UPDATE ON FRAP 2021 (& 2016) LITIGATION

 This is an update on litigation currently before our courts concerning FRAP 2021:

1. Squid

Readers may recall that last year, SASMIA obtained an order against the Minister of Fisheries which required the Minister to redo her squid appeals. Essentially, the court held that the Minister's decisions to allocate rights to additional applicants during the appeals process without first consulting the successful applicants and right holders in the fishery constituted a violation of section 80(3) of the MLRA. Section 80(3) requires the Minister to consult with every party who has an interest in the matter before making decisions that would affect the rights and interests of existing right holders. 

The Minister has until the end of April 2024 to remedy her unlawful appeal decisions and issue fresh appeal decisions. 

2. Hake Deep-sea Trawl

Learning from past mistakes is clearly not for our esteemed Minister and her legal advisers! ZWM Fishing has taken the Fisheries Minister to court** in the hake deep-sea trawl fishing sector because the Minister again issued appeal decisions which adversely affected the rights and interests of existing right holders such as ZWM without first complying with her legal obligations under section 80(3) of the MLRA. 

The Minister's decisions in this fishery resulted in the fishing quota of ZWM being reduced but the Minister failed to first consult with ZWM (and others) to obtain their views before making a final decision. The Minister's repeated failure to comply with section 80(3) and pertinently with principle of audi alterem partem does really beggar belief. 

**Citation for this case is: ZWM FISHING (PTY) LTD v THE MINISTER OF FORESTRY, FISHERIES AND THE ENVIRONMENT (Case No. 6149/2024)

There is also a review application by Pioneer Fishing (Pty) Ltd (Case No. 5788/2024) which seeks the setting aside of the entire appeals process and to have the Minister redo the appeals within 90-days of a court order reviewing and setting aside the Minister's decisions. 

In our view, both applications are likely to succeed. The ZWM Fishing application will certainly succeed with the result that the Minister's appeal decisions will be reviewed and set aside. This will have an effect on all those Category A, B and C appellants granted rights by the Minister - they will lose those rights. 

In the Pioneer matter, the notice of motion seeks the reviewing and setting aside of the appeal decisions but requests that the court orders these impugned decisions to remain in force until the Minister re-takes the appeal decisions as directed by the Court. 

2. Hake Long Line

There are 5 review applications before the Western Cape High Court in the hake long line fishery. Three of these are historic right holders who refused their rights back on appeal and two are Category C new entrant applicants who were unsuccessful. 

These 5 matters are set to be heard on 16 May 2024. 

Feike's Shaheen Moolla is the legal counsel in all of these matters and we naturally believe that these 5 matters will all succeed. In terms of a current interim court order which set out the timeframes for the conduct of the matter, the Minister was supposed to have filed answering papers in these review applications some weeks back but has failed to do so. 

Should she eventually decide to present her answering affidavits, she will have to first seek the court's permission to file these. We are certain the 5 hake long line applicants will oppose such requests by the Minister. 

3. Traditional line fish

There are two review applications in the traditional line fishery brought by line fishers in the KZN management zone. These fishers are seeking a review of the Minister's decision to deny them rights because the Minister had stated that there was not enough effort available to accommodate these two right holders.  It is however apparent that the Minister's decisions are just bad in fact and law as she added up the number of rights allocated incorrectly. Instead of recording that 38 rights were allocated in Zone C, she somehow concluded that there were 43 rights granted. This computational error resulted in the bad decisions to deny these two fishers their rights. 

Feike's Shaheen Moolla is acting as legal counsel in these matters as well. 

In addition, there is a broader industry-wide review application against the decision to grant fishing rights in this fishery for period of 7 years as opposed to 15 years as with the other FRAP fishing sectors. Although this application was filed last year, the Minister has failed to file any answering papers to date - a further indication that she simply has no legally sustainable response to the allegations of unlawful decision-making. 

Feike's Shaheen Moolla is acting as legal counsel in this matter as well.

4. South Coast rock lobster

Risar Fishing CC is reviewing the Minister's quantum allocation methodology employed in the South Coast rock lobster (SCRL) fishery. This matter is presently before the WC High Court and scheduled to be heard in early 2025. 

Feike's Shaheen Moolla is acting as legal counsel in this matter.

5. Tuna pole

The Western Cape High Court recently issued judgement in two tuna pole review applications - PUFFIN FISHING CC and RIVER QUEEN TRADING 499 CC v THE MINISTER OF FORESTRY, FISHERIES AND THE ENVIRONMENT (Case No. 11413/2023). 

The court reviewed and set aside the Minister's decision to refuse Puffin Fishing CC a tuna pole right on the basis that the Minister's interpretation of what constituted a "brother-sister" relationship was unlawful. 

The court however upheld the Minister' decision to refuse River Queen a right due to poor catching performance. 

Feike's Shaheen Moolla acted as legal counsel in these matters.

A further review application by Greenfish Traders CC will be heard in May 2024 challenging the Minister's decision to refuse Greenfish a tuna pole fishing right. 

6. KZN Prawl Trawl

Dyer Eiland Visserye had brought a review application in the KZN Prawn Trawl fishery on the basis that despite it scoring higher than a competitor, the Competitor was arbitrarily and unlawfully allocated a right. In addition, the Minister appears to have made another computational error as she incorrectly determined the amount of effort (permits) available for allocation in this fishery. 

Feike's Shaheen Moolla is acting as legal counsel in this matter.

7. FRAP 2016

As unbelievable as this may sound, the Fisheries Minister has yet to finalise and resolve the 2016 fishing rights allocation process. 

In the hake inshore trawl and horse mackerel sectors, she has indicated that she wishes to review her own decisions as these decisions are unlawful! Her "self-review" application in the hake inshore trawl fishery is before the courts and being opposed by at least 3 right holders - T&N Visserye, Zimele Fishing Enterprises and Cape Fish Processors. 

In the horse mackerel fishery, Dyer Eiland Visserye is challenging the Minister's decision to refuse it a horse mackerel fishing right.

In the hake inshore trawl fishery, there are at least 3 outstanding and current review applications against the Minister, including review applications by SEVLAC, Hacky Fishing and LETAP. 

Feike's Shaheen Moolla is acting as legal counsel for Dyer Eiland Visserye, LETAP, T&N and Zimele in these matters.

Conclusion

There can be little doubt that the last two fishing rights allocation processes have been the most chaotic and disruptive processes costing the fishing industry millions in lost and interrupted revenue. Sadly, this is however the hallmark of ANC governance - maladministration, chaos, bad decision-making and a refusal to consult experts and work with business.

Attention All Category B Right Holders in the Hake Inshore Trawl Fishery!

 On 17 November 2023, the Fisheries Minister launched an urgent interdict application that sought to stop ALL Category B right holders in the hake inshore trawl fishery from fishing in 2024. She wanted the courts to interdict her staff from processing and issuing hake inshore trawl permits and to stop all Category B's granted permits from fishing. 

The interdict application was opposed by a number of Category B right holders for obvious reasons. 

Arguments in this application were heard on Thursday 14 December 2023. The Minister conceded that her request to interdict every single Category B right holder would be over broad and the court would never permit this. Effectively, the Minister conceded that right holders LETAP CC, Mayibuye Fishing, Fisherman Fresh CC, Premier Fishing, Full Deck Investments, Dazelle Traders & Offshore Fishing would always qualify for a right despite any attempts by her to re-score their applications. 

We have now been told that the Department is seeking to enforce this interdict "application" despite there being no interdict in place.  

In short, the Department MUST process and issue all hake inshore trawl fishing permits. If any Category B right holder's permit application is not being processed or if a permit already issued is "cancelled", this conduct would be unlawful and these right holders are encouraged to contact us. 

NOTE: Permits cannot be cancelled without due process and the only due process provisions allowed under the MLRA is the due process provision encapsulated under Section 28 of the MLRA. So any unilateral cancellation of a permit already issued would be unlawful. 

#FRAPFAILURE: A Summary of FRAP Court Cases Against the Fisheries Minister

The Fisheries Minister presently has more than a dozen court cases challenging her FRAP 2016 AND FRAP 2020 appeal decisions. 

Hake Inshore Trawl 

Here the minister currently faces review cases by Hacky Fishing, Sevlac Investments and Letap. In the Hacky matter (which the Minister remain in contempt of a court order from September 2022), the Minister has attempted to self-review her hake inshore trawl decisions - effectively admitting that she and her advisors have repeatedly acted unlawfully when scoring Category B applicants in that fishery. 

We have referred to the Minister's conduct as being an example of a "scorched hake" policy as she seeks to stop all Category B right holders from fishing so she can re-score their section 4 "suitable vessel" access data even though their rights have not been reviewed and set aside by any court of law. 

So in this fishery where rights were first allocated 7 years ago, this Minister admits she still cannot score a single simple section correctly. Does our esteemed fisheries minister and her clever advisors not know what a hake inshore trawl vessel is? Clearly they dont as they keep confirming that they just cannot get this right! 

Horse Mackerel

As with hake inshore trawl, the Minister is seeking to self-review her decisions here as well! And these decisions also stem from FRAP 2016! In addition, there are 4 review applications outstanding in this fishery. 

Essentially, in both hake inshore trawl and horse mackerel, the Minister has asked the court to stop all Category B right holders from fishing until she gets her own confused and chaotic house in order. Both interdict applications were opposed in mid-December.

KZN Prawn Trawl

There is a single review application by Dyer Eiland Visserye against the Minister's decision to refuse them a right despite being the higher scoring appellant. 

Traditional Line Fish

There are 2 review applications by appellants in the KwaZulu-Natal fishing zone.

South Coast Rock Lobster

Risar Fishing CC is challenging the legality of the quantum allocation methodology employed in that fishery. 

Hake Long Line

Three appellants in Category A and B launched urgent review applications last week. It is expected that a further 2 reviews will be brought next week. 

Tuna Pole

Three appellants filed review applications in the tuna pole fishery - 2 Category A appellants and 1 Category C appellant. These 3 applications are set to be heard in February 2024.  

Small Pelagics

We will update once final decisions by clients are taken to review these decisions or aspects of the decision. 

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!