A Penglides (Pty) Ltd and Another v Minister of Agriculture, Forestry and Fisheries and Another

The first appellant, A Penglides (Pty) Ltd, held a large pelagic longline fishing right granted under the Frap 2015/2016 allocation process. The appellant nominated a foreign-flagged vessel (Matsufuku Maru No. 28) for one unit of effort. When that vessel became unavailable due to the owner's other commitments, the appellant applied on 28 April 2017 to substitute it with the Koei Maru No. 1. The Deputy Director General (DDG) rejected this application on 17 May 2017, citing paragraph 8.3.5 of the Grant of Rights Letter which prohibited replacement of foreign vessels with other foreign vessels during the right's duration. The appellant lodged an appeal to the Minister on 19 June 2017, challenging both the rejection and the conditions limiting use of foreign vessels. The 30-day appeal period expired on Saturday 17 June 2017, when the Department's offices were closed. The Minister dismissed the appeal on 9 May 2018, noting it was submitted two days late. The appellant then applied to the High Court for review of the Minister's decision.

• Whether an appeal lodged on Monday 19 June 2017 was timeously served when the 30-day period prescribed by Regulation 5(1) of the Marine Living Resources Regulations expired on Saturday 17 June 2017, a day when the Department's offices were closed
• Whether a statutory time period for lodging an appeal extends to the next business day when the last day of the period falls on a day when the offices where the act must be performed are closed
• The proper interpretation of section 80(2) of the Marine Living Resources Act 18 of 1998 and Regulation 5(1) regarding computation of time periods for appeals

The appeal was upheld with costs. The High Court's order dismissing the application under case no 20760/18 was set aside. The matter was remitted to the High Court for consideration of the substantive relief sought by the appellants, including review of the Minister's decision on appeal and the lawfulness of paragraph 8.3 of the Grant of Rights Letter.

When a statutory time period for serving an appeal or performing an act expires on a day when the offices where that act must be performed are closed (whether weekend or otherwise), and it is impossible to perform the act on that day, the time period is interpreted as extending to the next day on which those offices are open. This principle applies to Regulation 5(1) of the Marine Living Resources Regulations, which prescribes a 30-day period for noting appeals under section 80(2) of the Marine Living Resources Act 18 of 1998. The impossibility of performance is not created by the party but by operation of law (office closure), and interpreting the statute otherwise would unjustly deprive the party of the full benefit of the prescribed time period.

The court expressed concern about the High Court's approach of raising and deciding the case on a preliminary point not centrally argued by the parties, despite acknowledging the principle in Fischer v Ramahlele that courts should not determine applications on legal points not raised by the parties. The court noted this approach was 'regrettable' and resulted in the substantive issues remaining unresolved, forcing 'fractional disposal of issues and the proliferation of piecemeal hearings and possible appeals.' The court observed that email or fax service to an unattended address on a non-business day, or delivery to building security when offices are closed, would stand on similar footing to attempting service at closed offices and would not constitute proper service. The judgment also contains extensive discussion of the history and policy considerations surrounding foreign vessel use in South Africa's large pelagic longline tuna fishery, including the challenges of vessel reflagging and the importance of foreign vessels to the industry's viability.

This judgment provides important guidance on the computation of statutory time periods in South African administrative law, particularly where the last day for performance falls on a non-business day. It establishes that impossibility of performance due to office closure extends the time period to the next business day, ensuring that litigants receive the full benefit of statutory time periods. The judgment harmonizes principles from contract law with administrative and procedural law, and aligns South African law with the English approach in Pritam Kaur. The case also reinforces principles of judicial restraint, cautioning courts against deciding cases on issues not centrally raised by the parties (following Fischer v Ramahlele). The judgment has practical significance for fisheries law and administrative appeals generally, ensuring procedural fairness and preventing technical defeats based on impossibility of performance.