PROVISIONAL HAKE INSHORE TRAWL APPEAL DECISIONS: ANOTHER LEGAL TRAVESTY IS UNVEILED

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. 

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". 

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. 

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). 

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%. 

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. 

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. 

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. 

#FRAPFAILURE: AN APPEALS PROCESS IN TURMOIL

On 15 December 2022, the Fisheries Minister, Barbara Creecy, issued her first ever statement on the status of the #FRAPFAILURE appeals process. MORE THAN 5 MONTHS AFTER THE APPEALS PROCESS CLOSED AND 15 DAYS BEFORE THE END OF THE FIRST YEAR OF THE ALLOCATED FISHING RIGHTS.

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. 

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).

Let's return to Creecy's epic statement on 15 December 2022 on the appeals process. What does the statement confirm and highlight? 

• 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. 
• The Department received a total of 1 213 appeals by 29 July 2022. 
• The Appeals Directorate responsible for assisting with the administration of the appeals has adopted a phased approach to dealing with these appeals.
• Phase One 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. 
• Phase Two 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.
• Phase Three of the appeal process relates to the Traditional Line Fish and Squid Sectors. 
• Phase Five of appeal process relates to the Small Pelagic Sector (Sardine and Anchovy).

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. 

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. 

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! 

This is farcical. Year 1 of the #FRAPNEVER has ended and the appeals process has not yielded a single set of significant decisions yet! 

(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.)

KZN PRAWN TRAWL APPEAL DECISIONS : THE DESTRUCTION OF YET ANOTHER FISHERY

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. 

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 ultra vires and reviewable. 

The Minister's decision to allocate the 1 right on appeal to Thalassa Investment (Pty) Ltd is therefore reviewable in our view. 

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. 

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. 

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. 

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. 

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. 

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. 

90 Days Later and Not a Word on the Appeals Process

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. 

Frap 2022 is an unmitigated and unsalvageable #FRAPFAILURE. 

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.

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. 

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, should be approaching courts of law for urgent relief now. 

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 unreasonable delay. 

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. 

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. 

Where are the Appeal Reports, Minister Creecy?

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.

Regulation 5(3) of the Fisheries Regulations provides as follows:

“(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."

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. 

So where are these appeal reports? They should have been made available to all applicants and appellants by now. 

Should the Hake Long Line TAC Be Increased?

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. 

The proposal was first mooted in the 2021 hake trawl and hake long line fishing policies. The exact wording is the following: 

   " The Department is considering implementing changes in the hake TAC sectoral apportionment:

• 􏰀 Longline apportionment increased from 6.551% to 10% of the hake TAC, subject to further investigation on possible impacts on resource dynamics and how the 3.449% of the TAC that would be required for this will be sourced."

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. 

This has necessarily meant greater numbers of incidences where trawlers and long liners have come into conflict on the fishing grounds.  

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. 

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%. 

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"!

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 - 

1. trawl creates more jobs per ton of fish and shifting TAC to long line will result in a net loss of jobs;
2. 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;
3. 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
4. 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.

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). 

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. 

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!

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. 

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.  

Problem solved. 

3 More Rights Added to the Hake Long Line Fishery ... But Creecy and Her Department Remain Quiet About It

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. 

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. 

As a consequence, historic members who were unlawfully denied their rights will be left to urgently protect their own interests. 

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.

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? 

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. 

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. 

This is #frapfailure and #frapnever. 

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.