PERFORMANCE REVIEWS


APPEALING PERFORMANCE REVIEWS

In 2009, the Department of Agriculture, Forestry and Fisheries: Branch Fisheries Management (the Department) initiated a performance review process of all long-term Rights Holders in most of the commercial fishing sectors.  In response to these Report Cards, in late March 2011 the Department issued Report Cards to all Rights Holders in the C & D sectors based on the Request for Information forms submitted by the Rights Holders in 2009. 

In reviewing one such Report Card on behalf of a client it became evident that certain information contained in the Report Card was wholly inaccurate to the extent that one can only assume that the information was captured in error by the Department.  

According to our instructions the procedure that was followed in  respect of the collection of data for the performance review in the C & D sectors was by way of interviewing an authorized Representative of the Right Holder.  Thus the only logical explanation that one can reach in this regard is that there must have been a breakdown in communication during the interview process and as such the data reflected in the Report Card was incorrectly captured by the Department.

ERRORS IN REPORT CARD

Nevertheless, in the Report Card under consideration there were three assessments by the Department which were wholly inaccurate.

1)            In the Departments assessment it was stated that the Rights Holder did not apply for permits to utilize its right for 2006 /2007 season and that no acceptable explanation for the failure to do so was provided.  The Department noted further that the failure to utilize the right during this season amounts to a breach of permit conditions and may be referred to the Departmental officials responsible for initiating proceedings for the revocation of rights in terms of S 28 of the Marine Living Resources Act, 1998 (Act 18 of 1998) (MLRA).  In light of the fact that the Rights Holder has a copy of their 2006 / 2007 permit to utilize the right it is clear that the Departments assertion is incorrect.

2)            Furthermore, according to the Report Card, the Rights Holder had not paid certain outstanding fishing levies and the Department stated further that they would not issue any further permits to the Rights Holder until the levies were paid.  Besides being unclear from the table in the form what amount it is alleged was outstanding, the Right Holder on most occasions paid its levy payments via EFT (Electronic Fund Transfer) and as such was never issued with an official receipt from the Department and without copies of the receipts issued by the Department it is impossible for the Rights Holder to respond to the Departments allegation of outstanding levy payments.

3)¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬† Under the heading ‚ÄúAverage Turnover and Average Turnover / Kilogram‚ÄĚ, the Department noted that the Right Holders ¬†total average turnover over three years of harvesting the right was almost double what the average turnover was in the sector for the three year period.¬† The Department then reached the impossible and quite frankly illogical conclusion that the Rights Holder has an average turnover per kilo of R0.00!

RIGHT TO APPEAL

The Report Card states at page 1 that;

‚Äúthe Minister notes that the Department will not entertain any appeals against the results of the performance review under section 80 of the Marine Living Resources Act, 1998 (Act 18 0f 1998).¬† The results of the performance review are not ‚Äúdecisions‚ÄĚ taken in terms of the MLRA.¬† The results merely reflect an assessment by the Department which, in certain instances, may result in steps being taken against the right holder in terms of S 28 of the MLRA for the revocation, suspension, cancellation, alteration or reduction of the right.‚ÄĚ

Therefore, in view of the fact that the Minister does not consider the Report Card a ‚Äúdecision‚ÄĚ the Minister refuses to accept any appeals in terms of S 80 of the Act. In our view assessments are by their very nature a decision in that they involve the Designated Authority (DA) offering an assessment of the Right Holders performance based on the information provided in the RFI Form.¬†

S 1 (v) of the Promotion of Administrative Justice Act, 2000 (Act 3 of 2000) (PAJA) states that:

‚Äúdecision means any decision of an administrative nature made, proposed to be made, or required to be made as the case may be, under an empowering provision‚Ķ.‚ÄĚ

The definition as set out in PAJA is extremely broad and specifically encompasses decisions that have not yet been made but are only proposed to be made.¬† The term ‚Äúproposed to be made‚ÄĚ suggests that the term ‚Äúdecision‚ÄĚ includes administrative conduct preparatory to the making of a decision, for example reports, recommendations and other preparatory conduct leading to the making of a decision.

It is submitted that the Report Cards will be used to inform the decisions of the Department and Third Parties when making decisions that will have a direct and adverse effect on the rights of Right Holders and as such must fall within the broad definition of ‚Äúdecision‚ÄĚ in PAJA.¬† This is evidenced by the fact that it was specifically stated in a meeting held at MCM on the 28th of October 2009 between the Department and various industry association groups that the Performance Measuring Review Process and the resultant Report Cards would have consequences for Rights Holders ¬†in that their assessments of Rights Holders ¬†may be used by future delegated authorities when assessing Rights Holders ¬†for the allocation of Long Term Rights in the second Long Term Rights allocation process.

Furthermore, it is very likely that the Report Cards will be utilized as a means for third parties to evaluate the performance of individual Rights Holders and will undoubtedly have an impact on the decision of future investors and financiers on the viability of future financing arrangements and is therefore a prime example of the direct affect that the Report Card will have.

Section 80 (1) of the MLRA states that ‚ÄúAny affected person may appeal to the Minister against a decision taken by any person acting under a power delegated in terms of this Act or section 238 of the Constitution.¬† The very fact that, as is directly quoted from the Departments report card, the results contained in the report ‚Äúin certain instances, may result in steps being taken against the right holder in terms of S 28 of the MLRA for the revocation, suspension, cancellation, alteration or reduction of the right‚ÄĚ is a clear example of the potential direct adverse effect that the Report Card may have on the rights of certain Rights Holders.

Thus in light of the above it is clear that the Report Card will clearly have a direct effect on the rights of individual Rights Holders  and will feature significantly in the future decisions affecting the rights of individuals and as such there can be no doubt that the Report Cards, in our opinion, amount to a decision in terms of the broad definition in PAJA and especially in light of the fact that the definition of decision in PAJA must be interpreted widely to give effect to one’s constitutional right to administrative justice. 

It must also be noted that although the Department has allowed Rights Holders to submit formal objections to the Report Card this informal procedure is wholly unsatisfactory and cannot deprive Right Holders of the right to address the Department in terms of the formal procedure as set out in S 80 of the MLRA and remains the only remedy open to Right Holders  to correct errors in the Department.

It was on the basis of the argument as set out above that an appeal was submitted by our firm on behalf of our client.¬† While the Department noted our appeal they still maintained the view that the Report Card does not represent a decision but that they would nonetheless respond to our ‚Äúletter‚ÄĚ once investigations had been concluded.

 This is particularly concerning in light of the fact that Report Cards are apparently due for clusters A & B in the next few weeks.