Cape Town - The Supreme Court of Appeal (SCA) has found in favour of tuna and swordfish fishery company, Penglides, which had submitted an appeal to the Department of Agriculture, Forestry and Fisheries regarding a fishing vessel, a day late.
The matter was also remitted back to the Western Cape High Court.
The issue before the SCA was whether the appeal lodged by Penglides, who had applied for fishing rights for the period 2005 to 2015, that entitled it to catch tuna, challenged the decision of the the Department, was served a day late, under circumstances where the last day for service was a Saturday and the offices of the Department were closed on that day.
According to court documents, on or about January 25, 2017, the Department decided on the allocation of fishing rights in the large pelagic longline sector. Penglides was successful in their application and as such were required to confirm their two vessels within 90 days of the publication of the final decisions.
Penglides confirmed its nomination of the Matsufuku Maru No. 28 and the MFV Elize. Shortly after the allocation of the long-term rights, Penglides was advised that the Matsufuku Maru No 28 would not be available to it. On April 28 2017, Penglides applied to the Department to allow a temporary replacement vessel, the Koei Maru No.1, to be employed on its behalf, instead of the Matsufuku No. 28. The application was rejected in May.
A month later, on June 19 2017, Penglides lodged an appeal with the department minister challenging both the rejection of its vessel-change application and the conditions limiting the use of foreign vessels in the fishery. Almost a year later, on May 9 2018, the Minister dismissed the appeal on a number of grounds.
“The decision by (the department) to refuse Penglides’s vessel-substitution application was made on May 17, 2017. The next day, May 18 2017, was what may be described as ‘day 1’. Thursday, June 15 2017, was day 29. The day thereafter, namely Friday June 16 2017, was a public holiday and not a ‘day’ for purposes of the Interpretation Act. Nor was Sunday June 18 2017.
“The appeal was served on the Department on June 19 2017. It was not in dispute that the department’s offices had been closed on that Saturday, as they generally were over weekends. The Interpretation Act does not deal with the situation where the last day, not being a public holiday or a Sunday, is a day on which the accomplishment of the task cannot be achieved because the offices where the task is to be performed are closed,” court documents read.
SCA Judge Visvanathan Ponnan said: “There is long-standing authority in this country, albeit in the field of the law of contract, that accords with the approach adopted in Pritam Kaur (and the other English cases that have since followed it) that the high court could have called in aid. Somewhat surprisingly, it did not.
“It must follow that regulation 5(1) can only be interpreted to mean that when the Department’s offices are closed on the last day of the 30-day period for the serving of an appeal, the appeal will be served within the designated period if served on the next day on which the offices are open. This is the effect of the South African and English authorities. The high court’s conclusion to the contrary accordingly cannot stand. It follows that the appeal must succeed,” Judge Ponnan said.
DFFE spokesperson Albi Modise said: “The Department is still studying the judgement and will consult with its legal team in due course to determine the way forward.”