subject-matter of the action which could be prejudicially affected by
the judgment of the Court.
4







[18] The United Watch and Diamond
Co.
case, supra, concerns the rights of sub-tenants to
intervene in proceedings where the tenant’s rights were in
issue. In this regard the Court stated further at 417 B – C:







The sub-tenants’ right
to, or interest in, the continued occupancy of the premises
sub-leased is inherently a derivative one depending vitally upon the
validity and continued existence of the right of the tenant to such
occupation. The sub-tenant, in effect, hires a defeasible interest.
(See
Ntai and Others
v. Vereeniging Town Council and Another,
1953
(4) S.A. 579 (A.D.) at p. 591). He can consequently have no direct
legal interest in proceedings in which the tenant’s continued
right of occupation is in issue, however much the termination of that
right may affect him commercially and financially.








[19] Further reference was made in the
McNamara decision to Wistyn Enterprises (Pty) Ltd v Levi
Strauss Co. and Another, 1986 (4) SA 796 (T)
where Ackermann J
found that the right of a registered user of a trademark is also a
derivative right because it is essentially the right to use a
proprietor’s trademark. At 803 H - J the following was
said:







As already pointed out a
third party with a derivative right may have a substantial financial
interest in the right of his
auctor
which will be adversely
affected if his
auctor’s
right is cancelled or
declared to be non-existent. This fact, as well as the fact that the
third party may or may not have a right to claim damages against the
auctor
who sits by and allows his
right to be extinguished, does not make of such third party, with a
mere derived right, a person who has to be joined in the proceedings.
There are disadvantages which the registered user may suffer. These
are no different, in my view, from the disadvantages which any party
with no more than a derived right might suffer under comparable
circumstances.







At 804 D – E the Court
concluded that:







The conclusion I reach is
that the registered users of the trade marks in question, while they
may have a substantial financial or commercial interest in the
present application, do not have a legal interest in the
subject-matter of the application of a nature which necessitates
their being joined in these proceedings.







[20] In the McNamara
case the Court accordingly concluded
as follows
5:







Mr Levin
also referred the
Court to the agreements between IC and the various applicants but
these agreements, in my opinion, further underline the fact that the
applicants would acquire,
vis-a-vis
IC, the right to render
services to IC and to be remunerated by IC only if the tender was
awarded to IC. In my opinion their rights are derivative and
dependent on IC acquiring the right to build the office complex. As
such their interest in the proceedings is financial and they lack
sufficient and direct interest in the subject-matter of these
proceedings. I think this is also evident from the relief claimed by
the applicants. The relief claimed by them is really for and on
behalf of the contractor IC which relief, if granted, would then
indirectly be to their advantage as well. … For purposes of
locus standi
they labour under the same
disqualification namely, their rights being derivative, they lack a
direct interest which would be required in order to give them
standing in the present application”.







[21] I respectfully agree with the
conclusions reached in this judgment and the authorities to which
reference is made. I find that the applicants have no more than
derivative right to the relief sought. Their interests are to be
derived from the contractual arrangements between the applicants and
the concessionaries inter se. They constitute no more than
financial interests in the usage fees and other benefits to be
derived from the pooling agreement, should quotas be allocated to the
concessionaries and should Ompagona and Ehale be granted licences for
their fishing vessels to catch hake. The rights holders are Ompagona
and Ehale and it is these entities that are clothed with locus
standi
to bring this application for a mandamus, but chose
not to do so.







[22] It is trite that if an applicant
has no
locus standi
to bring the application, urgency is
not shown.
6
In the light of the conclusion which I
reach on the issue of
locus
standi
, it is unnecessary
to deal with the further issues raised by counsel in argument.







[23] As a result, I make the following
order:







[23.1] The application is dismissed
with costs.















_______________







CORBETT, A.J




























































ON
BEHALF OF THE APPLICANTS
: Adv. T A Barnard



Instructed by Koep & Partners








ON
BEHALF OF THE 1
stand 2nd


RESPONDENTS:
Mr M. Ndlovu



Instructed by The Government
Attorney















1Otjozondu
Mining (Pty) Ltd v Minister of Mines and Energy and Another, 2007
(2) NR 469 (HC), at 473G, where Heathcote A.J stated: “The
applicant is entitled to have its application considered within a
reasonable time. In terms of the common law, where a duty lies on an
administrative authority to perform some or other action, the
authority cannot refuse or fail to do so. Any such refusal or
failure to act within a reasonable time would allow a person
affected to bring an application for a mandamus to force the
authority to act.
See: J R de Ville, JudicialReview of
Administrative Action in South Africa.”


Purity
Manganese (Pty) Ltd v Minister of Mines and Energy and Others;
Global Industrial Development (Pty) Ltd v Minister of Mines and
Energy and Another, 2009 (1) NR 277 (HC), at 288 H: “In my
view the prejudice for the respondents and other persons or
institutions interested in obtaining exploration rights are obvious.
The Act and the object thereof, as referred to earlier herein,
require that there should be finality within a reasonable period …




2Gross
and Others v Pentz, 1996 (4) SA 617 (AD), at 632 C - F




3Cabinet
of the Transitional Government for the Territory of South West
Africa v Eins, 1988 (3) SA 369 (AD), at 388 E - I




4At
7 d - F




5At
9G – 10B




6Moleko
v Minister of Plural Relations and Development and Another, 1979 (1)
SA 125 (T), at 129 H – 130 A, quoted with approval in Clear
Channel Independent Advertising (Pty) Ltd and Another v TransNamib
Holdings Ltd and Others, 2006 (1) NR 121 (HC), at p. 140, para [52]