The Minister of Environmental Affairs and Tourism and Another v Pepper Bay Fishing (Pty) Ltd; The Minister of Environmental Affairs and Tourism and Another v Isak Smith

These two appeals arose from unsuccessful applications for West Coast rock lobster fishing rights under section 18 of the Marine Living Resources Act no 18 of 1998. The Minister published General Notice 1771 of 2001 prescribing the manner for applications, comprising an Invitation, Instructions, and Guidelines. Pepper Bay Fishing deposited R6,000 by cheque into the Rights Verification Unit account on 10 September 2001, three days before the 13 September closing date. However, the cheque was post-dated to 28 September (through administrative error), causing the bank to reverse the credit on 11 September. Pepper Bay submitted its application on 13 September with the original deposit slip showing payment. Smith, a subsistence fisherman for 20 years, mandated chartered accountant Bonthuys to prepare his application. On 13 September 2001, Bonthuys arrived at the Receiving Centre before the 12 noon deadline but only gained entrance five hours later due to long queues. He had the original applications but not the two required copies (left in a vehicle). Officials refused to accept the applications without copies or allow him to make copies that day. Bonthuys returned on 14 September with copies and the applications were received. The Chief Director rejected both applications as defective without considering merits. Appeals to the Minister were dismissed. Both applicants successfully sought review in the Cape High Court before Louw J and Davis J.

• Whether Pepper Bay's application fee had been paid timeously when the bank credit was reversed after a post-dated cheque was discovered
• Whether Smith's application was submitted timeously when copies were provided one day after the deadline
• Whether the Chief Director had discretion to condone non-compliance with procedural requirements in General Notice 1771 of 2001
• Whether paragraph 20 of the Instructions created a discretion to condone procedural defects despite explicit warnings in the Invitation
• Whether the General Notice provisions were peremptory or directory
• The proper interpretation of subordinate legislation drafted in 'narrative form'
• Whether refusal to exercise a non-existent discretion constituted procedurally unfair administrative action under section 33 of the Constitution

Both appeals upheld with costs, including costs of two counsel. In the Pepper Bay matter, appellants not entitled to costs of preparing irrelevant portions of the record which parties later agreed were unnecessary. Orders of the Courts a quo set aside and replaced with orders dismissing the applications with costs including costs of two counsel.

An administrative authority has no inherent power to condone failure to comply with peremptory requirements and only has such power if expressly afforded discretion. Where subordinate legislation prescribes formalities for the acquisition of statutory rights or privileges (as opposed to infringement of existing rights), compliance with such formalities should be regarded as imperative/peremptory rather than directory. This is particularly so where: (1) imperative language such as 'must' is used; (2) explicit sanctions for non-compliance are stated; and (3) the requirement concerns acquisition rather than infringement of rights. The word 'may' in administrative provisions can serve a predictive function (indicating what might happen) rather than a permissive function (creating discretion), depending on context. Subordinate legislation published as a gazette notice, though consisting of multiple constituent documents, must be read and interpreted as a single enactment. Constitutional guarantees of procedurally fair administrative action do not require decision-makers to exercise discretions they do not legally possess.

Brand JA expressed sympathy for the subsistence fishermen in Smith's case and suggested they may have a remedy against the chartered accountant who appeared responsible for the procedural failure. The Court noted it would be inappropriate to pronounce on the constitutional validity of the General Notice itself (whether it should have conferred discretion) as this issue was never raised in the proceedings and the Minister had no opportunity to explain the policy rationale. The Court suggested paragraph 20 of the Instructions was 'maybe unnecessary and, like most unnecessary statements, unwise' though not actually confusing in context. The Court criticized the method of drafting subordinate legislation in 'narrative form' rather than 'familiar statutory language', noting this often produces the opposite of its intended effect of easier comprehension. The Court expressed approval of the parties' later cooperation in identifying irrelevant portions of the record, avoiding the problems encountered in the earlier Phambili Fisheries case, though this did not excuse the initial non-compliance with the Rules.

This case is significant for establishing important principles in South African administrative law regarding: (1) the interpretation of subordinate legislation drafted in narrative form aimed at lay persons; (2) the distinction between peremptory and directory requirements in applications for statutory rights or privileges; (3) that administrative bodies have no inherent power to condone non-compliance with peremptory requirements unless expressly granted such discretion; (4) the proper interpretation of 'may' in administrative provisions - whether predictive or permissive; (5) that section 33 constitutional fairness does not require exercise of discretions that do not legally exist; and (6) practical guidance on compliance with court rules regarding records on appeal. The case reinforces that where statutes provide for acquisition of rights (as opposed to infringement of rights), formalities should be construed as imperative. It also demonstrates the court's unwillingness to address constitutional validity challenges not properly raised in proceedings.