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

ON 28 FEBRUARY 2023, the Minister issued her appeal decisions in the traditional line fish sector. A total of 178 appeals were filed against the decisions of 28 February 2022 (12 months ago) and 53 appeals were successful. Contrary to the Minister's attempt to fudge the appeal success rate, 29.7% of appellants were successful (And not the 80% number the Minister falsely claims). 

That number is of course much higher than the 5% of rights that were set aside by the delegated authority for the appeals process. The Minister accordingly reduced the available effort that was intended for the small scale co-operatives. This is a notable and correct decision. 

By and large, these appeal decisions are an improvement on the bad appeal decisions the Minister took in the KZN Prawn Trawl fishery in December 2022. However, she has effectively taken 7 months to decide 186 appeals. Its been 12 months since the first rights were allocated and only 15% of all known appeals filed have been decided to date.  

Although the appeals GPR has been published (containing a generic set of decisions and explanations with a tabular list of successful appellants and right holders), the Minister has not yet published the individual appeal reports for each appellant, notification letters addressed to each appellant or revised scoresheets. In order for the decision to have any meaning, these documents are required. 

The appeal decisions in the shark demersal and south coast rock lobster which were supposed to have been completed by 15 December 2022 and 28 February 2023, respectively, have also not been completed to date. 

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

• The minister's flexible and case-by-case interpretation of the "performance / utilisation" exclusionary criterion is noteworthy. It's not that the Minister adopted a non-formalistic or flexible approach to the interpretation of the criterion. Rather, she quietly acknowledged that the delegated authority had completely got the implementation of this criterion woefully incorrect. Many (not all) of the delegated authority's wrongs have thus been corrected at great financial cost to dozens of the right holders over the past 12 months. 
• The minister's appeal decisions with respect to the interpretation of "improper lodgements" and defective applications caused by the farcical online application system are also not honest but the decisions are by and large welcomed. Many applications were excluded on grounds that were never exclusionary to start with (such as the non-submission of identity documents and tax clearance certificates). The minister's attempt to correct some of these unlawful decisions has to be acknowledged but she has failed to confirm the unlawfulness of delegated authorities manufactueing exclusionary criteria.
• The minister has also unlawfully perpetuated the incorrect and ultra vires amendment of the rules for the categorisation of applicants as new entrants despite the fact that affected applicants are supposed to have been categorised as existing or Category A right holder applicants as they had purchased fishing rights before 2020.  

To conclude, the Minister appears to have done enough to avoid a sector-backed review of line fishery decisions as happened in 2014. However, the Minister continues to face a review application by Cape Peninsula and West Coast line fishers who are seeking to have her decision to award rights for a period of 7 years (and not 15 years) overturned and I suspect, 1 or 2 unsuccessful appellants will look at challenging their individual unsuccessful appeals. 

A THIRD #FRAPNEVER APPEALS TIMETABLE IN 3 MONTHS!

 On 22 February 2023, Minister Creecy issued her third appeals timetable in as many months! Does she and her staff even know what they said the previous month? And to Parliament?

They are literally just making it up as they go along. And she continues to insist that she has completed the shark demersal appeals and yet there is simply no record of these appeals, anywhere!

The third revised appeals timetable is as follows:

The phases and anticipated finalisation dates for each phase is as follows (verbatim from the Minister's press statement of 22 February 2023):

• Phase one of the appeals process, which was completed on 2 December 2022, dealt with the appeals in the demersal shark sector, the KwaZulu-Natal crustacean trawl sector and with miscellaneous and non-compliant appeals. [Neither the appeal decisions for shark demersal or the "miscellaneous and non-compliant appeals" have been published some 85 days later]
• Phase two of the appeals process is presently under consideration and deals with the appeals in the south coast rock lobster sector and the traditional line fish sector. These appeals are due to be finalised by 28 February 2023. The department is committed to meet this timeline. [This is in 2 days' time]
• Phase three of the appeals process deals with the tuna pole line and squid sectors. These appeals are currently under consideration by the minister’s appeals advisory team for their recommendations to minister. The proposed date for finalisation of these appeals is 30 April 2023.
• Phase four of the appeals process deals with the appeals in hake deep sea trawl and hake longline sectors. Considering the volume (120 hake deep sea trawl and 280 hake longline) and complexity of appeals in this sector, the proposed date for finalisation of these appeals is 30 July 2023. [This is incredulous. 12 months to decide 400 appeals. In 2018, Minister Zokwana (albeit under the terms of a court order) decided a similar number of rock lobster appeals in 30 days]
• Phase five of the appeals process deals with the appeals in the small pelagic: sardine (169 appeals) and anchovy (230 appeals) sectors. The department is endeavouring to complete phase five of the appeal process by 30 October 2023.

It is of course laughable that this Minister took approximately 5 months to finalise some 6 appeals in the KZN Prawn Trawl fishery. At that rate it will take her 42, 245 days to finalise the remaining appeals! In all honesty, this Minister simply does not have the ability or the skilled personnel required to deal with these appeals. And as we saw from the KZN Prawn Trawl appeal decisions, they are woefully bad, ignorant and unlawful.  

The Minister's statements also confirm that her delegated authority's have failed to comply with a mandatory procedural requirement in terms of regulation 5 of the 1998 Fisheries Regulations. They have each failed to produce the peremptory appeal reports within 30 days of the appeals closure date. And given the context of these decisions and the sectors they affect, taking 6 months to decide 6 appeals (for example) is wholly unreasonable and an affront to the constitutional and statutory requirements of fair and reasonable administrative action. These are reviewable grounds alone. 

Will this incompetent ANC government produce the ridiculous Minister of Electricity and Silly Walks before it produces the next appeal results?

ITS ONLY FEBRUARY AND CREECY'S ALREADY DUMPED HER 5-PHASE APPEALS TIMETABLE!

Yep, that's right! Less than 50 days since publishing her "5-phase appeals process" statement on 15 December 2022, the fisheries minister, Barbara Creecy, summarily dumped her appeals process timetable when she addressed parliament at the beginning of February 2023! 

And she did not have the slightest decency to even explain why she is dumping a committed timetable that was less than 50 days old! 

Her "old" 15 December 2022 appeals timetable can be read here. We have detailed the many lies Creecy and her Fisheries DDG, Sue Middleton, told Parliament on our twitter timeline which can be accessed here.

Creecy's "new" unofficial timetable stated before Parliament now commits to the finalisation of only the traditional line fish appeals by February 2023. She had previously committed to finalising all the tuna pole and south coast rock lobster appeals by February 2023. Now, she seems have delayed those to "October 2023". Maybe. Perhaps. Actually, it will not happen. The same applies to the appeals in the remaining fishing sectors - CREECY WILL NOT COMPLETE THEM. Then, Creecy also lied in December 2022 about having completed the demersal shark appeals! She had not! She told Parliament that these appeals may actually only be completed in October 2023. 

In our view, her dishonest, nonchalant and inexplicable abandonment of timetables justifies previous right holders in the every fishing sector to approach a court of law for urgent relief against the Minister. For them to continue waiting for this incompetent lot will be commercially fatal.

The appeals process is nothing but a shambolic failure like the #FRAPNEVER #FRAPFAILURE. The KZN Prawn Trawl decisions will be reviewed shortly. 

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.