The Minister of Fisheries and the department have conceded the review application that was brought by the South African Commercial Line Fishers Association ("SACLA") in February of this year.
On 11 August 2014, the State Attorney wrote to SACLA's attorneys stating that "our client [the Minister and the Department] intend conceding the review subject to successful negotiation with yourselves on certain issues." Despite requests for clarity on what these "certain issues", the State Attorney has not reverted to SACLA's lawyers.
This is even more incredible given that the State Attorney is certainly not in any position to negotiate a settlement given that they have missed all time periods to file a single set of papers explaining their decision; they have refused to discover a plethora of documents and records that were requested months ago and we all know that the Minister's own internal legal review of the process confirmed that the FRAP 2013 was unlawful on a number of levels. And given recent High Court decisions against the state (which included extremely harsh words for incompetent state attorneys who dragged matters out unnecessarily to the prejudice of taxpayers), we expect the Western Cape High Court to award a punitive costs order against the Minister and the department.
Our advice to SACLA is to now proceed with an application before a judge in chambers and obtain the order as set out in the initial papers, including (punitive) costs, as line fishers need to be reimbursed in full for their significant and unnecesary costs to date.
The effect of an order as applied for by the SACLA would be the following:
1. All line fishers that held rights as at 31 December 2013 (i.e. were long term right holders) would once again be considered right holders capable of fishing. This right to fish would remain in place until such time as a new rights allocation process is lawfully implemented, which will include a revised line fish policy passed by Cabinet, a new application form, fresh consultation processes and so forth;
2. All those persons that were granted rights as "new entrants" under FRAP 2013 will no longer be right holders and would have to stop fishing immediately as their "fishing rights" would be set aside. None of the new entrants opposed the review application.
3. Any other long term right holder in any other fishery such as the shark demersal and tuna pole sectors that were denied fishing rights under FRAP 2013 would be able to then apply to court and have their rights allocation process set aside based on the SACLA order.
Although we are told that the department's "senior management" have been awfully busy conceptualising the latest big "plan" to hit government speak - Operation Phakisa! - having much of the Cape Town winter in the balmy coastal village of Durban, these big ideas are frankly a waste of time and ill-advised when you can't do the basics such as allocating fishing rights, gazetting quota allocation fees (the last fees gazette was published on 10 September 2010!) and routing out the corrupt and inept. The department is like a novice walker talking about climbing Mount Everest next year but who still can't walk around Kirstenbosch Gardens without having to be stretchered away.
**It is important to note that despite more than 9 months having passed since the failed 2013 FRAP, the Minister of Fisheries has yet to gazette the section 25 grant of fishing rights fees as is required by law.