tag:blogger.com,1999:blog-20709949572230074162024-03-17T20:04:03.329-07:00Feike Natural Resource Management AdvisersShaheen Moollahttp://www.blogger.com/profile/16437200534331608596noreply@blogger.comBlogger637125tag:blogger.com,1999:blog-2070994957223007416.post-12150671823888312642023-12-26T09:45:00.000-08:002023-12-26T09:45:03.176-08:00Attention All Category B Right Holders in the Hake Inshore Trawl Fishery! <p style="text-align: justify;"> On 17 November 2023, the Fisheries Minister launched an urgent interdict application that sought to stop ALL Category B right holders in the hake inshore trawl fishery from fishing in 2024. She wanted the courts to interdict her staff from processing and issuing hake inshore trawl permits and to stop all Category B's granted permits from fishing. </p><p style="text-align: justify;">The interdict application was opposed by a number of Category B right holders for obvious reasons. </p><p style="text-align: justify;">Arguments in this application were heard on Thursday 14 December 2023. The Minister conceded that her request to interdict every single Category B right holder would be over broad and the court would never permit this. Effectively, the Minister conceded that right holders LETAP CC, Mayibuye Fishing, Fisherman Fresh CC, Premier Fishing, Full Deck Investments, Dazelle Traders & Offshore Fishing would always qualify for a right despite any attempts by her to re-score their applications. </p><p style="text-align: justify;">We have now been told that the Department is seeking to enforce this interdict "application" despite there being no interdict in place. </p><p style="text-align: justify;">In short, the Department MUST process and issue all hake inshore trawl fishing permits. If any Category B right holder's permit application is not being processed or if a permit already issued is "cancelled", this conduct would be unlawful and these right holders are encouraged to contact us. </p><p style="text-align: justify;"><u style="font-weight: bold;">NOTE:</u> Permits cannot be cancelled without due process and the only due process provisions allowed under the MLRA is the due process provision encapsulated under Section 28 of the MLRA. So any unilateral cancellation of a permit already issued would be unlawful. </p>Shaheen Moollahttp://www.blogger.com/profile/16437200534331608596noreply@blogger.com0tag:blogger.com,1999:blog-2070994957223007416.post-83026168319991285022023-12-26T09:26:00.000-08:002023-12-26T09:26:14.014-08:00#FRAPFAILURE: A Summary of FRAP Court Cases Against the Fisheries Minister<p>The Fisheries Minister presently has more than a dozen court cases challenging her FRAP 2016 AND FRAP 2020 appeal decisions. </p><p><b><i>Hake Inshore Trawl</i></b> </p><p style="text-align: justify;">Here the minister currently faces review cases by <b>Hacky Fishing, Sevlac Investments and Letap</b>. In the Hacky matter (which the Minister remain in contempt of a court order from September 2022), the Minister has attempted to self-review her hake inshore trawl decisions - effectively admitting that she and her advisors have repeatedly acted unlawfully when scoring Category B applicants in that fishery. </p><p style="text-align: justify;">We have referred to the Minister's conduct as being an example of a "scorched hake" policy as she seeks to stop all Category B right holders from fishing so she can re-score their section 4 "suitable vessel" access data even though their rights have not been reviewed and set aside by any court of law. </p><p style="text-align: justify;">So in this fishery where rights were first allocated 7 years ago, this Minister admits she still cannot score a single simple section correctly. <u>Does our esteemed fisheries minister and her clever advisors not know what a hake inshore trawl vessel is?</u> Clearly they dont as they keep confirming that they just cannot get this right! </p><p style="text-align: justify;"><b><i>Horse Mackerel</i></b></p><p style="text-align: justify;">As with hake inshore trawl, the Minister is seeking to self-review her decisions here as well! And these decisions also stem from FRAP 2016! In addition, there are 4 review applications outstanding in this fishery. </p><p style="text-align: justify;">Essentially, in both hake inshore trawl and horse mackerel, the Minister has asked the court to stop all Category B right holders from fishing until she gets her own confused and chaotic house in order. Both interdict applications were opposed in mid-December.</p><p style="text-align: justify;"><b><i>KZN Prawn Trawl</i></b></p><p style="text-align: justify;">There is a single review application by Dyer Eiland Visserye against the Minister's decision to refuse them a right despite being the higher scoring appellant. </p><p style="text-align: justify;"><b><i>Traditional Line Fish</i></b></p><p style="text-align: justify;">There are 2 review applications by appellants in the KwaZulu-Natal fishing zone.</p><p style="text-align: justify;"><b><i>South Coast Rock Lobster</i></b></p><p style="text-align: justify;">Risar Fishing CC is challenging the legality of the quantum allocation methodology employed in that fishery. </p><p style="text-align: justify;"><b><i>Hake Long Line</i></b></p><p style="text-align: justify;">Three appellants in Category A and B launched urgent review applications last week. It is expected that a further 2 reviews will be brought next week. </p><p style="text-align: justify;"><b><i>Tuna Pole</i></b></p><p style="text-align: justify;">Three appellants filed review applications in the tuna pole fishery - 2 Category A appellants and 1 Category C appellant. These 3 applications are set to be heard in February 2024. </p><p style="text-align: justify;"><b><i>Small Pelagics</i></b></p><p style="text-align: justify;">We will update once final decisions by clients are taken to review these decisions or aspects of the decision. </p><p style="text-align: justify;"><br /></p>Shaheen Moollahttp://www.blogger.com/profile/16437200534331608596noreply@blogger.com0tag:blogger.com,1999:blog-2070994957223007416.post-36245624252983956242023-12-26T08:50:00.000-08:002023-12-26T08:50:59.714-08:00Finally. Months Late. The (Unlawful) Small Pelagic Appeal Decisions <p style="text-align: justify;">On the evening of 22 December 2023, the Fisheries Minister issued her appeal decisions in the anchovy and pilchard fishing sectors. The decisions came almost 18 months after the appeals were filed and three months after the Minister first undertook to make these decisions public by 30 October 2023.</p><p style="text-align: justify;">The Minister's decisions are yet again an example of poor decision-making coupled with appalling contempt for the fishing industry. The pilchard decisions published lacked the full record with dozens of appellants' names missing from the decision table. A "corrected" decision table was later added to the Department's website but does not record an apology from the Minister or any written confirmation that this is the actual set of decisions taken by the Minister. It is effectively an anonymous set of appellant names. </p><p style="text-align: justify;">Substantively, the Minister granted a total of 80 anchovy rights and 67 pilchard rights. </p><p style="text-align: justify;"><b><i>Pilchard rights</i></b></p><p style="text-align: justify;"><b><i>* 60 category A</i></b></p><p style="text-align: justify;"><b><i>* 3 category B</i></b></p><p style="text-align: justify;"><b><i>* 4 category C</i></b></p><p style="text-align: justify;"><b><i>Anchovy rights</i></b></p><p style="text-align: justify;"><b><i>* 70 category A</i></b></p><p style="text-align: justify;"><b><i>* 4 category B</i></b></p><p style="text-align: justify;"><b><i>* 6 category C</i></b></p><p style="text-align: justify;">The appeal decisions are unlawful on at least two significant fronts. The first is that the Minister of Fisheries gazetted policy regulating the allocation of fishing rights in a single small pelagic fishery, comprising a targeted anchovy and sardine fishery. This is the “<b><i>Policy on the Allocation and Management of Small Pelagic Commercial Fishing Rights: 2021</i></b>”. The delegated authority unlawfully and <i>ultra vires</i> abrogated to herself policy and law-making authority to separate applications for pilchard and anchovy directed fishing rights. This was also undertaken without consulting any member of the fishing industry or the South African Pelagic Fishing Association. This is a substantial and fatal violation of administrative law, which renders the delegated authority’s decisions in the pilchard and anchovy fisheries reviewable. </p><p style="text-align: justify;">The second is that the Minister's appeal decisions in the anchovy fishery reduced the allocations of existing right holders by significant quantities in many cases. The Minister had failed to consult with those right holders granted rights on 28 February 2022 before reducing their allocated quotas. This is a violation of section 80(3) of the MLRA.</p><p style="text-align: justify;">On the first ground, the entire small pelagic fishing rights allocation process is reviewable. On the second ground, the Minister's decision to introduce rights to additional right holders in the anchovy sector can be interdicted and the Minister will be forced to comply with section 80(3) of the MLRA (as is the case with her squid appeal decisions).</p><p style="text-align: justify;"><br /></p><p style="text-align: justify;"><b><u>The Anchovy Decisions</u></b></p><p style="text-align: justify;">The anchovy appeal decisions are deeply flawed and susceptible to review. For one, the Minister effectively confirms the scoring criteria adopted by the Delegated Authority were not clear. The Minister's appeal decision effectively seeks to contrive and recreate the scoring and evaluation rules. She also promises to make public some "EXCEL" spreadsheet which will explain these scoring rules and criteria. This is untenable. </p><p style="text-align: justify;">These scoring rules and criteria were supposed to have been published clearly and unambiguously by the DA in her GPR. Appellants would then have been able to construct proper and comprehensive appeals challenging their respective application evaluations. </p><p style="text-align: justify;">The Minister's GPR also bizarrely states that she adopted revised calculations where the DA's calculations and scoring methodologies were incorrect. She also rescored all applicants (even those whose applications were not before her). Both statements confirm fundamental due process violations. </p><p style="text-align: justify;">For one, the Minister fails to detail and explain which criteria were rescored and calculations revised. This is simply unacceptable. These revised calculations need to be explained and the impact on every single applicant demonstrated. The Minister's statements are vague, irrational and arbitrary. </p><p style="text-align: justify;">Secondly, the Minister cannot change the scoring of or even consider an application that is not before her. Accordingly, her statement that she rescored all applications in this sector is unlawful. </p><p style="text-align: justify;">Finally, it is apparent that the minimum score required by Category C new entrant applicants to qualify for an anchovy right is 64.81% points and yet no less than 2 appellants scored above this and did not qualify for a right. This is simply arbitrary and unlawful decision-making. </p><p style="text-align: justify;"><b><u>The Pilchard Decisions</u></b></p><p style="text-align: justify;">Like the anchovy decisions, these decisions follow a similar path of irrationality, nonsense and unlawfulness. As with the anchovy decision, the Minister effectively acknowledges the deeply flawed scoring methodology and criteria adopted by the DA. The minister tries to use her appeals GPR to contrive and recreate the scoring and evaluation rules. She also promises to make public some "EXCEL" spreadsheet which will explain these scoring rules and criteria. </p><p style="text-align: justify;">In both records of decisions, the Minister does not address the appeal grounds raised by appellants. What she instead does is to "fix" all those scoring rules and criteria that were so unclear in and missing from the DA's GPR. The Minister "appeal decision" ROD is effectively a poor "do-over". And this is a fundamental violation of applicants' rights as it confirms that appellants were never able to properly file appeals due to the lack of clear information in the DA's GPR setting out how each criteria was scored and weighted and how information was used and interpreted. </p>Shaheen Moollahttp://www.blogger.com/profile/16437200534331608596noreply@blogger.com0tag:blogger.com,1999:blog-2070994957223007416.post-24857299769407218172023-11-17T05:54:00.000-08:002023-11-17T05:54:20.832-08:00The Hake Long Line Appeal Decisions: #FRAPFAILURE Marches Forth<p style="text-align: justify;">On 7 October 2023, Minister Creecy issued her hake long line appeal decisions. Her decisions have resulted in the allocation of a total of 106 rights in the hake long line fishery, which is a reduction from the 123 right holders that were active in the fishery before 28 January 2022. </p><p style="text-align: justify;">The decisions are certainly reviewable on a number of grounds and we are in the process of preparing review applications for a number of unsuccessful appellants. We will keep you updated as these matters progress through the Western Cape High Court. </p><p style="text-align: justify;">But what has become clearly apparent is that the Minster has made glaring errors in the evaluation and scoring of these appeals. For one, she has inconsistently dealt with the issue of compliance with laws such the Employment Equity Act, Skills Development Act and Skills Development Levies Act. She has unlawfully decided to deny appellants scores for these criteria despite the fact these laws do not apply to them and as such these appellants cannot be prejudiced. </p><p style="text-align: justify;">A second glaring and jarring error is the failure to simply add up scores correctly! We have come across a number of cases where the weighted scores simply do not add up to the total scores assigned by the Minister. In at least two cases, this error alone resulted in appellants being unlawfully denied rights because correctly computed, their respective total scores exceed the minimum scores required for hake long line fishing rights. </p><p style="text-align: justify;">And of course, we also have the Minister's nonsensical attempts at explaining how certain criteria were scored and evaluated. Take for example her attempt at fixing the Delegated Authority's ridiculous scoring criterion for "employee share schemes". Creecy says: "In order not to prejudice any applicant, I applied a minimum score of 1 consistently to all applicants who had no share scheme or who had responded yes to share schemes but provided no % values on this aspect, or where schemes were not applicable, were allocated zero (0)."</p><p style="text-align: justify;"><b><u>OK NOW READ THAT AGAIN SLOWLY. RE-READ IT AGAIN, EVEN SLOWER. NOW SKETCH THE STUPIDITY OF WHAT WE HAVE HERE!</u></b></p><p style="text-align: justify;">Creecy does not wish to prejudice any applicant. (The very purpose of a scoring regime in such competitive processes IS TO PREJUDICE! Otherwise you dont get to distinguish!).</p><p style="text-align: justify;">Creecy has also decided to score those with no share schemes <u>1 point</u>. She has then ALSO decided to score those applicants that had no share scheme or that had responded yes to share schemes but provided no % values on this criterion <u>1 point</u>. </p><p style="text-align: justify;">But then those applicants to whom share schemes are not applicable (who are these and what makes one qualify for this inapplicable status?), get <u>zero points</u>! </p><p style="text-align: justify;">So non-compliance is rewarded. But it gets worse.</p><p style="text-align: justify;">So then one must assume she is going to tell us about those that do have share schemes and how they are scored and weighted. The next sentence starts ... and ends "scored entities with no ..."</p><p style="text-align: justify;">And that is that! She literally ends the criterion mid-thought. This is supposed to be a ministerial record of decision that decides the futures of hake long line fishing companies for the next 15 years and the Minister cant even be bothered to ensure that she adopts a record of decision that even tries to make some semblance of sense... or has complete sentences. </p><p style="text-align: justify;">What is grating is that these vulgar and stupid errors are made by people literally sucking at the teats of taxpayers living large and "earning" fat salaries while ruining the lives of their "subjects". And they dont give a damn. What they produce shows they simply have no self-worth or self-respect or even shame. They simply expect you to accept the garbage they produce and be grateful they bothered to even publish these decisions. </p>Shaheen Moollahttp://www.blogger.com/profile/16437200534331608596noreply@blogger.com0tag:blogger.com,1999:blog-2070994957223007416.post-91616949690358915342023-10-22T08:25:00.000-07:002023-10-22T08:25:16.148-07:00#FRAPFAILURE: Creecy's Squid Appeal Decisions Unravelling<p style="text-align: justify;">On Friday 20 October 2023, Barbara Creecy's appeal decisions of 12 June 2023 to introduce new entrants to the fishery and reduce the effort allocations of the historic right holders was interdicted pending a review application which has to be brought before the end of October 2023. </p><p style="text-align: justify;">The court in <i style="font-weight: bold;">Visko Seeprodukte & 40 others v The Minister of Forestry, Fisheries and Environment & 48 Others</i> gave a clear indication as well that the review will likely succeed which will mean that the Minister's squid appeal decisions will be reviewed and set aside and she will have to start the squid appeals process afresh.</p><p style="text-align: justify;">However, Friday's court decision has a significantly broader impact than just halting the unlawful allocation of rights to new entrants in the squid fishery. </p><p style="text-align: justify;">Judge Salie's judgement makes it clear that the Minister cannot simply allocate additional fishing rights on appeal without first consulting with every other existing right holder in the fishery. Section 80(3) of the Marine Living Resources Act requires the Minister "<b><i>to consider any matter submitted to him or her on appeal, after giving every person with an interest in the matter an opportunity to state his or her case</i></b>."</p><p style="text-align: justify;">This legal obligation on the part of the Minister was made clear by the Supreme Court of Appeal in <i style="font-weight: bold;">Minister of Environmental Affairs and Tourism and Others v Atlantic Fishing Enterprises (Pty) Ltd and Others </i>20 years ago.</p><p style="text-align: justify;">The legal effect of Judge Salie's judgement is therefore significant. The Minister's appeal decisions where she introduced additional right holders in the hake deep-sea trawl and South Coast rock lobster fisheries resulting in the existing right holders "losing" quota are therefore all susceptible to judicial review because the Minister failed to first consult with the existing pool of right holders about the reduction of their respective individual fishing rights. </p><p style="text-align: justify;">Friday's judgement conceivably will also affect those appeal decisions even where the net effect of the appeal decisions did not result in the existing right holders losing quota or effort because the addition of more right holders to the fishery would affect the fishing and sustainability interests of right holders. </p>Shaheen Moollahttp://www.blogger.com/profile/16437200534331608596noreply@blogger.com0tag:blogger.com,1999:blog-2070994957223007416.post-89984487359206135142023-10-11T05:47:00.002-07:002023-10-11T05:47:45.219-07:00Hake Deep Sea Trawl Fishing Permits: Can Successful Appellants Apply Now?<p style="text-align: justify;">I have had a number of urgent enquiries from both new entrant and historic right holder appellants who had successfully appealed for hake trawl fishing rights about applying for their section 13 fishing permits. </p><p style="text-align: justify;">They are being told by DFFE that they can only apply in January 2024 for their permits. Is that correct? If it is, it could be a hollow victory as many have effectively run out of cash having been surviving for the past 2 years on savings.</p><p style="text-align: justify;">A study of the hake trawl rights allocation letter is revealing. Paragraph 3 of the letter states clearly that the right commences on the signature date of the letter - ie 5 October 2023. </p><p style="text-align: left;"></p><blockquote><p style="text-align: justify;"><i><b> "Duration of Right</b></i></p><p style="text-align: justify;"><i><b>3.1 The right is allocated from date of signature hereof and terminating on 28 February 2038."</b></i></p></blockquote><p style="text-align: left;"></p><p style="text-align: justify;">The right accordingly commenced immediately on 5 October 2023. The section 13 permits must accordingly be processed and issued to give effect to that right. To refuse to do so would be unlawful.</p><p style="text-align: justify;">Incidentally, it is unclear what possessed this Minister to allocate these fishing rights as being valid until 28 February 2038! That is 2 months into the 2038 fishing season! What happens for the remaining 10 months of the 2038 fishing season? </p><p style="text-align: justify;">And a final note on the rights allocation letter. It is issued subject a list of conditions set out in paragraph 6. The conditions listed in paragraphs 6.2.1, 6.2.3, 6.2.4, 6.2.5 and 6.2.6 are noteworthy as they are simply invalid as the Minister does not have any the authority under section 18 to issue fishing rights subject to these conditions! </p>Shaheen Moollahttp://www.blogger.com/profile/16437200534331608596noreply@blogger.com0tag:blogger.com,1999:blog-2070994957223007416.post-53039350438624878272023-10-09T08:21:00.000-07:002023-10-09T08:21:55.881-07:00THE 2020 #FRAPFAILURE: WHY FRAP ANYMORE?<p style="text-align: justify;">What is without question, is that the last three consecutive fishing rights allocation processes in 2013, 2016 and 2022 have been increasing failures. </p><p style="text-align: justify;">The most recent FRAP was not only 2 years late but the appeals process remains incomplete almost 2 years after the first rights were allocated! The catastrophic social and economic harms faced by historic right holders alone who unlawfully lost their rights back in February 2022 are simply ignored by the Minister. In fact, she is on record in her most recent press statement of 4 October saying that she is of the view that no applicant is being prejudiced by her appallingly delayed appeal decisions. </p><p style="text-align: justify;">The Minister is thus of the view that being unlawfully deprived on an income for 2 years is without prejudice. (It would be useful to understand if this Minister or any of her comrades would be willing to forgo an income for two years given that these wise cadres do not consider it harmful to be without incomes?)</p><p style="text-align: justify;">South Africans are increasingly vocal about the desperate need to remove the ANC and its cancerous parasitic class of civil servant cadres from power next year. The same applies to a majority of the members of the SA fishing industry (although they will never publicly admit it). The corridor discussions are clear. If there is any serious hope that this country is able to rebuild, it will only be if the ANC is flushed into the sewers of history. </p><p style="text-align: justify;">From the perspective of the fishing industry, a new government could offer the incentive of a revised fisheries management regime and policy direction. One that moves us away from these destructive and corrupt fishing rights allocation processes to an alternative system. One that fundamentally steers policy toward growth and not redistribution. </p><p style="text-align: justify;">Shortly after the allocation of long term fishing rights in 2005, I had proposed that we start gradually migrating certain fisheries toward a system of tradeable fishing quotas - (at the time, it was proposed to start with KZN prawn trawl, Patagonian tooth fish and tuna long line). I remain of the opinion that the industrial fisheries should be managed in terms of a system of individually transferable quotas albeit subject to pre-negotiated performance objectives that give effect to national objectives as fishing quotas remain subject to regulation in terms of the public trust doctrine and fisheries must be exploited for the benefit of the greater public good. </p><p style="text-align: justify;">Government's involvement in the determination of who gets to fish what quotas must be extinguished as it clearly cannot determine who can best fish anything most efficiently and in the best interests of society and the economy.</p><p> </p>Shaheen Moollahttp://www.blogger.com/profile/16437200534331608596noreply@blogger.com0tag:blogger.com,1999:blog-2070994957223007416.post-64844887615842280502023-10-08T05:04:00.000-07:002023-10-08T05:04:18.049-07:00Hake Deep Sea Trawl Appeal Decisions: Dull Appeasement<p style="text-align: justify;">The Minister of Forestry, Fisheries & Environment, Barbara Creecy, eventually published the hake deep-sea trawl appeal decisions on 4 October 2023. More than a month later than promised. 15 months after the appeals were filed in July 2022. And 20 months after the first rights were allocated back in February 2022. </p><p style="text-align: justify;">Effectively, those that successfully appealed for a hake deep-sea trawl right will only get a 13-year right while their competitors received 15-year rights. </p><p style="text-align: justify;">The disdain and contempt shown by the Minister toward the fishing industry has been truly breathtaking. It does not, however, help when the principal "fishing industry body", FISHSA, is more interested in fostering cordial relations with an inept and incompetent Minister and her department, rather than protecting fishing right holder interests. </p><p style="text-align: justify;">The appeal decisions confirm a Minister desperate to appease the historic right holders by granting them fishing rights in a desperate bid to avoid litigation challenging the hake deep-sea trawl decisions. The appeal decisions demonstrate the extent to which the delegated authority's original decisions in February 2022 would have been capable of successful judicial review. From the failure to make competitor applications and scoresheets available before the appeals to the ad-hoc and unlawful "fixes" applied to the incoherent and illogical scoring criteria. </p><p style="text-align: justify;">The appeal decisions are nothing but a stitch-up. And we must still remember that the Minister's decisions in the hake inshore trawl and horse mackerel fishing sectors (dating back to the FRAP 2016! - NOW 7 years old) remain unresolved. The Minister has lost every single one of the reviews brought against her repeated unlawful decisions in these fisheries. </p><p style="text-align: justify;">Most recently, she dispatched FISHSA itself (as I said, an organisation that hardly represents fishing industry interests but increasingly a mouth piece for the Minister) to cajole four appellants/right holders in the hake inshore trawl fishing sector to discuss settling their respective review applications against her. </p><p style="text-align: justify;">But returning to the hake deep-sea trawl appeal decisions. Putting aside the fact that these are indeed reviewable on both procedural and substantive grounds, they are an incredibly dull and uninspiring set of decisions for South Africa's most important, capital intensive and profitable fisheries (because it has been so incredibly well managed by SADSTIA and individual right holders). </p><p style="text-align: justify;">The appeal decisions do not in any way demonstrate the attainment of any of the legislative and policy objectives. That is because the decisions probably dont achieve a single objective. For one, the appeal decisions allocate rights to historic paper quota holders and then go further by creating an entire new generation of paper quota holder with 100 ton hake trawl allocations! Secondly, there is no definitive evidence as to what proportion of the trawl quota vests under the control of black-controlled fishing companies, especially given the fact that the Minister tries to make a lot about her decisions increasing transformation of the fishery. Thirdly, what about job creation? How does her appeal decisions sustain or increase job numbers in this fishery? What is the average wage earned by seasonal and permanent employees in the fishery? </p><p style="text-align: justify;">Well, what does the data say? Have any of the fishery objectives been met? We dont know! </p><p style="text-align: justify;">We dont know, because the Minister has (a) refuses to provide the analysis or data on these metrics; and (b) she refuses to make any data about the right holders available. </p><p style="text-align: justify;">The only thing we do know is that there were 29 right holders in this fishery after 28 February 2022 and now there are 37! </p><p style="text-align: justify;"><b>While the Minister may have thwarted a review application(s) from Category A (historic right holders), </b>her decisions are, at best, a dull appeasement. There was nothing profound or imaginative about this incredibly important fishing right allocation process for hake deep-sea trawl. </p><p style="text-align: justify;">The trawl fishery has probably best demonstrated the value of the stability of long term fishing rights. The awarding of MSC certification in 2004 and the subsequent increasing self-regulation and management of the fishery, led by the industry regulatory body, SADSTIA, has completely mitigated the dysfunction and collapse of fisheries research and management by the Department. </p><p style="text-align: justify;">The 2020 (delayed to 2022) fishing rights allocation process presented the Minister with the ideal opportunity to introduce new entrants to the fishery in a substantively meaningful way without prejudicing existing quota holders. Unlike any allocation process before, the Minister was faced with an incredibly healthy and sustainable hake fishery <u>and</u> a "free" allocation of more than 2000 tons of hake quota previously reserved for the hake hand line fishery. The hake hand line fishery had ceased to exist almost two decades ago and the annual quota allocated to this fishery since 2006 has either never been harvested or harvested in completely negligible amounts. </p><p style="text-align: justify;">Over and above this 2000 tons of "free" hake, the Minister had a potential surplus of 5% of the hake trawl TAC, representing the annual increase in the TAC. 5% is the equivalent of some 5000 tons of hake trawl quota. </p><p style="text-align: justify;">Seven thousand tons of quota could have been utilised to increase the small quota allocations of the existing historic cohort of right holders (especially those with less than 500 tons of quota), thus narrowing the gap between the larger right holders and the smallest and to award new entrant applicants at least 500 tons of quota as opposed to the 100 tons allocated, ensuring that these quota holders will be nothing more than rent-seekers for the next 15 years. </p><p style="text-align: justify;">Planning for this "FRAP 2020" started in 2018. Five years later, it has ended (unless a Category B new entrant elects to review the Minister's decisions) with a bland thud. </p><p style="text-align: justify;"><br /></p>Shaheen Moollahttp://www.blogger.com/profile/16437200534331608596noreply@blogger.com0tag:blogger.com,1999:blog-2070994957223007416.post-25068178850657570292023-03-01T00:55:00.001-08:002023-03-01T00:55:53.659-08:00#FRAPFAILURE UPDATE: THE MINISTER ISSUES THE TRADITIONAL LINE FISH APPEALS<p style="text-align: justify;"><b>ON 28 FEBRUARY 2023</b>, the Minister issued her appeal decisions in the traditional line fish sector. A total of 178 appeals were filed against the decisions of 28 February 2022 (12 months ago) and 53 appeals were successful. Contrary to the Minister's attempt to fudge the appeal success rate, 29.7% of appellants were successful (And not the 80% number the Minister falsely claims). </p><p style="text-align: justify;">That number is of course much higher than the 5% of rights that were set aside by the delegated authority for the appeals process. The Minister accordingly reduced the available effort that was intended for the small scale co-operatives. This is a notable and correct decision. </p><p style="text-align: justify;">By and large, these appeal decisions are an improvement on the bad appeal decisions the Minister took in the KZN Prawn Trawl fishery in December 2022. However, she has effectively taken 7 months to decide 186 appeals. Its been 12 months since the first rights were allocated and only 15% of all known appeals filed have been decided to date. </p><p style="text-align: justify;">Although the appeals GPR has been published (containing a generic set of decisions and explanations with a tabular list of successful appellants and right holders), the Minister has not yet published the individual appeal reports for each appellant, notification letters addressed to each appellant or revised scoresheets. In order for the decision to have any meaning, these documents are required. </p><p style="text-align: justify;">The appeal decisions in the shark demersal and south coast rock lobster which were supposed to have been completed by 15 December 2022 and 28 February 2023, respectively, have also not been completed to date. </p><p style="text-align: justify;">That said, the following are the notable aspects of the Minister's line fish appeal decisions:</p><p></p><ul style="text-align: left;"><li style="text-align: justify;">The minister's flexible and case-by-case interpretation of the "performance / utilisation" exclusionary criterion is noteworthy. It's <b><u>not</u></b> that the Minister adopted a non-formalistic or flexible approach to the interpretation of the criterion. Rather, she quietly acknowledged that the delegated authority had completely got the implementation of this criterion woefully incorrect. Many (not all) of the delegated authority's wrongs have thus been corrected at great financial cost to dozens of the right holders over the past 12 months. </li><li style="text-align: justify;">The minister's appeal decisions with respect to the interpretation of "improper lodgements" and defective applications caused by the farcical online application system are also not honest but the decisions are by and large welcomed. Many applications were excluded on grounds that were never exclusionary to start with (such as the non-submission of identity documents and tax clearance certificates). The minister's attempt to correct some of these unlawful decisions has to be acknowledged but she has failed to confirm the unlawfulness of delegated authorities manufactueing exclusionary criteria.</li><li style="text-align: justify;">The minister has also unlawfully perpetuated the incorrect and <i>ultra vires </i>amendment of the rules for the categorisation of applicants as new entrants despite the fact that affected applicants are supposed to have been categorised as existing or Category A right holder applicants as they had purchased fishing rights before 2020. </li></ul><div style="text-align: justify;">To conclude, the Minister appears to have done enough to avoid a sector-backed review of line fishery decisions as happened in 2014. However, the Minister continues to face a review application by Cape Peninsula and West Coast line fishers who are seeking to have her decision to award rights for a period of 7 years (and not 15 years) overturned and I suspect, 1 or 2 unsuccessful appellants will look at challenging their individual unsuccessful appeals. </div><p></p><p><br /></p><p><br /></p><p><br /></p>Shaheen Moollahttp://www.blogger.com/profile/16437200534331608596noreply@blogger.com0tag:blogger.com,1999:blog-2070994957223007416.post-40870704083698949402023-02-25T23:21:00.000-08:002023-02-25T23:21:52.326-08:00A THIRD #FRAPNEVER APPEALS TIMETABLE IN 3 MONTHS!<p style="text-align: justify;"> On 22 February 2023, Minister Creecy issued her third appeals timetable in as many months! Does she and her staff even know what they said the previous month? And to Parliament?</p><p style="text-align: justify;">They are literally just making it up as they go along. And she continues to insist that she has completed the shark demersal appeals and yet there is simply no record of these appeals, anywhere!</p><p style="text-align: justify;">The third revised appeals timetable is as follows:</p><p style="text-align: justify;">The phases and anticipated finalisation dates for each phase is as follows (<i>verbatim from the Minister's press statement of 22 February 2023</i>):</p><p></p><ul style="text-align: left;"><li style="text-align: justify;">Phase one of the appeals process, which was completed on 2 December 2022, dealt with the appeals in the demersal shark sector, the KwaZulu-Natal crustacean trawl sector and with miscellaneous and non-compliant appeals. [<b>Neither the appeal decisions for shark demersal or the "miscellaneous and non-compliant appeals" have been published some 85 days later]</b></li><li style="text-align: justify;">Phase two of the appeals process is presently under consideration and deals with the appeals in the south coast rock lobster sector and the traditional line fish sector. These appeals are due to be finalised by 28 February 2023. The department is committed to meet this timeline. [<b>This is in 2 days' time</b>]</li><li style="text-align: justify;">Phase three of the appeals process deals with the tuna pole line and squid sectors. These appeals are currently under consideration by the minister’s appeals advisory team for their recommendations to minister. The proposed date for finalisation of these appeals is 30 April 2023.</li><li style="text-align: justify;">Phase four of the appeals process deals with the appeals in hake deep sea trawl and hake longline sectors. Considering the volume (120 hake deep sea trawl and 280 hake longline) and complexity of appeals in this sector, the proposed date for finalisation of these appeals is 30 July 2023. [<b>This is incredulous. 12 months to decide 400 appeals. In 2018, Minister Zokwana (albeit under the terms of a court order) decided a similar number of rock lobster appeals in 30 days]</b></li><li style="text-align: justify;">Phase five of the appeals process deals with the appeals in the small pelagic: sardine (169 appeals) and anchovy (230 appeals) sectors. The department is endeavouring to complete phase five of the appeal process by 30 October 2023.</li></ul><div style="text-align: justify;">It is of course laughable that this Minister took approximately 5 months to finalise some 6 appeals in the KZN Prawn Trawl fishery. At that rate it will take her 42, 245 days to finalise the remaining appeals! In all honesty, this Minister simply does not have the ability or the skilled personnel required to deal with these appeals. And as we saw from the KZN Prawn Trawl appeal decisions, they are woefully bad, ignorant and unlawful. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">The Minister's statements also confirm that her delegated authority's have failed to comply with a mandatory procedural requirement in terms of regulation 5 of the 1998 Fisheries Regulations. They have each failed to produce the peremptory appeal reports within 30 days of the appeals closure date. And given the context of these decisions and the sectors they affect, taking 6 months to decide 6 appeals (for example) is wholly unreasonable and an affront to the constitutional and statutory requirements of fair and reasonable administrative action. These are reviewable grounds alone. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;"><b><u>Will this incompetent ANC government produce the ridiculous Minister of Electricity and Silly Walks before it produces the next appeal results?</u></b></div><p></p>Shaheen Moollahttp://www.blogger.com/profile/16437200534331608596noreply@blogger.com0tag:blogger.com,1999:blog-2070994957223007416.post-5509769708130825412023-02-06T10:34:00.003-08:002023-02-06T10:34:56.763-08:00ITS ONLY FEBRUARY AND CREECY'S ALREADY DUMPED HER 5-PHASE APPEALS TIMETABLE!<p style="text-align: justify;">Yep, that's right! Less than 50 days since publishing her "5-phase appeals process" statement on 15 December 2022, the fisheries minister, Barbara Creecy, summarily dumped her appeals process timetable when she addressed parliament at the beginning of February 2023! </p><p style="text-align: justify;">And she did not have the slightest decency to even explain why she is dumping a committed timetable that was less than 50 days old! </p><p style="text-align: justify;">Her "old" 15 December 2022 appeals timetable can be read <a href="http://feikemanagement.blogspot.com/2023/01/frapfailure-appeals-process-in-turmoil.html" target="_blank">here</a>. We have detailed the many lies Creecy and her Fisheries DDG, Sue Middleton, told Parliament on our twitter timeline which can be accessed <a href="https://twitter.com/Feikemanagement/status/1622653907028647949?s=20&t=Bvx-2rug6680d7BW-DaFnA" target="_blank">here</a>.</p><p style="text-align: justify;">Creecy's "new" unofficial timetable stated before Parliament now commits to the finalisation of only the traditional line fish appeals by February 2023. She had previously committed to finalising all the tuna pole and south coast rock lobster appeals by February 2023. Now, she seems have delayed those to "October 2023". Maybe. Perhaps. Actually, it will not happen. The same applies to the appeals in the remaining fishing sectors - <u style="font-weight: bold;">CREECY WILL NOT COMPLETE THEM.</u> Then, Creecy also lied in December 2022 about having completed the demersal shark appeals! She had not! She told Parliament that these appeals may actually only be completed in October 2023. </p><p style="text-align: justify;">In our view, her dishonest, nonchalant and inexplicable abandonment of timetables justifies previous right holders in the every fishing sector to approach a court of law for urgent relief against the Minister. For them to continue waiting for this incompetent lot will be commercially fatal.</p><p style="text-align: justify;">The appeals process is nothing but a shambolic failure like the #FRAPNEVER #FRAPFAILURE. The KZN Prawn Trawl decisions will be reviewed shortly. </p>Shaheen Moollahttp://www.blogger.com/profile/16437200534331608596noreply@blogger.com0tag:blogger.com,1999:blog-2070994957223007416.post-78974804317532011462023-01-18T11:03:00.000-08:002023-01-18T11:03:46.979-08:00PROVISIONAL HAKE INSHORE TRAWL APPEAL DECISIONS: ANOTHER LEGAL TRAVESTY IS UNVEILED<p style="text-align: justify;">ON 15 DECEMBER 2022, Minister Creecy issued her provisional appeal decisions in the Hake Inshore Trawl fishery. The provisional decisions are a consequence of the Minister losing a review application brought by Hacky Fishing earlier in 2022. </p><p style="text-align: justify;">On 26 September 2022, the Western Cape High Court reviewed and set aside the Minister's appeal decisions pertaining to her decisions concerning the evaluation and scoring of 4 other Category B new entrant appellants concerning their respective scores allocated for "vessel access/ownership". </p><p style="text-align: justify;">In short, the Minister's original appeal decisions with respect to how she evaluated and scored the appellants on "vessel access/ownership" was determined as being inconsistent, arbitrary and unlawful. </p><p style="text-align: justify;">The Minister re-scored 5 appellants, reducing the vessel access/ownership scores to zero for 3 appellants (Cape Fish Processors CC, Zimele Fishing Enterprises CC & Ocean Ukhozi Fishing (Pty) Ltd), confirming Hacky Fishing's zero score allocation and increasing the score of appellant (T&N Visserye CC). </p><p style="text-align: justify;">The Minister's provisional revised scoring and analysis is incorrect and erroneous. For one, the provisional decision to revoke the right allocated to T&N Visserye is obviously incorrect as its revised score (without the additional vessel access scoring) is 71.80%. The minimum score - according to the provisional decision - to justify the allocation of a right is 62.92%. </p><p style="text-align: justify;">And secondly, the Minister's insistence that she can "revoke" or terminate fishing rights allocated in terms of section 18 of the Marine Living Resources Act outside of the provisions of section 28 is unlawful. A right allocated in terms of section 18 of the MLRA vests upon allocation and cannot be cancelled, revoked or terminated on appeal and outside of the section 28 rights revocation process. </p><p style="text-align: justify;">Should the Minister proceed to finalise the appeals process as proposed, it will certainly elicit further successful litigation against her. The Minister still faces a review application brought by LETAP CC in this fishery which challenges the legality of the quantum allocation methodology. </p><p style="text-align: justify;"><b>Postscript: The court order issued on 26 September 2022 by the Western Cape High Court ordered the Minister to reconsider the appeals by 15 December 2022. The Minister has not complied with the order as she only issued a provisional decision by 15 December 2022. Whether Hacky seeks to raise this possible contempt of a court order remains to be seen.</b> </p>Shaheen Moollahttp://www.blogger.com/profile/16437200534331608596noreply@blogger.com0tag:blogger.com,1999:blog-2070994957223007416.post-3229720730046071852023-01-18T00:40:00.001-08:002023-01-18T00:40:30.224-08:00#FRAPFAILURE: AN APPEALS PROCESS IN TURMOIL<p>On 15 December 2022, the Fisheries Minister, Barbara Creecy, issued her first ever statement on the status of the #FRAPFAILURE appeals process. <u><b>MORE THAN 5 MONTHS AFTER THE APPEALS PROCESS CLOSED AND 15 DAYS BEFORE THE END OF THE FIRST YEAR OF THE ALLOCATED FISHING RIGHTS</b></u>.</p><p>To say that the process is mired in turmoil is an understatement. The appeal decisions in the tiny KZN Prawn Trawl fishery demonstrate the extent of the unlawfulness and the lack of basic understanding of the economic structure of a really small fishery. But we should not be surprised that the Minister's decisions are fraught with illegality and a failure to understand the most rudimentary facts about fishing. The people advising her clearly are egregiously out of their depths. </p><p>Consider the already successfully reviewed Category B sector appeal decisions in the hake inshore trawl fishery where Hacky Fishing again successfully reviewed and set aside another Ministerial decision. Creecy has now issued a provisional addendum to her hake inshore trawl appeal decisions because of the Hacky court order. We review this provisional decision in a separate article. (But this will be the first of many addenda that Creecy will have to publish).</p><p>Let's return to Creecy's epic statement on 15 December 2022 on the appeals process. What does the statement confirm and highlight? </p><p></p><ul style="text-align: left;"><li>Firstly, it reconfirms that a total of 2473 applications for fishing rights were received across the 9 fishing sectors opened for the allocation of fishing rights in late 2021. </li><li>The Department received a total of 1 213 appeals by 29 July 2022. </li><li>The Appeals Directorate responsible for assisting with the administration of the appeals has adopted a phased approach to dealing with these appeals.</li><li><b>Phase One</b> of the appeal process relates to the Demersal Shark Sector, the KwaZulu-Natal Prawn Trawl Sector and miscellaneous issues arising (non-compliant and late appeals). This phase was apparently completed as at 2 December although only the KZN Prawn Trawl appeal decisions were published. </li><li><b>Phase Two</b> of the appeal process relates to the South Coast Rock Lobster Sector and the Tuna Pole Sector. This phase is scheduled to be completed by end of February 2023.</li><li><b>Phase Three</b> of the appeal process relates to the Traditional Line Fish and Squid Sectors. </li><li><b>Phase Five</b> of appeal process relates to the Small Pelagic Sector (Sardine and Anchovy).</li></ul><p></p><p>The Minister and her team have clearly forgotten about the hake long line and hake deep sea trawl sectors as these dont feature in her statement. The statement also confirms that the appeals for phases 3 and 4 were only being "processed" by December 2022. There is no word at all about the phase 5 completion date for the small pelagic fishery. </p><p>Effectively, what the statement confirms is that pretty much nothing happened with the appeals filed in July 2022 until probably late November when the 5 or so appeals in the KZN prawn trawl fishery were first looked at. </p><p>In 2018, it took me and 2 other lawyers with the assistance of 5 support staff 45 days to work through 2000 west coast rock lobster appeals. Not a single decision was challenged in a court of law. This Minister with the support of an appeals directorate, the state attorney and external counsel cant decide 1213 in more than 6 months! </p><p>This is farcical. Year 1 of the #FRAPNEVER has ended and the appeals process has not yielded a single set of significant decisions yet! </p><p>(But Creecy is just another ANC-deployed cadre. Incompetent, arrogant and incredibly beyond help. Like the failures of energy supply, water treatment, public transport, policing, education, health ... this lot are deeply committed to ensuring failure.)</p><p><br /></p>Shaheen Moollahttp://www.blogger.com/profile/16437200534331608596noreply@blogger.com0tag:blogger.com,1999:blog-2070994957223007416.post-49036060009749767952022-12-11T08:20:00.001-08:002022-12-11T08:20:36.751-08:00KZN PRAWN TRAWL APPEAL DECISIONS : THE DESTRUCTION OF YET ANOTHER FISHERY<p style="text-align: justify;">On 10 December 2022, the Minister published her appeal decisions in the KZN Prawn Trawl fishing sector, even though her appeal record is dated 5 November 2022. It is inexplicable and unprecedented that the Minister sat on this decision for over a month before she decided to communicate her decisions. </p><p style="text-align: justify;">The Minister decided to allocated the 1 unit of effort available to her on appeal to a Category C appellant, which scored lower than a competing Category B appellant, after she took into account certain criteria which included transformation and ignored the respective appellant's scores. There is precedent from the Western Cape High court that a minister taking such considerations into account (and ignoring the scoring) is <i>ultra vires</i> and reviewable. </p><p style="text-align: justify;">The Minister's decision to allocate the 1 right on appeal to Thalassa Investment (Pty) Ltd <u>is therefore reviewable in our view</u>. </p><p style="text-align: justify;">However, ignoring the incredibly pedestrian analysis of the appeals filed in this fishery (coupled with the legal flaw of not publishing the regulation 5(3) reports), the Minister's decisions once again demonstrate her ongoing refusal and failure to understand the economic structure of our commercial fishing sectors. </p><p style="text-align: justify;">The Minister decided to (unlawfully) grant a right to some Category C new entrant appellant ostensibly because she wanted to broaden access to the fishery by not granting another fishing right to a Category B appellant, Dyer Eiland Visserye. What the minister fails to understand (and this is because of the legally flawed socio-economic impact assessment she was legally required to carry out before she adopted the policy for the allocation of rights in this fishery) is that the KZN prawn trawl fishery is an incredibly economically marginal fishery. This has never been a profitable fishery for right holders for a very long time now. </p><p style="text-align: justify;">The economic analysis of the two historic right holders that operated in this fishery demonstrated that a minimum of two rights per right holder was required into in order to justify the continued operation of the fishery. The fishery employed 500 people under this structure. </p><p style="text-align: justify;">The Minister's decisions have effectively ruined the fishery and will shut it down. The two historic operators will certainly now terminate the ongoing operation of their vessels and processing infrastructure in KZN. Five hundred jobs will be lost. </p><p style="text-align: justify;"><b>And let me be clear. None of the new entrants granted rights will ever put a vessel to sea because the costs of financing a vessel plus normal daily operation costs will render any operation bankrupt within a year. </b></p><p style="text-align: justify;"><b><span style="color: red;">The Minister has destroyed another fishery. South Africa once had 22 commercially profitable and operable fisheries. That was in 2005. Before the KZN prawn trawl appeal decisions were published, the ANC government had destroyed no less than 8 fisheries, leaving 14 viable and healthy fisheries. Now, its 13 fisheries left. And 500 more people unemployed. </span></b></p>Shaheen Moollahttp://www.blogger.com/profile/16437200534331608596noreply@blogger.com0tag:blogger.com,1999:blog-2070994957223007416.post-89287963043243946482022-11-07T07:56:00.004-08:002022-11-07T07:56:52.256-08:0090 Days Later and Not a Word on the Appeals Process<p style="text-align: justify;">So more than 3 months have now passed since the closure of the 2022 fishing rights appeals process and Barbara Creecy, the fisheries minister, has embarrassingly failed to say a word about the finalisation (if ever) of this process. Hardly surprising though. </p><p style="text-align: justify;">Frap 2022 is an unmitigated and unsalvageable #FRAPFAILURE. </p><p style="text-align: justify;">The first fishing season of the FRAP 2022 is effectively done. Those who lost their fishing rights (and who may hope to regain it) will effectively have been denied an entire season of fishing, income and performance. They will forever remain at a disadvantage when compared to those who secured their rights on 28 February 2022.</p><p style="text-align: justify;">And what makes the failure to decide these appeals timeously even more egregious, is the arrogant silence by the Fisheries Minister, Barbara Creecy. She simply refuses to address the SA fishing community and commit to dates by when appeal decisions will be issued. Perhaps this is because the legal advice she has received to date is that the appeals are not capable of rational and lawful analysis and decision because the FRAP 2022 was so tainted by illegality (even flagged by her own party in the Western Cape) and the decisions of the delegated authorities are so bad in law that they simply cannot be adjudicated. </p><p style="text-align: justify;">Given that the appeals processes across the board cannot accommodate the possible number of successful appellants; that every single one of the general published reasons documents are at best incomplete gobbledegook as opposed to a factual and legal record of how each decision came to be; and the passing of an entire year and season since the first decisions were taken, our advice remains that historic right holders who have been refused their rights, <u><b>should be approaching courts of law for urgent relief now</b></u>. </p><p style="text-align: justify;">The fisheries laws do not specify a time limit by when appeals must be decided but our administrative and constitutional law jurisprudence requires Creecy to make her decisions within a "reasonable" period. What is "reasonable" is of course dependent on the factual circumstances of each case case but in the commercial fishing sector, the passage of a year and the loss of an entire fishing season (and the consequences thereof) is certainly an <u><b>unreasonable delay.</b></u> </p><p style="text-align: justify;">However, Creecy deciding the appeals is increasingly legally impossible given what we say above regarding the unsalvageable illegality of the rights allocation process, the available rights on appeal, the fatal failure to allow for comparative analysis of competitor applications before the appeals process closed in July and of course the complete nonsense presented as reasons for the respective decisions. If no lawyer or fisheries expert could independently determine how an applicant was scored, the Minister would certainly be unable to do so. </p><p style="text-align: justify;">I have stated this before. FRAP 2013 was corrupt and bad in law but I was still able to salvage that process from complete failure. Same with FRAP 2016 and the 2018 West coast rock lobster appeals process. This process can never be salvaged. It will be set aside sector by sector ... eventually. </p><p></p><blockquote><p><br /></p></blockquote><p><br /></p>Shaheen Moollahttp://www.blogger.com/profile/16437200534331608596noreply@blogger.com0tag:blogger.com,1999:blog-2070994957223007416.post-78553819869531718302022-09-02T02:23:00.002-07:002022-09-02T02:23:36.876-07:00Where are the Appeal Reports, Minister Creecy? <p>Applicants for commercial fishing rights under Fishing Rights Allocation Process 2021/2022 were required to file their respective administrative appeals in terms of section 80 of the Marine Living Resources Act, 18 of 1998 (“the MLRA”), read with regulation 5 of GN Regulation 1111 of 2 September 1998 (“the Fisheries Regulations”) by 29 July 2022.</p><p>Regulation 5(3) of the Fisheries Regulations provides as follows:</p><p><b><i>“(3) The appeal contemplated in sub-regulation (2) shall be served by the appellant on the person against whose decision the appeal is made, and that person shall submit a report on the appeal to the minister within 30 days after the appeal had been served on him or her."</i></b></p><p>As such, regulation 5(3) obligates each delegated authority to produce the appeal reports within 30 days after the appeals were filed. That 30-day period expired on 30 August 2022. The obligation is peremptory. </p><p>So where are these appeal reports? They should have been made available to all applicants and appellants by now. </p><div><br /></div>Shaheen Moollahttp://www.blogger.com/profile/16437200534331608596noreply@blogger.com0tag:blogger.com,1999:blog-2070994957223007416.post-39576802189267043442022-09-02T02:03:00.000-07:002022-09-02T02:03:09.181-07:00Should the Hake Long Line TAC Be Increased? <p>I recently tweeted about the possibility that the current portion of the hake long line total allowable catch allocation of the global hake TAC could be increased from its current 6.5% of global TAC to 10% of global TAC. </p><p>The proposal was first mooted in the 2021 hake trawl and hake long line fishing policies. The exact wording is the following: </p><p><span> " </span><i>The Department is considering implementing changes in the hake TAC sectoral </i><i>apportionment:</i></p><p></p><ul style="text-align: left;"><li><i> Longline apportionment increased from 6.551% to 10% of the hake TAC, subject to </i><i>further investigation on possible impacts on resource dynamics and how the 3.449% of </i><i>the TAC that would be required for this will be sourced."</i></li></ul><p></p><p>The hake long line fishery historically fished exclusively over the "hard grounds", thus avoiding significant conflict with trawlers. This has changed over recent times as long liners have increased their fishing footprint and now also target "black" hake as well as the more lucrative export PQ "white hake" due to changing market dynamics and pricing. </p><p>This has necessarily meant greater numbers of incidences where trawlers and long liners have come into conflict on the fishing grounds. </p><p>It now appears that the department may want to expropriate the 3.449% of additional TAC from the hake deep-sea trawl fishery. The hake deep-sea trawl fishery presently has 83% of the global hake TAC. </p><p>On the face of it, the shifting of 3,4% of the TAC from trawl to long line appears superficial for the trawl industry but substantial for the hake long line fishery as it would increase effort and catch in the fishery by almost 50%. </p><p>However, to do so lawfully, the department's hake fisheries manager must consider the ecological, social and economic consequences of such a proposed decision. In order to do so, a comprehensive socio-economic and ecological study will be required. And not the garbage that the department produced last year and labelled "socio-economic impact assessment studies"!</p><p>What we do already know and understand from detailed impact assessments undertaken by the hake deep-sea trawl industry to date (I have not seen any independent assessment reports from the hake long line industry) is that - </p><p></p><ol style="text-align: left;"><li>trawl creates more jobs per ton of fish and shifting TAC to long line will result in a net loss of jobs;</li><li>trawl obviously accounts for a larger portion of investments in the fishing and support industries and shifting TAC to long line will result in a net loss of investments;</li><li>long line targets adult hake and increasing effort and TAC threatens the biological health of the hake stock, which in turn could prejudice the trawl hake MSC certification which has been maintained since 2004; and</li><li>while the deep-sea trawl hake fishery has consistently landed its entire portion of the hake TAC over the past decade, the long line fishery has landed less than 75% of its entire portion of the hake TAC.</li></ol><p>The obvious question is why would the department tamper with and potentially prejudice the most lucrative, well managed. and sustainable fishery in the country? (Obviously, we are dealing with an ANC government whose policies across our economy perversely just veer toward destruction and ruin). </p><p>But the Minister also finds herself in a legal bind as she effectively has no fish to allocate the hake long line sector on appeal because her delegated authority set aside only 2% of the TAC for the appeals process and no more than 0.6% of the TAC is now left for the appeals process. </p><p>So, what to do? The solution actually stares this Minister directly in the face. The present global Hake TAC apportionment bizarrely allocates 1.8433% to hake handline and 1.5% to small scale fishing!</p><p>There is no small-scale hake fishing sector. It is a fantasy; a myth. Hake simply are not available inshore for any form of hake handlining. For that reason, the hake handline fishery is a non-existent fishery today - it existed for a very short period between 2003 and 2005 and ought to have been terminated as a standalone fishery by 2007. Combined, these two non-existent fisheries account for 3.3% of the global hake TAC. Scrap the hake handline and "small-scale" hake apportionments and allocate it to long line. </p><p>Then, put in place proper regulations governing the respective fishing areas to be targeted by long liners so that conflict with the trawl sector is avoided. And then enforce these rules. </p><p>Problem solved. </p><p></p>Shaheen Moollahttp://www.blogger.com/profile/16437200534331608596noreply@blogger.com0tag:blogger.com,1999:blog-2070994957223007416.post-52746442798784821312022-08-14T15:04:00.000-07:002022-08-14T15:04:11.911-07:003 More Rights Added to the Hake Long Line Fishery ... But Creecy and Her Department Remain Quiet About It<p style="text-align: justify;">Ten days ago, Barbara Creecy's delegated authority in the hake long line fishery suddenly and quietly decided to add 3 more Category A applicants to the rights register. To this day, she has failed to announce this decision publicly to any of the hake long line right applicants or the hake long line fishing industry. </p><p style="text-align: justify;">Burt why this obviously unlawful and unaccountable conduct? Well, firstly because the hake long line fishing industry, like many other industry bodies, are just too weak to demand accountability for their members. Secondly, these industry bodies are more concerned about placating an increasingly incompetent and unaccountable minister as opposed to protecting member interests. </p><p style="text-align: justify;">As a consequence, historic members who were unlawfully denied their rights will be left to urgently protect their own interests. </p><p style="text-align: justify;">To date, Feike, has been demanding ministerial and departmental accountability through the courts. And the consequence is that our clients have been able to secure their fishing rights. The only way to protect right holder interests is through the courts. We see this in every other sector from education, security, energy, environment to mining. Industry bodies and interest groups that seek to placate the body of corrupt, incompetent, arrogant and unaccountable ANC ministers only help to ruin their sectors and economic clusters.</p><p style="text-align: justify;">The question under consideration. How on earth can a Minister permit a delegated authority to secretly issue an addendum decision in the hake long line fishery AND NOT publicise this decision. Its been 10 days and not a media statement; not a word to any of the applicants and appellants who have a direct interest in this addendum decision and the fact that it introduced 3 additional Category A right holders and consumed more than 1,4% of the 2.11% TAC set aside for appeals? </p><p style="text-align: justify;">The consequence of course is that THERE CAN BE NO APPEALS PROCESS. There is room for perhaps 1 successful appellant on appeal ... at most! Nevermind that no one has sight to the competitor applications or that the hake long line GPR is at best complete gibberish written in ANC cadre code. </p><p style="text-align: justify;">And make no mistake, within the next 15 days even that 0,6% of the TAC will no longer be available to the Minister on appeal as a review application is being prepared that will see the balance of the "appeals TAC" being allocated. </p><p style="text-align: justify;">This is #frapfailure and #frapnever. </p><p style="text-align: justify;">Barbara Creecy can start taking her bow as being the Minister responsible for the most disastrous, nonsensical, illogical and financially catastrophic fishing rights allocation process in history. And, given that she beat the corrupt and incompetent Tina Joemat-Pettersson and her disastrous FRAP 2013 by being even worse, well ... that says a lot. </p>Shaheen Moollahttp://www.blogger.com/profile/16437200534331608596noreply@blogger.com0tag:blogger.com,1999:blog-2070994957223007416.post-14929304888750088612022-07-14T01:33:00.002-07:002022-07-14T01:33:21.505-07:00FRAP APPEAL DEADLINE 29 JULY: ANOTHER EXTENSION WILL BE ANNOUNCED ... & THEN ANOTHER<p style="text-align: justify;">The most recent - the THIRD - deadline for the filing of FRAP appeals on 29 July 2022 will certainly have to be extended again because Creecy continues to fail in her most basic obligations to ensure a fair and proper appeals process. </p><p style="text-align: justify;">Key to ensuring compliance with her Constitutional and PAJA obligations as the appellate authority, is ensuring that appellants and access to competitor applications to determine whether their applications have been properly assessed AND that appellants can actually appeal the decisions of her delegated authorities. </p><p style="text-align: justify;"><b><u>Where are the Competitor Applications?</u></b></p><p style="text-align: justify;">In her last statement announcing the extension by 60 days of the last appeals process, Creecy importantly admitted that neither she nor her team foresaw having to make these applications available (!!!) and therefore required individual applicant consents to share their individual applicant data on line. </p><p style="text-align: justify;">The admission is damning. It's an admission that the Department and their minister have no clue how to allocate fishing rights and what their legal and process obligations are. We have stated this before but Creecy confirmed their ignorance in writing. </p><p style="text-align: justify;">Secondly, we advised our clients to object to the publication of any of their data via the unsecure and problematic FRAP ONLINE SYSTEM. Access to competitor applications can only take place as has historically occurred - the viewing of hard copy applications without the option of photographing and copying competitor application data. To publish data in excel format as the department envisages would be catastrophic for applicants as their private commercial, personal and financial data would be open to the world and competitors to digitally analyse and manipulate. </p><p style="text-align: justify;">Until these applications are made available in hard copy, the 30-day appeals process cannot commence. </p><p style="text-align: justify;"><b><u>And What About those incomplete and nonsensical GPR's?</u></b></p><p style="text-align: justify;">In my view, this is fatal for the process. The delegated authorities have discharged their legal obligations and are now<i> functus officio</i>. They cannot go back and make any changes to the GPR's; they cannot go and insert missing scoring rules that dominate the GPRs, or try and fix their incomplete and nonsensical reasons for their decisions in their "decision letters" or their incomplete and bizarre comments in the scoresheets. </p><p style="text-align: justify;">And neither can Creecy. She cannot in fact herself know how an appellant was scored and evaluated as the GPR's dont actually provided these details. The GPR is supposed to be complete and total record of how each individual decision was made, allowing even appellant to accurately determine whether its score and evaluation was correctly recorded. </p><p style="text-align: justify;">None of the GPR's permit this. These decisions are accordingly irrational, arbitrary, incomplete and unlawful. </p><p style="text-align: justify;"><b><u>And what is the solution?</u></b></p><p style="text-align: justify;">As I have stated repeatedly before, the only conceivable way forward is for a court of law to review and set-aside the entire FRAP and this process has to start again. Unfortunately, it will have to historic right holders that have been unlawfully denied their rights who initiate this litigation. </p><p style="text-align: justify;"> <b><u>But dont you have to wait for the appeals process to be concluded before you can approach a court of law for help?</u></b></p><p style="text-align: justify;">No. You dont. Especially in this instance where the appeals process cannot lawfully be concluded for the two reasons given above. </p><p style="text-align: justify;">The Minister is in check-mate. Some one must simply knock her down now. </p>Shaheen Moollahttp://www.blogger.com/profile/16437200534331608596noreply@blogger.com0tag:blogger.com,1999:blog-2070994957223007416.post-66854531209167355282022-05-31T02:11:00.002-07:002022-05-31T02:11:58.394-07:00To Consent OR Not To Consent: The Answer is Simple<p> On 27 May 2022, the Department and Minister of Fisheries issued an email requesting applicants to either object or consent to the making public of their personal and commercial information recorded in their respective applications. </p><p>The question we keep getting is "HOW DO WE RESPOND?" Here is our advice. Respond to the Minister as follows:</p><p><b><u>You must object in totality to the making public of any of your corporation / personal data for the reasons below.</u></b> Fill out the form they require and in Part C insert the following: </p><p><span style="color: #2b00fe;">The Minister of Fisheries</span></p><p><span style="color: #2b00fe;">Barbara Creecy</span></p><p style="text-align: justify;"><span style="color: #2b00fe;">I refer to your department’s email below of 27 May 2022 pertaining to the issuance of personal information recorded in my corporation’s application(s) (APP NUMBER / S). </span></p><p style="text-align: justify;"><b style="color: #2b00fe;">I OBJECT TO THE ISSUANCE AND MAKING PUBLIC OF THIS DATA IN ITS ENTIRETY FOR THE REASONS STATED BELOW:</b></p><p style="text-align: justify;"><span style="color: #2b00fe;">1.</span><span class="Apple-tab-span" style="color: #2b00fe; white-space: pre;"> </span><span style="color: #2b00fe;">Your proposal is to make this data public in either EXCEL format or some other format on the internet via your department’s FRAP ON-LINE PORTAL. This information would be available to the world at large and pose a substantial risk to the security of my personal details and those of my directors, shareholders and the entity concerned. It would also risk exposure and the making public of the corporation’s confidential financial, trade, scientific, commercial and fishing data and records;</span></p><p style="text-align: justify;"><span style="color: #2b00fe;">2.<span class="Apple-tab-span" style="white-space: pre;"> </span>Your on-line platform does not secure data in an unencrypted format and has been proven to be insecure and capable of unauthorised access;</span></p><p style="text-align: justify;"><span style="color: #2b00fe;">3.<span class="Apple-tab-span" style="white-space: pre;"> </span>Your process ought to have identified the need for competitor access to applications at the start of this process and ought to have developed a system to comply with the requirements of the Promotion of Administrative Justice Act (PAJA). You cannot prejudice my rights and those of the corporation’s due to your poor planning and failure to understand our laws;</span></p><p style="text-align: justify;"><span style="color: #2b00fe;">4.<span class="Apple-tab-span" style="white-space: pre;"> </span>You admit in paragraph 3 of your email below, that you failed to plan for the making available of competitor applications at all despite designing a rights allocation process premised on comparative scoring and ranking of applications. </span></p><p style="text-align: justify;"><span style="color: #2b00fe;">5.<span class="Apple-tab-span" style="white-space: pre;"> </span>Access to competitor applications can only be permissible in a secure controlled environment as has historically taken place. In this regard, your process ought to have ensured that every applicant provided hard copies of their Annexures at the minimum in order to facilitate such compliance with PAJA.</span></p><p style="text-align: justify;"><span style="color: #2b00fe;">6.<span class="Apple-tab-span" style="white-space: pre;"> </span>The making available of any personal and private data contained in the above mentioned applications (Sections 1 - 9, inclusive) is prejudicial, damaging and harmful to our commercial and private intellectual property and information. You are not authorised to make this available in the format proposed - ie in excel format and/or on the internet. </span></p><p style="text-align: justify;"><span style="color: #2b00fe;">7.<span class="Apple-tab-span" style="white-space: pre;"> </span>Making any of our confidential and personal financial, trade, scientific, commercial and fishing data and records public will be capable of wide scale access, manipulation, and secondary sale to vast numbers of potential consumers of data and information. </span></p><p style="text-align: justify;"><span style="color: #2b00fe;">8.<span class="Apple-tab-span" style="white-space: pre;"> </span>Certain information which excludes Identity numbers, addresses, banking details, financial statements and fishing plans may be made available to competitor applicants provided these are made available in hard copy and at departmental offices where these are viewed and studied in a secure and controlled environment which does not prejudice our rights to personal privacy and the theft of personal and commercial data and property. </span></p><p style="text-align: justify;"><br /></p><div><b>Remember you have until Friday 3 June to submit your response.</b></div><p><br /></p><p><br /></p>Shaheen Moollahttp://www.blogger.com/profile/16437200534331608596noreply@blogger.com0tag:blogger.com,1999:blog-2070994957223007416.post-67089751322553097842022-05-27T11:45:00.000-07:002022-05-27T11:45:07.567-07:00FRAP FAILURE ON A DEAD-END TRACK: APPEALS POSTPONED TO 29 JULY 2022<p style="text-align: justify;">And so the inevitable has happened ... again. Barbara Creecy, the Fisheries Minister, has now extended the deadline to submit FRAP Appeals by 60 days to 29 July 2022. In reality, these appeals will never be decided. This is why.</p><p style="text-align: justify;">The funny thing is that the Minister's spokesperson complained to a journalist that it is being made out that the department and its Minister do not know what they doing! </p><p style="text-align: justify;"><b>As someone who has run multiple successful fishing rights processes and fixed no less than 2 SA FRAP failures, TRUST ME, YOU LOT DONT HAVE A COOKING CLUE! This is why you literally cant keep to single deadline you set for yourselves! </b></p><p style="text-align: justify;">And Creecy and her team admit to this in their latest communication about having to make applications available. They say - </p><p style="text-align: justify;"><b><i>"However, on the new online platform, applications are not available as they used to be since the <u>electronic system was not designed</u> to allow applicants access to the applications of other applicants. In addition, no hard copy applications were submitted during the FRAP2021/2022 to enable a physical inspection of application forms as it was done in the past." </i></b></p><p style="text-align: justify;">Put simply. If you did know how to allocate fishing rights, you would design a system that ensured full and proper compliance with South African law from inception. You have to be a very special half-wit to not know that with a competitive fishing rights process, everyone must have access to everyone else's forms! How does Sue Middleton, Saasa Pheeha and the other senior managers at Fisheries not know these things. Were they asleep during FRAP 2013, FRAP 2016 and all the fixes? They were certainly present in the meetings I chaired as a Ministerial adviser responsible for fixing the mistakes they kept making REPEATEDLY since 2013! </p><p style="text-align: justify;">So, you would have designed AND TESTED an ON-LINE platform together with each industry body at least 12 months before the system went live. Creecy and her buffoons developed and went live with #FRAPFAILURE in a matter of 4 weeks! We said it would fail and it has been spectacular. </p><p style="text-align: justify;">You would expected that the Minister would have made clear in her policies and application process instructions that by completing the form, you consented to making all data and annexures public except for certain obvious exceptions and thus waived your rights to non-disclosure under PAIA and POPIA. </p><p style="text-align: justify;">It is as if the Department either made use of the worst and most ignorant bunch of lawyers possible or simply elected to not even have average public law specialists around! </p><p style="text-align: justify;">We have witnessed every milestone missed since 2019. Every Ministerial deadline has been missed and then extended from the 3 extensions to the filing of applications to the first of what will be many extensions to the appeal deadline. And then this egregiously incompetent so-called minister will have to decide the appeals! Again, I point to her calamitous failures in the hake inshore trawl and horse mackerel sectors where she blundered and ruined. (Load review applications. Two have already been filed and a third is on its way). </p><p style="text-align: justify;">Does being an ANC deployed cadre mean that YOU MUST FAIL? THAT YOU MUST DESTROY JOBS, INVESTMENTS AND PEOPLE'S LIVES? </p><p style="text-align: justify;">The idiocy levels are special at the fisheries management branch. You have to admit that. Imagine REPEATEDLY stuffing up these processes ... since 2013? And then each time, a team comes in and saves their collective arses and leaves them with detailed manuals on HOW NOT TO FUCK UP THE NEXT ONE. And then you promptly ignore the manuals and you go FUCK UP the very next FRAP! And again, the extent of failure just surpasses the previous one! </p><p style="text-align: justify;"><b><i>So now what? </i></b></p><p style="text-align: justify;">So that is the overwhelming question we have been getting from our clients (and a sudden surge of new clients). </p><p style="text-align: justify;">The extension of the appeals deadline to 29 July is actually just kicking the proverbial rusted and broken can down the tracks. The appeals process is meaningless in reality because the decisions themselves are just fatally bad in law. And that is every single decision across every single fishery. Its as if each of the delegated authorities gathered and decided to compete against each other to produce to most egregious and unlawful decisions imaginable.</p><p style="text-align: justify;">Each decision is underwritten by General Published Reasons that - </p><p style="text-align: justify;"></p><ul><li>Are incomplete. Most of the criteria do not contain the actual scoring rules;</li><li>Are irrational;</li><li>Comprise criteria and scoring that are not permissible in terms of the respective fishing policies;</li><li>Include scoresheets with the most nonsensical and incomplete "delegated authority comments";</li><li>Fail to score and assess key criteria such as fishing plans, investments etc. </li></ul><p></p><p style="text-align: justify;">The decisions are in fact and in law UNAPPEALABLE. The incomplete, irrational GPR's with missing criteria and rules and farcical scoresheets cant be fixed. They are final. (Just read those bizarre incomprehensible comments in the "scoresheets" attributed to the delegated authorities. Imagine the calibre of professional happy to put his signature to these documents?) </p><p style="text-align: justify;">The Minister's only option is to approach a court of law and have these decisions reviewed and set-aside. </p><p style="text-align: justify;">But she won't. Failure and destruction are part of the ANC DNA as we see all around us. They purposely choose the path of failure. </p><p style="text-align: justify;"><b><i>So what do historic right holders without rights do?</i></b></p><p style="text-align: justify;">The most exposed and vulnerable category of applicants is the historic right holder applicant who has been unlawfully refused a right. This appeals process will never see a conclusion. Should they choose to wait this process out, they will fail financially and the jobs they currently support will be lost. The new entrants granted rights at their expense have already sold their rights.</p><p style="text-align: justify;">Our unequivocal advice is that these historic right holders should approach a court of law and obtain relief, which will certainly be granted given the library of failures we have seen since this process started with the unlawful and invalid SEIAS processes and then the laughable TRABANT FRAP on-line platform.</p><p style="text-align: justify;"><b><i>What about the extended appeals process? </i></b></p><p style="text-align: justify;">The appeals process is a waste of time. Our advice is that unsuccessful applicants file appeals reserving rights - you actually cant do more as you cannot determine whether your application was correctly scored and how the scores were determined because so many criteria are incomplete and without scoring rules. </p><p style="text-align: justify;">What is clear, is that this #FRAPNEVER is really #FRAPFAILURE! <u>It will have to be redone</u>. It is so bad that it is not salvageable. I know from personal experience salvaging failed FRAPS. And to think the corrupt and incompetent Desmond Stevens managed to complete FRAP 2013 - which was the worst FRAP ever at that time. But that at least was still salvaged by yours truly. </p><p style="text-align: justify;">Creecy and her buffoons have really stretched themselves to outdo Desmond Stevens and the incorrigibly corrupt and useless Tina Joemat-Pettersen to achieve these levels of failure. </p><p style="text-align: justify;"><br /></p><p style="text-align: justify;"> </p><p> </p><p><br /></p>Shaheen Moollahttp://www.blogger.com/profile/16437200534331608596noreply@blogger.com0tag:blogger.com,1999:blog-2070994957223007416.post-33935943289115893532022-03-22T15:19:00.000-07:002022-03-22T15:19:59.798-07:00FRAP 2022: The Nonsense That are the General Published Reasons<p style="text-align: justify;">On 28 February 2022, the Department of Fisheries issued nine general published "reasons", purportedly setting out the reasons and bases of the decisions in each of the 9 fishing sectors.</p><p style="text-align: justify;">Every fishing rights allocation process since 2001 has seen the publication of general published reasons. These general published reasons are of course necessary in a constitutional democracy premised on the principles of accountable, justifiable, reasonable and transparent governance. </p><p style="text-align: justify;">One need only take a rudimentary glance at the GPR's published in 2005 and again in 2016 (pursuant to FRAP 2015) to appreciate that these documents set out in substantial and unambiguous detail the exact processes adopted to evaluate, score and weight each criterion and then how each successful applicant is allocated a proportion of the total allowable catch and/or total applied effort. </p><p style="text-align: justify;">The fundamental purpose of the GPR is to explain to each applicant how the decision pertaining to its application was made and importantly how each applicants' total score was computed. Without these details, the GPR would be a violation of PAJA and the applicant would simply not be able to fully and lawfully exercise its rights of appeal against the delegated authority's decisions. </p><p style="text-align: justify;">The 2022 FRAP decisions are also recorded in GPR's. They are structurally and visibly different to the GPR's of 2005 and 2016 which is entirely expected given that they were prepared by different persons. What is alarming about these decisions are two important things:</p><p style="text-align: justify;">Firstly, although the GPR's were published 28 February 2022, the following documentation was not made available (and remain unavailable to applicants):</p><p></p><ul style="text-align: left;"><li style="text-align: justify;">The scoresheets for each applicant remain unpublished; </li><li style="text-align: justify;">No applicant received a decision letter explaining the individual reasons for the decision;</li><li style="text-align: justify;">The GPR's remain incomplete as a plethora of databases and EXCEL spreadsheets referred to in each of them remain unavailable to applicants. Without access to these spreadsheets and databases, it is impossible to compute applicant scores and therefore prepare an effective and legally compliant appeal.</li></ul><div style="text-align: justify;">Secondly, the substantive content of these GPR's (particularly the scoring criteria and so-called quantum methodologies) is - to put it mildly - gobbledegook, irrational nonsense. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">If this was a book we could produce 9 chapters explaining the irrationality and nonsense referred to as exclusionary and balancing criteria and the various "quantum allocation methodologies". Let's be clear. What we are told is a "quantum allocation methodology" in these documents, simply is not. A legally compliant and rational methodology setting out how a right holder comes to be allocated X% of the TAC can be found in any one of the 2005 GPR's. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Turning to the scoring criteria, it becomes quickly apparent that these are largely a nonsensical conglomeration of words pretending to explain how a particular criterion is scored and weighted. Reading these criteria, it is apparent that no reasonable decision-maker could have scored and weighted these criteria based on these written decision rules. <b><u>They are that incomprehensible and arbitrary.</u></b></div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Lets consider the "transformation criteria" and specifically the computation of weighting ownership and change of ownership. The GPR records that each category of transformative ownership (race, gender, youth and disability) is equally weighted at 100 points. This is irrational for obvious reasons. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">It is practically impossible to rationally score ones change in transformative ownership as well. The rule refers to an allocation of 12 points but fails to explain how this score is computed. The entire rule is littered with ambiguous wording (for example there is reference to "12 scores" and that a score is to be expressed as a "proportion" but fails to say of what. In short, it is actually impossible to apply the rules to determine an applicant's score for transformative ownership. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">The GPR's then proceed to repeat the exact errors made in 2016 when applicants who are not required by law to comply with the Employment Equity Act and Skills Development and Levies Acts were penalised for stating that these laws are inapplicable to their businesses. During the appeals processes in 2016/17/18, these appellants were each allocated the scores originally denied them because fairness dictates that one cannot be penalised for not complying with laws the law does not require compliance with! <u>Obviously</u>! It beggars belief that the same costly errors of 2016 are now being repeated. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">The scoring of applicants' respective CSI contributions as a percentage relative to other applicants is simply irrational. A company that makes a R100,000 CSI contribution but has a turnover of R5,000,000 must surely be rewarded more than a company that makes a R150,000 CSI contribution but has a R15,000,000 annual turnover. The GPR's reward the latter company more points based on the irrationality of its scoring rule. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">The GPR's also fail to explain how these individual criterion scores are weighted to make up the total scores.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">These explanations are critical to applicants being able to understand the decisions and then to design proper appeals in terms of the MLRA and PAJA. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">The scoring criteria for jobs, investments and social contributions are similarly irrational, ambiguous, vague and disconnected to the apparent purpose and objectives set out in the respective policies and section 2 of the MLRA. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">What is apparent from studying these GPR's (and having been a decision-maker in 2004/2005 and a legal adviser to various subsequent decision-makers and ministers) is the following:</div><div style="text-align: justify;"><br /></div><div><ul style="text-align: left;"><li style="text-align: justify;">These decisions could never have been made by a reasonable human being decision-maker applying his/her mind to the applications and then producing the written rules we see before us. To do so in 30 days is simply impossible. In our view, these decisions are the product of an irrational and automated process. The attempt at explaining these scoring rules highlights this; and</li><li style="text-align: justify;">There is no logical or rational reason why there has to be a 30-day delay for the publication of letters and scoresheets unless these are being produced as this blog is written. This occurred in 2017 when the Department of Environment produced the most unlawful set of decisions in whale watching and shark cage diving sectors I ever came accorss. There were 9 reviews and the Minister lost every single one with costs. </li></ul></div><div><br /></div><div><br /></div><p></p>Shaheen Moollahttp://www.blogger.com/profile/16437200534331608596noreply@blogger.com0tag:blogger.com,1999:blog-2070994957223007416.post-45652174709527818372022-03-04T01:11:00.001-08:002022-03-04T01:11:26.814-08:00FRAP 2022: The Rights are Allocated<p style="text-align: justify;">Due to the intensity of the fishing rights allocation process last year and early in January, we largely kept clients and the broader industry updated on FRAP developments via our TWITTER HANDLE. </p><p style="text-align: justify;">However, a BLOG article providing some initial analysis of the FRAP 2022 decisions is now necessary. </p><p style="text-align: justify;">Firstly, the decisions were clearly aimed at placating the majority of the industry. The decisions in hake trawl, small pelagics and south coast rock lobster were the exact opposite of the Minister's threats in 2021 to introduce new entrants and "transform" the industry. Remember her (empty) threats about breaking up monopolies etc? All hot air of course.</p><p style="text-align: justify;">Given the significant process and legal failures of FRAP, the decisions to maintain the status quo as far as possible are understandable. Not to mention that in capital intensive, transformed sectors like hake deep-sea trawl, small pelagics and South Coast rock lobster, the introduction of large numbers of new entrants would have resulted in the collapse of the FRAP as existing right holders would have simply challenged these decisions. The ongoing failure to finalise the horse mackerel appeal decisions remains a case in point.</p><p style="text-align: justify;">Secondly, the failure to introduce any significant numbers of new entrant applicants in fisheries like hake long line or any in squid was unexpected, but again given the failure of processes and systems leading up to these FRAP decisions, hardly surprising. </p><p style="text-align: justify;">Thirdly, the significant exclusion of applicants (Especially existing operators in the tuna pole sector) highlights a bizarre policy decision by delegated authorities to simply bestow unto themselves law-making authority to make up exclusionary criteria ... unlawfully. There are a substantial number of exclusionary criteria which were never gazetted as part of the General Policy or any sector specific policy. In short, if these exclusionary criteria were not gazetted in either policy document, they are unlawful. If your application was excluded on any one of these grounds, the decision to do so is unlawful. </p><p style="text-align: justify;">There are at least 6 of these unlawful exclusionary criteria. </p><p style="text-align: justify;">Fourthly, the decisions to not weight new entrants on their investments and fishing plans / fishing ability is also certainly unlawful. There is no justification or explanation as to why this was not done. The only possible reason for abandoning such important criteria is the lack of time required to evaluate these substantive criteria. Evaluating and scoring fishing plans, knowledge and experience are subjective evaluations requiring decision-makers to actually read these documents and then allocate score according to an objective scoring and criteria template. </p><p style="text-align: justify;">Fifthly, a high-level analysis of these decisions (And scores allocated based on the criteria published in the respective General Published Reasons) seems to confirm that these applications were never actually properly scored and evaluated. What appears entirely plausible is that given that these decisions were published within 30 days of receipt of the applications, the applications were simply subjected to a mechanical and electronic scoring process. It is entirely unlikely that any decision-maker actually considered each and every application or even read, weighted and scored a single criterion. </p><p style="text-align: justify;">Sixthly, the explanatory notations to the criteria in each of the GPR's are largely not understandable and many are just irrational. For example, the decision to re-categorise applicants from being Category A to Category B (for example) is entirely unlawful and ultra-vires. The delegated authorities were never given such authorities and powers! The Minister set out clearly in each policy document what defined Category A, Category B and Category C applicants. Each of these decisions are unlawful and impact a number of decisions. Another example was the decision to score applicants that nominate a "foreign flagged" fishing vessel. The sector specific policies are clear that only South African registered vessels qualify for access to the fisheries. What we see is delegated authorities literally making up policy on the run and acting in direct violation of the General and Sector-Specific Fishing Policies. </p><p style="text-align: justify;"><b>In short, the decisions in each of these fisheries are generally unlawful and reviewable. Never before have I seen delegated authorities simply make up policy and law as they saw fit during a fishing rights process. </b></p><p style="text-align: justify;">That said, what are the high-level numbers from these allocations.</p><p style="text-align: justify;"><br /></p><p style="text-align: justify;"><b>1. Hake Deep-Sea Trawl</b></p><p style="text-align: justify;"></p><ul><li>Successful Cat A: 25 </li><li>Successful Cat B: 2</li><li>Successful Cat C: 2</li></ul><p style="text-align: justify;">Prior to this FRAP, the fishery comprised 32 right holders. The number of right holders have been reduced to 29. The smallest allocation is now less than 100 tons. </p><p style="text-align: justify;"><br /></p><p><b>2. Small Pelagic: Anchovy</b></p><p></p><p style="text-align: justify;"></p><ul><li>Successful Cat A: 59 </li><li>Successful Cat B: 3</li><li>Successful Cat C: 6</li></ul><p style="text-align: justify;"></p><p></p><p></p><p style="text-align: justify;">Prior to this FRAP, the fishery comprised 78 right holders. The number of right holders have been reduced to 68 right holders. While all new entrants were allocated 0.555% of the TAC, Afro-Fishing was inexplicably allocated 1,2% of the TAC. The GPR contains no explanation for this allocation. </p><p style="text-align: justify;"><br /></p><p style="text-align: justify;"></p><p><b>3. Small Pelagic: Pilchards</b></p><p></p><p style="text-align: justify;"></p><ul><li>Successful Cat A: 46</li><li>Successful Cat B: 2</li><li>Successful Cat C: 4</li></ul><p style="text-align: justify;"></p><p></p><p></p><p style="text-align: justify;">Prior to this FRAP, the fishery comprised 80 right holders. The number of right holders have been reduced to 52 right holders. While all new entrants were allocated 0.8% of the TAC, Afro-Fishing was inexplicably allocated 3,2% of the TAC, making it one of the largest right holders in the fishery. The GPR again contains no explanation for this allocation. </p><p style="text-align: justify;"></p><p><b>4. South Coast Rock Lobster</b></p><p></p><p style="text-align: justify;"></p><ul><li>Successful Cat A: 7</li><li>Successful Cat B: 1</li><li>Successful Cat C: 1</li></ul><p style="text-align: justify;"></p><p></p><p></p><p style="text-align: justify;">Prior to this FRAP, the fishery comprised 8 right holders. The number of right holders have been increased to 9 right holders. </p><p style="text-align: justify;"><br /></p><p style="text-align: justify;"></p><p><b>5. Squid</b></p><p></p><p style="text-align: justify;"></p><ul><li>Successful Cat A: 73</li><li>Successful Cat B: 0</li><li>Successful Cat C: 0</li></ul><p style="text-align: justify;"></p><p></p><p></p><p style="text-align: justify;">Prior to this FRAP, the fishery comprised 77 right holders. The number of right holders have been reduced to 73 right holders. No new entrants have been accommodated in this fishery. </p><p style="text-align: justify;"><br /></p><p style="text-align: justify;"></p><p><b>6. Hake Long Line</b></p><p></p><p style="text-align: justify;"></p><ul><li>Successful Cat A: 64</li><li>Successful Cat B: 7</li><li>Successful Cat C: 15</li></ul><p style="text-align: justify;"></p><p></p><p></p><p style="text-align: justify;">Prior to this FRAP, the fishery comprised 105 right holders. The number of right holders have been reduced to 86 right holders. </p><p style="text-align: justify;"><br /></p><p style="text-align: justify;"></p><p><b>7. Tuna Pole</b></p><p></p><p style="text-align: justify;"></p><ul><li>Successful Cat A: 37 </li><li>Successful Cat B: 32</li><li>Successful Cat C: 29</li></ul><p style="text-align: justify;"></p><p></p><p></p><p style="text-align: justify;">Prior to this FRAP, the fishery comprised 94 active right holders. The number of right holders have been increased to 98 right holders. The introduction of this number of new entrants is surprising. </p><p style="text-align: justify;"><br /></p><p style="text-align: justify;"></p><p><b>8. Demersal Shark</b></p><p></p><p style="text-align: justify;"></p><ul><li>Successful Cat A: 1</li><li>Successful Cat B: 0</li><li>Successful Cat C: 0</li></ul><p style="text-align: justify;"></p><p></p><p></p><p style="text-align: justify;">Prior to this FRAP, the fishery comprised 6 right holders. The number of right holders have been reduced to 1 right holder. The collapse of this fishery is hardly surprising given that it has little economic value and the growing global anti-shark seafood sentiment has effectively destroyed the market for shark meat. </p><p style="text-align: justify;"></p><p><b><br /></b></p><p><b>9. Traditional Line Fishery</b></p><p></p><p style="text-align: justify;"></p><ul><li>Successful Fishing Zone A (Western Cape): 215 </li><li>Successful Fishing Zone B (Southern Cape and Eastern Cape): 37 </li><li>Successful Fishing Zone C (KZN): 38 </li></ul><p style="text-align: justify;"></p><p></p><p></p><p style="text-align: justify;">Prior to this FRAP, the fishery comprised 450 right holders. The number of right holders have been reduced to 290 right holders with an approximate total crew complement of 2900 fishers. </p><p style="text-align: justify;">South Africa had a total of 930 commercial right holders prior to these decisions. These decisions have reduced right holder numbers to 706 (24%) across the 9 fisheries. There will also be a substantial reduction in employment as a consequence especially in the crew intensive sectors like traditional line fish. </p><p style="text-align: justify;"></p><p style="text-align: justify;"><br /></p> <p></p>Shaheen Moollahttp://www.blogger.com/profile/16437200534331608596noreply@blogger.com0tag:blogger.com,1999:blog-2070994957223007416.post-19435838233212397972021-09-21T12:36:00.000-07:002021-09-21T12:36:17.080-07:00The Draft 2021 Fishery Sector Policies: A Case of 9 Bad Policies<p style="text-align: justify;"> I have worked through the entire government gazette issued on 20 September 2021 containing 9 draft sector policies and the draft transfer of rights fishing policy. </p><p style="text-align: justify;">Should you require detailed advice and analysis on specific policies, you are welcome to contact me. It is simply not possible to draft a blog article setting out that level of analysis and detail. </p><p style="text-align: justify;">The overwhelming conclusion having read these draft policies is that they are the product of incorrigible poor intellect and knowledge of our fisheries sectors, economies and communities. None of these policies will withstand any half-decent judicial review. Like the Draft General Policy 2021, these draft policies are crap.</p><p style="text-align: justify;">The construction of entire paragraphs is nonsensical and an awful abuse of the English language. </p><p style="text-align: justify;">Bad policy that will destroy value chains, jobs, investments and entire fisheries economies are prevalent. </p><p style="text-align: justify;">How can you create policy that will exclude an entire vessel fleet in an entire sector? Or deliberately exclude everyone of the top fishing vessels in the tuna pole fishery? Is this deliberate with the intention of sabotaging the fishery by allocating rights to cadres who will then lease out the rights to the excluded top-performers? Or is this incorrigible stupidity and incompetence rolled into sickening levels of arrogance?</p><p style="text-align: justify;">Then there are yawning policy gaps. The drafts are silent on how COVID-19 compliance protocols will be considered and scored. This is key to worker safety. Nothing about compliance with COIDA and the Merchant Shipping Act such as the provision of crew contracts, paid leave and crew safety. Nothing is spoken about investments made in green technologies; ecological sustainability; funding of research and development of new fisheries; nothing about rewarding right holders who kept staff employed and paid during the COVID-19 pandemic... </p><p style="text-align: justify;">The draft policies are just bad. Badly written. Ambiguous. Unclear. Nonsensical. Zero understanding of the social and economic drivers of specific fisheries. It's so bad, the HAKE DEEP SEA TRAWL policy even gets the 2005 black ownership data shockingly wrong (The Minister could simply have read her predecessor, Marthinus van Schalkwyk's Appeal GPR on the HDST sector in 2006 to confirm the correct black ownership data).</p><p style="text-align: justify;">Bad data (well actually no data) produces awful and economically destructive policy and objectives. </p><p style="text-align: justify;">Barbara Creecy is renowned for taking criticism as a personal attack on her. But her insistence on backing the stupid; the destructive; the incoherent and the corrupt warrants these attacks. Her refusal to be held accountable will destroy what is left of South Africa's commercial fisheries. The SA fishing industry has to call time now and if she refuses to listen to reason; our courts must step in and slap her down as they have done now repeatedly in the horse mackerel sector.</p><p style="text-align: justify;">Creecy has the audacity to now include in black and white in a policy document that objective of her draft policy is to transform the industry by rewarding applicants that have included "military veterans" in their ownership and management structures! How is this even published? </p><p style="text-align: justify;">Industry bodies and their members will have to submit strong and well-reasoned responses to these draft policies. These submissions must include alternative, rational and socio-economically justifable policies and criteria to the Minister. Should she fail to abandon the irrational and arbitrary policies that dominate these drafts, industry will have the opportunity to then interdict this process and halt this farcical FRAP. </p><p><br /></p>Shaheen Moollahttp://www.blogger.com/profile/16437200534331608596noreply@blogger.com0tag:blogger.com,1999:blog-2070994957223007416.post-17881147443718249362021-09-16T04:26:00.000-07:002021-09-16T04:26:15.755-07:00The 2021 Draft General Fisheries Policy: An Analysis<p style="text-align: justify;">On the 13 September 2021, the Minister of Fisheries, Barbara Creecy, published the 2021 General Policy on the Allocation of Commercial Fishing Rights ("the General Policy"). There is a 30-day notice and comment period - effectively members of the fishing industry and other interested parties have until 14 October 2021 to comment. </p><p style="text-align: justify;">So how good or bad or acceptable is this draft policy? This is a brief analysis of the draft 2021 General Policy. </p><p style="text-align: justify;"><u style="font-weight: bold;"><span style="font-size: medium;">Is this the 2019 DRAFT General Policy with a newish title and cover page?</span></u> In February 2019, Minister Zokwana published a draft General Policy for comment. The 2021 General Policy is an identical copy of that 2019 draft! It took Minister Creecy nearly 3 years to publish a 2019 draft Policy. This is an incredible case of failure and prejudice to members of the fishing industry. </p><p style="text-align: justify;">To compound the failure, none of the industry submitted comments have been considered or included in the current 2021 draft General Policy. </p><p style="text-align: justify;"><span style="color: red;">Minister Creecy <b>must explain why it took her 3 years to publish an identical copy of the February 2019 draft policy and why none of the industry's comments and inputs were even considered.</b></span></p><p style="text-align: justify;"><u style="font-weight: bold;"><span style="font-size: medium;">What are the obvious legal flaws of the publication of the draft General Policy?</span></u> </p><p style="text-align: justify;">The most glaring legal flaw of this draft is that because it is a duplicate of the 2019 (PRE-SEIAS PROCESS), its publication is an affront to the SEIAS process, which we now know was just a sham "consultative" process. Moreover, the publication of this draft policy while "Phase 2" of the SEAIS process remains outstanding is unlawful. </p><p style="text-align: justify;">Secondly, the draft policy gazetted on 13 September 2021 is available in English alone. In terms of the Promotion of Administrative Justice Act, the publication of the Draft Policy and notice of the invitation to comment MUST be published in at least two official national languages and the notice of invitation must also be published in at least one national newspaper. <b><span style="color: red;">These are fatal legal procedural flaws as these are peremptory requirements.</span></b></p><p style="text-align: justify;">Furthermore, the draft General Policy explicitly <u>instructs</u> affected parties on the cover page in <b>BOLD UPPER CASE TEXT</b> that the draft General Policy MUST BE READ WITH THE APPLICABLE. DRAFT FISHERY SPECIFIC POLICIES... None of the draft policies or critically the draft applications forms were published for comment. <span style="color: red;"><b>Accordingly, the 30-day notice and comment period CAN ONLY START RUNNING from the date these documents and forms are gazetted.</b></span> </p><p style="text-align: justify;">Regulation 18(3) of the PAJA Regulations state that the notice published (ie the Gazette with the draft policy) <b style="color: red;">must contain sufficient information about the proposed administrative action to allow for </b><u style="color: red; font-weight: bold;">meaningful comment.</u> </p><p style="text-align: justify;">So, its a very, very, very bad legal start for the Minister and the gazetting of the draft General Policy. Essentially, she must withdraw the Government Gazette 865 of 13 September 2021 and start again by ensuring compliance with PAJA. </p><p style="text-align: justify;"><u style="font-weight: bold;"><span style="font-size: medium;">What is the Purpose of the Draft Policy?</span></u> Paragraphs 1.2 and 1.3 tell you the same thing but dont. This seems to be the confused state of the Draft Policy. It aims to guide the allocation and granting of commercial fishing rights but so too will the (yet unseen) draft fishery specific policies. </p><p style="text-align: justify;">The Draft General Policy has a crisis of identity. What it should be is an overarching umbrella policy document that aims to explain the national government's policy and processes that will govern the allocation of commercial fishing rights. </p><p style="text-align: justify;"><b>On the process side</b>, it will be deficient as the department clearly does not not yet know how this process will unfold; how applications will be completed, submitted, verified, evaluated and decided. None of that detail, which is required as we know under law for meaningful comment and consultation according to PAJA, has been figured out yet. </p><p style="text-align: justify;"><b>With respect to policy content</b>, it is understandably vague, incoherent, wrong, unlawful and contradictory because there is zero understanding and knowledge of the economic and financial structure of each commercial fishery up for allocation. For example, if the basic economic structure of the hake trawl, hake long line or small pelagic fisheries was known, then the incredulous policy statements on "multi-sector involvement" & "entity and their subsidiaries involvement" would not be included. </p><p style="text-align: justify;">More pertinently, it is unclear if this 2021 draft policy replaces the 2005 and 2013 General Policies and furthermore why this 2021 text applies to fishing sectors already allocated fishing rights such as those in 2016? </p><p style="text-align: justify;"><u style="font-weight: bold;"><span style="font-size: medium;">Where are we in 2021?</span></u> A glaring gap key to the development of overarching and sector specific policies is the answers to the policy objectives set out in the 2005 and 2013 policy frameworks. How can the 2021 process even start to enunciate policy and objectives without first having understood the extent to which past policy objectives have been met and, to the extent that objectives have not been achieved, to understand the reasons for this?</p><p style="text-align: justify;">The draft policy must set out these key socio-economic indicators as these will form the basis of justifying and explaining the policies, criteria, scoring and weighting adopted. <b style="color: red;">Without this, any policy statement, criteria, scoring and wighting adopted will be arbitrary, irrational and subject to review.</b> For example, consider the following:</p><p></p><ul style="text-align: left;"><li style="text-align: justify;">Criterion - "<u>Reliance</u>": Firstly, this criterion applies to all applicants, including "Category C" applicants who by definition have no current or prior involvement in commercial fisheries! Secondly, the criteria will score applicants based on the income derived from fishing activities in and outside of South Africa. No South African fishing company holds rights in "fishing sectors outside of South Africa". </li><li style="text-align: justify;">Criterion - "<u>Transformation</u>": The policy statement in clause 7.3.6 states that the "2021 General Policy seeks to further transform and to improve on the levels of transformation already achieved..." While furthering transformation in certain sectors was and remains a valid policy objective, there are certain sectors where "furthering transformation" is not justified any longer. For example, the hake long line fishery is 90% black owned. In the white mussel sector, 85% of right holders are black individual harvesters. Accordingly, the admission of new entrants to any sector will only be lawful if further transformation of the sector is justifiable, the admission of new entrants gives effect to the attainment of past policy objectives not met and it gives effect to the section 2 policy objectives, on balance. </li><li style="text-align: justify;">Criterion - "<u>Jobs</u>": The draft General Policy states that it is a policy objective to create permanent jobs and "better quality" jobs, and further permanent jobs are preferred. This policy statement is however directly undermined by the Minister's proposed policy on "multi-sector" involvement which directly undermine permanency and "quality" jobs. Further, not every fishery operates year-round and thus such an overarching policy statement is not rational or attainable. </li></ul><p></p><p style="text-align: justify;"><u style="font-weight: bold;"><span style="font-size: medium;">How are we dealing with the small-scale and industrial commercial fisheries?</span></u> The 2005 policy framework adopted a clustered approach to fisheries management with the aim of ensuring, <i>inter alia, </i>the small-scale commercial fisheries such as line fish, abalone, hake handline, mussels and oysters are not "infiltrated" by shareholders, directors and entities involved in the industrial commercial fisheries. The abandonment of that policy in 2013 allowed large commercial enterprises to successfully apply for dozens of hake handline rights to the detriment of individual line fishers! </p><p style="text-align: justify;">The Draft General Policy fails to protect small-scale fishermen from the intrusion of larger players who can easily out-compete individual small-scale fishers. The cluster management approach also ensures that fishing rights allocation processes and systems are properly designed to cater for the different financial and human resources available to large industry and individual small-scale commercial enterprises. </p><p style="text-align: justify;"><span style="color: red;"><b>The Draft policy must re-introduce the cluster fisheries management system so as to protect small scale fishers applying for rights in the traditional line fish, hake handline, oyster and mussel sectors. <span> These sectors must be reserved for individuals and must exclude any person that is a director/member/shareholder of an entity applying for an industrial commercial fishing right in any of the historically referenced "Cluster A" or "Cluster B" fisheries. </span></b></span></p><p style="text-align: justify;"><b><span style="font-size: medium;">Will New Entrant Applicants be wasting their money by applying?</span> </b>The Draft policy is silent as to the circumstances under which new entrants will be accommodated in any fishery. <b><span style="color: red;">Clarity in this regard is crucial to reducing unnecessary applicant numbers and importantly to prevent new entrant applicants from wasting valuable resources applying for rights in sectors that could be closed to new entrants. What are the policy criteria for including new entrants in any particular fishery? </span></b></p><p style="text-align: justify;"><b><span style="font-size: medium;">The most glaring policy omission?</span> </b>How will large and small right holders be equitably compared when it comes to key criteria such as employment numbers and investments? The General Policy does not address this key policy issue which, if not properly addressed, would result in substantial inequity between competing Category A and Category B applicants in any fishery sector. For example, if the question is "how many employees does the applicant employ"? a large quota holder would always outscore a smaller quota holder. The same would apply with respect to investment rands. <b><span style="color: red;">The Policy must be amended to ensure that applicants are measured on a per ton basis. This will ensure an equitable basis of comparison. </span></b></p><p style="text-align: justify;"><b><span style="font-size: medium;">The Second most glaring policy omission?</span> </b>The draft General Policy fails to address the fact that allocating fishing rights is a TWO-STEP process. The first step involves allocating fishing rights. Thereafter (and subsequent to a consultative process) step two involves the allocation of quota / effort in terms of the adopted quantum/effort allocation methodology. </p><p style="text-align: justify;"><b><span style="font-size: medium;">The Bad Policy:</span> </b>The draft General Policy is littered with bad policy which is a direct consequence of drafting without any understanding of the social and economic constructs of the fishery sectors. There is also vague and contradictory policy. Key examples of these bad, vague and contradictory policies are: </p><p></p><ul style="text-align: left;"><li style="text-align: justify;">There is zero mention of applicants having to have proper COVID management protocols in place for factories, offices and vessels (<span style="color: red;">Given that this draft is simply a copy and paste of a February 2019 policy, COVID-management in workplaces is of course expectedly missing. BUT WHAT IS DFFE's policy on COVID-management and workplace protocols? This POLICY must spell this out and what is required of vessel owners and right holders! IT must be a scoring criterion given that COVID management will be with us for some time to come</span>);</li><li style="text-align: justify;">There is also silence about by-catch management, ecosystem sustainability (such as garbage management plans for vessels; the investment in green fishing and operations technologies such as solar and water saving systems) and critically no policy statement with respect to achieving our obligatory targets under the UN SDG's or the implementation of Port State Measures Treaty provisions;</li><li style="text-align: justify;">There are a plethora of confused and contradictory policy statements such as those on what are "paper quotas"; the entire compliance framework; whether the fisheries sector is considered transformed or not (cf paras 2.4, 2.6, 7.3.6(a);</li><li style="text-align: justify;">The determination of the fees in clause 5.3.2 is directly contradicted by GG 866 of 13 September 2021 (The Fees Gazette). That gazette states that the fees were determined by increasing the 2016 fees gazette by 5,2%. The determination of fees as per the Gazette is unlawful and reviewable. The fees gazette itself contains some entirely incorrect fees for certain fisheries. <span style="color: red;">This Gazette has to be withdrawn and the fees properly computed in terms of clause 5.3.2 of the Draft Policy. </span></li><li style="text-align: justify;">Clause 5.4.2 refers to the sorting of applications into individuals and entities! Please dont tell me that the Minister is actually contemplating allowing individuals to apply for industrial fishing rights and entities to apply for small-scale commercial rights which must be exclusively reserved for traditional line fishers (ie individuals)! </li><li style="text-align: justify;">The entirety of clause 5.4 confirms that the department and minister have no idea how this process will be managed, administered or evaluated. </li><li style="text-align: justify;">The exclusively criteria make no mention of applicants requiring a fishing vessel suitable for the respective fisheries to be applied for. This is surely another oversight. No vessel must mean exclusion of the application! </li><li style="text-align: justify;">The structure of clause 6.3 (including the convoluted attempts at understanding what a "paper quota risk is") is an unmitigated thought-processing mess! Where to even start with these clauses? Clause 6.3.2 states that if you are convicted of "more than two contraventions", then your application will be excluded ... this is contradicted by clause 7.1.5(a)(iv). Footnote 3 on page 22 contradicts clause 7.1.5(a)(v). And the entire attempt to delineate these compliance criteria into "minor" and "substantive" violations renders the construction of the criterion as arbitrary and ambiguous. <span style="color: red;">This is was exactly the same mess that had to be fixed on appeal in the 2016 process. There is clearly no attempt at learning from past failures. In short, the current construction of the entire compliance exclusionary and balancing criteria will not withstand judicial review. Its a mess!</span></li><li style="text-align: justify;">None of the remaining balancing criteria make much or any sense (other than the obvious transformation scoring criteria). The fact that the Minister fails to understand just how critical it is that right holders MUST HOLD multiple fishing rights because diversification in fishing is critical to surviving, creating permanent jobs and surviving economic downturns in certain markets, is further proof of the failure of the SEAIS process and her department's lack of understanding as to how different fisheries sectors operate and generate incomes. </li><li style="text-align: justify;">The criteria such as fishing experience, investment, reliance & jobs are simply nonsensical. They once again confirm a fundamental lack of understanding and knowledge as to how to equitably and rationally evaluate and score applicants. </li><li style="text-align: justify;">Perhaps the most ridiculous policy provision is the prohibition that related entities can apply for their fishing quotas in the same fishery. Clause 8.6.1 states that a "company and its subsidiaries may not be granted more than one right in the sector applied for ..." This will never stand given the structure of individual fisheries sectors such as South Coast rock lobster, hake deep-sea trawl hake long line, squid and small pelagics. For one, over the past 15 years, the department and its minister had not once intimated that consolidation to this extent was ever required or would become mandatory. Secondly, had the Minister undertaken even a cursory study of the economic structures of these fisheries sectors, she would have realised that such a policy is untenable. That her advisers and the DDG of Fisheries allowed the publication of such daft policy only confirms the parlous intellectual state of the leadership of the fisheries management branch.</li></ul><span style="text-align: justify;"><p><span style="font-size: medium;"><b>Did the corrupt and failed FTC just make a come-back?</b></span> Clause 8.2 makes this bizarre policy statement about allocating rights to the FTC which will then be able to lease rights to certain categories of persons. Lets be frank here. This is nothing but an attempt to create a vehicle for the allocation of rights to ANC cadres. This model is identical to the corrupt, failed quota allocation model that is collapsing in Namibia and which resulted in the FISHROT scandal. </p><p>(And dont forget that back in 2018, Minister Zokwana decided that some 30 large pelagic fishing rights would remain available in some common pool for allocation ... which to this day has never transpired). </p><p>There is no scope or space in our current deeply incompetent and corrupt state for a "fisheries transformation council" and the leasing of rights to cadres. </p><p><span style="color: #2b00fe;">To conclude. <u>The draft General Policy is crap</u>. </span></p><p><span style="color: #2b00fe;">It's a 3-year old out-dated regurgitated policy that undertakes to implement every failure of the 2013 and 2016 fishing allocation process. It is premised on ZERO socio-economic data and analysis. There are critical policy gaps and even worse bad policy. And let us not remind ourselves that the two most important and valuable allocation processes of 2016 are STILL unresolved with two separate ministers having lost more judicial reviews in 2 fisheries than in the entire history of commercial fisheries management in South Africa. </span></p></span><p></p>Shaheen Moollahttp://www.blogger.com/profile/16437200534331608596noreply@blogger.com0