Publication Abstract

Are South African administrative law procedures adequate for the evaluation of issues resting on scientific analyses?

D.S. Butterworth, C.L. de Moor, J.A.A. De Oliveira*

This article traces, from a critical perspective, the way in which the various courts that were seized of the matter reviewed the scientific approaches to the allocation of fishing quotas for sardine and anchovy in Foodcorp (Pty) Ltd v Deputy Director General, Department of Environmental Affairs and Tourism: Branch Marine and Coastal Management & others. The article explains the scientific basis that underpinned the allocations (Total Allowable Catches) made by the Department of Environmental Affairs and Tourism in terms of the Marine Living Resources Act 18 of 1998 in the early 2000s. It then considers the approach adopted by both the Cape High Court and the Supreme Court of Appeal to these allocations. In all except the first of these cases, the courts found the allocations to have been irrational in terms of the requirements of administrative law. The authors argue that this occurred because of a failure on the part of the respective courts to understand the science behind the quota allocations. The authors argue that there is a need for courts to be more open to seeking guidance from experts in the scientific community to ensure that these issues are properly understood in the future.

Reference:

D.S. Butterworth, C.L. de Moor, J.A.A. De Oliveira* (2012) Are South African administrative law procedures adequate for the evaluation of issues resting on scientific analyses? The South African Law Journal 129: 461-477