Tuesday, December 31, 2013

The Tuna Pole Decisions

The Tuna Pole General Published Reasons document suffers from the same fatal legal flaws as the KZN Prawl Trawl GPR, including the lack of any rational connection between the decisions taken and the attainment of any policy objectives. Once again, the GPR fails to explain to what extent any of the stated policy objectives have been met, including the levels of black empowerment in the fishery post the allocation of these rights. 

However, there are a number of additional concerns with the tuna pole GPR. These include the following:

1. Some 107 long term right holders appear to have been arbitrarily denied a second set of long term fishing rights. Once again, applicants are simply listed with no scores attached to their names and no scoring and weighting attaching to criteria are made available in the GPR.

2. The delegated authority states that the applications of 20 co-operatives have been reserved pending adoption of the Second MLRA Amendment Bill which seeks to, inter alia, permit co-operatives to hold  fishing rights. This decision to reserve fishing rights for co-operatives is unlawful and immediately reviewable. Section 18(4) states that "only South African persons shall acquire or hold rights in terms of this section". The fact that the various fishing sector policies and applications made provision for co-operatives to acquire fishing rights before  the MLRA had been amended, renders any decision to even consider an application by a co-operative for a fishing right under section 18 unlawful. An application by a co-operative ought to have been immediately excluded in terms of section 18, read with section 1, of the MLRA.

3. It is apparent (more so with the Tuna decisions) that new entrant applicants and right holder applicants were evaluated against the same criteria and that they were even ranked and compared against each other! This of course would be entirely unlawful and contrary to the evaluation processes adopted for the medium and long term rights allocation processes. The legal rationality of streaming applicants into "new applicants" and "right holder" categories was unanimously recognised by the Supreme Court of Appeal in 2005 Scenematic Fourteen judgement.

As with the KZN Prawn Trawl GPR, the decision to allocate fishing rights for a 7 year period is irrational and unsupported by any legitimate, rational or lawful consideration. The decision to allocate fishing rights for a reduced period without any rational justification is in itself reviewable. 

Finally, I must emphasise that because the decisions in all of the 8 fishing sectors have been taken by the acting DDG, Desmond Stevens, the entire decision-making process is susceptible to a successful judicial challenge on this ground alone. The reason for this view is quite simply that Mr Stevens lacks the very  elementary and minimum qualifications as set by the Department of Public Service & Administration itself for the post of Deputy Director-General of the Fisheries Branch and as such cannot reasonably be expected to take lawful and informed decisions pertaining to the management of fisheries. One need only consider the recent findings of the Public Protector in her report titled "Docked Vessels" concerning the constitution of the bid evaluation committee that was charged with evaluating a complex vessel management tender and where none of the officials on the bid committee were remotely qualified to consider and evaluate the various tenders submitted. There are of course a number of recent judicial decisions to support this view.

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