Finally. Months Late. The (Unlawful) Small Pelagic Appeal Decisions

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.

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. 

Substantively, the Minister granted a total of 80 anchovy rights and 67 pilchard rights. 

Pilchard rights

* 60 category A

* 3 category B

* 4 category C

Anchovy rights

* 70 category A

* 4 category B

* 6 category C

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 “Policy on the Allocation and Management of Small Pelagic Commercial Fishing Rights: 2021”. The delegated authority unlawfully and ultra vires 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. 

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.

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).

The Anchovy Decisions

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. 

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. 

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. 

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. 

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. 

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. 

The Pilchard Decisions

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. 

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. 

The Hake Long Line Appeal Decisions: #FRAPFAILURE Marches Forth

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. 

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. 

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. 

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. 

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)."

OK NOW READ THAT AGAIN SLOWLY. RE-READ IT AGAIN, EVEN SLOWER. NOW SKETCH THE STUPIDITY OF WHAT WE HAVE HERE!

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!).

Creecy has also decided to score those with no share schemes 1 point. 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 1 point. 

But then those applicants to whom share schemes are not applicable (who are these and what makes one qualify for this inapplicable status?), get zero points! 

So non-compliance is rewarded. But it gets worse.

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 ..."

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. 

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.  

#FRAPFAILURE: Creecy's Squid Appeal Decisions Unravelling

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. 

The court in Visko Seeprodukte & 40 others v The Minister of Forestry, Fisheries and Environment & 48 Others 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.

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. 

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 "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."

This legal obligation on the part of the Minister was made clear by the Supreme Court of Appeal in Minister of Environmental Affairs and Tourism and Others v Atlantic Fishing Enterprises (Pty) Ltd and Others 20 years ago.

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. 

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.  

Hake Deep Sea Trawl Fishing Permits: Can Successful Appellants Apply Now?

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. 

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.

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. 

 "Duration of Right

3.1 The right is allocated from date of signature hereof and terminating on 28 February 2038."

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.

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? 

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! 

THE 2020 #FRAPFAILURE: WHY FRAP ANYMORE?

What is without question, is that the last three consecutive fishing rights allocation processes in 2013, 2016 and 2022 have been increasing failures. 

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. 

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?)

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. 

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. 

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. 

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.

    

Hake Deep Sea Trawl Appeal Decisions: Dull Appeasement

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. 

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. 

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. 

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. 

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. 

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. 

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). 

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? 

Well, what does the data say? Have any of the fishery objectives been met? We dont know! 

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. 

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! 

While the Minister may have thwarted a review application(s) from Category A (historic right holders), 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.  

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. 

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 and 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. 

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. 

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. 

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. 

#FRAPFAILURE UPDATE: THE MINISTER ISSUES THE TRADITIONAL LINE FISH APPEALS

ON 28 FEBRUARY 2023, 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). 

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. 

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.  

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. 

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. 

That said, the following are the notable aspects of the Minister's line fish appeal decisions:

• The minister's flexible and case-by-case interpretation of the "performance / utilisation" exclusionary criterion is noteworthy. It's not 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. 
• 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.
• The minister has also unlawfully perpetuated the incorrect and ultra vires 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.  

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.