• October 1st, 2020

Seaflower crying over spilled milk - judge… Fishcor ‘over-promised what it could not deliver’

Windhoek High Court Deputy Judge President Hosea Angula said the application by Seaflower Pelagic Processing (SPP) to interdict the fisheries ministry from auctioning off fish quotas to the highest bidder was a desperate attempt to save its cosy but parasitic relationship with National Fishing Corporation of Namibia (Fishcor). 

According to the judge, SPP was well advised to have submitted bids and join other fishing entities to compete on equal terms for the quotas instead of crying over spilt milk. The remarks are contained in Angula’s ruling on the application that he dismissed last week. He dismissed the application on 27 August and awarded costs to the respondents. 

According to the judge, the company had no legal right to bring the application on behalf of Fishcor. He said that the rights SPP claims are derivative as they are dependent on Fishcor being allocated the quota. 
“The applicants’ rights in the proceedings are purely financial. The relief claimed is for and on behalf of Fishcor. If granted, it would benefit the applicant. The fact that the applicant is affected both commercially and financially does not convert its derivative interest into a legal right,” Angula emphasised. 
He went on to say that it is important to stress in this context that the applicant’s application and relief sought was not supported by Fishcor from whom the applicants derive the rights to the quota, adding this weakened their claim to standing. 
The judge said even if it was possible for SPP to convert its derivative right into a legal right, it would not have been possible for it to enforce that right for the simple reason that Fishcor has not applied for a quota for 2020. 

 He further said the urgent application was flawed as it did not specify what should happen to the quota should the court interdict the minister from auctioning it. 
“I further agree that should the order be granted in its current form, it would prejudice government in that 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,” the judge stated. 
He further said that he also agree with the sentiments expressed by the fisheries minister that the relief sought by SPP is incongruent and will lead to unreasonable consequences as it will simply tie the hands of the minister from exercising public power. 

Such an order would neither benefit the applicant or anyone else for that matter, the judge stressed. He further said it is common cause that SPP is not a party to the cooperation agreement between the ministry 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 its objectives of the Fishcor Act in particular to undertake 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 000MT of horse mackerel to Fishcor,” the judge said. He went on to say what is clear is that Fishcor over-promised that which it could not deliver. “It has no right to allocate quotas, instead quotas are allocated to it,” the judge stressed. According to Angula, the right to be allocated quotas is dependent on a number of verifiable 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 SPP 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,” the judge remarked and continued: It is not viable under a regime where there is a strict compliance with the law, particularly with the provisions of the Marine Resources Act. The judge concluded by saying the fact that Fishcor is not supporting the application and has distanced itself from the application by SPP speaks volumes and does not augur well for the future relationship between the parties. After the ruling was announced, SPP issued a press release in which it stated it has no option but to retrench over 600 workers.  – rrouth@nepc.com.na

Roland Routh
2020-09-04 10:37:46 | 26 days ago

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