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.
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