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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 (coupl...

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 t...

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 a...

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 ...

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...

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 ha...

 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...

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 ...

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 ma...

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 ha...