Friday, November 9, 2018

Dead Fishers and Fishing Rights

During the course of my three month appointment as Chairperson of Minister Zokwana's West Coast rock lobster appeals advisory team charged with advising on the more than 2000 appeals submitted to the Minister for decisions, it became apparent that the Fisheries Management Branch had strangely decided to declare applicants for fishing rights who passed away either just before or after submitting fishing right applications persona non grata and summarily refused their applications. 

Although my advices to the department that follow below were intended for the consumption of my client's staff, it has become evidently clear that a staff member who was a recipient of various such "confidential" advices and documents shared these with her partner who coincidentally is employed by a large South African fishing group. I have seen the evidence of this unlawful conduct on whatsapp chats. Even though these patently unlawful and corrupt communique's have been shared with the department, there has not been any consequences for the corrupt official concerned and I can thus only assume the employer approves of such corrupt and unlawful disseminations of confidential advices to certain corrupt fishing interest groups. Given that these advices are now in the "public" realm and openly for sale to corrupt parties (and thus no longer confidential), it cannot be fair to law-abiding right holders and interested parties to not know that the departmental practice of refusing dead applicants fishing rights is unlawful. This is particularly important given that small-scale commercial applicants will shortly be applying for their fishing rights in sectors such as abalone, line fish, oysters, mussels and hake handline. 

My reasoning follows. 

The decision to refuse applicants fishing rights simply because they had died prior to the submission of their application or after the submission of an application for a fishing right appears to be premised on an incorrect conflation of two separate and distinct decision making processes, which need to be made under separate binding departmental policies. 

Importantly, in terms of our laws of succession (correctly encapsulated under the General Policy of 2013), the rights and interests of the deceased right holder / applicant transfers automatically upon death to his / her executor who represents the “late estate”. Accordingly, any decision on an application for a fishing right by a deceased individual must follow the following 2-stage process - 

1. Step 1 is to enquire whether the applicant (i.e. the deceased person) qualifies for a fishing right under the MLRA and policy and criteria for that specific fishery based on the content of his/her application and history. If yes, the right MUST be granted to the LATE ESTATE represented by the EXECUTOR and the EXECUTOR must then see to transferring the right in terms of the Laws of Succession (i.e. whether to a beneficiary named in a valid will (testamentary succession) or if no will, then the law of intestate succession will apply). 

2. Step 2 will be for the department to then decide a section 21 transfer application filed by the legal beneficiary of that right (whether in terms of testate or intestate succession) and the department must then decide whether the transferee meets the stated criteria of the Transfer Policy and section 21 of the MLRA. 

Accordingly, a deceased applicant cannot automatically be refused a right in terms of section 18 of the MLRA. But neither is the lawful beneficiary of that right automatically entitled to a positive decision to have the fishing right transferred to him/her under section 21 of the MLRA.