On 17 April 2015, the Fisheries Department (DAFF) issued a press statement confirming that the Fisheries Minister is set to process all appeals lodged against decisions taken in terms of the 2013 Fishing Rights Allocation Process, except for those appeals lodged in the traditional line fish sector. The line fish appeals cannot be considered in light of a current court order authorising all long term line fish right holders (as at 31 December 2013) to continue to operate until such time as the judicial review application is finally decided.
However, with respect to the appeals lodged in the remaining 7 sectors, including Hake Handline, Oysters, Mussels, KZN Prawn Trawl, Demersal Shark, Tuna Pole and Squid, appellants must note the following:
1. The Harris Nupen Molebatsi report confirmed that in so far as the appeals process is concerned, the Department’s refusal to make available all scoresheets and application forms pertaining to all other applicants in the fishery concerned is unlawful. Every appellant has a right to access these scoresheets.
2. Accordingly, appellants have a legal right to first obtain all the comparative scoresheets and any application forms and documents related to the decision-making process for that particular fishery BEFORE their respective appeals may be considered. As such, appellants must immediately lodge requests for the following documents from DAFF:
2.1 Scoresheets for all applicants in the fishery concerned;
2.2 Copies of application forms and annexures submitted by all applicants in the fishery concerned. Access can be provided by allowing appellants the right to view applications at DAFF’s offices;
2.3 Any other documents used during the decision-making process, such as databases, records of right holder catch returns, levy payments and so forth.
3. Once the appellant is provided with the requested documents, and even though the applicant may have lodged an appeal in 2014, the appellant has the right to supplement its appeal based on the additional documents provided.
4. Until all appellants are provided with the above requested documents and an appropriately determined revised appeal deadline date is provided by the Minister, no appeal can lawfully be considered and decided.
5. Key grounds of appeal that should be raised are the rational and lawful basis for setting aside the number of rights for appeals by the Acting DDG in December 2013, the legal basis upon which new entrants were permitted into the fishery, the failure to exclude applicants that failed to comply with exclusionary criteria such as the requirement to prove access to a suitable fishing vessel, the rationality for using certain criteria as “balancing” criteria and not scoring important criteria such as “investments in vessels and infrastructure", "reliance on the resource", "local economic development" and proximity of the applicant’s domicile to the applicable fishing grounds. These were all serious, if not fatal flaws, that were identified by the findings of the Harris Molebatsi Report.
6. Finally, there are numerous other findings in the Harris Molebatsi and Emang Basedi Reports concerning the 2013 FRAP process that cannot be cured by an administrative appeal process. These include an unlawful consultation process that preceded the allocation process, the fact that the application forms do not speak to the various fishing policies and criteria and the allegations of maladministration and possible corruption during the fishing rights allocation process.
DAFF's press statement can be viewed here.