Thursday, July 14, 2022

FRAP APPEAL DEADLINE 29 JULY: ANOTHER EXTENSION WILL BE ANNOUNCED ... & THEN ANOTHER

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. 

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. 

Where are the Competitor Applications?

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. 

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. 

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. 

Until these applications are made available in hard copy, the 30-day appeals process cannot commence. 

And What About those incomplete and nonsensical GPR's?

In my view, this is fatal for the process. The delegated authorities have discharged their legal obligations and are now functus officio. 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. 

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. 

None of the GPR's permit this. These decisions are accordingly irrational, arbitrary, incomplete and unlawful.  

And what is the solution?

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. 

 But dont you have to wait for the appeals process to be concluded before you can approach a court of law for help?

No. You dont. Especially in this instance where the appeals process cannot lawfully be concluded for the two reasons given above. 

The Minister is in check-mate. Some one must simply knock her down now. 

Tuesday, May 31, 2022

To Consent OR Not To Consent: The Answer is Simple

 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. 

The question we keep getting is "HOW DO WE RESPOND?" Here is our advice. Respond to the Minister as follows:

You must object in totality to the making public of any of your corporation / personal data for the reasons below. Fill out the form they require and in Part C insert the following: 

The Minister of Fisheries

Barbara Creecy

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). 

I OBJECT TO THE ISSUANCE AND MAKING PUBLIC OF THIS DATA IN ITS ENTIRETY FOR THE REASONS STATED BELOW:

1. 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;

2. Your on-line platform does not secure data in an unencrypted format and has been proven to be insecure and capable of unauthorised access;

3. 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;

4. 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. 

5. 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.

6. 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.  

7. 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. 

8. 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. 


Remember you have until Friday 3 June to submit your response.



Friday, May 27, 2022

FRAP FAILURE ON A DEAD-END TRACK: APPEALS POSTPONED TO 29 JULY 2022

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.

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! 

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! 

And Creecy and her team admit to this in their latest communication about having to make applications available. They say - 

"However, on the new online platform, applications are not available as they used to be since the electronic system was not designed 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." 

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! 

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. 

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. 

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! 

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).  

Does being an ANC deployed cadre mean that YOU MUST FAIL? THAT YOU MUST DESTROY JOBS, INVESTMENTS AND PEOPLE'S LIVES?  

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! 

So now what? 

So that is the overwhelming question we have been getting from our clients (and a sudden surge of new clients). 

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.

Each decision is underwritten by General Published Reasons that - 

  • Are incomplete. Most of the criteria do not contain the actual scoring rules;
  • Are irrational;
  • Comprise criteria and scoring that are not permissible in terms of the respective fishing policies;
  • Include scoresheets with the most nonsensical and incomplete "delegated authority comments";
  • Fail to score and assess key criteria such as fishing plans, investments etc.  

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?) 

The Minister's only option is to approach a court of law and have these decisions reviewed and set-aside. 

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. 

So what do historic right holders without rights do?

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.

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.

What about the extended appeals process? 

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. 

What is clear, is that this #FRAPNEVER is really #FRAPFAILURE! It will have to be redone. 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. 

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. 


 

 


Tuesday, March 22, 2022

FRAP 2022: The Nonsense That are the General Published Reasons

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.

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. 

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. 

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. 

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:

Firstly, although the GPR's were published 28 February 2022, the following documentation was not made available (and remain unavailable to applicants):

  • The scoresheets for each applicant remain unpublished; 
  • No applicant received a decision letter explaining the individual reasons for the decision;
  • 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.
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. 

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. 

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. They are that incomprehensible and arbitrary.

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. 

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. 

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! Obviously! It beggars belief that the same costly errors of 2016 are now being repeated. 

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. 

The GPR's also fail to explain how these individual criterion scores are weighted to make up the total scores.

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. 

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.  

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:

  • 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
  • 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. 


Friday, March 4, 2022

FRAP 2022: The Rights are Allocated

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. 

However, a BLOG article providing some initial analysis of the FRAP 2022 decisions is now necessary. 

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.

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.

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. 

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. 

There are at least 6 of these unlawful exclusionary criteria. 

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. 

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.  

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. 

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. 

That said, what are the high-level numbers from these allocations.


1. Hake Deep-Sea Trawl

  • Successful Cat A: 25 
  • Successful Cat B: 2
  • Successful Cat C: 2

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. 


2. Small Pelagic: Anchovy

  • Successful Cat A: 59 
  • Successful Cat B: 3
  • Successful Cat C: 6

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. 


3. Small Pelagic: Pilchards

  • Successful Cat A: 46
  • Successful Cat B: 2
  • Successful Cat C: 4

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. 

4. South Coast Rock Lobster

  • Successful Cat A: 7
  • Successful Cat B: 1
  • Successful Cat C: 1

Prior to this FRAP, the fishery comprised 8 right holders. The number of right holders have been increased to 9 right holders. 


5. Squid

  • Successful Cat A: 73
  • Successful Cat B: 0
  • Successful Cat C: 0

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. 


6. Hake Long Line

  • Successful Cat A: 64
  • Successful Cat B: 7
  • Successful Cat C: 15

Prior to this FRAP, the fishery comprised 105 right holders. The number of right holders have been reduced to 86 right holders. 


7. Tuna Pole

  • Successful Cat A: 37 
  • Successful Cat B: 32
  • Successful Cat C: 29

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. 


8. Demersal Shark

  • Successful Cat A: 1
  • Successful Cat B: 0
  • Successful Cat C: 0

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. 


9. Traditional Line Fishery

  • Successful Fishing Zone A (Western Cape): 215 
  • Successful Fishing Zone B (Southern Cape and Eastern Cape): 37 
  • Successful Fishing Zone C (KZN): 38 

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. 

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. 


 

Tuesday, September 21, 2021

The Draft 2021 Fishery Sector Policies: A Case of 9 Bad Policies

 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. 

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. 

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.

The construction of entire paragraphs is nonsensical and an awful abuse of the English language. 

Bad policy that will destroy value chains, jobs, investments and entire fisheries economies are prevalent. 

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?

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... 

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).

Bad data (well actually no data) produces awful and economically destructive policy and objectives. 

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.

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? 

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. 


Thursday, September 16, 2021

The 2021 Draft General Fisheries Policy: An Analysis

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. 

So how good or bad or acceptable is this draft policy? This is a brief analysis of the draft 2021 General Policy. 

Is this the 2019 DRAFT General Policy with a newish title and cover page? 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. 

To compound the failure, none of the industry submitted comments have been considered or included in the current 2021 draft General Policy. 

Minister Creecy 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.

What are the obvious legal flaws of the publication of the draft General Policy? 

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. 

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. These are fatal legal procedural flaws as these are peremptory requirements.

Furthermore, the draft General Policy explicitly instructs affected parties on the cover page in BOLD UPPER CASE TEXT 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. Accordingly, the 30-day notice and comment period CAN ONLY START RUNNING from the date these documents and forms are gazetted.  

Regulation 18(3) of the PAJA Regulations state that the notice published (ie the Gazette with the draft policy) must contain sufficient information about the proposed administrative action to allow for meaningful comment. 

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. 

What is the Purpose of the Draft Policy? 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. 

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. 

On the process side, 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. 

With respect to policy content, 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. 

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? 

Where are we in 2021? 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?

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. Without this, any policy statement, criteria, scoring and wighting adopted will be arbitrary, irrational and subject to review. For example, consider the following:

  • Criterion - "Reliance": 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". 
  • Criterion - "Transformation": 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.    
  • Criterion - "Jobs": 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. 

How are we dealing with the small-scale and industrial commercial fisheries? The 2005 policy framework adopted a clustered approach to fisheries management with the aim of ensuring, inter alia, 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! 

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.  

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.  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. 

Will New Entrant Applicants be wasting their money by applying? The Draft policy is silent as to the circumstances under which new entrants will be accommodated in any fishery. 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? 

The most glaring policy omission? 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. The Policy must be amended to ensure that applicants are measured on a per ton basis. This will ensure an equitable basis of comparison.  

The Second most glaring policy omission? 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. 

The Bad Policy: 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: 

  • There is zero mention of applicants having to have proper COVID management protocols in place for factories, offices and vessels (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);
  • 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;
  • 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);
  • 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. This Gazette has to be withdrawn and the fees properly computed in terms of clause 5.3.2 of the Draft Policy. 
  • 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)! 
  • The entirety of clause 5.4 confirms that the department and minister have no idea how this process will be managed, administered or evaluated. 
  • 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! 
  • 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. 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!
  • 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. 
  • 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. 
  • 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.

Did the corrupt and failed FTC just make a come-back? 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. 

(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). 

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. 

To conclude. The draft General Policy is crap

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.