This is an update on litigation currently before our courts concerning FRAP 2021:
1. Squid
Readers may recall that last year, SASMIA obtained an order against the Minister of Fisheries which required the Minister to redo her squid appeals. Essentially, the court held that the Minister's decisions to allocate rights to additional applicants during the appeals process without first consulting the successful applicants and right holders in the fishery constituted a violation of section 80(3) of the MLRA. Section 80(3) requires the Minister to consult with every party who has an interest in the matter before making decisions that would affect the rights and interests of existing right holders.
The Minister has until the end of April 2024 to remedy her unlawful appeal decisions and issue fresh appeal decisions.
2. Hake Deep-sea Trawl
Learning from past mistakes is clearly not for our esteemed Minister and her legal advisers! ZWM Fishing has taken the Fisheries Minister to court** in the hake deep-sea trawl fishing sector because the Minister again issued appeal decisions which adversely affected the rights and interests of existing right holders such as ZWM without first complying with her legal obligations under section 80(3) of the MLRA.
The Minister's decisions in this fishery resulted in the fishing quota of ZWM being reduced but the Minister failed to first consult with ZWM (and others) to obtain their views before making a final decision. The Minister's repeated failure to comply with section 80(3) and pertinently with principle of audi alterem partem does really beggar belief.
**Citation for this case is: ZWM FISHING (PTY) LTD v THE MINISTER OF FORESTRY, FISHERIES AND THE ENVIRONMENT (Case No. 6149/2024)
There is also a review application by Pioneer Fishing (Pty) Ltd (Case No. 5788/2024) which seeks the setting aside of the entire appeals process and to have the Minister redo the appeals within 90-days of a court order reviewing and setting aside the Minister's decisions.
In our view, both applications are likely to succeed. The ZWM Fishing application will certainly succeed with the result that the Minister's appeal decisions will be reviewed and set aside. This will have an effect on all those Category A, B and C appellants granted rights by the Minister - they will lose those rights.
In the Pioneer matter, the notice of motion seeks the reviewing and setting aside of the appeal decisions but requests that the court orders these impugned decisions to remain in force until the Minister re-takes the appeal decisions as directed by the Court.
2. Hake Long Line
There are 5 review applications before the Western Cape High Court in the hake long line fishery. Three of these are historic right holders who refused their rights back on appeal and two are Category C new entrant applicants who were unsuccessful.
These 5 matters are set to be heard on 16 May 2024.
Feike's Shaheen Moolla is the legal counsel in all of these matters and we naturally believe that these 5 matters will all succeed. In terms of a current interim court order which set out the timeframes for the conduct of the matter, the Minister was supposed to have filed answering papers in these review applications some weeks back but has failed to do so.
Should she eventually decide to present her answering affidavits, she will have to first seek the court's permission to file these. We are certain the 5 hake long line applicants will oppose such requests by the Minister.
3. Traditional line fish
There are two review applications in the traditional line fishery brought by line fishers in the KZN management zone. These fishers are seeking a review of the Minister's decision to deny them rights because the Minister had stated that there was not enough effort available to accommodate these two right holders. It is however apparent that the Minister's decisions are just bad in fact and law as she added up the number of rights allocated incorrectly. Instead of recording that 38 rights were allocated in Zone C, she somehow concluded that there were 43 rights granted. This computational error resulted in the bad decisions to deny these two fishers their rights.
Feike's Shaheen Moolla is acting as legal counsel in these matters as well.
In addition, there is a broader industry-wide review application against the decision to grant fishing rights in this fishery for period of 7 years as opposed to 15 years as with the other FRAP fishing sectors. Although this application was filed last year, the Minister has failed to file any answering papers to date - a further indication that she simply has no legally sustainable response to the allegations of unlawful decision-making.
Feike's Shaheen Moolla is acting as legal counsel in this matter as well.
4. South Coast rock lobster
Risar Fishing CC is reviewing the Minister's quantum allocation methodology employed in the South Coast rock lobster (SCRL) fishery. This matter is presently before the WC High Court and scheduled to be heard in early 2025.
Feike's Shaheen Moolla is acting as legal counsel in this matter.
5. Tuna pole
The Western Cape High Court recently issued judgement in two tuna pole review applications - PUFFIN FISHING CC and RIVER QUEEN TRADING 499 CC v THE MINISTER OF FORESTRY, FISHERIES AND THE ENVIRONMENT (Case No. 11413/2023).
The court reviewed and set aside the Minister's decision to refuse Puffin Fishing CC a tuna pole right on the basis that the Minister's interpretation of what constituted a "brother-sister" relationship was unlawful.
The court however upheld the Minister' decision to refuse River Queen a right due to poor catching performance.
Feike's Shaheen Moolla acted as legal counsel in these matters.
A further review application by Greenfish Traders CC will be heard in May 2024 challenging the Minister's decision to refuse Greenfish a tuna pole fishing right.
6. KZN Prawl Trawl
Dyer Eiland Visserye had brought a review application in the KZN Prawn Trawl fishery on the basis that despite it scoring higher than a competitor, the Competitor was arbitrarily and unlawfully allocated a right. In addition, the Minister appears to have made another computational error as she incorrectly determined the amount of effort (permits) available for allocation in this fishery.
Feike's Shaheen Moolla is acting as legal counsel in this matter.
7. FRAP 2016
As unbelievable as this may sound, the Fisheries Minister has yet to finalise and resolve the 2016 fishing rights allocation process.
In the hake inshore trawl and horse mackerel sectors, she has indicated that she wishes to review her own decisions as these decisions are unlawful! Her "self-review" application in the hake inshore trawl fishery is before the courts and being opposed by at least 3 right holders - T&N Visserye, Zimele Fishing Enterprises and Cape Fish Processors.
In the horse mackerel fishery, Dyer Eiland Visserye is challenging the Minister's decision to refuse it a horse mackerel fishing right.
In the hake inshore trawl fishery, there are at least 3 outstanding and current review applications against the Minister, including review applications by SEVLAC, Hacky Fishing and LETAP.
Feike's Shaheen Moolla is acting as legal counsel for Dyer Eiland Visserye, LETAP, T&N and Zimele in these matters.
Conclusion
There can be little doubt that the last two fishing rights allocation processes have been the most chaotic and disruptive processes costing the fishing industry millions in lost and interrupted revenue. Sadly, this is however the hallmark of ANC governance - maladministration, chaos, bad decision-making and a refusal to consult experts and work with business.
