Avante Fishing Enterprises v Rafel Ondernemings CC
| Jurisdiction | South Africa |
| Judge | Revelas J |
| Judgment Date | 29 May 2008 |
| Docket Number | 4108/05 |
| Court | South Eastern Cape Local Division |
| Hearing Date | 03 May 2007 |
| Citation | 2008 JDR 0653 (SE) |
A.R. Erasmus J
Revelas J:
[1] The principal issue for determination in this judgment, is whether the plaintiff's claim for damages in the amount of R6 990 776.23, based on the defendant's alleged breach of contract (failure to retransfer certain fishing rights and permits) had become prescribed. The contract in question was concluded on 29 December 1997 and the summons was issued by the plaintiff on 5 July 2005, some eight years later. The defendant raised a special plea, contending that the claim had become prescribed. Issuing summons was not the first step taken by the plaintiff towards litigation in this case. Five years prior thereto, on 5 July 2000, the plaintiff sought specific performance (the retransfer of the same fishing rights and permits) from the defendant in motion proceedings, based on the defendant's breach of the same contract.
2008 JDR 0653 p2
Revelas J
Judgment was granted in favour of the plaintiff. I will return to this application and its aftermath below.
[2] The matter before me was set down in the form of a stated case, where in terms of Rule 33 (4) of the Rules of Court, two issues were to be separated from all further issues in dispute between the parties, namely:
Whether the plaintiff's claim had become prescribed.
Whether in the light of the judgments and orders handed down by the High Court in respect of the application referred to, and subsequent judgments on appeal and in respect of an application by the defendant for a declator and the plaintiffs counter-application, the defendant is entitled to revisit or contest the relevant findings contained therein, within the context of the action for damages in trial proceedings, if the special plea fails.
[3] The relevant facts to be considered were also agreed upon. They appear from the stated case, the judgments in respect of the application for specific performance, and the pleadings.
[4] In 1997, the plaintiff, the owner of a vessel named "Kingcat", was the holder of 23 BTC fishing permits issued in terms of the Sea Fishery Act, 12 of 1988 which has since been repealed and substituted with the Marine Living Resources Act No 18 of 1988. Because the vessel "Kingcat" became unseaworthy, the plaintiff had no use for the permits which entitled it to fish for squid with that vessel at the time. The defendant owned a seaworthy vessel, "Andejach", with which it could fish for squid, but held no permits. The two parties then concluded the agreement in question on 29 December 1997, the material terms of which were the following:
2008 JDR 0653 p3
Revelas J
The plaintiff was to transfer twelve BTC Squid Fishing permits from the vessel "Kingcat" to the vessel "Andejach".
The transfer was subject to the plaintiff retaining ownership of the permits, and its right to require the retransfer of the rights arising from the permits, from the defendant, on reasonable notice.
The defendant was, on the basis of the fishing rights and permits transferred to it, obliged to sell all squid caught on the vessel "Andejach" to the plaintiff at current market value, from time to time, less a ten percent administration fee.
[5] The agreement was subject to the approval of the Department of Sea Fisheries ("The Department") who subsequently granted its approval for the transfer of the fishing permits to the defendant. The retransfer of those permits to the plaintiff in the future, would also be subject to the approval of the Department.
[6] In November 1999 the plaintiff demanded the retransfer of the fishing rights and permits from the defendant, which it believed it was entitled to do in terms of the contract, but subject to the approval of the Department. The last paragraph of the letter of demand dated 30 November 1999 reads as follows:
"In this regard our client further reserves the right to institute a damages claim against yourselves and we do refer you (inter alia) to paragraph 6 of the agreement concluded on 29 December 1997".
Paragraph 6 of the agreement provided that the squid caught on "Andejach" must be sold to the plaintiff.
2008 JDR 0653 p4
Revelas J
[7] It appears that the letter of demand emanated from the defendant's failure or refusal to sell squid to the plaintiff, since 22 November 1998, as it was obliged to do in terms of the agreement and that the plaintiff, in the belief that the defendant was in breach of the agreement concluded, repudiated the contract and sought specific performance in respect of the retransfer of the squid fishing rights and permits, and reserved its right to claim damages in respect of the failure, since November 1998, to sell the squid caught with those permits, to the defendant.
[8] The plaintiff, in the motion court proceedings, brought in 2000, sought the retransfer of the fishing permits. The matter was referred to oral evidence, and after a somewhat lengthy trial, an order was granted in favour of the plaintiff in September 2001, that, subject to the approval of the Minister responsible for the Department of Environmental Affairs and Tourism, the defendant was to transfer to the plaintiff the fishing right presently held by the former in respect of the vessel "Andejach" in terms of the provisions of Act No 18 of 1998. A costs order was also made against the defendant. The judgment and order was upheld by the Full Bench of the Eastern Cape Division of the High Court in 2002. The Supreme Court of Appeal refused the defendant leave to appeal against the judgment. The defendant's failure to comply with the order made in September 2001, resulted in a further order made against the defendant, being a mandamus which on 29 July 2004 ordered it "to complete, as transferor and sign, an application" in order to give effect the transfer by it, to the plaintiff of the fishing rights in dispute, and to take all further step as may be necessary to effect the transfer or if it failed, the Sheriff was given the power to do so in its stead. Costs on a scale as between attorney and client were also ordered. This order was granted pursuant to a counter-application by the plaintiff when in 2004 the defendant
2008 JDR 0653 p5
Revelas J
brought an application for a clarification of the order made in 2004. Kroon J dismissed the application on the basis that it was spurious.
[9] The aforesaid judgment also included a finding that certain squid fishing rights held by the defendant in July 2004, constituted a pro tanto renewal of the rights provisionally leased by the defendant from the plaintiff in terms of the agreement concluded between them, and that those rights were subject to the terms of the agreement and subject to the approval of the relevant state department, to transfer those rights to the plaintiff.
[10] The plaintiff obtained the approval of the relevant state department and the transfer of the rights in...
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