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.
