ON 28 FEBRUARY 2023, the Minister issued her appeal decisions in the traditional line fish sector. A total of 178 appeals were filed against the decisions of 28 February 2022 (12 months ago) and 53 appeals were successful. Contrary to the Minister's attempt to fudge the appeal success rate, 29.7% of appellants were successful (And not the 80% number the Minister falsely claims).
That number is of course much higher than the 5% of rights that were set aside by the delegated authority for the appeals process. The Minister accordingly reduced the available effort that was intended for the small scale co-operatives. This is a notable and correct decision.
By and large, these appeal decisions are an improvement on the bad appeal decisions the Minister took in the KZN Prawn Trawl fishery in December 2022. However, she has effectively taken 7 months to decide 186 appeals. Its been 12 months since the first rights were allocated and only 15% of all known appeals filed have been decided to date.
Although the appeals GPR has been published (containing a generic set of decisions and explanations with a tabular list of successful appellants and right holders), the Minister has not yet published the individual appeal reports for each appellant, notification letters addressed to each appellant or revised scoresheets. In order for the decision to have any meaning, these documents are required.
The appeal decisions in the shark demersal and south coast rock lobster which were supposed to have been completed by 15 December 2022 and 28 February 2023, respectively, have also not been completed to date.
That said, the following are the notable aspects of the Minister's line fish appeal decisions:
- The minister's flexible and case-by-case interpretation of the "performance / utilisation" exclusionary criterion is noteworthy. It's not that the Minister adopted a non-formalistic or flexible approach to the interpretation of the criterion. Rather, she quietly acknowledged that the delegated authority had completely got the implementation of this criterion woefully incorrect. Many (not all) of the delegated authority's wrongs have thus been corrected at great financial cost to dozens of the right holders over the past 12 months.
- The minister's appeal decisions with respect to the interpretation of "improper lodgements" and defective applications caused by the farcical online application system are also not honest but the decisions are by and large welcomed. Many applications were excluded on grounds that were never exclusionary to start with (such as the non-submission of identity documents and tax clearance certificates). The minister's attempt to correct some of these unlawful decisions has to be acknowledged but she has failed to confirm the unlawfulness of delegated authorities manufactueing exclusionary criteria.
- The minister has also unlawfully perpetuated the incorrect and ultra vires amendment of the rules for the categorisation of applicants as new entrants despite the fact that affected applicants are supposed to have been categorised as existing or Category A right holder applicants as they had purchased fishing rights before 2020.
