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.
