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Archive for December, 2013

The Tuna Pole Decisions

The Tuna Pole General Published Reasons document suffers from the same fatal legal flaws as the KZN Prawl Trawl GPR, including the lack of any rational connection between the decisions taken and the attainment of any policy objectives. Once again, the GPR fails to explain to what extent any of the stated policy objectives have been met, including the levels of black empowerment in the fishery post the allocation of these rights. 

However, there are a number of additional concerns with the tuna pole GPR. These include the following:

1. Some 107 long term right holders appear to have been arbitrarily denied a second set of long term fishing rights. Once again, applicants are simply listed with no scores attached to their names and no scoring and weighting attaching to criteria are made available in the GPR.

2. The delegated authority states that the applications of 20 co-operatives have been reserved pending adoption of the Second MLRA Amendment Bill which seeks to, inter alia, permit co-operatives to hold  fishing rights. This decision to reserve fishing rights for co-operatives is unlawful and immediately reviewable. Section 18(4) states that "only South African persons shall acquire or hold rights in terms of this section". The fact that the various fishing sector policies and applications made provision for co-operatives to acquire fishing rights before  the MLRA had been amended, renders any decision to even consider an application by a co-operative for a fishing right under section 18 unlawful. An application by a co-operative ought to have been immediately excluded in terms of section 18, read with section 1, of the MLRA.

3. It is apparent (more so with the Tuna decisions) that new entrant applicants and right holder applicants were evaluated against the same criteria and that they were even ranked and compared against each other! This of course would be entirely unlawful and contrary to the evaluation processes adopted for the medium and long term rights allocation processes. The legal rationality of streaming applicants into "new applicants" and "right holder" categories was unanimously recognised by the Supreme Court of Appeal in 2005 Scenematic Fourteen judgement.

As with the KZN Prawn Trawl GPR, the decision to allocate fishing rights for a 7 year period is irrational and unsupported by any legitimate, rational or lawful consideration. The decision to allocate fishing rights for a reduced period without any rational justification is in itself reviewable. 

Finally, I must emphasise that because the decisions in all of the 8 fishing sectors have been taken by the acting DDG, Desmond Stevens, the entire decision-making process is susceptible to a successful judicial challenge on this ground alone. The reason for this view is quite simply that Mr Stevens lacks the very  elementary and minimum qualifications as set by the Department of Public Service & Administration itself for the post of Deputy Director-General of the Fisheries Branch and as such cannot reasonably be expected to take lawful and informed decisions pertaining to the management of fisheries. One need only consider the recent findings of the Public Protector in her report titled "Docked Vessels" concerning the constitution of the bid evaluation committee that was charged with evaluating a complex vessel management tender and where none of the officials on the bid committee were remotely qualified to consider and evaluate the various tenders submitted. There are of course a number of recent judicial decisions to support this view.
The KZN Prawn Trawl General Published Reasons document that was published on the DAFF website today is confirmation of just how seriously flawed this rights allocation process has been. It is littered with unlawfulness. It is thin on rationale and reasoning underpinning the decisions and simply fails to set out the scoring and criteria used to weight long term right holders and new entrants! How very bizarre. 

Firstly, the GPR is silent on whether and to what extent the 9 policy objectives provided for in the KZN fishing policy were met. The GPR does not state what the black economic empowerment profile of the fishery is - it was 67% black owned during the long term rights process. The GPR is silent on the extent to which the KZN prawn resource is recovering. The GPR is silent on how this allocation will promote fair labour practices in the prawn trawl fishery. [We will ignore the erroneous reference to "tuna long line" in the GPR as this is clearly another "copy-and-paste" error inherited from the policy drafting process!].

Secondly, the exclusionary criteria listed in the GPR bears little resemblance to what is stipulated in the KZN Prawn Trawl fishery policy. This mismatch of exclusionary criteria is unlawful and therefore reviewable. The delegated authority does not have legal mandate to change or deviate from the exclusionary criteria. Perhaps the most serious violation on this score is the failure to exclude any applicant that has failed to demonstrate access to a suitable vessel. Should a right have been allocated to any applicant that has failed to demonstrate such access, the decision to allocate such a right will be plainly unlawful and thus reviewable. 

Thirdly, the GPR fails to specify what balancing criteria and weighting were used for long term right applicants and - separately - for new entrants. This has always been the heart and soul of the GPR document as it explains precisely what criteria were used and what scores were attached to each of these criteria. What exact criteria were scored? What elements of "transformation" were scored and  what scores were attached to these? Was investment in vessels and land-based assets scored for right holders? Were financials evaluated and scored? What about investments in green technologies that reduce impacts on the marine ecology -  a critical objective for this fishery. Was this scored?

The GPR is silent on this most critical area of the decision-making process. 

Accordingly, none of the lists attached to the GPR state what scores any of the applicants achieved!  So how were applicants ranked and compared to each other? Further, that the GPR states that new entrants that scored 25 points or more were awarded rights is an indication that the decision to award rights to the 3 new entrant is seriously flawed. 

Fourthly, the GPR fails to state what rights were allocated to each of the 5 successful applicants. Which of these 5 were granted offshore prawn trawl rights and which shallow water rights? Further, there is no mention made of the vessels that each right holder is authorised to use. 

The GPR is confirmation that the decision-making process has been arbitrary, ad-hoc and irrational. 
We provide below a brief tabular summary of the number of rights, vessels and crew that operated in the line fish, squid, shark demersal and tuna pole fisheries immediately prior to and after the 30 December 2013 announcement.

The summary appears to indicate that -

1. The 30 December announcement has suddenly and without prior warning decimated the number of operators in the line, squid and tuna pole fisheries. The allocations in these sectors have possibly wiped out an estimated 280 vessels and 2600 jobs in just these four sectors alone; and

2. Critically, there is no information available on the numbers of vessels and crew that have been allocated in each of these sectors, which only compounds uncertainty and confusion.

Fishery
2005-2013 Vessels & Crew
2005-2013 Rights
Post 30 Dec Rights
Post 30 Dec Crew & Vessels
Squid
136 / 2422
121
93
Unknown
Tuna
190 / 2982
190
130
Unknown
Linefish
450 / 3450
450
215
Unknown
Shark
6
6
3
Unknown
Total
782 / 8854
767
438
---------------------


In the oyster fishery, which has historically been dominated by rural women pickers, there were 145 pickers who each held their own individual harvesting rights since 2005. Post 30 December, there are a measly 54 rights.

PS. DAFF had promised and undertaken that the lists of successful and unsuccessful applicants would be made public on 31 December 2013. First, the undertaking was that these lists would be posted on the DAFF website "in the morning" and then Desmond Stevens promised that the lists would be available "at 2pm" on the DAFF website. Once again, DAFF cannot be trusted to keep to its own deadlines and promises. DAFF's communication people have since refused to respond to email queries as to why these lists are not available and when we can expect them (not that we will take them seriously at all). 

DAFF’s Farcical Rights Allocation Announcement

On 30 December 2013 DAFF announced that 17% of applicants were successful in the 2013 long term fishing rights allocation process. The announcement itself was and remains a farcical, insulting and meaningless event. Lets be clear about this. 

The announcement yesterday was farcical because it is illegal and a violation of section 25(1) of the MLRA. A fishing right quite simply cannot be granted or issued without a fees gazette being in place first.  

Further, the department has no legal authority to issue a "blanket" exemption to the unknown list of successful right holders to operate without fishing permits and vessel licences. 

The announcement was farcical because no one knows who is "successful". Although DAFF stated that "successful" applicants would be notified by SMS and email, no one we know of in the line fishery, squid and tuna pole sectors received such messages by midday on 31 December 2013. DAFF also failed to publish the lists of successful and unsuccessful applicants on its website "by tomorrow morning" (ie by the morning of 31 December).

The announcement was farcical because DAFF failed to publish the detailed reasons and scoring - the General Published Reasons - for each fishery, which explains the rationale and scoring criteria that were applied to each application. 

The announcement was farcical because DAFF failed to specify how fishing rights and effort are allocated in the line, pole, hake handline and squid sectors. For example, how are crew allocations to apply in the squid fishery - is it by boat length or in terms of the 2005 effort allocation mechanism? The same uncertainties plague the line, pole and hake handline sectors. The reason for this failure is classic incompetence. The 2005 rights allocation process was divided into 2 phases (because of proper planning and competent experts directing the process). The second phase of the process (before rights were allocated) involved a consultation process on the effort component of the process. During this second phase, an effort allocation mechanism for each sector was determined in consultation with each fishery sector. DAFF clearly cocked this up as no one has been consulted on an effort allocation mechanism for any of the applicable sectors - squid, tuna, hake and line fish. 

So, actually none of the "successful" applicants will know how many crew they may actually have on board their vessels. How will DAFF correct this effort allocation bungle now especially in the complicated squid fishery? [Eish, another review ground arises!]

The announcement was farcical because no one knows the duration of their fishing right. How can rights be "allocated" but without specifying their duration?

The announcement was farcical because DAFF's offices are closed until 2 January 2014 and right holders are unable to demand accountability and answers from DAFF's senior managers and decision-makers.  




The Fisheries Department today announced that it had allocated 593 fishing quotas across 8 fishing sectors. 2870 Applicants had failed to secure a fishing right. Decisions on 22 applications were reserved. 


The Fisheries Department today announced that it had allocated 593 fishing quotas across 8 fishing sectors. 2870 Applicants had failed to secure a fishing right. Decisions on 22 applications were reserved. 

However, the department continued to embroil the process in secrecy and confusion. DAFF failed to make public who the successful applicants are in each sector and which applications were subjected to "reserved" decisions and when these reservations would be resolved.

DAFF did however confirm that successful applicants would be allowed to continue to fish without any fishing permits or vessel licences and that these successful applicants would be informed by "SMS" and emails. This illegality and violation of the provisions of the MLRA would be permitted by DAFF for periods of 1 to 2 months (January 2014 to February 2014). Notification by SMS and email will be of little use to many squid, tuna pole and line fish operators who have already tied up their boats and sent their crew home because DAFF failed to timeously announce these rights. 

The following is a summary of the numbers for the rights application / allocation process:

Sector
Number of Applicants
Successful Applicants
Reserved
Decisions
Unsuccessful Applicants
Demersal shark
110
3
1
106
Hake Handline
530
87
0
441
KZN Prawn Trawl
81
5
0
76
Oyster
260
54
0
203
Squid
308
93
1
214
Traditional linefish
1566
215
0
1351
Tuna pole-line
329
130
20
179
White mussel
306
6
0
300
Total
     3490     
593
22
2870

(We do note that the number of successful, reserved and unsuccessful applications total 3485 and not 3490). Five applications appear to be unaccounted for based on the total number of applications received - 3490).

It is unclear why so few fishing rights were allocated in these effort controlled fisheries - is the department expecting such a huge success rate on appeal? There are some 1000 fishing quotas available for allocation. For example, 450 fishing rights (fishing vessels) and 3450 crew can be allocated in the linefishery but only 215 rights allocated, which is less than half of the available effort. The tuna pole fishery can accommodate 200 vessels. 

A proper analysis of this process can only be undertaken once the official General Published Reasons for each sector, together with the complete lists of applicants, successful applicants and reserved decisions are made public. It is unclear why these documents were not made public today as well. 

Regardless though of the reasons underpinning the decisions, this announcement remains unlawful and a violation of section 25(1) of the MLRA as the fishing rights have been issued and/or granted in the absence of an obligatory fees gazette. 




What if your fishing right is not re-allocated?

It is inevitable that the 2013 Fishing Rights Application Process will be subjected to a number of review applications - as indeed both the medium term and long term processes were - by unsuccessful applicants. The only difference is that the 2013 process has more proverbial holes than that infamous slice of swiss cheese. And of course both the medium and long term fishing right processes passed constitutional muster, most notably by the Constitutional Court itself in the Bato Star decision. 

So what are the best grounds to review any decision that denies you a second long term fishing right? Lets start with what you dont want to do. You certainly dont want to ask a court of law to determine whether any decision could have been done in a better way or that the decision of scientific experts should be second guessed. Courts simply will not substitute the decisions of experts with their own especially when your application proposes a "better alternative". Of course, if fishing rights are allocated by someone who is objectively so unqualified for the job - such as a person with...say only a matric qualification and no experience in domestic or international fisheries management - and that such a person has done so with little or no expert advice, then a court would be more than comfortable with setting aside such a decision on grounds such as rationality or reasonableness.  

But an urgent review application must fundamentally show unlawfulness - not a better alternative. Here are 4 certain grounds on which to base a review application. Additional grounds will certainly surface once the Department actually announces any rights allocation decision.

The most obvious aspect of unlawfulness pertaining to the 2013 FRAP is the fact that the fishing policies which are the foundations of any decision, are unlawful having not been developed nor implemented in terms of the Constitution. The Acting DDG, Desmond Stevens, confirmed on radio that Cabinet approval was never sought nor given. Only Cabinet can pass such national policy. In addition, the Fisheries Minister does not have any legal authority under the Marine Living Resources Act to make policy. Accordingly, each of the current 8 fishing sector policies and the General Fishing Policy of 2013 are invalid and unenforceable. Any decision to allocate a fishing right that is based on any of these policies would therefore be tainted by illegality and unlawful. 

A second ground would be the unlawful public comment and notice and comment processes that were adopted prior to the finalisation of the of fishing policies and the call for applications. I have previously set out in some detail how these Department's consultation processes have violated due process and the Promotion of Administrative Justice Act, read with the applicable regulations. 

A third ground of review would be the failure to comply with prescriptive requirements of section 25(1) of the Marine Living Resources Act, which prescribes that before any fishing right is issued or granted, the Fisheries Minister, in consultation with the Finance Minister, must gazette the fees applicable to the granting of fishing rights. 

A fourth ground of review will arise should a fishing right be allocated to a co-operative. Co-operatives may not hold a section 18 fishing right under the Marine Living Resources Act at present. The Second MLRA Amendment Bill is just that - a bill. It has not yet been considered, let alone been passed by the National Council of Provinces. Should it be passed by the NCOP - possibly by March 2014 - it will have to go back to the National Assembly before being submitted to the President for promulgation. It is our view that the Amendment Bill will only come into force - as we have said for some time now - after the 2014 General Elections. In other words, even after the allocation of abalone fishing quotas which need to be re-allocated by mid 2014. (WARNING TO DAFF AGAIN: Note this is another rights allocation process that you are months behind schedule with ... again.) 



DAFF: Now Failing at the Very Basics

We all know the levels of incompetent leadership at the Fisheries Department mean that it is unable to deploy fisheries patrol and research vessels, or allocate fishing quotas in time. But it is increasingly apparent that DAFF is now unable to even ensure that fishing seasons commence on time any more. 

The West Coast Rock Lobster fishing season starts on 15 October each year. The TAC this year was announced on 6 November. 

The abalone season commences on 1 November. By mid-December, the Department refused to inform the SA Abalone Industry Association of the catch limits for the final season of the current long term period! Then, with less than 24 hours' notice, abalone zonal representatives were summonsed to the Department's offices in Cape Town on 19 December where the TAC was announced. Without consultation, the Department summarily reduced the TAC by more than 30% from 150 tons to 96 tons. 

The inability to ensure proper consultation with industry bodies throughout the season and the increasing inability to ensure that fishing seasons commence timeously, are only further indications of a department in complete meltdown. 


FRAP: Seriously What are the Options?

The Fisheries Department's ardent arrogance and contemptuous incompetence has confirmed what Feike has been for more than 12 months now. This bunch of hapless cadres led by the most incorrigible of Ministers could never have lawfully and timeously allocated fishing rights even if an Idiot's Guide to Allocating Fishing Rights was tailor drafted for them 3 years ago!

I recall being telephoned while on an overseas assignment for the European Union in March 2011. The caller was one Selby Bokaba - the Fisheries Minister's then spokesperson. Dear Selby bemoaned the fact that a recent blog article referred to the Minister as either "dishonest" or "incompetent" or "both"! Selby wanted to know if I could meet at the Minister's office at 120 Plein Street to instead discuss how we could work together "rather than against each other". My first meeting upon returning to SA was at 120 Plein Street and to this day, I cant recall the discussions we had without giggling! I had to answer questions such as what does "WWF" stand for. Could abalone not be found in Kwa-Zulu Natal? Then the Minister's complaint was that the staff at DAFF were all trying to make her fail and that is why she was not succeeding.  BLA BLA BLA. I nonetheless agreed that I would try and assist. Suffice-it-to-so, it was like trying to firm up a pap snoek. It was my fault for even thinking they could be helped

Its the 27th of December 2013. More than 1000 fishing rights across 8 commercial and artisinal fishery sectors terminate in less than 5 days. More than 7000 jobs will be lost with many having been shed already already due to the complete lack of communication by the Department and the resulting uncertainty. (Note the silence from the ANC-aligned unions like FAWU looking after the workers' rights).  

The Department is continually "rumoured" to state that fishing rights will be allocated before 31 December 2013. But that is only a rumour. They are cowards. They are unable to face the SA fishing industry with honesty and integrity as these are values and virtues none of these officials possess. How could these officials not even allocate fishing fishing rights in tiny sectors like KZN Prawn Trawl where only 1 (YES 1) right holder operates or in the mussel sector where a maximum of 7 rights can be allocated? This is incompetence on a grand scale. 

But even if fishing rights are allocated today, it will be too late. For one, there still is no gazette stipulating the proposed grant of fishing right fees. In terms of section 25(1) of the Marine Living Resources Act, 18 of 1998, a fishing right can only be granted or issued issued against the payment of the fees determined by the Fisheries Minister in consultation with the Minister of Finance.

In other words, a fishing right CANT be granted or issued until and unless the Minister of Fisheries, in consultation with the Minister of Finance, has determined the "grant of right" fees provided for under section 25(1). 

And in terms of the Promotion of Administrative Justice Act, read with the applicable regulations, the gazette stipulating these fees MUST first be published for comment or consulted on publicly first for a period of not less than 30 days. Which means further, that before any fishing right can be granted or issued the Fisheries Minister, in consultation with the Finance Minister, must publish for comment for a period of not less than 30 days, a gazette proposing the various fees for the granting of fishing rights in each of the 8 sectors. Once this comment period expires, the Minister of Fisheries, in consultation with the Minister of Finance, must then gazette the final fees gazette. This cannot realistically take place before the middle of March 2014 given that Ministers (such as the Finance Minister) are on annual leave until mid-January and then of course the treasury is fully committed to preparing the annual budget for delivery in early February 2014.

Any attempt to grant or issue a fishing right before this occurs, will be illegal and immediately reviewable. 

Then of course the Department's workforce is presently on leave! For any fishing right to be utilised, one needs a fishing permit. The Department's contingency plan was clearly that they would go and leave and screw the fishing industry. How does a department close during such a time of crisis? Who is going to process and issue more than 1000 fishing permits should fishing rights be granted today? - Nevermind the law and what section 25 requires! And what about right holders who have held rights over the past 8 years who are suddenly not granted fishing rights! What happens to the jobs they sustain, the investments they have made and the servicing of debt obligations? How are these to be dealt with within hours before 31 December when the department has had 8 years to get its house in order and prepare for this rights allocation process? 

Increasingly, right holders' only option will be to approach the High Court for urgent relief forcing the Fisheries Minister to allow them to continue fishing until such time as fishing rights are properly allocated. Understanding that the costs of doing so may be prohibitive for a single right holder, our advice is that right holders in the same sector make joint applications, allowing for the sharing of initial costs.  

Applications for exemption are quite frankly a waste of time and effort as it is unclear that one can even apply for an exemption from the provisions of section 13(1) of the Marine Living Resources Act, which clearly states that no person may perform any activity under the MLRA without a permit issued under section 13. Accordingly, one needs a section 13 permit to perform any activity authorised under section 81 (the exemption). 





A FRAP OF A FAILURE

Well, Friday the 20th has come and passed. The department closes its doors on Tuesday, 24 December 2013 for the holiday season but still not a single fishing right of the more than 1000 than ought to be allocated BEFORE 31 December 2013, has been allocated. 

It has of course been patently clear for months now that the department's promises that it would be able to allocate fishing rights by September 2013 and then "before" the rights expire on 31 December 2013 were just more false promises. 

The SA Tuna Association today received written confirmation from the department that fishing rights will in all likelihood not be allocated by 31 December 2013 and that fishing boats must simply return to port by midnight on 31 December 2013. 

Even if fishing rights are miraculously issued between Monday 23 December and Tuesday 24 December 2013, no "right holder" will be able to go fishing on 1 January 2014 as the department has still not gazetted the fees for the granting of fishing rights and fishing permits must still be applied for and issued under section 13 of the MLRA. Fishing permits take at least 7 working days to issue. And of course for a valid and lawful grant of fishing right gazette to be adopted, a draft must first be published for public comment. And both the draft and final gazettes can only be published with the concurrence of the Finance Minister. 

So while incompetent and arrogant departmental officials will no doubt be partying the night away on 31 December 2013, with salaries having been electronically transferred to their bank accounts thanks to us poor taxpayers, more than 1000 right holders and 5000 workers will be facing 1 January 2014 with no fishing rights, tied up boats and the prospect of losing everything that has been worked for over the past  8 years of long term fishing rights. 

Postscript: Members of the ANC's Military Veterans of which the incompetent Desmond Stevens is a member, invaded DAFF's offices on 19 December 2013 demanding that certain lucrative compliance-related contracts handed to them previously be re-allocated to them. Of course, we should be asking (as we had previously back in 2010), why is the ANC's Military Veterans the recipients of lucrative compliance tenders? Do we pay taxes solely to benefit the ruling elite and party? 

The Silence of the FRAP continues!

There are less than 20 days to go to 31 December 2013 when some 1000 fishing rights in 8 commercial and artisinal fishing sectors automatically revert back to the SA government, summarily leaving 1000 quota holders without fishing rights and threatening more than 5000-6000 direct jobs. 

Is this Tina Joemat-Pettersson's new year's present to the fishing industry? Both the Minister and her staff have repeatedly promised that fishing rights would have been long allocated by now. In fact, the department's most recent and current timetable on the allocation of fishing rights continues to state that all fishing rights would be allocated by September .... 2013!! 

Perhaps what is most telling BUT concerning is the loud silence on the status of the allocation process. DAFF and its Minister refuse to issue a single press statement or provide any assurance to very distrusting and worried fishing industry. 

For one, the Fisheries Department has still not published its promised "grant of fishing rights fees"! Remember this promise which was made back in September when they decided to zero-rate the application fees because they ran out of time? Before, the final fees can be published (which can only occur with the concurrence of the Finance Minister), they must first be published for comment in terms of South African law. And, after the burial of President Mandela on Sunday, Ministers start their annual leave. Where is the draft Grant of Fishing Fishing Right Fees gazette, DAFF? Tick, tick, tick. 

So what happens in 20 days' time on 1 January 2014? There cannot be a "roll-over" of fishing rights. Section 18 of the Marine Living Resources Act does not permit this. What is a great sadness is how the insistence on "transformation" (well, actually cadre deployment of appallingly unqualified and unskilled but loyal ANC members to the top management posts at the Fisheries Department) has retarded the lawful and constitutionally mandated transformation of fisheries management in South Africa. The 2013 right allocation debacle only takes us back to the previous century and the chaos that defined every annual allocation in the late 1990's. Make no mistake, this retardation and chaos will clearly benefit certain persons and that is becoming increasingly clear. 

And to think the Department only had 8 years to prepare for this allocation process.  


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