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.