Tuesday, December 26, 2023

Attention All Category B Right Holders in the Hake Inshore Trawl Fishery!

 On 17 November 2023, the Fisheries Minister launched an urgent interdict application that sought to stop ALL Category B right holders in the hake inshore trawl fishery from fishing in 2024. She wanted the courts to interdict her staff from processing and issuing hake inshore trawl permits and to stop all Category B's granted permits from fishing. 

The interdict application was opposed by a number of Category B right holders for obvious reasons. 

Arguments in this application were heard on Thursday 14 December 2023. The Minister conceded that her request to interdict every single Category B right holder would be over broad and the court would never permit this. Effectively, the Minister conceded that right holders LETAP CC, Mayibuye Fishing, Fisherman Fresh CC, Premier Fishing, Full Deck Investments, Dazelle Traders & Offshore Fishing would always qualify for a right despite any attempts by her to re-score their applications. 

We have now been told that the Department is seeking to enforce this interdict "application" despite there being no interdict in place.  

In short, the Department MUST process and issue all hake inshore trawl fishing permits. If any Category B right holder's permit application is not being processed or if a permit already issued is "cancelled", this conduct would be unlawful and these right holders are encouraged to contact us. 

NOTE: Permits cannot be cancelled without due process and the only due process provisions allowed under the MLRA is the due process provision encapsulated under Section 28 of the MLRA. So any unilateral cancellation of a permit already issued would be unlawful. 

#FRAPFAILURE: A Summary of FRAP Court Cases Against the Fisheries Minister

The Fisheries Minister presently has more than a dozen court cases challenging her FRAP 2016 AND FRAP 2020 appeal decisions. 

Hake Inshore Trawl 

Here the minister currently faces review cases by Hacky Fishing, Sevlac Investments and Letap. In the Hacky matter (which the Minister remain in contempt of a court order from September 2022), the Minister has attempted to self-review her hake inshore trawl decisions - effectively admitting that she and her advisors have repeatedly acted unlawfully when scoring Category B applicants in that fishery. 

We have referred to the Minister's conduct as being an example of a "scorched hake" policy as she seeks to stop all Category B right holders from fishing so she can re-score their section 4 "suitable vessel" access data even though their rights have not been reviewed and set aside by any court of law. 

So in this fishery where rights were first allocated 7 years ago, this Minister admits she still cannot score a single simple section correctly. Does our esteemed fisheries minister and her clever advisors not know what a hake inshore trawl vessel is? Clearly they dont as they keep confirming that they just cannot get this right! 

Horse Mackerel

As with hake inshore trawl, the Minister is seeking to self-review her decisions here as well! And these decisions also stem from FRAP 2016! In addition, there are 4 review applications outstanding in this fishery. 

Essentially, in both hake inshore trawl and horse mackerel, the Minister has asked the court to stop all Category B right holders from fishing until she gets her own confused and chaotic house in order. Both interdict applications were opposed in mid-December.

KZN Prawn Trawl

There is a single review application by Dyer Eiland Visserye against the Minister's decision to refuse them a right despite being the higher scoring appellant. 

Traditional Line Fish

There are 2 review applications by appellants in the KwaZulu-Natal fishing zone.

South Coast Rock Lobster

Risar Fishing CC is challenging the legality of the quantum allocation methodology employed in that fishery. 

Hake Long Line

Three appellants in Category A and B launched urgent review applications last week. It is expected that a further 2 reviews will be brought next week. 

Tuna Pole

Three appellants filed review applications in the tuna pole fishery - 2 Category A appellants and 1 Category C appellant. These 3 applications are set to be heard in February 2024.  

Small Pelagics

We will update once final decisions by clients are taken to review these decisions or aspects of the decision. 


Finally. Months Late. The (Unlawful) Small Pelagic Appeal Decisions

On the evening of 22 December 2023, the Fisheries Minister issued her appeal decisions in the anchovy and pilchard fishing sectors. The decisions came almost 18 months after the appeals were filed and three months after the Minister first undertook to make these decisions public by 30 October 2023.

The Minister's decisions are yet again an example of poor decision-making coupled with appalling contempt for the fishing industry. The pilchard decisions published lacked the full record with dozens of appellants' names missing from the decision table. A "corrected" decision table was later added to the Department's website but does not record an apology from the Minister or any written confirmation that this is the actual set of decisions taken by the Minister. It is effectively an anonymous set of appellant names. 

Substantively, the Minister granted a total of 80 anchovy rights and 67 pilchard rights. 

Pilchard rights

* 60 category A

* 3 category B

* 4 category C

Anchovy rights

* 70 category A

* 4 category B

* 6 category C

The appeal decisions are unlawful on at least two significant fronts. The first is that the Minister of Fisheries gazetted policy regulating the allocation of fishing rights in a single small pelagic fishery, comprising a targeted anchovy and sardine fishery. This is the “Policy on the Allocation and Management of Small Pelagic Commercial Fishing Rights: 2021”. The delegated authority unlawfully and ultra vires abrogated to herself policy and law-making authority to separate applications for pilchard and anchovy directed fishing rights. This was also undertaken without consulting any member of the fishing industry or the South African Pelagic Fishing Association. This is a substantial and fatal violation of administrative law, which renders the delegated authority’s decisions in the pilchard and anchovy fisheries reviewable. 

The second is that the Minister's appeal decisions in the anchovy fishery reduced the allocations of existing right holders by significant quantities in many cases. The Minister had failed to consult with those right holders granted rights on 28 February 2022 before reducing their allocated quotas. This is a violation of section 80(3) of the MLRA.

On the first ground, the entire small pelagic fishing rights allocation process is reviewable. On the second ground, the Minister's decision to introduce rights to additional right holders in the anchovy sector can be interdicted and the Minister will be forced to comply with section 80(3) of the MLRA (as is the case with her squid appeal decisions).


The Anchovy Decisions

The anchovy appeal decisions are deeply flawed and susceptible to review. For one, the Minister effectively confirms the scoring criteria adopted by the Delegated Authority were not clear. The Minister's appeal decision effectively seeks to contrive and recreate the scoring and evaluation rules. She also promises to make public some "EXCEL" spreadsheet which will explain these scoring rules and criteria. This is untenable. 

These scoring rules and criteria were supposed to have been published clearly and unambiguously by the DA in her GPR. Appellants would then have been able to construct proper and comprehensive appeals challenging their respective application evaluations. 

The Minister's GPR also bizarrely states that she adopted revised calculations where the DA's calculations and scoring methodologies were incorrect. She also rescored all applicants (even those whose applications were not before her). Both statements confirm fundamental due process violations. 

For one, the Minister fails to detail and explain which criteria were rescored and calculations revised. This is simply unacceptable. These revised calculations need to be explained and the impact on every single applicant demonstrated. The Minister's statements are vague, irrational and arbitrary. 

Secondly, the Minister cannot change the scoring of or even consider an application that is not before her. Accordingly, her statement that she rescored all applications in this sector is unlawful. 

Finally, it is apparent that the minimum score required by Category C new entrant applicants to qualify  for an anchovy right is 64.81% points and yet no less than 2 appellants scored above this and did not qualify for a right. This is simply arbitrary and unlawful decision-making. 

The Pilchard Decisions

Like the anchovy decisions, these decisions follow a similar path of irrationality, nonsense and unlawfulness. As with the anchovy decision, the Minister effectively acknowledges the deeply flawed scoring methodology and criteria adopted by the DA. The minister tries to use her appeals GPR to contrive and recreate the scoring and evaluation rules. She also promises to make public some "EXCEL" spreadsheet which will explain these scoring rules and criteria. 

In both records of decisions, the Minister does not address the appeal grounds raised by appellants. What she instead does is to "fix" all those scoring rules and criteria that were so unclear in and missing from the DA's GPR. The Minister "appeal decision" ROD is effectively a poor "do-over". And this is a fundamental violation of applicants' rights as it confirms that appellants were never able to properly file appeals due to the lack of clear information in the DA's GPR setting out how each criteria was scored and weighted and how information was used and interpreted. 

Friday, November 17, 2023

The Hake Long Line Appeal Decisions: #FRAPFAILURE Marches Forth

On 7 October 2023, Minister Creecy issued her hake long line appeal decisions. Her decisions have resulted in the allocation of a total of 106 rights in the hake long line fishery, which is a reduction from the 123 right holders that were active in the fishery before 28 January 2022. 

The decisions are certainly reviewable on a number of grounds and we are in the process of preparing review applications for a number of unsuccessful appellants. We will keep you updated as these matters progress through the Western Cape High Court. 

But what has become clearly apparent is that the Minster has made glaring errors in the evaluation and scoring of these appeals. For one, she has inconsistently dealt with the issue of compliance with laws such the Employment Equity Act, Skills Development Act and Skills Development Levies Act. She has unlawfully decided to deny appellants scores for these criteria despite the fact these laws do not apply to them and as such these appellants cannot be prejudiced. 

A second glaring and jarring error is the failure to simply add up scores correctly! We have come across a number of cases where the weighted scores simply do not add up to the total scores assigned by the Minister. In at least two cases, this error alone resulted in appellants being unlawfully denied rights because correctly computed, their respective total scores exceed the minimum scores required for hake long line fishing rights. 

And of course, we also have the Minister's nonsensical attempts at explaining how certain criteria were scored and evaluated. Take for example her attempt at fixing the Delegated Authority's ridiculous scoring criterion for "employee share schemes". Creecy says: "In order not to prejudice any applicant, I applied a minimum score of 1 consistently to all applicants who had no share scheme or who had responded yes to share schemes but provided no % values on this aspect, or where schemes were not applicable, were allocated zero (0)."

OK NOW READ THAT AGAIN SLOWLY. RE-READ IT AGAIN, EVEN SLOWER. NOW SKETCH THE STUPIDITY OF WHAT WE HAVE HERE!

Creecy does not wish to prejudice any applicant. (The very purpose of a scoring regime in such competitive processes IS TO PREJUDICE! Otherwise you dont get to distinguish!).

Creecy has also decided to score those with no share schemes 1 point. She has then ALSO decided to score those applicants that had no share scheme or that had responded yes to share schemes but provided no % values on this criterion 1 point

But then those applicants to whom share schemes are not applicable (who are these and what makes one qualify for this inapplicable status?), get zero points

So non-compliance is rewarded. But it gets worse.

So then one must assume she is going to tell us about those that do have share schemes and how they are scored and weighted. The next sentence starts ... and ends "scored entities with no ..."

And that is that! She literally ends the criterion mid-thought. This is supposed to be a ministerial record of decision that decides the futures of hake long line fishing companies for the next 15 years and the Minister cant even be bothered to ensure that she adopts a record of decision that even tries to make some semblance of sense... or has complete sentences. 

What is grating is that these vulgar and stupid errors are made by people literally sucking at the teats of taxpayers living large and "earning" fat salaries while ruining the lives of their "subjects". And they dont give a damn. What they produce shows they simply have no self-worth or self-respect or even shame. They simply expect you to accept the garbage they produce and be grateful they bothered to even publish these decisions.  

Sunday, October 22, 2023

#FRAPFAILURE: Creecy's Squid Appeal Decisions Unravelling

On Friday 20 October 2023, Barbara Creecy's appeal decisions of 12 June 2023 to introduce new entrants to the fishery and reduce the effort allocations of the historic right holders was interdicted pending a review application which has to be brought before the end of October 2023. 

The court in Visko Seeprodukte & 40 others v The Minister of Forestry, Fisheries and Environment & 48 Others gave a clear indication as well that the review will likely succeed which will mean that the Minister's squid appeal decisions will be reviewed and set aside and she will have to start the squid appeals process afresh.

However, Friday's court decision has a significantly broader impact than just halting the unlawful allocation of rights to new entrants in the squid fishery. 

Judge Salie's judgement makes it clear that the Minister cannot simply allocate additional fishing rights on appeal without first consulting with every other existing right holder in the fishery. Section 80(3) of the Marine Living Resources Act requires the Minister "to consider any matter submitted to him or her on appeal, after giving every person with an interest in the matter an opportunity to state his or her case."

This legal obligation on the part of the Minister was made clear by the Supreme Court of Appeal in Minister of Environmental Affairs and Tourism and Others v Atlantic Fishing Enterprises (Pty) Ltd and Others 20 years ago.

The legal effect of Judge Salie's judgement is therefore significant. The Minister's appeal decisions where she introduced additional right holders in the hake deep-sea trawl and South Coast rock lobster fisheries resulting in the existing right holders "losing" quota are therefore all susceptible to judicial review because the Minister failed to first consult with the existing pool of right holders about the reduction of their respective individual fishing rights. 

Friday's judgement conceivably will also affect those appeal decisions even where the net effect of the appeal decisions did not result in the existing right holders losing quota or effort because the addition of more right holders to the fishery would affect the fishing and sustainability interests of right holders.  

Wednesday, October 11, 2023

Hake Deep Sea Trawl Fishing Permits: Can Successful Appellants Apply Now?

I have had a number of urgent enquiries from both new entrant and historic right holder appellants who had successfully appealed for hake trawl fishing rights about applying for their section 13 fishing permits. 

They are being told by DFFE that they can only apply in January 2024 for their permits. Is that correct? If it is, it could be a hollow victory as many have effectively run out of cash having been surviving for the past 2 years on savings.

A study of the hake trawl rights allocation letter is revealing. Paragraph 3 of the letter states clearly that the right commences on the signature date of the letter - ie 5 October 2023. 

 "Duration of Right

3.1 The right is allocated from date of signature hereof and terminating on 28 February 2038."

The right accordingly commenced immediately on 5 October 2023. The section 13 permits must accordingly be processed and issued to give effect to that right. To refuse to do so would be unlawful.

Incidentally, it is unclear what possessed this Minister to allocate these fishing rights as being valid until 28 February 2038! That is 2 months into the 2038 fishing season! What happens for the remaining 10 months of the 2038 fishing season? 

And a final note on the rights allocation letter. It is issued subject a list of conditions set out in paragraph 6. The conditions listed in paragraphs 6.2.1, 6.2.3, 6.2.4, 6.2.5 and 6.2.6 are noteworthy as they are simply invalid as the Minister does not have any the authority under section 18 to issue fishing rights subject to these conditions! 

Monday, October 9, 2023

THE 2020 #FRAPFAILURE: WHY FRAP ANYMORE?

What is without question, is that the last three consecutive fishing rights allocation processes in 2013, 2016 and 2022 have been increasing failures. 

The most recent FRAP was not only 2 years late but the appeals process remains incomplete almost 2 years after the first rights were allocated! The catastrophic social and economic harms faced by historic right holders alone who unlawfully lost their rights back in February 2022 are simply ignored by the Minister. In fact, she is on record in her most recent press statement of 4 October saying that she is of the view that no applicant is being prejudiced by her appallingly delayed appeal decisions. 

The Minister is thus of the view that being unlawfully deprived on an income for 2 years is without prejudice. (It would be useful to understand if this Minister or any of her comrades would be willing to forgo an income for two years given that these wise cadres do not consider it harmful to be without incomes?)

South Africans are increasingly vocal about the desperate need to remove the ANC and its cancerous parasitic class of civil servant cadres from power next year. The same applies to a majority of the members of the SA fishing industry (although they will never publicly admit it). The corridor discussions are clear. If there is any serious hope that this country is able to rebuild, it will only be if the ANC is flushed into the sewers of history. 

From the perspective of the fishing industry, a new government could offer the incentive of a revised fisheries management regime and policy direction. One that moves us away from these destructive and corrupt fishing rights allocation processes to an alternative system. One that fundamentally steers policy toward growth and not redistribution. 

Shortly after the allocation of long term fishing rights in 2005, I had proposed that we start gradually migrating certain fisheries toward a system of tradeable fishing quotas - (at the time, it was proposed to start with KZN prawn trawl, Patagonian tooth fish and tuna long line). I remain of the opinion that the industrial fisheries should be managed in terms of a system of individually transferable quotas albeit subject to pre-negotiated performance objectives that give effect to national objectives as fishing quotas remain subject to regulation in terms of the public trust doctrine and fisheries must be exploited for the benefit of the greater public good. 

Government's involvement in the determination of who gets to fish what quotas must be extinguished as it clearly cannot determine who can best fish anything most efficiently and in the best interests of society and the economy.