DECISIONS ON APPEALS – FISHING INDUSTRY NEWS (JUN 2018)


DECISIONS ON APPEALS – THE DELAY DILEMMA

 

With decisions under FRAP 2015/2016 under various fishing sectors having been announced by the Delegated Authority (“DA”) and with the upcoming FRAP 2020 decisions in mind it is appropriate to reflect on the rights of applicants who wish their internal appeals against such decisions to be decided on urgently.

 

The urgency for applicants generally arises from the scenario where the DA makes decisions on rights applications after the previous long term rights have expired so that existing rights holder applicants are placed in a position where their previous rights have expired, they are unsuccessful with their new application but the new rights allocations commence for the successful applicants. In such a scenario an existing fishing operation grinds to a halt while the TAC to the successful applicants is being fished during the time that the unsuccessful applicant is submitting its internal appeal and awaiting a decision thereon.

The obvious solution to this dilemma would be for the initial decisions by the DA to be taken before the termination of existing rights to provide for sufficient time for the appeal process to be finalised. Unfortunately the appeal provisions under the Marine Living Resources Act (“MLRA”) i.e. section 80 and regulation 5, do not directly state that the rights allocations by the DA are suspended pending the outcome of the appeals. In this regard I am of the view that the legislature should take a leaf out of the Environmental Legislation contained in the National Environmental Management Act (“NEMA”) in terms of which an appeal automatically suspends any environmental authorisation, directive or exemption or other decision taken in terms of NEMA pending the outcome of the appeal. That would negate the need for urgent appeal decisions and subsequent urgent court applications to force decisions (as will be discussed below).

 

A further problem with section 80 of the MLRA and the regulations thereto is that it only places a time frame of 30 days on the DA to provide a report to the Minister in respect of any appeal lodged but it does not place a time frame for the Minister to reach a decision on any appeal. As such even though appellants submitting appeals may request an appeal to be decided on an urgent basis and set out the reasons therefore, the track record of the Department and the Minister is in fact not to decide appeals on an urgent basis and more recently numerous court applications have had to be launched to force the Minister to decide appeals on an urgent basis or to commit to a date by when appeals will be determined.

 

Fortunately the legal basis for forcing a decision from an administrator is clearly set out in section 8(2)(a) and (b) read together with sections 6(2)(g) and 6(3)(a) of the Promotion of Administrative Justice Act (“PAJA”). These provisions in effect provide for the institution of High Court proceedings for the judicial review of the failure to take a decision on the ground that there has been unreasonable delay in taking such decision. The key issue in such court applications is showing that there has been an unreasonable delay (particularly where no time frame is set for the Minister under the MLRA to take a decision on appeal). Whether there has been an unreasonable delay generally depends on the circumstances of each particular appeal e.g whether it is a once off appeal in particular circumstances or one of many hundreds of appeals in a rights allocation process.

In this regard we have since the 2006 long term rights allocation process built up a data base of time frames within which appeal decisions have been taken under varying circumstances. In addition, there is also the odd court decision which has determined what constitutes a reasonable time frame for the taking of a decision on appeal.

 

As such, a court determining what an unreasonable delay constitutes would generally be facing an argument on the one hand: that previously existing rights holders who are unsuccessful with their applications and whose businesses/employees relied on the fishing rights for their livelihoods can no longer operate pending the appeals; and on the other hand that the Minister has a vast number of appeals to decide and that these decisions need to be taken together and reasonable time is required for such processing. A tie breaking factor in these circumstances might be that the rights allocations should have been determined long before the expiry of the previous rights in order to avoid this stand-off – being able to do this would be entirely within the hands of the department. Furthermore this dilemma is clearly foreseeable and it is not for a decision maker to bury their heads in the sand and to be oblivious to the commercial realities that face businesses in such circumstances.

For applicants therefore it is essential that urgency is dealt with comprehensively in their appeals so that this will feed into any urgent court application that follows in terms of the aforesaid provisions of PAJA.

The million dollar question often asked is what period would constitute sufficient time for the deciding of appeals in such circumstances. As a rule of thumb and bearing in mind that the DA has only a statutory period of 30 days to do a report to the Minister on an appeal, one would feel that a period of 4 months is sufficient for a Minister to finalise decisions on appeals. However, ultimately it will depend on the circumstances of each case and a period of 2 months for instance may be sufficient where it is a once off decision to be taken and is not part of a group of many appeals.

 

By way of advice for applicants, it is important to bear in mind that constant correspondence with the Department regarding the progress on appeals is of vital importance to set up future proceedings. From the Department’s point of view, the litigation could easily be avoided once appeals are lodged or demands are made for time frames. The department should simply issue a reply setting out a realistic time frame which can be complied with – to date however, undertakings on time frames for appeal decisions only seem to be given after a court application has been issued and served. Hopefully things will develop positively in this regard in the future.