Wednesday, January 15, 2014

DAFF Sector Scoresheets: Unlawfulness Exemplified

Finally the scoresheets for fisheries such as the tuna, squid and line fish sectors are trickling in. An examination of these so-called scoresheets is yet further confirmation of the blatant arbitrariness and unlawfulness of this process! 

The scoresheet scores almost nothing of relevance. Firstly, there is zero evaluation of application for compliance with any of the peremptory criteria - ie. compliance with the peremptory lodgement, material defect and exclusionary criteria listed in the 2013 General Fisheries policy and each of the sector policies. So it is safe to infer that applications were not physically evaluated and checked for compliance with these criteria as they are spelt out in the fisheries policies. These peremptory criteria include compliance with the provisions of the MLRA, the form of the applicant, timeous and proper lodgement of the application, whether the form was signed and commissioned and critically, whether the applicant had nominated access to a suitable fishing vessel for that sector.

The failure to evaluate these peremptory criteria immediately renders the decision-making process unlawful and thus susceptible to review and an urgent interdict. 

However, if one considers the so-called "balancing criteria", matters are only made worse. Suddenly, an applicant is scored for being a South African person as defined under section 1 of the MLRA. By making this exclusionary criterion a scoring or "balancing" criterion, the decision-maker has acted ultra vires (or without legal authority). This again renders the entire decision-making process susceptible to an urgent interdict as such conduct is unlawful. 

Further, the scoring criteria fails to recognise and score key evaluation criteria. So local economic development and proximity to landing sites and coastal villages are simply not even considered. This would explain how applicants in Midrand and Cresta, Gauteng, scored fishing rights while 4th generation line fishers in Arniston, Struisbaai and Kalkbay were excluded. Also not even considered and scored is the key criterion of investment in fishing gear and vessels. How can such a critical aspect of 8 years of past right holding be completely ignored? These two failures easily render the evaluation criteria as being irrational and an unlawful failure to take into consideration proper criteria. 

If one considers the Traditional Linefish Policy, it states that the decision-maker will evaluate and score applications on criteria including local economic development, investment and reliance on line fish for ones income. The failure to adhere to the Policy directives renders Mr Stevens' decisions - whether in the line fish sector, squid, tuna pole, hake handline or any of the other sectors  unlawful and therefore reviewable. 

Finally, it is apparent that existing long term right holder applicants and new entrant applicants were evaluated and scored on exactly the same criteria. This is perhaps the most glaring illegality of the process and flies directly in the face of the 2005 Supreme Court of Appeal decision in Scenematic 14.

In short, the scoresheets only serve to confirm that the 2013 FRAP process was rushed to meet an unattainable deadline and that the scoring and evaluation of applications across the 8 fishery sectors was certainly arbitrary, irrational, ultra vires the authority of the decision-maker and therefore unlawful. 

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