Ex Parte Viking Fishing A Division of Sea Harvest Corporation (Pty) Ltd and Others

On 17 May 2024, the fishing vessel mfv Lepanto, owned by Sea Harvest Corporation and operated by its division Viking Fishing, capsized and sank approximately 34 nautical miles off Hout Bay. At the time of the incident, 20 crew members were on board – 9 survived by inflating a life raft before the vessel sank, but 11 seafarers went missing. An extensive two-day search and rescue operation was conducted by the NSRI and MRCC, involving nearby fishing vessels and helicopters. Despite these efforts, no sign of life was found; only a few pieces of debris were recovered. The missing crew had not been found four months later. Viking Fishing, as employer, brought the application together with family members of the missing crew to obtain a presumption of death order so that death certificates could be issued by the Department of Home Affairs.

• Whether the court has jurisdiction under the Admiralty Jurisdiction Regulation Act 105 of 1983 to grant a presumption of death order in respect of seafarers lost at sea.
• Whether on a preponderance of probabilities the missing crew members should be presumed dead on the evidence adduced.

The court declared that the eleven missing crew members are presumed to have died at sea on 17 May 2024. A final order was granted as sought in the notice of motion.

A court may grant a presumption of death order where the applicant proves on a balance of probabilities, based on the totality of the facts and circumstances, that the missing person is dead. Where a person disappears in an intrinsically dangerous situation or area – such as at sea – this factor will usually tip the scale in favour of granting a presumption of death order. A rule nisi is not mandatory and may be dispensed with where it would serve no purpose other than to cause delay and unnecessary expense.

The court commented that it initially considered granting an interim rule nisi 'ex abundanti cautela' (out of an abundance of caution), calling upon interested parties to show cause on a return date why a final order should not be granted. However, the court ultimately decided that such an order would only delay matters and serve no purpose other than incurring further expenses associated with publication and a second appearance of counsel.

This case illustrates the application of the common law presumption of death within the High Court's admiralty jurisdiction in respect of seafarers lost at sea. It confirms that a final order (rather than a rule nisi) may be granted where the evidence overwhelmingly supports the inference of death and an interim order would be purposeless. It also provides guidance on the factors – particularly the dangerous nature of the maritime environment – that weigh in favour of granting such an order.