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• The scoresheets for each applicant remain unpublished; 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.