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

On 10 December 2022, the Minister published her appeal decisions in the KZN Prawn Trawl fishing sector, even though her appeal record is dated 5 November 2022. It is inexplicable and unprecedented that the Minister sat on this decision for over a month before she decided to communicate her decisions. 

The Minister decided to allocated the 1 unit of effort available to her on appeal to a Category C appellant, which scored lower than a competing Category B appellant, after she took into account certain criteria which included transformation and ignored the respective appellant's scores. There is precedent from the Western Cape High court that a minister taking such considerations into account (and ignoring the scoring) is ultra vires and reviewable. 

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

However, ignoring the incredibly pedestrian analysis of the appeals filed in this fishery (coupled with the legal flaw of not publishing the regulation 5(3) reports), the Minister's decisions once again demonstrate her ongoing refusal and failure to understand the economic structure of our commercial fishing sectors. 

The Minister decided to (unlawfully) grant a right to some Category C new entrant appellant ostensibly because she wanted to broaden access to the fishery by not granting another fishing right to a Category B appellant, Dyer Eiland Visserye. What the minister fails to understand (and this is because of the legally flawed socio-economic impact assessment she was legally required to carry out before she adopted the policy for the allocation of rights in this fishery) is that the KZN prawn trawl fishery is an incredibly economically marginal fishery. This has never been a profitable fishery for right holders for a very long time now. 

The economic analysis of the two historic right holders that operated in this fishery demonstrated that a minimum of two rights per right holder was required into in order to justify the continued operation of the fishery. The fishery employed 500 people under this structure. 

The Minister's decisions have effectively ruined the fishery and will shut it down. The two historic operators will certainly now terminate the ongoing operation of their vessels and processing infrastructure in KZN. Five hundred jobs will be lost. 

And let me be clear. None of the new entrants granted rights will ever put a vessel to sea because the costs of financing a vessel plus normal daily operation costs will render any operation bankrupt within a year. 

The Minister has destroyed another fishery. South Africa once had 22 commercially profitable and operable fisheries. That was in 2005. Before the KZN prawn trawl appeal decisions were published, the ANC government had destroyed no less than 8 fisheries, leaving 14 viable and healthy fisheries. Now, its 13 fisheries left. And 500 more people unemployed. 

90 Days Later and Not a Word on the Appeals Process

So more than 3 months have now passed since the closure of the 2022 fishing rights appeals process and Barbara Creecy, the fisheries minister, has embarrassingly failed to say a word about the finalisation (if ever) of this process. Hardly surprising though. 

Frap 2022 is an unmitigated and unsalvageable #FRAPFAILURE. 

The first fishing season of the FRAP 2022 is effectively done. Those who lost their fishing rights (and who may hope to regain it) will effectively have been denied an entire season of fishing, income and performance. They will forever remain at a disadvantage when compared to those who secured their rights on 28 February 2022.

And what makes the failure to decide these appeals timeously even more egregious, is the arrogant silence by the Fisheries Minister, Barbara Creecy. She simply refuses to address the SA fishing community and commit to dates by when appeal decisions will be issued. Perhaps this is because the legal advice she has received to date is that the appeals are not capable of rational and lawful analysis and decision because the FRAP 2022 was so tainted by illegality (even flagged by her own party in the Western Cape) and the decisions of the delegated authorities are so bad in law that they simply cannot be adjudicated. 

Given that the appeals processes across the board cannot accommodate the possible number of successful appellants; that every single one of the general published reasons documents are at best incomplete gobbledegook as opposed to a factual and legal record of how each decision came to be; and the passing of an entire year and season since the first decisions were taken, our advice remains that historic right holders who have been refused their rights, should be approaching courts of law for urgent relief now. 

The fisheries laws do not specify a time limit by when appeals must be decided but our administrative and constitutional law jurisprudence requires Creecy to make her decisions within a "reasonable" period. What is "reasonable" is of course dependent on the factual circumstances of each case case but in the commercial fishing sector, the passage of a year and the loss of an entire fishing season (and the consequences thereof) is certainly an unreasonable delay. 

However, Creecy deciding the appeals is increasingly legally impossible given what we say above regarding the unsalvageable illegality of the rights allocation process, the available rights on appeal, the fatal failure to allow for comparative analysis of competitor applications before the appeals process closed in July and of course the complete nonsense presented as reasons for the respective decisions. If no lawyer or fisheries expert could independently determine how an applicant was scored, the Minister would certainly be unable to do so. 

I have stated this before. FRAP 2013 was corrupt and bad in law but I was still able to salvage that process from complete failure. Same with FRAP 2016 and the 2018 West coast rock lobster appeals process. This process can never be salvaged. It will be set aside sector by sector ... eventually. 

Where are the Appeal Reports, Minister Creecy?

Applicants for commercial fishing rights under Fishing Rights Allocation Process 2021/2022 were required to file their respective administrative appeals in terms of section 80 of the Marine Living Resources Act, 18 of 1998 (“the MLRA”), read with regulation 5 of GN Regulation 1111 of 2 September 1998 (“the Fisheries Regulations”) by 29 July 2022.

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

“(3) The appeal contemplated in sub-regulation (2) shall be served by the appellant on the person against whose decision the appeal is made, and that person shall submit a report on the appeal to the minister within 30 days after the appeal had been served on him or her."

As such, regulation 5(3) obligates each delegated authority to produce the appeal reports within 30 days after the appeals were filed. That 30-day period expired on 30 August 2022. The obligation is peremptory. 

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

Should the Hake Long Line TAC Be Increased?

I recently tweeted about the possibility that the current portion of the hake long line total allowable catch allocation of the global hake TAC could be increased from its current 6.5% of global TAC to 10% of global TAC. 

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

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

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

The hake long line fishery historically fished exclusively over the "hard grounds", thus avoiding significant conflict with trawlers. This has changed over recent times as long liners have increased their fishing footprint and now also target "black" hake as well as the more lucrative export PQ "white hake" due to changing market dynamics and pricing. 

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

It now appears that the department may want to expropriate the 3.449% of additional TAC from the hake deep-sea trawl fishery. The hake deep-sea trawl fishery presently has 83% of the global hake TAC. 

On the face of it, the shifting of 3,4% of the TAC from trawl to long line appears superficial for the trawl industry but substantial for the hake long line fishery as it would increase effort and catch in the fishery by almost 50%. 

However, to do so lawfully, the department's hake fisheries manager must consider the ecological, social and economic consequences of such a proposed decision. In order to do so, a comprehensive socio-economic and ecological study will be required. And not the garbage that the department produced last year and labelled "socio-economic impact assessment studies"!

What we do already know and understand from detailed impact assessments undertaken by the hake deep-sea trawl industry to date (I have not seen any independent assessment reports from the hake long line industry) is that - 

1. trawl creates more jobs per ton of fish and shifting TAC to long line will result in a net loss of jobs;
2. trawl obviously accounts for a larger portion of investments in the fishing and support industries and shifting TAC to long line will result in a net loss of investments;
3. long line targets adult hake and increasing effort and TAC threatens the biological health of the hake stock, which in turn could prejudice the trawl hake MSC certification which has been maintained since 2004; and
4. while the deep-sea trawl hake fishery has consistently landed its entire portion of the hake TAC over the past decade, the long line fishery has landed less than 75% of its entire portion of the hake TAC.

The obvious question is why would the department tamper with and potentially prejudice the most lucrative, well managed. and sustainable fishery in the country? (Obviously, we are dealing with an ANC government whose policies across our economy perversely just veer toward destruction and ruin). 

But the Minister also finds herself in a legal bind as she effectively has no fish to allocate the hake long line sector on appeal because her delegated authority set aside only 2% of the TAC for the appeals process and  no more than 0.6% of the TAC is now left for the appeals process. 

So, what to do? The solution actually stares this Minister directly in the face. The present global Hake TAC apportionment bizarrely allocates 1.8433% to hake handline and 1.5% to small scale fishing!

There is no small-scale hake fishing sector. It is a fantasy; a myth. Hake simply are not available inshore for any form of hake handlining. For that reason, the hake handline fishery is a non-existent fishery today - it existed for a very short period between 2003 and 2005 and ought to have been terminated as a standalone fishery by 2007. Combined, these two non-existent fisheries account for 3.3% of the global hake TAC. Scrap the hake handline and "small-scale" hake apportionments and allocate it to long line. 

Then, put in place proper regulations governing the respective fishing areas to be targeted by long liners so that conflict with the trawl sector is avoided. And then enforce these rules.  

Problem solved. 

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

Ten days ago, Barbara Creecy's delegated authority in the hake long line fishery suddenly and quietly decided to add 3 more Category A applicants to the rights register. To this day, she has failed to announce this decision publicly to any of the hake long line right applicants or the hake long line fishing industry. 

Burt why this obviously unlawful and unaccountable conduct? Well, firstly because the hake long line fishing industry, like many other industry bodies, are just too weak to demand accountability for their members. Secondly, these industry bodies are more concerned about placating an increasingly incompetent and unaccountable minister as opposed to protecting member interests. 

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

To date, Feike, has been demanding ministerial and departmental accountability through the courts. And the consequence is that our clients have been able to secure their fishing rights. The only way to protect right holder interests is through the courts. We see this in every other sector from education, security, energy, environment to mining. Industry bodies and interest groups that seek to placate the body of corrupt, incompetent, arrogant and unaccountable ANC ministers only help to ruin their sectors and economic clusters.

The question under consideration. How on earth can a Minister permit a delegated authority to secretly issue an addendum decision in the hake long line fishery AND NOT publicise this decision. Its been 10 days and not a media statement; not a word to any of the applicants and appellants who have a direct interest in this addendum decision and the fact that it introduced 3 additional Category A right holders and consumed more than 1,4% of the 2.11% TAC set aside for appeals? 

The consequence of course is that THERE CAN BE NO APPEALS PROCESS. There is room for perhaps 1 successful appellant on appeal ... at most! Nevermind that no one has sight to the competitor applications or that the hake long line GPR is at best complete gibberish written in ANC cadre code. 

And make no mistake, within the next 15 days even that 0,6% of the TAC will no longer be available to the Minister on appeal as a review application is being prepared that will see the balance of the "appeals TAC" being allocated. 

This is #frapfailure and #frapnever. 

Barbara Creecy can start taking her bow as being the Minister responsible for the most disastrous, nonsensical, illogical and financially catastrophic fishing rights allocation process in history. And, given that she beat the corrupt and incompetent Tina Joemat-Pettersson and her disastrous FRAP 2013 by being even worse, well ... that says a lot. 

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. 

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.

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. 

 

 

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. 

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.