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[2008] ZAWCHC 249
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Duncan v Minister of Environmental Affairs and Tourism and Others (7056/2006) [2008] ZAWCHC 249 (20 August 2008)
JUDGMENT
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL
DIVISION)
CASE
NUMBER
:
7056/2006
DATE
:
20
AUGUST 2008
In
the matter between;
GLEN
DUNCAN
APPLICANT
and
THE
MINISTER OF ENVIRONMENTAL
AFFAIRS & TOURISM
1
st
RESPONDENT
CHIEF DIRECTOR: RESEARCH, ANTARCTICA
& ISLANDS OF THE DEPARTMENT OF ENVIRONMENTAL AFFAIRS &
TOURISM: MARINE &
COASTAL
MANAGEMENT
2
nd
RESPONDENT
DEPUTY
DIRECTOR-GENERAL:
MARINE & COASTAL MANAGEMENT
3
rd
RESPONDENT
JUDGMENT
VAN REENEN. J:
The applicant, who has been actively
involved in the fishing industry since 1996, submitted an application
for long term fishing
rights in the traditional line fish sector on 4
November 2005 and nominated the "Endeavour" as a suitable
vessel, despite
the fact that it failed to comply with the prescribed
criteria for a vessel to be utilised in that sector of the fishing
industry.
The application was unsuccessful as
the applicant's name did not appear on the list of successful
applicants, which was published
on 28 February 2006. The first
respondent conveyed the outcome of the application to the applicant
by letter dated 6 Mach 2006,
which appears to have been received by
him only on 4 April 2006. The applicant, on 8 March 2006
r
lodged an urgent application in terms of
Section 81
of the
Marine
Living Resources Act 18 of 1998
, to which I snail refer as in the
MLRA
r
for exemption in order to have enabled him to continue utilising the
"Endeavour".
After publication of the "general
reasons for decisions on the allocation of rights etcetera" in
the traditional line
fishing industry on 10 March 2006, the applicant
lodged an urgent appeal in terms of
Section 80
of the MLRA on 26
April 2006 to the first respondent, within the ttme limit prescribed
by
Regulation 5(1)
of the regulations promulgated in terms thereof.
In terms of
Regulation 5(3)
, it triggered an obligation upon the
second respondent to have submitted a report to the first respondent
by no later than 26 May
2006.
Despite the fact that the applicant's
attorneys, on 10 May 2006 and 6 June 2006 respectively, addressed
letters to the first and
second respondents requesting an urgent
finaltsation of the appeal and exemption application by no later than
13 June 2006, the
second respondent appears to have provided his
report to the first respondent only on 14 August 2006. In the
meantime an off-the-record-meeting
took place on 7 June 2006. A
proposal was made to the applicant on 19 June 2006 to nominate a
substitute vessel, which was purported
to be accepted by the
applicant on 26 June 2006, but without his having complied with the
requirements for a substitute vessel.
As neither the appeal nor the
exemption application had been finalised by then, the applicant, on 7
July 2006, launched an urgent
application - set down for hearing on
11 July 2006 - in which primarily the following relief was sought on
an urgent basis. That
-
"2. First respondent,
alternatively third respondent, or their duly appointed delegates, be
directed and directed forthwith
to consider and take a decision in
respect of:
2.1 The vessel nominated by
applicant pursuant to the exemption granted by first respondent,
alternatively third respondent on
19 June 2006 to applicant to engage
fishing in the traditional line fish sector in terms of
Section 81
of
the
Marine Living Resources Act 18/1998.
2.2
The urgent appeal lodged by
applicant with the first respondent on 26 April 2006 in terms of
Section 80
of the MLRA in regard to second respondent's refusal of
the applicant's application (number NLNFM 5133) for commercial
fishing
rights in the traditional line fish sector in terms of
Section 18
of the MLRA."
The application was by agreement
between the parties postponed to 5 September 2006. The respondent
filed and delivered their answering
affidavits on or about 4 August
2006 and the applicant, his replying affidavit, on or about 16
November 2006. Meanwhile the first
respondent who had scheduled the
appeals against the refusal of the traditional line fish rights to
commence on 7 August 2006,
decided the applicant's appeal and on 22
August 2006, notified him that it had failed. The applicant thereupon
on 21 September
2006 launched an application reviewing the first
respondent's decision. The review was duly heard and dismissed by
Nagan
,
A J on 28 February 2007.
In view of the aforegoing it is
common cause that the is relief sought in prayer 2 of the notice of
motion, has become moot and
all that needs to be considered by me is
the question of costs. It is trite that questions of costs is
entirely within a Court's
discretion. The approach to be followed as
regards unresolved issues of costs in matters where the merits of the
issues between
the parties are no longer live, is that the Court must
endeavour to make a proper allocation as regards the costs along
broadly
general lines on the material at its disposal and without a
painstaking analysis and adjudication of the merits. (See
Gamlan
Investments fPtv) Ltd v Trillion fCape) (Ptv) Ltd
1996(3} SA 692 (C) at 700 to 701). The relief sought in the
application was based on the provisions of section 8(2)(a) of the
Promotion of Administrative Justice Act 2000, (PAJA) directing the
first respondent to take a decision it was obliged to have taken
on
the ground that there had been an unreasonable delay within the
meaning thereof in Section 6(3)(a)(iii) of PAJA.
Of the three essential requirements
that have been distilled from the provisions of that subsection, only
one is an issue in the
instant case, namely whether or not there had
been an unreasonable delay in the deciding of the appeal. What
constitutes an unreasonable
delay, is dependent upon the facts of
each particular case (see
Minister
of Health N.O. V New Clicks SA (Ptv) Ltd (Treatment Action Campaign
as
amicus
curiae)
2006(2) SA 311 (CC)
and having regard to the broad guidelines formulated in recent
decided cases such as
Vumazonke
v MEC for Social Development, Eastern Cape and three similar cases
2005(6) SA 229 E at paragraphs 35 to 39 and
MEC,
Department of Welfare Eastern Cape v Kate
2006(4) SA 478 (SCA) at 485.
As Mr Steenkamp, for the applicant,
conceded that the relief sought in Prayer 2.1 of the notice of motion
lacks merit his contention
that the applicant is entitled to a cost
order in his favour, was limited to the relief sought in prayer 2.2.
In considering the
reasonableness or otherwise of the delay in
deciding the applicant's appeal, I'm alive to the fact that
respondents had to deal
with different categories of rights, which
had to be dealt with in a certain order dictated by seasonal
considerations and that
a great number of applications had to be
considered and a substantial number of appeals handled.
Mr De Villrers-Jansen alluded to
those facts, but as was correctly pointed out by Mr Steenkamp, the
respondents had not on the papers
directly invoked a Sack of capacity
and/or resources as an explanation for the delay. In any event the
extent to which it is free
for a public administration to invoke it
in the face of the constitutional imperatives binding upon it, is
highly contentious.
(See
Kiliko
& Others v Minister of Home Affairs & Others
2006(4) SA 114 (C) at 126 E to H.
The respondents appear to be adopting
the stance that the applicant's appeal had to be considered together
with ail the others and
that it lacked urgency. That stance, however,
does not appear to have been conveyed to the applicant prior to 20
June 2006, by
which date the second respondent's reasons were already
overdue and furthermore is difficult to reconcile with the letter,
Annexure
H2, in which certain matters were specifically categorised
as lacking urgency and did not include that of the applicant.
The respondents appear to have failed
to recognise the fundamental difference between the appeal on the one
hand and the pending
exemption proceedings on the other. It would
appear that the applicant's appeal was adjudicated on the basis of
information contained
in a detailed application form and the extent
to which prescribed criteria had been complied with or not. That
means that no wide-ranging
and time -consuming investigations were
necessary as a prerequisite for it's being considered.
The applicant's application and
subsequent appeal failed because the "Endeavour" did not
comply with the prescribed criteria,
as did the failed review
application. It, therefore, appears that the consideration of the
appeal would have been a fairly simple
process which could have been
disposed of expeditiously The fact that the first respondent could
dispose of the appeal by 22 August
2006, having received the second
respondent's report by not earlier than 14 August 2006, bears
testimony to that fact. If the time
within which the first respondent
dealt with the appeal is taken as a rough guide, namely 12 days, the
appeal, in my view, could
reasonably have been disposed of prior to
the end of June 2006, had the second respondent provided reasons by
22 April 2008 as
he should have. The failure to have done so by then,
in my view, was unreasonable in all the circumstances of the case.
It follows that the launching of the
application on an urgent basis was justified and that it is likely
that the applicant would
have been substantially successful had the
matter run its normal course, t, accordingly, incline to the view
that the applicant
has succeeded in making out a case for an award of
costs in its favour. However, as the mootness of the issues became
amply apparent
when the answering affidavit was filed, any order for
costs must be limited to a date seven calendar days after the filing
of that
affidavit.
As the primary reasons for the delay
appear to have been the second respondents failure to have submitted
his report timeously to
the first respondent, as welt as the latters
scheduling of appeals in respect of traditional line fish rights to
commence only
on 7 August 2008 and all the respondents opposed the
relief sought, they, in my view, should be liable for the applicants
costs
jointly and severely, the one paying the other to be absolved.
Accordingly
the following order is made.
The respondents are ordered to pay
the applicant's costs jointly and severely, the one paying the other
to be absolved.
b) Such costs are to be taxed on the
party and party basis as from a date seven calendar days after the
date on which the respondents
answering affidavits were filed.
VAN REENEN, J