Judge Ueitele's ruling, which was given in a case in which horse mackerel fishing companies Namsov Fishing Enterprises and Atlantic Harvesters of Namibia sued the Minister of Fisheries and Marine Resources, the government and some rival recipients of horse mackerel quotas, left Namsov and Atlantic Harvesters with little more than the satisfaction of having won an argument against the minister, though.
Namsov and Atlantic Harvesters were asking the court to not only review and set aside horse mackerel quotas allocated to some of their competitors and to declare that those allocations were contrary to the
Marine Resources Act or the Constitution, but also to order the minister to immediately implement an alleged decision to award bigger quotas to the two companies.
They achieved only partial success.
While the quotas allocated to Fishcor, the Namibian Large Pelagic & Hake Longlining Association and the Small Pelagic Fishing Association of Namibia were declared unlawful and irregular, Judge Ueitele decided not to set aside the allocations. At the same time, he ordered Namsov and Atlantic Harvesters to pay the legal costs of the Namibia Fish Consumption Promotion Trust, which was one of the respondents.
Judge Ueitele reserved judgement after he had heard oral arguments in the matter on 17 November. With the 2014 horse mackerel fishing season set to end on 31 December, Judge Ueitele only handed down an order in the case yesterday. Reasons for the order are expected to follow later.
Namsov, a subsidiary of the publicly traded company Bidvest Namibia, was asking the court to order fisheries minister Bernhard Esau to implement an alleged decision - denied by Esau - to award an additional quota of 13 337 metric tons of horse mackerel to Namsov for the 2014 fishing season. Atlantic Harvesters was claiming that the minister had awarded it an additional quota of 2 555 metric tons in July. Esau denied that, too.
Namsov has already received the biggest single cut from the total allowable catch (TAC) of 350 000 tons of horse mackerel that the Ministry of Fisheries and Marine Resources set for the 2014 fishing season.
After applying to be allocated a quota of 100 000 tons, the company was awarded a quota of 31 469 tons for 2014 in December last year, according to documents filed at the High Court. At the same time, Atlantic Harvesters was allocated a quota of 5 911 tons for 2014.
Namsov received an additional quota of 1 259 tons early in July, while Atlantic Harvesters received 236 tons.
Around 22 July, the minister allocated quotas from the last remaining portion of the TAC, in which a reserve of 10 096 tons was left at that stage.Namsov again received the biggest portion from that part of the TAC. The company was awarded a quota of 5 908 tons - bringing its total quota for the year to 38 636 tons. Atlantic Harvesters received an additional quota of 1 110 tons. That brought its total quota for the year to 7 257 tons.
During the hearing of the case two weeks ago, senior counsel Reinhard Tötemeyer, who represented Namsov and Atlantic Harvesters, argued that the fisheries minister acted illegally by awarding horse mackerel quotas to entities that do not have fishing rights for that species of fish. He argued that in terms of the Marine Resources Act a fishing right is a prerequisite before a fishing quota can be awarded to someone.
The entities that received horse mackerel quotas without holding fishing rights for that marine resource included Fishcor, which was allocated 10 000 tons from the reserve quota in July, the Small Pelagic Association, awarded a quota of 8 000 tons, the Namibian Large Pelagic & Hake Longlining Association, which received a quota of 1 000 tons, and the Namibia Fish Consumption Promotion Trust, which received 2 000 tons from the reserve quota. The permanent secretary in the fisheries ministry, Ulitala Hiveluah, stated in an affidavit also filed with the court that Namsov not only knew that horse mackerel quotas have been allocated to the trust, but the company also signed a quota usage agreement with the trust in May last year. In terms of that agreement Namsov was given the right to catch the trust's annual quota. However, Namsov failed to disclose that to the court, Hiveluah charged.
She also argued that the quotas allocated to the other respondents have either been caught or were being caught, and that it would prejudice them if their quota allocations were to be set aside at such a late stage in the fishing season.
Lawyer Sisa Namandje argued the case on behalf of the minister and government two weeks ago. Ramon Maasdorp argued Fishcor's case.