Joemat-Pettersson takes Public Protector to Court

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

In summary, the Public Protector had found that - 

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

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

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

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

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

"...there do seem to be legitimate concerns, either relating to poor administration of the applications, or questionable judgements by the delegated officials... I cannot uphold or overturn a decision which may have been wrong in the first place. This is a caring government which seeks to address poverty and inequality...We are also a government which will not condone corruption of any sort, and all allegations that are made will be fully investigated. If there are breaches, the responsible officials will face the full might of the law."

Yeah RIGHT! Show me a single corrupt official that has faced the "full might of the law". The only employees Tina Joemat-Pettersson has acted against were those that tried to do the right thing for fisheries and then they won their unfair labour practice cases against her - think Sue Middleton.

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

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

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

• (b)  to report on that conduct; and

• (c)  to take appropriate remedial action.

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

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

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

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

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

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

DAFF's Latest Acting DDG: Mr Mortimer Mannya

On 28 February 2014, the Fisheries Branch was informed that its 14th (at least by our count) acting DDG for the time being would be Mr Mortimer Mannya. 

Mr Mannya's previous professional experience has been in the agricultural sector. Mr Mannya is the present Deputy Director-General: Agricultural Production, Health and Food in the Department of Agriculture, Forestry and Fisheries. Prior to that he worked in the Limpopo department of agriculture. 

According to public records, Mr Mannya holds a BSc. and Honours degrees from the University of the North. He also has an MSc from Cranfield Institute of Technology, United Kingdom, a postgraduate certificate in Project Management from the University of Bradford, United Kingdom, and completed the postgraduate Management Advance Programme at the University of Witwatersrand

Mr Mannya has been described as a "Soil scientist" with vast experience in agriculture having worked as the Principal of Tompi Seleka College of Agriculture and has been a soil science lecturer at the University of Limpopo.

It is of course unclear how long Mr Mannya will occupy this temporary position and whether he will be able to even begin to address the current horrendous state of mismanagement of our fisheries. 

Mr Mannya would be well-advised to surround himself with professional and skilled fishery managers  and immediately halt the disastrous and factional management of fisheries introduced by Desmond Stevens. Mr Mannya should immediately call meetings with each of the recognised fishery industrial bodies, the applicable fishery managers, scientists and compliance personnel and institute a process of relationship-building and end the silo-management mentality that has come to define fisheries management. This has meant that fishery managers no longer attend scientific working group meetings and similarly compliance staff have been absent from management working group meetings. We need to return to the system of collaborative management where each fishery is led by a competent fisheries manager and ably supported by suitably skilled scientists, administrators and compliance officials. 

More than 50 Key Posts Abolished at DAFF

Feike has been informed that due to management delinquency and even deliberate mismanagement, more than 50 key posts at the Fisheries Branch have been abolished despite substantial amounts of money having been spent on advertising, flying interviewees to Cape Town and paying the appointed HR company its professional fees. 

What is of grave concern is that many of these posts are in Compliance, Research and Management and a number of them were intended to oversee the implementation of the small-scale fisheries policy and small-scale fisheries research and management. The reality is now that even if the fish was magically found for the unimplementable small-scale fisheries policy, DAFF has abolished almost every post created to implement small-scale fisheries management! 

To compound the problem of fisheries mismanagement, a number of posts in the compliance chief directorate have also been abolished now, including posts for compliance officers and two important regional compliance deputy director posts. 

The abolishment of these posts will furthermore adversely impact DAFF's ability to implement any of the proposed changes to the Marine Living Resources Act, particularly the amendments aimed at allocating fishing rights to co-operatives. 

The abolishment of these posts by DAFF's top managers of course could simply be an admission that the small-scale fisheries policy is never intended to be implemented and the current proposed amendments to the MLRA are merely rhetoric; again with no intention that these will actually be implemented. 

Stevens Removed as Acting DDG of Fisheries

The removal on Friday 28 February 2014 of Desmond Stevens as the acting DDG of Fisheries could not have been more welcomed by the SA fishing industry. His reign as acting DDG of Fisheries has without doubt been one of the most controversial and catastrophic with lingering rumours of corruption having plagued a number of his decisions which are also the subject of investigations by the public protector. 

His removal does perhaps confirm that the initial legal advice given to the Fisheries Minister to date is that the 2013 FRAP process is as illegal as any process could conceivably be. His removal will certainly aid the judicial review process by the commercial line fish industry currently before the Western Cape High Court.

We understand that Stevens' replacement will again be another Acting DDG deployed from Pretoria. By our count, this will be the 14th acting DDG of Fisheries since January 2011. Since Tina Joemat-Pettersson's ruinous reign as minister of fisheries began in 2010, she has never had a permanent DDG of Fisheries, let alone a DDG who was remotely qualified or experienced in fisheries management. 

Minister Desperately tries to Fix the Unfixable

On Sunday morning 23 February 2014, the Fisheries Minister desperately sought to fix the unfixable 2013 fishing rights allocation process (FRAP) by announcing three measures to appease fishermen. 

Firstly, the Minister announced that she appointed a law firm, together with Professor Halton Cheadle, to review the 2013 rights allocation process and advise her whether the process met legal muster. 

On this point, the appointment of Prof Cheadle must be welcomed. Halton served as the principle legal adviser to the 2001 and 2005 fishing rights allocation processes. Having worked extremely closely with Halton (whom I do idolise - I admit), I know Halton to be fiercely objective and perhaps one of the most impressive lawyers in this country today. There is no doubt that he will speak absolute to truth to  Tina Joemat-Pettersson. 

However, and quite frankly, even if Prof Cheadle advises the Minister that her 2013 process was flawed from the start as she failed to obtain Cabinet approval for any of the fishing rights allocation policies; that the consultation process was a vulgar violation of the obligations set out in the Promotion of Administrative Justice Act or that the rights allocation process itself is an abhorrent litany of untold examples of illegality from the failure to score criteria properly; or the allocation of rights to applicants who failed to demonstrate access to any fishing vessel; the allocation of fishing rights to people who live in Johannesburg or hundreds of kilometres from the nearest fishing slipway; or that new entrant applicants and right holder applicants were not scored and evaluated separately, there is nothing the Minister can do to reverse this national disaster! As the executive authority responsible for fishing quota allocations, she has wilfully presided over this catastrophic failure of basic due process and refused advice from competent experts in the field.

The Minister cant "un-allocate" fishing rights already allocated to dozens of people in Johannesburg and hundreds more that do not have a fishing vessel or have never fished in their lives. The Minister certainly cant fix the fact that she unlawfully gazetted the 2013 fishing rights allocation policies (despite Feike and others telling her repeatedly that she has no legal authority at all to do so - but she of course insisted on taking advice from the most incompetent and unqualified of staff like Desmond Stevens and Dennis Fredericks). The Minister certainly cant undo the inadequate and unlawful consultation process that was permitted to be undertaken during 2013. Consulting with fishing communities after the allocation of fishing rights is like trying a super-glue a mink vase after dropping it. 

The fact that the Minister has sought the assistance of Halton Cheadle is a clear indicator that the recent legal advice she has received from the likes of Advocate Johan de Waal (another legal adviser to the 2001 and 2005 rights allocation processes), only confirms what we have been saying for at least the past 12 months now. The 2013 fishing rights allocation process is unlawful and will not withstand judicial scrutiny. 

The second announcement by the Minister is that she has extended the fishing exemption process by a further 2 months with effect from 28 February 2014. This will mean that the exemption period will come to an end a mere week before the 2014 General Elections, confirming that there is very little chance that Tina Joemat-Pettersson will even bother to deal with the appeals that have been submitted to date. This second exemption in as many months is another admission of failure. These ad-hoc exemptions and extensions only further confirm a department and Minister lurching from one crisis to the next. 

It is important to note that the granting of this exemption will not affect the line fishers' court case currently before the Western Cape High Court. The matter will be heard on an unopposed basis tomorrow (Monday 24 February) morning at 10am. The review application itself remains scheduled to be heard in April. 

Third, the Minister admitted that the 2013 rights allocation process appears to be tainted by mal-administration and illegality. This sudden admission is of course contradicted by her two previous press statements issued in January which painted a rosy and perfect picture of the 2013 FRAP. We wonder what made her change her mind and accept what we have been saying since about 31 December 2013! But of course will she hold Desmond Stevens and his cronies accountable? Will Mr Stevens be subjected to a proper and independent forensic lifestyle audit? And will ANC officials and their families hand back their ill-gotten fishing rights?

We obviously do not believe the Minister for a moment. We certainly do not believe that the Minister is remotely interested in ensuring that the tainted 2013 FRAP is fixed and its unlawful decisions reversed. The Minister has a history of being deceitful and dishonest when forced into a corner. When the public protector found against her on two separate occasions she tried to detract from the findings by coming up with the same cock-a-many story about being bribed and threatened by some non-existent fishing company. Then, when the unlawful R800 million tender to Sekunjalo Investments was exposed, she threatened to expose massive corruption in her department and to commence a judicial inquiry. Nothing happened and of course not a single corrupt staff member was arrested, disciplined or fired! 

We have little doubt that the Minister will now try and use this red-herring investigation and the 2-month exemption allowance as a desperate attempt to delay any review application until at least after the 2014 General Election so she can avoid the public humiliation of being the first fisheries minister of the 21st Century to once again preside over an unlawful and illegal fishing allocation process. 

DAFF Backs Creation of Hake Handline Paper Quotas and Fronting

It is now official. The Department of Fisheries is actually supporting the creation of an entire class of paper quotas in sectors such as the hake handline fishery. The Department has allocated hake handline fishing rights to applicants without any regard to whether they have a suitable vessel and where they reside. 

The consequence is that we now have Departmental officials unlawfully phoning previous right holders and begging them to make their fishing vessels available to certain specific "new entrant" right holders. This confirms that the Department has allocated nearshore fishing rights to people who are not fishers and who are unable to fish the resource for which they have been allocated rights. We again ask: How does this support "transformation" and "food security" as the Department repeatedly spews forth? 

If these new entrant right holders cannot fish their fishing quotas, who is going to do so? And how will this benefit the SA fishing industry and our ability land prime quality hakes for export and domestic markets? 

The information available to Feike and the SA Commercial Line Fishers Association is that to this day, not a single new entrant right holder in the hake handline or traditional line fishery has put their boats to sea. And those new entrants who have tried to negotiate access to a suitable line fish vessel have delusions of massive profits being handed to them each month while they lazily sit at home getting fat off the work of "white boat owners" and their legitimate crew. These new entrants refuse to even contemplate going to sea or raising any money to fund the operational costs of putting a boat to sea (such as fuel and bait costs, insurances and wages etc). All they want is to trade their paper quotas for monthly cheques and the Department of Fisheries is now aiding and abetting this illegality. 

According to the shocking statistics issued by the SA Commercial Line Fishers Association today, the majority of 87 hake handline fishing rights have been allocated to quota holders who do not live anywhere near the hake fishing grounds and will therefore never be able to fish these inshore quotas. 

What these allocations confirm is that the decision-maker, Mr Desmond Stevens, simply does not have the most basic understanding of the fishery and its economic drivers. The hake handline fishery is an economically marginal fishery operated by small boats launching from local slipways and harbours on the southern (east of Cape Infanta) and eastern Cape Coasts until about Port Alfred. The fishery also operates for about 3 months of the year. Hake handliners were therefore all allocated traditional line fish quotas as well to ensure that fishing can take place through the year. 

The 2013 FRAP process has destroyed this fishery as well by allocating the majority of fishing rights to people who have absolutely no connection to the hake handline fishery and who can only hope to be fronts for real fishers. 

The SA Commercial Line Fishers Association confirmed that hake handline rights have been allocated to - 

• 20 people in the the Cape Peninsula region;
• 11 on the west Coast;
•  1 in Port Nolloth;
•  1 in Riebeek Kasteel;
•  1 in Midrand (!!!);
•  14  between Hawston and Arniston.

If one understands the geography and economy of the fishery, these 48 right holders will never be able to afford to physically put a vessel to sea and fish their own hake handline fishing quotas. And the Department of Fisheries knows this full well. For this reason, DAFF officials have been frantically phoning known boat owners to convince them to fish these quotas on behalf of these "new entrant" fronts. 

Again, is this what we are told is the "transformation" of the fishery? The Minister and her department must explain whether "fronting" and the creation of "paper quotas" is their new official policy. And once again, this conduct by the Department is directly apposite to Chapter 6 of the National Development Policy. So what if the Department now tells us that 90% of right holders in the hake handline fishery are black? How does this help us when they cannot fish the fish we need to put food on tables, export quality SA branded hake, create jobs and pay taxes? If this is "transformation", then we certainly dont want any part of it. 

Traditional Line Fish Rights Crisis: An Update

The deadline for the submission of appeals in the traditional line fish and the other 7 fishing sectors passed at 16h00 on 21 February 2014. It is important to note that this deadline is not cast in stone especially since many right holders have not yet received scoresheets and other documentation required to lodge a proper, complete and adequate appeal. 

All applicants who receive their scoresheets and further documents such as the scoresheets of other applicants in their sector, in the coming days and weeks and reckon they can either appeal or supplement their appeals against the decision to refuse them a fishing right, will have 30 days from the date on which they received their scoresheets and/or additional documents to file an appeal. 

On Monday 24 February, line fishers will have their urgent application to extend the 28 February fishing exemption deadline extended heard at 10am before the Western Cape High Court. This application also paves the way for a review application to be heard on 14 April 2014 which will seek to set aside the entire 2013 FRAP line fish rights allocation process. The urgent application on Monday morning will be heard on an unopposed basis as neither the Minister nor the Acting DDG has opposed the application. 

We are however told that the Minister intends making some or other announcement regarding the fishing rights allocation process and the court application on Sunday morning at the Holy Trinity Church in Kalk Bay. During the past week, the Minister has suddenly decided meet with members of fishing communities such as in Kalk Bay. But why now? Why were these communities not consulted with BEFORE the disastrous fishing quota allocation announcement on 30 December 2013? Our information is that the Minister has been advised that the 2013 rights allocation process is simply unable to withstand any legal challenge and the Minister has been instructed to urgently and desperately buy time by trying to appease the line fishing industry by essentially agreeing to the terms of the urgent court application that is intended to be heard on Monday morning. By announcing an extension to the 28 February exemption cut-off period, the Minister will try and remove the urgency required for the application to be heard on Monday morning.  

We will provide any update on the Minister's pronouncements in Kalk Bay tomorrow on our blog.