Sunday, February 23, 2014

Minister Desperately tries to Fix the Unfixable

On Sunday morning 23 February 2014, the Fisheries Minister desperately sought to fix the unfixable 2013 fishing rights allocation process (FRAP) by announcing three measures to appease fishermen. 

Firstly, the Minister announced that she appointed a law firm, together with Professor Halton Cheadle, to review the 2013 rights allocation process and advise her whether the process met legal muster. 

On this point, the appointment of Prof Cheadle must be welcomed. Halton served as the principle legal adviser to the 2001 and 2005 fishing rights allocation processes. Having worked extremely closely with Halton (whom I do idolise - I admit), I know Halton to be fiercely objective and perhaps one of the most impressive lawyers in this country today. There is no doubt that he will speak absolute to truth to  Tina Joemat-Pettersson. 

However, and quite frankly, even if Prof Cheadle advises the Minister that her 2013 process was flawed from the start as she failed to obtain Cabinet approval for any of the fishing rights allocation policies; that the consultation process was a vulgar violation of the obligations set out in the Promotion of Administrative Justice Act or that the rights allocation process itself is an abhorrent litany of untold examples of illegality from the failure to score criteria properly; or the allocation of rights to applicants who failed to demonstrate access to any fishing vessel; the allocation of fishing rights to people who live in Johannesburg or hundreds of kilometres from the nearest fishing slipway; or that new entrant applicants and right holder applicants were not scored and evaluated separately, there is nothing the Minister can do to reverse this national disaster! As the executive authority responsible for fishing quota allocations, she has wilfully presided over this catastrophic failure of basic due process and refused advice from competent experts in the field.

The Minister cant "un-allocate" fishing rights already allocated to dozens of people in Johannesburg and hundreds more that do not have a fishing vessel or have never fished in their lives. The Minister certainly cant fix the fact that she unlawfully gazetted the 2013 fishing rights allocation policies (despite Feike and others telling her repeatedly that she has no legal authority at all to do so - but she of course insisted on taking advice from the most incompetent and unqualified of staff like Desmond Stevens and Dennis Fredericks). The Minister certainly cant undo the inadequate and unlawful consultation process that was permitted to be undertaken during 2013. Consulting with fishing communities after the allocation of fishing rights is like trying a super-glue a mink vase after dropping it. 

The fact that the Minister has sought the assistance of Halton Cheadle is a clear indicator that the recent legal advice she has received from the likes of Advocate Johan de Waal (another legal adviser to the 2001 and 2005 rights allocation processes), only confirms what we have been saying for at least the past 12 months now. The 2013 fishing rights allocation process is unlawful and will not withstand judicial scrutiny. 

The second announcement by the Minister is that she has extended the fishing exemption process by a further 2 months with effect from 28 February 2014. This will mean that the exemption period will come to an end a mere week before the 2014 General Elections, confirming that there is very little chance that Tina Joemat-Pettersson will even bother to deal with the appeals that have been submitted to date. This second exemption in as many months is another admission of failure. These ad-hoc exemptions and extensions only further confirm a department and Minister lurching from one crisis to the next. 

It is important to note that the granting of this exemption will not affect the line fishers' court case currently before the Western Cape High Court. The matter will be heard on an unopposed basis tomorrow (Monday 24 February) morning at 10am. The review application itself remains scheduled to be heard in April. 

Third, the Minister admitted that the 2013 rights allocation process appears to be tainted by mal-administration and illegality. This sudden admission is of course contradicted by her two previous press statements issued in January which painted a rosy and perfect picture of the 2013 FRAP. We wonder what made her change her mind and accept what we have been saying since about 31 December 2013! But of course will she hold Desmond Stevens and his cronies accountable? Will Mr Stevens be subjected to a proper and independent forensic lifestyle audit? And will ANC officials and their families hand back their ill-gotten fishing rights?

We obviously do not believe the Minister for a moment. We certainly do not believe that the Minister is remotely interested in ensuring that the tainted 2013 FRAP is fixed and its unlawful decisions reversed. The Minister has a history of being deceitful and dishonest when forced into a corner. When the public protector found against her on two separate occasions she tried to detract from the findings by coming up with the same cock-a-many story about being bribed and threatened by some non-existent fishing company. Then, when the unlawful R800 million tender to Sekunjalo Investments was exposed, she threatened to expose massive corruption in her department and to commence a judicial inquiry. Nothing happened and of course not a single corrupt staff member was arrested, disciplined or fired! 

We have little doubt that the Minister will now try and use this red-herring investigation and the 2-month exemption allowance as a desperate attempt to delay any review application until at least after the 2014 General Election so she can avoid the public humiliation of being the first fisheries minister of the 21st Century to once again preside over an unlawful and illegal fishing allocation process. 

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