PROVISIONAL HAKE INSHORE TRAWL APPEAL DECISIONS: ANOTHER LEGAL TRAVESTY IS UNVEILED

ON 15 DECEMBER 2022, Minister Creecy issued her provisional appeal decisions in the Hake Inshore Trawl fishery. The provisional decisions are a consequence of the Minister losing a review application brought by Hacky Fishing earlier in 2022. 

On 26 September 2022, the Western Cape High Court reviewed and set aside the Minister's appeal decisions pertaining to her decisions concerning the evaluation and scoring of 4 other Category B new entrant appellants concerning their respective scores allocated for "vessel access/ownership". 

In short, the Minister's original appeal decisions with respect to how she evaluated and scored the appellants on "vessel access/ownership" was determined as being inconsistent, arbitrary and unlawful. 

The Minister re-scored 5 appellants, reducing the vessel access/ownership scores to zero for 3 appellants (Cape Fish Processors CC, Zimele Fishing Enterprises CC & Ocean Ukhozi Fishing (Pty) Ltd), confirming Hacky Fishing's zero score allocation and increasing the score of appellant (T&N Visserye CC). 

The Minister's provisional revised scoring and analysis is incorrect and erroneous. For one, the provisional decision to revoke the right allocated to T&N Visserye is obviously incorrect as its revised score (without the additional vessel access scoring) is 71.80%. The minimum score - according to the provisional decision - to justify the allocation of a right is 62.92%. 

And secondly, the Minister's insistence that she can "revoke" or terminate fishing rights allocated in terms of section 18 of the Marine Living Resources Act outside of the provisions of section 28 is unlawful. A right allocated in terms of section 18 of the MLRA vests upon allocation and cannot be cancelled, revoked or terminated on appeal and outside of the section 28 rights revocation process. 

Should the Minister proceed to finalise the appeals process as proposed, it will certainly elicit further successful litigation against her. The Minister still faces a review application brought by LETAP CC in this fishery which challenges the legality of the quantum allocation methodology. 

Postscript: The court order issued on 26 September 2022 by the Western Cape High Court ordered the Minister to reconsider the appeals by 15 December 2022. The Minister has not complied with the order as she only issued a provisional decision by 15 December 2022. Whether Hacky seeks to raise this possible contempt of a court order remains to be seen. 

#FRAPFAILURE: AN APPEALS PROCESS IN TURMOIL

On 15 December 2022, the Fisheries Minister, Barbara Creecy, issued her first ever statement on the status of the #FRAPFAILURE appeals process. MORE THAN 5 MONTHS AFTER THE APPEALS PROCESS CLOSED AND 15 DAYS BEFORE THE END OF THE FIRST YEAR OF THE ALLOCATED FISHING RIGHTS.

To say that the process is mired in turmoil is an understatement. The appeal decisions in the tiny KZN Prawn Trawl fishery demonstrate the extent of the unlawfulness and the lack of basic understanding of the economic structure of a really small fishery. But we should not be surprised that the Minister's decisions are fraught with illegality and a failure to understand the most rudimentary facts about fishing. The people advising her clearly are egregiously out of their depths. 

Consider the already successfully reviewed Category B sector appeal decisions in the hake inshore trawl fishery where Hacky Fishing again successfully reviewed and set aside another Ministerial decision. Creecy has now issued a provisional addendum to her hake inshore trawl appeal decisions because of the Hacky court order. We review this provisional decision in a separate article. (But this will be the first of many addenda that Creecy will have to publish).

Let's return to Creecy's epic statement on 15 December 2022 on the appeals process. What does the statement confirm and highlight? 

• Firstly, it reconfirms that a total of 2473 applications for fishing rights were received across the 9 fishing sectors opened for the allocation of fishing rights in late 2021. 
• The Department received a total of 1 213 appeals by 29 July 2022. 
• The Appeals Directorate responsible for assisting with the administration of the appeals has adopted a phased approach to dealing with these appeals.
• Phase One of the appeal process relates to the Demersal Shark Sector, the KwaZulu-Natal Prawn Trawl Sector and miscellaneous issues arising (non-compliant and late appeals). This phase was apparently completed as at 2 December although only the KZN Prawn Trawl appeal decisions were published. 
• Phase Two of the appeal process relates to the South Coast Rock Lobster Sector and the Tuna Pole Sector. This phase is scheduled to be completed by end of February 2023.
• Phase Three of the appeal process relates to the Traditional Line Fish and Squid Sectors. 
• Phase Five of appeal process relates to the Small Pelagic Sector (Sardine and Anchovy).

The Minister and her team have clearly forgotten about the hake long line and hake deep sea trawl sectors as these dont feature in her statement. The statement also confirms that the appeals for phases 3 and 4 were only being "processed" by December 2022. There is no word at all about the phase 5 completion date for the small pelagic fishery. 

Effectively, what the statement confirms is that pretty much nothing happened with the appeals filed in July 2022 until probably late November when the 5 or so appeals in the KZN prawn trawl fishery were first looked at. 

In 2018, it took me and 2 other lawyers with the assistance of 5 support staff 45 days to work through 2000 west coast rock lobster appeals. Not a single decision was challenged in a court of law. This Minister  with the support of an appeals directorate, the state attorney and external counsel cant decide 1213 in more than 6 months! 

This is farcical. Year 1 of the #FRAPNEVER has ended and the appeals process has not yielded a single set of significant decisions yet! 

(But Creecy is just another ANC-deployed cadre. Incompetent, arrogant and incredibly beyond help. Like the failures of energy supply, water treatment, public transport, policing, education, health ... this lot are deeply committed to ensuring failure.)