Attention All Category B Right Holders in the Hake Inshore Trawl Fishery!

 On 17 November 2023, the Fisheries Minister launched an urgent interdict application that sought to stop ALL Category B right holders in the hake inshore trawl fishery from fishing in 2024. She wanted the courts to interdict her staff from processing and issuing hake inshore trawl permits and to stop all Category B's granted permits from fishing. 

The interdict application was opposed by a number of Category B right holders for obvious reasons. 

Arguments in this application were heard on Thursday 14 December 2023. The Minister conceded that her request to interdict every single Category B right holder would be over broad and the court would never permit this. Effectively, the Minister conceded that right holders LETAP CC, Mayibuye Fishing, Fisherman Fresh CC, Premier Fishing, Full Deck Investments, Dazelle Traders & Offshore Fishing would always qualify for a right despite any attempts by her to re-score their applications. 

We have now been told that the Department is seeking to enforce this interdict "application" despite there being no interdict in place.  

In short, the Department MUST process and issue all hake inshore trawl fishing permits. If any Category B right holder's permit application is not being processed or if a permit already issued is "cancelled", this conduct would be unlawful and these right holders are encouraged to contact us. 

NOTE: Permits cannot be cancelled without due process and the only due process provisions allowed under the MLRA is the due process provision encapsulated under Section 28 of the MLRA. So any unilateral cancellation of a permit already issued would be unlawful. 

#FRAPFAILURE: A Summary of FRAP Court Cases Against the Fisheries Minister

The Fisheries Minister presently has more than a dozen court cases challenging her FRAP 2016 AND FRAP 2020 appeal decisions. 

Hake Inshore Trawl 

Here the minister currently faces review cases by Hacky Fishing, Sevlac Investments and Letap. In the Hacky matter (which the Minister remain in contempt of a court order from September 2022), the Minister has attempted to self-review her hake inshore trawl decisions - effectively admitting that she and her advisors have repeatedly acted unlawfully when scoring Category B applicants in that fishery. 

We have referred to the Minister's conduct as being an example of a "scorched hake" policy as she seeks to stop all Category B right holders from fishing so she can re-score their section 4 "suitable vessel" access data even though their rights have not been reviewed and set aside by any court of law. 

So in this fishery where rights were first allocated 7 years ago, this Minister admits she still cannot score a single simple section correctly. Does our esteemed fisheries minister and her clever advisors not know what a hake inshore trawl vessel is? Clearly they dont as they keep confirming that they just cannot get this right! 

Horse Mackerel

As with hake inshore trawl, the Minister is seeking to self-review her decisions here as well! And these decisions also stem from FRAP 2016! In addition, there are 4 review applications outstanding in this fishery. 

Essentially, in both hake inshore trawl and horse mackerel, the Minister has asked the court to stop all Category B right holders from fishing until she gets her own confused and chaotic house in order. Both interdict applications were opposed in mid-December.

KZN Prawn Trawl

There is a single review application by Dyer Eiland Visserye against the Minister's decision to refuse them a right despite being the higher scoring appellant. 

Traditional Line Fish

There are 2 review applications by appellants in the KwaZulu-Natal fishing zone.

South Coast Rock Lobster

Risar Fishing CC is challenging the legality of the quantum allocation methodology employed in that fishery. 

Hake Long Line

Three appellants in Category A and B launched urgent review applications last week. It is expected that a further 2 reviews will be brought next week. 

Tuna Pole

Three appellants filed review applications in the tuna pole fishery - 2 Category A appellants and 1 Category C appellant. These 3 applications are set to be heard in February 2024.  

Small Pelagics

We will update once final decisions by clients are taken to review these decisions or aspects of the decision. 

Finally. Months Late. The (Unlawful) Small Pelagic Appeal Decisions

On the evening of 22 December 2023, the Fisheries Minister issued her appeal decisions in the anchovy and pilchard fishing sectors. The decisions came almost 18 months after the appeals were filed and three months after the Minister first undertook to make these decisions public by 30 October 2023.

The Minister's decisions are yet again an example of poor decision-making coupled with appalling contempt for the fishing industry. The pilchard decisions published lacked the full record with dozens of appellants' names missing from the decision table. A "corrected" decision table was later added to the Department's website but does not record an apology from the Minister or any written confirmation that this is the actual set of decisions taken by the Minister. It is effectively an anonymous set of appellant names. 

Substantively, the Minister granted a total of 80 anchovy rights and 67 pilchard rights. 

Pilchard rights

* 60 category A

* 3 category B

* 4 category C

Anchovy rights

* 70 category A

* 4 category B

* 6 category C

The appeal decisions are unlawful on at least two significant fronts. The first is that the Minister of Fisheries gazetted policy regulating the allocation of fishing rights in a single small pelagic fishery, comprising a targeted anchovy and sardine fishery. This is the “Policy on the Allocation and Management of Small Pelagic Commercial Fishing Rights: 2021”. The delegated authority unlawfully and ultra vires abrogated to herself policy and law-making authority to separate applications for pilchard and anchovy directed fishing rights. This was also undertaken without consulting any member of the fishing industry or the South African Pelagic Fishing Association. This is a substantial and fatal violation of administrative law, which renders the delegated authority’s decisions in the pilchard and anchovy fisheries reviewable. 

The second is that the Minister's appeal decisions in the anchovy fishery reduced the allocations of existing right holders by significant quantities in many cases. The Minister had failed to consult with those right holders granted rights on 28 February 2022 before reducing their allocated quotas. This is a violation of section 80(3) of the MLRA.

On the first ground, the entire small pelagic fishing rights allocation process is reviewable. On the second ground, the Minister's decision to introduce rights to additional right holders in the anchovy sector can be interdicted and the Minister will be forced to comply with section 80(3) of the MLRA (as is the case with her squid appeal decisions).

The Anchovy Decisions

The anchovy appeal decisions are deeply flawed and susceptible to review. For one, the Minister effectively confirms the scoring criteria adopted by the Delegated Authority were not clear. The Minister's appeal decision effectively seeks to contrive and recreate the scoring and evaluation rules. She also promises to make public some "EXCEL" spreadsheet which will explain these scoring rules and criteria. This is untenable. 

These scoring rules and criteria were supposed to have been published clearly and unambiguously by the DA in her GPR. Appellants would then have been able to construct proper and comprehensive appeals challenging their respective application evaluations. 

The Minister's GPR also bizarrely states that she adopted revised calculations where the DA's calculations and scoring methodologies were incorrect. She also rescored all applicants (even those whose applications were not before her). Both statements confirm fundamental due process violations. 

For one, the Minister fails to detail and explain which criteria were rescored and calculations revised. This is simply unacceptable. These revised calculations need to be explained and the impact on every single applicant demonstrated. The Minister's statements are vague, irrational and arbitrary. 

Secondly, the Minister cannot change the scoring of or even consider an application that is not before her. Accordingly, her statement that she rescored all applications in this sector is unlawful. 

Finally, it is apparent that the minimum score required by Category C new entrant applicants to qualify  for an anchovy right is 64.81% points and yet no less than 2 appellants scored above this and did not qualify for a right. This is simply arbitrary and unlawful decision-making. 

The Pilchard Decisions

Like the anchovy decisions, these decisions follow a similar path of irrationality, nonsense and unlawfulness. As with the anchovy decision, the Minister effectively acknowledges the deeply flawed scoring methodology and criteria adopted by the DA. The minister tries to use her appeals GPR to contrive and recreate the scoring and evaluation rules. She also promises to make public some "EXCEL" spreadsheet which will explain these scoring rules and criteria. 

In both records of decisions, the Minister does not address the appeal grounds raised by appellants. What she instead does is to "fix" all those scoring rules and criteria that were so unclear in and missing from the DA's GPR. The Minister "appeal decision" ROD is effectively a poor "do-over". And this is a fundamental violation of applicants' rights as it confirms that appellants were never able to properly file appeals due to the lack of clear information in the DA's GPR setting out how each criteria was scored and weighted and how information was used and interpreted.