Sunday, March 16, 2014

Joemat-Pettersson takes Public Protector to Court

On 16 March 2014, the Minister of Fisheries, Tina Joemat-Pettersson, stated that she would be taking the Public Protector's Report ("Docked Vessels") on review before the North Gauteng High Court. The Docked Vessels Report made 6 adverse findings against the Minister and her department, including  that the R800 million tender allocation to Sekunjalo Marine Services Consortium ("SMSC") was unlawful and that as a result South Africa's marine fisheries management environment was severely prejudiced and compromised on a number of fronts. 

In summary, the Public Protector had found that - 

1. The Minister and her department insisted on allocating an illegal tender to SMSC in November 2011 despite a legal opinion and a forensic audit report by PWC that warned against the tender allocation. This has been admitted to by the Department and its Minister. The unlawful awarding of the tender was only reversed after Smit Amandla launched urgent High Court proceedings agains DAFF and SMSC. DAFF certainly did not terminate the unlawful allocation of the tender to SMSC voluntarily

2. The Minister's subsequent and inexplicable conduct resulted in South Africa's fleet of patrol and research vessels being seriously damaged by incapable Navy, consequently resulting in no patrols and research for a period of some 20 months, which in turn cost South Africa dearly because of unquantifiable poaching and a loss of research data. This has been admitted to by the Department in writing to the Portfolio Committee

3. The Bid Evaluation Committee was comprised of persons who lacked the skills or understanding to evaluate such a complex tender. The BEC's lack of expertise is best epitomised by the conduct of one Joseph Sebola who decided to score Sekunjalo 5/5 for all scoring criteria and Smit Amandla 1/5 despite its track record and expertise in the field in question. This is not disputed by the Department and the Docked Vessels Report confirmed that none of the officials, including Sebola, could explain their conduct. In fact the only remotely qualified person on the BEC, Dr Johann Augustyn, was invited to be part of the BEC and provided the requisite tender documents 20 minutes before the decision was taken to award the bid to SMSC! 

4. The Minister is guilty of a criminal offence in that she sought - via the Office of the Minister of Justice - to unlawfully halt and interfere with the investigation. This is a fact supported by a letter sent by the Minister of Justice to the Public Protector. This is a criminal offence under the Public Protector Act. On this score alone, the Fisheries Minister ought to be sacked and criminally charged. The Democratic Alliance has indicated that it will be pursuing criminal charges against the Minister of Fisheries. The Minister has never refuted this serious allegation, which is ultimately supported by a letter from the Minister of Justice to the Public Protector. On this ground alone, Minister Joemat-Pettersson is unfit to hold public office and should be removed.

To date, the Minister and the President have simply ignored the Public Protector's findings on these serious undisputed findings and violations of the Constitution and the Public Protector Act. Why has neither Mr Sebola nor any official that participated in the admittedly unlawful R800 million tender allocation been sanctioned or fired to date? Instead, corruption and maladministration at DAFF has continued to fester to the point where the 2013 rights allocation process is now also subject to various investigations. On 23 February 2014, the Minister mouthed these empty words - 

"...there do seem to be legitimate concerns, either relating to poor administration of the applications, or questionable judgements by the delegated officials... I cannot uphold or overturn a decision which may have been wrong in the first place. This is a caring government which seeks to address poverty and inequality...We are also a government which will not condone corruption of any sort, and all allegations that are made will be fully investigated. If there are breaches, the responsible officials will face the full might of the law."
Yeah RIGHT! Show me a single corrupt official that has faced the "full might of the law". The only employees Tina Joemat-Pettersson has acted against were those that tried to do the right thing for fisheries and then they won their unfair labour practice cases against her - think Sue Middleton.

The decision to take the Public Protector to court on the bases made public by the Minister appears to be nothing more than a crude attempt to threaten and bully this Constitutionally constituted office. 

Firstly, the Public Protector's powers emanate directly from section 182 of the Constitution - the grundnorm of our society. The Public Protector has the power - 

• (a)  to investigate any conduct in state affairs, or in the public administration in any sphere of government, thatis alleged or suspected to be improper or toresult in any impropriety or prejudice;

• (b)  to report on that conduct; and

• (c)  to take appropriate remedial action.

Turning to the four findings against the Minister which are now being touted as being reviewable, I point out the following:

1. With respect to the finding of wasteful or fruitless expenditure, the Public Protector's findings on this score is undeniably evidenced by the fact that the grossly arrogant and negligent conduct of the Minister by denying SMIT AMANDLA a proper 90 day vessel handover period to the Navy resulted in massive damage to each and very research and patrol vessel. As a consequence of the Minister's conduct, the Navy were never briefed on how these vessels were to be maintained, managed and operated. It is the taxpayer that has had to foot the possible R100 million repair bill for these vessels. The Public Protector correctly found that had the Minister simply ensured a responsible, reasonable and managed vessel handover period, the South African fishing industry and tax payer would not now be paying another service provider tens of millions of rands to repair vessels that were in optimal working condition on 31 March 2011 when SMIT AMANDLA handed these R1 billion vessels over to the Navy and DAFF. The Minister ought to be reminded that the Public Finance Management Act, 1999, defines "fruitless and wasteful expenditure" to mean "expenditure which was made in vain and would have been avoided had reasonable care been exercised". 

2. The perceived loss of confidence by the fishing industry is a factual finding by the Public Protector that is reasonably and necessarily inferred from the fact that for the first time in the history of South Africa, our oceans were completely un-patrolled and crucial research cruises missed or delayed and then undertaken by industry vessels and at the behest of the fishing industry. Moreover, the loss of confidence by the fishing industry in the department's ability to manage fisheries is evidenced by the failure by fishing companies to invest in new vessels and more efficient fishing technologies (especially much needed deep sea trawl vessels, which are on average more than 23 years old). Further, consider the fact that poaching of our lobsters and abalone are at record levels. In 2013, WWF-SASSI downgraded the famed west coast rock lobster to its Orange list as lobster stocks are now 97% overfished.

3. The denial that "fish stocks have been decimated" as a result of the fact that for 20 months South Africa had no patrol vessels at sea is simply not borne out by reality. The fact is that for some 20 months from March 2011, South Africa's oceans remained un-patrolled. Indeed to this very day, we have not undertaken single patrol cruise to the Southern Oceans to monitor and protect our Marine Protected Area around the Prince Edward Islands. During 2013, the Department itself admitted to the Portfolio Committee that because its patrol vessels were tied up, it could not deny that our oceans are being pillaged as it had no way of monitoring IUU fishing activities. This denial is further contradicted by her Department's most recent report titled, "Status of the SA Marine Fishery Resources", which confirms the abysmal state of most our fish stocks and especially our inshore stocks, such as lobsters, line fish and abalone which are simply being pillaged at alarming rates, while we have no way of telling how many high-value deep-water sharks, tooth fish, roughy, oil fishes, tunas, swordfishes, pilchards and other fish are being stolen by foreign vessels knowing that SA's EEZ is unpatrolled. 

4. Finally, it is incomprehensible that the Minister seeks to insist that the 2013 quota allocation process was "executed on time". According to the Department's own timetable, decisions on these applications were supposed to have been made public back in October 2013 (although this was initially stated to be September 2013) with the appeals being finalised by December 2013. Instead, the Department only announced its disastrous decisions (from which it has been back-peddling ever since) on 30 December 2013, less than 48 hours before some 1000 fishing rights expired. To date, less than half of the available fishing effort has been allocated with no prospect of finality on the appeals either. 

And of course to compound the crisis, abalone fishing rights must be allocated in less than 90 days and to date the Minister and her department have yet again done nothing in preparation - no consultation yet with industry on the future of this fishery; no draft policy; nothing. Any allocation in this fishery will no doubt be late and crisis ridden as well. 

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